RepCard Terms and Conditions
Last Updated: January 5, 2022
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IT SETS FORTH THE LEGALLY BINDING AGREEMENT FOR YOUR ACCESS AND USE OF THE REPCARD SERVICES, AS DEFINED BELOW. THESE TERMS AND CONDITIONS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
1. Introduction. These Terms and Conditions (the “Terms”) govern the individual, company and/or organizational (collectively, “you”, “your”, “yours”, or “Customer”) use and/or purchase of any RepCard services, including any use of the various features and services available through the RepCard website (https://www.repcard.com), including both online and mobile versions (the “Site” and the “App”, respectively) and any SMS/MMS long codes or short codes that may be provided or made available to you in conjunction with your use of the Site or the App (collectively, the “Services”), as well as all software, technical, and communications platform(s) available on and through the Site or the App (collectively, the “Platform”). The Platform and Services are made available by RepCard (collectively, “RepCard”, “we”, “us”, “our”, or “ours”).
To access and use the Platform and Services, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence or authorized to bind the specific entity on whose behalf you are accessing and using the Platform or obtaining Services (as applicable).
2. The Company. The Platform and Services are operated by RepCard, LLC, an Arizona limited liability company, with an office at 3820 E. Main Street, Suite 2, Mesa, Arizona 85205.
Any new or revised Terms will be effective as to new use and transactions as of the time that we post them to the Site or App, or such later date as may be specified in them or in another notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Platform and Services will continue to apply to such prior use (i.e., any changes and additions are prospective only) unless mutually agreed between you and RepCard.
In the event any notice to you of new, revised Terms or Additional Terms is determined by a court to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the Site’s home page (https://www.repcard.com) and the e-mail you associated with your purchases for notices, all of which you hereby acknowledge are reasonable manners of providing you notice. You can reject any new or revised Terms or Additional Terms by discontinuing all further use of the Platform and Services and permanently deleting the App.
4. Terms Applicable to Premium Access.
A. Premium Access; Premium Access Fees; Texting Charges. You may upgrade from your free RepCard account to a Premium subscription to access enhanced features and services of the Platform (“Premium Access”). Unless an alternative payment arrangement with you has been previously agreed to in writing by us, you must first provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card, in order to upgrade your account to Premium Access. By submitting that information to us or our third-party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. You agree to pay the price applicable (including any sales taxes and surcharges) for Premium Access (the “Premium Access Fee”) as of the time you make such selection and submit the order. If RepCard does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by RepCard or its agents. Please see subparagraph E below for additional payment terms specific to your credit card on file.
In addition to the Premium Access Fee, you agree that you will be charged, and shall be responsible for, $0.03 per automated text message sent to a recipient while using the Platform (the “Texting Charges”) during a Subscription Term (as defined below). You also acknowledge that delivery and deliverability rates for any text/SMS/MMS messages sent using the Platform may vary and are the responsibility of third-party carriers and not RepCard.
B. Premium Access Term & Termination. Your Premium Access subscription will commence as of the date your first Premium Access Fee is received by RepCard. Your subscription (as applicable) will continue in full force for the length of the term you specifically purchased or, if no specific length of time is specified, will be on a month-to-month basis until such time as you cancel Premium Access as provided in this Section 4 (the “Subscription Term”).
RepCard will have the right, upon written notice to you, to terminate these Terms, the Subscription Term, and/or suspend your Premium Access or any other portion of the Platform or Services, if: (a) you fail to pay the RepCard Fees (as defined below) or any other amounts due us when due under these Terms; and/or (b) you materially breach any term or condition of these Terms or any Additional Terms.
To the extent that your credit card on file is declined for any reason, we may (but shall not be obligated) to attempt to contact you using the e-mail address associated with your RepCard account to remind you to update your payment method on file and, if this is unsuccessful, send you a final, reminder e-mail. If such efforts to contact you are unsuccessful, we reserve the right, without notice, to terminate your access to use Premium Access features, although you will still be able to access the features of the then-current free version of the Platform. Upon your or our cancellation or termination of Premium Access for any reason, your access to, and use of, all Premium Access features will terminate, and you will no longer be charged for Premium Access, although any RepCard Fees which are still due as of the date of cancellation or termination shall still be owed.
