Legal

Privacy Policy

Last Modified: January 7, 2016

Thank you for using the Waterfall International Inc. (“Waterfall”, “our”, “us” or “we”) website located at www.waterfall.com (the “Website”) and/or our software platform enabling Waterfall’s merchant partners using the software platform (“Merchants”) to manage both enterprise mobile messaging communications (e.g., short message service (SMS), multimedia messaging service (MMS), and push notifications) and customer relationship management (CRM) (the “Services”). Please do not use our Website or Services until after you carefully review and accept all terms and conditions in this Privacy Policy (the “Policy”), as well as the Waterfall Terms of Service (the “Terms of Service”) located at www.waterfall.com/legal/.

This Privacy Policy applies to persons accessing the Website and/or Merchants using the Services, and explains (i) how Waterfall collects, stores and uses Personal Information, Non-Personal Information, and Text Message Data, and (ii) choices for managing information preferences. By using the Website or Services, you consent to this Privacy Policy.

1. Information We Collect

When you use the Website or Services, Waterfall may collect information about you or a Merchant’s consumers in the following ways: (a) a person may provide information to us (e.g., during the registration or ordering process); and (b) we may receive information about a person automatically or indirectly in the course of his or her interactions with the Website or Services. The following are the different types of information that are collected:

  • “Personally-Identifiable Information” and “PII” mean any information that may be used (alone or in combination with other information) to identify an individual, including, but not limited to: a first or last name; a home or other physical address; an email address; contact information; and credit card or other payment information. For example, for Text Message Data, Merchants may collect consumers’ PII when consumers send or receive SMS or MMS text messages through the Services. Certain Services for Merchants may also require us to collect from you the phone number for your device. We may associate that phone number to Non-Personal Information (see below) that has been collected from and about a consumer (e.g., the mobile device identification information).
  • “Non-Personal Information” means information that does not identify an individual. For example, for Text Message Data, Merchants may automatically collect information such as device type, operating system version and type, IP address, certain unique device identifiers, and carrier and other information for the device used by a consumer. Merchants may also collect geo-location data such as device GPS coordinates, unless a consumer configures his or her device operating system settings to prevent the collection of such data. Some mobile service providers are required to operate a system that records the physical location of devices that use their service. Depending on the mobile service provider, Waterfall may automatically receive that information. If you use the Website, each time Waterfall automatically collects the type of web browser you use, your operating system, your Internet Service Provider, your IP address, the pages you view, and the time and duration of your visits to the Website. We use this information to enhance the Website, and to help us understand how people use the Website. In addition, we use “Cookies” (a small text file placed on your computer or mobile device to identify your device and browser when you visit our Website), which enable our systems to recognize your browser and tell us how and when certain pages in our Website are visited and by how many people.
  • “Text Message Data” means the processing and storage of SMS or MMS text messages, log and connection data, and consumers’ PII (e.g., preference data, historical purchase data, demographic, activity data, geographical data (zip code), socioeconomic data) that may be collected by Merchants when consumers send or receive SMS or MMS text messages through the Services. Text Message Data is subject to the privacy policy and terms of service of the Merchant using the Services for the particular campaign through which such data is captured. Through the Services, such consumer PII may be combined with information provided by a Merchant from its online and offline sources in connection with the Merchant’s use of the Services.
2. How We Use Information

We use PII, Non-Personal Information and Text Message Data collected as described in this Policy, sometimes combined with information from other sources, in the following ways:

  • To provide, maintain and improve the Services, develop new features, and send product updates and administrative messages;
  • To advertise and market the Services;
  • To conduct research and analysis; and
  • As otherwise required or permitted by law or with your consent.

We will not disclose PII, Non-Personal Information or Text Message Data to third parties without consent, except as explained in this Privacy Policy.

3. How We Share Information

Any Text Message Data communicated to Waterfall in connection with the Services will remain in the ownership of the Merchant using the Services. Waterfall will share such data only with that Merchant, and will store Text Message Data securely in accordance with Section 4 of this Policy.

We may establish a business relationship with other businesses that we believe are trustworthy and who have confirmed that their privacy practices are consistent with ours (“Service Providers”). For example, we may contract with Service Providers to provide certain services, such as software hosting and maintenance, CRM, data storage and management, and direct marketing campaigns. We provide our Service Providers with only the information necessary for them to perform these services on our behalf. Each Service Provider must agree to use reasonable administrative, technical and physical safeguards appropriate to the nature of the information involved in order to protect PII, Non-Personal Information and Text Message Data from unauthorized access, use or disclosure. Service Providers are prohibited from using PII, Non-Personal Information and Text Message Data other than as specified by Waterfall.

We may use, and disclose to third parties, certain aggregate or anonymous Non-Personal Information regarding the Website and Services. Again, such information does not identify you individually.

We may also share PII, Non-Personal Information and Text Message Data as follows:

  • We may share PII, Non-Personal Information and Text Message Data with any legal entity that is affiliated with Waterfall for purposes consistent with this Policy. If our company is merged, acquired, or sold, or in the event of a transfer of some or all of our assets, we may disclose or transfer PII, Non-Personal Information and Text Message Data in connection with such transaction; and
  • We cooperate with government and law enforcement officials to enforce and comply with the law. We may therefore disclose PII, Non-Personal Information and/or Text Message Data, and any other information about you, if we have a good faith belief that it is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce our Terms of Service, including investigation of potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, or (d) protect against harm to our rights, property or safety, or that of our users or the public as required or permitted by law.
4. How We Protect Information

We use reasonable technical, physical, and administrative safeguards to protect PII, Non-Personal Information and Text Message Data. These measures include computer safeguards and secured files and buildings. No method of transmission over the Internet or method of electronic storage is 100% secure, however, and Waterfall cannot and does not guarantee their absolute security.

