This Terms of Service Agreement (the “Agreement”), together with any on-line or written order form for the purchase of the Services as herein defined (each, a “Service Order”), collectively are binding and enforceable between you (“Customer”) and Elite Ventures, LLC d/b/a Cartloop (“Cartloop” or “Supplier”). This Agreement also applies if you purchase a right to use the Services as herein defined pursuant to a Service Order entered into between you and an Authorized Reseller.
“You” refers to the entity or organization using the Services described in this Agreement. By downloading the Cartloop Platform, using the Cartloop Platform and Cartloop’s Services, or signing an order form to use the Services, you, the Customer, are accepting and agreeing to be bound by this Agreement in full. Your use of the Services of Cartloop is an express acknowledgement that you have read and are bound by this Agreement.
These Terms of Service (the “Agreement”) are a legal agreement between You as the User and Cartloop, that governs Your limited, non-exclusive and terminable right to the use of the Cartloop Website and Services as defined herein. By creating an account, or otherwise making use of the Services, You agree to be bound by the terms of this Agreement.
If You do not agree to this Agreement, You must not sign up for an Account and shall not make use of any of the Services or the Website. By agreeing to this Agreement, You acknowledge that You have read this Agreement, understood it, and agree to be bound by its terms and conditions.
Any new features or tools which are added to the current Service shall be also subject to the Terms of Service. You can review the most current version of the Terms of Service at any time here. Cartloop reserves the right to update and change the Terms of Service by posting updates and changes to the Cartloop website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.
We will resolve disputes arising under this Agreement through binding arbitration. By accepting this Agreement, as provided in greater detail in Section 10 of this Agreement, you and Cartloop are each waiving the right to a trial by jury or to participate in a class action.
In order to use Services you must unconditionally consent to and accept the terms and conditions (including those regulating the processing of personal data) by signing up to the Services whereby you are entering into a legally binding agreement with Cartloop.
“Account” shall mean an account with Cartloop to use the Services;
“Agreement” shall mean these Terms of Service, including any annexes thereto which form an integral part thereof and which in their totality, govern Your relationship with Cartloop;
“Membership” means the subscription service that allows you to use Cartloop to send SMS/MMS campaigns and manage your contacts.
“Authorized Reseller” means a Cartloop-authorized agent, vendor, or reseller of the Cartloop Platform and Cartloop’s Services, including, but not limited to, Shopify Inc. (“Shopify”).
“Applicable Law” shall mean the laws to which Cartloop is subject, particularly the Laws of United States, where Cartloop is incorporated and the Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR), and any other laws as may be applicable from time to time;
“Confidential Information” shall mean all information provided by You or Us (the “Disclosing Party”), to the other party (the “Receiving Party”), whether orally or in writing, which information is designated as being confidential. Provided that for all intents and purposes, Confidential Information shall not be construed to include any information that is (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by the Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party’s representatives; or (d) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval;
“Data” shall mean content, Personal Data, information, Know-How and Confidential Information relating to Your business, some of which may not be publicly available, including but not limited to technical and commercial information concerning Your, or any of Your parent company’s or subsidiaries’, business, systems, processes, software and services, as the case may be;
“Intellectual Property Rights” shall mean the copyright, including the moral and related rights, rights to use, musical works, literary works, designs, databases or any other copyright protected works, trade names, protected business identifiers, patents, utility models and trademarks, and all other industrial and intellectual property rights, in each case whether registered or unregistered, which currently subsist, or will subsist, now or in the future, in any part of the world;
“Cartloop Platform” means the software program supplied by Cartloop to Customer, including when obtained as an application from the Shopify App Store.
“Know-How” shall mean unpatented information, knowledge, experience, formula, research, processes, studies, reports, Data and designs developed by and/or in Your possession;
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“Service/s” shall mean the software as a service (SaaS) offered by Cartloop and having a variety of resources including but not limited to online customer management services presently being offered by Cartloop. These customer management services include using Cartloop software to retrieve End User information from End User Communications, viewing data available from the End User Communications, and using Cartloop’s marketing platform to send messages to End Users through SMS and MMS messages.
“Site/s” shall mean the website Cartloop.io, in addition to any sub-pages that are integrated within this website;
“Subscription Fees” shall mean one of the different subscription packages through which You can use the Services as further. The Subscription Fees applicable to this Agreement are monthly fees that allow a certain capacity of SMS & MMS messages to be sent through the Services during each monthly period and/or a percentage of the Cartloop driven sales.
