1.1 This Agreement is a contract between you the Trainer (hereinafter “you” or “Trainer”) and SpendSmart Networks, Inc. d/b/a Off Day Trainer (hereinafter “Off Day Trainer” or “ODT” or “SpendSmart”) and governs your use of Custom Content (content created by you and communicated to your clients, also referred to as subscribers, through the ODT Service), your use of ODT Content (content provided by ODT and communicated to your clients), the Trainer Dashboard and SMS messaging services (collectively the “Service” or “ODT Service”). By completing the registration process and accepting this Agreement, you represent that (i) you have read and understood this Agreement and agree to be bound by its terms and conditions and (ii) you are at least 18 years of age.
1.2. In consideration of your registration, payment and acceptance of this Agreement, Off Day Trainer grants Trainer a non-exclusive, non-transferable, single-user right to use the ODT Service.
1.3. ODT reserves the right to, from time to time amend, supplement or modify the terms of this Agreement. If you do not agree to be bound by or cannot comply with the Agreement as amended, your only remedy is to stop using the Service. You will be deemed to have accepted this Agreement as amended if you continue to use the ODT Service.
1.4. In order to use the ODT Service, you must register and provide certain information to ODT (“Registration Information”). You agree that you will only use the Service in North America. You agree to provide current, complete and accurate Registration Information at the time you register.
2.1. Off Day Trainer will provide SMS messaging services, ODT created content (“ODT Content”) and web tools known as the Trainer’s Dashboard (collectively the “Service” or “ODT Service”).
2.2. Once properly registered and payment is made, you will be permitted to utilize the Service including the delivery of SMS messages containing either Custom Content or ODT Content.
2.3. When you use the ODT Services to transmit an SMS message, the message may flow through the systems of several suppliers before actually being delivered to the message recipient’s mobile device or otherwise. Actual delivery of a message to the message recipient is dependent on the effective functioning of the suppliers’ infrastructure, network coverage and the message recipient’s mobile device. ODT does not accept responsibility for any failure of, or delay in, the delivery of a message to a message recipient provided that ODT has delivered the relevant message to the first supplier in the supplier chain in a form and a manner that allows that supplier to deliver the message. If there is no supplier, ODT’s responsibility for any failure of, or delay in, the delivery of a message to a message recipient is limited in accordance with this agreement.
2.4. Trainer must provide appropriate access devices (mobile devices, computers, etc.), software, operating conditions, cabling, telephone lines, modems and internet connections required for it to access the Trainer’s Dashboard and otherwise receive the benefit of the Service. Trainer shall ensure that no unauthorized use is made of the Trainer’s account and Dashboard.
2.5. Trainer shall not obtain (nor attempt to obtain) access to, nor interfere with any programs or data of Off Day Trainer, or any part of the Off Day Trainer system, Dashboard or network, nor introduce any harmful code into the Off Day Trainer system.
3. USE OF SERVICE
3.1. You may use the ODT Service only in accordance with the terms and conditions of this Agreement and any amendments.
3.2. You understand and agree that you may not make any commercial use of the Service, including ODT Content, not authorized by this Agreement. For example, you may not copy or distribute the Service or the ODT Content in any manner not expressly authorized by the Service.
3.4. You may not attempt (or authorize, encourage or support others’ attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service. You agree to advise Off Day Trainer promptly of any such unauthorized use(s) or attempt(s).
3.5. ODT’s rights to make certain ODT Content available to Trainers may change. In such event, ODT will not deliver to you the license connected to such ODT Content. If ODT ceases making any such rights available, ODT will not refund any portion of your fees.
3.6. You assume total responsibility and risk for your use of this Service.
3.7. ODT does not claim ownership of the content you create and distribute through the Service. However, by posting, uploading, inputting, providing or submitting content you create you are granting ODT permission to use your content in connection with the operation of its business, including, without limitation, the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your content as part of its distribution to your clients; and to publish your name in connection with your content. No compensation will be paid with respect to the use of your material, as provided herein.
3.8. As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Service in any manner that could damage, disable, over burden, or impair the Service, or network, connected to the Service.
3.9. The Service may present links to retailers and/or other third-party websites not owned or operated by ODT. These links are provided only as a convenience to you. Neither ODT nor its business partners are responsible for the availability of these outside sites or their content. You understand and agree that neither ODT nor its business partners are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third-party sites to those sites’ administrators.
