Terms of Service
Last updated: June 1, 2023
These Terms of Service (the “Terms”) are inclusive of the Bonfire™ Privacy Policy (“Privacy Policy”), and any and all other applicable Bonfire™ operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference, and shall be referred to herein, collectively, as the “Agreement.” Please read the Agreement carefully as it constitutes a legal agreement between you, on behalf of yourself and the and the entity that you represent (collectively, “user,” “you,” “your” or “yourself”), and WPA Intelligence, LLC, d/b/a Bonfire (“Bonfire™,” “we,” our” or “us”). The Agreement governs your access to and use of our website (bonfire.wpaintel.com or app.bonfiredata.com) (collectively, the “Site”), and the services, software, applications, technology, and the technical and communications platform(s) that we make available on and through the Site or our mobile app (collectively, the “Platform,” and together with the Site, the “Bonfire™ Offerings”).
By accessing or using the Bonfire™ Offerings, you agree to be bound by the terms of the Agreement, in their entirety. If you do not agree to the terms of the Agreement in their entirety, you may not access or use the Site or Platform. A printed version of the Agreement will be valid, enforceable, and admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as a paper agreement that you sign manually.
NOTICE: THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER AGAINST BONFIRE™, AS WELL AS ITS PARENT, SUBSIDIARIES, MEMBERS, EMPLOYEES, MANAGERS, DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, RELATED PARTIES, THIRD-PARTY PROVIDERS AND MARKETING PARTNERS (COLLECTIVELY, “COVERED PARTIES”), WHO ARE EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.
NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).
No Emergency Calling: Do not use the Platform or any associated content and/or services, including any telephone numbers to which you have access to through the Platform, to call emergency services. You must make alternative communications arrangements in order to make emergency calls. You acknowledge and agree that the Bonfire™ Offerings are not a substitute for a traditional telephone and that you will not use the Bonfire™ Offerings to make emergency calls using 911 or through other emergency telephone numbers. Your further agree that you will advise any users that gain access to the Bonfire™ Offerings from you that the Bonfire™ Offerings do not provide emergency calling functionality.
Payment Terms; Auto-Renewal: Where you purchase a subscription to the Platform (“Subscription”) and/or Credits (as defined below), the credit card, debit card and/or other permissible payment method account (collectively, “Payment Method”) that you provided on the initial registration form or updated at a later date will be charged the fees set forth in the Platform/on the Site at the time of registration/purchase, as applicable. Subscription fees will be charged on a monthly, recurring basis for as long as your Subscription remains active. Subscription fees will be charged in advance. You acknowledge and agree that Bonfire™ will not obtain any additional authorization from you for recurring Subscription payments. Every time that you access/use the Platform, you re-affirm that Bonfire™ is authorized to charge your Payment Method and to have the fees applied to same.
You may cancel the auto-renewal and recurring monthly charges by closing your account within the Platform, by emailing us at support@bonfiredata.com at least five (5) business days prior to the date of the month on which your Subscription is scheduled to renew. Any cancellation of the monthly auto-renewal is at your option and is without cost or penalty, provided that you cancel timely before the next month Subscription fees are automatically charged. Upon timely cancellation or termination of your Subscription for any reason, you will not be charged for any subsequent Subscription renewals; provided, however, that: (a) you will remain responsible for timely payment of any and all fees that you have already incurred; (b) you shall not receive any pro-rata refund for partial weeks; and (c) we will not refund any amounts previously paid up to the date of cancellation or termination. UNLESS OTHERWISE INDICATED, ALL SALES ARE FINAL AND NON-REFUNDABLE.
You are responsible for paying any taxes or charges imposed on your purchases including, but not limited to, toll-free, local, long distance, international minutes, additional feature charges, 411, 911, and operator assisted charges, directory assistance charges, universal service fund fees, and for all taxes including sales, use or value-added taxes. We will automatically charge and withhold the applicable fees and taxes to be delivered to addresses within any states or localities that we deem is required in accordance with our order policy in effect at the time of purchase.
We reserve the right, without notice, to terminate your Subscription if we do not receive timely payment. All charges are deemed accepted and approved unless you notify Bonfire™ of any discrepancies within sixty (60) days after they first appear on your credit card statement.
Messages. Depending on the number of credits that you purchase ("Credits”), you will be allotted a number of messages (both Voicemail Messages and User SMS Messages, as those terms are defined below) that you can send each month. Once you use all the Credits in your account, you will be required to purchase additional Credits to continue to use this functionality during that calendar month and your Payment Method will be charged at that time. If a User SMS Message exceeds the 150 characters permitted by text/SMS standards, such message will count as more than one message, such that each set of 150 characters in a User SMS Message will count as an additional User SMS Message against the Credits in your account.
User Calls. Depending on the Subscription plan that you choose, you may also be allotted a number of outbound User Calls, including IVR Calls (as those terms are defined below) per month. Rates for outbound User Calls are dependent upon the jurisdiction you are calling from. Rates may vary per country. Your account will be automatically debited at the applicable per minute rate for every outbound User Call. Numbers may be used for inbound calling. Inbound calls are also charged on a per minute basis rounded up to the next minute (60/60). In addition, inbound calls result in voicemail messages delivered to the number you designate, which voicemail messages also count towards your message allotment as set forth above.
Credit on Account. In the event that you have any unused Credits in your account at the end of the month, we may allow you, in our sole discretion, to roll-over any unused Credits in your account into the next Subscription Term (as defined below). In the event that you have such unused Credits at the end of the month, we may deduct fees and expenses from your account for maintenance of your account. Should your access to the Platform or your account be terminated or suspended by us for any reason while you have fees or Credits in your account, you acknowledge that you surrender your right to any unused fees or Credits in your account.
