Terms of Use Agreement

Effective: Nov 6, 2023

Last Updated: Nov 2, 2023

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

This Subscription Agreement (the “Agreement”) is an agreement between IKEONO, LLC, a Delaware limited liability company (“Ikeono,” “we,” “us,” “our,” or “ourselves”) and the representative (“you” or “your”) who is authorized to legally bind a single company, organization, or entity (the “Subscriber”) regarding its and your use of the Services (as defined below).

BY SUBSCRIBING TO THE SERVICES, INCLUDING ANY FREE TRIAL, OR BY OTHERWISE USING THE SERVICES IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT. If you do not accept and agree to be bound by all of the terms of this Agreement, you are prohibited from using the Services and you must stop using the Services immediately. 

The terms of this Agreement are subject to change at any time. It is your responsibility to check periodically for any changes; however, we will notify you of any material changes to this Agreement of Use in advance. Continued use of the Services shall constitute acceptance of any changes. The updated version of this Agreement supersedes all prior versions.  If you do not agree to the updated version of this Agreement, you must stop using the Services immediately. 

1. Definitions.

“Individual” means any user of the Customer Services or recipient of any communications through your use of the Services. 

“Billing Period” means each one-month subscription period beginning on the day the Subscriber signs up for the Services or the day on which the subscription to the Services renews.

“Customer Services” means any software application or other products and services provided by you and used in connection with your use of the Services under this Agreement.

“End User” means the Subscriber’s employees and contractors who use the Services. 

“Services” means the Website, the Software, and any other services provided by Ikeono to its subscribers, excluding Customer Services and Third-Party Property, to which you have subscribed. 

“Subscriber Content” means the content which Subscriber makes publicly accessible through the Services and content which Subscriber sends to Individuals using the Services. 

“Subscriber Data” has the meaning set forth in 4.2.1.

“Territory” means the geographic areas where Subscriber may access and use the Services. At this time, the Territory includes only United States, Canada, and Australia.. 

“Data Processing Agreement” (DPA): This explains how we process your data and includes the EU Standard Contractual Clauses.

1. Description of the Services. Ikeono provides this website (the “Website”) and certain software applications, integrations, and platforms (the “Software”) and other Services to businesses. The Services include, without limitation, enabling text messaging from the Subscriber’s landline or VoIP, facilitating the collection of feedback and reviews from customers, text-to-pay options, integrations with the Subscriber’s point-of-sale, and a web chat tool. The Services are intended for business and professional use only. 

2. Your Use of the Services.

1. Your Representations and Eligibility to Use Services.

1. You represent and warrant that you have the legal power and authority to enter into this Agreement and that this Agreement is entered into by an employee, agent, or other authorized representative of the Subscriber with all necessary authority to bind the Subscriber to this Agreement. 

2. You represent and warrant that all information you submit when using the Services is complete, accurate, and truthful. You are responsible for maintaining the completeness, accuracy, and truthfulness of such information.

2. Compliance with Law.

1. Subscriber shall use the Services only in accordance with all applicable federal, state, provincial, municipal or local government laws, statutes, rules, by-laws and regulations, and all applicable official rules, policies, notices, directives, orders, judgments and decrees of any governmental authority, as amended from time to time (together, “Applicable Laws”) including, but not limited to, the Health Insurance Portability and Accountability Act (HIPAA), the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act, the Gramm-Leach-Bliley Act, the California Consumer Privacy Act, Canada’s Personal Information Protection and Electronic Documents Act and equivalent provincial private-sector privacy legislation, Canada’s provincial health information privacy laws, Canada’s Telecommunications Act and the Canadian Radio-television and Telecommunications Commission’s Unsolicited Telecommunications Rules, Canada’s anti-spam legislation, Quebec’s Charter of the French Language and all other Applicable Laws and regulations concerning privacy, telecommunications, telemarketing, call recording, language translation, and the sending of email, text, and fax messages. 

2. You covenant and warrant that all communications by you, the Subscriber, and all End Users shall comply with all such Applicable Laws at all times, including any legal limitations concerning the timing, frequency, and nature of the messages you send.

3. Ikeono makes no representation that the Services are appropriate or available for use in locations outside the Territory (or that all products or features of the Services are available throughout the Territory). Furthermore, accessing the Services from territories where their content or use is illegal, is prohibited under this Agreement. If Subscriber attempts to access or use the Services outside of the Territory, Subscriber does so at its own initiative and is responsible for compliance with all law and regulations and any costs associated with access or use of the Services outside the Territory. You may not use or export the Services in violation of U.S. export laws and regulations.

