Each end-user (“User,” “you” or “your”) agrees to the terms and conditions of the Agreement in their entirety, when she/he/they/
it: (a) accesses or uses the Site; (b) accesses and/or views any of the videos, audio, testimonials, text, photographs, graphics, artwork, information and/or other content featured on the Site, including information pertaining to Strive Messaging's products, services and technology (collectively, the “Content”); (c) obtains access, for a fee, to Strive Messaging’s proprietary software, services and technology that enables Users to communicate with third-parties via text messaging, Facebook Messenger® messages and voice calls (collectively, the “Platform”); and/or (d) utilizes the contact form and/or other functionality as a means to request to be contacted by Strive Messaging (collectively, “Contact Services,” and together with the Site, Content and Platform, the “Strive Messaging Offerings”).
By using and/or accessing the Strive Messaging Offerings, Users agree to comply with and be bound by the Agreement in its entirety. PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, YOU ARE NOT AUTHORIZED TO ACCESS, DOWNLOAD AND/OR USE, AS APPLICABLE, THE STRIVE MESSAGING OFFERINGS IN ANY MANNER OR FORM.
NOTICE: THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER AGAINST STRIVE MESSAGING, AS WELL AS ITS PARENT, SUBSIDIARIES, MEMBERS, RELATED PARTIES, THIRD-PARTY PROVIDERS (SUCH AS TWILIO, INC.) AND MARKETING PARTNERS (COLLECTIVELY, “COVERED PARTIES”), WHO ARE EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.
NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).
Facebook® is a registered trademark of Facebook, Inc. (“Facebook”). Please be advised that Strive Messaging is not in any way affiliated with Facebook, and the Strive Messaging Offerings are not endorsed, administered or sponsored by Facebook.
1. Electronic Signatures
User acknowledges and agrees that User accepts the Agreement via electronic means, rather than via traditional handwritten signature ("Electronic Acceptance"). User acknowledges and agrees that by clicking on the “submit button,” or taking such other action as may be designated by Strive Messaging as a means of accepting the Agreement, User is submitting a legally binding electronic signature and is entering into a legally binding contract. User acknowledges that User's electronic submission constitutes User's agreement and intent to be bound by the Agreement, in its entirety. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") and other similar state and federal statutes, USER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PLATFORM OFFERED BY Strive Messaging. Further, User hereby waives any rights and/or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. User acknowledges and agrees that it has the ability to print information delivered to User electronically, or otherwise knows how to store that information in a way that ensures that it remains accessible to User in unchanged form.
2. Scope: Modification of Agreement
The Agreement constitutes the entire and only agreement between Users and Strive Messaging with respect to such Users’ use of the Strive Messaging Offerings, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. We may amend the Agreement from time to time in our sole discretion, without specific notice to our Users; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and Users should review the Agreement in its entirety prior to using any Strive Messaging Offerings. By a User’s continued use of any Strive Messaging Offerings, that User hereby agrees to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
3. Requirements: Necessary Equipment
The Strive Messaging Offerings are available only to individuals who can enter into legally binding contracts under applicable law and are acting in their individual capacity or acting in their capacity as duly authorized representatives of a valid business entity (“Entity”). The Strive Messaging Offerings are not intended for use by individuals: (a) under eighteen (18) years of age (or the applicable age of majority in their respective jurisdictions, if greater than eighteen (18) years of age); or (b) where attempting to utilize the Strive Messaging Offerings on behalf of Entities, not acting in their capacities as duly authorized representatives of those Entities. If a User is under eighteen (18) years of age (or the applicable age of majority in her/his respective jurisdiction, if greater than eighteen (18) years of age), if that User is unable to enter into legally binding contracts under applicable law, and/or if that User is not in acting in her/his capacity as a duly authorized representative of a valid Entity, that User does not have permission to access or use the Strive Messaging Offerings.
