TERMS OF SERVICE1. The Present Terms
By using the www.swift.excitem.com website, its associated services and functionality (the “website") you agree to be bound by the Present Terms. If you do not agree to any provision(s) of the Present Terms, you shall not and may not use the website.
The Present Terms are entered into by and between you and Snooozy, Inc. (“ExciteM”, "us", "our", "we"). "you", “your” "user(s)" or any ExciteM account holder means anyone who uses the service offered by ExciteM.
We reserve the right to make changes to these Terms from time to time at our sole discretion. By continuing to use the website, you agree to be bound by such changes. We are not obliged to notify you of any such changes but we might endeavour to inform you of any significant changes. Nevertheless, you should check our published/posted applicable policies and guidelines from time to time to acquaint yourself with the current versions.
2. Purpose of the website & Service
The services provided by ExciteM (the “Service”) are intended to be used by users in order for them to carry out automated telephone surveys, SMS surveys or to use other specific phone applications.
You understand, acknowledge and agree that it is forbidden for you to use the Service for political, advertising, telemarketing purposes or for any other commercial solicitations or offers.
IF YOU USE THIS SERVICE FOR ANY POLITICAL ADVERTISING PURPOSES OR IN ORDER TO INITIATE/MAKE TELEMARKETING OR COMMERCIAL SOLICITATIONS OR OFFERS, IN BREACH OF THESE TERMS OR IN VIOLATION OF APPLICABLE LAWS AND/OR REGULATIONS, YOU ACCEPT ANY AND ALL LIABILITY FOR SUCH ACTIONS.
While using the Service, you agree to comply with all applicable federal, state and local laws and/or regulations. You are solely responsible for your content, including any data, text, images, audio recordings or content contained on your account or delivered via the website or ExciteM.
Your use of the Service is also subject to any of the ExciteM’s applicable policies and guidelines posted on the website.
You are personally responsible for all traffic originated from the use of your account. Thus, you shall protect your authentication keys and security credentials. Any action of use of your account shall be deemed to be an action taken by you, with all consequences including, but not limited to, service termination, civil and criminal penalties.
3. SNOOOZY RATES AND FEES
The rates for the Service offered by ExciteM are indicated in the Present Terms or displayed elsewhere on the website.
The rates are indicated in U.S. dollars, unless otherwise provided. You will pay all fees to SNOOOZY, Inc.
Except as required by law, all fees paid by you to ExciteM in consideration of the Service shall be exclusive of value added tax, sales taxes or any other taxes.
All foreign, federal, state, county, local income taxes, VAT, and other taxes, or amounts in lieu thereof, levied or based on the fees paid by you to ExciteM in consideration of the Service shall be paid by you with the exception of taxes based upon the ExciteM’s net income.
Should any payment, made by you to ExciteM under these Terms, be subject to any withholding tax that you are required to deduct from any such payment, you shall, as quickly as possible, provide ExciteM with receipts issued by the relevant government authorities for all such taxes withheld or paid by you and you shall fully and promptly cooperate with ExciteM to provide such information and records as ExciteM may require in connection with any documentation to be filed by ExciteM with any relevant tax authorities/administration in order to obtain tax credits.
3.3 Choice of Payment Methods
3.3.1 Pay as you Go
In order to use the Service through our Pay as you Go plan, you shall pre-purchase minutes through your account. The minimum single purchase of minutes shall be in an amount of at least $5. Applicable taxes may also be charged at the time you make such minute purchases. Whenever you use the Service to initiate an outbound phone call, a per-call charge is deducted from your prepaid account balance, based upon the calling rate and duration of the call (Per-Minute Usage deduction). If you set up the Service to accept inbound phone calls, an amount is also deducted from your prepaid account balance based on the duration of the call. By defaut, ExciteM offers to any user a special service consisting of recharging your account with an amount equal to the last deposited amount once your balance hits the $2 mark. This special service is intended to ensure that your calling schedule will not be interrupted due to running out of balance. If you do not want us to recharge your account once your balance hits $2, then it is your responsibility to change this default setting.
3.3.2 Discounted & Tailor-Made Monthly Plans
ExciteM offers to the users the possibility to use the Service by means of a payment method consisting of discounted monthly plans (“Monthly Plan”).
The user which opts for a Monthly Plan shall be charged by ExciteM, on the first day of the user’s monthly billing cycle (as defined by ExciteM), a monthly fee in an amount agreed upon between such user and ExciteM at the time of the Monthly Plan subscription.
Such monthly fee shall not be refundable on a prorated basis in the event of an early cancellation decided by the user in accordance with Section 12.1 of the Present Terms.
