The Effective Date of these Terms of Use is July 20, 2020.
The CartText mobile application and platform and the CartText.com website (collectively identified herein as the “App”) are owned and operated by Cart Group LLC doing business as CartText (“CartText” or “we”). Through the App, CartText provides certain customer management and marketing software and services that assist registered users in engaging with customers and completing potential sales through a registered user’s online store or website, such as a Shopify store or similar authorized service provider store (collectively, the “Services”). These Services include, without limitation, automated retrieval of selected customer information from a registered user’s store and sending marketing communications to selected customers by SMS and MMS messages.
These terms and conditions of use (the “Terms of Use”) constitute a binding legal agreement between CartText and you (“User” or “you”), and together with any ordering document for a subscription to the Services, include the terms which govern your use of the App and Services (the “Agreement”). We also provide a Privacy Policy that describes the personal information we collect and how we use it. CartText reserves the right to modify the terms of these Terms of Use at any time in its sole discretion, so please review these terms regularly. If CartText makes any material changes to these Terms of Use, CartText will notify you by means of a notice on the App and/or via an email communication. Your continued use of the App and Services will signify your acceptance of the changes to the terms of these Terms of Use.
THIS AGREEMENT CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND CARTTEXT AND GOVERNS YOUR USE OF THE APP AND THE SERVICES. PLEASE READ THE AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THE AGREEMENT, THEN YOU MUST NOT REGISTER FOR, INSTALL, OR OTHERWISE USE THE APP AND SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR ICON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDERING DOCUMENT THAT REFERENCES THESE TERMS OF USE (“ORDER”), YOU AGREE TO THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. This Agreement requires the use of binding arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
1. USER REGISTRATION
In order to use the App and Services, you will be required to register for an account on the App. Use of the App is limited to users eighteen (18) years of age and older. In connection with your account registration, you will be required to provide certain information, including without limitation, your full name, business entity name, business information, mailing address, e-mail address, and phone number, and information relating to your online store, app or website, such as your Shopify store or other authorized provider store and website. You will also be required to provide certain login information, such as a username and password. You are responsible for keeping your username and password and other information provided in connection with your registration confidential. CartText will not be liable for any loss or damage arising from your failure to keep your account information protected. You will: (i) notify CartText immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) not impersonate another user or provide false identity information to gain access to or use the App. CartText may implement password controls which require you to change your password every so often, and you agree to change your password when notified to do so.
By signing up on the App, you represent and warrant that your information is true and accurate to the best of your knowledge. You agree not to submit false information when signing up on the App or using the Services. By registering with the App, you consent to receive periodic communication from CartText regarding the status of your account or other information associated with your account or the Services provided through the App.
2. SERVICES AND SUBSCRIPTION TERMS
a. Subscription Licenses and Terms. To access and use certain Services offered through the App, you will need to execute an Order for a subscription license, which will identify the applicable Services, the subscription term and the subscription fees. In certain situations, this Order may be executed directly through the App. Each Order is hereby incorporated into this Agreement by this reference and is subject to the terms and conditions of this Agreement. Unless indicated otherwise in your Order, any subscription license to the Services, including the subscription term and subscription fees, will continue and renew automatically as long as the subscription license is in place and all subscription fees are paid or until the subscription license is terminated by CartText or you. Your access to and use of the Services is conditioned upon your payment of the subscription fees for the subscription license set forth in your Order, including the payment terms and subscription terms set forth therein. By executing and Order for a subscription license to the Services, you authorize CartText to charge you the subscription fee identified in the Order during the subscription term and any renewal terms.
b. Payments. You agree to pay the applicable subscription fee for each Service you have requested through an Order. Upon completing an Order and in advance of each subsequent subscription term for the Services you have purchased, CartText will process your subscription fee based on the payment information you have provided. You hereby authorize CartText to charge your credit card or other payment method for amounts due under the terms of your subscription license.