C. Auto-Renewal; RepCard Fees. Except in cases where you have timely cancelled your Premium Access, you acknowledge that your Premium Access subscription will automatically renew at the end of each Subscription Term continuously and indefinitely without action by you and that you will be charged a new Premium Access Fee at the time of renewal. To the extent the Subscription Term is on a month-to-month basis, your Premium Access subscription will automatically renew one (1) month from your “go live” date and every month thereafter until you cancel as set forth in this Section 4.
By providing your payment method for your Premium Access subscription, you are agreeing to pay a Premium Access Fee that will automatically renew, at the then-current rate, unless you cancel before the end of the current Subscription Term, as well as any applicable Texting Charges, taxes and service fees due (collectively, “RepCard Fees”). The RepCard Fees will be charged to your original payment method automatically at the beginning of your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of your current Subscription Term. The renewal Subscription Term will be the same length as your initial Subscription Term unless otherwise disclosed to you at the time of sale. The Premium Access Fee charged to your payment method may vary from Subscription Term to Subscription Term due to changes in your subscription plan or applicable taxes, and you authorize RepCard to charge your payment method for these amounts.
RepCard reserves the right to change the pricing for Premium Access at any time. In the event of a price change, RepCard will post the new pricing on the Platform and attempt to notify you in advance by sending an e-mail to the address you have registered for your RepCard account. You agree that we may change the pricing we charge you for Premium Access or any other Services offered by providing you with notice through an electronic communication from us, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You consent to our ability to change our pricing and the details of our Premium Access subscription through an electronic communication to you. If you do not wish to accept a price or Premium Access subscription change made by us, you may cancel Premium Access as described in this Section 4, otherwise you will be deemed to have consented to the price/subscription changes and further authorize RepCard to charge the new Premium Access Fee to your payment method.
D. Termination/Cancellation of Premium Access. You have the right and ability to cancel or otherwise downgrade your Premium Access subscription at any time upon using the functionality available in the “Settings” section of the App or by visiting your account profile area on the Site. If, for whatever reason, you are unable to login to your RepCard account, you may contact RepCard directly by sending an e-mail to: email@example.com. Cancellation of your Premium Access subscription any time after purchase will result in forfeiture of the remainder of your Premium Access Fee.
E. Methods of Payment; Credit Card Terms; Taxes. RepCard or our third-party credit card/payment processor will automatically bill your credit card or other form of payment submitted as part of the order for Premium Access. When we process your credit card, some credit card companies may place a temporary hold on your account for your first payment. Please contact your credit card company if you have questions. Please note that we do not provide price protection or refunds in the event of a subsequent price drop or promotional offering.
All payments for RepCard Fees must be made through a credit or debit card or other payment mechanism we accept at the time you sign up for Premium Access. We currently do not accept cash, personal or business checks or any other payment form. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms to determine your rights and liabilities as a cardholder.
You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT REPCARD, ARE SOLELY RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD-PARTY. You agree to pay all RepCard Fees and charges incurred in connection with Premium Access (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify RepCard of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes.
Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes.
F. Refund Policy. All purchase transactions for Premium Access or other Services made through the Platform are subject to RepCard’s refund policy in effect at the time of such purchase. Currently, RepCard’s refund policy is not to offer any refunds for any Premium Access subscriptions purchased through the Platform.
G. Mispriced Services. RepCard does its best to describe Premium Access and other Services offered on the Platform as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing shown on the Platform are always complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of Premium Access, or any other item, product, or Service, RepCard shall have the right to refuse or cancel any such orders in its sole and absolute discretion. If we charged your payment method prior to such cancellation, we will issue a credit to your account in the amount of the charge.
5. Foreign Use. We operate the software underlying and required for your use of the Services and Platform from the United States of America, and it is possible that some downloads from the Services and Platform could be subject to government export controls or other restrictions. If you download anything from or use the Services or Platform, you represent that you are not subject to such controls or restrictions. We make no representation that anything is appropriate, permissible, or available for use outside the United States, and using the Services or Platform from territories in which such use, or the information available from such use, is illegal, restricted, or not permitted, is expressly prohibited. If you choose to access or use the Services and Platform from or in locations outside of the United States, you do so on your own initiative and are responsible for:
a. ensuring that what you are doing in that country is legal;
b. the consequences and compliance by you with all applicable laws, regulations, byelaws, codes of practice, licenses, registrations, permits and authorizations (including any laws that relate to businesses providing services); and
c. all access to the Platform or Services through your mobile device and for bringing these Terms to the attention of all such persons.