For each monthly period, the user, in agreement with ExciteM, shall be assigned a certain amount of minutes. Should the user use all of such minutes during such monthly period, each minute used, beyond this agreed upon amount of minutes AND before the expiration of the monthly period, shall be charged by ExciteM to the user in excess of the monthly fee charged by ExciteM to the user at the beginning of the monthly period.
3.3.3 Free Trials
Free trials are limited to one (1) free trial per user/account holder. Should ExciteM find out that you have created multiple free trial accounts, ExciteM reserves the right to suspend or terminate those accounts and take action to prevent additional violations.
4. Per-Minute Usage Billing.
The Service is billed to the user/account holder by ExciteM on a strict per-minute usage basis (which thus excludes any billing to you by us on a per-second usage basis). Indeed, any fraction of a minute will be rounded up to the next full minute.
5. Refund Policy.
The "account credits" purchased by you are under no circumstances refundable and/or transferable. ExciteM does not offer any refunds. All sales are final.
6. Consequences of Account Inactivity.
If your account is inactive for more than 180 days (inactivity being defined as the fact that a user does not log into its account), your "account balance" may be set back to zero by ExciteM.
7. USE OF THE SERVICE
7.1 Representations & Warranties.
It is your responsibility to understand and comply with all applicable laws and regulations in each country where you use the Service. Thus, you represent to ExciteM that:
the information submitted by you, via your account, to ExciteM shall be transmitted exclusively for lawful purposes and that the transmission of messages, telephone calls or files is not in violation/breach of any applicable state, federal or local laws and/or regulations;
you shall comply with all applicable laws, regulations, guidelines, procedures and policies including, but not limited to, (i) laws and regulations (some of which are enforced by the Federal Trade Commission and/or by the Federal Communications Commission) relating to Do Not Call registries and telemarketing, data privacy and security, direct marketing, consumer protection, international telecommunications and data protection, and (ii) the transfer/communication of technical and/or personal data;
you have obtained in a legal manner, and are entitled to provide ExciteM with the names, telephone numbers, email addresses and any other information that you submit to ExciteM;
you shall not use the Service in a way or for a purpose that would cause ExciteM to violate or be in breach of any applicable laws and/or regulations.
7.2 Internet Access & Telecommunication Networks.
7.3 No Resale of the Service to Third Parties.
Users are not entitled to resell the use of the Service to any third party.
8. License & Transfer of Ownership Rights.
You hereby grant ExciteM a limited, non-exclusive, non-transferable, non-sublicenseable license, during the term of these Terms, of the right to use your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that you use the Service.
For inbound calls or texts related to real estate potential buyers (prospects), so long as the user maintains and continues his use of the Service, the exclusive access by any user to its market/clientele base’s mobile phone numbers shall remain that of the user’s. Should any user decide not to continue using the Service, any such user shall transfer, for marketing purposes, all ownership rights over opt–in mobile numbers to ExciteM.
9. User’s Content.
9.1 Content Control.
The user will be solely responsible for creating, editing, reviewing, deleting and otherwise controlling its content published by ExciteM. The user acknowledges that, in providing ExciteM with the authority to publish and distribute the user’s content via the ExciteM system, ExciteM is acting only in its capacity as a passive conduit for the distribution and publishing of such user’s content, even though ExciteM is acting as the active publisher of the user’s approved content. ExciteM has no obligation whatsoever to review the user’s content or the user–generated content in order to determine whether any such user’s content may result in liability to third parties.
9.2 The User's Representations.
All advertising material and information, including, but not limited to, art work and or representations regarding the user’s business are accepted by ExciteM upon the representations that the user has the right to publish/make available the information/content using the ExciteM system without infringing upon the rights of any third party and without violating/breaching any laws or regulations. In consideration of such publication, the user agrees to, at its own expense, indemnify, defend and hold harmless ExciteM and its employees, representatives and affiliates against any and all expenses and or losses (including all reasonable legal fees and costs incurred by ExciteM in connection with any claims, administrative proceedings or criminal investigations of any kind arising out of publication of the ExciteM system content, including any claims regarding trademark and/or copyright infringement, slander/libel, breach of confidentiality, false or deceptive advertising or sales practices.
9.3 Content’s Delivery/Availability.
Any content to be published by ExciteM shall be uploaded online by the user prior to being published by ExciteM and made available by the latter to any user’s customers. ExciteM will provide you with a delivery estimate regarding such content’s publication and/availability to any user’s customers but ExciteM makes no warranties of any sort in that regard.
10.1 Account Protection and Safety.
You are solely responsible for maintaining the confidentiality, safety and security of your account and account password. Besides, you are solely and entirely responsible for any and all activities and transactions/operations that occur while using your account. In accordance with Section 17 of these Terms, you agree to inform ExciteM immediately of any unauthorized use of your account, loss or theft of your password, or any other violation of security. ExciteM is not liable for any loss that you may incur as a result of unauthorized use of your password or account.
