LiveRecover, LLC
Terms of Use
Last Updated: December 20, 2024
IMPORTANT: This Terms of Use 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 LiveRecover, LLC ("LiveRecover" or "Supplier").
"You" refers to the entity or organization using the Services described in this Agreement. By downloading the LiveRecover Platform, using the LiveRecover Platform and LiveRecover'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 LiveRecover is an express acknowledgement that you have read and are bound by this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE SERVICES.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
1.1. "Automatic Messaging Service" means a text messaging service in which a human is not responsible for initiating the dialing process with regard to each text message sent. Examples include, but are not necessarily limited to, recurring promotional messages to send to all users who have provided consent. This definition is not intended to suggest or imply that an automatic telephone dialing system, as defined by applicable law, is used to initiate the dialing process.
1.2 "Confidential Information" means all confidential information disclosed by or otherwise obtained from a party to or by the other party, whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information also includes all Customer Data and End User Communications submitted to LiveRecover or collected through Customer's use of the LiveRecover Platform or its Services.
1.3. "Customer Data" means the data created or inputted by Customer or its End Users for the purpose of using the Services of LiveRecover or facilitating Customer's use of the Services.
1.4. "Human Agent Messaging Service" means a text messaging service in which a human is responsible for initiating the dialing process with regard to each text message sent. Examples include, but are not necessarily limited to, abandoned cart recovery text messages.
1.5. "LiveRecover Platform" means the software program supplied by LiveRecover to Customer, including when obtained as an application from any third-party app store.
1.4. "Services" means the text messaging services now or in the future offered by LiveRecover. These include the Automatic Marketing Message Service and the Human Agent Messaging Service.
1.5. "Submissions" means any type of communication that might be sent by Customer or any End User.
1.6. "End User" means an individual who interacts with Customer, its Affiliates, and/or its Agents through the Services.
1.7. "End User Communications" mean the End User emails, SMS and MMS messages, and information submitted through the Services.
1.8. "Fees" are the fees that Customer pays to utilize the Services. The 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 as well as transaction fees that are assessed when LiveRecover facilitates the completion of a transaction on behalf of Customer.
1.9 "Service Order" means a communication, in writing, in which a custom proposal for Services and the associated Fees is offered by LiveRecover to a Customer and the Customer agrees to accept the Services and pay the proposed Fees.
2. GENERAL RULES FOR LIVERECOVER PLATFORM & SERVICES
2.1 Acceptable Use Policy - LiveRecover Platform & Services.
2.1.1 Generally. The following requirements apply without regard to whether the Customer is utilizing the Human Agent Messaging Service or the Automatic Messaging Service. Customer may not, and may not permit any third party to, use the LiveRecover Platform or Services in violation of (a) the CTIA Messaging Principles and Best Practices Guidelines; (b) the CTIA Short Code Monitoring Handbook; or (c) any other applicable laws, rules, and regulations, including, but not limited to, the Telephone Consumer Protection Act and those laws, rules, and regulations applicable to data privacy and use and consumer protection.
2.1.2 Programs. Customer shall be responsible for ensuring that all programs used in conjunction with the LiveRecover Platform or Services (including advertising or promotional campaigns, contests, drawing, raffles, lotteries, etc.) ("Programs"), including the administration thereof, comply with all applicable laws, rules, and regulations.
2.1.3 Telephone Consumer Protection Act ("TCPA") and State Law Analogues. Customer is solely responsible and liable for ensuring that its use of the LiveRecover Platform or its Services comply with the TCPA, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, including 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, including 16 C.F.R. § 310, as well as similar state laws and regulations.
2.1.4 Controlling the Assault of Non-Solicited Pornography and Marketing Acts ("CAN-SPAM"). Customer is solely responsible and liable for ensuring that its use of the LiveRecover Platform or its Services comply with the CAN-SPAM Act, 15 U.S.C. §§ 7701-7713.
2.1.5 Prohibited Content. Customer acknowledges and agrees to not hold LiveRecover liable for any prohibited content that it or its End Users send over the LiveRecover Platform or via LiveRecover's Services, including, but not limited to, content that may be obscene, indecent, misleading, fraudulent, racist, intolerant, harmful, or otherwise objectionable.
2.1.5 Age Restriction. In order to use the LiveRecover Platform and/or its Services, Customer must be eighteen (18) years of age or older.
2.2 Customer Obligations for Automatic Messaging Service. The following requirements apply when the Customer is utilizing the Automatic Messaging Service.