You must promptly notify us if your Payment Method is cancelled or is no longer valid (e.g., due to loss or theft) or your Subscription may be cancelled. Changes to such information can be made by utilizing the options made available in your account section on the Platform/Site or contacting a customer care professional at: support@bonfiredata.com. If your selected Payment Method is a credit card and your credit card fails to process for a subsequent weekly renewal of your Subscription, you agree that Bonfire™ may contact you on any phone number (including a cell phone number) or e-mail address provided by you for alternate payment information. If you fail to pay for any product or service received, your account may be sent to collection. The fees associated with your purchases will appear on your Payment Method statement through the identifier “Bonfire Data LLC.” All prices displayed on the Platform and Site are quoted in U.S. Dollars, are payable in U.S. Dollars and are valid and effective only in the United States. Failure to use your Subscription does not constitute a basis for refusing to pay any of the associated charges. Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions (as defined below) of Bonfire™ in effect at any given time. Upon reasonable prior notice to you (with Platform/Site-updates and/or e-mail sufficing), Bonfire™ reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Continued use of the Bonfire™ Offerings and/or Platform after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification.
Electronic Signatures: Bonfire's™ authorization to provide and bill for the Subscriptions is obtained by way of your electronic signature or, where applicable, via physical signature and/or voice affirmation. Once an electronic signature is submitted, this electronic order constitutes an electronic letter of agency. Bonfire's™ reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively (collectively, the “E-Sign Act”). Both laws specifically preempt all state laws that recognize only paper and handwritten signatures. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the E-Sign Act and other similar state and federal statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE BONFIRE™ OFFERINGS. Further, you hereby waive any rights and/or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. You acknowledge and agree that you have the ability to print information delivered to you electronically, or otherwise know how to store that information in a way that ensures that it remains accessible to you in unchanged form.
Platform and Services.
Platform. Upon registration of a Subscription, and payment of any applicable Subscription fees, you will have access to the Platform. The Platform enables you to: (i) upload contact information of individuals in the databases compiled by you ("User Database”); (ii) prepare and upload: (A) SMS text message communications (“User SMS Messages”); and (B) e-mail message communications (“User E-mail Messages”); (iii) create and distribute digital ad content ("User Ads”); and (iv) initiate interactive voice recording calls (“IVR Calls”) and telephone calls (“User Calls,” and together with the User SMS Messages, User E-mail Messages, User Ads and IVR Calls, the “User Communications”), and distribute User SMS Messages and User E-mail Messages, to individuals in the User Database (“Recipients”). We endeavor to ensure that User Communications are processed correctly and delivered by and through the Platform to the applicable Recipients (as defined below). Bonfire™ transmits User SMS Messages via major telecommunications companies and mobile network operators and, thus, Bonfire's™ control over the timing of the transmission of your User SMS Messages is limited by the technical constraints imposed upon Bonfire™. Further, while Bonfire™ employs commercially reasonable efforts to transmit your User Communications and broadcasts to the applicable network for final delivery to your designated Recipients as fast as possible, we cannot commit to, and do not guarantee, ultimate delivery or a specific maximum delivery time. Such delivery and times of delivery depend on various network and system-related factors among the various entities involved in the transportation of your User Communications and broadcasts across the public switched telephone network and Internet. You should know that communications carriers assign text messages with a default lifetime and any User Communication or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the applicable communications carrier without notice. As such, you understand and agree that Bonfire™ is not responsible for any loss or damage associated with any User Communication or broadcast delivery failure or delay. We reserve the right to modify, limit the availability, or terminate the Platform, or any portions of the Bonfire™ Offerings, including any services or features provided through the Platform (such as preview dialers, power dialers, automatic dialers, and predictive dialers) for any reason, at any time, and without liability to you. BONFIRE™ ACTS ONLY AS THE PROVIDER OF A PLATFORM TO FACILITATE MESSAGING AND COMMUNICATIONS BETWEEN YOU AND YOUR MESSAGE RECIPIENTS. YOU HAVE SOLE RESPONSIBILITY AND LIABILITY FOR THE CONTENT AND TRANSMISSION OF YOUR MESSAGES AND COMMUNICATIONS.
Compliant Use of the Platform
User Database . User is solely responsible for ensuring that the User Database consists of Recipients who have provided: "prior express written consent" (as defined in the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (the "TCPA")) to receive commercial telephone calls via automated means (including pre-recorded calls and artificial voice calls, as well as SMS text messages) from user to the provided telephone numbers ("TCPA Consent"); (B) consent required under other applicable state and federal laws including, without limitation, Federal Do Not Call List requirements, the Oklahoma Telemarketer Restriction Act, the Florida Telemarketing Act and Florida Do Not Call Act and the Washington Telemarketing Law HB1497 ("Additional Consents," and together with the TCPA Consent, the "Telemarketing Consent"); (C) "express agreement, in writing" (as required under the Amended Telemarketing Sales Rule, 16 C.F.R. § 310.4(b)(iii) (the " TSR ") to receive telephone calls from user to the provided telephone number even if it is listed on a state or federal Do Not Call list; (D) " Affirmative Consent ," as defined in the CAN-SPAM Act of 2003, as amended (" CAN-SPAM "), to receive commercial e-mail from user; and (E) the requisite consent (" CASL Consent ") to receive " Commercial E-Mail Messages, " as defined under Canada's Anti-Spam Legislation (" CASL "), from user, where the User Database contains the e-mail address(es) of any resident(s) of Canada. You shall retain the records of each individual's Affirmative Consent, CASL Consent and/or Telemarketing Consent, as applicable (" Consent Records "), for a minimum of five (5) years following collection of same. User must, within two (2) business days of receipt of Bonfire's™ request, provide the: (I) Consent Records to Bonfire™; and (II) the name, date, time, IP address and referral URL where the applicable individual(s) submitted the consumer data. User is solely responsible and fully liable for any third-party owned lists/databases used in connection with the Platform, including whether or not legally sufficient consent has been obtained from the Recipients contained in the applicable third-party owned list(s)/database(s)]. User agrees to fully indemnify and hold Bonfire™ harmless from and against any and all liability, claims, judgments, settlement amounts or other costs incurred by Bonfire™ (including attorneys' fees and court costs) in connection with user's failure, or suspected failure, to comply with the provisions set forth in this Section 2(a). Without limiting the foregoing, User hereby expressly acknowledges and agrees that Bonfire™ makes no claim that its Platform will not be considered an autodialer or automated telephone dialing system within the meaning of the TCPA and equivalent state statutes. As a result, Bonfire™ does not make any claim, representation or assertion that user's distribution of User Communications to Recipients will comply with the TCPA and/or any other applicable laws, rules regulations and/or guidelines.