3.10. ODT reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice to you. You agree that ODT shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
3.11. By delivering messages, inputting data, or engaging in any other form of communication through the Service, you represent and warrant that you own or otherwise control all applicable rights to the content, materials, messages and the like that you post, upload, transmit or display; that the content, materials, messages and the like are accurate; that use of the content, materials, messages and the like that you supply does not violate third-party rights and will not cause injury to any person or entity; and that you will indemnify SpendSmart, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for all claims resulting from content, messages, materials and the like that you supply.
4. PRICE & DELIVERY
4.1. There are three tiers of service (Personal, Premium and Elite) which correspond with the number of clients in your account. The number of clients allowed in each tier and the price of each tier is set forth in the registration process. The applicable monthly price is based upon the number of clients in your account on the billing date.
4.2. By purchasing the Service you warrant that you are the authorized purchaser and that the billing information provided is accurate. ODT will not issue refunds based upon inaccuracies represented by you.
4.3. You must complete the registration process by providing ODT with current, complete and accurate information as prompted by the registration form. You will utilize an email address and choose a password. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify ODT immediately of any unauthorized use of your account or any other breach of security. ODT will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by ODT or another party due to someone else using your account or password. The Service is not transferable, such that you may not authorize other persons to use your account.
4.4 All monthly fees must be paid via credit card. By providing credit card payment information during the registration process, you hereby provide ODT with authorization to automatically process any and all payments for the Service. Aside from the initial period, payments will be processed monthly on the anniversary of your registration (except for registrations taking place on the 29th, 30th or 31st of a month, which will be processed on the first of each month) and the amount you are charged is based upon the tier of service you are utilizing (regardless of what tier you initially registered for) calculated based upon the number of clients in your account on the billing date. The initial period will be charged at the time of registration and the amount will be based upon the tier of service you initially register for.
4.5 If a client opt-outs, you must manually remove them from your account, otherwise they will still be counted as a client for purposes of billing.
4.6. ODT reserves its right to collect applicable taxes and impose premium surcharges for any additional features added to the Service.
5.1. You may utilize your client data, including cellular phone numbers, with the Service subject to all applicable state and federal laws, including but not limited to the Telephone Consumer Protection Act (TCPA), the Federal Privacy Act, and all other applicable data collection and electronic and phone communication laws. To this end, Trainer warrants and represents that its client data collection practices are in compliance with the aforementioned laws and regulations, and Trainer shall indemnify, defend and hold harmless SpendSmart in and against all claims, demands, suits, complaints, and disputes arising from the collection of client data and the transmittal of text messages or other communications by Trainer.
5.2. If Trainer collects client data, including cellular phone numbers, from the Internet via dedicated web-landing pages, or from print media, Trainer warrants that all of their web forms and print media used to collect and transmit client data through the Service will contain TCPA compliant disclaimers that (1) appear immediately below or beside the form requiring the mobile or home telephone number; (2) conspicuously state that the user is the owner of the mobile or home number that has been provided; (3) clearly state that by inputting the mobile and/or home number the user is providing prior written consent to be contacted via an automatic messaging system; and (4) include an opt in box that the user must check to confirm that the user has read the disclaimer and has provided consent. Trainer further warrants that all its web forms used to provide collect and transmit their client data through the Service will clearly and unambiguously disclose that the client is providing prior express written consent to be contacted regarding training, marketing or loyalty rewards programs.
5.3. Trainer is responsible for tracking program opt-in and opt-out information by their clients. Trainer further warrants that it will appropriately review opt-out requests submitted by clients, in all forms, on a daily basis and will immediately remove any client that opts out from further communications. Trainer will retain opt-in and opt-out records from the time a client opts in until a minimum of twelve (12) months after the subscriber has opted-out of the program.
5.4. Trainer recognizes that he or she is solely responsible for ensuring compliance with the TCPA and related state privacy and telemarketing laws. ODT disclaims any representations or warranties regarding the accuracy of subscriber data supplied to it by Trainer, including cellular phone numbers.
5.5. Trainer may not use the Service to upload, post, transmit, display, perform or otherwise make available to subscribers any messages, content or materials that are illegal, obscene, threatening, defamatory or invasive of privacy; violate (intentionally or unintentionally) a contractual, fiduciary or confidentiality obligation or duty you have to any third party; infringe intellectual property or other third-party rights; harm minors in any way; comprise or contain software viruses or other computer code designed to interfere with the functionality of any computer systems, software or hardware; interfere with or disrupt the Service or any networks or servers connected to or by the Service; constitute unsolicited bulk email, political campaigning, chain letters, pyramid schemes, mass mailings, or any form of spam; or violate (intentionally or unintentionally) any applicable local, state, national or international law. In addition, you may not use a false email address, impersonate any person or entity (including but not limited to other subscribers, members and employees of ODT, its affiliates or licensors), or otherwise mislead client or potential clients as to your identity or to the origin of a message or content. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility.