3. Account Registration and Administration.

1. In order to access or use certain parts of the Services, you must first register for an account (your “Account”) through our online registration process. When creating your Account, you agree to provide true, accurate, current, and complete information and to maintain and update your Account information as needed. You are responsible for implementing generally accepted security measures to protect your Account, including maintaining the confidentiality of your Account username and password and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your Account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Service through your Account with or without your permission. If you have reason to believe that your Account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your username, password, or any credit, debit or charge card number), you agree to immediately notify Ikeono. You may be liable for the losses incurred by Ikeono or others due to any unauthorized use of your Account.

2. The End User who first registers for an Account on behalf of a Subscriber is the initial “Administrator” for purposes of such Subscriber. The Administrator may configure certain options to determine the level of access, privacy, and security for the Services related to the Subscriber, including without limitation: (a) providing access to other End Users; (b) assigning the appropriate level of privileges for each End User; (c) keeping the Subscriber’s information up-to-date; and (d) terminating Accounts of those End Users who are no longer authorized by you to use the Services.

4. Limited Use of Services.

1. Subject to all terms of this Agreement, Ikeono grants you a non-exclusive, non-transferable, non-sublicensable, revocable, limited right during the applicable Billing Period and within the Territory (to the extent available in the Territory) to: (a) install and use an object code copy of any Software; (b) access and use the Services solely for Subscriber’s internal business purposes, but only in accordance with this Agreement, and in compliance with Applicable Laws. 

2. Consistent with your plan, we may limit your overage usage, the size of your messages, or other characteristics of the Services for the purpose of providing those Services as determined in our sole discretion.

3. You will: (a) be solely responsible for all use of the Services through your Account and the Customer Services; (b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to your customers) or offer them on a standalone basis; (c) use the Services only in accordance with this Agreement and all applicable laws and regulation; (d) be solely responsible for all acts, omissions, and activities of your End Users, including their compliance with this Agreement and applicable law or regulation; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Ikeono promptly of any such unauthorized access or use; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with your representations and warranties set forth in Section 5 (Representations, Warranties, and Disclaimer).

5. Prohibited Activity. Subscriber shall not, and shall not permit any person or third party to: (a) copy the Services or any component thereof; (b) modify, translate, or otherwise create derivative works of the Services; (c) disassemble, decompile, or reverse engineer the Services, or any component thereof, including without limitation in object code or source code format; (d) attempt to bypass or breach any security device or protection used by the Services, or access the Services using any methods other than those permitted under this Agreement; (e) use or access the Services in any way or for any purpose which violates any applicable law or regulation; (f) damage, destroy, disrupt, disable, interfere with, or otherwise impede or harm the Services or any databases, systems or, network infrastructure involved in the hosting and provision thereof; (g) access (or attempt to access) the Services through any automated means (including use of any scripts, web crawlers, spiders, robots, or site/search retrieval application), including, but not limited to, during the creation of accounts or logins to the Services; (h) remove, delete, alter, or obscure any trademarks, specifications, documentation, warranties, disclaimers, or intellectual property or proprietary rights notices from the Services; (i) upload or otherwise introduce into the Software any virus, disabling device, or other harmful or malicious software code, tool, or application; (j) use software, equipment, or other services in conjunction with our Services to initiate automated messages (messages without direct human engagement in initiating messages through our Services), except for those automatic messages set up within and through our Services; and (k) use the Services in any manner to disguise the source or origin, including through manipulating identifiers or falsifying headers, is prohibited.

6. Communications with Individuals.

1. Ikeono facilitates the communications between Subscribers and their customer. Ikeono does not itself verify the content of any messages sent by users or messages received by your customers. Ikeono cannot and does not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, legality, or applicability of any text message sent to a mobile number or received by any user. Text messages are created and sent at your own risk.

2. You are solely responsible for legal compliance of your use of our Services—including the act of sending messages as well as their content, including text and images. You are further solely responsible for any consequences of your messages, including liability for their content and for the act of sending them.

3. Without limiting your obligations under Section 3.2, you will only use the Services to communicate with those individuals who have explicitly consented to receive such communications from the Subscriber.  

4. You shall not (a) harass or advocate harassment of another person or entity; (b) impersonate any person or entity or misrepresent in any way any affiliation with a person or entity; (c) send text messages to unknown mobile numbers or to mass text unsolicited persons; (d) solicit passwords or personally identifying information for unlawful purposes or disseminate any individual’s personally identifying information without that individual’s permission; (e) use the Services to disseminate adult or pornographic content; (f) use the Services to contact emergency services, such as 911, fire, police, ambulance, or related services, or any other entities where such contact is restricted by law; (g) use the Services in a way that infringes any intellectual property rights—including copyright, trademarks, and publicity rights; (h) use the Services to promote violence, degradation, subjugation, discrimination, or hatred against individuals or groups based on race, ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity. 

