Legal

Privacy Policy

Revised June 2013

Thank you for using the Waterfall International Inc. (“Waterfall”, “our”, “us” or “we”) website located at www.waterfall.com (the “Website”) and our services. Please do not use our Website or any of our services until after you carefully review and accept all terms and conditions in this Privacy Policy (the “Policy”), as well as the Waterfall Terms of Service (the “Terms of Service”). This Policy is part of, and is subject to, the Terms of Service; any capitalized terms not defined in this Policy have the meaning identified in the Terms of Service. Waterfall and you may be referred to in this Policy individually as a “party” and collectively as “parties.”

BY ACCESSING OR USING THE WATERFALL WEBSITE OR SERVICES, OR BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER FORM THAT MENTIONS THE WATERFALL TERMS OF SERVICE, YOU AGREE TO THIS POLICY. IF YOU ARE ACCESSING OR USING OUR WEBSITE OR SERVICES AS AN AGENT OR EMPLOYEE OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND, AND ARE BINDING, THAT LEGAL ENTITY TO THIS POLICY (IN WHICH CASE “YOU” AND “YOUR” REFER TO THAT LEGAL ENTITY). IF YOU DO NOT HAVE THAT AUTHORITY, OR IF YOU DO NOT (OR LACK THE LEGAL CAPACITY TO) AGREE TO ALL OF THIS POLICY AND THE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE OUR WEBSITE OR SERVICES.

WATERFALL RESERVES THE RIGHT TO MODIFY THIS POLICY, AND THE TERMS OF SERVICE, AND OUR OTHER POLICIES AND SERVICES AT ANY TIME. SUCH MODIFICATIONS WILL TAKE EFFECT WHEN WATERFALL POSTS ON ITS WEBSITE, OR OTHERWISE PROVIDES, AN UPDATED VERSION OF ANY OF ITS POLICIES OR SERVICES (OUR USE OF PERSONAL INFORMATION IS GOVERNED BY THE VERSION OF THIS POLICY AND THE TERMS OF SERVICE IN EFFECT AT THE TIME WE USE THE INFORMATION, NOT WHEN IT IS COLLECTED.) ACCORDINGLY, YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE WATERFALL WEBSITE, TERMS OF SERVICE, THIS POLICY AND WATERFALL’S OTHER POLICIES. YOUR CONTINUED USE OF OUR WEBSITE OR ANY WATERFALL SERVICES AFTER SUCH MODIFICATIONS ARE POSTED, OR OTHERWISE PROVIDED, CONSTITUTES YOUR CONSENT TO SUCH CHANGES.

Your privacy is important to us, and we understand that you expect us to share Personally-Identifiable Information (defined below) about you carefully. This Policy describes our practices regarding your Personally-Identifiable Information. Specifically, this Policy sets forth:

  1. What Personally-Identifiable Information is;
  2. What information about you Waterfall collects;
  3. How Waterfall uses such information;
  4. How Waterfall shares such information;
  5. How Waterfall protects such information; and
  6. How you may access, verify and, if necessary, correct such information.
1. “Personally-Identifiable Information” Defined

In this Policy, “Personally-Identifiable Information” and “PII” mean any information that may be used (alone or in combination with other information) to identify an individual, including, but not limited to: a first or last name; a home or other physical address; an email address; a phone number or other contact information; and credit card or other payment information.

2. What Information About You Does Waterfall Collect?

When you use the Waterfall Website or services, Waterfall may collect information about you in the following ways: (a) you may provide information to us (e.g., during the registration or ordering process); and (b) we may receive information about you automatically or indirectly in the course of our interactions (e.g., by virtue of you using our Website).

  1. Information You Provide
    We receive and store information (including, but not limited to, Personally-Identifiable Information) you choose to enter on the Waterfall Website or provide us in other ways, e.g., by telephone or email. For example, when you register for our services or complete an online questionnaire, we collect information about you, which may include: your first and last name; home and other mailing address; email address; birthday; phone number; credit card or other payment information; and general information about you and your business activities. You may also choose to provide information regarding friends or family members (e.g., to tell them about the Waterfall Website or services). We may also combine information you provide with other information about you that you provide to other online and offline sources (e.g., our merchant partners who may give that information to us) to provide you with a better experience and improve the quality of our services.
    For certain services, we may give you the opportunity to opt-out of such combining of information. You can also choose not to provide us with certain information, but then you might not be able to take advantage of some of our services or features. In general, the more information you give us, the better we can provide and improve our Website and services to meet your needs.
  2. Information We Collect Automatically Or Indirectly
    We also collect other information about you automatically or indirectly when you use our Website or services. For example, we automatically receive and record certain information about you (i) when you use a mobile device to access our Website or services, and (ii) when you use a Web browser to access our Website or services – e.g., your IP address, the type of Web browser you are using, Cookie Information (defined below) and the Web pages you request, travel to and link to. Our Website and services also automatically collect usage information like the numbers and frequency of visitors to our Website and its components.
    Cookie Information (also called “Cookies”) is alphanumeric identifying information we transfer to your computer through your Web browser to enable our Website and other systems to recognize your browser and tell us how and when certain pages in our Website are visited and by how many people. Our Cookies do not collect Personally-Identifiable Information, and we do not combine PII collected through Cookies with other PII to tell us your identity, screen name or email address.
    The "Help" portion of the toolbar in most Web browsers provide information regarding how to prevent your browser from accepting new Cookies, how to command the browser to tell you when you receive a new Cookie, or how to fully disable Cookies. We strongly recommend that you leave the Cookies activated, however, because Cookies enable you to take advantage of some of our Website's most attractive features. Several companies also offer programs that help you to visit websites anonymously. Although Waterfall will not be able to provide a personalized experience if we cannot recognize you, we want you to be aware these programs exist.
    When you connect to our Website or other services using your mobile device, Waterfall will receive information your mobile service provider sends uniquely identifying your device. Certain Waterfall services may also require us to collect from you the phone number, and/or other unique identifying information, for your device. We may associate that phone number to the mobile device identification information and to other information we have collected from and about you; however we will not use that number for telemarketing. Some mobile service providers are required to operate a system that will record the physical location of devices that use their service. Depending on the mobile service provider, Waterfall may automatically receive that information.
3. How Does Waterfall Use the Information We Receive?

Waterfall may use the information (including PII) we receive to send you (and your friends and family, as applicable) promotional emails regarding our Website and services, your preferences, and ways we can improve future user experiences with Waterfall. For example, Waterfall may use your information to offer you extended services and/or functionality. If at any time you decide you want to stop receiving such promotional emails from Waterfall, please notify us by opting out or sending an email to privacy@waterfall.com.

We may use the information we receive to: (a) provide you access to our Website and services; (b) monitor and support your use of our Website and services; (c) better understand what products and services are of interest to our users; (d) analyze how we may improve our Website and services; (e) notify you of changes to our services or applicable terms; and (f) accomplish a specific purpose for which you provide particular information to us.

We only utilize Website usage data in aggregated form. We use such aggregated usage data to understand users’ preferences, and to measure interest in aspects of our Website and services (e.g., how often customers use various parts of the Website). That helps us enhance the appeal of our Website and services to as many customers as possible.

