Terms of Service

Effective: July 3, 2025

These Terms of Use (this “Agreement”) governs your (“you” or “Client”) use of (a) this website and any branded websites that link to these terms, if any (each, a "Website "), the services and resources enabled therein (each, a " Service" and collectively, the " Services"), and the Company’s proprietary software application (the "Software" together with the Website, Services, Documentation (as defined below) and Products (as defined below), the "Software Properties") and (b) any sticker packages, custom printed materials or other products (collectively, the “Products” and together with the Software Properties, the “Properties”), which are provided to you by spokenote, Inc., a Delaware corporation (the “ Company”).

PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE WEBSITE, SERVICES OR PRODUCTS, CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING THE SOFTWARE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THIS AGREEMENT. THE TERM "YOU" REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE PROPERTIES.

SECTION 12 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND COMPANY HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 12 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, EXCEPT AS SET FORTH IN SECTION 12(N); AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS AGREEMENT, THE POSSIBLE EFFECTS OF THE ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

THIS AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Properties at any time, effective upon posting of an updated version of this Agreement through the Services or on the Website. You should regularly review this Agreement, as your continued use of the Properties after any such changes constitutes your agreement to such changes. Notwithstanding any provision in the Agreement to the contrary, the Company agrees that if it makes any future material changes to the Arbitration Agreement in Section 12, it will not apply to any individual claim(s) that you had already provided notice of to the Company.

1. Services; Use of the Services

1. Services. During the Term (as defined below) of this Agreement, the Company will provide you access to the Software Properties, which will include (i) a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable license to use the Software Properties and (ii) as applicable and as available, user manuals and other materials, including updates thereto, made generally available by the Company to its clients regarding the Software Properties (the “Documentation”).
2. Updates. You understand that the Software Properties are evolving. As a result, the Company may require you to accept updates to the Software Properties that you have installed on your computer or mobile device. You acknowledge and agree that the Company reserves the right, in its sole discretion, to modify the Software Properties from time to time, with or without notice. Any future release, update or other addition to the Software Properties shall be subject to this Agreement. You may need to update third-party software from time to time in order to use the Software Properties.
3. Benchmark Data. Notwithstanding anything to the contrary in this Agreement, you authorize and agree that the Company may collect or create Benchmark Data (as defined below) and such Benchmark Data shall be the exclusive property of the Company. The Company shall have the right to retain, copy, reproduce, process, adapt, modify, publish, transmit, display, distribute, or otherwise commercially exploit such Benchmark Data including, for example, curating, transforming, and translating such Benchmark Data. For purposes of this Agreement, “Benchmark Data” means: (i) statistical, system, usage, configuration, log data and other performance data and output regarding your compliance with this Agreement and your usage of the Services; or (ii) statistical, anonymized, or aggregated data that is derived from the User Content in connection with the provision of the Software, in each case which does not identify and cannot be used to identify (either through analysis, processing, reverse engineering and/or otherwise) you and/or any of the your Confidential Information.
4. Limitations on Your Use of Services. The rights granted to you in this Agreement are subject to the following restrictions: (i) taking any action(s) that are patently offensive and promote racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person or group; exploits people in a sexual or violent manner; or contains nudity, violent of offensive subject matter or contains a link to an adult website; (ii) you may not attempt, or authorize, encourage, or support others' attempts, to circumvent, reverse engineer, decrypt, break, decompile, disassemble or otherwise alter or interfere with the Software Properties; (iii) you may not transmit “junk mail”, “chain letters” or “unsolicited mass mailing”, “instant messaging”, “phishing”, “spimming” or “spamming”; (iv) you may not modify, copy, alter, duplicate, download, display, transmit distribute, sell, resell, exploit or create derivative works based upon any portion of the Software Properties, or any Products accessible through the Services; (v) you may not promote information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (vi) you shall not use any manual or automated software, devices or other processes, including, without limitation, spiders, robots, scrapers, data mining tools, and the like, to "scape" or download data from any web pages contained in the Website; (vii) you shall not access the Properties to (A) build a competing or similar website, application, service or product or (B) copy any ideas, methods, features, functions, or graphics of the Services, Software, Documentation, or Products; (viii) frame or mirror any content forming part of the Properties; (ix) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit any part of the Software Properties, or otherwise make any part of the Software Properties available to any third party; (x) circumvent or disable any security or other technological features or measures of the Software; or (xi) except as expressly stated herein, no part of the Software Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any unauthorized use of the Software Properties terminates the licenses granted by the Company hereunder. Further, Client agrees not to use the Services to participate in: (1) criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or violation of the privacy or publicity rights of third parties and (2) advertising to, or solicitation of, any person or entity to buy or sell any products or services through the Services. It is also a violation of this Agreement to use any information obtained from the Services to contact, advertise to, solicit, or sell to any clients without their prior explicit consent.
5. Prohibited Uses.  You agree not to attempt to impersonate another person or entity, and you understand and acknowledge that you have no expectation of privacy with regard to any User Generated Content. The Company cannot guarantee the security of any information that you disclose and you make such disclosures at your own risk. Also, you should be skeptical about information provided by others, and you acknowledge that the use of any User Generated Content in or through the Services is at your sole risk. If you become aware of any misuse of the Services by any person, please contact the Company at info@spokenote.com. The Company reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you. Additionally, the Company may review your use of Services, Software, Products and/or Documentation and determine in the Company’s sole discretion whether the manner in which you are using Services, Software, Products and/or Documentation is prohibited. Upon any determination that a particular use is prohibited, you shall promptly terminate that use within twenty-four (24) hours of receipt of notice from the Company that such use is prohibited (the “Use Cure Period ”). In the event you fail to cure such prohibited use within the Use Cure Period and notwithstanding anything herein to the contrary, the Company shall have the right to terminate this Agreement immediately for cause. For purposes of this Section 1  only, and notwithstanding anything to the contrary in this Agreement, notice shall be deemed to have been given by the Company upon the Company’s receipt of an electronically generated delivery receipt after sending such notice to you via email.
6. Compliance with Privacy Policy. You agree to the terms of the Company Privacy Policy found here, as it may be updated from time to time.