5. Processing in the United States

Please be aware that PII, Non-Personal Information and/or Text Message Data may be transferred to and maintained on servers or databases located outside your state, province, or country. If you are located outside of the United States, please be advised that we process and store all information in the United States. The laws in the United States may not be as protective of your privacy as those in your location. By using the Website or Services, you agree that the collection, use, transfer, and disclosure of PII, Non-Personal Information, and Text Message Data will be governed by the applicable laws in the United States.

6. How Can You Access Your Information?

Upon request, we will allow Merchants to access and change certain information (e.g., a Waterfall username and password, contact information, transaction information and payment information) using the Support section of theServices. If you are receiving promotional emails from Waterfall at any time and you decide you want to stop receiving them, please notify us by opting out or sending an email to support@waterfall.com.

7. Miscellaneous
  • Third Party Websites. Our Website may permit you to link to other third party websites on the Internet, and other websites may contain links to the Website. These third party Websites are not under Waterfall’s control. The privacy and security practices of websites linked to or from our Website are not covered by this Policy, or the Waterfall Terms of Service, and you should carefully review the applicable third party terms. Waterfall is not responsible for the privacy or security practices, or the content, of any such third party websites.
  • No Use By Children. Our Website and Services are not intended for use by children under 13 years of age; if you are under 13, you are not permitted to use our Website or Services in any way. Waterfall does not knowingly collect any PII from any children under 13.
  • Changes to this Policy. We may change this Policy at any time. If we decide to change this Privacy Policy, we will inform you by posting the revised Privacy Policy on the Website. Those changes will go into effect on the Revision Date shown in the revised Privacy Policy. Your continued use of the Website or Services constitutes your consent to be bound by the revised Privacy Policy.
  • Contact Us. If you have any concerns about privacy, please send an email to privacy@waterfall.com and we will try to resolve it.

Terms of Service

Last Modified: March 7, 2015

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

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

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

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

1. Waterfall Service Offerings.

Please see http://www.waterfall.com/services/ for additional information regarding our various Waterfall Services, pricing tiers and feature differences. A high-level summary is also provided here:

  1. Free Trial:
    At Waterfall’s option, we may make one or more Services available to you on a trial basis, free-of-charge, until the earlier of (i) the end of the free trial period for which you register, or (ii) the start date of any Purchased Services you order. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding. Any Client Data you enter into or use with the Services, and any customizations made to the Services by or for you, during your free trial will be permanently lost unless you purchase a subscription to the same Services as those covered by the trial, purchase upgraded Services, or export such data, before the end of the trial period. Such free trial Services are provided "as-is" without any warranty, notwithstanding anything to the contrary in the Representations & Warranties section of these Terms.
  2. Purchased Services:
    We will make Purchased Services available to you in accordance with these Terms and the relevant Waterfall Order Forms during the applicable License Term. You agree that your purchases under these Terms are not contingent on the delivery of any future results, functionality or features, and are not dependent on any oral, written or implied representations, statements or commitments made by or for Waterfall (for example, regarding any future results, functionality or features).
2. Term & Termination.

These Terms commence on the “Last Modified” date above. The Initial Term will be as you elect during the online sign-up on the Website, or as otherwise mutually agreed by the parties in a Waterfall Order Form. Upon expiration of the Initial Term, these Terms will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Waterfall's then-current rates.

