These general terms and conditions (the “Terms and Conditions”) form an integral part of the accompanying Subscription Agreement (the Terms and Conditions and the Subscription Agreement are referred to collectively as the “Subscription Agreement”) and shall govern the relationship between AUTOREMIND USA, Inc. (“AUTOREMIND”) and a subscriber (a “Subscriber”) to the AUTOREMIND™ service (the “AUTOREMIND Service”). The Subscriber agrees that it shall only deliver Messages to Subscriber’s customers (each a “Customer”) with access to the Internet and a mobile telephone which are eligible for the AUTOREMIND Service. Capitalized terms not otherwise defined herein shall have the definitions ascribed thereto in the Subscription Agreement.
Subscriber expressly acknowledges that AUTOREMIND reserves the right to change the pricing for the AUTOREMIND Service at any time and from time to time upon reasonable prior notice.
Subscriber is hereby granted a non-exclusive, non-transferable, limited license to access and use the AUTOREMIND Service.
Subscriber agrees that it will not knowingly use the AUTOREMIND Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of the Subscription Agreement.
Subscriber agrees that it will not knowingly use the AUTOREMIND Service to upload, post, host, or transmit unsolicited bulk e-mail “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
AUTOREMIND reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the AUTOREMIND Service, with or without notice, except that AUTOREMIND shall provide Subscriber with 30-days’ notice of any modification that materially reduces the functionality of the AUTOREMIND Service. Continued use of the AUTOREMIND Service following any modification constitutes Subscriber acceptance of the modification.
AUTOREMIND reserves the right to limit access to the AUTOREMIND Service and to temporarily and without notice suspend the AUTOREMIND Service in order to carry out error recovery, software updates, and other maintenance. In the event of such service suspensions, AUTOREMIND will use commercially reasonable efforts to (i) limit the scope and duration thereof; and (ii) to minimize interruption and inconvenience.
Subscriber shall comply with all applicable state, federal and local laws and regulations, including, without limitation, the federal CAN-SPAM Act and other anti-spam laws, the federal Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), and other applicable laws.Subscriber shall take all appropriate measures to ensure that its Customers have provided written consent to receive Messages (and which consent shall remain in effect and shall not have been revoked), and have been provided with written notice and the ability to opt out of receiving Messages which are not transactional or relationship-related, in accordance with the CAN-SPAM Act, the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), and any similar state and federal laws in connection with such communications. Such written consent (“Consent”) shall be in accordance with all requirements of such laws, including the following requirements: (i) the Consent shall be signed; (ii) the Consent shall not be made a condition for the purchase of Subscriber’s services; (ii) the Consent shall identify the recipient and the phone number to which Messages can be sent, and specifically consent to the use of pre-recorded messages, artificial voices, and auto-dialer technology (as applicable).
Subscriber shall not use the AUTOREMIND Service (i) to send Messages for which the Customers have not given a Consent in writing to receive (and which Consent shall remain in effect and shall not have been revoked) or have opted-out from receiving; (ii) to sell, exchange or distribute the e-mail addresses of any person without such person’s consent; or (iii) to defraud third parties, conduct fraudulent schemes, or other unlawful activities.
Subscriber shall not use the AUTOREMIND Service to transmit or accept private health information (“PHI”), as such term is defined in the Health Insurance Portability and Accountability Act (“HIPAA”), whether by two-way texting or any other means of electronic communication, unless Subscriber has obtained such Customers’ express written consent in a manner consistent with the requirements of HIPAA. Such written consent shall include, at minimum, a written agreement containing the following language (with the terms “Customer” and “Subscriber” adjusted as applicable): “Customer hereby acknowledges and agrees that Subscriber’s system for transmitting electronic communications, including text messages and emails, is not encrypted or secured. Customer hereby expressly consents to Subscriber’s transmission and receipt of Customer’s private health information (as such term is defined in HIPAA) by text message, email, and any other form of electronic communications from Subscriber by way of such unsecured system, and waives any claims for breach of Customer’s privacy.” In addition, Subscriber (i) shall be solely responsible for verifying the identity of Customer prior to using the AUTOREMIND Service to transmit or receive PHI and (ii) in response to any message or inquiry by Customer pertaining to PHI – include an additional disclaimer that informs Customer that the electronic communications system is unsecured and requiring that Customer consent to such transmission. To the extent HIPAA includes any additional requirements in connection with such electronic communications, Subscriber shall be solely responsible for compliance with same.
AUTOREMIND does not review or pre-screen the contents of any Messages uploaded or posted to the AUTOREMIND Service (“Content”) and AUTOREMIND claims no intellectual property rights with respect to the Content.