Users shall be responsible, at all times, for ensuring that they have an Internet connection, computer/mobile device, up-to-date Internet browser version, a functioning e-mail account, applicable software, applicable hardware and/or other equipment necessary to access the Strive Messaging Offerings. Strive Messaging does not guarantee the quality, speed or availability of the Internet connection associated with any mobile device and/or computer. Strive Messaging does not guarantee that the Strive Messaging Offerings can be accessed: (i) on all mobile devices; (ii) through all wireless service plans; (iii) in connection with all Internet browsers; and/or (iv) in all geographical areas. Standard messaging, data and wireless access fees may apply to use of the Strive Messaging Offerings through a wireless device. Users are fully responsible for all such charges and Strive Messaging has no liability or responsibility to any User, whatsoever, for any such charges billed by any wireless carrier.
4. Registration: Termination of Access to the Strive Messaging Offerings
(a) Registration: In connection with obtaining access to the Platform, utilizing certain other Strive Messaging Offerings and/or otherwise completing the Site registration process, Strive Messaging will collect the following information applicable to the User: (i) the name of the User; (ii) the name of the User’s Entity; (iii) the User’s or Entity’s primary contact’s e-mail address; (iv) the User’s or Entity’s primary contact’s telephone number; (v) credit card, bank card information; and/or (vi) any other information requested on the applicable form (collectively, “Registration Data”). You agree to provide true, accurate, current and complete Registration Data. If you provide any Registration Data that is untrue, inaccurate, not current or incomplete (or if the Registration Data at any time becomes untrue, inaccurate, not current or incomplete), or Strive Messaging has reasonable grounds to suspect that such Registration Data is untrue, inaccurate, not current or incomplete, Strive Messaging has the right to suspend or terminate your account and refuse any and all current or future use of the Strive Messaging Offerings (or any portion thereof).
(b) Account: As part of the registration process, Users will be provided with, or must select, a user-name and/or password for their accounts (each, an “Account”). If the user-name(s)/password(s) that a User requests is/are not available, that User will be asked to supply another user-name/password. If Strive Messaging provides a User with a user-name/password, that User can change that user-name and/or password, or the one that the User selected during registration, at any time through her/his/Entity’s Account settings. We may, in our sole discretion, reject, change, suspend and/or terminate any user-name. Profanity, obscenities, or the use of **asterisks** or other “masking” characters to disguise such words, is not permitted. Impersonating other Users is prohibited. Each User agrees to notify Strive Messaging of any known or suspected unauthorized use(s) of her/his/Entity’s Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of her/his/Entity’s user-name(s)/password(s). Each User shall be responsible for maintaining the confidentiality of her/his/Entity’s user-name(s)/password(s) and Account. Each User agrees to accept responsibility for all activities that occur through use of her/his/Entity’s user-name(s)/password(s) and Account, including any charges incurred therethrough. Any fraudulent, abusive or otherwise illegal activity engaged in by any User, or any entity or person with access to that User’s user-name(s)/password(s) and/or Account may be grounds for termination of that User’s Account and access to the Strive Messaging Offerings, in Strive messaging’s™ sole discretion, and that User may be reported to appropriate law enforcement agencies.
(c) Termination: Strive Messaging may terminate a User’s access to the Strive Messaging Offerings at any time where Strive Messaging believes, in its sole discretion, that such User is: (i) in any way in breach of the Agreement; and/or (ii) engaged in any improper conduct in connection with the Strive Messaging Offerings.
Subject to the terms and conditions of the Agreement, Strive Messaging hereby grants User a non-exclusive, non-transferable, limited license to access and use the Platform solely for User’s own internal business/personal use purposes as contemplated hereunder; provided, however, that User is prohibited from using the Platform for unsolicited telemarketing purposes, including the unsolicited marketing of any product and/or service. The Platform shall enable User to: (a) upload a database of individuals and associated contact information (“User Database”); (b) compose messages (“User Messages”) to be transmitted to some or all of the individuals in the User Database in connection with User’s outreach programs (“User Outreach Campaigns”).