  1. Termination:
    For Cause: Waterfall, in its sole discretion, may suspend or terminate your account and use of the Website and Services at any time upon written notice if: (a) you fail to comply with these Terms; (b) you become the subject of any bankruptcy or other insolvency-related proceedings; or (c) you are considering acquiring, being acquired by or merging with, or actually acquire, are acquired by or merge with (meaning ownership or control of at least twenty-five percent (25%) of the relevant voting shares in each case), a direct competitor of Waterfall. Waterfall may also terminate a free or trial account at any time in its sole discretion.
  2. Effect of Termination:
    In the event of any termination or expiration of these Terms, those parts of the Terms which by their nature and all relevant circumstances reasonably should survive will survive (including, without limitation, the definitions, this Effect of Termination provision, the Fees and Payment provisions, the Ownership provisions, the License Restrictions provisions, the Disclaimer of Warranties provisions, the Indemnification provisions, the Limitation of Liability provisions, the Confidentiality provisions, the Assignment provisions, and the General Legal Terms). If you send a written request to Waterfall before the termination effective date, Waterfall will make available to you a file of your End-User Data and Customer Data within thirty (30) days after the termination effective date. Subject to the preceding sentence, you agree and acknowledge that Waterfall has no obligation to retain or provide any End-User Data or Customer Data, and may delete such End-User Data or Customer Data, at any time (a) if you violate these Terms (including, but not limited to, any failure to pay outstanding fees), or (b) after the termination effective date.
3. Fees and Payment.
  1. Fees:
    You will pay all fees or charges to your account in accordance with your applicable Order Form or other order. These include, but are not limited to, monthly service fees, messaging fees, voice call fees, short code fees, account fees, keyword fees, transaction fees, technical support fees and client services fees. Waterfall reserves the right to modify its fees and charges, and to introduce new charges, at any time upon at least 30 days prior notice to you, which notice may be provided by email. You also agree to pay (or reimburse Waterfall, if we are required to pay directly) for any and all fees in connection with the registration, provisioning, certification and use of your short code(s) including but not limited to content distribution fees, message transaction fees, and any surcharges, fines or penalties imposed by a wireless carrier or Authorized Distributor. All payment obligations are non-cancelable and all amounts paid are non-refundable. You are responsible for paying for all services you order for the entire License Term, whether or not such services are actually used. You must provide a valid credit card, or approved purchase order information, to Waterfall as a condition of signing-up for the Service. Your authorized License Administrator may add services by executing an additional written Order Form or using the Online Order Center. Added services will be subject to the following: (i) added account licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the fees and charges for the added services will be Waterfall’s then-current, generally applicable fees and charges; and (iii) services added in the middle of a billing month will be charged for a pro-rata portion of that billing month. All pricing terms are Waterfall’s confidential information and you agree to treat them in accordance with the Confidentiality provisions below.
  2. Payment:
    Waterfall charges and collects in advance for use of its Services. Waterfall will automatically bill your credit card or issue an invoice to you each month, quarter or year as applicable, in accordance with the terms of your Order Form, or as otherwise mutually agreed. Fees for other services will be charged on an as-quoted basis. Payments must be made monthly, quarterly or annually in advance, per the terms mutually agreed in an Order Form or through the Online Order Center. Waterfall's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Waterfall's income. You agree to provide Waterfall with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, we reserve the right to terminate your access to the Services, in addition to any other legal remedies. Unless Waterfall in its discretion determines otherwise, you will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes. If you believe your bill is incorrect, you must contact us in writing within 30 days of the relevant invoice date to be eligible to receive an adjustment or credit.
  3. Consequences of Non-Payment:
    In addition to any other rights Waterfall may have, Waterfall reserves the right to suspend or terminate these Terms and your access to the Services if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to a service fee of one and one-half percent (1.5%) per month, or the maximum penalty permitted by law (whichever is less), on any outstanding balance, plus all expenses of collection. You will continue to be charged for the Services during any period of suspension. If you or Waterfall initiates termination of these Terms, you will be obligated to pay the balance due on your account computed in accordance with the Fees and Payment section of these Terms. You agree Waterfall may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. Waterfall reserves the right to impose a reconnection fee if you are suspended and thereafter request access to the Service.
4. Acceptable Use of the Services

Waterfall may determine, in its sole discretion, whether you are violating these Terms. Using the Website or Services in an abusive manner or any other manner that diminishes or interferes with anyone else’s use or enjoyment of the Website or Services is prohibited. You also may not use the Website or Services for any illegal activities or purposes, intentionally or unintentionally; you are responsible for all activity occurring under your User accounts, and you agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Website and Services. You must: (i) notify Waterfall immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Waterfall immediately and use reasonable efforts to stop immediately any inappropriate copying or distribution of Waterfall Materials that is known or suspected by you or your Users; and (iii) not impersonate another Website user or provide false identity information to gain access to or use any of the Services, Waterfall Technology or Waterfall Materials.