User SMS Messages, IVR Calls and User Calls. User represents and warrants that it shall include clear opt-out/unsubscribe functionality in EVERY User SMS Message, IVR Call and User Call that is sent and/or initiated by and through the Platform, and that such opt-out/unsubscribe functionality shall satisfy any and all requirements under Applicable Law (as defined below). Without limiting any obligation to comply with Applicable Law arising hereunder, user shall comply with any: (A) state hour/time of day restrictions; provided, further, that user shall ensure that all User Calls are made between the hours of 9:00am and 8:00pm local time; and (B) restrictions applicable to placing calls on weekends and/or holidays, including the requirement that no User Calls and/or IVR Calls be made on Sundays, and that consumers shall not be contacted on federal holidays. User further agrees that any individual requesting “Do-Not-Call” (“DNC”) status including, without limitation, by making a request during a User Call or responding to a User SMS Message with the words “STOP,” “END,” “CANCEL,” “UNSUBSCRIBE,” “QUIT” and/or any other word, or combination of words, that indicate(s) that the Recipient no longer wishes to receive User SMS Messages, IVR Calls and/or User Calls from user, shall immediately be placed on user’s DNC list and removed from the User Database. Without limiting the foregoing, User agrees that it will: (I) not send any User SMS Message, initiate any IVR Call and/or initiate any User Call to any portion of the User Database, that has not been scrubbed against: (x) user’s DNC list; and (y) the Reassigned Numbers Database maintained by the Federal Communications Commission (“FCC”); (II) check such DNC list and Reassigned Numbers Database on a daily basis; (III) process all unsubscribe requests, no matter the source, within one (1) day of receipt of such requests and maintain electronic records evidencing the date and time of removal of such telephone numbers from the User Database; and (IV) maintain all records related to user scrubbing against the Reassigned Numbers Database, as required by Applicable Law.
User E-mail Messages. User shall ensure that any and all User E-mail Messages: (A) shall comply with Applicable Law including, but not limited to, CAN-SPAM, CASL and any and all Federal Trade Commission implementing regulations; (B) shall not infringe upon, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and (C) shall not result in any consumer fraud, product liability or breach of contract to which user is a party or cause injury to any third party. User shall cause a valid physical postal address for user to appear in each User E-mail Message, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery).
User Ads. User shall ensure that any and all User Ads: (Ai) shall comply with Applicable Law including, without limitation, laws applicable to deceptive advertising; (B) shall not infringe upon, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and (C) shall not result in any consumer fraud, product liability or breach of contract to which user is a party or cause injury to any third party. User shall fulfill all commitments made in User ads.
User Communications General Terms. User agrees that it is solely responsible for the content of the User Communications. User agrees to provide its valid and legally sufficient contact information in connection with each User Communication. User shall schedule User Communication campaigns responsibly, in a manner that is courteous to the Recipients and in full compliance with local, state, national and international calling time/date rules and regulations. user represents and warrants that it has all necessary ownership or other rights in and to the User Communications enabling user to distribute/initiate same as contemplated hereunder. In connection with the User Communications, and user’s performance under the Agreement, User agrees not to: (A) upload and/or share any User Communications that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; (B) upload and/or share any User Communications that infringe upon the trademark, trade name, service mark, copyright, license or other intellectual property or proprietary right of any third party; (C) express or imply that any statements that User makes are endorsed by Bonfire™, without our specific prior written consent; (D) transmit any User Communications that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any software, hardware or telecommunications equipment; (E) post, offer for download, transmit, promote or otherwise make available any product or service that is illegal or that violates the rights of a third party; (F) mislead others as to the identity of the sender of your User Communications by creating a false identity, impersonating the identity of someone/something else or by providing contact details that do not belong to you; and/or (G) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Platform. Engaging in any of the aforementioned prohibited practices shall be deemed a material breach of the Agreement and may result in the immediate termination of your Subscription and access to the Bonfire™ Offerings, including the Platform, without notice, in the sole discretion of Bonfire™.
Compliance with Applicable Law. By accessing and using the Platform and/or other Bonfire™ Offerings, you represent and warrant that your use of the Platform and other Bonfire™ Offerings, your User Communications, your User Database, your purpose for contacting Recipients and your activities associated with any of the foregoing will at all times be in strict compliance with all applicable Mobile Marketing Association (“MMA”) guidelines, guidelines made available by the Cellular Telecommunications Industry Association (“CTIA”), the rules, terms, conditions and policies of all participating mobile telephone carriers, as well as all applicable local, state, national, federal and international laws, rules and regulations including, but not limited to, all state, local and federal laws governing political campaigns and elections, the TCPA, the TSR, Pallone-Thune Telephone Robocall Abuse Criminal Enforcement And Deterrence Act (“TRACED Act”), the Oklahoma Telemarketer Restriction Act, the Florida Telemarketing Act and Florida Do Not Call Act, the Washington Telemarketing Law HB1497, the Gramm-Leach Bliley Act of 1999 (15 U.S.C. §§ 6801 et seq.), the FTC’s Safeguards Rule (16 CFR Part 314), the Federal Trade Commission Act, CAN-SPAM, CASL, the Federal Communications Act, state and federal election laws, and all rules and regulations promulgated under any of the foregoing (collectively, “Applicable Law”).