4. How Does Waterfall Share the Information We Receive?

Waterfall is not in the business of selling your information. We do not share your Personally-Identifiable Information except as approved by you or described in this Policy:

  1. Related Companies, Agents and Service Providers
    We may share your information (including PII) with any legal entity that is affiliated with Waterfall for purposes consistent with this Policy. Waterfall may also engage other independent companies and individuals to perform services on our behalf (e.g., processing credit card payments, sending postal mail and email to you, and analyzing data). Although these agents and service providers may have access to your PII to perform such services for us, we will not permit them to use any PII for any other purpose.
  2. Business Partners
    We may also provide certain information (e.g., statistical data) to our third party business partners regarding how our customers, in the aggregate, use our Website and services. We share this type of information to help our business partners optimize their related services and understand how often our users utilize aspects or our Website and services that are relevant to our business partners.
  3. Protection of Waterfall and Others
    We may release your account information and other PII to appropriate third parties (including, but not limited to, legal authorities) when we believe such release is necessary to: comply with the law; enforce or apply our Terms of Service; or protect the rights, property, or safety of Waterfall, our users, or any third parties (including, but not limited to, exchanging information with other companies and organizations for fraud protection and credit risk reduction).
  4. Business Transfers
    As we continue to develop and grow our business, Waterfall may merge, sell or otherwise transfer some or all of our assets or business. Your PII may be one of the assets we transfer as part of such a transaction.
5. How Does Waterfall Protect the Information We Receive?

We have taken certain physical, electronic, contractual and managerial steps to safeguard and secure the information we collect from our users and store on our servers. We also use Secure Sockets Layer (SSL) encryption software to protect the security of your information during transmission to us. However, no method of transmission over the Internet or method of electronic storage is 100% secure. Therefore, while we strive to use commercially acceptable means to protect your information, Waterfall cannot and does not guarantee its absolute security.

You can also enhance your security by protecting against unauthorized access to your computer, and to your Waterfall username and password. You should also be sure to sign-off our Website each time you finish using a shared computer.

6. How Can You Access and Change Your Information?

Upon request, we will allow you to access and change certain information about you (e.g., your Waterfall username and password, contact information, transaction information and payment information) using the Support section of our Website.

7. Miscellaneous
  1. Third Party Websites
    Our Website may permit you to link to other third party websites on the Internet, and other websites may contain links to the Waterfall Website. These third party Websites are not under Waterfall’s control. The privacy and security practices of websites linked to or from our Website are not covered by this Policy or the Waterfall Terms of Service, and you should carefully review the applicable third party terms. Waterfall is not responsible for the privacy or security practices, or the content, of any such third party websites, and you specifically agree and acknowledge that Waterfall will not have any liability in connection with any such third party websites. Waterfall does not endorse, approve or sponsor any such third party websites unless expressly indicated by Waterfall in writing.
  2. No Use By Children
    Our Website and services are not intended for use by children under 13 years of age; if you are under 13, you are not permitted to use our Website or services in any way. Waterfall does not knowingly collect any Personally-Identifiable Information from any children under 13.

If you have any concerns about privacy on the Website, please send an email to privacy@waterfall.com and we will try to resolve it.

Terms of Service

Revised June 2013

Capitalized terms used in these Terms of Service (the “Terms”) may be defined in the “Definitions” section at the end of these Terms.

Thank you for using the Waterfall International Inc. (“Waterfall”, “our”, “us” or “we”) website located at www.waterfall.com (the “Website”) and our Service(s). Please do not use our Website or any of our Services until after you carefully review and accept all terms and conditions in these Terms, including our Privacy Policy (http://www.waterfall.com/legal/). Waterfall and you may be referred to in these Terms individually as a “party” and collectively as “parties.”

BY ACCESSING OR USING OUR WEBSITE OR SERVICES, OR BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER FORM THAT MENTIONS THESE TERMS, YOU AGREE TO THESE TERMS. IF YOU ARE ACCESSING OR USING OUR WEBSITE OR SERVICES AS AN AGENT OR EMPLOYEE OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND, AND ARE BINDING, THAT LEGAL ENTITY TO THESE TERMS (IN WHICH CASE “YOU” AND “YOUR” REFER TO THAT LEGAL ENTITY). IF YOU DO NOT HAVE THAT AUTHORITY, OR IF YOU DO NOT (OR LACK THE LEGAL CAPACITY TO) AGREE TO ALL OF THESE TERMS, YOU ARE NOT PERMITTED TO USE OUR WEBSITE OR SERVICES.

WATERFALL RESERVES THE RIGHT TO MODIFY ITS POLICIES AND SERVICES AND THESE TERMS AT ANY TIME. SUCH MODIFICATIONS WILL TAKE EFFECT WHEN WATERFALL POSTS OR OTHERWISE PROVIDES AN UPDATED VERSION OF ITS POLICIES OR SERVICES OR THESE TERMS. ACCORDINGLY, YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THESE TERMS. YOUR CONTINUED USE OF ANY SERVICES AFTER SUCH MODIFICATIONS ARE POSTED OR OTHERWISE PROVIDED CONSTITUTES YOUR CONSENT TO SUCH CHANGES.

1. Waterfall Service Offerings

Please see waterfall.com (e.g., the “Pricing” information) for additional information regarding our various Waterfall Services, pricing tiers and feature differences. A high-level summary is also provided here:

  1. Free Trial:
    At Waterfall’s option, we may make one or more Services available to you on a trial basis, free-of-charge, until the earlier of (a) the end of the free trial period for which you register, or (b) the start date of any Purchased Services you order. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding. Any data you enter into or use with the Services, and any customizations made to the Services by or for you, during your free trial will be permanently lost unless you purchase a subscription to the same Services as those covered by the trial, purchase upgraded Services, or export such data, before the end of the trial period. Such free trial Services are provided "as-is" without any warranty, notwithstanding anything to the contrary in the Representations & Warranties section of these Terms.
  2. Purchased Services:
    We will make Purchased Services available to you in accordance with these Terms and the relevant Order Forms during the applicable License Term. You agree that your purchases under these Terms are not contingent on the delivery of any future results, functionality or features, and are not dependent on any oral, written or implied representations, statements or commitments made by or for Waterfall (for example, regarding any future results, functionality or features).
2. Term & Termination
  1. Term:
    The term of these Terms commences on the Effective Date. The Initial Term will be as you elect during the online sign-up on the Website, or as otherwise mutually agreed by the parties in an Order Form. Upon expiration of the Initial Term, these Terms will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Waterfall's then-current rates.
  2. Termination:
    For Convenience. Either party may terminate these Terms for any reason, effective only upon expiration of the then-current License Term, by notifying the other party in writing at least thirty (30) days prior to the end of the then-current License Term.

    For Cause. Waterfall, in its sole discretion, may suspend or terminate your account and use of the Website and Services at any time upon written notice if: (a) you fail to comply with these Terms; (b) you become the subject of any bankruptcy or other insolvency-related proceedings; or (c) you are considering acquiring, being acquired by or merging with, or actually acquire, are acquired by or merge with (meaning ownership or control of at least twenty-five percent (25%) of the relevant voting shares in each case), a direct competitor of Waterfall. Waterfall may also terminate a free or trial account at any time in its sole discretion.
  3. Effect of Termination:
    In the event of any termination or expiration of these Terms, those parts of the Terms which by their nature and all relevant circumstances reasonably should survive will survive (including, without limitation, the definitions, this Effect of Termination provision, the Fees and Payment provisions, the Ownership provisions, the License Restrictions provisions, the Disclaimer of Warranties provisions, the Indemnification provisions, the Limitation of Liability provisions, the Confidentiality provisions, the Assignment provisions, and the General Legal Terms).

    If Waterfall terminates these Terms for convenience (i.e., without cause), and you send a written request to Waterfall before the termination effective date, Waterfall will make available to you a file of your End-User Data and Customer Data within thirty (30) days after the termination effective date.