2. Eligibility and Registration

1. Registering Your Account. In order to access certain features of the Software Properties you may be required to become a Registered User. For purposes of these Terms of Service, a "Registered User" is a user who has registered an account on the Website or Software ("Account ").
2. Registration Data. In registering for the Services, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the "Registration Data "); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent and warrant that you are (1) at least eighteen (18) years old (or if you are not eighteen (18) years old, you are emancipated or have the consent of a parent or guardian); (2) of legal age to form a binding contract; (3) you have the authority to enter into this Agreement and perform your obligations hereunder; (4) there are no existing or threatened claims or litigation that would materially impair your ability to perform under this Agreement and (5) not a person barred from using the Software Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Software Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Company immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Software Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Software Properties if you have been previously removed by the Company, or if you have been previously banned from any of the Software Properties.

3. Termination

If you materially breach the terms of this Agreement, Company may suspend your ability to use the Software Properties or may terminate this Agreement effective immediately, with or without notice to you. If you want to terminate this Agreement, you may do so by closing your Account for all Services that you use. Upon termination of this Agreement, your right to use the Services will automatically terminate immediately and you shall pay all fees and charges owed to Company as of the effective date of the termination and the Company shall promptly refund you any prepaid, unearned fees as of the effective date of the termination. The Company will not have any liability whatsoever to you for any suspension or termination of the Services which result from your material breach of this Agreement. All provisions of this Agreement, which by their nature should survive, shall survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers and limitation of liability.