2.2.1 Enforceable Terms of Service. Customer shall be responsible for ensuring that all End Users who are engaged by Customer through the LiveRecover Platform are required to agree to the Customer's Terms of Service (the "End User Terms of Service") and that Customer at all times has in effect an enforceable Terms of Service related to the sending of SMS/MMS messages that include certain provisions that are intended to protect LiveRecover.
2.3 Communications Equipment. Customer is responsible for obtaining and maintaining all of the appliances, hardware, software, and services that Customer may need to access and use the LiveRecover Platform and its Services.
2.4 Passwords. Customer is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Customer IDs, or other credentials and login information (collectively, "Passwords") that have been provided to Customer or that are generated in connection with Customer's use of the LiveRecover Platform and its Services.
2.5 Changes to Service. LiveRecover has the right to change, modify, update, add to, discontinue, or retire any aspect or feature of the LiveRecover Platform or its Services including, but not limited to, hours of availability, equipment or related services needed for access or use, and the type and size of content that can be stored or transmitted.
2.6 Termination of Service. LiveRecover shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer's access to the LiveRecover Platform and/or its Services at any time.
2.7 Refusal of Service. LiveRecover reserves the right to refuse service to any person or entity for any reason which LiveRecover, in its sole discretion, deems to be appropriate.
2.8 Reservation of Rights. LiveRecover reserves the right to determine any violation of Section 2 at its sole discretion.
2.9 Customer understands that Message and Data Rates may apply to the Customer's End Users. LiveRecover is not responsible for any incurred messaging and data rates incurred by the Customer's End Users.
2.9.1 Messaging frequency disclosure. Customer understands that Customer's End Users will receive SMS from the LiveRecover Human Services team based on the workflows set up within their account. The standard frequency is one SMS per abandoned checkout per Customer's End User.
3. SERVICE ORDER, SUBSCRIPTION TERM, FEES, AND PAYMENT
3.1. Fees and Service Orders. The Fees shall be those set forth at (https://app.liverecover.com/activate), for the plan you select unless otherwise set forth in a Service Order.
3.2. Subscription Term.
3.2.1. Customer acknowledges and agrees to be held responsible for all Fees for the period specified on the applicable Service Order ("Subscription Term") and acknowledges and agrees to pay all Fees for the Subscription Term, regardless of Customer's cancellation date.
3.2.2. All Fees for the LiveRecover Platform and its Services will continue and renew automatically for so long as Customer's subscription is in place and all applicable fees are timely paid or until Customer provides LiveRecover with notice of its decision to cancel its subscription renewal, as described in Section 3.9.3.
3.3. Payment Processing. LiveRecover, or, if applicable, the Authorized Reseller, will charge Customer the recurring monthly subscription Fees and applicable taxes for the LiveRecover Platform and Services rendered in advance of each billing period on or after the first day of such billing period.
3.4 Recurring Billing. By starting its LiveRecover subscription and providing or designating a Payment Method, Customer authorizes LiveRecover to charge Customer a Fee at the then-current rate, and any other charges Customer may incur in connection with its use of the LiveRecover subscription service to Customer's Payment Method.
3.5. 30-day Money Back Guarantee. LiveRecover will provide a refund to the Customer up to 30 days after the original purchase if LiveRecover does not meet Customer's expectations.
3.6. Billing Disputes. In the event Customer would like to dispute any bill it received from LiveRecover, Customer acknowledges and agrees to provide LiveRecover with written notice within fourteen (14) calendar days of delivery of the billing statement.
3.7. Late Payments. Late payments, including those resulting from credit card declines that the Customer fails to resolve within five (5) business days of being informed of the decline, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.
3.8. Collection of Fees Owed. If LiveRecover, or, if applicable, the Authorized Reseller, must initiate a collection process to recover Fees due and payable hereunder, LiveRecover shall be entitled to recover from Customer all costs associated with such collection efforts, including, but not limited to, reasonable attorneys' fees.
3.9. Cancellation.
3.9.1. Cancellation by LiveRecover. LiveRecover may immediately cancel Customer's Subscription Term without notification to Customer under certain circumstances.
3.9.2. Cancellation by LiveRecover Without Cause: Upon LiveRecover canceling Customer's subscription to the LiveRecover Platform and its Services without cause, Customer may be entitled to a pro-rata refund of any pre-paid and unused Fees advanced to LiveRecover.
3.9.3. Cancellation by Customer. Customer may cancel its subscription at any time through the LiveRecover Platform. LIVERECOVER DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY CANCELLATIONS THAT OCCUR BEYOND THE INITIAL 30 DAYS.
4. PROPRIETARY RIGHTS
4.1 License. Subject to the terms and conditions of this Agreement, LiveRecover grants to Customer a non-exclusive, non-transferable, revocable license during the Subscription Term, without the right to sublicense, to use the LiveRecover Platform solely for the purposes of accessing and using the Services.