    Subject to the preceding sentence, you agree and acknowledge that Waterfall has no obligation to retain or provide any End-User Data or Customer Data, and may delete such End-User Data or Customer Data, at any time (a) if you violate these Terms (including, but not limited to, any failure to pay outstanding fees), or (b) after the termination effective date.
  4. Order Form
    Any terms specified in your customer Order Form will supersede any terms specified in these Terms of Service.
3. Fees and Payment
  1. Fees:
    You will pay all fees or charges to your account in accordance with your applicable Order Form or other order. These include, but are not limited to, monthly service fees, messaging fees, voice call fees, short code fees, account fees, keyword fees, transaction fees, technical support fees and client services fees. Waterfall reserves the right to modify its fees and charges, and to introduce new charges, at any time upon at least 30 days prior notice to you, which notice may be provided by email. You also agree to pay (or reimburse Waterfall, if we are required to pay directly) for any and all fees in connection with the registration, provisioning, certification and use of your short code(s) including but not limited to content distribution fees, message transaction fees, and any surcharges, fines or penalties imposed by a wireless carrier or Authorized Distributor. All payment obligations are non-cancelable and all amounts paid are non-refundable. You are responsible for paying for all services you order for the entire License Term, whether or not such services are actually used. You must provide a valid credit card, or approved purchase order information, to Waterfall as a condition of signing-up for the Service.

    Your authorized License Administrator may add services by executing an additional written Order Form or using the Online Order Center. Added services will be subject to the following: (i) added account licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the fees and charges for the added services will be Waterfall’s then-current, generally applicable fees and charges; and (iii) services added in the middle of a billing month will be charged for a pro-rata portion of that billing month.

    All pricing terms are Waterfall’s confidential information and you agree to treat them in accordance with the Confidentiality provisions below.
  2. Payment:
    Waterfall charges and collects in advance for use of its Services. Waterfall will automatically bill your credit card or issue an invoice to you each month, quarter or year as applicable, in accordance with the terms of your Order Form, or as otherwise mutually agreed. Fees for other services will be charged on an as-quoted basis. Payments must be made monthly, quarterly or annually in advance, per the terms mutually agreed in an Order Form or through the Online Order Center. Waterfall's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Waterfall's income. You agree to provide Waterfall with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, we reserve the right to terminate your access to the Services, in addition to any other legal remedies. Unless Waterfall in its discretion determines otherwise, you will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes. If you believe your bill is incorrect, you must contact us in writing within 30 days of the relevant invoice date to be eligible to receive an adjustment or credit.
  3. Consequences of Non-Payment:
    In addition to any other rights Waterfall may have, Waterfall reserves the right to suspend or terminate these Terms and your access to the Services if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to a service fee of one and one-half percent (1.5%) per month, or the maximum penalty permitted by law (whichever is less), on any outstanding balance, plus all expenses of collection. You will continue to be charged for the Services during any period of suspension. If you or Waterfall initiates termination of these Terms, you will be obligated to pay the balance due on your account computed in accordance with the Fees and Payment section of these Terms. You agree Waterfall may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. Waterfall reserves the right to impose a reconnection fee if you are suspended and thereafter request access to the Service.
4. Acceptable Use of the Services
  1. General:
    Waterfall may determine, in its sole discretion, whether you are violating these Terms. Using the Website or Services in an abusive manner or any other manner that diminishes or interferes with anyone else’s use or enjoyment of the Website or Services is prohibited. You also may not use the Website or Services for any illegal activities or purposes, intentionally or unintentionally; you are responsible for all activity occurring under your User accounts, and you agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Website and Services

    You must: (i) notify Waterfall immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Waterfall immediately and use reasonable efforts to stop immediately any inappropriate copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Website user or provide false identity information to gain access to or use any of the Services or Content.
  2. Short Codes, Use of Keywords, Provisioning / Carrier Certification:
    Certain tiers of the Services allow you to use Waterfall’s shared short code(s), in Waterfall’s discretion. Use of the Services with a shared short code requires a unique keyword per campaign. You agree not to reserve keywords and attempt to sell such keywords to a third party, except with Waterfall's prior written consent. Any such behavior will be grounds for immediate termination of these Terms and your account. Further, Waterfall will have the right, at any time, to reclaim keywords that you have reserved but are not actively using. You also must not reserve or use any keywords that are a trademark, service mark or corporate name of another company (whether registered or recognized under applicable common law). The Services allow you to use your own short code. Waterfall can lease a short code on your behalf, or you can lease your own short code at www.usshortcodes.com. You are responsible for reimbursing Waterfall fully and promptly for any payments made to reserve your own short code(s). We will help you get your short code(s) provisioned by the wireless carriers, and we will help you obtain all required certifications and authorizations. We will use commercially reasonable efforts to provision your short code(s) but cannot guarantee if or when your short codes(s) will be provisioned or certified by the wireless carriers. You may not use any phone number or short code provided by Waterfall to route SMS messages over any other provider's network. All SMS messages sent and received for a phone number or short code provided by Waterfall must be sent and received exclusively via Waterfall’s Services.
  3. Other Examples of Prohibited Conduct:
    The following are some other examples of conduct using the Website or Services that are prohibited (this list is not exhaustive):
    • Harming any minors;
    • Engaging in any fraudulent conduct in connection with your account (including, without limitation, circumventing any classified advertising or other phone identification systems);
    • Misleading anyone regarding the origin or sender of any phone call or message sent using your account (e.g., by creating a false or misleading identity, phone number or email address);
    • Using the Website or Services in a way not expressly authorized by Waterfall or that subjects Waterfall or any third parties to any threat or liability;
    • Participating in any activity prohibited by the U.S. Federal Communications Commission, or otherwise violating any U.S. or foreign laws regarding transmission of software, other technology or data;
    • Transmitting material that contains any viruses, trojan horses, worms or other malicious or harmful code;
    • Transmitting any material that violates any intellectual property rights (e.g., copyright, trademark or rights of publicity) of any third parties;
    • Using any of the Waterfall Marks in a manner not expressly permitted by these Terms;
    • Engaging in any activities or transmitting any content that is libelous or defamatory, or that is otherwise illegally discriminatory, malicious, threatening, harassing, obscene, vulgar, harmful or invasive of anyone’s privacy;
    • Launching or facilitating (whether intentionally or unintentionally) a denial of service attack on any of the Services, or otherwise negatively affecting the availability or stability of the Services or of any networks connected to the Services;
    • Reverse engineering or probing the Services, seeking vulnerabilities or attempting to circumvent any access controls, security measures or filtering;
    • Participating in or facilitating any harassing or unwanted messages, phone calls, mobile push notifications, voicemail or faxes;
    • With respect to outbound subscription-based messaging, Client must send no more than the maximum number of messages per contact for which the Client's dedicated short code is provisioned by the Carrier (typically 10 messages per month/contact).
    • Conducting any unsolicited or otherwise illegal advertising or marketing activities (for example, any activities that violate anti-spamming laws and regulations like the CAN SPAM Act of 2003, the Telephone Consumer Protection Act and the Do-Not-Call Implementation Act);
    • Violating any applicable carrier or wireless industry guidelines or best practices (e.g., those regarding data privacy or transmission of technical or personal data), the CTIA and Mobile Marketing Association's Code of Conduct for Mobile Marketing, or the U.S. Consumer Best Practice Guidelines located at www.ctia.org and www.mmaglobal.com;
    • Using SMS or mobile push notifications in a manner inconsistent with the person-to-person nature of mobile communications;
    • Collecting or storing any personal information about third parties (e.g., email addresses or phone numbers) without their express consent or in violation of any other provisions in the “Acceptable Use of Services” portion of these Terms;
    • Using the Services in any manner that violates any applicable third party requirements or policies communicated by Waterfall; and
    • Offering to any users any services that permit a user to connect with emergency services personnel (e.g., 911 or E911).
5. Ownership, DMCA Compliance, Licenses & Data
  1. Ownership:

    Waterfall alone (and its licensors, where applicable) own all right, title and interest (including all related Intellectual Property Rights) in and to the Website, Waterfall Technology, the Waterfall Content and the Services, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Website, Waterfall Technology or Services (collectively, “Feedback”). If you choose to provide any Feedback to us, Waterfall will own all right, title, and interest in and to it, even if you have designated it as confidential, and Waterfall will have the right to use such Feedback without restriction. Similarly, any other information or content you post or provide to Waterfall through comments, forums, emails or other communications (collectively, "Communications") will be deemed the property of Waterfall. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to Waterfall, and agree to provide us any assistance we may require to perfect and maintain our rights in the Feedback and Communications. These Terms are not a sale and do not convey to you any rights of ownership in or related to the Website, Services, the Waterfall Technology or any Intellectual Property Rights owned by Waterfall. Unless otherwise noted, the graphic images, text and other material on the Website are the exclusive property of Waterfall and are Copyright © 2013 Waterfall International Inc. All rights reserved.

    The Waterfall name and logo, and the product and service names and logos associated with the Website and the Services are trademarks or registered trademarks of Waterfall in the United States and foreign countries; you have no right or license to use any of them without Waterfall’s express prior authorization. All uses of the Waterfall trademarks, and all goodwill associated therewith, will inure to the benefit of Waterfall. Other company, product, and service names mentioned on the Website or in the course of providing the Services may be trademarks and/or service marks of others. You must not remove, obscure, or alter any notice of any trademark, service mark or other intellectual property or proprietary right appearing on the Website or contained within the Services.

  2. DMCA Compliance

    Waterfall respects the intellectual property of others, and we ask users of our Services to do the same. If you believe your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights otherwise have been violated, please notify Waterfall of your claim in accordance with the procedure set forth below.

    Waterfall will promptly process and investigate notices of alleged infringement and take appropriate action under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. You should send a notification of claimed copyright infringement to Waterfall’s Copyright Agent by mail or facsimile (with the “Re” subject line titled “DMCA Takedown Request”) to:

    Attention: Copyright Agent
    Waterfall International Inc.
    25 Division Street, Suite 205
    San Francisco California 94103
    Facsimile: 415-354-3356

    To be effective, the notification must be in writing and contain the following information:

    • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
    • a description of the copyrighted work or other intellectual property that you claim has been infringed;
    • a description of where the material that you claim is infringing is located on the Website (with sufficient detail to enable Waterfall to find it);
    • Your address, telephone number, and email address;
    • a statement that you have a good faith belief the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
    • a statement by you, made under penalty of perjury, that the above information in your notice is accurate, and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
  3. License Grant & Restrictions:

    License Grant. Subject to the terms and conditions of these Terms, Waterfall hereby grants to you a limited, non-exclusive, non-transferable, worldwide, revocable right and license (without right to sublicense) to use the Services during the Term of these Terms. All rights relating to the Services that are not expressly granted to you in these Terms are expressly reserved by Waterfall. Certain Services offer integration capabilities via a Waterfall application programming interface (“API”). The Waterfall APIs enable others, including application developers and website operators, to retrieve data from Waterfall Services or provide data to Waterfall Services. Access to the Waterfall APIs requires a separate developer account and API Key, which may be available from Waterfall in Waterfall’s sole discretion. The number of API calls you can make per account may be limited as more fully described in our developer portal located at http://apidocs.waterfall.com.

    License Restrictions. You may not access or use any of the Services if you are currently, or are actively considering becoming, a competitor of Waterfall, except with Waterfall's prior written consent. In addition, you may not access any of the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or purposes competitive with Waterfall. You will not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any of the Services or the Content in any way, except with Waterfall's prior written consent; (ii) modify or make derivative works based upon any of the Services or the Content or otherwise remove, decompile, disassemble or reverse engineer any Website software or use any network monitoring or discovery software to determine the Website architecture; (iii) create Internet "links" to any of the Services or "frame" or "mirror" any Content on any other server or wireless or Internet-based device or otherwise make any portion of the Website available through any timesharing system, service bureau, the Internet or any other technology now existing or developed in the future; or (iv) reverse engineer or access any of the Services to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of any of the Services, (c) copy, print, republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of the Website, including ideas, features, functions or graphics, or any Waterfall Content and Materials retrieved therefrom, (d) use the Website or any materials obtained from the Website to develop, or as a component of, any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism, (e) create any compilations or derivative works of any Content or Materials from the Website, (f). copy or resell any marketing, training or other materials such as slides, advice, guidance, or frameworks provided by Waterfall, or (g) remove, change or obscure any copyright notice or other proprietary notice, or any Terms of Service contained in the Website,

    You may use the Services only for legitimate business purposes, and you must not engage in any of the other Prohibited Conduct identified in these Terms.

  4. Account Data:

    As between Waterfall and you, you will own any data collected from end-user consumers through your use of the Waterfall Services (the "End-User Data"). However, Waterfall also collects aggregate data that is not personally-identifiable, including, without limitation, end-user usage and behavioral data as they relate to the Services (the "Aggregate Data") You acknowledge and agree that Waterfall will be the sole and exclusive owner of such Aggregate Data. Subject to the preceding sentence, Waterfall does not own any data, information or material that you submit in the course of using the Services ("Customer Data"). You, not Waterfall, have sole responsibility for ensuring the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Waterfall will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Notwithstanding the above, Waterfall may remove any Customer Data from the Service that violates any guidelines or policies set forth by (i) a wireless carrier, (ii) the Mobile Marketing Association, (iii) the CTIA, (iv) mobile device manufacturers, (v) any Authorized Distributor, or (vi) Waterfall.

6. Privacy and Publicity

Waterfall's privacy policy is located at http://www.waterfall.com/legal/ and is hereby incorporated into these Terms by reference. We reserve the right to modify our privacy policy from time to time. You may be asked whether or not you wish to receive marketing and other non-critical communications relating to Waterfall Services from time to time. You may opt-out of receiving such communications at that time, or at any subsequent time, by clicking a link at the bottom of any email. Note that because the Services are hosted and online, we occasionally may need to notify all users (whether or not they have opted-out as described above) of important announcements regarding the Services.

In accordance with the Telephone Consumer Protection Act and other applicable law, you must ensure that your customers and other users read and agree, in writing:

  1. to receive marketing text messages from each of your specific brands to the mobile number provided;
  2. that they understand they are not required to provide their consent as a condition of purchasing any goods or services. (The required written signature can be obtained via email, Web site form, text message, telephone key press or voice recording.);
  3. that, by signing up, they are confirming they are over the age of 13; and
  4. that they understand you will send them mobile text messages using automated technology.

You agree Waterfall may use your name and logo to list you as a customer in our marketing and promotional materials (e.g., on the Waterfall website).