3. SCOPE OF SUBSCRIPTION LICENSE
a. Grant. By ordering, registering with CartText for, installing, and/or using the App and Services, you are acquiring, and CartText grants you, a non-exclusive, non-sublicensable, non-transferable, revocable (in the event you fail to comply with this Agreement or pay any applicable fees to CartText), and limited license to use the App and Services only for internal business purposes and in accordance with any documentation made available by CartText and the terms and conditions of this Agreement. Your license to use the App and Services shall be limited to the subscription identified in your Order. You may only use the App and Services for internal business purposes to access and use the Services in accordance with this Agreement.
b. Restrictions. You may not use the App and Services for any purpose, or in any manner not specifically authorized by this Agreement. You shall not, or permit any other person or entity to, (i) disassemble, reverse engineer, decrypt, decompile, create derivative works from, or translate the App and Services, or any portion thereof, or recreate or attempt to recreate the App or Services, in whole or in part by reference to the App and Services, or perform any process intended to determine the source code for the App and Services except to the extent that the foregoing restriction is prohibited by applicable law, (ii) copy, deliver, disclose, distribute or otherwise provide the App and Services or any portion thereof, including any account or password information associated with your access to the App and Services, to any third party, (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, or otherwise make available any of the App and Services to any person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service, (iv) remove, delete, alter or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the App and Services, (v) input, upload, transmit or otherwise provide to or through the App and Services or CartText’s computer or network infrastructure, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code, (vi) use, or allow the use of the App and Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign or other applicable law, or rules and regulations of regulatory or administrative organizations, (vii) act in a fraudulent, tortious, malicious or negligent manner when using the App and Services, or (viii) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the App and Services, the or CartText’s computer or network infrastructure. Any unauthorized attempt to assign, sublicense or grant other rights to the App and Services shall be immediately and automatically void.
4. CARTTEXT PROPRIETARY RIGHTS
You acknowledge and agree that the App and Services (including the firmware and software, technology, content, and all methods, concepts or techniques utilized therein) and related documentation are commercially valuable to CartText, and its licensors or suppliers as the case may be, and are treated as confidential, proprietary and containing of trade secrets. You acknowledge and agree that CartText, and its licensors or suppliers as the case may be, owns all right, title and interest in and to the App and Services and any intellectual property rights therein and associated therewith, including without limitation any patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets relating to the design, manufacture, operation, or service of the App and Services and all derivatives, modifications, translations, or extensions thereof. You recognize that nothing contained in this Agreement is intended to assign or grant to you any right, title or interest in or to the App and Services or any associated intellectual property. Your use of the App and Services is authorized only for the purposes herein set forth. Your use of the App and Services shall cease immediately upon termination of this Agreement for any reason. All rights not expressly granted herein are reserved by CartText.
5. USER CONTENT AND DATA
a. User Marketing Information. In connection with the Services, you may provide to CartText certain marketing and promotional information, including your trademarks, product names, slogans, logos, and other marketing and promotional content (“User Marketing Information”) for CartText’s use in providing the Services to you. You hereby grant to CartText a non-exclusive, non-transferable, royalty-free, and worldwide license to use the User Marketing Information you provide to CartText for the purpose of providing the Services to you, including without limitation, sending electronic communications to your customers and end users.
b. User Data. During your use of the App and Services and CartText’s performance of the Services, you may submit to CartText and CartText may collect certain User content and data relating to your use of the App and the Services (“User Data”). You hereby grant to CartText a non-exclusive, royalty-free, worldwide, irrevocable, perpetual right and license to collect and use such User Data in (i) in order to provide you the App and Services, (ii) to improve the App and Services and to develop new products and services, (iii) for CartText’s own internal research, development, data analytics, and marketing purposes, (iv) to create anonymized and aggregated data sets for use by CartText and third parties, and (v) for any other legitimate business purposes. CartText may use your User Data to create anonymized and aggregated data sets for its own use and to provide such data sets to affiliates and third parties; provided, however, that such data sets be completely de-identified and will not contain any personally identifiable information of any person. CartText treats all personal information as Confidential Information (defined below) and will maintain such personal information in confidence and prevent its unauthorized use or disclosure as set forth in this Agreement. Notwithstanding the foregoing, CartText may provide User Data to its affiliates and third-party contractors as necessary to provide the App and Services to you.