The Platform utilizes systems made available by Mobile Aggregators (“Aggregators”). User acknowledges and agrees that we may share Users personal information, including the content of User Messages, with Aggregators as needed for Aggregators to provide services to us.
Further, the Platform integrates with certain third-party applications such as consumer relationship management programs. User agrees that, if User provides us with credentials to access and integrate User’s Account with a third-party application, we may use such credentials as needed in connection with User’s use of the Platform.
User understands and agrees that Strive Messaging is not responsible or liable in any manner whatsoever for User’s inability to use the Platform and/or other Strive Messaging Offerings. User understands and agrees that Strive Messaging shall not be liable to you or any third-party for any modification, suspension or discontinuation of the Platform, other Strive Messaging Offerings and/or any services offered in connection with same. Strive Messaging does not guarantee any outcome or benefit in connection with use of the Platform.
6. Legal Compliance
User understands and agrees that, although certain aspects of the Platform may involve Strive Messaging assisting User with various outreach efforts (including generating possible text content in connection with User Outreach Campaigns), neither is Strive Messaging providing, nor are the Platform and/or Strive Messaging-provided text content intended, under any circumstances, to constitute, legal advice, recommendations or counselling in connection with any legal or regulatory matter, and no element of the Platform and/or Strive Messaging-provided text content should be construed as such. User shall, at all times, be fully responsible and liable for fulfilling and complying with any and all obligations, restrictions and requirements associated with any activities undertaken by User in connection with the: (a) collection, maintenance and use of the User Database; (b) User Messages; (c) User Outreach Campaigns; and (d) general use of the Platform, including complying with consumer marketing and/or consumer consent requirements imposed by applicable law including, without limitation, the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations (“TCPA”), the Florida Telemarketing Act and the Florida Do Not Call Act, as amended (including, without limitation, any regulations applicable to the frequency of messages sent to individuals in the User Database), any rules regarding restrictions on contacting individuals during certain hours, days of the week and/or holidays, the Amended Telemarketing Sales Rule (“ATSR”), and laws governing the National Do Not Call Registry (“NDNCR”), the Mobile Marketing Association’s Code of Conduct and Consumer Best Practices Guidelines, the CTIA Mobile Commerce Compliance Handbook, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), the EU General Data Protection Regulation (“GDPR”), the California Consumer Privacy Act (“CCPA”), the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the Canadian Anti-SPAM Legislation (“CASL”), California Business & Professions Code §17529 et seq., Nevada’s privacy law, as amended by Senate Bill 220 (the “Nevada Privacy Law”), the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, any terms and conditions applicable to Facebook Messenger®, and all rules and regulations promulgated under such state laws (collectively, “Applicable Law”). User represents and warrants to Strive Messaging that: (i) the User Database was/will be obtained, collected, compiled and continues to be maintained by User, with the express informed consent of the subject consumers, in compliance with all Applicable Law; (ii) the User Database was collected from valid sources, including User-owned or affiliated websites in compliance with the applicable websites’ privacy policies and such privacy policies specifically allow for User to upload consumer data to third party platforms, such as the Platform, and to transfer such consumer data to unaffiliated third parties, such as Strive Messaging, for the purposes contemplated hereunder; (iii) User’s use of the Platform, including any and all User Messages sent in connection therewith, as well as the execution, delivery and performance by User of the Agreement, will not violate any Applicable Law; (iv) the individuals in the User Database have each: (A) provided their respective “prior express consent,” within the meaning of the TCPA, for User to contact them via telephone calls and text messages through automated means to the telephone numbers provided (“Active Telephone Number”); and (B) represented that they are the line subscribers or primary users of the Active Telephone Numbers and, as such, have the authority to agree to receive telephone calls and text messages on the Active Telephone Number; (v) User shall provide all opt-out methods required by Applicable Law in connection with each User Message, and shall honor all do-not-call, unsubscribe and/or opt-out requests upon receipt of same including by updating the User Database accordingly; and (vi) User has the necessary authority to enter into the Agreement and carry out its obligations hereunder.