6. Wireless and/or Internet Networks Required. Use of the Platform and Services does not include the provision of a mobile device or other necessary equipment to access it. To use the Platform or Services, you will need Internet connectivity and appropriate telecommunication links. The RepCard shall not have any responsibility or liability for any telephone or other costs you may incur.
The Services and Platform may offer certain features and services that are available to you via your wireless device. These features and services may include the ability to access the Services and upload content to the Platform, receive messages, and download applications to your wireless device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
You are responsible for obtaining and maintaining all of your devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Services and Platform and you will be responsible for all charges related to them.
7. Prohibited Use. In accessing and using the Platform or Services, you agree that you will not, directly or indirectly, or in any way:
a. reverse engineer, decompile, disassemble, reverse assemble, or modify any Platform source or object code or any software or other products, Services, or processes accessible through any portion of the Platform or Services;
b. engage in any activity that interferes with a user’s access to the Platform or Services or the proper operation of the Platform or Services, or otherwise causes harm to the Platform, RepCard, or other users of the Platform or Services;
c. interfere with or circumvent any security feature of the Platform or Services or any feature that restricts or enforces limitations on use of or access to the Platform or Services;
d. attempt to gain unauthorized access to the Platform or Services, other computer systems or networks connected to the Platform, through password mining or any other means;
e. make the Platform or Services available to anyone other than your employees and Authorized Users (as defined below);
f. sell, resell, sublicense, share, rent or lease the Platform or Services to any third party;
g. knowingly use the Platform or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
h. use the Platform or Services to store, deliver or transmit malicious code such as viruses, unsolicited emails, trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;
i. interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein;
j. access the Platform for purposes of monitoring its availability, performance, reliability or functionality, or for any benchmarking or competitive purposes;
k. engage in activity that violates our Anti-Spam Policy;
l. engage in any activity through or in connection with the Platform or Services that seeks to attempt to or do harm to any individual or entity or that is unlawful, offensive, obscene, indecent, lewd, lascivious, vulgar, profane, violent, threatening, harassing, or abusive, hateful, racist, sexist, discriminatory, derogatory, defamatory, or that violate the rights of any third party, or are otherwise objectionable to RepCard;
m. submit any information to the Platform or Services that is inaccurate, materially false or misleading, or out-of-date;
n. engage in any activity that is in breach of any law, statute, regulation or by-law of any applicable jurisdiction; or
o. otherwise violate these Terms or any Additional Terms.
You shall be responsible for violation of the above-described restrictions on use or any breach of these Terms by your employees or any other users that have been authorized by you (each, an “Authorized User”).
8. Customer Responsibility for Consents and Legal Compliance for Calls and Messaging. As further specified in below, the Platform may NOT be used for sending any unsolicited messages except with our prior written approval (which RepCard reserves the right to withhold in its sole and absolute discretion) and may NOT be used for sending any messages that violate applicable law, these Terms, or any Additional Terms.
Our Anti-Spam Policy applies to your use of the Services and Platform and is incorporated into these Terms by this reference. The general information outlined in these Terms is not an exhaustive list of or source for applicable laws, guidelines, and compliance responsibilities pertaining to your use of the Platform. The information herein is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with, and abide by, any federal, state, and local legal requirements pertaining to your messaging prior to using the Services and Platform. This section is not intended to be and does not constitute legal advice. You should consult a lawyer for legal advice on your texting, e-mail, and other messaging practices.
Before downloading, accessing, and using the Services and Platform, you agree to review and abide by all federal, state, and local laws, statutes, and regulations, as well as applicable text/SMS/MMS messaging/telecommunications industry guidelines, and check for any revisions or updates thereto, including, but not limited to, the following laws and guidelines, as may be amended:
· Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., and related regulations, 47 C.F.R. Part 64.1200, et seq;
· Telemarketing Sales Rule (“TSR”), 16 C.F.R. Part 310, et seq.;
· Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act of 2003;
· Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices Guidelines for Messaging;
· Cellular Telecommunications Industry Association (“CTIA”) Best Practices and Guidelines for Location-Based Services;
· CTIA Messaging Principles and Best Practices;
· CTIA SMS Interoperability Guidelines; and
· CTIA Short Code Monitoring Program Handbook.
