Welcome to TX Global! We invite you to subscribe and use our service, but please note that your purchase is subject to your agreement with these Terms of Service. This document describes in detail your rights and our rights relating to the provision of the Service (as defined below), so please review these Terms carefully.
What Are the Terms of Service?
What Is the TX Global Service?
The TX Global Service is a content-driven threat monitoring service. The TX Global service, and other products, services and websites hosted or made available by Swan Island Networks under the TX Global Brand which may include, for example, Smart Alerts, visual dashboards, profile/subscription management and help pages, are collectively referred to in these Terms as the “Service”. In exchange for being enabled to use the Service, you agree to abide by these Terms.
If This Is a Contract, Who Are the Parties?
You, the Account Holder, are one party to this contract. (An Account Holder is the person or entity who has contracted with TX Global under one of the service offerings or as a Customer as defined in our TX Global Business Agreement.)
On some occasions, you may be purchasing products or service subscriptions from an authorized reseller. Please review our Business Agreement for information about additional contract terms relating to such purchases.
Is This the Only Contract I Have with TX Global?
It depends upon how you interact with the TX Global service and our software applications and content. If you pay for an TX Global subscription, you will be asked to agree to the business agreement. If unique circumstances demand an agreement outside of our standard documents, we will produce that with the customers needing such. We refer to each of these as a “Separate Agreement.” If that happens, the Separate Agreement shall take precedence if there is a conflict between those terms and this Terms of Service document, to the extent of such conflict and with respect to the particular subject matter of that Separate Agreement.
Will These Terms of Service Ever Change?
These Terms may be amended as new features, technology, or legal requirements arise, so please check back from time to time. If we make a significant change, we’ll notify you and, where required, seek your consent. If we do update these Terms, you are free to decide whether to accept the updated terms or to stop using our Service (see “How is My Account Closed” below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement expressly amending these Terms and bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
What Do I Have to do to Use the TX Global Service?
First, you need to create an TX Global service account. You create an account by providing us with an email address and creating a password. We refer to this as your “Basic Subscriber Information”. We encourage you to use a distinct and non-obvious password that is different from passwords you use for any other service. You are responsible for maintaining the accuracy, completeness and confidentiality of your Basic Subscriber Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Basic Subscriber Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Basic Subscriber Information secure. If you discover any unauthorized use of your Basic Subscriber Information or suspect that anyone may be able to access your private informaton without authorization, you should immediately change your password and notify our Customer Support team.
Second, you will need to access your account through a web browser. Obtaining web-browsing devices and paying for their connectivity and data plans is your responsibility. TX Global also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
Can I Share My Account with Someone Else?
TX Global service accounts may not be shared. If you share your Basic Subscriber Information with anyone, that other person may be able to take control of the account, and we may not be able to determine who is the proper Account Holder. We will not have any liability to you (or anyone you share your Basic Subscriber Information with) as a result of your or their actions under those circumstances. You can share alert information from the Smart Alert Queue with others in your organization.
Once I Have an Account, What Are My Rights in the TX Global Service?
Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the TX Global Software provided to you by or on behalf of TX Global, for the sole purpose of enabling you to use the TX Global Software and enjoy the benefit of the Service, subject to any applicable license terms provided with the TX Global Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in TX Global or the Service.
What Other Assurances Do I Have to Grant to TX Global?
When you use the TX Global service to send messages to an email address, to a telephone number via SMS, or other methods that has not been linked to an TX Global account, TX Global sends such messages on your behalf, and we are relying on your representation to us that you have a direct relationship with the recipient(s) and that you are respecting the legal rights of the recipient(s) not to receive certain kinds of messages (such as harassing messages, unsolicited commercial messages, and unwanted SMS messages). Whenever you send any kind of message to a third party you represent and warrant to TX Global that you are acting within the law and that you have prior consent from the recipient to send them such a message. You are only authorized to share alert information with others in your organization.
Are There Rules about What I Can Do on the TX Global Service?
Yes. Your use of the Service must be in accordance with these Terms. When it comes to your use of the Service, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third-party application or services integrated with the TX Global service. Our User Guidelines provide more specific details regarding prohibited conduct on the Service. If we find that any Content in your account violates our Terms of Service (including by violating another person’s intellectual property or privacy rights), we reserve the right to un-share or take down such content and terminate your account for cause.