5. You agree to indemnify and hold us harmless for all damages, costs, expenses, and fees (including attorneys’ fees by the attorneys of our choice) resulting from or relating to your failure to comply with your legal obligations toward any Individual, including the obligation to obtain explicit consent from such Individual. 

6. Upon request, shall provide Ikeono with confirmation of any consents you have received from those receiving or intended to receive messages through our Services.

7. You confirm here that you will provide all Individuals a written, opt-out feature to unsubscribe from future messages through our Services. 

7.  Suspension of Services; Other Remedies.

1. Ikeono may suspend the Services upon written notice to you if Ikeono, in good faith, determines: (a) that you or your End Users materially breach (or Ikeono, in good faith, believes that you or your End Users have materially breached) this Agreement; (b) there is an unusual and material spike or increase in your use of the Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; (c) that its provision of the Services is prohibited by applicable law or regulation; (d) there is any use of the Services by you or your End Users that threatens the security, integrity, or availability of the Services; or (e) that information in your Account is untrue, inaccurate, or incomplete. You remain responsible for payment of the Fees during any period of suspension resulting from your breach of this Agreement.

2. We reserve the right, but have no obligation, to review your messages and content within our Services, for the purpose of compliance with our terms, including those here and in our Privacy Policy, and any applicable laws.

3. At any time and without advance notice, we reserve an unrestricted right to refuse the use of our Services for any message or content, or to remove content, in our sole discretion.

4. Nonetheless, we are not responsible for any third-party content and make no commitment or assurances that we will remove, monitor, or assess any specific third-party content, regardless of its content or character.

3. Intellectual Property.

1. Ikeono Property.

1.  As between the parties, Ikeono is the owner of all rights, title, and interest, including without limitation any and all associated intellectual property rights, in and to the Services (including the Software), all logs and records created by Ikeono or its providers and systems as a result of the registration, access and use of the Services, and any ideas, concepts, know-how, documentation, techniques, work product, or other proprietary materials that Ikeono provides, discloses, or makes available under this Agreement, and any updates, enhancements, customizations, modifications, and developments thereto or derivative works thereof. 

2. Nothing in this Agreement shall constitute or be construed as any sale, assignment, or other transfer of any proprietary interest in or to the Services, and Ikeono hereby reserves all rights in the Services not expressly granted herein.

3. If, in the course of the use of the Services under this Agreement, Subscriber or any End User provides remarks, suggestions, requests, recommendations, improvements, or comments regarding the Services, or other of Ikeono’s business activities or proprietary materials (collectively, “Feedback”), Ikeono may use, disclose, and otherwise exploit all such Feedback for any and all internal, public, commercial, and non-commercial purposes. Feedback is not Subscriber’s confidential or proprietary information.

2. Customer Data and Content.

1. In the course of Subscriber’s permitted access to and use of the Services, Subscriber and its End Users may make available to Ikeono certain non-public data, including, but not limited to, contact information that may be submitted or uploaded to the Services in connection with messaging sent through the use of the Services, as well as information provided in connection with Subscriber’s account and login to the Services (“Subscriber Data”). Subscriber hereby grants to Ikeono a non-exclusive, non-sublicensable right and license to use the Subscriber Data to the limited extent necessary for Ikeono to provide the Services to Subscriber and allows Ikeono to use such Subscriber Data in an anonymized, aggregated, de-identified format for any business purpose including without limitation for purposes of analytics, research, and benchmarking of the Services.

2. Subscriber hereby unconditionally grants Ikeono a non-exclusive, fully paid right and license to use the Subscriber Content for any lawful purpose, including using, distributing, or otherwise publishing or publicizing that content to operate the Services or to promote, demonstrate, or advertise the Services. 

3. We have no duty to store or retain any Subscriber Data, Subscriber Content, or other content, including text messages, images, and related metadata, or information, including customer contact information, that is provided by or generated through our Services.

4. Protection of Customer Data. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Subscription Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA.

4. Payments.

1. Subscription Plans and Overage Fees.

1. The amount of your fees is set forth for the plan you select at https://ikeono.com/pricing/ or, in the case of a custom plan, under our agreed-upon rate for the individual services you select.  Your services will start the day you render your first payment. We will automatically repeat that charge on that same day each month (“Billing Day”) for the coming Billing Period. The Billing Period is the time from and including the current Billing Day to the day before your next Billing Day. Where you sign up on the 29th or 30th of the month, you will be billed monthly according to the payment processing service’s protocol; at present, that means your Billing Day will be on the 28th of subsequent months. 