For further information, please visit the following websites, including:
§ Federal Communications Commission, http://www.fcc.gov
§ Federal Trade Commission, http://www.ftc.gov
§ Do-Not-Call Registry Info, http://www.donotcall.gov
§ MMA, http://www.mmaglobal.com
§ CTIA, http://www.ctia.org
By accessing and using the Services and Platform, you represent and warrant that the owners of the phone numbers to which you transmit outbound text messages through RepCard have expressly consented to, or otherwise opted-in to, the receipt of such messages, in accordance with the TCPA, TSR, and other applicable federal, state, local laws, statutes and regulations and industry guidelines. You acknowledge and agree that you are solely responsible for all acts or omissions or violations of law that may occur in connection with your use of RepCard’s Platform or Services.
The Services may allow you the ability, at our discretion, to upload previously opted in mobile numbers to keywords on the Platform. You acknowledge and agree that you shall have sole responsibility for obtaining any consents for uploaded mobile numbers and for complying with any terms and/or conditions that may govern these previously opted in mobile numbers, even if you should use any mobile alert terms and conditions we make available through the Platform.
You agree that you will not access or otherwise use any third-party list of phone numbers or otherwise engage in unsolicited messaging in connection with your use of the Services or the Platform. Additionally, you agree not to send messages to your users beyond the frequency represented in any disclosures or terms.
You agree that, in connection with your use of the Services, you will import, add, edit, access, and otherwise use only contact information with proof (which you shall retain in accordance with the TCPA, and other applicable federal, state, local laws, statutes and regulations and industry guidelines) of each user’s consent to receive communications from you. We reserve the right, at our sole and absolute discretion, to suspend or deny access to import functions, to impose a stringent qualification process, to require proof of consent or opt-in method, or to require documentation of your or your organization’s legal identity.
You agree to represent truthfully your identity, the identity of your organization, your product or service, availability of goods or services, pricing, benefits, and any other offering aspects in your messaging.
You agree to comply with all local, state, and federal laws and regulations as well as general industry best practices governing your content or promotion type.
RepCard maintains a zero-tolerance policy toward spam. Although we do not assume any duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third-party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Services and Platform.
All mobile marketing messages must conform to the latest available best-practice guidelines drafted and published by the MMA (currently available at http://www.mmaglobal.com/policies/consumer-best-practices ) and the CTIA (currently available at https://api.ctia.org/wp-content/uploads/2019/07/190719-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf), which you agree to review and strictly abide by before using the Services and Platform. You agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your company DNC or suppression list. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or “STOP” request.
You hereby acknowledge and confirm that RepCard merely provides a platform for facilitating the sending of your text messages, and that you shall have sole responsibility and liability for your messages and communications. You are solely responsible for the content of your messaging. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages.
You further agree to defend, indemnify, and hold harmless RepCard from and against any and all claims or damages which may result from your use of the Platform and Services, including, but not limited to, claims, damages, or lawsuits threatened or filed by third parties as well as inquiries and investigations by local, state and federal regulators (see Section 34 for a complete list of your indemnification obligations to RepCard). We reserve the right to hold, suspend or terminate your account or access to the Platform or Services for any alleged or actual violation of this Section 8 and/or any unusual or suspicious activity related to your account.
9. Unauthorized Reproduction. You agree not to reproduce, duplicate, copy, or re-sell the Platform or the Services or any part of the Platform or the Services unless otherwise permitted by these Terms .
10. Unauthorized Interference. You agree not to access without authority, interfere with, damage or disrupt:
a. any part of the Platform or the Services;
b. any equipment or network on which the Platform or the Services is stored;
c. any software used in the provision of the Platform or the Services; or
d. any equipment or network or software owned or used by any third party.
11. Sub-Licensable License. You hereby grant to the RepCard an irrevocable, royalty-free, worldwide, assignable, sub-licensable license to use any material which you submit to the RepCard through the Platform or the Services for the purpose of use on the Services or for general marketing (by any means and in any media, including, but not limited to, on the Site) of our services. You agree that you waive your rights to be identified as the author, and we may modify your submission.