Does TX Global Have Rights Relating to the Service?
Yes. They’re described here:
While you control Content like your geospatial assets and alert preferences you store within the TX Global service (subject to third party rights), you acknowledge and agree that TX Global (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software that is part of the Service and all TX Global software deployed by you or a third party to enable capturing of Content originating outside the Service, or any TX Global software applications for compatible computing devices that enable access and use of the Service through such device (the “TX Global Software”).
INTELLECTUAL PROPERTY RIGHTS.
In agreeing to these Terms, you also agree that the rights in the Service and TX Global Software, including all intellectual property rights, such as trademarks, patents, designs and copyrights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any TX Global Software, unless you are expressly permitted to do so under an open source license, we give you express written permission or you are otherwise legally permitted to do so notwithstanding this prohibition.
RIGHT TO MODIFY THE SERVICE.
We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service, including changes that may affect the previous mode of operation of the Service or TX Global Software. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions, the ability to send or receive email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. For example, each tier of the service has different levels of users, geospatial asset loading, and user licenses.
You also acknowledge that a variety of TX Global actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that TX Global has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you are a subscriber for any TX Global paid version of the Service (each a “Paid Service”) and find that any such modifications or interruption of the Paid Service adversely affects you, you may notify our Customer Support team, explain the adverse impact the modification has created and, if you desire, request a termination of your Paid Service. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your Paid Service subscription for a period of time equal to the interruption and/or refund a portion of your Paid Service subscription fee equal to the remaining unused term of the Paid Service subscription, as we determine appropriate or as may be required by applicable law.
RIGHT TO ENGAGE THIRD PARTIES.
RIGHT TO USE THIRD-PARTY SOFTWARE.
TX Global may from time to time include as part of the Service and TX Global Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties.. TX Global expressly disclaims any warranty or other assurance to you regarding such third party software.
RIGHT TO UPDATE OUR SOFTWARE.
In connection with any modification of the Service, TX Global may automatically activate updates to the service from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. In all cases, you agree to permit TX Global to deliver these updates to you (and you to receive them) as part of your use of the Service.
Where Does My Data Go?
How is My Account Closed?
You may deactivate your account with our Service at any time, for any reason (or no reason). If you subscribe to a Paid Service, you will need to cancel your subscription pursuant to our Commercial Terms and refund policy.
TX Global may act to temporarily limit your use of the Service, suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for TX Global suspending or closing your account may include, without limitation: (i) breach or violation of these Terms (including the User Guidelines) or any Separate Agreement, (ii) an extended period of inactivity (determined in TX Global’s sole discretion), (iii) your nonpayment of any fees or other sums due TX Global or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (v) unexpected technical or security issues or problems or extensive unsupported Use.
In most cases, in the event we elect to close your account, we will provide at least 10 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on the Service servers (unless we determine that we are legally prohibited from providing such notice or enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.
If I Have a Great Idea to Share with TX Global, What Are My Rights?
When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to TX Global through the “Feedback” or Support interfaces or through any other channel or mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) TX Global is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) TX Global shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) TX Global may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of TX Global without any obligation of TX Global to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from TX Global under any circumstances.
If TX Global Has to Send Me Notice of Something, How Will That Happen?
This is another reason why it’s important for you to make sure your Basic Subscriber Information is accurate, complete and up to date. We may provide you with notices by email (to the email address associated with your account), regular mail or postings on the website(s) related to the affected Service.
How Can I Send a Notice to TX Global?
Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to TX Global must be delivered by email to email@example.com. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Service provider):
Swan Island Networks
6420 S Macadam Ave. Suite 204 Portland, OR 97239
Attention: Legal Notice
Or email firstname.lastname@example.org
What Else Do I Need to Know?
THIRD-PARTY LINKS, CONTENT AND PROGRAMMING.
We may include or recommend third party resources, materials and developers and/or links to third party websites, content and applications as part of, or in connection with, the Service. We may have little or no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites, content or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.
You agree to indemnify and hold TX Global, its subsidiaries, affiliates, officers, agents, employees, advertisers, Service Providers and other partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will endeavor to provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.