4. Payment and Billing

1. Payment. You agree to pay all fees or charges to your Account (collectively, “Fees”) in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Company with a valid credit card (Visa, MasterCard, American Express, Discover, or any other issuers accepted by us), automatic debit or ACH, charge card, gift card or cash card ("Payment Provider "). You acknowledge and agree that for each order you place through the Service, the full cost of Products you order will be assessed against your Payment Provider. You acknowledge and agree that a command originating from your Account constitutes an authorization for the Service to charge the designated amount and you assume all liability for, and shall promptly pay, all such charges. Without limiting the foregoing, you acknowledge and agree that you will pay assessed charges for all orders placed from your Account. The Service will provide you with reasonable notice of any material modification in the fees charged for the services, which notice may be provided by posting the new fee schedule on the Website. You agree to immediately notify the Company of any change in your billing address or the credit card used for payment hereunder.  Notwithstanding anything herein to the contrary, if you do not pay the fees and charges due for your purchases or use of the Services, and such failure to pay has not been cured within fifteen (15) days of the due date, Company may terminate your access to the Software Properties immediately without notice until paid in full, and without liability to you or any other party.
2. No Refunds. All Fees (other than Fees paid in advance for Services not performed hereunder) paid are non-cancellable and non-refundable.
3. Late Fees. If any Fees are not timely paid due to insufficient funds or an expired credit card on file and such non-payment continues for seven (7) days, then without limiting Company’s rights or remedies, the overdue charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
4. Taxes.  Unless otherwise stated in this Agreement, the Company’s fees for the Services do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar government assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases of Services, excluding taxes based on the Company’s net income or property.  If the Company has the legal obligation to pay or collect Taxes for which you are responsible for under this Section 4, the appropriate amount shall be invoiced to and paid by you, unless you provide the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.  The Company will apply Indiana sales tax to any print products fulfilled by the Company. These taxes will be included in your invoice unless a valid tax exemption certificate is provided.

5. Intellectual Property Ownership

 Except for the User Content, you agree that the Company and the Company Entities and their respective suppliers own all rights, title and interest in the Software Properties, including all trademarks, brand names, and logos therein. All such material is protected by relevant intellectual property laws, including copyright, trademark, patent and/or trade secret laws (the “Intellectual Property ”). Such material may not be modified, reproduced, transmitted, sold, offered for sale, publicly displayed, or redistributed in any way without our prior written permission and the prior written permission of any other applicable rights licensor. All trademarks, brands, slogans and other indicia of origin ("Marks") that appear on or in connection with the Services are the property of the Company, the Company Entities and/or its affiliates, licensors and/or licensees. You have no ownership interest in and to the Intellectual Property and you are not authorized to use any such Marks. You shall exercise reasonable care in the use of the Intellectual Property and will be responsible for all loss and/or damage to the Intellectual Property resulting from any of your action or inaction.