(a) Platform Fees: Where a User wishes to obtain access to the Platform, the User’s credit card, debit card,, and/or any other payment option permitted by Strive Messaging and provided by that User (collectively, “Payment Method”) will be charged the applicable fees (the “Fees”) for the applicable term (“Term”), each as set forth on the Site at the time that the User purchases access to the Platform (each, a “Subscription”). Upon expiration of the applicable Term, such Term shall automatically renew for a period of equal length, and User’s Payment Method will be charged the applicable Fees (“Recurring Fees”) unless User terminates her/his Subscription. All Fees will be charged in advance, and you acknowledge and agree that Strive Messaging will not obtain any additional authorization from you for the Recurring Fees. Overdue Fees will accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law.
By providing us with a Payment Method, you: (i) represent that you are authorized to use the Payment Method that you provided and that any payment information that you provide is true and accurate; and (ii) authorize us to charge the Fees (including any applicable Recurring Fees) to your Payment Method. You must promptly notify us of any changes to your Payment Method. Any attempt to defraud through the use of any Payment Method, regardless of the outcome, or any failure by you to honor legitimate charges or requests for payment, will result in immediate termination of your access to the Platform and Strive Messaging Offerings, as well as our pursuit of civil litigation and/or criminal prosecution. UNLESS OTHERWISE INDICATED ON THE SITE AND/OR IN THE ORDER FORM, ALL FEES ARE FINAL AND NON-REFUNDABLE.
(b) General Billing Provisions: Subject to the conditions set forth herein, if any, you agree to be bound by the Billing Provisions of Strive Messaging in effect at any given time. Upon reasonable prior written notice to you (with e-mail sufficing), Strive Messaging reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Subsequent payment of Fees after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any Fees incurred prior to the applicable amendment or modification. Strive Messaging's authorization to bill for purchases may be obtained by way of your electronic signature. Once an electronic signature is submitted, the electronic order constitutes an electronic letter of agency. Strive Messaging's reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically preempt all state laws that recognize only paper and handwritten signatures.
(c) Cancellation of Your Subscription: You may terminate your Subscription at any time upon email notice to: firstname.lastname@example.org. Upon cancellation or termination of your Subscription for any reason, you must immediately cease all use of the Platform in connection with that Subscription. You will not receive a refund of any Fees paid prior to termination. Upon termination, we may, but are under no obligation to, delete any and all information stored by us related to your use of the Strive Messaging Offerings including, but not limited to, any User Databases.
The Site contains Content promoting Strive Messaging's product and service offerings. The Content includes, but is not limited to, videos, audio, stories, testimonials, text, photographs, graphics, artwork and/or other materials regarding the Strive Messaging Offerings.The Content is offered for informational purposes only and is at all times subject to the disclaimers contained herein and on the Site.
9. User Messages/Use Content Guidelines
(a) Subject to the restrictions contained herein including, without limitation, those contained below, the Platform allows Users to distribute User Messages that may contain comments, text, video and other content. Each User shall be solely responsible for the content of all User Messages (collectively, “User Content”) distributed by and through the Platform. Strive Messaging reserves the right to prohibit any conduct by Users, or to remove any materials or User Content distributed by Users by and through the Platform, that Strive Messaging deems, in its sole and absolute discretion, to be in violation of the Agreement and/or which Strive Messaging believes to be illegal, potentially harmful to others, otherwise objectionable or that same may expose Strive Messaging to harm, damage to reputation or liability. Notwithstanding the foregoing, Strive Messaging undertakes no responsibility to monitor or otherwise police the actions of Users, User Content and/or other material produced and/or posted by Users and/or other third parties. Strive Messaging shall have no obligation and incur no liability to such Users in connection with any User Content.