7. Third-Party Applications & Interactions

While using the Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of, advertisers, sponsors or other third parties showing their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the relevant third parties. Waterfall does not endorse, recommend or sponsor any products, services or websites that are promoted by Users or other third parties through the Services. You also acknowledge and agreed that certain third-party providers of ancillary or related software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

Waterfall may offer integration of certain Third-Party Applications with the Services. If you install or enable Third-Party Applications for use with the Services, you acknowledge that Waterfall may allow providers of those Third-Party Applications to access your data as required for the interoperation of such Third-Party Applications with the Services. Waterfall will not be responsible for any disclosure, modification or deletion of your data resulting from any such access by Third-Party Application providers. Service features that interoperate with such Third-Party Applications (e.g., Facebook, Twitter, Apple, etc.) depend on the continuing availability of such Third-Party Application APIs for use with the Services. Waterfall does not guarantee any aspect of a Third-Party Application, including, without limitation, the availability, security or reliability of third party APIs or data exchanges. If any Third-Party Application provider ceases to make their APIs available, or modifies the way in which their APIs work, Waterfall may cease providing the corresponding Service feature(s) without entitling you to any refund, credit, or other compensation. WATERFALL AND ITS LICENSORS HAVE NO LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY CORRESPONDENCE, PURCHASE OR PROMOTION BETWEEN YOU AND ANY THIRD PARTIES. IN NO EVENT WILL WATERFALL OR ITS LICENSORS BE RESPONSIBLE FOR, OR HAVE ANY LIABILITY IN CONNECTION WITH ANY THIRD PARTY CONTENT, PRODUCTS, SERVICES OR OTHER MATERIALS PROVIDED OR OBTAINED THROUGH ANY THIRD PARTY IN THE COURSE OF USING THE SERVICES.

8. Limited Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into these Terms. You further represent and warrant that your billing information is correct, and that you will not falsely identify yourself or provide any false information in the course of gaining access to or using any of the Services.

9. Disclaimer of Warranties

EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SECTION OF THESE TERMS:

A. THE WATERFALL TECHNOLOGY, SERVICES, CONTENT AND ANY THIRD-PARTY APPLICATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; WATERFALL AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, PERFORMANCE, SUITABILITY, RESULTS, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, THE WATERFALL TECHNOLOGY, OR ANY CONTENT OR THIRD-PARTY APPLICATION;

B. WITHOUT LIMITING THE PRECEDING SENTENCE, WATERFALL AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (iii) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND

C. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS), ARE HEREBY DISCLAIMED.

WATERFALL'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, INCLUDING THOSE UNDER THE CONTROL OF WIRELESS CARRIERS, WATERFALL'S AUTHORIZED DISTRIBUTORS AND THIRD-PARTY APPLICATION PROVIDERS. WATERFALL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

THE SERVICES DO NOT, AND ARE NOT INTENDED TO, SUPPORT OR CARRY EMERGENCY CALLS TO POLICE, FIRE, AMBULANCE OR ANY EMERGENCY SERVICES (FOR EXAMPLE 911 OR E911). ACCORDINGLY, WATERFALL AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ANY WARRANTIES OR LIABILITY (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION) ARISING FROM OR RELATING TO YOUR INABILITY TO USE THE SERVICES TO CONTACT ANY EMERGENCY SERVICES.

The Website may include statements concerning Waterfall’s operations, prospects, strategies, financial condition, future economic performance and demand for our products or services, as well as our intentions, plans and objectives (particularly with respect to product and service offerings), that are forward-looking statements. These statements are based upon a number of assumptions and estimates that are subject to significant uncertainties, many of which are beyond our control. When used on our Website, words like "anticipates," "expects," "believes," "estimates," "seeks," "plans," "intends," "will", and similar expressions are intended to identify forward-looking statements designed to fall within securities law safe harbors for forward-looking statements. The Website and the information contained herein does not constitute an offer or a solicitation of an offer for sale of any securities. None of the information contained herein is intended to be, and it will not be deemed to be, incorporated into any of our securities-related filings or documents.

If you are dissatisfied with any aspect of the Services, please review our Support and Maintenance Policy located at http://www.waterfall.com/legal/.

10. Indemnification

You will defend, indemnify and hold Waterfall, its affiliates and their respective parent organizations, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys, representatives and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including, without limitation, attorneys' fees, costs and expenses) arising out of or in connection with: (i) any claims alleging that your use of the Services or any End-User Data (including, without limitation, Content or Customer Data), or any third party transaction you enter into or attempt to enter into in connection with the Services, infringes the rights of, or has caused harm to, any third parties; (ii) any claims, which if true, would constitute a violation by you of your representations or warranties in these Terms; and (iii) any claims arising from any breaches of these Terms by you or your Users.

With respect to any claims that are subject to the indemnity in the preceding sentence, Waterfall will: (a) give you written notice of the claim promptly; (b) give you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Waterfall of all liability and such settlement does not affect Waterfall's business or Service); and (c) give you reasonable information, cooperation and assistance in connection with the claim.

11. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

  1. IN NO EVENT WILL WATERFALL OR ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES OR LICENSORS BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO (i) THE SERVICES OR THESE TERMS (INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OF DATA, REVENUE, PROFITS, USE, GOODWILL OR OTHER ECONOMIC ADVANTAGE, OR BASED ON ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, OR DUE TO ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE SERVICE), (ii) THE USE OF ANY INFORMATION OR SOFTWARE PROVIDED ON THE WATERFALL WEB SITE, OR (iii) ANY FAILURE BY WATERFALL TO PROVIDE ANY SUCH INFORMATION OR SOFTWARE;
  2. IN NO EVENT WILL THE TOTAL, AGGREGATE LIABILITY OF WATERFALL AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES AND LICENSORS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE SERVICES OR THESE TERMS EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO WATERFALL IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH CLAIM(S); AND
  3. IF YOU HAVE ANY DISPUTE WITH ANY THIRD PARTIES RELATING TO YOUR USE OF THE WATERFALL WEBSITE, SERVICES OR CONTENT, OR YOU ARE DAMAGED AS A RESULT OF ANY THIRD PARTY IN CONNECTION THEREWITH, (i) YOU HEREBY RELEASE WATERFALL AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND SUPPLIERS FROM, AND (ii) YOU COVENANT NOT TO SUE, OR INSTITUTE ANY LEGAL OR REGULATORY PROCEEDINGS AGAINST, OR ASSERT ANY CLAIM OR DEMAND AGAINST, WATERFALL OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES OR SUPPLIERS FOR ANY CLAIMS, ACTIONS, DEMANDS OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL), OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHETHER FORESEEABLE OR NOT, DISCLOSED OR UNDISCLOSED, RELATING TO ANY SUCH DISPUTE BETWEEN YOU AND ANY THIRD PARTIES.

THESE LIMITATIONS OF LIABILITY APPLY TO ALL LIABILITY AND CLAIMS, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, WARRANTY OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF ANY ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY. THESE LIMITATIONS OF LIABILITY ARE A FUNDAMENTAL BASIS OF THE BARGAIN REFLECTED IN THESE TERMS, AND BOTH PARTIES UNDERSTAND AND AGREE WATERFALL WOULD NOT PROVIDE THE SERVICES TO YOU WITHOUT THESE LIMITATIONS OF LIABILITY.

12. Confidentiality

The parties presumably may disclose Confidential Information in connection with the Waterfall Services and the parties’ relationship under these Terms. Accordingly, the Receiving Party will take commercially reasonable steps to avoid unauthorized disclosure or dissemination of the Disclosing Party’s Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential Information will remain the exclusive property of the Disclosing Party.