“Subscription Term” shall mean the period of time for which subscription to the Services shall be made available by Cartloop to You, subject to Your adherence to the obligations undertaken by virtue of this Agreement;
“Third Party/ies” shall mean any persons, whether legal or natural, which are neither You nor Cartloop;
“End User” means an individual who interacts with Customer, its Affiliates, and/or its Agents through the Services.
“Trial Period” shall mean free access provided to You by Cartloop for a limited and established period of time, to the Services, which shall be granted at the sole discretion of Cartloop, which access may be revoked by Cartloop at any time without need of any prior notice;
“You” / “Your” shall mean a person, whether natural or legal, acting in the course of a trade or business, and who agrees to be bound by the terms contained in this Agreement.
You may not use the Cartloop service for any illegal or unauthorized purpose, nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws) as well as the laws of the United States of America and the state of Delaware.
You understand that you are responsible for obtaining express written consent from the owner of the mobile phone numbers to use that number to send text messages to (unless you have another legal right to use that number for texting without express consent). You warrant to us that you have the right to transmit messages to that mobile number and that our delivery of those messages will not violate applicable laws, regulations or mobile messaging industry guidelines, and you agree to defend and indemnify us from any claim to the contrary.
You are responsible for keeping your Shopify user account and password secure. Cartloop cannot and will not be liable for any loss or damage from your failure to maintain the security of your account and password. You are responsible for all activity and content (data, graphics, photos, links) that is uploaded, stored or transmitted under your Cartloop account. You warrant to us that you have the right to upload, store and transmit these items, and you agree to defend and indemnify us from any claim to the contrary.
You are responsible for the content of the communications with your customers, and your relationship with those customers. You will ensure that we are not responsible for claims made by recipients of your communications against us, and you agree to defend and indemnify us from any such claim.
A breach or violation of any of the Account Terms as determined in the sole discretion of Cartloop will result in an immediate termination of your services.
When you use the services to send SMS message campaigns, you must do so with reference to a set of program terms consistent with the TCPA (Telephone Consumer Protection Act), GDPR and mobile messaging industry guidelines.
a. An express representation and warranty that the End User is supplying his or her own phone number, and not someone else’s, to Customer, and that the End User agrees to provide Customer with notice if he or she is no longer the primary user of that number;
b. A dispute resolution and/or jurisdiction provision expressly providing that End User waives the right to any class action litigation and/or jury trials and expressly providing that End User agrees to resolve all disputes via confidential arbitration in which the arbitrator will apply the substantive law of the Federal Judicial Circuit in which the Customer’s principle place of business is located for any and all TCPA related claims;
c. An opt-out provision expressly providing that the End User agrees to opt-out of receiving any further messages on the Cartloop Platform via one or more explicitly designed methods, which, at a minimum, shall include the following: (a) any of the opt-out keywords that are universally recognized, including but not limited to STOP, UNSUBSCRIBE, CANCEL, END, or QUIT; and (b) one or more alternative opt-out methods, including, but not limited to, via a web-based portal, telephone number, and/or email address established by the Customer for the purpose of opting-out End Users. The opt-out provision must also expressly stipulate that any opt-out method not expressly provided in the Customer’s opt-out provision is unreasonable;
d. A provision expressly providing that Cartloop is a third-party beneficiary of the Customer’s arbitration, class action, and jury waiver provisions;
e. An age restriction provision expressly providing that the End User may not use or engage with the Cartloop Platform if the End User is under thirteen (13) years of age and that, if the End User is between the ages of thirteen (13) and eighteen (18) years of age, End User must have his or her parent’s or legal guardian’s permission to use or engage with the Cartloop Platform; and
f. A prohibited content provision expressly providing that the End User is prohibited from using the Cartloop Platform or its Services in connection with any of the following types of content:
1. Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
2. Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
3. Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
4. Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
5. Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act.
Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to Cartloop, all programs, data, information and other content transmitted via the Cartloop Platform and hosted through its Services, including, without limitation, End User Data (as defined below) and the Customer Marketing Content (collectively, the “Customer Data”) and has the full authority to transmit and store the Customer Data through the Cartloop Platform and its Services. Customer hereby authorizes the storage of Customer Data by Cartloop through the Cartloop Platform and its Services. Customer acknowledges that Customer bears sole responsibility for adequate security, protection, and backup of Customer’s Data on Customer’s equipment. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions, and other causes, which might result in Customer restoring files that are no longer usable. Cartloop will have no liability to Customer for any unauthorized access to, or use, alteration, corruption, deletion, destruction, or loss of any Customer Data on Customer’s equipment.
a. Respect of Third Party Rights. Cartloop respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on the Site.