To the maximum extent permitted by law, the Service Is Available “As Is.”
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE AND THE PURCHASE AND USE OF ANY SERVICES ARE ALL AT YOUR SOLE RISK.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TX GLOBAL EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
TX GLOBAL DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TX GLOBAL OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TX GLOBAL, ITS SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF TX GLOBAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE OR TO USE PROMOTIONAL CODES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE, OR PROVIDING ANY SERVICES RELATED TO THE OPERATION OF THE SERVICE; (v) TX GLOBAL’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR BASIC SUBSCRIBER INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED OR OTHER THIRD-PARTY PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.
EXCLUSIONS AND LIMITATIONS.
NOTHING IN THESE TERMS OF SERVICE (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
What Law Applies to My Use of TX Global?
The relationship between you and TX Global (including any dispute) shall be governed in all respects by the laws of the State of Oregon, United States of America. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
What Do I Do If I Think I Have a Claim Against TX Global?
LET US KNOW ABOUT YOUR COMPLAINT.
We want to know if you have a problem so we encourage you to contact our customer support team if you have any concerns with respect to the operation of the Service or any TX Global Software, as we want to ensure that you have an excellent experience.
INITIATING A FORMAL CLAIM.
If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved by the processes set forth in these Terms. TX Global provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against TX Global in any other manner, you shall be in violation of these Terms and you agree that TX Global shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse TX Global for its reasonable costs incurred in defending against such improperly initiated claim. You agree that prior to initiating any formal proceedings against TX Global, you will send us a notice to our attorneys at email@example.com and state that you are providing a “Notice of Dispute.” Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms.
Except where our dispute is being resolved pursuant to an arbitration (as provided below), you agree that any claim or dispute you may have against TX Global must be resolved exclusively by a state or federal court located in Portland, Oregon. You agree to submit to the exclusive personal jurisdiction of the courts located within Portland, Oregon (and, for the avoidance of doubt, to exclude the jurisdiction of any other court) for the purpose of litigating all such claims or disputes.
ALTERNATIVE DISPUTE RESOLUTION PROCESS.
Unless you are subject to the Arbitration Agreement set out below, and subject to any applicable laws, if a claim arises between you and TX Global where the total value of such claim is less than US$10,000, the party initiating the claim may elect to have the dispute resolved pursuant to a binding arbitration process that does not require attendance in person. This “Alternative Dispute Resolution Process” shall be initiated by either party sending notice to the other, in which event you and TX Global agree to use our reasonable efforts to agree within thirty (30) days upon an individual or service to manage the Alternative Dispute Resolution Process (the “Arbitration Manager”) according to the following requirements: (i) neither party shall be required to attend any proceeding in person, (ii) the proceeding will be conducted via written submissions, telephone or online communications or as otherwise agreed upon, (iii) the fees for the Arbitration Manager will be borne equally by the parties or be submitted to the Arbitration Manager to determine as part of the dispute and (iv) the judgment rendered by the Arbitration Manager may be entered in any court of competent jurisdiction for enforcement.
If you reside in the United States or are otherwise subject to the US Federal Arbitration Act, you and TX Global agree that any and all disputes or claims that have arisen or may arise between us - except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights - shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Our arbitration proceedings would be conducted by the American Arbitration Association ("AAA") under its rules and procedures applicable at that time, including the AAA's Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA's website. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Oregon, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different TX Global users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.
The AAA rules will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is US$10,000 or less, TX Global will pay all filing, administration and arbitrator fees associated with the arbitration, so long as (i) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration and (ii) your claim is not determined by the arbitrator to be frivolous. In such case, we will make arrangements to pay all necessary fees directly to the AAA. If the amount of the claim exceeds US$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, TX Global will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse TX Global for all fees associated with the arbitration paid by TX Global on your behalf, which you otherwise would be obligated to pay under the AAA's rules.
YOU AND TX GLOBAL AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER TX GLOBAL USERS.
Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then this entire Arbitration Agreement shall be null and void. The remainder of these Terms and this Section (What Do I Do if I think I Have A Claim Against TX Global?) will continue to apply.
CLAIMS ARE TIME-BARRED.
You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
The provisions of this section, entitled “Claims Are Time-Barred” shall be deemed to constitute a separate written legally binding agreement by and between you and us.
