Consumer Agreement

CONSUMER TERMS OF SERVICE

This Consumer Terms of Service ("Agreement") contains the complete terms and conditions between Tuxt Inc. (“Tuxt,” “we,” “us” or “ours”), a Delaware corporation located at 6320 Canoga Avenue, Suite 1700, Woodland Hills, California 91367 and the consumer indicated in the onboarding subscription form (“Subscription Form”) completed by you.

BY AGREEING TO SUBMIT INFORMATION TO TUXT AND CLICKING THE “I AGREE” BOX ON THE SUBSCRIPTION FORM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

  1. General
    1. The term “Services” as used in this Agreement includes the use of the Tuxt software platform (the “Platform”) which enables consumer (“you,” or “yours”) to obtain product offerings (“Offerings”) from subscribers to our Platform (“Subscribers”) and to order and pay for such product offerings (“Products”) through the Tuxt platform (“Platform”). The term “Services” also includes allowing you to have expedited payment for Offerings through your providing information to complete a profile on our Platform.
    2. We may modify this Agreement, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Although we will endeavour to provide you with notice of material changes, your use of the Platform after such posting shall be deemed to constitute acceptance by you of such modifications, additions or deletions.
    3. We may change or discontinue any aspect, service or feature of our Platform at any time, including, but not limited to, content and functionality of the Platform, hours of availability, and equipment needed for access or use.
    4. These Terms of Service supersede all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Platform, the Services provided by or through the Platform, and the subject matter of these Terms of Service.
  2. SERVICE LIMITATIONS
    1. You understand that the Platform allows you to receive information about product offerings and to pay for such offerings. We use the information you provide to obtain information about and to allow you to establish a profile to pay for your goods and services.
    2. You understand that you are primarily responsible for:
      1. Inputting accurate information into the Platform;
      2. Reviewing and evaluating product offerings; and
      3. Agreeing to receive information about product offerings.
    3. We do not and cannot guarantee the results of your use of the Platform. We make no promises regarding the outcome of the Services that we provide for you.
    4. If you no longer wish to receive text messages or SMS, you should follow the instructions in the message that you receive or text “STOP” to stop text messages.
  3. INTELLECTUAL PROPERTY; LIMITED LICENSE TO SUBSCRIBERS
    1. Through agreement to these Terms of Service, we grant you a limited, non-exclusive, non-transferable license to use the Platform for use solely by you according to the terms of these Terms of Service. The rights granted to you constitute a license and not a transfer of title. You are not granted any rights to republish, distribute, assign, sublicense, sell or prepare derivative works or other uses.
    2. You agree that the Platform is protected by intellectual property laws and that any unauthorized use of the Platform may violate these laws as well as these Terms of Service. Elements of the Platform are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
    3. Except as expressly indicated to the contrary elsewhere in this Agreement, you may view, download, and print the Content available on the Platform subject to the following conditions:
      1. the Platform may not be modified or altered in any way;
      2. you may not remove any copyright or other proprietary notices contained in the Platform; and
      3. you acknowledge that Tuxt has reserved the right to revoke the authorization to use the Services and to view, download, and print the Content available on this Platform at any time, and any such use by you shall be discontinued immediately upon notice from Tuxt.
  4. TRADEMARK INFORMATION

The trademarks, logos, and service marks, including the “Tuxt” trademark (“Marks”) displayed on this Site are the property of Tuxt or the third parties such as Subscribers. You are not permitted to use the Marks without the prior written consent of Tuxt or such third party that may own the Marks.

  1. CONSUMER DATA
    1. For the purposes of this Agreement, “Consumer Data” means your information or data, including “Personal Information” as defined in Section __, that you input or transmit to a Subscriber or to the Platform.
    2. You acknowledge that Tuxt may combine your Consumer Data that you input or that is obtained from a Subscriber to create a profile for you to facilitate orders, payments and for other use by you of the Platform.
    3. We also may use Customer Data in an anonymized or aggregate form for analytic purposes that excludes any Personal Information regarding a particular customer.
  2. PERSONAL INFORMATION AND PRIVACY
    1. Tuxt’s policies for the collection of Personal Information are set forth in our Privacy Policy, which is found here [insert hyperlink to Privacy Policy] which is incorporated by reference in this Agreement. For the purposes of this agreement and our Privacy Policy, “Personal Information” is information that may be used to directly or indirectly identify an individual, including the individual’s name, email address, physical address, phone number or other information.
    2. If you are a California resident, our Privacy Policy outlines your rights as a California Consumer under the California Consumer Privacy Act (CCPA)
  3. USE OF PAYMENT PROCESSORS

Payments for the Services by you will be processed through Subscribers’ payment processors as facilitated by us through the Platform.