Without limiting the foregoing, user represents and warrants that its User Database, and use thereof, shall at all times comply with both the California Consumer Privacy Act, Cal. Civ. Code § § 1798.100 et seq. (“CCPA”), the California Privacy Rights Act (“CPRA”), the Colorado Privacy Act (“CPA”), the Connecticut Data Privacy Act (“CDPA”), the Utah Consumer Privacy Act (“UCPA”) and the Virginia Consumer Data Protection Act (“VCDPA”), and all other applicable federal and state data protection laws (collectively, “Applicable Privacy Laws”). Without limiting the foregoing, user shall ensure that the following shall fully comply with Applicable Privacy Laws: (A) user’s internal User Database, data security policies and procedures, encryption technology, personnel oversight and networks; (B) user’s record keeping practices in connection with consumer data obtained, stored, utilized and/or transferred to third parties by user; (C) user’s procedures for preventing a breach of User Database data and responding in the event that a consumer data breach occurs; (D) user’s policies and procedures related to cross-border transfers of personal information; and (E) user’s policies for honoring the right of consumers to exercise all rights granted consumers under Applicable Privacy Laws.
Neutral Host. Bonfire™ operates the Platform as a neutral host. User understands and agrees that Bonfire™ will not be responsible for, and Bonfire™ undertakes no responsibility to monitor or otherwise police, the User Communications and/or user’s use of the Platform. User agrees that Bonfire™ shall: (A) have no obligations and incur no liabilities in connection with any User Communications and/or user’s use of the Platform; and (B) not be liable to any party for any claim in connection with the User Communications and/or user’s use of the Platform.
Legal Disclaimer. Neither Bonfire™ nor the Bonfire™ Offerings are intended, under any circumstances, to offer legal advice, recommendations or counselling in connection with any legal matter including, without limitation, compliance with the TCPA (including obtaining “prior express written consent” from consumers in connection with same), compliance with any other telemarketing laws, compliance with Applicable Privacy Laws or any other Applicable Law, and no element of the Bonfire™ Offerings should be construed as such. You should always check with your attorney(s) to ensure that any use of the Bonfire™ Offerings, including your User Communications, complies with Applicable Law including, without limitation, Applicable Privacy Laws and the TCPA.
Modification of the Agreement. We may amend the Agreement from time to time in our sole discretion, without specific notice to our users; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted through the Platform and on the Site, and you should review the Agreement, in its entirety, prior to using the Bonfire™ Offerings. By your continued use of the Bonfire™ Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
Privacy. The Bonfire™ Privacy Policy, located at: https://app.bonfiredata.com/privacy-policy, is hereby incorporated into these Terms by reference. Use of the Bonfire™ Offerings is subject to our Privacy Policy. Please read the Privacy Policy carefully prior to accessing and/or utilizing the Platform, the Site and/or any other of the Bonfire™ Offerings. If you do not want your data collected, used or shared in the manner contemplated by the Privacy Policy, you should not use the Site or Platform in any way.
Account
Registration. In order to fully access or use the features and services available through the Bonfire™ Offerings, you will be required to first register for an account through our online registration process. The Bonfire™ Offerings are available only to individuals who: (i) are acting in their capacity as duly authorized representatives of a valid business entity ("Entity”); and (ii) are eighteen (18) years of age or older (or the applicable age of majority, if greater than eighteen (18) years of age in their respective jurisdictions) (collectively, “Usage Requirements”). The Bonfire™ Offerings are not intended for individuals who do not satisfy the Usage Requirements. If a user does not satisfy the Usage Requirements in their entirety, that user does not have permission to access or use the Bonfire™ Offerings.
Registration Information. In order to open an account and utilize certain of the Bonfire™ Offerings (including the Platform), each prospective user will be required to register for an account. Where a user opens an account, Bonfire™ may collect some or all of the following information about that end-user/Entity: (i) full name; (ii) e-mail address; (iii) mailing address; (iv) telephone number; (v) Entity name; and/or (vi) any other information requested by us on the applicable form (collectively, “Registration Data”). You will select your own password at the time of registration. You should select a strong password. Your selected password must meet certain minimum requirements, but we do not guarantee the security of any password. We may reject the use of any password, username, or e-mail address for any reason in our sole discretion. You will provide true, accurate, current, and complete Registration Data about yourself and any Entity that you represent in connection with the registration process and update it continuously and promptly to keep it accurate, current, and complete.
Identity Proof. We reserve the right to investigate or otherwise require proof of your identity, documentation of your Entity’s legal status and corporate standing, and ownership of any caller-id number you may bring to the account, either during the registration process or at any time thereafter. If you fail to provide such information, we may not allow you to open an account or may terminate or suspend your account and access to the Platform as otherwise permitted by these Terms.
Use of Your Account. You are solely responsible for all activities that occur through your account, password, or username, including any charges incurred in connection therewith, whether or not you authorized the activity. You are solely responsible for maintaining the confidentiality of your password and for restricting access to your account. You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security. You may not sell, transfer, or assign your account or provide any third party with access to your account.
Access via Mobile Device. You may access your account from your mobile device. However, your use of your mobile device to access your account may result in data or other charges from your carrier. In addition, your carrier may prohibit or restrict certain functions accessed via your mobile device and certain Bonfire™ Offerings features may be incompatible with your carrier or mobile device. You agree that as part of your use of your mobile device to access the Platform, you expressly consent to us, without limitation, sending communications to any phone number you provide to us using SMS (text messages), an automated telephone dialing system, or featuring an automated or prerecorded voice. YOU REPRESENT AND WARRANT THAT THE PHONE NUMBERS THAT YOU HAVE PROVIDED TO US AS PART OF YOUR REGISTRATION ARE YOUR CONTACT NUMBERS AND THAT YOU ARE PERMITTED TO RECEIVE CALLS, TEXTS, AND OTHER MESSAGES AT EACH PHONE NUMBER. You agree to immediately alert us whenever you stop using a phone number. Further, we may collect information related to your use of the Platform via your mobile device.