A couple of final, but important, points. First, these Terms constitute the entire agreement between you and TX Global and govern your use of the Service, except for, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and TX Global for the use of the Service as of the Effective Date indicated at the top of these Terms. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that each affiliate of TX Global shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.
TX Global Business Agreement
This TX Global Business Agreement (this "Agreement") governs use of the TX Global Alerting service (the "TX Global Alerting Service" or "TX Global" or “TXG”) by the entity agreeing to these terms ("Customer"). The TX Global Alerting Service as defined in our Terms of Service, designed for businesses and other organizations. Customer is one party to this Agreement. The other party to this Agreement is Swan Island Networks, an Oregon corporation headquartered in Portland, Oregon, USA.
An individual (“you”) is required to accept this Agreement on behalf of the Customer as a condition to creating an TX Global Account (Customer’s Account). The Agreement is effective as of the date TX Global enables your account for use and you satisfy the payment requirements associated with purchase (the "Effective Date"). By accepting this Agreement, you confirm that you have reviewed the Agreement on behalf of Customer and you are warranting to Swan Island Networks that you are authorized to accept and make this Agreement legally binding on behalf of Customer.
1. Use of TX Global Alerting Service
After successfully completing the account creation process and confirming acceptance of this Agreement, TX Global will enable Customer (“Account Owner”) to access an Onboarding process, which will include an interface ("Account Configuration"). Customer can perform a number of administrative functions relating to Customer's TX Global Business Account (“Customer’s Account”) through the Onboarding process. These functions include but are not limited to, granting, suspending, or terminating End User access to Customer’s Account, adding geolocation assets, and configuring alert feeds for receipt to your email and/or text messages.
Customer acknowledges that providing an End User access to its Customer’s Account provides that End User with authority to access and participate in Customer’s Account. (“Content” means the alert, preferences, geospatial assets and other data that has been put into, uploaded to, or stored in the TX Global service.) Customer also acknowledges that while an End User’s access to Customer’s Account has been granted by the Account Owner, that End User may utilize TX Global within the Customer’s agreement and terms.
Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written statements made by TX Global regarding future functionality or features.
2. Customer's Account Management Obligations:
The Account Owner is responsible for (a) payment of all fees relating to Customer’s Account (“Fees”); (b) administering all End Users' access to Customer’s Account and its Configuration; (c) maintaining the confidentiality of the passwords; (d) maintaining accurate and current account and contact information for each Administrator and user Account; and (e) ensuring that any and all use of each Administrator and user Accounts complies with this Agreement and applicable laws. Customer may grant administrative privileges to multiple Customer personnel (each, an "Administrator") and shall be solely responsible for ensuring that it has designated necessary and appropriate individuals as Administrators and for removing administrative privileges from individuals who no longer require administrative privileges. CUSTOMER ACKNOWLEDGES THAT IF NO ACCOUNT ADMINISTRATOR(S) IS/ARE ABLE OR WILLING TO FULFILL SUCH FUNCTION, AND/OR CUSTOMER OTHERWISE FAILS TO MAINTAIN CONTROL OF THE ADMINISTRATOR ACCOUNT(S), CUSTOMER MAY BE UNABLE TO ACCESS OR CONTROL ITS BUSINESS ACCOUNT; IN SUCH EVENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ALL RESULTING LOSSES, COSTS AND EXPENSES. (See “Administrator Account Recovery” below for additional information.)
Customer acknowledges and agrees that prior to an End User using the TX Global Alerting Service, TX Global will require each End User to accept our End User License Agreement incorporating TX Global's Terms of Service, privacy and other documents and such Terms of Service and other documents will govern each End User's use of TX Global. Customer acknowledges that a violation of the Terms of Service by an End User may result in the termination of such End User's access to Customer’s Account or termination of Customer's Account. Customer shall not make any representation, warranty or guaranty for or on behalf of TX Global, or otherwise obligate TX Global in any manner, to any End User.