6. User-Generated Content

1. User Content. Except as otherwise provided in this Agreement, the Company does not claim any ownership rights in the text, files, images, photos, videos, sounds, musical works, works of authorship or any other materials (“ Content”) that you post or upload to the Software Properties, through the Services and/or through use of the Products (collectively, “User Generated Content”). After posting or uploading User Generated Content to the Software and/or through the Services, you continue to retain all of your ownership rights in such User Generated Content, except as set forth in this Agreement. You are solely responsible for any third party Content in the User Generated Content and for the use of the User Generated Content, including on Company’s Software Properties and through the Services. The Company reserves the right to remove any Content, User Generated Content and/or any other content in Company’s sole and absolute discretion. In addition, the Software Properties may contain Content, under license to Company from one or more third parties, in which you are featured and/or visible or which includes your name, nickname, professional name, image, likeness, other identifications and biographical material (“User Featured Content ” and together, with User Generated Content, “User Content”).
2. Grant of License to Company. You hereby grant Company and its parent, subsidiaries, affiliates, licensees, distributors, agents, independent contractors, representatives and other authorized users (collectively, the “Company Entities”) a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, reproduce, transmit, copy, display, exhibit, publish, index, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with Company’s business and in all forms now known or hereafter invented, including but not limited to entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes (“Uses ”), all without notification to you, with or without attribution, and without the requirement of any permission from or payment to you or any other person or entity (the “Content License ”). You further grant the Company a license to use your username, first name and last initial, and/or other user profile information, including without limitation, to attribute User Content to you in connection with such Uses, without notification or approval by you. You agree that the Content License includes the right for other users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the Content License granted to the Company herein shall survive termination of the Services or your account. The Company reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or any community or content guidelines we may publish or that we consider to be objectionable for any reason. You agree that the Company may monitor and/or delete your User Content (but does not assume the obligation) for any reason at the Company’s sole discretion. Subject to Section 8 below, the Company may also access, read, preserve, and disclose any information as the Company reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process, or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of the Company, its users and the public. You hereby appoint the Company as your agent with full power to enter into and execute any document and/or do any act the Company may consider appropriate to confirm, fully utilize, or enforce the grant of rights, consents, agreements, assignments and waivers set forth in this Agreement.
3. Representations in User Generated Content. You represent and warrant to the Company that: (a) you own the User Generated Content or otherwise have the legal right to post or transmit the User Generated Content in accordance with the terms of this Agreement, and (b) the posting or other transmission of the User Generated Content on or through the Services or Software Properties or otherwise by the Company or the Company Entities does not violate the privacy rights, publicity rights, intellectual property rights (copyrights, patents, trademarks), contract rights or any other rights of any person or entity. To the extent that any of the User Generated Content in the Services features a child of the Client under the age of eighteen (18), the Client is deemed to have consented to the Content License on such child’s behalf and the foregoing representations with regard to such Content, and such child shall also be deemed to be a Client for purposes of this Agreement. If you are under eighteen (18) years of age, you further warrant and represent that you are either an emancipated minor or possess legal parental or guardian consent to enter into this Agreement and use the Services.  You have  no agreement with or obligations to any third party with respect to the rights herein granted which conflict or interfere with or adversely affect any of the provisions of this Agreement or the use or enjoyment by the Company of any of the rights herein granted and you have secured and will maintain all rights necessary for the Company to use and enjoy the rights herein granted. You have not sold, assigned, transferred or conveyed, and will not sell, assign, transfer, or convey, to any party any right, title, or interest in and to the rights herein granted or any part thereof, adverse to or in derogation of the rights herein granted to the Company. To the extent any moral rights, ancillary rights, or similar rights in or to the User Generated Content exist and are not exclusively owned by the Company, you agree not to enforce any such rights as to the Company or the Company Entities, and you shall procure the same agreement not to enforce from any others who may possess such rights. You agree to pay for all royalties, fees, and any other monies owing to any person or entity by reason of any User Generated Content posted by you to or through the Services.
4. Feedback. You agree that any submission of any ideas, suggestions, and/or proposals which do not include, identify and/or cannot be used to identify (either through analysis, processing, reverse engineering and/or otherwise) your and/or your Confidential Information to the Company through its suggestion, feedback, wiki, forum or similar pages (“ Feedback”) is at your own risk and that the Company has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to the Company a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.
5. The Company incurs certain costs and expenses when Content and/or User Generated Content is viewed electronically (“Views ”). As such, the Company, in the Company’s sole and absolute discretion and without notice to you, may establish a limitation on the number of Views per message, video, and/or communication (the “Threshold”). If the Company determines that the Threshold has been met or exceeded, the Company may, in its sole and absolute discretion and without notice or liability to you, restrict, remove, or terminate the Content, User Generated Content, message, video, and/or communication. If you exceed the Threshold after having at least twenty-four (24) hours’ notice of such Threshold, you will be responsible for reimbursing the Company for all costs and expenses incurred by the Company relating to your exceeding such Threshold. You will be deemed to have twenty-four (24) hours’ notice of the Threshold, (a) if the Threshold has been posted in the Services for at least twenty-four (24) consecutive hours, or (b) twenty-four (24) hours after you have been notified of the Threshold pursuant to Section 12 of this Agreement. Additionally, the Company may allow you to exceed the Threshold in the Company’s sole and absolute discretion, upon certain requirements being met by you, and upon written notice to you. Such requirements may include that you must view one or more advertisements prior to exceeding the Threshold.
6. User  Content on Social Media.  You understand and acknowledge that User Content may be shared and/or posted to social media platforms through the Services or otherwise either by you or other people, despite such being adverse to your wishes. You accept and acknowledge the risk of such User Content being shared and/or posted on social media platforms despite the fact that such posting or sharing may be unwanted by you. Additionally, you acknowledge and agree that the Company is not responsible for any monitoring of User Content on social media platforms and the Company bears no responsibility or liability for any such posting or sharing of User Content.
7. User Content Downloaded.  You understand and acknowledge that User Content may be downloaded and disseminated through a variety of different means despite such dissemination being adverse to your wishes. You accept and acknowledge the risk of such User Content being downloaded and disseminated despite the fact that such download and dissemination may be unwanted by you. Additionally, you acknowledge that the Company is not responsible for any monitoring dissemination of User Content and the Company bears no responsibility or liability for such.
8. Company Introduction and Advertisements. The Client understands and acknowledges that the Company or one of its affiliates may place a recorded introduction before the User Content, and such recorded introduction may include any such content, image, photo, video, sound, music, or the like to be determined by the Company in its sole and absolute discretion. Additionally, the Company may place its logo, or any advertisements (both advertisements of the Company and/or any other company) anywhere during and on the User Content, which may include any such content, image, photo, video, sound, music, or the like to be determined by the Company in its sole and absolute discretion. Such actions by the Company in no way affect the ownership rights of the User Content as described in this Agreement.