Subscription Term & Cancelation Rights.
Term. Your Subscription to the Platform will commence as of the date that your payment for a Subscription is received. Your Subscription will be prepaid on a month-to-month basis until such time as you cancel the Subscription as permitted hereunder (the “Subscription Term”).
Notice of Subscription Changes. We may cease providing certain Subscription packages or features of same at any time. We make no guarantee that any Subscription you purchase will continue to be available. We will provide you with notice of changes to your Subscription package prior to renewal. If you do not wish to accept a price or Subscription package change made by us, you may cancel your Subscriptions, otherwise you will be deemed to have consented to the price/Subscription package change and authorize us to charge the new fees to your Payment Method.
Termination or Suspension
You have the right and ability to cancel or otherwise upgrade/downgrade your Subscription at any time using the functionality available in your account settings. In the event that you cancel a Subscription in the middle of your Subscription Term, you will not be entitled to receive a refund for the unused portion of the remainder of that Subscription Term
We reserve the right to suspend or terminate your account or access to the Bonfire™ Offerings at any time, in our sole discretion and without prior warning: (A) if we reasonably believe that you or your account activity violates the Agreement and/or Applicable Law; (B) you are investigated by any law enforcement or regulatory agency; (C) if you fail to make any payments when due or your Payment Method fails to process; (D) if you become subject to any petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (E) if we believe that your account activity creates any security threat or vulnerability to Bonfire™ or our network, Platform, Site or any third party or is otherwise harmful to the interests of Bonfire™.
No fees will be refunded in the event of any suspension or termination and any such suspension or termination will not otherwise affect your obligations to us under the Agreement. At a minimum, to the extent permitted by Applicable Law, we will provide you with notice of any such suspension or termination following same.
Effect of Cancelation, Termination or Suspension. Upon cancelation, suspension, or termination of your account or Subscription Term, you will no longer have access to the Bonfire™ Offerings, all rights granted to you under the Agreement will cease immediately, and you must immediately discontinue use of the Bonfire™ Offerings. Upon suspension, cancelation, or termination of your Subscription and account, we may delete or otherwise destroy Your Content (defined below) and your account data at our discretion subject to our legal and other compliance obligations which may require us to keep Your Content for up to four (4) years or more. If you have unused fees or Credits in your account as of the date of any cancelation or termination, those fees will not be refunded to you.
Additional Platform Features
Voicemail Delivery. Through your use of the Platform, we provide “straight to voicemail” messages ("Voicemail Messages”), which are sometimes referred to as “ringless” voicemail messages. You must obtain all requisite Telemarketing Consent in order to contact Recipients via Voicemail Messages, and your Voicemail Messages must otherwise comply with Applicable Law. We make no representation or guarantee as to whether the Recipient’s phone will ring, whether the Recipient’s voicemail system will show a missed call notification, or whether the Recipient’s voicemail system will actually deliver the Voicemail Message to the Recipient. We have no control over whether telecommunications or voice mail providers filter or block your message or otherwise block ultimate delivery of your message or communication to the Recipient. When you send Voicemail Messages through the Platform, we will designate individual messages as “delivered” and will debit funds from your account if during delivery:
We detect that a voicemail system is present for a given phone subscriber;
We detect that the voicemail system is ready to receive a Voicemail Message; and
The connection to the voicemail system stays open for the full duration while we transmit your Voicemail Message.
As a result, you may be charged for messages that are not received by your target contact
No Emergency Calling. If you purchase exclusive access to a telephone number from us, you understand and agree that it is a voice-over-internet-protocol (“VOIP”) number, which does not offer traditional dial tone functionality. The Platform and associated services are not a replacement for traditional wireline services, nor are they a replacement for cellular services. YOU CANNOT MAKE EMERGENCY CALLS USING THE PLATFORM OR OTHER BONFIRE™ OFFERINGS. IF YOU ATTEMPT TO MAKE A 911 CALL WHILE USING THE PLATFORM FROM YOUR DESKTOP OR LAPTOP COMPUTER, YOU WILL RECEIVE AN ERROR MESSAGE STATING THAT THE CALL CANNOT BE COMPLETED. IF YOU ATTEMPT TO MAKE A 911 CALL USING THE PLATFORM ON YOUR MOBILE DEVICE, YOU WILL RECEIVE AN ERROR MESSAGE STATING THAT THE CALL CANNOT BE COMPLETED. Use of our services from a cellular phone does not interfere with your ability to place a 911 call from your mobile device as you would typically place such a call. It is only if you attempt to place an emergency call using the services through the actively running Platform that such a call will not complete. You agree to advise any users of the Platform that the Platform and its services do not provide emergency calling functionality. Accordingly, you must ensure that you and any other users of the Services have other communications services available to you or to them so that you and they are able to place emergency calls.
Links and Connection to Third Party Service. The Platform allows you access to an open API service for you or your developers to directly integrate the Platform into other third party software, services or applications of your choice. If you choose to use such integration feature, or otherwise access such third party software, services, applications, websites or materials, or utilize this API, you do so at your own risk. We do not control the features, functionality or user experience within any third party platform, software or service, nor are we responsible or liable for any such third party platform, software or service, even if connected or integrated with our Platform via the API service. We also do not and cannot control any claims or representations made about our Site, Platform or services by any such third party. No third party is authorized to make any claim, representation or warranty about our Site, Platform or services. In addition, there may be links from the Site or Platform, or from images or content within the Platform to third party websites, which websites are outside of our control.