12. Unjustified Reliance. Commentary and other material available on the Platform or Services are not intended to amount to advice on which reliance should be placed. Subject to paragraphs 30, 31, 32, and 33 below, the RepCard disclaims all liability and responsibility arising from any reliance placed on such materials by any user of the Platform or Services, or by anyone who may be informed of any of its contents.
13. Responsibility for Use of Platform and Services. You assume sole responsibility for results obtained from the use of the Platform and Services and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to us by you in connection with the Platform or Services, or any actions taken by us at your direction.
14. Use of Platform and Services. You agree to comply at all times with any instructions for use of the Platform or Services, which we may make from time to time.
15. Customer Credentials; Confidential Information. If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any third party. The RepCard has the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in the RepCard’s discretion you have failed to comply with any of the provisions of these Terms .
16. Access to Platform and Services. We make no warranty that your access to the Platform and Services will be uninterrupted, timely, or error-free. Due to the nature of the Internet, this cannot be guaranteed. In addition, we may occasionally need to carry out repairs, maintenance, or introduce new facilities and functions.
17. Suspension of Access. Access to the Platform and Services may be suspended or withdrawn to or from you personally or any or all Authorized Users temporarily or permanently at any time and without notice. We may also impose restrictions on the length and manner of usage of any part of the Platform or Services for any reason. If we impose restrictions on you personally, you must not attempt to use the Platform or Services under any other name or user or on any other mobile device.
18. Compatibility with Device. We do not warrant that the Platform or Services will be compatible with all hardware and software which you may use. We shall not be liable for damage to, or viruses or other code that may affect, any equipment (including but not limited to your device), software, data or other property as a result of your download, installation, access to, or use of the Platform or Services or your obtaining any material from, or as a result of using, the Platform or Services. We shall also not be liable for the actions of third parties.
19. Changes to the Platform and Services. We may change or update the Platform or Services, and anything described in it, without notice to you. If the need arises, we may suspend access to the Services and Platform, or close either or both indefinitely.
20. No Express Warranties; Disclaimer of Representations and Warranties. YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES IS AT YOUR SOLE RISK. THE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, RepCard and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “RepCard Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, including as to the following: (a) the Platform; (b) the App, Site, or Services; (c) whether the Platform or Services, or your use thereof, constitute an “automatic telephone dialing system” (“ATDS”), “advertising,” “telemarketing,” or “solicitations,” as such terms are used and defined in the TCPA, TSR, or other applicable related regulations, agency guidance, or law; (d) the functions, features, terms, or any other elements on, or made accessible through, the Platform or Services (including but not limited to SMS/MMS codes); (e) any products, services (including, without limitation, the Services), or instructions offered or referenced at or linked through the Platform or Services; (f) security associated with the transmission of your materials and data transmitted to RepCard via the Platform or using SMS/MMS codes; (g) whether the Platform or Services, or the servers that make the Platform or Services available, are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your device); (h) whether the information (including any instructions) on the Platform or Services is accurate, complete, correct, adequate, useful, timely, or reliable; (i) whether any defects to or errors with the Platform or Services will be repaired or corrected; (j) whether your access to the Platform and Services (including use of SMS/MMS codes) will be uninterrupted; (k) whether the Platform or Services will be available at any particular time or location; (l) whether certain SMS/MMS codes will be assigned to you, either exclusively or on a shared basis; (j) whether your use of the Platform or Services (including SMS/MMS codes) is lawful in any particular jurisdiction; and (k) whether any text/SMS/MMS messages sent using the Platform or Services, regardless of the type of SMS/MMS codes used, will be actually delivered to and received by the intended recipients on their mobile devices.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A REPCARD PARTY, THE REPCARD PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO THE EXTENT SUCH JURISDICTIONS’ LAWS ARE APPLICABLE.
21. Independence from Other Platforms. You acknowledge that the App and Site are independent of any platform on which it is located. Neither the Platform nor the Services are associated, affiliated, sponsored, endorsed or in any way linked to any platform operator, including, without limitation, Apple, Google, Android or RIM Blackberry (each being an “Operator”).
22. Bound by Terms of Operator. Your download, installation, access to, or use of the Services and Platform are also bound by the terms and conditions of the Operator.
23. Operator Not Bound by Terms . You acknowledge that these Terms are concluded between you and the RepCard only, and not with an Operator, and the RepCard, not those Operators, is solely responsible for the Services and the content thereof to the extent specified in these Terms .