Subscriber hereby grants to AUTOREMIND a worldwide, royalty free, irrevocable license to use, host, store, reproduce, and modify such Content for the purpose of performing AUTOREMIND’s duties under the Subscription Agreement.
Subscriber is hereby granted a non-transferrable, non-exclusive, revocable license to use the software through which the AUTOREMIND Service is provided (the “AUTOREMIND Software”) for Subscriber’s use only according to the terms hereof, in machine-readable, object code form only. Subscriber may install and access the registered version of the AUTOREMIND Software on one (1) computer workstation only. Subscriber’s consent to and execution of the Subscription Agreement shall include the terms and conditions of this license as it pertains to the AUTOREMIND Software regardless of whether Subscriber executes any other software license pertaining thereto at the time that the AUTOREMIND software is installed.
Subscriber shall not, alone, through any employee, agent, representative, or third party (or allow an employee, agent, representative, or third party): (a) modify the AUTOREMIND Software, including application programming interfaces (API’s), software development kits (SDK’s), HTML, Cascading Style Sheet (“CSS”), any new releases, modifications and enhancements thereto, and any images, video, audio, text, and “applets” incorporated into the software, or any visual design elements provided or made available as part of the AUTOREMIND Software; (b) reverse compile, reverse assemble, reverse engineer or otherwise translate all or any portion of any AUTOREMIND Software; (c) copy, duplicate, replicate, use in whole or in part, or create derivative works from any element of the user interface, user experience, or features, of the AUTOREMIND Software; (d) share, disclose, or permit use of Subscriber’s AUTOREMIND Service user names or passwords or otherwise allow parties that are not contractually obligated to the Subscriber to use any AUTOREMIND Software on a time sharing, service bureau, application service provider (ASP), rental or other basis; (e) make copies of the AUTOREMIND Software, except one (1) copy for backup purposes only; (e) remove, alter or deface (or attempt any of the foregoing) proprietary notices, labels or marks in any AUTOREMIND Software; (f) distribute any copy of any AUTOREMIND Software to any third party, including without limitation selling any Product with embedded AUTOREMIND Software in a secondhand market; (g) use any AUTOREMIND Software other than as authorized by AUTOREMIND; (h) deactivate, modify or impair the functioning of any disabling code in any AUTOREMIND Software; (i) circumvent or disable AUTOREMIND’s copyright protection mechanisms or license management mechanisms in the AUTOREMIND Software; (j) tamper with the AUTOREMIND Software or modify another website so as to falsely imply that it is associated with the AUTOREMIND Service, AUTOREMIND, or any other software or service provided by AUTOREMIND; (k) use the AUTOREMIND Software in violation of any applicable law or to support any illegal activity; (l) use the AUTOREMIND Software to violate the rights of any third party; or (m) attempt any of the foregoing.
The Subscriber hereby acknowledges and agrees that: (i) all intellectual property rights subsisting in or relating to the AUTOREMIND Service, including the AUTOREMIND Software, throughout the world, including but not limited to any and all (a) trademarks, service marks, domain names, twitter domains, usernames, passwords, trade dress, logos, and other brand or source distinctions, look and feel, user interface, user experience, including without limitation related registrations and applications for registration, and any and all goodwill related thereto; (b) copyrights in any and all works of authorship, including without limitation computer programming, source code, and object code, and documentation, user manuals and other written materials relating to such code, copyright registrations, applications therefor, and moral rights; (c) trade secrets, know-how, specifications and drawings; (d) designs, ideas and inventions, including without limitation patents, patent applications and statutory invention registrations or certificates of invention; (e) divisions, continuations, renewals and re-issuances of the foregoing; and (f) other intellectual property rights of any type (collectively, the “AUTOREMIND IP”) are and shall remain at all times the exclusive property of AUTOREMIND; (ii) AUTOREMIND IP may not be exploited, reproduced or used by the Subscriber except as expressly permitted in this Agreement; and (iii) the Subscriber shall not have or acquire, nor seek any right, title or interest in or otherwise become entitled to any AUTOREMIND IP by developing, taking delivery of, making payment for, integrating, distributing or otherwise using AUTOREMIND IP.
AUTOREMIND, in its sole discretion, may, but is not required to, provide Subscriber with support services related to the AUTOREMIND Software (the “Support Services”). Such Support Services shall be subject to a separate agreement and applicable fees.