10.2 Forbidden Use of Another User's Account.
You may not use any user's account without the account holder’s authorization. Any attempt to bypass access controls or to otherwise access to any other portion of the website or of the Service, other than in an authorized manner, is a material violation of these Terms and may result in the immediate termination of your account, as well as civil proceedings or criminal prosecution.
10.3 Service Interruptions & Security .
10.3.1 You understand, acknowledge and agree that: (i) Your use of the Service may be suspended for the duration of any unanticipated downtime or unavailability of any portion or all of the Service on any grounds, including as a result of electricity outages, system failures or other interruptions; and (ii) ExciteM may, without any liability to you, suspend access to any portion or all of the Service at any time: (a) for planned downtime to allow ExciteM to carry out maintenance or proceed with modifications or improvements to any Service; (b) in the event of any attack on the Service or website or of any other event that ExciteM deems, in its sole discretion, to constitute a risk or threat/danger to the Service, to you or to any of ExciteM’s other customers/clients; or (c) in the event that ExciteM considers that any Service is prohibited by applicable law or should ExciteM otherwise determine that it is necessary or needed to do so for legal or regulatory reasons.
ExciteM shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service suspension.
ExciteM will endeavor to provide you with notices of any Service suspension and resumption in accordance with the provisions contained in Section 17 of the Present Terms. ExciteM shall have no liability for the way in which ExciteM may do so or if ExciteM fails to do so.
10.3.2 ExciteM will make its best efforts to keep any information, provided by you to ExciteM, secure, but cannot guarantee that ExciteM will be successful at doing so. Accordingly, you understand, acknowledge and agree that you bear sole responsibility for adequate security, protection and backup of any of your content including all audio recordings associated with your account. ExciteM strongly encourages you, where available and appropriate, to use encryption technology to protect your content from unauthorized access and to archive your content as often as possible. ExciteM shall have no liability towards you for any unauthorized access or use, corruption, deletion, destruction or loss of any of your content including all audio recordings associated with your account.
11. Service Upgrades.
Users may upgrade the Service monthly plan that they originally chose, in agreement with us, at the time of their registration on the website. However, a user’s Service monthly plan may only be upgraded once per period of thirty (30) days.
12. Term, Termination, Suspension and Cancellation & Their Consequences.
These terms shall come into force once you accept the Present Terms. The Terms shall remain into effect until terminated by you or by ExciteM in accordance with the provisions contained in these Terms.
12.1. Cancellation/Termination by any User.
You may cancel your account or terminate the Service at any time, for any reason or for no reason using our website or by (i) sending a cancellation request to Support from the email address under which you registered with ExciteM, and (ii) including your account username and full name in the cancellation request email. ExciteM will act as quickly as possible upon any such cancellation requests. Should you cancel your account, no refund will be issued to you by us for any minute unused.
12.2. Termination & Suspension by ExciteM.
ExciteM may terminate any user’s account if (i) any such user breaches or violates the Present Terms, (ii) ExciteM reasonably considers that any such user is using the Service in a way that may harm the rights, interests, reputation or properties of ExciteM or of any third party, or (iii) you use the Service for any illegal, unauthorized or unlawful purposes.
ExciteM may suspend any user’s right to use the Service (and thus stop providing the Service to any user), on any grounds or for no reason, at its sole discretion at any time by providing any such user with a thirty (30) days' prior notice.
ExciteM shall have no obligation to notify any third party of any suspension, restriction or termination of your account.
12.3. Consequences of Suspension/Cancellation/Termination.
12.3.1. Following the suspension, decided and implemented by ExciteM, of your use of the Service, in whole or in part, on any grounds: (i) fees shall continue to accrue for any Service which is still in use by you, notwithstanding the suspension; (ii) you shall remain liable for all fees, charges and any other obligations you have incurred until the date of suspension resulting from the use of the Service; and (iii) all of your rights resulting from your use of the Service shall be suspended during the suspension period.
12.3.2. Following the termination or cancellation of these Terms on any grounds: (i) you shall remain liable for all fees, charges and any other obligations you have incurred until the date of termination/cancellation resulting from the use of the Service; and (ii) all of the rights granted by ExciteM to you under these Terms will immediately terminate.
12.4. Any expiration/termination/cancellation of these Terms on any grounds shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination/expiration. In particular, Sections 3, 4, 5, 7.1, 12.3, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and any applicable definitions will survive any expiration/termination/cancellation of these terms.
13.1. You shall be responsible for any damages which arise out of your use of the Service. ExciteM shall not be liable for any claim(s) regarding your use of the Service in a manner that infringes upon any third party’s rights or breaches applicable laws and/or regulations, including, but not limited to, claims regarding unsolicited emails, commercial fax or voice messages, and claims arising under the Telephone Consumer Protection Act of 1991, CRTC 2001-193, Federal Communications Commission or Federal Trade Commission regulations. Indeed, ExciteM will not be able to monitor how the Service is being used by any account holder.