24. Limited License. Subject to your strict compliance with these Terms and any Additional Terms, RepCard will make the Platform and Services (including any designated keywords or SMS/MMS codes) available to you on a non-exclusive basis for your use in accordance with the terms of these Terms or any Additional Terms. Subject to these Terms and any Additional Terms, RepCard grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view and use the Platform or Services (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device that you own or control for your internal, business use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any of the Platform, Services, keywords, or SMS/MMS codes, and (ii) may be immediately changed, revised, suspended or terminated for any reason, in RepCard’s sole discretion, and without advance notice or liability to you. In some instances, we may permit you to have greater access to and use of Platform and Services subject to certain Additional Terms. You acknowledge RepCard may use a third-party hosting providers to host any portion(s) of the Platform and/or Services.
25. Maintenance of the Platform and Services. The RepCard is solely responsible for providing any maintenance and support services with respect to the Platform and Services as required under applicable law. You acknowledge that an Operator has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform and Services.
26. Refund. In the event of any failure of the Platform and Services to conform to any applicable warranty, you may notify the relevant Operator and that Operator will refund the purchase price for the Platform and Services (if any purchase price has been paid) to you; and, to the maximum extent permitted by applicable law, that Operator will have no other warranty obligation whatsoever with respect to the Platform or Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.
27. Claims Related to Use of Services and Platform. You acknowledge that the RepCard, not the relevant Operator, is responsible for addressing any claims of you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) any claim that the Services or Platform fail to conform to any applicable legal or regulatory requirement; and (ii) claims arising under consumer protection or similar legislation.
28. Third-Party Claims Regarding Intellectual Property. You acknowledge that, in the event of any third party claim that the Services or your possession and use of the Services infringes that third party’s intellectual property rights, the RepCard, not the relevant Operator, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim; provided such infringement was caused by us. If such claim was caused by you, you agree to defend, indemnify, and hold RepCard harmless from such claim, as set forth in Paragraph 33 below.
30. Third-Party Beneficiary. You acknowledge and agree that the relevant Operator, and that Operator’s subsidiaries, are third-party beneficiaries of these Terms , and that, upon your acceptance of these Terms , that Operator will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
31. Release of Claims. You hereby release RepCard, LLC, its officers, directors, agents, and employees from all claims, demands, and damages (actual and consequential) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way, connected with any disputes arising between you and any suppliers, or between you and other users of the Platform or Services.
32. LIMITATION OF LIABILITY. YOU ASSUME ALL RESPONSIBILITY AND RISK WITH RESPECT TO YOUR USE OF THE APP. THE APP IS AVAILABLE “AS IS,” AND “AS AVAILABLE”. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE APP, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT USE OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS WILL BE DETECTED OR CORRECTED. WE DO NOT ASSUME ANY LIABILITY OR RESPONSIBILITY FOR ANY COMPUTER VIRUSES, BUGS, MALICIOUS CODE OR OTHER HARMFUL COMPONENTS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS, OR THE ACCURACY, COMPLETENESS, RELIABILITY OR USEFULNESS OF THE INFORMATION DISCLOSED OR ACCESSED THROUGH THE APP. WE HAVE NO DUTY TO UPDATE OR MODIFY THE APP AND WE ARE NOT LIABLE FOR OUR FAILURE TO DO SO. IN NO EVENT, UNDER NO LEGAL OR EQUITABLE THEORY (WHETHER TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE), SHALL WE OR ANY OF OUR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AGENTS OR AFFILIATES, BE LIABLE HEREUNDER OR OTHERWISE FOR ANY LOSS OR DAMAGE OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM THE APP, THE USE OF THE APP, OR OUR AGREEMENT WITH YOU CONCERNING THE APP, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY, DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, LOST ANTICIPATED PROFITS, LOSS OF GOODWILL, LOSS OF DATA, BUSINESS INTERRUPTION, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF WE HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IF WE ARE HELD LIABLE TO YOU IN A COURT OF COMPETENT JURISDICTION FOR ANY REASON, IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES IN EXCESS OF ONE HUNDRED FIFTY DOLLARS ($150.00). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF ANY LIMITATION ON REMEDIES, DAMAGES OR LIABILITY IS PROHIBITED OR RESTRICTED BY LAW, WE SHALL REMAIN ENTITLED TO THE MAXIMUM DISCLAIMERS AND LIMITATIONS AVAILABLE UNDER THIS AGREEMENT, AT LAW AND/OR IN EQUITY.