7. Infringement and Digital Millennium Copyright Act

1. Infringing Content. The Company reserves the right to remove any User Content that is alleged to infringe the copyright of a third party or otherwise violates any third party rights and/or to suspend or terminate your access privileges in the event of repeat infringement by you. If you are a copyright owner or authorized agent and believes that your work has been copied and posted in or through the use of the Services in a way that constitutes copyright infringement, or if you believe that your rights have otherwise been violated by the Services, you may submit a notification pursuant to the Digital Millennium Copyright Act (“ DMCA”) by providing Company’s Copyright Agent (as defined below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail): (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest or the person whose rights have been violated; (ii) a description of the copyrighted work that you claim have been infringed or the particular rights violated; (iii) if applicable, a description of where the material that you claim is infringing is located in or through the use of the Services; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law or with regard to the rights violated; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate.
2. DMCA. The Company’s designated representative to receive notifications of claimed infringement (“Copyright Agent”) is John Wechsler, who may be contacted by email at  info@spokenote.com or by mail at 11671 Lantern Rd #300, Fishers, Indiana 46038. If the Client believes that User Content that was removed (or to which access was disabled) is not infringing, or that the Client has the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and/or use User Content, the Client may send a counter-notice pursuant to the DMCA containing the following information to the Copyright Agent: (i) the Client’s physical or electronic signature; (ii) identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled; (iii) a statement that the Client has a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and (iv) the Client’s name, address, telephone number, and email address, a statement that the Client consents to the jurisdiction of the federal court in Indiana, and a statement that the Client will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, the Company may, in the Company’s sole discretion, send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the User Content provider or the Client, the removed User Content may be replaced, or access to it restored.

8. Confidentiality

1. Confidential Information Defined. For purposes of this Agreement, “Confidential Information ” means all confidential and proprietary information of a party (the “ Disclosing Party”) disclosed to the other party (the “Receiving Party”), including all such information to which the Receiving Party has access through the Disclosing Party, unless such information is designated in writing as non-confidential or is specifically excluded from the definition of Confidential Information as provided herein. Confidential Information shall expressly include, without limitation, the terms of this Agreement (including fees and other terms), provision of Services, the Software, the Documentation, product plans, business and marketing plans, business model, technology and technical information, product designs, business processes and any information about the Disclosing Party’s customers, clients, affiliates, or licensors. Confidential Information shall not  include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
2. Use Restrictions. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the terms herein, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who specifically need to know such information for purposes of providing or receiving the Services and such employees and contractors shall be bound by the restrictions set forth herein. The Receiving Party shall be responsible for any breach of this Agreement by its employees or contractors. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party after such party and the potential purchaser or successor have entered into a customary agreement prohibiting disclosure of Confidential Information.
3. Equitable Relief.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
4. Survival of Obligations. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section 8  shall continue after such expiration or termination until such Confidential Information is no longer confidential in accordance with the terms of this Agreement.
5. No Public Announcements.  Neither party may issue press releases or any other public announcement of any kind relating to the terms herein without the other party’s prior written consent.

