TERMS OF SERVICE

B. Ownership

The Site (including past, present, and future versions) and the Content are owned or controlled by Sendtric and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Site is the property of Sendtric or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible. Sendtric owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Site.

C. Limited License

Subject to your strict compliance with these Terms and the Additional Terms, Sendtric grants you a limited, non-exclusive, revocable, non-assignable, and non-transferable license to download (temporary storage only), display, view, use, and/or print one copy of the Content (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 (each, a “Device”) for your use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Sendtric’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.

D. Rights of Others

In using the Site, you must respect the intellectual property and other rights of Sendtric and other parties. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Sendtric respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Site, please see Section 6 and Section 7 below.

E. SaaS Agreement

In order to use the Site, you may be provided with a separate written agreement, which may be titled SaaS Agreement or a similar name (the “SaaS Agreement”). The SaaS Agreement, in connection with these Terms, will contain the full legal terms for your use of the Site, including payment terms, the scope of software and professional services Sendtric will provide, the term during which you may use the Site, support terms, confidentiality obligations, and other material terms.

F. Sendtric Professional

Sendtric is currently offering a Sendtric Professional Edition (“Sendtric Pro”). The price and features of Sendtric Pro will be displayed to you on a Sendtric Site. Sendtric Pro guarantees a Ninety-Nine Percent (99%) system uptime for any service on the Site. Notwithstanding the forgoing, any and all claims or damages (rather indirect or direct) against Sendtric shall be limited only to the amount paid pursuant to these Terms.

A. General

Sendtric may now or in the future offer users of the Site the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Site (collectively, “submit”) messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding any Sendtric Content (defined herein), (“User-Generated Content”). Sendtric may do this through forums, blogs, message boards, social networking environments, content, creation tools, gameplay, social communities, e-mail, and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content.

B. Non-Confidentiality of Your User-Generated Content

Except as otherwise described in the Site’s posted Privacy Policy or any Additional Terms, you agree that (a) your User-Generated Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) Sendtric does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content. Upon Sendtric’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. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content and do so at your own risk.

In your communications with Sendtric, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including without limitation ideas, concepts, inventions, or designs for music, web sites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Site are deemed User-Generated Content and licensed to us as set forth below. In addition, Sendtric retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Sendtric’s receipt of your Unsolicited Ideas and Materials is not an admission by Sendtric of their novelty, priority, or originality, and it does not impair Sendtric’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

C. License to Sendtric of Your User-Generated Content

Except as otherwise described in any applicable Additional Terms (such as a contest official rules), which specifically govern the submission of your User-Generated Content), you hereby grant to Sendtric, and you agree to grant to Sendtric, 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 User-Generated Content (and 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: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content 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 Sendtric to your User-Generated Content, you also hereby grant to Sendtric, and agree to grant to Sendtric, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, 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 User-Generated Content, 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 2(C).

D. Sendtric’s Exclusive Right to Manage its Venue

Sendtric may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Sendtric may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. Such User-Generated Content submitted by you or others need not be maintained on the Site by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Site or elsewhere.

E. Representations and Warranties Related to Your User-Generated Content

Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant Sendtric the rights to it that you are granting by these Terms and any Additional Terms, all without any Sendtric obligation to obtain consent of any third party and without creating any obligation or liability of Sendtric; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Sendtric’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms or any Additional Terms, or cause injury or harm to any person.

F. Enforcement

Sendtric has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Sendtric’s cost and expense, to which you hereby consent and irrevocably appoint Sendtric as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

G. Alerting Us of Violations

If you discover any content that violates these Terms, you are encouraged to report such violations to Sendtric through the following link: support@sendtric.com. For alleged infringements of intellectual property rights, see Sections 6 and Sections 7, below.

A. Site Use Restrictions

By using the Site, you explicitly agree not to, aside from your purchase of services offered for sale by Sendtric or its affiliates: (i) engage in any activities through or in connection with the Site that seek or attempt to harm any individuals or entities or are otherwise unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate the rights of any third party, or are otherwise objectionable to Sendtric; (ii) reverse engineer, decompile, disassemble, reverse assemble, or modify any Site source or object code or any software or other products, services, or processes accessible through any portion of the Site; (iii) engage in any activity that interferes with a user’s access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, Sendtric, or other users of the Site; (iv) interfere with or circumvent any security feature of the Site or any feature that restricts or enforces limitations on use of or access to the Site, the Content, or the User-Generated Content; or (vi) otherwise violate these Terms or any Additional Terms.

B. Content Use Restrictions

You also agree that, in using the Site, you will: (i) not monitor, gather, copy, or distribute the Content (except as may result from standard search engine activity or use of a standard browser) on the Site by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout), except as necessary to utilize the countdown timer application (“Timer”) on the Site; (iii) keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) not make any modifications to such Content (other than to the extent otherwise permitted in these Terms or any Additional Terms); (vi) not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Sendtric or, in the case of Content from a licensor, the owner of the Content, except as reasonably necessary to utilize the Timer in your email campaigns or; and (vii) not insert any code or product to manipulate such Content in any way that adversely affects any user experience. Notwithstanding the forgoing, Sendtric Pro subscribers will be able to utilize the Timer in connection with other services Sendric Pro subscribers are providing to clients or customers; provided, such Sendtric Pro subscribers’ clients or customers shall subject to all of the restrictions set forth in Subsections 3(B)(i) through 3(B)(vii) set forth above.

C. Availability of Site and Content

Sendtric may immediately suspend or terminate the availability of the Site and/or Content (and any elements and features thereof) for any reason, in Sendtric’s sole and absolute discretion, and without advance notice or liability to any party. Notwithstanding the forgoing, any subscribers of Sendtric Pro will be provided with at least thirty (30) days notice prior to the termination of the Site and/or Content.