The Receiving Party will disclose the Disclosing Party’s Confidential Information only to its employees and contractors who (i) have a legitimate business need to know such Confidential Information for purposes of performing under these Terms (and only while they have that need), and (ii) are bound by confidentiality agreements with the Receiving Party at least as protective of the Disclosing Party’s Confidential Information as this section of the Terms (their respective “Personnel”). The Receiving Party will ensure its Personnel comply with this section of the Terms, will promptly notify the Disclosing Party of any breach, and will be fully responsible for any breach by the Receiving Party’s Personnel.

The above obligations under this Section 12 will apply for three (3) years from the date the relevant Confidential Information is first disclosed to the Receiving Party. Additionally, the parties each acknowledge and agree that the receipt of Confidential Information in connection with their relationship under these Terms will not create any obligation in any way limiting or restricting the assignment of employees or contractors. Furthermore, nothing contained in these Terms will be construed as preventing any employees or contractors of either party from using any “residuals” of the Confidential Information (i.e., information in non-tangible form that is retained in the unaided memories of employees or contractors who had access to the Confidential Information).

Notwithstanding the foregoing, if any court or other governmental entity with competent jurisdiction requires the Receiving Party to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party may comply with its legal obligations after giving the Disclosing Party prompt, reasonably detailed written notice regarding such required disclosure (including a copy of the relevant order or other legal process) to allow the Disclosing Party to seek a protective order or other appropriate remedy. The Receiving Party will disclose only such information as it reasonably deems is legally required, and will cooperate reasonably with the Disclosing Party to obtain confidential treatment for any of the Disclosing Party’s Confidential Information that is so disclosed. Similarly, the Receiving Party may disclose the Disclosing Party’s Confidential Information on a "need-to-know" basis to its legal counsel, accountants, banks and other financing sources and advisors under commercially reasonable confidentiality agreements.

Upon termination or expiration of these Terms, or at the request of the Disclosing Party, the Receiving Party will promptly return all tangible material embodying the Disclosing Party’s Confidential Information, and will destroy (or, in the case of electronic embodiments, permanently erase) all other tangible material containing or reflecting such Confidential Information (in any form, including, without limitation, all summaries, copies and excerpts) in its possession or under its control, whether prepared by the Disclosing Party, the Receiving Party, or their respective advisors or otherwise, and will not retain any copies, extracts or other reproductions in whole or in part of such materials.

For the avoidance of doubt, the parties acknowledge and agree that the Receiving Party may develop products, services, concepts, systems or techniques that are similar to or compete with the products, services, concepts, systems or techniques contemplated by or embodied in the Disclosing Party's Confidential Information, provided that the Receiving Party (a) can document that such development occurred independently without any use of the Disclosing Party’s Confidential Information, (b) does not violate any of its obligations under these Terms, and (c) does not reverse engineer any of the Disclosing Party's Confidential Information.

13. Export Control and Local Laws

This site provides services, and uses software and technology, that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies, as well as the export control regulations of other countries. As a user of this site, you must not use the Website or the Services in, or permit the Website, any Services, any Content, or any underlying information, software or technology, to be transferred, exported, re-exported or otherwise provided to, any countries regarding which the United States, Switzerland or the European Union maintains an embargo (collectively, "Embargoed Countries"). You also must not transfer, export, re-export or otherwise provide the Website, any Services, any Content, or any underlying information, software or technology, to (a) any nationals or residents of any Embargoed Countries, or (b) any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice, so you should check those lists frequently to ensure you comply.

You represent and warrant that you are not a Designated National and are not located in, under the control of, or a national or resident of any Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws, and you assume sole responsibility for obtaining any licenses required to export or re-export.

This Website also may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Waterfall makes no representation that the Website, Service or Content is appropriate or available for use in other locations. If you use the Website, Service or Content from outside the United States of America, Switzerland and the European Union, you are solely responsible for complying with all applicable laws, including, without limitation, export and import regulations of other countries. Any diversion or export of the Website, or any Services or Content contrary to the laws of United States, Switzerland or European Union (including European Union Member States) is strictly prohibited. Finally, none of the Website, Services or Content, nor any information acquired through the use of the Website, Services or Content, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or an appropriate European body for such purposes.

14. U.S. Government Contract Provisions

These Terms govern your license to use the Website, Services and Content. No government procurement regulation or contract clauses or provisions will be considered a part of any transaction between the parties under these Terms unless its inclusion is required by statute, or mutually agreed upon in writing by the parties in connection with a specific transaction. The technical data and computer software covered by this license are “Commercial Items,” as that term is defined by the FAR 2.101 (48 C.F.R. 2.101), and are “commercial computer software” and “commercial computer software documentation” as specified under FAR 12.212 (48 C.F.R. 12.212) or DFARS 227.7202 (48 C.F.R. 227.7202), as applicable. The Website, Services and Content are provided to end users for use by and on behalf of the U.S. Government, with only those rights as are granted to all other end users under the terms and conditions in these Terms. Use for or on behalf of the U.S. Government is permitted only if the party using the Website, Services or Content is properly authorized by an appropriate U.S. Government official. This paragraph of the Terms is in lieu of, and supersedes, any other FAR, DFARS, or other provision that addresses government rights in computer software or documentation covered by these Terms. All copyright licenses granted to the U.S. Government are coextensive with the technical data and computer software licenses granted in these Terms. The U.S. Government will only have the right to reproduce, distribute, perform, display, and prepare Derivative Works as needed to implement those rights.

15. Notices

Waterfall may provide notices to you relating to the Website and the Services by posting a general notice on the Website, or by sending email to the email address you provided in your account information on the Website, or by written communication sent by first class mail or pre-paid post to the mailing address you provided in your account information on the Website. Such notice will be deemed given forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Waterfall (such notice will be deemed given when received by Waterfall) at any time by any of the following: letter sent by confirmed facsimile to the following fax number: (415) 354-3356; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the attention of Waterfall’s Chief Financial Officer at the following address: Waterfall International Inc., 25 Division Street, Suite 205, San Francisco, CA 94103.

16. Assignment

These Terms may not be assigned or otherwise transferred by you without the prior written approval of Waterfall. Any purported assignment in violation of this section will be void. Waterfall may, however, assign or transfer its rights and obligations under these Terms, without your consent, to (i) a parent or subsidiary of Waterfall, (ii) an acquirer of Waterfall assets, or (iii) Waterfall’s successor by merger. These Terms will be binding upon, and inure to the benefit of, the parties’ respective successors and permitted assigns.

17. General Legal Terms
  • These Terms are and will be governed exclusively by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and of the Uniform Computer Information Transactions Act (UCITA) will not apply to the parties’ relationship or these Terms in any manner whatsoever.
  • Any disputes, actions, claims or causes of action arising out of or in connection with these Terms, the Website, the Services or the Content will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California.
  • In the event of any litigation arising out of or relating to the Website, any Services, any Content or these Terms, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and expenses (including, without limitation, expert witness fees and costs on appeal).
  • No text or information set forth on any purchase order, preprinted form or document (other than an Order Form approved in writing by Waterfall, if applicable) will add to or vary any terms or conditions of these Terms.
  • No joint venture, partnership, employment, franchise or agency relationship exists between Waterfall and you as a result of these Terms or use of any Services or Content.
  • If any provisions of these Terms are held by a court of competent jurisdiction to be invalid or unenforceable, then such provisions will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
  • The failure of Waterfall to enforce any right or provision in these Terms will not constitute a waiver of such right or provision, unless acknowledged and agreed to by Waterfall in writing.
  • Any ambiguity in these Terms will not be construed against Waterfall due to Waterfall’s role in drafting them. You specifically acknowledge that you have had a reasonable opportunity to consult your own attorney regarding these Terms, and to seek to negotiate them with Waterfall.
  • These Terms, together with any mutually agreed Order Form and related terms referenced in these Terms, comprise the entire agreement between Waterfall and you, and supersedes all prior or contemporaneous negotiations, representations, discussions, communications or agreements, whether written or oral, between the parties regarding the subject matter addressed in these Terms.
  • You are not permitted to modify any aspect of these Terms without Waterfall’s express written consent.
18. Definitions