b. Repeat Infringer Policy. Cartloop’s intellectual property policy is to (i) remove or disable access to material that Cartloop believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the Site; and (ii) remove any User Content Posted to the Site by “repeat infringers.” Cartloop considers a “repeat infringer” to be any User that has uploaded User Content to the Site and for whom Cartloop has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. Cartloop has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon Cartloop’s own determination.
c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Site has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Cartloop with the User alleged to have infringed a right you own or control, and you hereby consent to Cartloop making such disclosure. Your communication must include substantially the following:
i. a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
iii. identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Cartloop to locate the material;
iv. information reasonably sufficient to permit Cartloop to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v. a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
d. Designated Agent Contact Information. Cartloop’s designated agent for receipt of Notifications of Claimed Infringement (“Designated Agent”) can be contacted at:
Via E-mail: copyright@Cartloop.io
Via U.S. Mail: 16192 Coastal Hwy , Lewes, Delaware 19958
e. Counter Notification. If you receive a notification from Cartloop that material you Posted on the Site has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Cartloop with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Cartloop’s Designated Agent through one of the methods identified in Section 5.d above and include substantially the following information:
i. your physical or electronic signature;
ii. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
iv. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Cartloop may be found, and you will accept service of process from the person who provided notification in accordance with Section 5.d above or an agent of such person.
You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.
f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Cartloop in response to a Notification of Claimed Infringement, then Cartloop will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Cartloop will replace the removed User Content or cease disabling access to it in 10 business days, and Cartloop will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Cartloop’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Cartloop’s system or network.
g. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Cartloop] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Cartloop reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
You agree that Cartloop may (a) publicize Your name, the fact of the Site and Your use of the Service; and (b) brand the SMS/MMS with a "powered by Cartloop" or similar legend and/or copyright notice.
You agree to defend, indemnify and hold harmless Cartloop and its affiliates and their respective officers, directors, agents, consultants and employees from any claims, damages, liabilities, costs, and expenses (as incurred, including attorney's fees) arising from (a) Your use of the Service or the Site; (b) the use by any third party of the Site; and (c) Your failure to comply with these Terms.
a. General. In the interest of resolving disputes between you and Cartloop in the most expedient and cost effective manner, you and Cartloop agree that any dispute arising out of or in any way related to this Agreement or your use of the Site will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this Agreement or your use of the Site, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CARTLOOP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 10.a above, nothing in this Terms of Service will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Cartloop will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Cartloop. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Cartloop’s address for Notice is: 16192 Coastal Hwy , Lewes, Delaware 19958, Attn: CEO. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Cartloop may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Cartloop must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favour with a monetary award that exceeds the last written settlement amount offered by Cartloop prior to selection of an arbitrator, Cartloop will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Cartloop in settlement of the dispute prior to the arbitrator’s award; or (C) $10,000.
e. Fees. If you commence arbitration in accordance with this Agreement, Cartloop will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Lewes, Delaware but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Cartloop for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. Notwithstanding anything in this Agreement to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 10.
f. No Class Actions. YOU AND CARTLOOP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Cartloop agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. Except as otherwise provided in this Agreement, if Cartloop makes any future change to this arbitration provision, other than a change to Cartloop’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Cartloop’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Cartloop.
h. Enforceability. If Section 10 above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section will be null and void.
Except to the extent prohibited by applicable law, in no event shall Cartloop or Third-Party Vendor, or their affiliates, subsidiaries, or third party licensors, be liable for any damages whatsoever (including without limitation, consequential, indirect, special, punitive, or incidental damages, or damages for loss of business profits, business interruption, loss or corruption of data, or other pecuniary loss) arising out of the use or inability to use the Service, even if Cartloop has been advised of the possibility of such damages. Except to the extent prohibited by applicable law, in no event shall the liability of Cartloop, its affiliates, subsidiaries, and its third party licensors, if any, for damages under these Terms or arising from use of the Service exceed the amount paid by You to Cartloop for the Service in the six (6) months immediately preceding the claim.
These Terms represent the complete agreement concerning the Service between You and Cartloop and supersede all prior agreements and representations related to the subject matter hereof. These Terms shall be deemed agreed in and governed by the substantive laws of the state of Delaware, excluding choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply. Section headings are provided for convenience only and have no substantive effect on construction. Except for Your obligation to pay Cartloop, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Notice shall be deemed effective when received by the designated fax, email, or postal address. If any provision is held to be unenforceable, the Terms shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future.
If you would like to contact us in connection with your use of the Site, then please contact us at 16192 Coastal Hwy, Lewes, Delaware, 19958, or by email at firstname.lastname@example.org.