c. Ownership of User Marketing Information and User Data. As between you and CartText, you maintain all right, title and interest in and to the User Marketing Information and User Data you provide to CartText through the App or in connection with the Services. Except for the licenses granted herein, nothing in this Agreement shall be construed as granting CartText and interest in and to the User Marketing Information and User Data you provide. By providing your User Marketing Information and User Data to CartText, you represent and warrant that you own or otherwise have the right to provide CartText such User Marketing Information and User Data and authorize CartText’s user as described herein.
d. Hosting, Storage, and Processing of Information. In connection with the App and Services, CartText may store and/or host your User Marketing Information and User Data on its own systems and networks or a third party’s systems and networks. CartText uses reasonable safeguards and security procedures in order to maintain the security, integrity and privacy of your information based upon the type and nature of such information; provided, however, that you acknowledge and agree that no such safeguard or security procedures can be 100% secure.
6. CUSTOMER DATA
a. License to Customer Data. In connection with the performance of the Services, CartText may collect certain data and information relating to your identified customers and end users that visit your online store, app or website (“Customer Data”). This Customer Data may include information relating to an identified customer’s or end user’s use of your website, app, Shopify store or similar online commerce platform, and may include personal information of a customer or end user, including without limitation, their name and phone number. Customer Data may further include additional contact information and personal information of customers or end users that you provide to CartText. You hereby grant to CartText a non-exclusive, royalty-free, worldwide, irrevocable, perpetual right and license to collect and use Customer Data in (i) in order to provide you the App and Services, (ii) to improve the App and Services and to develop new products and services, (iii) for CartText’s own internal research, development, and data analytics purposes, and (iv) to create anonymized and aggregated data sets for use by CartText and third parties; provided, however, that such data sets be completely de-identified and will not contain any personally identifiable information of any person, including any of your customers and end users. CartText treats all personal information as Confidential Information (defined below) and will maintain such personal information in confidence and prevent its unauthorized use or disclosure as set forth in this Agreement. Notwithstanding the foregoing, CartText may provide Customer Data to its affiliates and third-party contractors as necessary to provide the App and Services to you.
b. Ownership of Customer Data. As between you and CartText, you shall own all right, title and interest in and to all Customer Data. You represent and warrant that you have all necessary rights to authorize CartText to collect Customer Data from your identified customer’s and end users and to authorize CartText’s uses of such Customer Data in accordance with this Agreement.
c. Requirements for Collection and Use of Customer Data. CartText will only collect and use Customer Data from customers and end users that you have specifically identified to CartText as eligible for inclusion in the Services. It is your responsibility to notify CartText and confirm that such customer or end user has consented to CartText’s use of the Customer Data and that CartText may send electronic communications via SMS/MMS messages to the identified customer and end user for marketing and promotional services as part of the Services. Until you have provided confirmation to CartText, CartText will not use the Customer Data of a particular customer or end user in connection with the Services, which may impact CartText’s provision of the Services for you.
d. Compliance with Laws. You agree that you are responsible for ensuring that CartText is authorized to collect and use all Customer Data as set forth herein and that you will maintain compliance with applicable data privacy, electronic communications and messaging laws and regulations, including without limitation, those set forth in the Telephone Consumer Protection Act (“TCPA”). You represent and warrant that you will at all times comply with all necessary privacy and data security laws as necessary to enable CartText to collect Customer Data and use such Customer Data to perform the Services, including sending electronic communications and SMS/MMS messages to your identified customer and end users for marketing and promotional purposes. To the extent that any privacy or data protection laws impose an obligation upon CartText to comply with an individual’s request for access to or correction of their personal information that is Customer Data, you agree that you shall satisfy such obligations. If you receive a notice or opt-out from a customer or end user regarding their use of Customer Data or the ability to contact them for marketing or promotional purposes, it is your responsibility to promptly notify CartText.
