OPEN PROGRESS TERMS OF SERVICE
Last Updated: December 1, 2019
These Terms of Service (“Terms”) apply to your access to and use of the websites, software, applications, and other online products and services, including Open Progress, TextOut, and any other services that link to these terms (collectively, our “Services”) provided by OpenProgress, or KnockCo, LLC (collectively, “Open Progress” or “we”). By clicking “I Accept,” “Register,” “Text Now,” “Send,” “Join Now,” “Volunteer,” “Sign Up” or similar, or registering, accessing or using our Services you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 16, do not access or use our Services.
If you have any questions about these Terms or our Services, please contact us at supporters@openprogress.com.
1. Eligibility
You must be at least 13 years of age to access or use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may only access or use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in connection with our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
2. Additional Terms for Specific Services
In addition to these Terms, we may ask you to accept additional terms that apply to specific features, products or services. To the extent any additional terms conflict with these Terms, the additional terms govern with respect to your access to or use of the applicable feature, product or service.
3. User Accounts and Account Security
You may need to register for an account or use your credentials (e.g., username and password) from a third-party social media platform to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission.
4. Privacy
Please refer to our Privacy Policy https://www.openprogress.com/privacy-policy/ for information about how we collect, use and disclose information about you.
5. Terms of Sale
Please refer to our Terms of Sale for the terms, conditions and policies applicable to any purchases you make on or through our Services. By making a purchase on or through our Services, you agree to the Terms of Sale. We may change the Terms of Sale at any time without notice to you, so you should review them each time you make a purchase.
6. Electronic Communications
By creating an account for an Open Progress provided system, you consent to receive electronic communications from Open Progress (e.g., via email, text message or by posting notices on our Services). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
7. User Content
Our Services may allow you and other users to create, post, store and share content, including messages, text, photos, videos, software and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Open Progress.
You grant Open Progress a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to the public.
You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.
8. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. You will not:
§ Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
§ Use or attempt to use another user’s account without authorization from that user and Open Progress;
§ Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
§ Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
§ Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
§ Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
§ Bypass or ignore instructions contained in our robots.txt file, accessible at openprogress.com, that controls automated access to portions of our Services; or
§ Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You may also only post or otherwise share User Content that is non-confidential and you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
§ Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
§ Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
§ May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
§ Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
§ Impersonates, or misrepresents your affiliation with, any person or entity;
§ Contains any unsolicited promotions, political campaigning, advertising or solicitations;
§ Contains any private or personal information of a third party without such third party’s consent;
§ Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
§ Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Open Progress or others to any harm or liability of any type.
In addition, although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason.
9. Limited License; Copyright and Trademark
Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “Open Progress Content”) are owned by or licensed to Open Progress and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Open Progress and our licensors reserve all rights in and to our Services and the Open Progress Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and Open Progress Content for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use Open Progress Content; (b) copy, reproduce, distribute, publicly perform or publicly display Open Progress Content, except as expressly permitted by us or our licensors; (c) modify the Open Progress Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Open Progress Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or Open Progress Content other than for their intended purposes. Any use of our Services or Open Progress Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
10. Feedback
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Open Progress or our products or Services (collectively, “Feedback”), is non-confidential and will become the sole property of Open Progress. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
11. Copyright Complaints
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Open Progress’s Designated Agent as follows:
Designated Agent:
Open Progress Agent
Address:
16830 Ventura BLVD
STE 360
Encino, CA 91436
E-Mail Address:
supporters@openprogress.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Open Progress for certain costs and damages.
12. Content Provided by Others
Your use of others’ content and information posted on our Services, is at your own risk. Others may offer their own products and services through Open Progress, and we are not responsible for those third-party activities.
By using the Services, you may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive or otherwise harmful. Open Progress generally does not review content provided by others, including other users of our services. You agree that we are not responsible for others’ content or information. We cannot always prevent this misuse of our Services, and you agree that we are not responsible for any such misuse. Except to the limited extent it may be required by applicable law, Open Progress is not responsible for these other sites and apps – use these at your own risk.
13. Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless KnockCo,LLC and OpenProgress and their affiliates and each of our respective officers, directors, agents, volunteers, partners and employees (individually and collectively, the “Open Progress Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of our Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Services. You agree to promptly notify the Open Progress Parties of any third party Claims, cooperate with Open Progress Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Open Progress Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Open Progress or the other Open Progress Parties.
14. Disclaimers
We do not control, endorse or take responsibility for any User Content or third-party content available on or linked to by our Services.
Your use of our Services is at your sole risk. Our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Open Progress does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Open Progress attempts to make your access to and use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
15. Limitation of Liability
Open Progress and the other Open Progress Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Open Progress or the other Open Progress Parties have been advised of the possibility of such damages.
The total liability of Open Progress and the other Open Progress Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid, if any, by you to access or use our Services.
The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Open Progress or the other Open Progress Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
16. Release
To the fullest extent permitted by applicable law, you release Open Progress and the other Open Progress Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
17. Transfer and Processing Data
By accessing or using our Services, you consent to the processing, transfer and storage of information about you in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.
18. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Open Progress and limits the manner in which you can seek relief from us.
Except for small claims disputes in which you or Open Progress seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Open Progress seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Open Progress waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in Los Angeles County, California in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and Open Progress agree that any dispute arising out of or related to these Terms or our Services is personal to you and Open Progress and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and Open Progress agree that these Terms affect interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Company agree that for any arbitration you initiate, you will pay the filing fee and Company will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Company will pay all JAMS fees and costs. You and Open Progress agree that the state or federal courts of the State of California and the United States sitting in Los Angeles County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SERVICES MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH MEANS THAT YOU AND OPEN PROGRESS WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 13 by emailing us at supporters@openprogress.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 14.
19. Governing Law and Venue
These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Los Angeles County, California.
20. Changes to these Terms
We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Services and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.
21. Termination
We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
22. Severability
If any provision or part of a provision of these Terms is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
23. Miscellaneous
These Terms constitute the entire agreement between you and Open Progress relating to your access to and use of our Services. The failure of Open Progress to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.