  1. Certain tiers of the Services allow you to use Waterfall’s shared short code(s), in Waterfall’s discretion. Use of the Services with a shared short code requires a unique keyword per campaign. You agree not to reserve keywords and attempt to sell such keywords to a third party, except with Waterfall's prior written consent. Any such behavior will be grounds for immediate termination of these Terms and your account. Further, Waterfall will have the right, at any time, to reclaim keywords that you have reserved but are not actively using. You also must not reserve or use any keywords that are a trademark, service mark or corporate name of another company (whether registered or recognized under applicable common law). The Services allow you to use your own short code. Waterfall can lease a short code on your behalf, or you can lease your own short code at www.usshortcodes.com. You are responsible for reimbursing Waterfall fully and promptly for any payments made to reserve your own short code(s). We will help you get your short code(s) provisioned by the wireless carriers, and we will help you obtain all required certifications and authorizations. We will use commercially reasonable efforts to provision your short code(s) but cannot guarantee if or when your short codes(s) will be provisioned or certified by the wireless carriers. You may not use any phone number or short code provided by Waterfall to route SMS messages over any other provider's network. All SMS messages sent and received for a phone number or short code provided by Waterfall must be sent and received exclusively via Waterfall’s Services.
  2. Other Examples of Prohibited Conduct:
    The following are some other examples of conduct using the Website or Services that are prohibited (this list is not exhaustive):
    • Harming any minors;
    • Engaging in any fraudulent conduct in connection with your account (including, without limitation, circumventing any classified advertising or other phone identification systems);
    • Misleading anyone regarding the origin or sender of any phone call or message sent using your account (e.g., by creating a false or misleading identity, phone number or email address);
    • Using the Website or Services in a way not expressly authorized by Waterfall or that subjects Waterfall or any third parties to any threat or liability;
    • Participating in any activity prohibited by the U.S. Federal Communications Commission, or otherwise violating any U.S. or foreign laws regarding transmission of software, other technology or data;
    • Transmitting material that contains any viruses, trojan horses, worms or other malicious or harmful code;
    • Transmitting any material that violates any intellectual property rights (e.g., copyright, trademark or rights of publicity) of any third parties;
    • Using any “Waterfall” and/or “Waterfall Mobile” names and/or logos, and/or the product or service names and logos associated with the Service (collectively, “Waterfall Marks”) in a manner not expressly permitted by these Terms;
    • Engaging in any activities or transmitting any content that is libelous or defamatory, or that is otherwise illegally discriminatory, malicious, threatening, harassing, obscene, vulgar, harmful or invasive of anyone’s privacy;
    • Launching or facilitating (whether intentionally or unintentionally) a denial of service attack on any of the Services, or otherwise negatively affecting the availability or stability of the Services or of any networks connected to the Services;
    • Reverse engineering or probing the Services, seeking vulnerabilities or attempting to circumvent any access controls, security measures or filtering;
    • Participating in or facilitating any harassing or unwanted messages, phone calls, mobile push notifications, voicemail or faxes;
    • With respect to outbound subscription-based messaging, Client must send no more than the maximum number of messages per contact for which the Client's dedicated short code is provisioned by the Carrier (typically 10 messages per month/contact);
    • Conducting any unsolicited or otherwise illegal advertising or marketing activities (for example, any activities that violate anti-spamming laws and regulations, including the CAN SPAM Act of 2003, as amended (“CAN-SPAM”), the Telephone Consumer Protection Act (47 USC § 227) and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200) (“TCPA”), and the Do-Not-Call Implementation Act);
    • Violating any applicable carrier or wireless industry guidelines or best practices (e.g., those regarding data privacy or transmission of technical or personal data), the CTIA and Mobile Marketing Association's Code of Conduct for Mobile Marketing, or the U.S. Consumer Best Practice Guidelines located at www.ctia.org and www.mmaglobal.com;
    • Using SMS or mobile push notifications in a manner inconsistent with the person-to-person nature of mobile communications;
    • Collecting or storing any personal information about third parties (e.g., email addresses or phone numbers) without their express consent or in violation of any other provisions in the “Acceptable Use of Services” portion of these Terms;
    • Using the Services in any manner that violates any applicable third party requirements or policies communicated by Waterfall; and
    • Using the Services in violation of any: (a) hour/time of day restrictions; and/or (b) restrictions applicable to placing calls and/or sending text messages on weekends and/or holidays; each (iii) as may be required by applicable law or as directed by Waterfall; and
    • Offering to any users any services that permit a user to connect with emergency services personnel (e.g., 911 or E911).
  3. TCPA Compliance. Without limiting any of the foregoing, the TCPA requires that: (a) “prior express written consent” (as defined under the TCPA) be obtained before SMS text messages can be sent to any mobile/wireless device; and (b) evidence of such prior express written consent must be retained for the statutorily required period. Client represents and warrants that it will: (i) obtain the prior express written consent of all customers that receive SMS text messages from Client and/or Client’s third party service providers, as applicable, through use of the Service (“Client List”); (ii) record, collect, store and maintain the prior written consents required under this Section 4, whether as a sound recording (where received verbally) or in written form, as applicable (collectively, “Consent Records”), for a period of five (5) years after the date that Client collected each applicable Consent Record; and (iii) otherwise comply with all of the other requirements set forth within the TCPA. Client shall provide such Consent Records to Waterfall within two (2) business days of a request for same. The Consent Records shall include, at a minimum, the consent language appearing on the mobile/online media from which the prior express written consent of the subject customers comprising the Client List was collected and the date and time stamp indicating the time that the subject customers’ prior express written consent was collected.
5. Ownership, DMCA Compliance, Licenses & Data.
  1. Ownership: Waterfall alone (and its licensors, where applicable) own all right, title and interest (including all related Intellectual Property Rights) in and to the Website, Waterfall Technology, Waterfall Materials and the Services, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Website, Waterfall Technology or Services (collectively, “Feedback”). If you choose to provide any Feedback to us, Waterfall will own all right, title, and interest in and to it, even if you have designated it as confidential, and Waterfall will have the right to use such Feedback without restriction. Similarly, any other information or content you post or provide to Waterfall through comments, forums, emails or other communications (collectively, "Communications") will be deemed the property of Waterfall. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to Waterfall, and agree to provide us any assistance we may require to perfect and maintain our rights in the Feedback and Communications. These Terms are not a sale and do not convey to you any rights of ownership in or related to the Website, Services, the Waterfall Technology or any Intellectual Property Rights owned by Waterfall. Unless otherwise noted, the graphic images, text and other material on the Website are the exclusive property of Waterfall and are Copyright © 2006-2015 Waterfall International Inc. All rights reserved. The Waterfall name and logo, and the product and service names and logos associated with the Website and the Services are trademarks or registered trademarks of Waterfall in the United States and foreign countries; you have no right or license to use any of them without Waterfall’s express prior authorization. All uses of the Waterfall trademarks, and all goodwill associated therewith, will inure to the benefit of Waterfall. Other company, product, and service names mentioned on the Website or in the course of providing the Services may be trademarks and/or service marks of others. You must not remove, obscure, or alter any notice of any trademark, service mark or other intellectual property or proprietary right appearing on the Website or contained within the Services.
  2. DMCA Compliance: Waterfall respects the intellectual property of others, and we ask users of our Services to do the same. If you believe your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights otherwise have been violated, please notify Waterfall of your claim in accordance with the procedure set forth below. Waterfall will promptly process and investigate notices of alleged infringement and take appropriate action under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. You should send a notification of claimed copyright infringement to Waterfall’s Copyright Agent by mail or facsimile (with the “Re” subject line titled “DMCA Takedown Request”) to: Attention: Copyright Agent Waterfall International Inc. 25 Division Street, Suite 205 San Francisco California 94103 Facsimile: 415-354-3356. To be effective, the notification must be in writing and contain the following information:
    • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
    • a description of the copyrighted work or other intellectual property that you claim has been infringed;
    • a description of where the material that you claim is infringing is located on the Website (with sufficient detail to enable Waterfall to find it);
    • Your address, telephone number, and email address;
    • a statement that you have a good faith belief the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
    • a statement by you, made under penalty of perjury, that the above information in your notice is accurate, and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
  3. License Grant & Restrictions: License Grant. Subject to the terms and conditions of these Terms, Waterfall hereby grants to you a limited, non-exclusive, non-transferable, worldwide, revocable right and license (without right to sublicense) to use the Services during the Term of these Terms. All rights relating to the Services that are not expressly granted to you in these Terms are expressly reserved by Waterfall. Certain Services offer integration capabilities via a Waterfall application programming interface (“API”). The Waterfall APIs enable others, including application developers and website operators, to retrieve data from Waterfall Services or provide data to Waterfall Services. Access to the Waterfall APIs requires a separate developer account and API Key, which may be available from Waterfall in Waterfall’s sole discretion. The number of API calls you can make per account may be limited as more fully described in our developer portal located at http://apidocs.waterfall.com. License Restrictions. You may not access or use any of the Services if you are currently, or are actively considering becoming, a competitor of Waterfall, except with Waterfall's prior written consent. In addition, you may not access any of the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or purposes competitive with Waterfall. You will not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any of the Services or Waterfall Materials in any way, except with Waterfall's prior written consent; (ii) modify or make derivative works based upon any of the Services or Waterfall Materials or otherwise remove, decompile, disassemble or reverse engineer any Website software or use any network monitoring or discovery software to determine the Website architecture; (iii) create Internet "links" to any of the Services or "frame" or "mirror" any Waterfall Materials on any other server or wireless or Internet-based device or otherwise make any portion of the Website available through any timesharing system, service bureau, the Internet or any other technology now existing or developed in the future; or (iv) reverse engineer or access any of the Services to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of any of the Services, (c) copy, print, republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of the Website, including ideas, features, functions or graphics, or any Waterfall Materials retrieved therefrom, (d) use the Website or any materials obtained from the Website to develop, or as a component of, any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism, (e) create any compilations or derivative works of any Waterfall Materials from the Website, (f) copy or resell any marketing, training or other materials such as slides, advice, guidance, or frameworks provided by Waterfall, or (g) remove, change or obscure any copyright notice or other proprietary notice, or any Terms of Service contained in the Website, You may use the Services only for legitimate business purposes, and you must not engage in any of the other Prohibited Conduct identified in these Terms.
  4. Client Data: As between Waterfall and you, you will own any data collected from end-user consumers through your use of the Waterfall Services (the "End-User Data"). However, Waterfall also collects aggregate data that is not personally-identifiable, including, without limitation, end-user usage and behavioral data as they relate to the Services (the "Aggregate Data") You acknowledge and agree that Waterfall will be the sole and exclusive owner of such Aggregate Data. Subject to the preceding sentence, Waterfall does not own any data, information or material that you submit in the course of using the Services ("Customer Data"). You, not Waterfall, have sole responsibility for ensuring the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Waterfall will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Notwithstanding the above, Waterfall may remove any Customer Data from the Service that violates any guidelines or policies set forth by (i) a wireless carrier, (ii) the Mobile Marketing Association, (iii) the CTIA, (iv) mobile device manufacturers, (v) any Authorized Distributor, or (vi) Waterfall.
6. Privacy and Publicity