As used in these Terms, and in any Order Forms now or hereafter associated with these Terms:

  • "Agreement" means these Terms of Service, any Order Forms (whether written or submitted via the Online Order Center), and any materials available on the Website that are specifically incorporated by reference herein, all as they may be updated by Waterfall from time-to-time in its sole discretion;
  • “API” means Waterfall’s proprietary application programming interface for its Services;
  • "Authorized Distributors" means the wireless carriers, wireless message aggregators, telephone companies and other third-party distributors that Waterfall has contracted with or uses in connection with providing the Services;
  • “Confidential Information” means information and tangible materials disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with the parties’ relationship under these Terms that is marked “Confidential” (or a similar marking) with respect to tangible materials, or, if disclosed orally, is identified as confidential at the time of disclosure or in a subsequent written communication received within five (5) business days after disclosure. The Waterfall Technology also constitutes Confidential Information of Waterfall. For purposes of these Terms, “Confidential Information” will not, however, include information or materials the Receiving Party can prove through verifiable, objective evidence:
    1. became part of the public domain without breach of these Terms;
    2. was known to the Receiving Party prior to its receipt from the Disclosing Party;
    3. was rightfully received from a third party that did not acquire or disclose such information or materials by a wrongful or tortious act or in breach of any confidentiality obligation to the Disclosing Party; or
    4. was developed independently by or for the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.
  • "Content" means the text, audio and visual elements, URL links, documents, software, products, services or other information contained in, linked to, or attached to messages sent out by you through the Waterfall Website or Services, or on your behalf by Waterfall;
  • "Customer Data" means any data, information, materials or multimedia content relating to you that you provide or submit to the Waterfall Services in the course of using the Services;
  • "Effective Date" means the earliest of (a) the date you accept these Terms by selecting the "I Accept" option presented on the screen where these Terms are displayed, (b) the date specified on an Order Form, and (c) the date you begin using the Website or Services;
  • "End-User Data" means any information that is collected by the Website or Services from individual consumers interacting with a Waterfall marketing or CRM campaign (e.g., mobile telephone number, wireless carrier, email address);
  • "Initial Term" means the term of the parties’ Agreement, beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form;
  • "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
  • "License Administrator(s)" means those Users designated by you who are authorized to add, delete or modify your Service Order using the Online Order Center, or by executing written Order Forms, and to create User accounts and otherwise administer your use of the Website and Services;
  • "License Term(s)" means the period(s) during which you are licensed to use the Website and Services under the Order Form(s);
  • "Online Order Center" means Waterfall's online application that allows you to, among other things, sign-up for the Services or add additional Waterfall products/services in the future;
  • "Order Form(s)" means the form evidencing your initial subscription for the Services, and any subsequent order forms submitted online or in written form, specifying, among other things, the type of services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties. Each such Order Form is incorporated by reference into, and becomes a part of, these Terms; provided, however, that in the event of any conflict between these Terms and the terms of any such Order Form, the terms of the Order Form will prevail and govern;
  • "Purchased Services" means Waterfall Services you purchase under an Order Form, as distinguished from those provided under a free trial;
  • "Service(s)" means the specific edition of Waterfall's online mobile marketing and customer relationship management (CRM) platform, and other services to which you are granted access under these Terms, including, without limitation, the Waterfall Technology, the Content, the Waterfall APIs, and any other ancillary online or offline products and services provided to you by Waterfall under these Terms. The applicable Service(s) are specified during the ordering process, are developed, operated, and maintained by Waterfall, and are accessible via the Website, the Waterfall APIs, widgets or another designated web site or IP address;
  • "Third-Party Applications" means online, Web-based applications and offline software products which are provided by third parties that interoperate with the Services via the Waterfall APIs;
  • "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied Waterfall user identifications (including API credentials) and passwords by you (or by Waterfall at your request);
  • "Waterfall" means Waterfall International Inc., a Delaware corporation, having its principal place of business at 25 Division Street, Suite 205, San Francisco, CA 94103; and
  • "Waterfall Technology" means Waterfall's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, APIs, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Waterfall in providing the Services.

Questions or Additional Information:

If you have any questions regarding these Terms or wish to obtain additional information, please send an email to support@waterfall.com.

Support & Maintenance Policy

By using the Waterfall International Inc. ("Waterfall") platform you ("Client") acknowledge that such services and deliverables are made available subject to Waterfall Support and Maintenance Policy ("Support Policy") and Terms & Conditions. This Support Policy may only be superseded by specific terms in a Services Agreement that may be executed with a Client.

