AI Prospector - Terms of ServiceLast Updated: June 11, 2024
This Terms of Service Agreement ("Agreement") applies to all visitors to our website ("Visitors"), authorized users of the AI Prospector platform ("System Users"), and any individual or entity that executes a Service Agreement or Order Form with us ("Customers"). This Agreement governs your access to and use of the AI Prospector website, platform, and any related services (collectively, the "Services"). For Customers, this Agreement is incorporated by reference into your Service Agreement or Order Form.
PLEASE READ THIS AGREEMENT CAREFULLY. BY EXECUTING A NEW SERVICE ORDER, REGISTERING FOR AN ACCOUNT, ACCESSING OUR WEBSITE, OR USING AI PROSPECTOR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICE.
1. Services and License
1.1. Service Description. AI Prospector provides a platform and tools for managing and executing marketing and outreach campaigns via email, text messaging, and social media platforms. We provide the technology to facilitate these communications.
1.2. Limited License. Subject to your full compliance with this Agreement, AI Prospector grants you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Services for your internal business purposes during the term of your subscription.
2. Customer Accounts and Responsibilities
2.1. Authorized Use. Customers are responsible for the use of the Services by their employees, agents, and any other individual they authorize to access the account ("Authorized Users"). Customers will ensure that all Authorized Users comply with the terms of this Agreement.
3. Acceptable Use Policy
3.1. Prohibited Activities. You agree not to use the Services to engage in any of the following activities: a. Sending messages in violation of applicable laws. b. Transmitting any material that is unlawful, harassing, libelous, abusive, threatening, harmful, fraudulent, or otherwise objectionable. c. Sending messages to any recipient who has opted out or unsubscribed from your communications. d. Infringing upon the intellectual property rights of any third party.
4. Customer Data and Intellectual Property
4.1. Customer Data. You retain all ownership rights to the content, contact lists, and other information you provide to AI Prospector ("Customer Data"). You grant AI Prospector a worldwide, non-exclusive, royalty-free license to use, reproduce, modify, and transmit your Customer Data solely as necessary to provide the Services to you. If your processing of Customer Data is subject to the California Consumer Privacy Act (CCPA) or other applicable data protection law requiring a Data Processing Addendum ("DPA"), a DPA will be made available upon your request and, once executed, shall be incorporated by reference into this Agreement.
4.2. Our Intellectual Property. AI Prospector owns all right, title, and interest in and to the Services, including all underlying software, technology, trademarks, and other intellectual property. This Agreement does not grant you any ownership rights in our Services. Any feedback or suggestions you provide regarding the Services may be used by AI Prospector without restriction or obligation to you.
5. Fees, Payment, and Subscription
5.1. Fees. Customers agree to pay all fees associated with their chosen subscription plan as specified in their Order Form or at the time of purchase. All fees are quoted in U.S. Dollars and are non-refundable.
5.2. Payment. Customers authorize AI Prospector to charge their chosen payment method for all applicable fees.
5.3. Automatic Renewal. Subscription plans will automatically renew for successive periods described on the order form unless the Customer cancels the subscription prior to 21 (“Twenty One”) days from the renewal date via the procedures provided within the Service Order Form.
6. Service Acceptance, Dispute Policy, and Payments
6.1. Service Delivery. "Delivery" is defined as the moment AI Prospector makes the contracted Services available for your use. Email notification shall serve as conclusive evidence of Delivery.
6.2. Client Review and Acceptance. a. Review Period. The Customer has ten (10) business days following Delivery (the "Review Period") to notify AI Prospector in writing of any material failure of the Service to conform to the features explicitly advertised for the Customer's subscription plan. b. Deemed Acceptance. The Services shall be irrevocably deemed "Accepted" by the Customer if the Customer fails to provide a written notice of material deficiency within the Review Period. Use of the Services by the Customer shall also constitute Acceptance.
6.3. Finality of Payment and Limitation on Chargebacks. a. Payment Obligation. Customer acknowledges and agrees that all fees are for access to services rendered and that once a service has been "Accepted" pursuant to section 6.2(b), all payment obligations become final, absolute, and non-refundable. b. Covenant Not to Chargeback. Customer agrees that it will not initiate a credit card chargeback, payment dispute, or reversal for any fees paid for Accepted Services. The Customer acknowledges that the exclusive remedy for any dispute is direct communication with AI Prospector. Initiating a chargeback for reasons of subjective dissatisfaction is a material breach of this Agreement. c. Damages for Improper Chargeback. In the event the Customer breaches section 6.3(b), the Customer shall be liable for the full amount of the chargeback, in addition to a $250.00 administrative fee, plus any and all legal, collections, or other expenses incurred by AI Prospector.
7. Disclaimer of Warranties
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." AI PROSPECTOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING MESSAGE DELIVERABILITY, OPEN RATES, OR CONVERSION RATES.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AI PROSPECTOR BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR DATA, ARISING OUT OF OR RELATING TO THE USE OF THE SERVICE. OUR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO US DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Indemnification
You agree to indemnify, defend, and hold harmless AI Prospector and its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, lawsuits, penalties, fines, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to: (a) your use of the Services; (b) your breach of this Agreement, including specifically your obligations under Section 12; and (c) your violation of any applicable law or the rights of a third party, including the recipients of your communications.
10. Confidentiality
Both parties acknowledge that during the course of this Agreement, each may receive certain non-public information from the other party ("Confidential Information"). Each party agrees to use the other's Confidential Information solely for the purpose of fulfilling its obligations under this Agreement and will not disclose it to any third party without the prior written consent of the disclosing party, except as required by law. This obligation of confidentiality shall not apply to information that is publicly known, already in the receiving party's possession, or independently developed.
11. Governing Law and Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to its conflict of law provisions.
All disputes, claims, or controversies arising out of or relating to this Agreement or your use of the Services shall be resolved exclusively through binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. Arbitration will be conducted in Hudson County, New Jersey, on an individual basis only; class actions and class arbitrations are expressly prohibited.
The prevailing party in any arbitration shall be entitled to recover its reasonable attorneys’ fees and arbitration costs, including filing and arbitrator fees, unless the arbitrator determines that such an award would be unjust under the circumstances. Judgment on the arbitration award may be entered in any court of competent jurisdiction.
12. Customer Responsibility
12.1. General Compliance. AI Prospector provides guidance and best practices to support compliance efforts; however, You remain solely responsible for ensuring your use of the Services complies with all applicable federal, state, and local laws, regulations, and industry guidelines.
12.2. Consent for Text Messaging (TCPA). You specifically acknowledge that laws such as the Telephone Consumer Protection Act (TCPA) and related regulations require obtaining "prior express written consent" from recipients to send them marketing text messages. You represent and warrant, as a material condition of this Agreement, that you have obtained and can provide evidence of such consent for every contact to whom you send text messages via the Services.
12.3. Breach. A breach of your obligations in this Section 12 shall be considered a material breach of this Agreement.
13. General Provisions
13.1. Entire Agreement. This Agreement constitutes the entire agreement between you and AI Prospector and supersedes all prior agreements.
13.2. Modification. We reserve the right, in our sole discretion, to modify this Agreement at any time. If a revision is material, we will provide at least 30 days' notice. Continued use of the Services after such changes constitutes your acceptance of the new terms.
13.3. Severability. If any provision of this Agreement is held to be unenforceable, the remaining provisions will remain in full force and effect.