4.2 Ownership. Customer acknowledges that all right, title, and interest in and to the LiveRecover Platform and its Services, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and other proprietary and intellectual property rights embodied therein or associated therewith, are and shall remain with LiveRecover or its third-party licensors.
4.3 Restrictions. Unless LiveRecover grants Customer permission, Customer shall not, and shall not permit any third party to sell, transfer, lend, provide or otherwise make available, or disclose to third parties the LiveRecover Platform, its Services, or any components thereof.
5. CONFIDENTIALITY
5.1 Confidential Information - Definition.
5.1.1 Customer's Confidential Information includes Customer Data and End User Communications. LiveRecover's Confidential Information includes the LiveRecover Platform, all documentation related to and the product of all Services, and LiveRecover's financial, security, architectural, or similar information.
5.2 Protection of Confidential Information.
5.2.1 Each party agrees to maintain Confidential Information in confidence and not to disclose it or any portion of it, except to its and its Affiliates' employees and consultants who have a need to know such Confidential Information and are bound by obligations of confidentiality similar to those herein, for a period of three (3) years after the expiration or termination of this Agreement.
6. CUSTOMER DATA
6.1 Customer Data. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to LiveRecover, all programs, data, information and other content transmitted via the LiveRecover Platform and hosted through its Services.
6.2 End Customer Data. In connection with LiveRecover's performance of its Services, LiveRecover may collect online data from Customer through the LiveRecover Platform regarding Customer's End Users (the "End User Data").
7. WARRANTIES AND DISCLAIMERS
7.1 Mutual Warranties. Each party represents and warrants that it has the legal power to enter into the Agreement.
7.2 Customer Warranties. Customer represents and warrants that the Customer Data does not and will not infringe on any copyright, patent, trade secret, or other proprietary right held by any third party.
7.3 Disclaimer. EXCEPT AS SET FORTH IN SECTION 7.1 (Mutual Warranties), EACH APPLICATION, ACCESS THERETO, THE DOCUMENTATION, AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN "AS IS" BASIS.
8. INDEMNIFICATION
8.1 Indemnification by Customer. Customer shall indemnify, hold harmless, and defend LiveRecover and any of its officers, directors, employees, or affiliates against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party.
9. LIMITATION OF LIABILITY
9.1 Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, LIVERECOVER WILL NOT HAVE ANY LIABILITY TOWARDS CUSTOMER FOR ANY DAMAGES ARISING FROM CUSTOMER'S USE OF THE LIVERECOVER PLATFORM AND/OR SERVICES.
10. INSURANCE
10.1 Customer shall, at its own cost and expense, procure and maintain in full force and effect during the Term of this Agreement, policies of insurance, of the types and in the minimum amounts reasonably necessary and appropriate in its industry to perform its obligations under this Agreement.
11. DISPUTE RESOLUTION
11.1 Exclusive Dispute Resolution Mechanism. The parties shall resolve any and all disputes, controversies, or claims arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof.
11.2 Negotiations. A party shall send written notice to the other party of any Dispute ("Dispute Notice"). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves.
11.3 Arbitration. If the negotiations mentioned in the previous Section 11.2 do not resolve the Dispute, the parties agree to submit the Dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") then in effect.
12. GENERAL
12.1 Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default that is caused by conditions beyond its control.
12.2 Assignment. Customer may not assign its rights or delegate any obligations pursuant to this Agreement without the express prior written consent of LiveRecover.
12.3 Independent Contractor Relationship. Neither Customer nor LiveRecover shall be deemed to be an agent of the other and the relationship of Customer and LiveRecover shall be that of independent contractors.
12.4 Notices. Any notice or report required or permitted to be given or made under this Agreement by either party will be in English, in writing.
LiveRecover Notice Address:
LRI Technology, Inc.
244 Fifth Avenue, Suite 1221
New York, N.Y. 10001
12.5 Support. For Customer support, please email support@liverecover.com.
12.6 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach.
12.7 Entire Agreement. This Agreement, the LiveRecover Privacy Policy, and any applicable Service Orders set forth the complete understanding of the parties with respect to the subject matter hereof.
12.8 Modification. LiveRecover may modify this Agreement or any policy or other terms referenced in this Agreement at any time by posting a revised version of this Agreement on the LiveRecover Website.
12.9 Severability. Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.
12.10 Survival. Section 3 (Service Order, Subscription Term, Fees, and Payment), Section 5 (Confidentiality), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 11 (Dispute Resolution), and Section 12 (General) shall survive the termination or expiration of this Agreement.