e. Required User Terms of Service and Privacy Policy. You shall at all times be responsible for maintaining a terms of service and privacy policy with your customers and end users that authorizes CartText to collect and use Customer Data and provide the Services, including sending electronic communications and SMS/MMS messages. At a minimum, you are solely responsible for ensuring that all customers and end users identified by you in connection with the Services have agreed to terms of service and privacy terms containing at least the following provisions:
• An express representation and warranty that the customer’s or end user’s contact information provided to you, including without limitation, a phone number, the customer’s or end user’s own phone number, and that the customer or end user agrees to provide you with notice if the customer or end user is no longer the primary user of that number;
• An express representation and warranty by you that any and all consumers to which you send SMS/MMS messages have provided prior express written consent, as defined by 47 C.F.R. 64.1200(f)(8), to receive telemarketing or advertising calls and text messages via an automatic telephone dialing system, has been informed that such consent is not a condition of any purchase, and has otherwise provided consent in compliance with the TCPA and any applicable state telemarketing laws and regulations and such consent has not been revoked;
• An express authorization that you have the right to provide the customer’s or end user’s personal information, including contact information and phone number, to CartText for the purpose of sending electronic communications and SMS/MMS messages to the customer or end user for marketing purposes;
• An opt-out provision expressly providing that the customer or end user may opt-out of receiving any further messages from CartText via one or more explicitly designed methods, which, at a minimum, shall include: (i) any of the opt-out keywords that are universally recognized, including but not limited to STOP, UNSUBSCRIBE, CANCEL, END, or QUIT; and (ii) one or more alternative opt-out methods, including, but not limited to, via a web-based portal, telephone number, and/or email address established by you for the purpose of opting-out customer or end users; and
• An age restriction provision expressly providing that the customer or end user may not use or engage with the Services if the customer or end user is under thirteen (13) years of age and that, if the customer or end user is between the ages of thirteen (13) and eighteen (18) years of age, customer or end user must have his or her parent’s or legal guardian’s permission to use or engage with the Services.
f. Audit Rights. CartText shall have the right, upon reasonable notice and at CartText’s expense, to audit your compliance with the terms and conditions of this Agreement, including without limitation, compliance with the obligations and requirements set forth in this Section 6. You agree to reasonably assist CartText in conducting such audit, including providing applicable documents and information relating the Services.
7. CONFIDENTIALITY
a. Nondisclosure of Confidential Information. Each party acknowledges and accepts the responsibility to maintain all Confidential Information (defined below) of the other party in confidence and to prevent its unauthorized use or disclosure, using measures the receiving party uses to protect its own similar confidential information, but in any event, no less than a reasonable degree of care. Without limiting the foregoing, each party agrees that it shall not publish, disclose or otherwise provide to any person (except employees or contractors with a legitimate need to know and who have entered into a written agreement with the receiving party containing confidentiality provisions as restrictive as those set forth in this Section), or use for any purpose other than those purposes contemplated by this Agreement, any Confidential Information it receives hereunder. To the extent the receiving party is required by subpoena or otherwise by law to disclose Confidential Information it received from the disclosing party, the receiving party shall provide the disclosing party with prompt written notice of such requirement and shall cooperate with the disclosing party in taking such steps as may be reasonably indicated to maintain the confidentiality of the information subject to disclosure. Each party acknowledges that violations of the terms hereof may cause the other immediate and irreparable damage for which monetary damages may be inadequate for which the other party is entitled to seek injunctive relief.
b. Definition of Confidential Information. “Confidential Information” shall mean any and all information and documentation relating directly or indirectly to the App and Services, the business, business practices, trade secrets or affairs of a party, including but not limited to, that pertaining to (i) the internal business, financial and marketing information of either party, (ii) the firmware, software, object and source code and technical documentation (including, without limitation, the architecture, conceptual logic, know-how and other intellectual property embodied in the App and Services and/or documentation, and made accessible to you hereunder), (iii) the App Services documentation, (iv) personal information, (v) the contractual terms, fees and pricing set forth in this Agreement and the discussions, negotiations and proposals related to this Agreement, or (vi) any other material or information received from the other party and which is designated as “confidential” or “proprietary”, or which are known, or under the circumstances surrounding disclosure reasonably should be known, as the confidential or proprietary material of the disclosing party. Confidential Information shall not include information that (1) was in the receiving party’s possession at the time it was received from the disclosing party, (2) is or becomes a matter of public knowledge through no wrongdoing of the receiving party, (3) is rightfully provided to the receiving party by a third party without restrictions of confidentiality, or (4) is independently developed by the receiving party without breach of this Agreement.