  1. RESTRICTIONS AND PROHIBITED USES
    1. You are prohibited from engaging in any unlawful conduct, including distributing or posting any unlawful, threatening, harassing, libelous, offensive, defamatory, obscene, or pornographic materials, or other materials that would violate any law or the rights of others, including, without limitation, laws against copyright infringement, and rights of privacy and publicity.
    2. You are prohibited from using any data mining, robots, or similar data gathering and extraction methods in connection with the Platform.
    3. You are prohibited from breaching the security of the Platform or any Services, system resources, accounts, passwords, servers or networks accessible through the Platform and are prohibited from:
      1. accessing data not intended for you or logging into a server or account to which you are not authorized to access;
      2. interfering with any other user’s enjoyment and use of the Platform;
      3. uploading or transmitting any viruses or harmful, disruptive or destructive files;
      4. attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or
      5. attempting to interfere with service to any user, host or network, including, without limitation, submitting a virus to, overloading, “flooding”, “spamming”, “mailbombing” or “crashing”.
    4. Violation of these restrictions may result in denial of or limitations on access by you to the Platform or criminal or civil liability. Tuxt may monitor your conduct, including, without limitation, reviewing incoming messages to determine whether you are violating the terms and conditions of this Agreement.
  2. COMMENTS AND FEEDBACK
    1. Any comments, feedback, notes, messages, ideas, suggestions or other communications (collectively, “Comments”) sent by you to us shall be and remain the exclusive property of Tuxt. Your submission of any such Comments shall constitute an assignment to Tuxt of all-worldwide rights, titles and interests in all copyrights and other intellectual property rights in the Comments. We will be entitled to use, reproduce, disclose, publish and distribute any Comments you submit for any purpose whatsoever, without restriction and without compensating you in any way.
    2. You agree not to submit any Comments that may be submitted in violation of law or any agreement or obligation to keep the content of such Comments confidential. Tuxt expressly disclaims any interest in any Comments that you are not authorized to submit.
  3. PASSWORDS
    1. When using the Platform, you may be asked to create an account and provide us with specific information including, but not limited to, a valid email address. By doing so, you represent that you are the individual who is registering and have the right to provide information through the Platform.
    2. You are responsible for maintaining the confidentiality of your account, as well as all associated information, such as user IDs and passwords. You are responsible for all of you uses of the Platform. You agree to immediately notify us of any unauthorized use of your account. If you are no longer authorized to have access to the Platform, you may not use your user ID and password. Tuxt shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of any username, mobile number, and/or password.
  4. TERMINATION
    1. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach remains uncured sixty (60) days after the non-breaching party provides the breaching party with notice of such breach.
    2. Upon expiration or termination of this Agreement, the Services subscribed to shall automatically terminate.
    3. If you cancel your account or it is cancelled by us, all your account information will be deleted from our databases and will be removed from the Platform. The timeliness of the deletion is at our sole discretion. Information may continue to be available for some period of time due to delays in propagating such deletion through our web servers and other reasons beyond our immediate control.
  5. WARRANTIES AND DISCLAIMERS BY TUXT
    1. Except as expressly provided otherwise in a written agreement between you and Tuxt, thE Platform and Services accessible through thE Platform are provided “as is” without warranty of any kind. TO THE FULLEST EXTENT PERMITTED BY LAW, TUXT DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, QUIET ENJOYMENT OR SITE AVAILABILITY.
    2. Without limiting the foregoing, Tuxt makes no warranty that:
      1. the Services and Platform will meet your requirements;
      2. the Services and Platform will be uninterrupted, timely, secure, or error-free;
      3. the results that may be obtained from the use of the Services or Platform will be effective, accurate, or reliable;
      4. the quality of any Services or Platform obtained or accessible by you through the Platform will meet your expectations; and
      5. THAT THE SITE CONTENT IS FREE FROM INACCURACIES OR TYPOGRAPHICAL ERRORS, THAT THE CONTENT OF THE SITES IS COMPLETE OR TIMELY, AND THAT any errors in the Services or Platform, or any defects in the Platform and Services will be corrected.
    3. You understand and acknowledge that:
      1. Tuxt does not control, endorse, or accept responsibility for any Content, text message, products, or services offered by third parties or Subscribers through the Platform;
      2. Tuxt makes no representation or warranties whatsoever about any such third parties or Subscribers, their Content, products, or services;
      3. any dealings you may have with such third parties or SUBSCRIBERS are at your own risk; and
      4. Tuxt shall not be liable or responsible for any content, products, or services offered by third parties or Subscribers.
    4. By sending/receiving text messages through our Platform, you understand that some Content or messages may not be delivered due to various technical, network, and/or other reasons. Tuxt will not be held responsible or liable for undelivered Content or messages.
    5. The use of the Services or the transmission of content through the platform is done at your own discretion and risk and with your agreement that you will be solely responsible for any damage to your computer system, loss of data, or other harm that results from such activities. Tuxt assumes no liability for any computer virus or other similar software code that is downloaded to your computer from the Platform or in connection with any Services offered through the Platform. No advice or information, whether oral or written, obtained by you from Tuxt or through or from the Platform shall create any warranty not expressly stated in these Terms of Service.
    6. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES THAT ARE NOT PERMITTED TO BE EXCLUDED ARE LIMITED TO NINETY (90) DAYS OR SUCH LONGER PERIOD AS APPLICABLE LAW REQUIRES.
    7. SITE CONTENT MAY CONTAIN INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE SITES OR THEIR CONTENT. BY USING THE SITES, YOU AGREE TO THESE TERMS AND CONDITIONS OF SERVICE, AND YOU AGREE TO USE THE SITES AT YOUR OWN RISK. WE MAY CHANGE THE SITES AT ANY TIME. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE SITES.
  6. REPRESENTATIONS AND WARRANTIES BY YOU
    1. You represent and warrant that:
      1. You hold the necessary rights to enter into this Agreement; and
      2. that your use of the Platform will not violate any criminal laws or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights, violation of any anti-discrimination law or regulation, or any other right of any person or entity.
  7. LIMITATION OF LIABILITY
    1. In no event, including, without limitation, negligence, shall Tuxt, its subsidiaries, affiliates, agents, officers, directors, employees, partners, or suppliers be liable to you or any third party for any special, punitive, incidental, indirect, or consequential damages of any kind, or any damages whatsoever, including the loss of use, data, or profits, whether or not Tuxt has been advised of the possibility of such damages, and on any theory of liability, including, without limitation:
      1. those resulting from your violation of this Agreement;
      2. those arising out of or in connection with the use of or the inability to use this Platform or its Services;
      3. the statements or actions of any third party on or through the Platform;
      4. any dealings with Subscribers or other third parties;
      5. any unauthorized access to or alteration of your transmissions or data;
      6. any information that is sent or received or not sent or received, any failure to store or loss of data, files, or other content;
      7. any Services available through the Platform that are delayed or interrupted; or
      8. any website referenced or linked to or from this Platform.
    2. Notwithstanding anything to the contrary in this Agreement, Tuxt shall have the absolute unilateral right and power, without any consent from or liability to you, to delete any and all INFORMATION THAT YOU MAY SUBMIT TO THE Tuxt platform. You are advised to backup any such data on your own systems. Moreover, we reserve the right to unilaterally terminate your account.
  8. INDEMNIFICATION
    1. You agree to defend, indemnify and hold harmless Tuxt, its independent contractors, service providers and consultants, and their respective owners, directors, employees and agents, from and against any third party claims, damages, loss, liability, costs and expenses (including, but not limited to, reasonable attorney's fees):
      1. arising out of your use of the Platform or Services, including without limitation any actual or threatened suit, demand, or claim made by any third party against Tuxt or its employees, agents, owners, directors, independent contractors, service providers, or consultants; or
      2. arising out of or relating to your conduct, your violation of this Agreement, including your representations and warranties, or your violation of the rights of any third party or any law respecting third parties.
    2. We shall provide notice to you promptly of any claim, suit or proceeding. You shall cooperate as fully as reasonably required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without our written consent.
  9. ASSIGNMENT
    1. We may transfer, assign, sub-contract or otherwise deal with our rights and/or obligations under this Agreement.
    2. You may not assign any of your rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Tuxt.
  10. ENFORCEMENT