9. Disclaimer of Warranties

YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE PROPERTIES IS AT YOUR OWN RISK. THE SOFTWARE PROPERTIES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND GUARANTEES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OF CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. YOU UNDERSTAND AND AGREE THAT ANY PRODUCTS YOU OBTAIN THROUGH USE OF THE SERVICES IS DONE AT YOUR OWN RISK, AND COMPANY MAKES NO WARRANTY REGARDING ANY DEALINGS WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. COMPANY SHALL NOT BE RESPONSIBLE OR HAVE ANY LIABILITY FOR THE PROCUREMENT, INSTALLATION, OR MAINTENANCE OF ANY EQUIPMENT ON WHICH THE SOFTWARE PROPERTIES ARE ACCESSED BY YOU

10. Limitation of Liability

YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANY, ANY COMPANY ENTITIES, ANY THIRD PARTY PROVIDERS OR ANY OF THEIR OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR RELATED TO YOUR USE OF THE SOFTWARE PROPERTIES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS PARAGRAPH REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF COMPANY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO YOUR USE OF THE SOFTWARE PROPERTIES OR PRODUCTS, EXCEED ONE HUNDRED DOLLARS ($100). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.

11. Indemnification

You agree to indemnify, defend and hold harmless Company and the Company Entities and their respective  agents, employees, representatives, licensors, affiliates, officers, members, managers, stockholders and directors, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) resulting or arising from any third-party claim in connection with (a) any information you (or anyone accessing the services using your password) submit or transmit through the Services, (b) your use of or access to the Software Properties, including but not limited to, the installation, operation and use of the Services, Software or Documentation, (c) your violation of this Agreement, (d) your violation or infringement of any rights of any third party, (e) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful or deleterious programming routines input by you into the services; (f) the violation or infringement of any of the Intellectual Property or Confidential Information of Company; or (g) your negligence or willful misconduct.

12. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury

Please read this Arbitration Agreement carefully. It is part of your Agreement with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any product or service provided by Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of Services provided under this Agreement.
2. Notice Requirement and Informal Dispute Resolution . Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute ("Notice") describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Company should be sent to:legal@spokenote.com,  After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
3. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association ("AAA "), an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Indianapolis, Indiana, unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
4. Additional Rules for Non-Appearance Based Arbitration . If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
5. Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
6. Authority of Arbitrator. If arbitration is initiated, the ADR Provider will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The ADR Provider shall have the authority to grant motions dispositive of all or part of any claim. The ADR Provider shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. The ADR Provider shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The ADR Provider has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the ADR Provider is final and binding upon you and the Company.
7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the ADR Provider and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
10. Severability. If any portion of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
11. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with the Company.
13. Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
15. Claims Not Subject To Arbitration.Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this Arbitration Agreement.
16. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Indianapolis, Indiana, for such purpose.
17. Attorneys’ Fees.  If either party resorts to legal action (including arbitration) for the redress of any breach of this Agreement, the prevailing party shall be entitled to an award of all costs and reasonable attorneys’ fees.
18. How to Opt Out of Arbitration Agreement. To opt out of the Arbitration Agreement, you must send an email to opt-out to legal@spokenote.com with the following information: (1) your name and address; (2) your Company username, if you have one; (3) the email address you use to access your Company account, if you have one and (4) a clear statement that you want to opt out of the Arbitration Agreement. You can also mail a signed letter to the Company’s legal department at the address set forth in Section 15. You should keep a copy of the letter and proof that you sent it on time. You have 30 days after accepting this Arbitration Agreement to opt out.