Customer is responsible for installing Updates (as defined below) of the AUTOREMIND Software on a regular basis upon release of such Updates, updating all non-AUTOREMIND software used in conjunction with the AUTOREMIND Software, and regularly upgrading any hardware and memory on the system in which Subscriber uses the AUTOREMIND Software. The term “Updates” as used herein means modifications to the AUTOREMIND Software which contain corrections of errors and minor functionality enhancements, or which add bug fixes or patches to the AUTOREMIND Software.
From time to time, either party may make available to the other party information of a confidential and/or proprietary nature including, but not limited to, technical and commercial information, in a written form or orally. All confidential and/or proprietary information transmitted by one party to the other shall be treated by the receiving party with the same care as such receiving party would exercise in the handling of its own confidential and/or proprietary information, but not less than reasonable care. Such receiving party shall not disclose such confidential and/or proprietary information to any person, employees, consultants and/or contractors unless it receives the prior written consent of the disclosing party and subject to such terms and conditions as the disclosing party specifies. Upon termination or cancellation of the Subscription Agreement for any reason, all such confidential and/or proprietary information of the disclosing party shall be immediately returned to the disclosing party it and the limitations and undertakings specified in this Section shall remain in effect from the date of termination or expiration of the Subscription Agreement.
Confidential information shall not include information or matter that (a) was already known to the recipient prior to its disclosure by the other party or is independently developed by the recipient, as demonstrated by reasonable and tangible evidence satisfactory to the disclosing party; (b) has appeared in any printed publication or patent or shall become a part of the public knowledge except as a result of breach of the Subscription Agreement by the recipient; (c) has been received by the recipient from another person or entity having no obligation to the disclosing party or its affiliates; or (d) is approved in writing by the disclosing party for release by the recipient.
All promotional, technical, and other documentation provided to Subscriber by AUTOREMIND is proprietary and confidential information of AUTOREMIND and is and shall remain the exclusive property of AUTOREMIND (“AUTOREMIND Proprietary Information”). Subscriber shall not, without AUTOREMIND 's advance written consent, copy, reproduce, disclose to a third party, or use such AUTOREMIND Proprietary Information, except as expressly permitted by AUTOREMIND.
THE AUTOREMIND SERVICE AND SOFTWARE, TOGETHER WITH ANY RELATED SERVICES OR PRODUCTS PROVIDED TO SUBSCRIBER BY AUTOREMIND OR ITS AFFILIATES, ARE PROVIDED AS IS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, QUALITY, ACCURACY, OR THAT THE AUTOREMIND SERVICE OR AUTOREMIND SOFTWARE WILL MEET SUBSCRIBER’S REQUIREMENTS OR IS FREE FROM DEFECTS. USE OF THE AUTOREMIND SERVICE AND AUTOREMIND SOFTWARE IS AT SUBSCRIBER’S SOLE RISK. NEITHER AUTOREMIND, NOR ITS AFFILIATES, RESPECTIVE REPRESENTATIVES, EMPLOYEES, AGENTS, TELECOMMUNICATIONS SERVICE PROVIDERS, OR LICENSORS WARRANT THAT THE AUTOREMIND SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. AUTOREMIND DISCLAIMS ANY AND ALL WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE AUTOREMIND SOFTWARE, AND ANY AND ALL LIABILITY RELATED TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, SERVICE, OR OTHER DATA PROVIDED THROUGH THE AUTOREMIND SERVICE OR AUTOREMIND SOFTWARE. AUTOREMIND DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICE, QUALITY, OR MESSAGE COMPLETION OF ANY TRANSMISSIONS WHICH ARE SUPPORTED BY THIRD-PARTY TELECOMMUNICATIONS SERVICE PROVIDERS.
AUTOREMIND HEREBY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE ACCURACY, VALIDITY, SUBSTANCE, OR RELIABILITY OF ANY INFORMATION, COMMUNICATIONS, OR DATA PROVIDED THROUGH THE AUTOREMIND SERVICE, INCLUDING INFORMATION CONCERNING THE DATE, TIME, AND RELATED INFORMATION TO BE INCLUDED IN ANY REMINDER. AUTOREMIND FURTHER DISCLAIMS ANY DUTY, OBLIGATION, OR RESPONSIBILITY TO RETAIN ANY INFORMATION CONCERNING THE DATE, TIME, AND OTHER DETAILS OF ANY APPOINTMENTS CONTAINED IN REMINDERS SENT TO CUSTOMERS.
UNDER NO CIRCUMSTANCES SHALL EITHER AUTOREMIND OR CUSTOMER BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING), INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF USE, LOSS OF REVENUES OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY ASPECT OF THIS AGREEMENT WHETHER OR NOT AUTOREMIND OR SUBSCRIBER SHALL HAVE BEEN MADE AWARE OF THE POSSIBILITY OF SUCH LOSS.