Use of Platform; Ownership Rights.
Rights to the Platform. The Platform (including all software associated therewith), Site, the other Bonfire™ Offerings, and all associated content (including, without limitation, all text, audio, video, graphics, charts, photographs, interfaces, icons, software, computer code, applications, databases, trademarks, logos, slogans, names of products and services, documentation, other components and content, and the design, selection, and arrangement of content) are exclusively the property of Bonfire™ or its licensors, and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property laws. Subject to your compliance with the Agreement, we grant you a limited, nonexclusive, non- transferable, non-sub-licensable license to access and use the Bonfire™ Offerings. This license is revocable at any time as further contemplated by these Terms. We do not grant you any other right or license to use the Bonfire™ Offerings or any other technology, software or other intellectual property or proprietary rights of Bonfire™. Unauthorized use of the Bonfire™ Offerings is a violation of the Agreement, which may result in the termination of your account and Subscription, and may constitute a violation of Applicable Law.
Restrictions on Use of Platform. You may not: (i) reverse engineer, decompile, disassemble, reverse assemble, or modify any Platform source or object code or any software or other products, or processes accessible through any portion of the Bonfire™ Offerings; (ii) engage in any activity that interferes with another user’s access to the Bonfire™ Offerings or the proper operation of the Bonfire™ Offerings, or otherwise causes harm to the Bonfire™ Offerings, Bonfire™, or other users of the Bonfire™ Offerings; (iii) interfere with or circumvent any security feature of the Bonfire™ Offerings or any feature that restricts or enforces limitations on use of or access to the Bonfire™ Offerings; (iv) attempt to gain unauthorized access to the Bonfire™ Offerings, other computer systems or networks connected to the Bonfire™ Offerings, through password mining or any other means; (v) sell, resell, sublicense, share, rent or lease the Bonfire™ Offerings to any third party; (vi) access the Bonfire™ Offerings for purposes of monitoring its availability, performance, reliability or functionality, or for any other benchmarking or competitive purposes; (vii) use the Bonfire™ Offerings in violation of any Applicable Law; or (viii) otherwise violate the Agreement. You are responsible for any breach of the Agreement by you, the employees of your Entity or any other users accessing the Bonfire™ Offerings through your account, directly or indirectly.
Your Content.
You are responsible for all third party contact information, messages, data, text, video, photos, audio and all other materials and information (including personal information of your users and the User Database) that you upload to the Platform or is uploaded via your account (collectively, “Your Content”). As between you and us, you retain ownership of any proprietary or intellectual property rights that you hold in Your Content. You grant us a limited, non-exclusive, worldwide, sublicensable, royalty-free license, during the Subscription Term to reproduce, copy, display, transmit, share and otherwise use Your Content as necessary for our operation of the Bonfire™ Offerings and provision of the services. You are solely responsible for maintaining backups and records of Your Content. We are not your system of record and have no liability or responsible for any loss or destruction of Your Content. You must maintain copies of all records required by Applicable Law. You may download limited portions of Your Content at any time from the Platform. Upon your reasonable request, we can provide a download of Your Content to you in a form and format we reasonably select, subject to your payment of our then-current time and materials fees.
Usage Data. We collect various usage data and statistics regarding your use of the Bonfire™ Offerings and your account (“Usage Data”). We may use this Usage Data for any internal purpose, including marketing and advertising efforts, and may disclose this Usage Data provided any such disclosures are anonymized such that neither you nor any of your contacts are reasonably identifiable. Certain Usage Data pertaining to your account may be accessible via the Platform, but we otherwise have no obligation to provide you with copies of or access to any such Usage Data.
Prohibitive Use. Bonfire™ prohibits any use of the Bonfire™ Offerings in connection with any of the following:
Activities that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, libelous, defamatory, scandalous, or abusive, or that violate any right of any third party, or are otherwise objectionable;
Storage or transmission of infringing, libelous, or otherwise unlawful or tortuous material, or material in violation of third-party privacy rights;
Pornography, sexual products, otherwise sexually explicit material, or escort services;
Illegal drugs or drug contraband
Alcoholic beverages, especially any promotion of alcohol to persons under twenty-one (21) years of age;
Pirated computer programs, viruses, worms, Trojan horses, or other malicious or harmful code;
Instructions or materials for the assembly of bombs or other weapons;
Disclosure of anyone’s private or personally identifying information without such party’s prior express written consent (or parents’ prior express written consent in the case of a minor);
Material that displays any person under eighteen (18) years of age in an illicit or otherwise exploitative manner;
By accessing and/or using the Bonfire™ Offerings, you represent and warrant that: (a) the Agreement constitutes the legal, valid and binding obligation for you and the Entity that you represent, which is fully enforceable against you and that Entity in accordance with its terms; (b) you understand and agree that you and, if applicable, the Entity that you represent, have independently evaluated the desirability of utilizing the Bonfire™ Offerings and that neither you nor the Entity that you represent has relied on any representation and/or warranty other than those set forth in the Agreement; (c) the execution, delivery and performance of the Agreement by you and the Entity that you represent, if applicable, will not conflict with or violate Applicable Law; (d) all account registration data that you submit will be true, accurate, current, and complete, and you will maintain the accuracy of such account registration data and promptly update same as necessary; (e) you will not access the Bonfire™ Offerings through automated or non-human means, whether through a bot, script, or otherwise; and (f) you will not use the Bonfire™ Offerings for any illegal or unauthorized purpose. You further represent and warrant that:
You will not access or otherwise use any third- party list of phone numbers or otherwise engage in unsolicited messaging/initiate any unsolicited User Communications using the Bonfire™ Offerings in violation of Applicable Law. Additionally, you agree not to send messages to your contacts beyond the frequency represented in any disclosures or terms you have with such contacts.