If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or any portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Terms of Service shall continue in full force and effect. Any failure by Tuxt to enforce or exercise any provision of these Terms of Service or related right shall not constitute a waiver of that right or provision.

    1. Sections 3-6, 8-10, 13, 16-24 and 26 of this Agreement survive any expiration or termination of this Agreement.
  1. APPLICABLE LAW

These Terms shall be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions.

  1. MISCELLANEOUS
    1. SEVERABILITY. If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provisions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted and the remainder of the provision will continue in effect.
    2. RESERVATION OF RIGHTS. Tuxt reserves all rights not expressly granted to the Subscriber in this Agreement.
    3. ENTIRE AGREEMENT. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to the subject matter of the Agreement.
    4. NOTICES. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and address to the parties at the addresses set forth on the final page of this Agreement (or to such other address that may be designated by the party giving the Notice from time to time). All Notices must be delivered by personal delivery, or nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission). Notices are effective upon receipt by the receiving party.
    5. FORCE MAJEURE. In no event shall Tuxt be liable to Subscriber, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Tuxt’s reasonable control.
    6. AMENDMENT AND MODIFICATION. No amendment or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
    7. COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
    8. AUTHORIZATION. Tuxt may reference Subscriber in discussions with prospective customers, marketing materials, or its website.
  2. ARBITRATION
    1. All disputes regarding these Terms of Service shall be determined pursuant to arbitration on the following terms, namely:
      1. Any controversy or claim arising out of or relating to this Agreement or relating to the Platform or Services, the parties’ relationship, the enforcement or interpretation of this Agreement, or because of an alleged breach, default or misrepresentation in connection with this Agreement, shall be determined by final, binding and confidential arbitration.
      2. The arbitration proceedings shall be held and conducted by one or more arbitrators in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS (the “JAMS Rules”), as modified by this Agreement.
      3. Such arbitration shall take place in Los Angeles County, California, and be initiated by any party in accordance with the JAMS Rules.
      4. The demand for arbitration shall be made by any party hereto within a reasonable time after the claim, dispute or other matter in question has arisen, and in any event shall not be made after the date when institution of legal proceeding, based on such claim, dispute or other matter in question, would be barred by the applicable statute of limitations. California Code of Civil Procedure Section 1283.05, which provides for certain discovery rights, shall apply to any such arbitration, and such Code Section is incorporated herein by reference.
      5. Discovery issues shall be decided by the arbitrator(s).
      6. Post-hearing briefs shall be permitted.
      7. The arbitrator(s) shall render a decision within twenty (20) days after the conclusion of the hearing(s). In reaching a decision, the arbitrator shall have no authority to change, extend, modify or suspend any of the terms of this Agreement, or to grant an award or remedy any greater than that which would be available from a court under the statutory or common law theory asserted. The arbitrator(s) shall issue a written opinion that includes the factual and legal basis for any decision and award.
      8. The arbitrator(s) shall apply the substantive law (and the law of remedies, if applicable) of California or federal law, or any of them, as applicable to the claim(s) asserted. Judgment on the award may be entered in any court of competent jurisdiction.
      9. In addition, either party may seek, from a court of competent jurisdiction in Los Angeles County, provisional remedies or injunctive relief in support of their respective rights and remedies hereunder without waiving any right to arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
      10. The arbitrator shall allocate all costs and expenses of the arbitration (including legal and accounting fees and expenses of the respective parties) to the parties in the proportions that reflect their relative success on the merits (including the successful assertion of any defences);
      11. The party desiring arbitration shall nominate one arbitrator and shall notify the other parties of such nomination. Such other parties shall within ten (10) days after receiving such notice, nominate an arbitrator and the two arbitrators shall select a chairman of the arbitral tribunal to act jointly with them. If the arbitrators shall be unable to agree in the selection of such chairman, the chairman shall be designated by a Judge of the applicable jurisdiction upon an application by any party;
      12. If the parties hereto receiving the notice of the nomination of any arbitrator by the party desiring arbitration fail within the said ten (10) days to oppose the nomination of said arbitrator, the nominated arbitrator shall be performed as the arbitrator for the purposes of arbitration under this Agreement. The arbitrator nominated by the party desiring arbitration may proceed alone to determine the dispute in such manner and at such time as he shall think fit and his decision shall, subject to the provisions hereof, be binding upon the parties; and
      13. Notwithstanding the foregoing, any arbitration may be carried out by a single arbitrator if the parties hereto so agree, in writing. In this event, the provisions of this paragraph shall apply mutatis mutandis; to the single arbitrator.