Orca Wave Terms of Service
February 20, 2017
Orca Wave, LLC (“Orca Wave”) operates a mobile technology platform, branded Bitscio that enables its customers to create and manage content and then initiate the transmission of such content over wireless operator/carrier networks for ultimate delivery to mobile devices (the “Service”). This Orca Wave Terms of Service (the “Agreement”) sets forth the terms and conditions of your use of the Service.
THIS IS A BINDING LEGAL AGREEMENT AND COMMITMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) (“YOU”) AND ORCA WAVE REGARDING THE USE OF THE SERVICE. IF YOU ARE A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN USE OF THE SERVICE IS EXPRESSLY CONDITIONED UPON ACCEPTANCE OF THIS AGREEMENT BY A PERSON WHO IS AUTHORIZED TO SIGN FOR AND BIND THE ENTITY; IF YOU ARE NOT AUTHORIZED TO SIGN FOR AND BIND THE ENTITY, THEN IMMEDIATELY CEASE ANY USE, ATTEMPTED USE, OR FUTURE USE OF THE SERVICE.
PLEASE READ THIS AGREEMENT IN FULL BEFORE USING THE SERVICE. YOUR USE OF THE SERVICE SHALL CONSTITUTE YOUR BINDING ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS IN THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SERVICE. CONTINUED USE WILL CONSTITUTE YOUR BINDING ACCEPTENCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT THEN CURRENTLY IN EFFECT.
- REGISTRATION OBLIGATIONS
In consideration of use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (“Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Orca Wave has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Orca Wave has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
All payments for Orca Wave services must be made by a method approved for your account.
You must notify Orca Wave in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to Orca Wave within sixty (60) days of the applicable charge and we will work together with you to resolve the applicable dispute promptly. If you do not provide us with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you.
2.1 CHARGES TO YOUR ACCOUNT
You will be charged fees for the Service in the amounts set forth in the service pricing confirmation that you receive when you sign up for the Service. The fees include, but may not be limited to, set-up fees, monthly fees, monthly minimum fees, transactional or data transfer fees, and industry related service fees, pass through fees, or surcharge fees and taxes as more fully described below and in your pricing confirmation. All monthly fees and set-up fees will be due in advance of the month incurred. All payments must be received by Orca Wave in United States Dollars currency (USD). Any payments originated in another currency, must be calculated in reverse against the United States Dollars currency so that the amount received by Orca Wave is equal to the amount billed to you.
2.2 SET-UP FEE
When you register for the Service, you may be charged a one-time non-refundable set up fee, based on the type of service you have signed up to use or receive.
2.3. MONTHLY FEE AND/OR MONTHLY MINIMUM
You may be charged a one-time set-up fee, monthly fee, or monthly minimum fee for your Service as outlined in your pricing confirmation.
2.4 TRANSACTIONAL OR DATA TRANSFER FEE
You will be charged a fee for transactional and/or data usage as set forth in your pricing confirmation. Transactional and/or data usage fees, such as domestic or international per minute or per message charges, may be updated from time to time. Any updated transactional or data transfer fees will become effective when communicated to you pursuant to the notice provisions of Section 20 below.
2.5 UPGRADES AND DOWNGRADES
You will have the ability to upgrade or downgrade (add or remove) Services at any time during the monthly term. Such upgrade or downgrade will take effect immediately. For any upgrade in package level, you will be refunded a pro-rata amount for the lower level of Service and charged a pro-rata amount for the higher-level Service. The refund and charge will both be based on the number of days remaining in the monthly term. For any downgrade, you will have access to the service for the days remaining in the monthly billing term, however you will not be refunded a pro-rata amount for these remaining days in the monthly term. If you are subject to a contract agreement or commitment that is greater than a monthly term, the terms of that agreement will govern or modify the charges described herein.