Customer will not, and will ensure that End Users or third parties do not: (a) offer for sale or lease, sell, resell or lease access to the TX Global service through Customer’s Account; (b) attempt to reverse engineer the TX Global service or any software or other component used therein; (c) use the TX Global Alerting Service in a manner or under circumstances where use or failure of the TX Global Alerting Service could lead to death, personal injury or environmental damage; or (d) use the TX Global Alerting Service in a manner that would violate applicable laws protecting an individual's privacy rights, health or financial data, including the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act and its implementing regulations, the Privacy Rule and the Safeguards Rule or the Dodd-Frank Wall Street Reform and Consumer Protection Act, including the regulations issued thereunder, and as each may be amended from time to time; or (e) attempt to create a substitute or similar service through use of, or access to, the TX Global Service.. (f) allow shared access to multiple people through password sharing or a common account.
Customer will be required to select its method of payment when Customer sets up its TX Global Business Account. Administrators and Billing Contacts of TX Global Business accounts may change payment information for TX Global Business Accounts by contacting TX Global Customer Support or using the automated tools in the Billing/Plan tab. Billing Contacts will need to contact Customer Support and demonstrate to TX Global’s satisfaction control of the payment method last used for Customer’s TX Global Business Account to make any changes.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER AND ITS END USERS MAY LOSE ACCESS TO ALL CUSTOMER ACCOUNT CONTENT IN THE TX GLOBAL SERVICE IN THE EVENT THAT CUSTOMER FAILS TO PROVIDE TIMELY PAYMENT. Such access will be restored upon receipt of full payment.
All payments under this Agreement are subject to the Commercial Terms.
Customer is responsible for any taxes, including, without limitation, sales, use, excise, added value, withholding and similar taxes, as well as all customs, duties or governmental impositions, excluding only taxes on TX Global's net income (collectively, "Taxes"), and Customer will pay TX Global all Fees due hereunder without any reduction for Taxes. If TX Global is obligated to collect or pay Taxes, TX Global will invoice Customer for the Taxes unless Customer provides TX Global with a valid tax exemption certificate, VAT number issued by the appropriate taxing authority and/or other documentation providing evidence that no tax should be charged. If Customer is required by law to withhold any Taxes from its payments to TX Global, Customer must provide TX Global with an official tax receipt or other appropriate documentation to support such payments.
6. Support and Maintenance
TX Global will provide business support to Customer’s Administrator and End Users. Customer will, at its own expense, be responsible for providing support to its End Users regarding issues that are particular to their End Users' access of Customer’s Account (e.g., resetting passwords, suspending accounts, sharing Content, etc.). Customer will use commercially reasonable efforts to resolve any such support issues before escalating them to TX Global.
7. Data Security
TX Global has implemented certain technical and organizational measures designed to prevent accidental loss of and unauthorized access to and use of Content stored in TX Global. However, TX Global does not guarantee that unauthorized third parties will be unable to obtain access to the TX Global Service and Customer acknowledges that all Content stored by Customer and its End Users in TX Global Service is done so at Customer's and its End Users' own risk. In addition, Customer is responsible for ensuring that it has backed up its Content in the event of any loss of Content stored in TX Global Service. In the event TX Global becomes aware that a third party has accessed without authorization Customer's TX Global Business account or has obtained without authorization the credentials of an Administrator(s) for Customer’s TX Global Service account, TX Global shall provide prompt notice to Customer’s Administrator(s) of such unauthorized access.
10. Reservation of Rights
Except as expressly set forth herein and in the Terms of Service, this Agreement does not grant either party any rights, implied or otherwise, to the other's intellectual property. No title to or ownership of or other right in or to TX Global Service or software provided by TX Global to access TX Global Service ("TX Global Software") is transferred to Customer under this Agreement.
TX Global may include Customer's company name in a list of TX Global's Customers online and in print and electronic marketing materials.