THE EXTENT OF AUTOREMIND’S LIABILITY HEREUNDER IS LIMITED EXCLUSIVELY TO REPLACEMENT OF SUBSCRIBER’S COPY OF THE AUTOREMIND SOFTWARE WITH ANOTHER COPY OR REFUND OF THE AMOUNTS PAID TO AUTOREMIND FOR USE OF THE AUTOREMIND SERVICE (AS DETERMINED BY AUTOREMIND AT ITS SOLE DISCRETION).
AUTOREMIND further disclaims any and all liability and responsibility related to missed, delayed, or cancelled appointments, and any possible consequences thereof.
Subscriber shall indemnify, defend and hold harmless AUTOREMIND, from any and all suits, claims, actions or proceedings (collectively, “Claims”) brought against AUTOREMIND as a result of Subscriber’s breach of this Subscription Agreement. Such indemnification shall include, but shall not be limited to reimbursement of all fees and costs to defend any such Claims, including attorneys’ fees and all out of pocket costs arising out of or related to any Claims.
Subscriber agrees that AUTOREMIND may identify Subscriber as a user of AUTOREMIND’s AUTOREMIND Service in advertisements, promotional literature, customer lists, and reports to AUTOREMIND’s analysts and shareholders. It is further agreed that Subscriber may identify to its customers that AUTOREMIND is a supplier of the AUTOREMIND Service to Subscriber. The parties otherwise agree that the text of all information concerning the Subscription Agreement or either of the parties, for inclusion in any written or oral announcement, press release, or other public release of information, must be approved in writing by both parties prior to any disclosure, unless otherwise required by law.
This Subscription Agreement shall be valid for a period of three (3) months from the Effective Date (the “Initial Term”), unless otherwise terminated in accordance with the terms herein. Following such Initial Term, the Subscription Agreement shall be automatically renewed in one month additional terms (“Additional Terms”), unless either party notifies the other in writing of an intention not to renew the Subscription Agreement within thirty (30) days of the end of any Additional Term. In case of cancellation Subscriber shall be liable for one additional month of payment for AUTOREMIND.
AUTOREMIND may immediately terminate the Subscription Agreement on thirty (30) days notice in the event that: (i) a receiver, trustee, or liquidator appointed for any of Subscriber’s properties or assets; (ii) Subscriber makes a general assignment for the benefit of its creditors: (iii) Subscriber is adjudicated as bankrupt or insolvent; (iv) a petition for the re-organization or an arrangement with Subscriber’s creditors, or readjustment of its debts, or its dissolution or liquidation is filed under any law or statute; (v) Subscriber ceases its business activities, commences dissolution or liquidation; or (vi) Subscriber becomes affiliated with any firm or company that sells products or services that compete with the AUTOREMIND Service.
This Subscription Agreement may be terminated by AUTOREMIND, immediately in the case of a material breach of any of the covenants, representations, warranties, or other terms and conditions of the Subscription Agreement, or any material default in the obligations hereunder, including non-payment of any fees and costs due and owing for the AUTOREMIND Service.
AUTOREMIND may immediately terminate the Subscription Agreement on written notice in the event of disruptions, outages, and other significant communications or other service problems outside of AUTOREMIND’s control on written notice to Subscriber.
The Subscription Agreement (including these Terms and Conditions) shall constitute the entire agreement between the parties with respect to the subject matter hereof. Such contract of sale shall not be modified or rescinded, except in writing by the parties. The Subscription Agreement supersedes all contemporaneous oral agreements and all prior oral and written quotations, communications, agreements and understandings of the parties with respect to the subject matter hereof. AUTOREMIND reserves the right to amend, modify, and otherwise alter this Subscription Agreement.
The validity, construction, and interpretation of the Subscription Agreement and all purchase orders issued hereunder shall be solely and exclusively governed by and construed in accordance with the laws of the State of New York, USA, excluding any otherwise applicable rules of conflict of laws.
The state and federal courts located in New York City, New York shall have sole and exclusive jurisdiction over the parties and subject matter of the Subscription Agreement. For implementation of the Subscription Agreement and all its consequences, each party waives such of its rights and privileges under any other law or legal system, such as the law of the place of performance, as is necessary to give effect to the term and conditions hereof. Each party hereby expressly consents to personal jurisdiction in New York, and expressly waives any right to object to such personal jurisdiction, or the convenience of such forum. The parties agree to accept service of process by email and any other method of delivery that is reasonably calculated to provide adequate notice of any proceedings, including via social media, LinkedIn, Facebook, WhatsApp, and text message, and waive all objections to such form of service of process.