8. PROHIBITED ACTIVITES
The following activities are expressly prohibited from the App:
• Misrepresenting your identity or your purpose for using the App.
• Reverse engineering the App or any Services provided on the App, including CartText’s proprietary software and technology, to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the App or Services, (iii) copy any ideas, features or functions of the App or Services, or (iv) copy and text or graphics on the App or Services.
• Providing any information or content to the App that violates any third party’s intellectual property and/or privacy rights.
• Providing any information or content to the App or Services that contain software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of the App or Services or any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of CartText or any third party.
• Engaging in activity that compromises the App or Services. Such activity may include, but is not limited to hacking, IP attacks, worms, viruses, spamming, phishing, cancel bots, Trojan horses, and mail bombing or crashing.
• Engaging in any activity designed to impede the use of the App and Services by other users, including overloading and flooding.
• Framing or deep linking into the App.
• Accessing the App by means of automated process, spiders, bots or similar device.
• Sending or causing to be sent any text messages to any phone numbers for which you do not have valid and current prior express written consent, as defined by the TCPA and applicable regulations.
9. TERMINATION
This Agreement is effective until terminated by CartText or you. CartText may cancel or terminate this Agreement, and your right to access and use the App and/or Services, at any time and without notice to you if you fail to comply with any of the terms or conditions of this Agreement, as determined by CartText in its sole discretion. You or CartText may terminate this Agreement by providing written notice of an intent not to renew any subscription term, with such termination becoming effective upon the expiration of the then-current subscription term. Upon termination, you shall cease all use of the App and Services, uninstall the App and Services from all computers and device(s) upon which it is installed, and destroy all copies of the App and Services in your possession.
10. REPRESENTATIONS AND WARRANTIES
a. Mutual Warranties. Each party represents and warrants that it has the legal authority and power to enter into this Agreement and that when executed, this Agreement will constitute a valid, legal and binding obligation of each party, enforceable in accordance with the terms herein.
b. User Warranties. You hereby represent and warrant that (i) you will use the App and Services only as authorized by this Agreement, (ii) you have obtained all necessary rights (including any necessary customer, end user or other third party rights) to allow CartText to collect, access, use, disclose and store the User Data and Customer Data associated with your use of the App and Services and CartText’s performance of the Services as set forth in this Agreement, (iii) the User Marketing Information that you provide to CartText does not infringe the intellectual property rights of any third party, and (iv) you will comply with all laws, rules and regulations in accordance with your use of the App and Services.
c. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, YOUR USE OF THE APP AND SERVICES IS AT YOUR OWN RISK, AND THE APP AND SERVICES ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. CARTTEXT DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES TO THE FULLEST EXTENT OF THE LAW, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. CARTTEXT DOES NOT WARRANT THAT THE APP AND SERVICES WILL MEET ALL OF YOUR REQUIREMENTS OR THAT USE OF THE APP AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CARTTEXT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE APP AND SERVICES IN TERMS OF CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE.
11. INDEMNIFICATION
You agree to indemnify, defend and hold harmless CartText and its directors, officers, affiliates, employees, agents, representatives, third party service providers, successors and assigns (each an “Indemnitee”) from and against any and all claims, damages, losses and expenses suffered or incurred by any such Indemnitee arising from, relating to or otherwise in respect of any loss, damage or to any person or property resulting from or relating to (i) your use of the App and Services, (ii) any breach by you of this Agreement, including but not limited to, any breach of a representation and warranty made herein, (iii) any information or results obtained through use of the App and Services or access to the App and Services, (iv) claims that CartText’s authorized use of any Customer Data and performance of the Services, including without limitation, sending messages and communications to your identified customers and end users violates any applicable law, rule or regulation or a third party’s privacy or intellectual property rights, or (v) your gross negligence or willful misconduct. Without limiting the foregoing, you specifically agree to indemnify, defend, and hold harmless CartText and each Indemnitee from any claim arising under or related to the Telephone Consumer Protection Act, state and federal telemarketing laws, and any related common law or statutory causes of action, including without limitation, any claims that CartText’s transmission of marketing messages and communications to a Customer designated by you for inclusion in the Services violates the any federal or state telemarketing or privacy laws, rules or regulations.
12. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT SHALL CARTTEXT (OR ITS VENDORS OR RESELLERS) BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER OR DEVICE FAILURE OR MALFUNCTION, SUBSTITUTE GOODS OR SERVICES OR ANY OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE APP AND SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE. FURTHERMORE, ANY OTHER DAMAGES RECOVERABLE BY YOU FROM CARTTEXT SHALL IN NO CASE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APP AND SERVICES WITHIN THE SIX (6) MONTHS PRIOR TO THE INCIDENT OR ACTION ASSERTED AS SUBJECTING CARTTEXT TO LIABILITY.
13. RELEASE
You agree that none of CartText or its affiliates nor their respective suppliers, licensors, shareholders, directors, officers, managers, partners, agents, and employees shall have any responsibility or liability for damage to or claim by you or by any third party (collectively “Claims”) arising from, or directly or indirectly in connection with, the your operation and use of the App and Services in accordance with, and envisioned by, this Agreement or otherwise. You agree that you shall have no recourse in respect of any such claim and shall bring no claim against CartText or its affiliates nor their respective suppliers, licensors, shareholders, directors, officers, managers, partners, agents, and employees, in respect of or in connection with any such Claim, now or in the future, whether known or unknown.
14. LINKS TO THIRD PARTY SITES
Any links to other websites not owned or operated by CartText are provided solely as a convenience for you. CartText’s listing of any third party does not create a partnership or affiliation with the third party. CartText’s listing of any third parties does not constitute sponsorship or endorsement of these third parties. You shall make a competent consumer decision before purchasing goods or employing the services of any linked or listed third party. You hereby assume all risk associated with obtaining goods or services from any third party.
15. INJUNCTIVE RELIEF
You agree that a breach of this Agreement will cause irreparable injury to CartText for which monetary damages would not be an adequate remedy and CartText shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, security or proof of damages.
16. GENERAL PROVISIONS
a. Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND CARTTEXT (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH CARTTEXT, INCLUDING WITHOUT LIMITATION DISPUTES ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, YOUR USE OF THE APP AND/OR SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S (“AAA”) RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. To the extent allowed by applicable law, the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to, any claim that all or any part of this Agreement is void or voidable. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.
b. Waiver of Right to Jury; Class Action Waiver. TO THE EXTENT ALLOWED BY LAW, YOU AGREE TO IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY OR OTHER COURT TRIAL (OTHER THAN SMALL CLAIMS COURT) OR TO SERVE AS A CLASS REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, CLASS ARBITRATION, CONSOLIDATION OF INDIVIDUAL ARBITRATIONS, OR OTHER PROCEEDING FILED AGAINST CARTTEXT AND/OR RELATED THIRD PARTIES.
c. Entire Agreement. This Agreement constitutes the entire agreement between you and CartText with respect to the App and Services and supersedes all prior negotiations, discussions or representations, whether written or oral.
d. Assignment. CartText may assign this Agreement without notice to you. You may not assign or transfer this Agreement without the prior written consent of CartText, which may be withheld in its sole discretion. Any attempted assignment or transfer in violation of the foregoing will be void.
e. Governing Law; Venue. This Agreement will be governed by the laws of the State of California, excluding its conflicts of law rules, and the United States of America. Without waiving the foregoing arbitration clause, you agree that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of California.
f. Severability. If any provision of this Agreement is held to be unenforceable in mediation or by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in effect, to be construed as if the unenforceable provision was originally deleted and to be further construed in such a manner as to give effect to the intent of the parties to the greatest extent possible.
g. Notices. If you have any questions or concerns regarding this Agreement, you may contact CartText at: support@carttext.com.
h. Independent Contractors. You and CartText are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party.
i. No Third-Party Beneficiaries. You acknowledge and agree that nothing in this Agreement creates a right enforceable by any person or entity other than you and CartText.