(b) In connection with your User Messages and associated User Content, you agree not to: (i) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third party; (ii) display any audio files, text, photographs, videos or other images containing confidential information; (iii) display any audio files, text, photographs, videos or other images that may be deemed indecent or obscene in your community, as defined under applicable law; (iv) impersonate any person or entity; (v) “stalk” or otherwise harass any person; (vi) engage in unauthorized advertising to, or commercial solicitation of, individuals in the User Database; (vii) transmit any unsolicited texts and/or calls to third-parties; (viii) express or imply that any statements that you make are endorsed by Strive Messaging, without Strive Messaging's specific prior written consent; (ix) harvest or collect personal information of other Users whether or not for commercial purposes, without their express consent; (x) use any robot, spider, search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Strive Messaging Offerings; (xi) distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (xii) remove any copyright, trademark or other proprietary rights notices contained on the Site; (xiii) interfere with or disrupt the Strive Messaging Offerings and/or the servers or networks connected to same; (xiv) transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to mobile networks; (xvi) “frame” or “mirror” any part of the Site without Strive Messaging's prior written authorization; (xvii) use metatags or code or other devices containing any reference to any Strive Messaging Offerings in order to direct any person to any other mobile application or website for any purpose; (xviii) engage in any unsolicited telemarketing and/or the unsolicited marketing of any product and/or service; and/or (xix) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Strive Messaging Offerings or any software used in or in connection with the Strive Messaging Offerings. Strive Messaging reserves the right to pursue any and all legal remedies against Users that engage in the aforementioned prohibited conduct.
10. License Grant
As a User of the Strive Messaging Offerings, you are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Strive Messaging Offerings and associated content in accordance with the Agreement. The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to the Strive Messaging Offerings are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. Strive Messaging reserves any rights not explicitly granted in the Agreement. You do not acquire ownership rights in or to any content, document, software, services or other materials viewed by or through the Strive Messaging Offerings. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Strive Messaging Offerings. You may not take any action that imposes an unreasonable or disproportionately large load on Strive Messaging infrastructure. Your right to use the Strive Messaging Offerings is not transferable.
You expressly grant, and you represent and warrant that you have all rights necessary to grant, to Strive Messaging, a royalty-free, sublicensable, transferable, non-exclusive, worldwide license to use, develop, transmit, distribute, modify, reproduce, publicly display, and create derivative works of the Consumer Data for the purpose of providing the Platform, and associated services, to you.
11. Proprietary Rights
As between Strive Messaging and User, Strive Messaging is the sole and exclusive owner of any and all intellectual and/or proprietary rights in and to the Platform and Strive Messaging Offerings. The posting of information or material on or through the Strive Messaging Offerings by Strive Messaging does not constitute a waiver of any right in or to such information and/or materials. The “Strive” name and logo, and all associated graphics, icons and service names, are trademarks of Strive Messaging Inc.. All other trademarks are the property of their respective owners. The use of any trademark without the applicable trademark owner's express written consent is strictly prohibited. Without limiting the foregoing, User will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform and/or any software, documentation or data related to the Platform (“Software”) in order to: (i) build a competitive product or service; (ii) build a product using similar ideas, features, functions or graphics to that/those of the Platform and/or Software; or (iii) copy any ideas, features, functions or graphics of the Platform and/or Software; (b) modify, translate, or create derivative works based on the Platform or any Software (except to the extent expressly permitted by Strive Messaging or authorized within the Platform); (c) use the Platform and/or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels; and/or (d) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit, or allow access to or use by any third party so that it may commercially exploit, the Platform and/or Software in any way.
As between Strive Messaging and User, User is the sole and exclusive owner of the User Database; provided, however, that Strive Messaging may retain a copy of the User Database for record-keeping and Platform-maintenance purposes. Notwithstanding the foregoing, Strive Messaging shall own any and all aggregated data applicable to the User’s Platform activity, as collected, compiled and maintained in reports and datasets on an anonymous, non-personally identifiable basis (“Aggregate Data”). User hereby agrees that Strive Messaging may share the Aggregate Data, but never the User Database, with third party entities for market-research purposes, but may not use the Aggregate Data, or any other consumer-related data, under any circumstances to specifically target any individual consumer(s).