13.2. OTHERWISE, MORE GENERALLY, SNOOOZY SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THESE TERMS, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE SNOOOZY PROPERTIES, THE SNOOOZY MARKS, THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, SNOOOZY’S AGGREGATE LIABILITY UNDER THESE TERMS SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICE.
13.3. SNOOOZY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. SNOOOZY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SNOOOZY PROPERTIES.
13.4. THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, AUDIO RECORDINGS, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY SNOOOZY ARE PROVIDED "AS IS."
13.5 SPECIFICALLY, SUBJECT TO SNOOOZY’S COMMERCIALLY REASONABLE EFFORTS AND SO LONG AS YOUR ACCOUNT REMAINS IN GOOD STANDING, DATA GENERATED BY YOUR USE OF THE SERVICE SUCH AS AUDIO RECORDINGS AND CALL LOG ENTRIES WILL REMAIN AVAILABLE FOR AT LEAST SIX (6) MONTHS FROM THE DATE SUCH DATA WAS GENERATED. SNOOOZY SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF DATA OR PROFITS) OR ANY OTHER CONSEQUENCES THAT YOU MAY INCUR WITH RESPECT TO LOSS OF DATA ASSOCIATED WITH YOUR ACCOUNT AND DATA THEREIN.
13.6. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
14.1. You shall indemnify and hold harmless ExciteM and any of its affiliates from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) incurred by ExciteM as a result of any claim (including any claim by any third party), any judgment, or any adjudication against ExciteM related to or arising from, but not limited to (a) audio recordings, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by you to ExciteM, or (b) a claim that ExciteM’s use of the content provided by you infringe the intellectual property rights of a third party. To qualify for such defense and payment, ExciteM shall (i) give you prompt written notice of a claim, and (ii) allow you to control, and fully cooperate with you in the defense and all related negotiations.
14.2. You hereby agree to indemnify and hold harmless ExciteM for any claims, liabilities, damages, or causes of action, known or unknown, accruing from any source including any third party as the result of ExciteM’s activities, actions, or omissions under these Terms. You also agree to indemnify and hold harmless ExciteM for all legal or other expenses reasonably incurred by ExciteM including reasonable attorney’s fees and costs in defending any actions, whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any action, or asserted or alleged failure or negligence of ExciteM to comply with the various federal and state laws when implementing the Present Terms and/or when providing the Service to you.
15. Intellectual Property Ownership.
15.1. ExciteM reserves all right(s), title(s) and interest(s) in and to: (a) the Service; (b) the ExciteM properties (including all intellectual property and proprietary rights, all ExciteM marks and all ExciteM technology and software provided or used by us to provide the Service to you). You shall under no circumstances, in compliance with these Terms or otherwise, acquire any ownership interest(s) or right(s) in the Service, the ExciteM properties, the ExciteM marks, or such other technology and software, except for the limited use and access rights granted to you by ExciteM under these Terms.
16. Dispute Resolution & Governing Law.
16.1. If a dispute arises between you and ExciteM, ExciteM’s goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and ExciteM agree that ExciteM will resolve any claim or controversy at law or equity that arises out of these Terms or out of the Service in accordance with the present section 16. In case of such claim or controversy arising out of these Terms or out of the Service, ExciteM strongly encourages you to first contact ExciteM directly to seek an amicable resolution. ExciteM will consider reasonable requests to resolve such dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. In case of litigation between ExciteM and you, you irrevocably submit to the non exclusive jurisdiction of the courts of the State of California, USA.
16.2. The Present Terms shall be governed by and interpreted in accordance with the laws of the State of California, USA.
17.1. ExciteM may provide you with notices (including those regarding changes to these Term or notices of breach and/or suspension) through a notification message displayed on your account page or by email to the email address provided by you to us at the time of your registration for the Service.
17.2. Please contact us with any questions or comments about these Terms at firstname.lastname@example.org.
18. Force Majeure. ExciteM shall not be liable for any default, delay or failure in performing any of its obligations under these Terms if such default, delay or failure is caused by circumstances beyond ExciteM’s reasonable control.
19. Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
20. Waiver of Rights. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. ExciteM’s failure to exercise or enforce any right or provision contained in these Terms will not constitute a waiver of such right or provision.
21. Successors & Assigns. These Terms shall be binding upon, and inure to the benefit of ExciteM and the users as well as their respective successors and assigns.
22. Entire Agreement. These Terms constitutes the entire agreement between you and us with respect to the use of the website and the Service and supersedes any and all prior or contemporaneous agreements, proposals and communications, written or oral between ExciteM and you.