D. Reservation of All Rights Not Granted as to Content and Site

These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Site. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Sendtric and its licensors and other third parties. Any unauthorized use of any Content or the Site for any purpose is prohibited.

A. DMCA Notice

Sendtric will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice that includes all of the following:

• • (i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;

• • (ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

• • (iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Site on which the material appears);

• • (iv) your full name, address, telephone number, and e-mail address;

• • (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

• • (vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

• • (vii) your electronic or physical signature.

It is often difficult to determine if your copyright has been infringed. Sendtric may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Sendtric may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.

Without limiting Sendtric’s other rights, Sendtric may, in appropriate circumstances, terminate a repeat infringer’s access to the Site and any other website owned or operated by Sendtric. See Section 4, above.

B. Counter-Notification

If access on the Site to a work that you submitted to Sendtric is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

• • (i) a legend or subject line that says: “DMCA Counter-Notification”;

• • (ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Site from which the material was removed or access to it disabled);

• • (iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

• • (iv) your full name, address, telephone number, e-mail address, and the username of your account;

• • (v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Southern District of Florida), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

• • (vi) your electronic or physical signature.

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed of disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Site. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

A. Linked Sites; Advertisements

The Site may contain links, as part of third-party ads on the Site or otherwise, to or from third-party websites (“Linked Sites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Sendtric. Sendtric may have no control over the content, operations, policies, terms, or other elements of Linked Sites, and Sendtric does not assume any obligation to review any such Linked Sites. Sendtric does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Sendtric is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Finally, Sendtric 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 these third-party Linked Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Sites. Sendtric disclaims all liability in connection therewith.

B. Dealings with Third Parties

Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Site (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Sendtric disclaims all liability in connection therewith.

A. Wireless Features

The Site 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 Site’s features and upload content to the Site, receive messages from the Site, 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 determine what plans, if any, are available and how much they cost. Contact your carrier with questions regarding these issues.

B. Terms of Wireless Features

You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Site for Wireless Features, then you agree to notify Sendtric of any changes to your wireless contact information (including phone number) and update your accounts on the Site to reflect the changes.

A. First – Try to Resolve Disputes and Excluded Disputes

If any controversy, allegation, or claim arises out of or relates to the Site, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Sendtric’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 12(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 12(A). Your notice to us must be sent to: support@sendtric.com. For a period of sixty (60) days from the date of receipt of notice from the other party, Sendtric and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Sendtric to resolve the Dispute or Excluded Dispute on terms with respect to which you and Sendtric, in each of our sole discretion, are not comfortable.

B. Forums for Alternative Dispute Resolution

(i) Arbitration. If we cannot resolve a Dispute as set forth in Section 12(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 12(B). If we cannot resolve an Excluded Dispute as set forth in Section 12(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Sendtric consent, in a writing signed by you and an Officer or legal representative of Sendtric, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 12(B).

Upon expiration of the applicable sixty-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Sendtric elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Sendtric do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 12(B)(i), then this paragraph and the remainder of this Section 12(B) will not apply to the Excluded Dispute.

If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Sendtric consent to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.

You can obtain AAA and JAMS procedures, rules, and fee information as follows:

AAA: 800.778.7879 | http://www.adr.org/
JAMS: 949.224.1810 | http://www.jamsadr.com/

(ii) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of these Terms (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Sendtric to pay a greater portion or all of such fees and costs in order for this Section 12 to be enforceable, then Sendtric will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.

C. Limited Time to File Claims

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 12(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED.

D. Injunctive Relief

The foregoing provisions of this Section 12 will not apply to any legal action taken by Sendtric 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 Site, any Content, your User-Generated Content and/or Sendtric’s intellectual property rights (including any rights that Sendtric claims that may be in dispute), Sendtric’s operations, and/or Sendtric’s products or services.

E. Small Claims Matters Are Excluded from Arbitration Requirement

Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 12(G).

F. No Class Action Matters

Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 12(B)(i) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 12(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 14(G).

G. Federal and State Courts in Colorado

Except to the extent that arbitration is required in Section 12(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Colorado. Accordingly, you and Sendtric consent to the exclusive personal jurisdiction and venue of such courts for such matters.

A. Updates to Terms

Sendtric reserves the right to modify these Terms and any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Site so that they are accessible via a link on the Site, and that your use of the Site after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms on a regular and frequent basis. The Updated Terms will be effective as of the time that Sendtric posts them on the home page of the Site, or such later date as may be specified in them.

B. Sendtric’s Consent or Approval

As to any provision in these Terms or any Additional Terms that grants Sendtric right of consent or approval, or permits Sendtric to exercise a right in its “sole discretion,” Sendtric may exercise that right in its sole and absolute discretion. No Sendtric consent or approval may be deemed to have been granted by Sendtric without being in writing and signed by an Officer of Sendtric.

C. Applicable Law

These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of Colorado without regard to its conflicts of law provisions.

D. Indemnity

You agree to, and you hereby, defend, indemnify, and hold each of the Sendtric 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 Sendtric Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Site and your activities in connection with the Site; (iii) your breach or anticipatory breach of these Terms or any Additional Terms; (iv) your violation or anticipatory 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 Site or your activities in connection with the Site; (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; and (vii) use by any of the Sendtric Parties of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by the Sendtric Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, the Sendtric Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. The Sendtric Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Sendtric Party.

E. Operation of Site; Availability of Products and Services; International Issues

Sendtric controls and operates the Site from its U.S.-based offices in the U.S.A., and Sendtric makes no representation that the Site is appropriate or available for use beyond the U.S.A. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Site may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, service, or other feature described or available on the Site to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.

F. Export Controls

Software related to or made available by the Site may be subject to export controls of the U.S.A. No software from the Site may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.

G. Severability; Interpretation

If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation.”