You may choose to, or we may invite you to, submit comments, suggestions, feedback, or ideas concerning the Platform including, without limitation, about how to improve the Platform or our other products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Strive Messaging under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Strive Messaging does not waive any rights to use similar or related ideas previously known to Strive Messaging, or developed by its employees, or obtained from sources other than you.
12. Platform Availability
User understands that, on occasion, the Platform may be inaccessible, unavailable or otherwise inoperable for any reason including, but not limited to, the following: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs; and/or (c) causes beyond Strive Messaging's control or which are not reasonably foreseeable by Strive Messaging including, but not limited to, interruption or failure of telecommunications or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. User agrees that Strive Messaging has no control over, and shall not be liable for, the availability of the Platform on a continuous and uninterrupted basis. Further, User understands and agrees that Strive Messaging's failure to provide access to the Platform because of technical difficulties shall not be considered a breach and/or failure to meet its obligations under the Agreement.
13. Representations and Warranties
User hereby represents and warrants to Strive Messaging as follows: (a) this Agreement constitutes the legal, valid and binding obligation of User and the Entity that she/he/they represents, which is fully enforceable against User and that Entity in accordance with its terms; (b) User understands and agrees that User and the Entity that she/he/they represents has independently evaluated the desirability of utilizing the Strive Messaging Offerings and that neither User, nor the Entity that she/he/they represents, has relied on any representation and/or warranty other than those set forth in the Agreement; and/or (c) the User Messages, User Outreach Campaigns and User Database utilized by User, as well as the execution, delivery and performance of the Agreement by User and the Entity that she/he/they represents, will not conflict with or violate any Applicable Law, rule or regulation.
Each User and, if applicable, the Entity that she/he/they represents agrees to indemnify, defend and hold Strive Messaging, Aggregators, Strive Messaging's employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (a) User’s/Entity’s improper and/or unauthorized use of the Strive Messaging Offerings; (b) User’s/Entity’s breach of the Agreement in any manner whatsoever; (c) the User Database, the collection, storage and maintenance related thereto, as well as any consents to use the User Database as contemplated hereunder; (d) the User Outreach Campaigns and User Messages; and/or (e) User’s/Entity’s violation of any rights of another individual and/or entity. The provisions of this Section 14 are for the benefit of Strive Messaging, Aggregators, Strive Messaging's parent, subsidiaries and/or affiliates, and each of their respective members, officers, directors, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against you on its own behalf.
15. Legal Warning
Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Strive Messaging Offerings is a violation of criminal and civil law and Strive Messaging will diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity.
16. Disclaimer of Warranties
THE STRIVE MESSAGING OFFERINGS, PLATFORM AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, STRIVE MESSAGING MAKES NO WARRANTY THAT THE STRIVE MESSAGING OFFERINGS, PLATFORM AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME: (A) WILL MEET ANY USER’S/ENTITY’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL RESULT IN ANY SPECIFIC OR GENERAL OUTCOME OR ECONOMIC BENEFIT; (E) WILL RESULT IN ALL USER MESSAGES BEING DELIVERED TO THE INTENDED RECIPIENT(S); AND/OR (F) WILL BE ACCURATE OR RELIABLE. THE STRIVE MESSAGING OFFERINGS, PLATFORM AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. STRIVE MESSAGING WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE STRIVE MESSAGING OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM STRIVE MESSAGING OR OTHERWISE THROUGH OR FROM THE STRIVE MESSAGING OFFERINGS AND/OR PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
17. Limitation of Liability
EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT STRIVE MESSAGING SHALL NOT BE LIABLE TO THAT USER, THE ENTITY THAT SUCH USER REPRESENTS, OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF STRIVE MESSAGING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FOR: (A) THE USE OR INABILITY TO USE THE STRIVE MESSAGING OFFERINGS, PLATFORM AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM OR THROUGH THE STRIVE MESSAGING OFFERINGS AND/OR PLATFORM; (C) ANY DISPUTE BETWEEN ANY USERS, ENTITIES AND/OR THIRD-PARTIES; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER’S AND/OR ENTITY’S REGISTRATION DATA; (E) THE FAILURE TO REALIZE ANY SPECIFIC OR GENERAL OUTCOME OR ECONOMIC BENEFIT; (F) THE FAILURE TO DELIVER ANY USER MESSAGES; AND/OR (G) ANY OTHER MATTER RELATING TO THE STRIVE MESSAGING OFFERINGS, PLATFORM AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH USER, ON HER/HIS BEHALF AND ON BEHALF OF THE ENTITY THAT SHE/HE/THEY REPRESENTS, HEREBY RELEASES STRIVE MESSAGING FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF STRIVE MESSAGING TO ANY USER AND/OR ENTITY UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE STRIVEMESSAGING OFFERINGS, PLATFORM AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME, MAY BE BROUGHT BY ANY USER, ENTITY OR STRIVE MESSAGING MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH USER, ENTITY AND STRIVE MESSAGING. ACCESS TO THE STRIVE MESSAGING OFFERINGS AND PLATFORM WOULD NOT BE PROVIDED TO ANY USERS AND/OR ENTITIES WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF STRIVE MESSAGING SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. Third-Party Websites
The Strive Messaging Offerings contain links to other websites on the Internet that are owned and operated by third-parties. Strive Messaging does not control the information, products or services made available on or through these third-party websites. The inclusion of any link does not imply endorsement by Strive Messaging of the applicable website or any association with the website’s operators. Because Strive Messaging has no control over such websites and/or resources, each User/Entity agrees that Strive Messaging is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from or through any such websites or for the protection of any User’s/Entity’s data privacy by third-parties. Each User/Entity further agrees that Strive Messaging shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such website.
19. Editing, Deleting and Modification
Strive Messaging reserves the right, in its sole discretion, to edit and/or delete any documents, information or Content appearing on the Site and/or through the Platform.
20. Use of User Information
21. Dispute Resolution Provisions
The Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). The parties hereto and Covered Parties hereby agree to arbitrate all claims that may arise under the Agreement. Without limiting the foregoing, should a dispute arise concerning the Strive Messaging Offerings, the Agreement or the breach of same by any party hereto: (a) the parties/Covered Parties agree to submit their dispute for resolution by the American Arbitration Association in New York, New York, in accordance with the then current Commercial Arbitration rules of the American Arbitration Association; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be be provided by request by emailing email@example.com. The Covered Party(ies) named in your Initial Dispute Notice (collectively, the “Named Parties”) may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If the Named Party(ies) provide(s) you with a Final Settlement Offer and you do not accept it, or the Named Party(ies) cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before the AAA, in your county of residence, by filing a separate Demand for Arbitration, which can be be provided by request by emailing firstname.lastname@example.org. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than the Final Settlement Offer offered by the Named Party(ies), then the Named Party(ies) will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, the Named Party(ies) will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Although the Named Party(ies) may have a right to an award of attorneys’ fees and expenses if the Named Party(ies) prevail(s) in arbitration, the Named Party(ies) will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against any Covered Parties. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that any of the Covered Parties incur(s) in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Site.
Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Strive Messaging Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. Strive Messaging's failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Strive Messaging may, with or without notice to you and in its sole discretion, assign the Agreement and/or any of its rights or delegate its duties under the Agreement to any third-party for any purpose. The Agreement, may not however, be assigned by you, and you may not delegate your duties under it. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
23. California User Consumer Rights
In accordance with Cal. Civ. Code Sec. 1789.3, California State resident Users may file grievances and complaints with the California Department of Consumer Affairs, 400 R Street, Ste. 1080, Sacramento, CA 95814; or by phone at 916-445-1254 or 800-952-5210; or by email to email@example.com.
24. Contact Us
If any User has any questions about the Agreement, Strive Messaging Offerings, the Platform or the practices of Strive Messaging, that User can: email us as at: firstname.lastname@example.org; call us at: (844) 395-5544; or send us U.S. Mail to: Strive Messaging Inc., 125 W. 96th St., #1K, New York, NY 10025.