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

7. Third-Party Applications & Interactions

While using the Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of, advertisers, sponsors or other third parties showing their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the relevant third parties. Waterfall does not endorse, recommend or sponsor any products, services or websites that are promoted by Users or other third parties through the Services. You also acknowledge and agreed that certain third-party providers of ancillary or related software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services. Waterfall may offer integration of certain Third-Party Applications with the Services. If you install or enable Third-Party Applications for use with the Services, you acknowledge that Waterfall may allow providers of those Third-Party Applications to access your data as required for the interoperation of such Third-Party Applications with the Services. Waterfall will not be responsible for any disclosure, modification or deletion of your data resulting from any such access by Third-Party Application providers. Service features that interoperate with such Third-Party Applications (e.g., Facebook, Twitter, Apple, etc.) depend on the continuing availability of such Third-Party Application APIs for use with the Services. Waterfall does not guarantee any aspect of a Third-Party Application, including, without limitation, the availability, security or reliability of third party APIs or data exchanges. If any Third-Party Application provider ceases to make their APIs available, or modifies the way in which their APIs work, Waterfall may cease providing the corresponding Service feature(s) without entitling you to any refund, credit, or other compensation. WATERFALL AND ITS LICENSORS HAVE NO LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY CORRESPONDENCE, PURCHASE OR PROMOTION BETWEEN YOU AND ANY THIRD PARTIES. IN NO EVENT WILL WATERFALL OR ITS LICENSORS BE RESPONSIBLE FOR, OR HAVE ANY LIABILITY IN CONNECTION WITH ANY THIRD PARTY CONTENT, PRODUCTS, SERVICES OR OTHER MATERIALS PROVIDED OR OBTAINED THROUGH ANY THIRD PARTY IN THE COURSE OF USING THE SERVICES.