You warrant and covenant that any message through the Bonfire™ Offerings must represent truthfully your identity, the identity of your Entity, your product or service, availability of goods or services, pricing, benefits, and any other offering aspects in your messaging.
Warranty Disclaimers
THE BONFIRE™ OFFERINGS, AND ALL SERVICES ACCESSIBLE THROUGH SAME, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. NO THIRD PARTY IS PERMITTED OR AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR COVENANT WITH RESPECT TO THE SITE, PLATFORM, OR SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, BONFIRE™ AND ITS COVERED PARTIES MAKE NO REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR PROMISES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, SECURITY, AVAILABILITY, AND FREEDOM FROM COMPUTER VIRUSES.
IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, BONFIRE™ MAKES NO WARRANTY THAT THE BONFIRE™ OFFERINGS AND/OR SERVICES THAT YOU MAY ACCESS BY AND/OR THROUGH THE BONFIRE™ OFFERINGS: (i) WILL MEET ANY USER’S REQUIREMENTS; (ii) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (iii) WILL BE FREE OF HARMFUL COMPONENTS; (iv) WILL ENABLE ANY USER TO SUCCESSFULLY DELIVER ANY USER COMMUNICATIONS; (v) WILL RESULT IN USER COMMUNICATIONS THAT ARE DELIVERED OR TIMELY; AND/OR (vi) WILL BE ACCURATE OR RELIABLE. THE COVERED PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) BY AND/OR THROUGH THE BONFIRE™ OFFERINGS IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE BONFIRE™ OFFERINGS IS AT YOUR SOLE RISK. COVERED PARTIES DO NOT WARRANT THAT YOUR USE OF THE BONFIRE™ OFFERINGS IS LAWFUL IN ANY PARTICULAR JURISDICTION OR WILL ALLOW YOU TO COMPLY WITH THE LAWS OF ANY JURISDICTION AND COVERED PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.
COVERED PARTIES DO NOT WARRANT, GUARANTEE, OR REPRESENT THAT YOU WILL RECEIVE ANY PARTICULAR RESULT FROM USE OF THE BONFIRE™ OFFERINGS, OR THE SERVICES AVAILABLE IN CONNECTION THEREWITH. IF YOU ARE UNHAPPY OR DISSATISFIED WITH THE BONFIRE™ OFFERINGS OR ANY RESULTS DERIVED FROM SAME, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USE OF SAME, EVEN IF SUCH REMEDY SHOULD FAIL OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES. AS SUCH, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT ANY SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS
Limitations on Our Liability.
EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL THE COVERED PARTIES BE LIABLE FOR LOSS OF PROFIT, LOSS OF REVENUE, COST OF REPLACEMENT GOODS OR SERVICES, LOSS OF DATA OR YOUR CONTENT, LOSS OF GOODWILL, OR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES THAT RESULT FROM: (i) THE USE OF, OR INABILITY TO USE, THE BONFIRE™ OFFERINGS; (ii) THE PROVISION OF THE BONFIRE™ OFFERINGS OR ANY MATERIALS AVAILABLE THERETHROUGH; (iii) THE CONDUCT OF OTHER USERS OF THE BONFIRE™ OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND./OR (iv) THE FAILURE TO DELIVER, OR TIMELY DELIVER, ANY USER COMMUNICATIONS .
IN ANY EVENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COVERED PARTIES’ TOTAL LIABILITY TO YOU, THE ENTITY YOU REPRESENT, OR ANY OTHER THIRD PARTY, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE OR THE BONFIRE™ OFFERINGS, YOUR USE OF ANY SERVICES, OR YOUR RIGHTS UNDER THE AGREEMENT, EXCEED AN AMOUNT EQUAL TO THE FEES YOU HAVE PAID BONFIRE™ IN THE PREVIOUS TWELVE (12) MONTHS. THIS LIMITATION APPLIES EVEN IF THE PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY REMEDIES PROVIDED FAIL OF THEIR ESSENTIAL PURPOSE.
THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BONFIRE™. THE SITE, PLATFORM AND SERVICES WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
Indemnity. By agreeing to the Agreement, you agree to indemnify and hold the Covered Parties harmless from and against any and all damages, losses, costs, liabilities, fees, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, allegation, lawsuit, demand or investigation, and to defend the Covered Parties from the foregoing, to the extent based upon or arising from: (a) Your Content; (b) your use of the Bonfire™ Offerings or your activities in connection with same including, without limitation, any User Communication or other message sent by you through your use of the Bonfire™ Offerings; (c) your breach or alleged breach of the Agreement; (d) your violation or alleged violation of any Applicable Law including, without limitation, Applicable Privacy Laws, the TRACED ACT, TSR, TCPA, or CAN-SPAM and any law enforcement or regulatory investigation regarding same; (e) any alleged or actual infringement or misappropriation by you of any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (f) any misrepresentation made by you; (g) any other party’s access and/or use of the Bonfire™ Offerings through your account; and (h) any failure to obtain consents required by Applicable Law or regulations prior to sending communications or messages using the Bonfire™ Offerings or any privacy law violation.
Feedback. You agree that submission of feedback, suggestions, ideas, or other information or materials regarding the Bonfire™ Offerings that you provide, whether by email or otherwise (“Feedback”) is at your own risk and we have no obligations with respect to such Feedback. Feedback will not be considered or maintained as confidential. You represent and warrant that you have all rights necessary to submit the Feedback. You grant us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re- format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback in connection with the operation and maintenance of the Bonfire™ Offerings without attribution, notice or any compensation or consideration to you.