13. Choice of Law

This Agreement is governed by U.S. federal law and/or laws of the state of Indiana, consistent with the Federal Arbitration Act, without resort to conflict of law provisions.

14. Products

1. Coupons.  From time to time, the Company may offer coupons for use in connection with the Client’s purchase of the Products. Only one (1) coupon is permitted per order. Coupons offered by the Company may include a specific dollar or percentage discount off the price of the Products and may be offered or revoked by the Company at any time and without notice. The Company reserves the right to refuse the Client’s use of a coupon if: (a) the Company believes such coupon is being used by an individual other than the intended user, (b) the Company believes such coupon was procured by improper or illegal means, (c) such coupon is not applicable to the Products being purchased, (d) such coupon has expired, (e) such coupon contains an error, or (f) such coupon is otherwise invalid. Some coupons are restricted to use on certain Products or are restricted to one (1) use per account.
2. Orders. Notwithstanding anything in this Agreement to the contrary, the Company reserves the right in the Company’s sole discretion to deny fulfillment of any order of one or more Products at any time and for any reason or no reason, including that the Client failed to make a payment on a previous order, or the Client did not provide sufficient information for the Company to process and fulfill the Client’s order.
3. Order Delivery.  The Products may be shipped to the Client via a carrier (such as USPS). The risk of loss for the ordered Products passes to the Client upon delivery to such carrier.  The Client’s order will be subject to shipping delays, strikes, and other unforeseeable events, which could delay or prevent delivery of the Products. Therefore, timing of the delivery of the Products might be significantly delayed or impaired, and orders may take longer than expected to receive. The Company does not guarantee specific delivery dates for its Products.
4. Exchange Policy and Refunds. In the unfortunate event where the Products arrive damaged, the Client will have ten (10) days from the delivery date of the Products to provide notice to the Company of the damage and to request an exchange of the Products. The Company may require the Client to provide details including photos to verify such damage. An exchange of Products may be granted if the Company, in its sole and absolute discretion, determines that the Client received damaged Products. If the Company grants an exchange of Products, the Client must deliver the damaged Products back to the Company within ten (10) days of the Company’s grant of an exchange. Once the Company receives the damaged Products from Client, the Company will ship replacement Products to the Client within a reasonable time thereafter. The Company will not grant a refund for the Products under any circumstance.

15. Notice

Where the Company requires that you provide an e-mail address, you are responsible for providing the Company with your most current e-mail address. If the last e-mail address you provided to the Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, the Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company only at the following address: spokenote, Inc., 11671 Lantern Rd #300, Fishers, Indiana 46038, Attention: Legal. Such notice shall be deemed given when received by the Company by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.

16. Waiver

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

17. Severability

If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

18. Export Control

You may not use, export, import, or transfer the Software Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Software Properties, and any other applicable laws. In particular, but without limitation, Company’s Software Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Software Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Company Software Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

19. Electronic Communications

The communications between you and the Company use electronic means, whether you visit the Software Properties or send e-mails, or whether the Company posts notices on the Company Software Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

20. Release

You hereby release the Company and each of the Company Entities and each of their respective officers, directors, members, managers, stockholders, employees, and agents and their successors and assigns from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Software Properties, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of this Agreement or your use of the Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”.

21. Assignment

This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

22. Reservation of Rights

The Company hereby expressly reserves any and all rights, licenses, and permissions in and to the Services, the Software, the Documentation and the Products other than those limited rights explicitly provided to you in accordance with the terms herein.

23. Force Majeure

The Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

24. Questions, Complaints or Claims

If you have any questions, complaints or claims with respect to the Software Properties, please contact us at:info@spokenote.com, or at spokenote, Inc., 11671 Lantern Rd #300, Fishers, IN 46038, Attention: Legal. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

25. Consumer Complaints

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

26. Entire Agreement

This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. Notwithstanding anything in the contrary herein, no terms or conditions stated in a Client proposal or in any other Client order documentation that conflicts with this Agreement shall be incorporated into this Agreement.