8. Limited Representations & Warranties

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

9. Disclaimer of Warranties

Except as expressly stated in the preceding section of these terms:

  1. THE SERVICES, WATERFALL TECHNOLOGY AND WATERFALL MATERIALS ARE COMPRISED OF A TECHNOLOGY PLATFORM AND ASSOCIATED SERVICES. WATERFALL DOES NOT ITSELF: (a) OBTAIN PRIOR EXPRESS WRITTEN CONSENT FROM CUSTOMERS TO RECEIVE SMS TEXT MESSAGES; AND/OR (b) DISTRIBUTE SMS TEXT MESSAGES, PLACE TELEMARKETING CALLS OR OTHERWISE SEND ANY FORM OF CUSTOMER COMMUNICATION WHATSOEVER. CLIENT IS SOLELY RESPONSIBLE FOR THE: (i) COLLECTION OF THE CLIENT LIST, INCLUDING OBTAINING LEGALLY SUFFICIENT PRIOR EXPRESS WRITTEN CONSENT FROM CUSTOMERS IN CONNECTION THEREWITH; AND (ii) PREPARATION AND DISTRIBUTION OF ALL CLIENT MESSAGES, CLIENT CONTENT AND OTHER MATERIALS INCLUDED IN CLIENT MESSAGES DELIVERED TO THE CLIENT’S CUSTOMERS AND OTHER RECIPIENTS BY AND THROUGH THE SERVICES. AS SUCH, CLIENT, AND NOT WATERFALL, IS RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAW IN CONNECTION WITH COLLECTION OF THE CLIENT LIST AND USE OF THE SERVICES, WATERFALL TECHNOLOGY AND WATERFALL MATERIALS.
  2. THE WATERFALL TECHNOLOGY, SERVICES, WATERFALL MATERIALS AND ANY THIRD-PARTY APPLICATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; WATERFALL AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, PERFORMANCE, SUITABILITY, RESULTS, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, THE WATERFALL TECHNOLOGY, WATERFALL MATERIALS OR THIRD-PARTY APPLICATION;
  3. WITHOUT LIMITING THE PRECEDING SENTENCE, WATERFALL AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (iii) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS;
  4. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS), ARE HEREBY DISCLAIMED.
  5. WATERFALL'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, INCLUDING THOSE UNDER THE CONTROL OF WIRELESS CARRIERS, WATERFALL'S AUTHORIZED DISTRIBUTORS AND THIRD-PARTY APPLICATION PROVIDERS. WATERFALL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS
  6. THE SERVICES DO NOT, AND ARE NOT INTENDED TO, SUPPORT OR CARRY EMERGENCY CALLS TO POLICE, FIRE, AMBULANCE OR ANY EMERGENCY SERVICES (FOR EXAMPLE 911 OR E911). ACCORDINGLY, WATERFALL AND ITS OWNERS, EMPLOYEES, AGENTS, AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ANY WARRANTIES OR LIABILITY (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION) ARISING FROM OR RELATING TO YOUR INABILITY TO USE THE SERVICES TO CONTACT ANY EMERGENCY SERVICES.

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

10. Indemnification

You will defend, indemnify and hold Waterfall, its affiliates and their respective parent organizations, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys, representatives and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including, without limitation, reasonable attorneys' fees, court costs and the costs of indemnifying third-parties based on third-party (including governmental agency or body) claims, actions, inquiries, demands or proceedings arising out of or in connection with: (i) any claims alleging that your use of the Services or any Client Data (including, without limitation, End-User Data), or any third party transaction you enter into or attempt to enter into in connection with the Services, infringes the rights of, or has caused harm to, any third parties; (ii) any claims, which if true, would constitute a violation by you of your representations or warranties in these Terms; (iii) any claims arising from any breaches of these Terms by you or your Users; and (iv) any violation of any applicable law, rule or regulation. With respect to any claims that are subject to the indemnity in the preceding sentence, Waterfall will: (a) give you written notice of the claim promptly; (b) give you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Waterfall of all liability and such settlement does not affect Waterfall's business or Service); and (c) give you reasonable information, cooperation and assistance in connection with the claim. Without limiting any of the foregoing, Client shall provide Waterfall with immediate, detailed written notice of any inquiry, complaint, investigation, suit, class action suit or other proceeding that involves, arises against, or to the knowledge of Client, is threatened against, to involve or affecting, any Client Content and/or any Client marketing activities undertaken in connection, or associated with, the Services, before any court or arbiter, as well as any governmental or regulatory body, agency or official.

11. Limitation of Liability

To the maximum extent permitted by applicable law:

  1. In no event will Waterfall or its owners, employees, agents, affiliates, representatives or licensors be liable to you for any indirect, consequential, incidental, special, punitive or exemplary damages arising out of or relating to (i) the Services, Waterfall Technology, Waterfall Materials, or these terms (including, without limitation, for any loss of data, revenue, profits, use, goodwill, or other economic advantage, or based on any Client Data obtained from or through the Services, or due to any interruption, inaccuracy, error or omission in the Services), (ii) the use of any information or software provided on the Waterfall website, or (iii) any failure by Waterfall to provide any such information or software;
  2. In no event will the total, aggregate liability of Waterfall and its owners, employees, agents, affiliates, representatives and licensors for any and all claims arising out of or relating to the Services, Waterfall Technology, Waterfall Materials, and/or these terms exceed the total amount actually paid by Client to Waterfall in the three (3) month period immediately preceding the event(s) giving rise to such claim(s); and
  3. IF YOU HAVE ANY DISPUTE WITH ANY THIRD PARTIES RELATING TO YOUR USE OF THE WATERFALL WEBSITE, SERVICES OR WATERFALL MATERIALS, OR YOU ARE DAMAGED AS A RESULT OF ANY THIRD PARTY IN CONNECTION THEREWITH, (i) YOU HEREBY RELEASE WATERFALL AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES AND SUPPLIERS FROM, AND (ii) YOU COVENANT NOT TO SUE, OR INSTITUTE ANY LEGAL OR REGULATORY PROCEEDINGS AGAINST, OR ASSERT ANY CLAIM OR DEMAND AGAINST, WATERFALL OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES OR SUPPLIERS FOR ANY CLAIMS, ACTIONS, DEMANDS OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL), OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHETHER FORESEEABLE OR NOT, DISCLOSED OR UNDISCLOSED, RELATING TO ANY SUCH DISPUTE BETWEEN YOU AND ANY THIRD PARTIES.

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

12. Confidentiality

The parties presumably may disclose Confidential Information in connection with the Waterfall Services and the parties’ relationship under these Terms. Accordingly, the Receiving Party will take commercially reasonable steps to avoid unauthorized disclosure or dissemination of the Disclosing Party’s Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential Information will remain the exclusive property of the Disclosing Party. The Receiving Party will disclose the Disclosing Party’s Confidential Information only to its employees and contractors who (i) have a legitimate business need to know such Confidential Information for purposes of performing under these Terms (and only while they have that need), and (ii) are bound by confidentiality agreements with the Receiving Party at least as protective of the Disclosing Party’s Confidential Information as this section of the Terms (their respective “Personnel”). The Receiving Party will ensure its Personnel comply with this section of the Terms, will promptly notify the Disclosing Party of any breach, and will be fully responsible for any breach by the Receiving Party’s Personnel. The above obligations under this Section 12 will apply for five (5) years from the date the relevant Confidential Information is first disclosed to the Receiving Party, or for as long as the subject Confidential Information is considered a trade secret under applicable state law, whichever period is longer. Additionally, the parties each acknowledge and agree that the receipt of Confidential Information in connection with their relationship under these Terms will not create any obligation in any way limiting or restricting the assignment of employees or contractors. Furthermore, nothing contained in these Terms will be construed as preventing any employees or contractors of either party from using any “residuals” of the Confidential Information (i.e., information in non-tangible form that is retained in the unaided memories of employees or contractors who had access to the Confidential Information). Notwithstanding the foregoing, if any court or other governmental entity with competent jurisdiction requires the Receiving Party to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party may comply with its legal obligations after giving the Disclosing Party prompt, reasonably detailed written notice regarding such required disclosure (including a copy of the relevant order or other legal process) to allow the Disclosing Party to seek a protective order or other appropriate remedy. The Receiving Party will disclose only such information as it reasonably deems is legally required, and will cooperate reasonably with the Disclosing Party to obtain confidential treatment for any of the Disclosing Party’s Confidential Information that is so disclosed. Similarly, the Receiving Party may disclose the Disclosing Party’s Confidential Information on a "need-to-know" basis to its legal counsel, accountants, banks and other financing sources and advisors under commercially reasonable confidentiality agreements.

Upon termination or expiration of these Terms, or at the request of the Disclosing Party, the Receiving Party will promptly return all tangible material embodying the Disclosing Party’s Confidential Information, and will destroy (or, in the case of electronic embodiments, permanently erase) all other tangible material containing or reflecting such Confidential Information (in any form, including, without limitation, all summaries, copies and excerpts) in its possession or under its control, whether prepared by the Disclosing Party, the Receiving Party, or their respective advisors or otherwise, and will not retain any copies, extracts or other reproductions in whole or in part of such materials. For the avoidance of doubt, the parties acknowledge and agree that the Receiving Party may develop products, services, concepts, systems or techniques that are similar to or compete with the products, services, concepts, systems or techniques contemplated by or embodied in the Disclosing Party's Confidential Information, provided that the Receiving Party (a) can document that such development occurred independently without any use of the Disclosing Party’s Confidential Information, (b) does not violate any of its obligations under these Terms, and (c) does not reverse engineer any of the Disclosing Party's Confidential Information.

13. Export Control and Local Laws

This site provides services, and uses software and technology, that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies, as well as the export control regulations of other countries. As a user of this site, you must not use the Website or the Services in, or permit the Website, any Services, any Waterfall Materials, or any underlying information, software or technology, to be transferred, exported, re-exported or otherwise provided to, any countries regarding which the United States, Switzerland or the European Union maintains an embargo (collectively, "Embargoed Countries"). You also must not transfer, export, re-export or otherwise provide the Website, any Services, any Waterfall Materials, or any underlying information, software or technology, to (a) any nationals or residents of any Embargoed Countries, or (b) any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice, so you should check those lists frequently to ensure you comply. You represent and warrant that you are not a Designated National and are not located in, under the control of, or a national or resident of any Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws, and you assume sole responsibility for obtaining any licenses required to export or re-export. This Website also may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Waterfall makes no representation that the Website, Service, Waterfall Technology or Waterfall Materials is appropriate or available for use in other locations. If you use the Website, Service, Waterfall Technology or Waterfall Materials from outside the United States of America, Switzerland and the European Union, you are solely responsible for complying with all applicable laws, including, without limitation, export and import regulations of other countries. Any diversion or export of the Website, or any Services, Waterfall Technology or Waterfall Materials contrary to the laws of United States, Switzerland or European Union (including European Union Member States) is strictly prohibited. Finally, none of the Website, Services, Waterfall Technology or Waterfall Materials, nor any information acquired through the use of the Website, Services, Waterfall Technology or Waterfall Materials, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or an appropriate European body for such purposes.