32.1 Limitation on Time to File Claims. 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 (BY DELIVERY OF WRITTEN NOTICE TO THE OTHER) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES, OR IT WILL BE FOREVER BARRED. You and RepCard expressly waive any contrary statute of limitations or time bars, both legal and equitable, to any disputes.
32.2 Equitable Relief. Notwithstanding anything in these Terms or any Additional Terms to the contrary, nothing in these Terms shall apply to any legal action taken by RepCard to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the App, the Site, the Services, the Platform, and/or RepCard’s intellectual property rights (including those which RepCard may claim that may be in dispute), RepCard’s operations, its products, or other services.
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES OR PLATFORM, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE OPERATION, DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY REPCARD OR A LICENSOR OF REPCARD.
32.3 Waiver of Class Action. YOU AND REPCARD MUTUALLY AGREE THAT EACH MAY BRING DISPUTES OR CLAIMS AGAINST THE OTHER ONLY IN YOUR (OR ITS) INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes or claims will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any dispute to be arbitrated on a class action basis or on any basis involving disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. If, for any reason, any court with competent jurisdiction holds that this restriction is void or unenforceable, then our agreement in Section 49 to arbitrate will not apply and any claim or dispute must be brought exclusively in court. Notwithstanding any other provision of this Section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained in this Section shall be decided only by a court of competent jurisdiction and not by the arbitrator. You and RepCard agree that no arbitrator shall have the power to vary these class action waiver provisions.
33. Representations Regarding Use of Platform and Services. You represent and warrant that (a) your use of the Platform and Services will be in strict accordance with these Terms and with all applicable laws and regulations, including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and regarding the transmission of technical data exported from the United States or the country in which you reside, and (b) your use of the Services and Platform will not infringe or misappropriate the intellectual property rights of any third party.
34. Defense and Indemnity. By accessing and using the Platform and Services, you hereby agree to defend, indemnify, and hold RepCard 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 RepCard Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) the Platform or Services, or any use thereof, including but not limited to any alleged or actual violation of the TCPA or other applicable laws, statutes, or regulations; (ii) your use of the Platform or Services, and your activities in connection with the Platform or Services, including, without limitation, any message sent by you through your use of the Platform or use of SMS/MMS codes; (iii) your breach or alleged breach of these Terms or any Additional Terms; (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 Platform, Services, or your activities in connection therewith; (v) information or material transmitted through your device, 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 Platform or Services with your account; (viii) any failure to obtain consents required by applicable law or regulations prior to sending communications using the Platform or Services; (ix) any privacy or spam policy violation alleged to have been committed through any use of your account; and (x) RepCard 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 required by the RepCard 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 authorized officer of a RepCard Party. You acknowledge and agree to be held liable for any and all damages caused to the RepCard 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 RepCard Parties to you.
35. Intellectual Property. The Platform (including past, present and future versions of the App and Site), the Services, and any SMS/MMS codes or keywords are owned or controlled by RepCard and our licensors and certain other third parties. All right, title, and interest in and to the content available via the Platform is the property of RepCard or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, or other intellectual property and unfair competition rights and laws to the fullest extent possible. RepCard owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the content on the Platform and in any of the Services.
35.1 Feedback and Reviews; Non-Confidentiality; License. RepCard may now or in the future offer users of the Platform (and/or customers of users) the opportunity to post, upload, display, publish, distribute, transmit or otherwise make available on or submit through the Platform, messages, text, files, comments, responses, information, content, results, reviews, user referrals, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “Feedback”).
You (which, for purposes of this Section, shall include any customer of user utilizing any function or feature of the Platform) agree that: (a) Feedback will be treated as non-confidential (regardless of whether you mark them “confidential,” “proprietary,” or the like) and will not be returned; and (b) RepCard does not assume any obligation of any kind to you or any third-party with respect to your Feedback. Upon RepCard’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms.
Except as otherwise described in any applicable Additional Terms which specifically govern the submission of your Feedback, you hereby grant to RepCard, and you agree to grant to RepCard, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Feedback (and any derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (i) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such Feedback and combine same with other materials, and (ii) use any ideas, concepts, know-how, or techniques contained in any Feedback for any purposes whatsoever, including developing, producing, and marketing products and/or services.