  • DEFINITIONS. For purposes of this Service Level Agreement, each word or phrase listed below has the meaning designated. Other words or phrases may be defined in the context in which they are used, and shall have the respective meanings there designated.
    • "Client Service" means any communication with a designated representative of the Client for the purposes of setting up, testing, analyzing, or troubleshooting campaigns on the platform.
    • "End User Service" means communications and/or issue resolution with End Users who may interact with a campaign via mobile or web. This may include, but is not limited to, customers having difficulty joining subscription services, participating in a poll, downloading content, etc.
    • "Waterfall Content Services" means the collective features and functionality made available to Client by Waterfall allowing interactions between Client and End Users for the purposes of engagement, marketing, or commerce via web and mobile channels.
    • "File" means a specific digital file that is available for sale as an individual item to an End User and that is a component of the Client Content, including without limitation master audio ringtones, master audio ringback tones, voice ringtones, voice ringback tones, graphics (including wallpaper and screen savers), games, video clips, video ringtones, video ringback tones, audio segments and video segments.
    • "API" means Application Programming Interface and in this context refer to technical services made available by Waterfall to Client for the purposes of the fulfilling the Waterfall Content Services in a programmatic fashion in lieu of using administrative website manually.
    • "Widget" means a web site interface that Client may, at its choice, place on any web site that Client controls that permits End Users to order such Files or Subscriptions through the Waterfall Content Service as Client may choose to offer on such Widget.
    • "Priority One Defect" means a Defect that, in the reasonable judgment of Client, renders Waterfall inoperable or is causing a serious adverse impact to Client's business operations.
    • "Priority Two Defect" means a Defect that materially impairs Waterfall's performance of one or more facilities or functions detailed in the Specification, with the consequence that Client's business can be performed but in a restricted or inefficient manner.
    • "Priority Three Defect" means a Defect that does not significantly effect Client's current day-to-day business operations; but the performance or efficiency of Client's business operations might improve if such Defect were to be corrected.
    • "Technical Support" means any communication with a designated representative of the Client for the purposes of troubleshooting Defects.
    • "Update" means and includes the modifications or revisions made to the Waterfall platform (i) to improve upon or repair existing features and operations within Waterfall, (ii) to ensure compatibility with new releases of existing systems (including hardware, operating systems and middleware) and external services through standardized interfaces, or (iii) to comply with applicable laws, regulations, industry standards or market practice, when such modifications or revisions are required.
  • SUPPORT AND MAINTENANCE OBLIGATIONS.
    • End User Service. Waterfall will provide support for Clients' mobile messaging and content campaigns and End User inquiries. Waterfall will provide help via a hosted website as first line support and live customer service representatives as second line support. All customer service representatives will speak fluent English and meet or exceed call center industry standards regarding quality of service.
    • File Delivery. Client acknowledges that first line technical support for End Users shall be the responsibility of the Authorized Distributors regarding binary content delivery; however, Waterfall shall cooperate with and reasonably assist Authorized Distributors in connection with any such End User inquiries or technical problems relating to delivering the Waterfall Content Services. Waterfall shall manage second line technical support on a prompt and efficient 24x7 basis for any and all End User inquiries pertaining to the Waterfall Content Services. Waterfall shall provide the Waterfall Content Services on the Waterfall Servers and shall be responsible for making the Products available to compatible End Users' Mobile Devices through Authorized Distributors. Waterfall shall be solely responsible for developing, licensing, and providing all software and other materials necessary to support and operate the Waterfall Content Services. Notwithstanding anything to the contrary in this Section, Client acknowledges that Waterfall is subject to the policies, technologies, delivery requirements, and availability of handsets of its Authorized Distributors and nothing herein guarantees that certain Client Content will be delivered through an Authorized Distributor or will be compatible with a certain Mobile Device.
    • Hosting. Waterfall shall host the Waterfall Content Services in an environmentally controlled facility that is physically secure, implements industry standard network security, and provides for 24x7x365 monitoring against network intrusions. Waterfall shall make commercially reasonable efforts to make the Waterfall Content Services available to Client and End Users 99% of the time (tested per day), twenty four hours a day, seven days per week, three hundred sixty five days per year, except for certain scheduled service and maintenance or in the event of emergency or events of force majeure. Waterfall shall make reasonable efforts to perform service and maintenance to the Waterfall Content Services outside peak usage hours. Waterfall shall:
    • Maintain sufficient bandwidth to enable Clients and End Users to interact with services in a commercially reasonable timeframe. However, Waterfall makes no direct obligation to client for carrier or aggregator delays outside of Waterfall's control.
    • Maintain sufficient data storage for the data generated by the End Users and the storage of the Client data such that all data is backed up in a commercially reasonable manner.
    • Maintain an e-mail subscription such that Clients, upon request, may be given 24 hours notice of schedule maintenance.
    • Data Security. Waterfall shall undertake and perform commercially reasonable efforts to ensure the security, confidentiality and integrity of all content delivered to Waterfall by Client or any End User through the use of commercially reasonable efforts regarding (i) firewall protection, (ii) maintenance of archival and backup copies at multiple locations, and (iii) protection from any network attacks and other malicious harmful or disabling data, work code, or programs. Waterfall shall immediately notify Client in the event of any breach of security, confidentiality or integrity of the Waterfall Content Services. All services by Waterfall shall be performed in compliance with all applicable laws, rules and regulations of national, state, or local governments. Waterfall shall promptly answer any reasonable inquiries of Client regarding Waterfall's compliance with the foregoing. Waterfall shall immediately correct all errors, defects or omissions in the Waterfall Content Services.
    • Widgets and APIs. Widgets and/or APIs may be made available to Client for use marketing and administrative use of the Waterfall Content Services. Waterfall shall not be responsible for any modifications to the source code of the widgets or uses of the APIs not expressly agreed to in writing prior to such modifications. Waterfall will train and assist in deployment of these tools but cannot be help responsible for quality of service or components or code not deployed on Waterfall Servers or modifications that are done by Client.
    • Technical Support. Waterfall will provide Client's authorized users with remote technical assistance and consultation relating to the general use and operation of Waterfall through Waterfall's Client Services and Operations on a twenty-four hours, seven days per week basis.
    • Problem Resolution. Waterfall will provide problem resolution for Defects in accordance with the service priorities and effort standards provided in Section 3 below.
    • Notification of Known Defects. Waterfall will notify Client concerning all known Defects in Waterfall, as such Defects become known or are reported to Waterfall. Waterfall will promptly correct any such Defects, or develop a work-around, patch or other fix, and furnish Client with such correction, work-around, patch or other fix as soon as practicable.
    • Remote Access. At Client's request, Waterfall will provide remote technical assistance and consultation for (i) general help in the use of Waterfall during Client's normal business hours, and (ii) reporting of Priority One or Priority Two Defects, 24 hours per day, seven days per week.
    • Updates and Enhancements. Waterfall will make available to Client (at no additional cost) all Updates and Enhancements for Waterfall, along with materials describing the purpose and function of the Updates. Waterfall will ensure that Updates containing new features or enhancements to existing features are synchronized with the previous version. Such Updates shall not degrade the performance, functioning or operation of Waterfall.
    • Technological Improvements. Waterfall will develop and make available to Client through Updates, all modifications and revisions required to enable Waterfall to operate in compliance with any applicable law.
    • Documentation. Waterfall will provide modified Documentation to correspond to changes made to Waterfall via support materials available at www.waterfall.com, within thirty (30) days of such changes.
    • Maintenance Log and Reports. Waterfall will maintain a maintenance log setting forth, in reasonable detail, all remedial maintenance and all other services performed on Waterfall; and Waterfall will make such log available to Client, upon request. In addition, Waterfall will provide Client with a written report, upon request, summarizing for the reporting period: (i) all Maintenance Service provide by Waterfall, (ii) all other services provided by Waterfall, (iii) the actual on-site response time of Waterfall's Personnel to each Client request for Maintenance Service, (iv) the duration of each Defect, (v) the time expended on-site by Waterfall until Waterfall was restored to proper operating condition, (vi) the "root cause" of each Defect corrected by Waterfall, and (vii) corrective actions taken by Waterfall to prevent the reoccurrence of a Defect.
  • PRIORITY RESPONSE FOR WATERFALL DEFECTS. Each reported Defect will be classified by Client as a Priority One, Priority Two or Priority Three. Waterfall will respond to Client's request for support in a manner appropriate for the Priority of Defect specified by Client as follows.
    • Priority One Defect. Waterfall will initiate diagnostic and remedial measures within one (1) hour of Client's telephonic, electronic or other notification of a Priority One Defect. Once Waterfall has commenced corrective measures, Waterfall will work continuously and diligently until the Defect has been remedied. If Waterfall can not satisfactorily correct a Priority One Defect through telephone, electronic or other remote means within two (2) hours after Client's initial notification, then Waterfall will apply dedicated efforts and resources (at no additional cost to Client) until the Defect is corrected. If Waterfall cannot satisfactorily correct a Priority One Defect within twenty-four (24) hours after Client's initial notification, then Waterfall will apply dedicated efforts and resources (at no additional cost to Client) until the Defect is corrected. Waterfall will periodically advise Client concerning Waterfall's progress, but not less than once each 4 hour period via preferred communication method: email or telephone.
    • Priority Two Defect. Waterfall will initiate diagnostic and remedial measures within four (4) hours of Client's telephonic, electronic or other notification of a Priority Two Defect. Once Waterfall has commenced corrective measures, Waterfall will complete all such corrections as soon as reasonably practicable. If Waterfall cannot satisfactorily correct a Priority Two Defect through telephone, electronic or other remote means within twenty-four (24) hours after Client's initial notification, then Waterfall will apply dedicated efforts and resources (at no additional cost to Client) until the Defect is corrected. Waterfall will periodically advise Client concerning Waterfall's progress, but not less once each 24 hour period via preferred communication method: e-mail or telephone.
    • Priority Three Defect. For Priority Three Defects, Waterfall will endeavor to correct the Defect and furnish and furnish a remedy no later than the next Update.