Confidentiality. Each party may have access to the other party’s information, which consists of information identified as such by the disclosing party and any information that by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans and any information which provides a competitive advantage. The receiving party must protect the other’s confidential information with the same degree of care it uses for its own confidential information (and at least a reasonable degree of care), may use the information only to carry out the Agreement, and may disclose the information only to its employees (or contractors bound by similar confidentiality obligations) with a need to know for that purpose. Confidential information remains the property of the disclosing party and will be destroyed upon request. Notwithstanding the above, neither party is required to accelerate the destruction of any archival back-up tapes created in the ordinary course of business, even if such archival back-up tapes contain confidential information. Information will not be deemed confidential information if it: (a) is disclosed by the disclosing party to others without restriction on use and disclosure; (b) becomes known to the receiving party without restriction from a third party who is not in breach of a confidentiality agreement with the disclosing party; (c) is already known by the receiving party at the time of disclosure; or (d) is independently developed by the receiving party without any reliance on the confidential information of the disclosing party. Confidential information may be disclosed to the extent required by Applicable Law, provided the disclosing party is given reasonable advance notice of such disclosure.
Dispute Resolution, Class Action Waiver and Arbitration. The Agreement shall be treated as though they were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Furthermore, the Agreement will not be governed or interpreted in any way by referring to any law based on Uniform Computer Information Transactions Act (“UCITA”), any other act derived from or related to UCITA or the United Nations Convention for the International Sale of Goods, each of which is disclaimed in their entirety. The parties (and Covered Parties) hereby agree to arbitrate all claims that may arise under and/or relate to the Bonfire™ Offerings and/or the Agreement. Without limiting the foregoing, should a dispute arise between the parties/any Covered Parties including, without limitation, any matter concerning the Bonfire™ Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties/Covered Parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association (“AAA”) in New York, NY, in accordance with the then current Commercial Arbitration rules of the AAA; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found here. The Covered Party(ies) named in your Initial Dispute Notice (collectively, the “Named Parties”) may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If the applicable Named Party(ies) provide(s) you with a Final Settlement Offer and you do not accept it, or such Named Party(ies) cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before the AAA, in your county of residence, by filing a separate Demand for Arbitration, which is available here. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than the applicable Final Settlement Offer, then the Named Party(ies) will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, the Named Party(ies) will reimburse any reasonable attorneys' fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Although the Named Party(ies) may have a right to an award of attorneys' fees and expenses if Named Party(ies) prevail(s) in arbitration, the Named Party(ies) will not seek such an award from you unless the arbitrator determines that your claim was frivolous. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against any of the Covered Parties. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that any Covered Party incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Platform.
General Provisions
Use Outside of the United States. Bonfire™ controls and operates the Bonfire™ Offerings from its Oklahoma-based offices in the United States of America. If you use or access the Bonfire™ Offerings from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Bonfire™ Offerings may describe services that are available only in the U.S.A. (or only parts of the U.S.A.) and may not be available worldwide.
Export Control. No portion of the Bonfire™ Offerings may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services; (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses).
Communications. When you communicate with us electronically, such as via email or text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that: (a) we may give you notices of a new, revised or changed Agreement and other important matters by prominently posting notice on the homepage of the Site and/or Platform, or in another reasonable manner; and (b) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address.
Assignment. We may assign our rights pursuant to the Agreement, or delegate any obligations we have to third parties. The Agreement may not be assigned by you, and you may not delegate your duties under it, without the prior written consent of an officer of Bonfire™. Any purported assignment in violation of this Section 15(d) is void and without effect.
Waiver; Rights and Remedies. No Bonfire™ right or remedy shall be exclusive of any other, whether at law or in equity including, without limitation, damages, injunctive relief, attorneys' fees and expenses. Our failure to require or enforce strict performance by you of any of the terms and conditions contained in the Agreement, or to exercise any right under same, shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance.
No Third Party Beneficiaries. The Agreement does not create or confer any third-party beneficiary rights.
Severability. The Agreement is intended to be severable. If for any reason any terms and/or conditions contained in the Agreement are held invalid or unenforceable, in whole or in part, by any court of competent jurisdiction, such terms and/or conditions shall, in such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Agreement, which shall continue to be binding.
Survival. The provisions of the Agreement that by their nature should survive the cancelation or termination of your Subscription or your rights pursuant to the Agreement, will survive.
Entire Agreement. These Terms, together with our Privacy Policy and any additional rules or policies that may be posted in connection with the Platform and/or Site from time to time, supersede all prior understandings regarding the Bonfire™ Offerings, and represent the complete agreement between you and Bonfire™.
Technical Difficulties. We are not responsible for delays, disruptions, malfunctions or other technical interruptions that affect the Bonfire™ Offerings including, without limitation, problems with the Platform, the Site, computer systems, telephone carriers, or Internet service providers, or the quality of coverage, strength of signal, delays or outages in service.
Linked Sites. You may be able to access third-party websites or services via the Site and/or Platform. We are not responsible for third-party websites, services or content available through those third-party websites. You are solely responsible for your dealings with third-parties (including advertisers). Your use of third-party software, websites or services may be subject to those third-parties’ terms and conditions and privacy policies. Please review those legal policies before using any linked websites.
California User Consumer Rights. In accordance with Cal. Civ. Code Sec. 1789.3, California State resident users may file grievances and complaints with the California Department of Consumer Affairs, 400 R Street, Ste. 1080, Sacramento, CA 95814; or by phone at 916-445-1254 or 800-952-5210; or by email to dca@dca.ca.gov.
Notice to U.S. Government Users. The Platform is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government users obtain access to the Platform with only those rights set forth therein.
Conflicting Terms; Relationship of the Parties; Headings. To the extent that anything in or associated with the Bonfire™ Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section
Contacting Us. If you have a question regarding using the Bonfire™ Offerings, you may contact us: (i) by U.S. Mail at: 1900 E 15th Street, Suite 600A, Edmond, OK 73013; (ii) email at: support@bonfiredata.com; or (iii) by calling us at: (202) 470-6300.