In order to further effect the rights and license that you grant to RepCard to your Feedback, you also hereby grant to RepCard, and agree to grant to RepCard, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Feedback, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Feedback, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section.
If you are a user utilizing any invitation (for Feedback or otherwise) feature of the Platform, you and not RepCard shall be deemed to be the “sender” of each invitation sent. It is your responsibility alone to make sure that any invitation that you send (or that we may send on your behalf) using our Services meet all applicable legal and regulatory requirements and comply in all respects with these Terms and our Anti-Spam Policy. Specifically, you represent and warrant to RepCard that the content of each invitation will be legal, and that you will have all of the necessary rights, permissions, and consents required for your invitation to be in compliance with these Terms, our Anti-Spam Policy, and any other applicable Federal, state, or local laws, regulations, and your industry’s guidance.
36. Limitation of Copying. You may print off one copy only, and may download extracts, of any page(s) from the Site or App strictly for your personal reference and you may draw the attention of others within your organization to material available through the Services.
37. Modification Prohibited. Notwithstanding the rights afforded under Section 36, you will not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
38. Use for Commercial Purpose Prohibited. You must not use any part of the content or material on the App or Site for any commercial purposes without first obtaining a license to do so from us or our licensors.
39. Unauthorized Reproduction. If you print off, copy or download any part of the App or Site in breach of these Terms, your right to use the Platform and Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.
41. Third-Party Websites. We have no control over and accept no responsibility for the content or availability of any third-party website, mobile application, licensor, licensee, or any other third-party to which a link appears through the Services or Platform (“Linked Services”). Such links to Linked Services are provided “as is” and “as-available” for your convenience only, with no warranty, express or implied, for the information provided within them.
You agree that RepCard will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within any Linked Services. RepCard disclaims all liability in connection therewith. The Services may contain features designed to interoperate with Linked Services. To use such features, you may be required to obtain access to such Linked Services from their providers. If the provider of any such Linked Services ceases to make the Linked Services available for interoperation with the Services and Platform on reasonable terms, we may cease providing such features without entitling you to any refund, credit or other compensation.
42. Prohibited Uses. You must not without our permission:
a. use or copy any material from the Services or Platform, including, but not limited to, onto other websites or in other mobile applications; or
b. frame any of the Services or the Platform onto your own or another person’s website or mobile application.
43. Severability. If any of these terms should be determined to be illegal, invalid or otherwise unenforceable by reason of the laws of any state or country in which these terms are intended to be effective, then to the extent and within the jurisdiction which that term is illegal, invalid or unenforceable, it shall be severed and deleted, and the remaining Terms shall survive, remain in full force and effect and continue to be binding and enforceable.
44. Non-assignment. You shall not assign or transfer or purport to assign or transfer the contract between you and us to any other person. We may assign our rights under these Terms without condition. These Terms will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
45. Exclusion. Except as expressly stated in these Terms , all warranties and conditions, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
47. Force Majeure. Neither party will be responsible for any failure or delay in its performance under these Terms (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
48. Governing Law. Except to the extent applicable law, if any, provides otherwise, these Terms and any access to or use of the Platform or Services will be governed by the laws of the State of Arizona, excluding its conflict of law provisions. Any dispute or claim arising out of or in connection with these Terms will be subject to the exclusive jurisdiction of the federal and state courts sitting in the State of Arizona in Maricopa County. All dealings, correspondence and contacts between us shall be made or conducted in the English language.
49. Dispute Resolution. Any dispute relating to or arising from these Terms , which cannot be resolved by negotiation between the parties within thirty (30) days of either party giving written notice to the other party that a dispute has arisen, shall be submitted to mediation pursuant to the Mediation Rules of the American Arbitration Association (“AAA”). The parties shall split the cost of such mediation equally. If the parties are unable to resolve this dispute through mediation, the dispute shall be submitted by any party for final resolution by arbitration with a single arbitrator pursuant to the Commercial Rules of Arbitration of the American Arbitration Association. The parties shall split the cost of such arbitration equally. The parties shall bear their own attorneys’ fees of such arbitration, and the arbitrator shall have no authority to award either party its attorneys’ fees.
50. Contact Information.
3820 East Main St.
Mesa, Arizona 85205