12. Warranty to Contract
Each party represents and warrants to the other that it has the requisite power and authority under its organizational charter and governing agreements (if any) to enter into this Agreement and perform in accordance with the terms herein. Customer further represents and warrants that the individual who completes the TX Global Service registration process and accepts this Agreement through the Payment and Onboarding UI is authorized to do so on Customer's behalf.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN SECTION 15 AND THE TERMS OF SERVICE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. TX GLOBAL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT OF THE LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY HERETO, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, TX GLOBAL DOES NOT WARRANT THAT THE TX GLOBAL SOFTWARE OR TX GLOBAL ALERTING SERVICE WILL MEET ALL REQUIREMENTS OF CUSTOMER OR ANY END USER, OR THAT THE OPERATION OF THE TX GLOBAL SOFTWARE OR TX GLOBAL ALERTING SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE TX GLOBAL SOFTWARE AND TX GLOBAL ALERTING SERVICE WILL BE CORRECTED. FURTHER, TX GLOBAL IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM THE MODIFICATION, MISUSE OR DAMAGE OF ANY OF THE TX GLOBAL SOFTWARE NOT DELIVERED BY TX GLOBAL. TX GLOBAL DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO THIRD PARTY INFORMATION, SOCIAL MEDIA POSTS, SOFTWARE OR OTHER NON - TX GLOBAL PRODUCTS AND CONTENT. TX GLOBAL MAKES NO WARRANTY ABOUT INFORMATION DELIVERED THROUGH ITS INTERFACES, CUSTOMER AGREES TO UTILIZE AT THEIR OWN RISK.
14. Indemnification by Customer
To the maximum extent permitted by applicable law, Customer agrees to indemnify and hold TX Global, its subsidiaries, affiliates, officers, agents, employees, and partners harmless from and against any and all liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to (i) any Loss of Administration or (ii) claims (a) made by End Users; or (b) made by any third party relating to Customer's use of and Customer's End Users' use of any of the TX Global Services in violation of this Agreement, the Terms of Service or applicable laws. In the event of such claim, we will provide notice of the claim, suit or action to Customer using the contact information we have for the account, provided that any failure to deliver such notice to Customer shall not eliminate or reduce Customer's indemnification obligation hereunder, except to the extent Customer can establish that it was prejudiced by such failure.
15. Limitation of Liability
EXCEPT WITH RESPECT TO (A) CUSTOMER'S BREACH OF SECTION 2 OR 4 AND (B) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 17, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT OR IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS TERMINATION OR NON-RENEWAL AND (II) EACH PARTY'S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO TX GLOBAL UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE INITIATION OF ANY CLAIM FOR DAMAGES.
Unless TX Global and Customer mutually agree otherwise in a separate written addendum to this Agreement, this Agreement shall be effective upon the Effective Date and shall remain in effect until the end of the subscription period specified in the Payment and Onboarding process (the "Subscription Period"), unless and until terminated in accordance with the provisions of Section 20.
At the end of the initial Subscription Period, the Subscription Period will automatically renew for an additional Subscription Period, except as set forth below. Customer will pay TX Global the then-current Fees due for the Subscription Period. At any time prior to the end of the initial Subscription Period or any subsequent Subscription Period, Customer may cancel its TX Global Service subscription or reduce the number of End Users with access to Customer’s Account though the Admin Console, which cancellation or reduction shall be effective as of the end of the then-current Subscription Period for the immediately following Subscription Period.
17. Termination and Refunds
Customer may terminate this Agreement at any time by deactivating its TX Global Service Account or notifying Swan Island Networks. In the event of Customer’s termination, full or partial refunds may be available pursuant to our Refund Policy. In addition, we reserve the right to issue refunds or credits at our sole discretion, or as required by applicable law. If we issue a refund or credit in one instance, we are under no obligation to issue the same refund or credit in the future.
TX Global may terminate this Agreement by providing sixty (60) days written notice to Customer and will refund the prorated portion of any prepaid Fees applicable to the period after the effective date of termination.
In addition, either party may terminate this Agreement in the event the other party commits any breach or default of the material terms of this Agreement, and fails to remedy such breach or default within thirty (30) days after written notice of such breach or default from the non-breaching or non-defaulting party. Notwithstanding the foregoing, (i) either party may terminate this Agreement immediately in the event of a material breach by the other party of its obligations under Section 11 and (ii) TX Global may terminate this Agreement immediately in the event of a material breach by Customer of its obligations under Sections 2 or 4. If Customer terminates this Agreement for breach by TX Global, Customer's sole and exclusive remedy and the entire liability of TX Global for such breach will be a refund of fees paid by Customer to TX Global under this Agreement.