You have the right to cancel the Service at any time by written notice to Orca Wave. If your Service contract and commitment is on a monthly term and you cancel the Service before the end of the monthly term, your cancellation will take effect immediately. If your Service contract and commitment is on a term greater than monthly, you will be billed for the remainder of the term. In either case, you will have access should you choose to use the service for the remainder of the term and you will be billed for the Service for the remainder of the term in which you cancel. Upon cancellation, all data associated with your account will be purged with the exception of data supporting the count of account, service assets, and service transactions to support any billing related inquiries. Following 90 days from the end of the Service cancellation term, all data may be purged completely.
- ACCOUNT SECURITY
You are responsible for maintaining the security of your account, including maintaining the confidentiality of your customer number, platform portal login and password, platform API (application programming interface) credentials and other account access information. You agree that you are fully responsible for all activities that occur under your account. You agree to immediately notify Orca Wave of any unauthorized uses of your account or any other breaches of security. Orca Wave cannot and will not be liable for any loss or damage from your failure to comply with these security obligations.
- YOUR USE OF THE SERVICE
You agree to use the Service only for lawful purposes. You agree and warrant that the transmission of any data or content through the Service will not violate any federal, state, local or foreign laws, rules or regulations.
You further agree that the subscribers of the phone numbers to which you initiate automated marketing or automated reoccurring messages through the Service have consented or otherwise opted-in to the receipt of your messages as required by any applicable law or regulation. Any conversational messages initiated between two parties may not be required to be opted-in depending on the message flow configuration. You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and industry regulations and are solely responsible for all acts or omissions that occur under your account, including, without limitation, the content of the messages that you create and initiate through the Service.
- CONTENT AND CONDUCT RULES AND OBLIGATIONS
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Orca Wave, are entirely responsible for all Content that you upload, post, initiate, transmit or otherwise make available via the Service.
You agree that you will not:
(a) upload, post, initiate, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, adult-oriented, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, an Orca Wave official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service
(e) upload, post, initiate or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, initiate or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, initiate or otherwise transmit unsolicited commercial email, SMS or MMS Messages, or “spam.” This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam,” such as (a) sending mass emails or SMS or MMS Messages to recipients who haven’t requested them from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your site by posting multiple submissions in public forums that are identical.
(h) upload, post, initiate or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) “stalk” or otherwise harass another;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating “Crush” sites.
(m) offer for sale or sell any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (c) Orca Wave determines, in its sole discretion, contains inappropriate content to be transmitted through the Service provided by Orca Wave.
Orca Wave abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, we may remove or disable access to material residing on a site that is controlled or operated by Orca Wave that is claimed to be infringing, in which case we will make a good-faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. Orca Wave does not control content hosted on third party websites, and cannot remove content from sites it does not own or control. If you are the copyright owner of content hosted on a third-party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed.
Before serving either a Notice of Infringing Material or Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with Orca Wave’s rights and obligations under the DMCA and, in particular, section 512(c), and do not constitute legal advice.
Notice of Infringing Material
To file a notice of infringing material on a site owned or controlled by Orca Wave, please provide a notification containing the following details:
- Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL);
- Reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material);
- Your contact information so that we can contact you (for example, your address, telephone number, email address);
- A statement that you have a good faith belief that the use of the material identified in (2) is not authorized by the copyright owner, its agent, or the law;
- A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.
- Your physical or electronic signature.
Then send this notice via email to: Jeri@OrcaWave.com
- ADDITIONAL SOFTWARE
With respect to any additional software that may be made available by Orca Wave in connection with the Service, if you elect to download or access such additional software, you understand that you may have to agree to additional terms and conditions before you use such software.
- SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all applicable international and local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. You will comply with all applicable U.S. and non-U.S. export control and trade sanctions laws (“Export Laws”). You will not, directly or indirectly, export, re-export, provide, or otherwise transfer our Services: (a) to any individual, entity, or country prohibited by Export Laws; (b) to anyone on U.S. or non-U.S. government restricted parties’ lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical, or biological weapons, or missile technology applications without the required government authorizations. You will not use or download our Services if you are located in a restricted country, if you are currently listed on any U.S. or non-U.S. restricted parties list, or for any purpose prohibited by Export Laws, and you will not disguise your location through IP proxying or other methods.