14. U.S. Government Contract Provisions

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

15. Notices

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

16. Assignment

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

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

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

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

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

Support & Maintenance Policy

Last Modified: October 28, 2015

By using the Services, you ("Client") acknowledge that the Services are made available subject to Waterfall’s Support and Maintenance Policy ("Support Policy") and Waterfall’s Terms of Service. This Support Policy may only be superseded by specific terms in a written agreement executed by both the Client and Waterfall.

  • SUPPORT AND MAINTENANCE OBLIGATIONS.. For purposes of this Service Level Agreement, each word or phrase listed below has the meaning designated. Other words or phrases may be defined in the context in which they are used, and shall have the respective meanings there designated.
    • User Technical Support For Core Product Features. Waterfall will provide Users with remote technical assistance and consultation relating to the general use and operation of the Services for mobile messaging and content campaigns run through the Services. Support inquiries from Client should be submitted to Waterfall via email at help@waterfall.com.
    • 1.1.1 General use and operation includes the following: (i) testing, analyzing, or troubleshooting Client’s messaging and campaigns; (ii) guidance on running reports; and (iii) providing bug fixes and updates to the Services that Waterfall makes commercially available to its other licensees, including notifications regarding such fixes and updates.

      1.1.2 General use and operation does not include the following: (i) consultation on how to leverage existing Waterfall APIs; (ii) custom development projects (e.g., web services, landing pages, couponing, custom reporting); and (iii) strategy and compliance services.

      1.1.3 Waterfall will provide three (3) hours of standard web-based customer support services each calendar month for each Client (regardless of the number of Users for a Client). Paid phone or email support may be identified in Client's license agreement with Waterfall. If Client utilizes more web-based support within a month, Waterfall shall have the right to charge Client the lower of (i) Waterfalls then-current client services market rate or (ii) the client services fees outlined in Client's license agreement with Waterfall.

    • Service Supporting Clients’ Customers. Waterfall provides a public-facing email inbox (support@waterfall.com) into which Client’s customers may submit inquiries regarding a Client’s mobile message campaign. If a Client’s customer contacts Waterfall directly, Waterfall shall redirect or transfer that customer to the Client’s customer servicing unit, or provide an initial response to the customer’s inquiry if directed by the Client.
    • Hosting. Waterfall shall host the Services in an environmentally controlled facility that is physically secure, implements industry standard network security, and provides for constant monitoring against network intrusions. Waterfall shall make commercially reasonable efforts to make the Services available to Client 99.999% of the time (tested per day), each calendar month period, except for certain scheduled service and maintenance or in the event of emergency or events of force majeure. Waterfall shall make reasonable efforts to perform service and maintenance to the Services outside peak usage hours. Waterfall shall:
    • 1.3.1 Maintain sufficient bandwidth to enable Clients to interact with the Services in a commercially reasonable timeframe. However, Waterfall makes no direct obligation to Client for delays by Authorized Distributors outside of Waterfall's control;

      1.3.2 Maintain sufficient data storage for End User Data and the storage of the Client Data such that all data is backed up in a reasonable manner; and

      1.3.3 Maintain an e-mail subscription such that Client, upon request, may be given 24 hours notice of scheduled maintenance that may result in significant downtime.

    • Data Security. Waterfall shall undertake and perform reasonable efforts to ensure the security, confidentiality and integrity of all Client Content and Client Data delivered to Waterfall by Client or any of Client’s consumers through the Services to the standards and satisfaction of Client. Waterfall shall promptly notify Client in the event of any breach of security, confidentiality or integrity of the Services.
    • APIs. APIs may be made available to Client for marketing use and administrative use of the Services. Waterfall shall not be responsible for any modifications to uses of the APIs not expressly agreed to in writing prior to such modifications. Waterfall will train and assist in deployment of APIs but cannot be help responsible for quality of service or components or code not deployed on the Waterfall Platform or modifications that are done by Client.
    • Resolution of Issues. If Client notifies Waterfall regarding an issue involving the Waterfall Technology that does not fall within technical support identified in Section 1.1 above, Waterfall will initiate diagnostic and remedial measures within four (4) hours of notification of an issue (if received between 8:00 a.m. and 5:00 p.m. U.S. Pacific Time). Once Waterfall has commenced corrective measures, Waterfall will complete all such corrections as soon as reasonably practicable. If Waterfall cannot satisfactorily correct the issue within twenty-four (24) hours after Client's initial notification, then Waterfall will apply dedicated efforts and resources (at no additional cost to Client) until the issue is corrected. Waterfall will periodically advise Client concerning Waterfall's progress.
    • Notification Regarding Known Issues With Waterfall Technology. Waterfall will notify Client concerning all known issues in the Waterfall Technology, as such issues become known or are reported to Waterfall. Waterfall will promptly correct any such issues, or develop a work-around, patch or other fix, and furnish Client with such correction, work-around, patch or other fix as soon as practicable.