If Customer: (i) becomes insolvent; (ii) voluntarily files or has filed against it a petition under applicable bankruptcy or insolvency laws which Customer fails to have discharged or terminated within thirty (30) days after filing; (iii) proposes any dissolution, composition or financial reorganization with creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to all or substantially all assets or business of Customer; or (iv) Customer makes a general assignment for the benefit of creditors, TX Global may immediately terminate this Agreement by giving a termination notice.
Termination of this Agreement shall, as of the effective date of such termination, terminate Customer's and its End Users' access to Customer’s Account and all other rights granted to Customer hereunder; provided, however, that any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination.
18. General Terms
b. Notices. Any notice required or permitted to be given hereunder shall be given in writing by personal delivery, by e-mail or by world-recognized courier delivery as follows:
If to Customer: At the email address(es) for the then current Administrator(s) for the account.
The date upon which such notice is delivered shall be deemed to be the date of such notice, irrespective of the date appearing thereon. A party, through the Admin Console (if Customer) or upon written notice to Customer (if TX Global), may change the addresses, individuals and/or titles to which notices shall be sent.
c. Governing Law. This Agreement shall be governed by and construed as an instrument under seal in accordance with the laws of the State of Oregon (U.S.A.) governing contracts executed and to be performed therein, but without regard to any choice of law provisions.
If Customer is a government or an agency or other unit of government located in the United States (a "US Government Customer") and the law establishing or otherwise governing such Customer expressly requires Customer to enter into contracts under a particular law and/or prohibits any choice of law provision imposing any law other than the law under which Customer is authorized to act (the "Mandatory Law"), then the preceding paragraph shall not apply with respect to the US Government Customer's use of the TX Global Alerting Service while performing in its official government capacity.
If the Mandatory Law applicable to any US Government Customer prohibits such Customer from agreeing to the Arbitration Agreement in the Terms of Service, then the Arbitration Agreement shall not apply to the extent of such prohibition and with respect to use of the TX Global Alerting Service in its official government capacity.
d. Agreement, Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be enforceable by each of the parties and their permitted successors and assigns. Except as set forth in the immediately following sentences, neither party shall assign this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement, without the other party's prior written consent. This Agreement shall inure to the benefit of, and be binding upon, any legal successor to all or substantially all of the business and assets of either party, where such succession occurs in connection with a merger, sale of assets, corporate restructuring or otherwise by operation of law; and TX Global reserves the right to assign this Agreement to any TX Global affiliate or successor. If Customer desires to request TX Global to consent to an assignment of this Agreement, Customer shall send a formal request for consent by notice to TX Global, and should send a message to TX Global through the Admin Console setting forth details concerning the requested assignment. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective. Customer shall ensure that it provides the then-current passwords for the Administrator Account to any successor or assignee under this Agreement as, notwithstanding any such assignment, TX Global shall not provide any passwords to Customer's Administrator Account to any party.
e. No Relationship. No agency, partnership, joint venture or employment is created between the parties as a result of this Agreement. Except as specifically provided herein, neither party is authorized to create any obligation, express or implied, on behalf of the other party, nor to exercise any control over the other party's methods of operation.
f. Force Majeure. If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.
h. Waiver and Amendment. Swan Island Networks, in its sole discretion, may amend this Agreement at any time, and in such case, Swan Island Networks will publish a new version of the Agreement ("Amended Agreement") on the TX Global Service website with a description of the changes made. In addition, TX Global will provide Customer with advance notice of any material change to the Agreement. Customer's continued use of TX Global Service after the effectiveness of any update will be deemed to represent Customer's consent to be bound by, and agreement with, the terms of the Amended Agreement. If the Amended Agreement includes any material adverse changes to Customer's rights or obligations and Customer does not wish to continue using TX Global Service under the terms of the Amended Agreement, Customer may terminate the Agreement by providing TX Global written notice within thirty (30) days of being notified of the availability of the Amended Agreement. In the event of such termination, our Refund Policy will apply. Otherwise, no waiver, amendment or modification of any provision of this Agreement, and no variance from or addition to the terms and conditions of this Agreement in any purchase order or other written notification, shall be effective unless in writing and agreed to by the parties hereto. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of such right, power or remedy. No waiver of any term, condition or default of this Agreement shall be construed as a waiver of any other term, condition or default. This Agreement will not be supplemented or modified by any course of dealing or usage of trade.