2. If you change your service plan during a Billing Period to a plan with fewer messages/features, that plan change will not occur until the next Billing Period. If you change your service plan during a Billing Period to a plan with more messages/features, that plan change will occur as soon as possible, and you will be billed for the monthly fee difference at that time for the current Billing Period. You will not receive any pro-rated deduction in the Billing Period in which you changed your plan for any period in which you received Services under your previous plan.

3. We will provide you with a schedule of overage fees for the calendar month on or about the first day of the following month. Unless you inform us of any issues, in writing, within seven (7) calendar days of us sending your overage statement, we will automatically charge the credit card or other payment method you provide us for those overage fees. By engaging our Services, you authorize us to do so.

2. Monthly Auto-Renewal.

1. Your subscription to the Services will AUTOMATICALLY RENEW each month continuously and indefinitely without action by the Subscriber. The Fees will be charged to your original payment method automatically at the beginning of your Billing Period, and at the beginning of each renewal Billing Period thereafter on the calendar day corresponding to the commencement of your current Billing Period, unless you cancel your subscription, or your Account is suspended or terminated pursuant to this Agreement. 

2. You may instruct us to cancel or change your plan at any time by informing us in writing at hello@ikeono.com. If you cancel your plan prior to the end of a Billing Period, your Services under your plan will extend until the end of that Billing Period. You will not receive a pro-rated refund for any portion of a Billing Period after cancellation.

3. Price Changes. Pricing is subject to change in our sole discretion and will be communicated thirty (30) days before any such changes will take effect. You agree that we may change the pricing we charge you for your subscription and any Services offered in your subscription package by providing you with notice through an electronic communication to you from us. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be timely and in writing. 

4. Payment Processing. By engaging our Services, you authorize us (or our payment processing service) to automatically charge the credit card or other payment method you provide us each month on the Billing Day for the monthly plan fee for the coming Billing Period. Monthly billing occurs through our payment processing service (currently, Stripe). 

5. Third Parties.

1. Third-Party Property.

As part of Subscriber’s access to and use of the Services, Subscriber may access tools, components, modules, sites, links, or other materials from third parties (collectively, “Third-Party Property”). We do not provide, own, or control the Third-Party Property. Ikeono is not responsible for any Third-Party Property, including the accuracy, timeliness, or completeness of the content you access through the Third-Party Property.  We provide access to the Third-Party Property only as a convenience and we do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Property. You are bound by any terms associated with the Third-Party Property and are responsible for reviewing those terms. Those terms contain liability waivers, disclaimers, and additional terms. You are solely responsible for confirming and adhering to those terms. 

1. Third-Party Providers. 

1. Ikeono has no control over third party telephone networks, intermediary service providers, API vendors, or carriers (“Third-Party Providers”). Technical processing and transmission of Subscriber Data and messages through Third-Party Providers’ systems may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices to such Third-Party Providers’ systems. Ikeono is not making any promises, warranties, or guarantees regarding any Third-Party Providers and their systems. You accept all risks associated with any third-party, and its content, links, or related information. You agree not to hold us liable for any conduct or content of third parties or other users.

2. We utilize Third-Party Providers to process payments in connection with the Services (currently, Stripe). If you have any issue with charges, those issues need to be addressed between you and such payment processor. We are not responsible for the payments or any related disputes. 

3. Our Services currently provide additional features for your use of the Lightspeed Point of Sale interface (including that software and services, “Interface”). We do not control the Interface, including any updates, modifications, or availability of that Interface. We are not licensed or otherwise affiliated with the provider of the Interface. Our intent is to remain compatible with future updates of the Interface, but as we are not in control of those updates, we cannot guarantee such compatibility. We are not responsible for any damages or delay caused by our Services integration with the Interface, and you here waive any claim relating to that. If the provider terminates the Interface, you are responsible for cancelling your plan with us and you are still subject to the cancellation terms set forth herein.