- CONTENT SUBMITTED TO ORCA WAVE
By submitting Content to Orca Wave, you grant Orca Wave the world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting such Content through the Service. This license exists only for as long as you continue to be an Orca Wave customer. You acknowledge that Orca Wave does not pre-screen Content, but that Orca Wave and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, Orca Wave and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You agree to indemnify and hold harmless Orca Wave and its affiliates and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by Orca Wave in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (i) your breach of the above warranties; or (ii) any use by you, or an account or computer owned by you, of the Orca Wave Service. You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but Orca Wave reserves the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you if you have not responded. You will also be liable to Orca Wave for any costs and attorneys’ fees Orca Wave incurs to successfully establish or enforce its right to indemnification under this Section.
- RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell as a finished service to third party, or otherwise exploit any portion of the Service, use of the Service, or access to the Service without the express permission by Orca Wave.
- GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Orca Wave may establish general practices and limits concerning use and policies around data storage and retention of the Service. These policies are available upon request.
- MODIFICATIONS TO SERVICE
Orca Wave reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with reasonable notice. You agree that Orca Wave shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
- TERMINATION; RESERVATION OF RIGHTS
You agree that Orca Wave, in its sole discretion, expressly reserves the right to suspend or terminate your use of the Service or use of any other Orca Wave service, and remove and discard any Content within the Service, for any reasonable reason, including, without limitation, if Orca Wave, in its sole discretion, believes that you have violated this Agreement or if you have failed to pay any charges when due. Orca Wave reserves the right to terminate your account if your use of the Service results in, or is the subject of, legal action or threatened legal action, against Orca Wave or any of its affiliates or partners. Orca Wave may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Orca Wave may immediately deactivate or delete all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Orca Wave shall not be liable to you or any third-party for any termination of your access to the Service.
- ORCA WAVE PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Orca Wave, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. Orca Wave grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Orca Wave for use in accessing the Service.
- DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ORCA WAVE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) ORCA WAVE WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICE, HOWEVER, ORCA WAVE IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICE. ORCA WAVE DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
- LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ORCA WAVE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ORCA WAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
- EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY TO YOU.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to this Agreement or other matters by displaying notices or links to notices to you generally on the Service.
- CHOICE OF LAW AND FORUM (LOCATION OF LAWSUIT)
This Agreement and the relationship between you and Orca Wave shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. You and Orca Wave agree to submit to the personal and exclusive jurisdiction of the courts located within the county of King, Washington. The failure of Orca Wave to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
- INTEGRATION AND SEVERABILITY
This Agreement constitutes the entire agreement between you and Orca Wave and governs your use of the Service, unless you have a prior agreement with Orca Wave or have negotiated such an agreement between you and Orca Wave. If any provisions of this Agreement are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
- UPDATED VERSIONS OF THIS AGREEMENT
Orca Wave reserves the right to update and change the terms of this Agreement from time to time without notice or acceptance by you. You can review the most current version of this Agreement at any time at https://www.OrcaWave.net or https://www.Bitscio.com. You acknowledge your responsibility to review the terms of this Agreement from time to time and to be aware of any such changes. By continuing to use any of the Service after Orca Wave posts any such changes, you accept the terms of this Agreement, as modified.
All of Orca Wave’s rights and obligations under this Agreement are freely assignable by Orca Wave to any of our affiliates or in connection with a merger, acquisition, restructuring, or sale of assets, by operation of law or otherwise, and Orca Wave may transfer your information to any of our affiliates, successor entities, asset purchasers or new owner. You will not transfer any of your rights or obligations under this Agreement to anyone else without Orca Wave’s prior written consent.
February 20, 2017