5.6. YOU MUST HAVE UNAMBIGUOUS WRITTEN CONSENT FROM A SUBSCRIBER BEFORE SENDING A MESSAGE VIA THE SERVICE.
5.7. TRAINER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED “AS IS, AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, ODT MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ELEMENTS, FUNCTIONS AND PRODUCTS IT PROVIDES OR OBTAINS UNDER THIS AGREEMENT. ODT EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ODT’S LIABILITY TO TRAINER FOR ANY LOSS RELATING TO OR ARISING OUT OF ODT’S PERFORMANCE UNDER THIS AGREEMENT SHALL NOT EXCEED IN TOTAL THE AMOUNT THAT ODT HAS CHARGED TRAINER FOR THE AFFECTED SERVICE WHICH WAS NOT PERFORMED OR WAS IMPROPERLY PERFORMED.
ODT SHALL NOT BE LIABLE TO TRAINER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL OR PUNITIVE DAMAGES SUFFERED BY TRAINER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR HARM TO BUSINESS, LOSS OF ANTICIPATED REVENUES, SAVINGS, OR PROFITS, OR OTHER ECONOMIC LOSS SUFFERED BY LICENSEE), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE.
6.1. Off Day Trainer and its licensors retain all right, title and interest, including all copyright and intellectual property rights, in and to, the ODT Content and all copies thereof. All rights not specifically granted in this Agreement including Federal and International Copyrights, are reserved by Off Day Trainer and its licensors. Off Day Trainer is not responsible to you for any ODT Content that you or your clients might find objectionable.
7.1 When clients sign up with a Trainer, the Service collects data about the clients that is electronically transmitted over ODT’s network. By participating in the Services, Trainer’s clients give permission to ODT to collect information about themselves. Trainer must insure that client has given ODT permission to collect said information.
7.2 ODT does not collect any personal information from Trainer’s clients that the client does not volunteer and ODT is the sole owner of all information collected. Trainer may not export any client data from the Trainer Dashboard. ODT does not knowingly collect personal data from children under the age of 13. If ODT learns that we have collected personal data on a child under the age of 13, such data will be deleted from our systems.
7.3 On occasion, ODT may be required to provide its partners and other service providers with data submitted by subscribers in order to support requirements for a specific campaign or message. For example, users might submit their zip code to check their eligibility to purchase a product or service, where the zip code information needs to be queried in an external database to ODT’s network. ODT may also provide log files and other data of user information to third parties for analysis to get a better understanding of general behavior for the sole purpose of improving our service and content offerings.
8.1. You agree to defend, indemnify and hold harmless SpendSmart and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use of the Service (collectively ”Claims”), and to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including attorneys’ fees and court costs) as a result of any Claims.
8.2. UNDER NO CIRCUMSTANCES SHALL OFF DAY TRAINER AND/OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (“OFF DAY TRAINER PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF OFF DAY TRAINER OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.3. ODT’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $50 OR THE AMOUNT PAID BY YOU FOR THE SERVICE AND/OR CONTENT THAT CAUSED SUCH DAMAGE.
8.4. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS AGREEMENT.
9.1. Off Day Trainer and/or its business partners may present Trainer with potential advertisements and promotions he or she may choose to use with the Service. Your participation in any such promotions is subject both to the terms of this Agreement and those associated with the promotion. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party. You agree that neither Off Day Trainer nor its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Service.
9.2. This Agreement shall be governed by the internal laws of the State of California, without giving effect to principles of conflict of laws. You hereby irrevocably and unconditionally consent to the exclusive jurisdiction and venue of the state or federal courts sitting in or serving San Luis Obispo County, California to resolve any disputes arising under this Agreement.
9.3. This Agreement contains the complete Agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous Agreements or understandings, whether oral or written. No Off Day Trainer employee is authorized to make any amendment to this Agreement.
9.4. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
9.6. This Agreement does not authorize you to use SpendSmart’s name or the name “Off Day Trainer” or any of their respective trademarks.
9.7. This Agreement shall not be construed to create a joint venture or partnership between the parties hereto. Neither party shall have the right, power, or authority at any time to act on behalf of, to impose any obligation on, or to represent or legally bind the other.
9.8. You agree that Off Day Trainer may audit your use of the Service for compliance with these terms at any time.