1. Warranties and Disclaimers. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. IKEONO MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WHETHER ARISING FROM STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IKEONO SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS REGARDING THE SERVICES, THEIR FEATURES AND FUNCTIONALITY, THEIR SECURITY, AND ANY CONTENT OR OTHER MATERIAL MADE AVAILABLE THEREIN OR THEREBY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE WEBSITE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IKEONO DOES NOT WARRANT THAT THE SERVICES WILL MEET SUBSCRIBER’S EXPECTATIONS, SPECIFICATIONS, OR REQUIREMENTS; THAT THE SERVICES WILL BE FREE OF VIRUSES, MALWARE, OR ERRORS; OR THAT THE SERVICES WOULD NOT BE FOUND TO CONSTITUTE AN “AUTOMATIC TELEPHONE DIALING SYSTEM” OR SIMILAR IF CHALLENGED UNDER THE FEDERAL TELEPHONE CONSUMER PROTECTION ACT OR SIMILAR STATE LAW. IKEONO FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE LOSS OR CORRUPTION OF DATA UPLOADED TO, STORED BY, OR TRANSMITTED BY THE SERVICES.

2. LIMITATION OF LIABILITY.

1. Limitations and Disclaimers.

1. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL IKEONO BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT IKEONO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES;  (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES;  (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;  (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES;  OR (5) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY.  

2. IKEONO ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF IKEONO FOR (A) DEATH OR PERSONAL INJURY CAUSED BY IKEONO’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY IKEONO’S FRAUD OR FRAUDULENT MISREPRESENTATION.   

3. UNDER NO CIRCUMSTANCES WILL IKEONO BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF IKEONO FOR (Y) DEATH OR PERSONAL INJURY CAUSED BY IKEONO’S NEGLIGENCE; OR FOR (Z) ANY INJURY CAUSED BY IKEONO’S FRAUD OR FRAUDULENT MISREPRESENTATION.

4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN IKEONO AND YOU.

3. Indemnification. You agree to, and you hereby defend, indemnify, and hold Ikeono and its affiliates, employees, directors, members, managers, lenders, investment committee members, advisory board members, limited partners and potential sources of financing shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (“Ikeono Parties”) harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Ikeono Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) Subscriber Data or Subscriber Content; (ii) your use of our Services and your activities in connection with the Services, including, without limitation, any message sent by you through your use of the Services or use of SMS/MMS Codes; (iii) your breach or alleged breach of this Agreement; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection therewith; (v) information or material transmitted through your Account, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) any other party’s access and/or use of the Services with your Account; (viii) any failure to obtain consents required by applicable law or regulations prior to sending communications using the Services; (ix) any privacy or spam policy violation alleged to have been committed through any use of your Account; and (x) Ikeono Parties’ storage, use and distribution of the information and data (including mobile numbers) that you provide to us (all of the foregoing, “Claims and Losses”). You agree to cooperate as fully as reasonably required by the Ikeono Parties in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action involving Claims and Losses, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of an Ikeono Party. You acknowledge and agree to be held liable for any and all damages caused to the Ikeono Parties by you as a direct result of a violation of local, state, national or international laws and regulations, including, but not limited to, those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by the Ikeono Parties to you.

4. General Provisions.

1. Successors and Assigns. We may assign this Agreement to an affiliate or in connection with a merger or sale of all or substantially all of our corresponding assets. You may not assign this Agreement. You agree that any waiver or protections afforded to us are also provided to our affiliates, directors, officers, principals, employees, agents, and successors in their roles and relationship with us. You also acknowledge that all waivers and agreements bind not only you, but any successors, heirs, agents, and other representatives.

2. Arbitration Agreement. Arbitration Agreement. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. 

3. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. Any action arising in connection with this Agreement shall be resolved exclusively by the State and Federal courts for the State of Colorado. 

4. Waiver. If one party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this Agreement, that party retains the right to enforce that term or provision at a later time.

5. Severability. If any provision of this Agreement is invalid or unenforceable, whether by the decision of an arbitrator or court, by passage of a new law, or otherwise, the remainder of this Agreement will remain in effort and be construed and enforced consistent with the purpose of this Agreement, to the fullest extent permitted by law. Furthermore, if a provision is deemed invalid or unenforceable, you agree that provision should be enforced to the fullest extent permitted under the law, consistent with its purpose.

6. Survival. All of the provisions of this Agreement which expressly or, by their nature, should extend beyond expiration or termination of this Agreement shall survive and remain in full force and effect and apply to each party’s respective affiliates, successors, and permitted assigns. 

7. Understanding of Agreement. You acknowledge that you understand the terms and conditions of this Agreement. You also acknowledge that you could discuss these provisions with a lawyer at your own expense prior to entering into this Agreement and have either done so or chosen not to do so in entering this Agreement. Regardless of your choice, you intend to be fully bound by this Agreement.

8. Entire Agreement. This Agreement constitutes the entire agreement between us, and supersedes all prior agreements, representations, and understandings, oral or written, between us.