PURPOSE OF THIS AGREEMENT
Welcome to the Ketch Program! We are honored to be your partners and advisors as you seek to grow your business by attracting and converting your Ideal Prospects with killer strategy and innovative technology.
This Agreement sets forth your rights and obligations as a Ketch Client. By clicking “I Agree,” you indicate that you have read and understood this Agreement and you will be bound by its Terms.
i. “Ketch” is a trademark of Bull’s Eye Innovations Corp dba ecoFiles (referred to as we/our/us in this agreement). ecoFiles also refers to proprietary software used to create text and email campaigns, delivered through an electronic trigger. ecoFiles is the technology that powers Ketch communications.
ii. ecoFiles means Bull’s Eye Innovations Corp, the owner of the Ketch trademark, ecoFiles trademark and other trademarks. In this Agreement, references to ecoFiles as a Party mean and refer to Bull’s Eye innovations Corp, and affiliate entities, employees, and assigns.
iii. “Parties” mean ecoFiles and you. ecoFiles and you are each a “Party.”
iv. “Terms” mean and refer to the Terms and Conditions set forth herein.
v. “Client” refers to a person who has created a Ketch or ecoFiles Account. “Client Account” refers to a Client’s Ketch or ecoFiles Account.
vi. “You” and “Your” means the ecoFiles Client who has executed this Agreement by clicking “I Agree.”
vii. “User” or “Subscriber” refers to those texting the ecoFiles platform to request information
B. ecoFiles Service Mobile User Terms and Compliance Requirements
i. ecoFiles Service Description. ecoFiles enables users to request electronic versions of printed materials directly from their cellular phones. Within seconds, an electronic version of the requested piece is sent directly to the requestor's email inbox, providing them with the ability to reference the materials at any time.
ii. User Fees. ecoFiles does not charge mobile users a premium rate for receiving or replying to a text message. However, Message and Data Rates may apply.
iii. Help and Support. If a User encountesr any issues, concerns or questions with our service. Users can refer to the following methods to contact us. Phone: (908) 588-7007 Email: help@ecoFilesMobile.com
SMS: Text HELP to 411321
iv. Opt-In. To Opt-In a User must request an ecoFiles keyword to 411321. By doing so a User has agreed to receive messages from that content provider for that keyword only. An example would be Text CCATREE to 411321 to receive a copy of the Colon Cancer Alliance's Family Health Tree Worksheet.
v. Opt-Out. To Opt-Out at anytime a User may text any of the following: STOP, QUIT, END, CANCEL or UNSUBSCRIBE to 411321
vi. Message Frequency. Texting a keyword, opts a User into receiving the initial request, in addition to recurring relevant messages. A Subscriber can always text STOP space and then the keyword to 411321 to stop messages related to that specific campaign (example: If the opt-in keyword was LEADS, text STOP LEADS to 411321 to stop messages related to that sender.) If a User wants to end all messages coming from the ecoFiles service, simply text STOP to 411321 to be removed from all further messaging.
vii. Spam & Privacy. ecoFiles does not sell/distribute User information to any company, other than the one associated with the User request, without your consent. Outbound text messages or emails will occur only upon confirmed prior communication of the intent to the participant and will further be followed up by a confirmatory email.
viii. Carriers. ecoFiles supports the use of all major cell phone providers. Carriers are not liable for delayed or undelivered messages.
C. Becoming an Ketch Client
By clicking “I Agree” to these Terms, transferring payment to ecoFiles, and creating a Client Account, you become a Ketch Client, as well as an ecoFiles Client. Through ecoFiles, there are various products and services available to Clients, including the Ketch program, and annual or monthly prices applicable to such products and services. From this point forward, all terms related to the Ketch program, and other ecoFiles products and services, shall be referenced as ecoFiles.
ecoFiles' products, services, and prices are subject to change without notice including, but not limited to course upgrades or software changes. Price changes are effective on the first day of the month after the price change is posted, By clicking “I Agree” and providing ecoFiles your credit card information you authorize ecoFiles to charge your credit card in the amount indicated for the value of the services you select, including any future price changes. If you request a downgrade in services, the downgrade (and corresponding price reduction) will become effective on the first day of the month following your requested downgrade. By your continued use of ecoFiles services, and unless you terminate this agreement as provided herein, you agree that ecoFiles may charge your credit card annually or monthly for the products and services you have selected, and you consent to any price changes for such services.
D. Term and Termination
Your Client contract with ecoFiles begins when you click “I Agree,” and will continue until either:
i. ecoFiles cancels your account due to your breach of any of the Terms of this Agreement. In the event this Agreement is cancelled due to your breach, you will not be entitled to pro-rate your last month’s use, nor will you be entitled to any refund for any payments you have made to ecoFiles.
ii. For annual service programs: You provide ecoFiles e-mail notice, as provided herein, of your cancellation of your account within the thirty (30) day money back guarantee period, which begins the day of product purchase. If you provide such notice after the end of the thirty (30) day money back guarantee grace period, your credit card may still be charged. After such period, you will not be entitled to any refund for any payments to ecoFiles.
iii. For monthly service programs: You provide ecoFiles e-mail notice no less than ten (10) days before the first day of the next month, as provided herein, of your cancellation of your account. If you provide such notice less than ten (10) days before the first day of the next month, your credit card may still be charged. You will not be entitled to pro-rate your last month’s use, nor will you be entitled to any refund for any payments to ecoFiles.
ix. Your credit card or ecoFiles' charge is denied for any reason and you do not provide ecoFiles a new credit card within ten (10) days.
E. Refund for “Hard Goods”
If you have purchased a “hard good” (for example, a book, MP3 player, or other tangible product) from ecoFiles sold under any of its brands or related brands, including without limitation ecoFiles, you may receive a limited refund if you comply with the following conditions:
xi. Your request for a refund must be made within thirty (30) days of your purchase;
xii. You must return the hard goods to ecoFiles immediately, according to the shipping and other instructions you will receive by email after requesting a refund;
xiii. The hard goods must be returned to ecoFiles in like-new, or re-sellable condition, as determined in ecoFiles's sole, reasonable discretion.
xiv. No License to use ecoFiles Marks
If you have purchased one of our digital products (including any courses or the ecoFiles software) you may receive a refund if you comply with the following conditions:
i. You must request a refund in writing by calling our customer support hotline at (908) 588-7007
ii. Your request for a refund must be made within thirty (30) days of your purchase;
iii. You must return any hard goods associated with this purchase (workbook, t-shirts, etc) to ecoFiles immediately, according to the shipping and other instructions you will receive by email after requesting a refund.
iv. The hard goods must be returned to ecoFiles in like-new, or re-sellable condition, as determined in ecoFiles' sole, reasonable discretion.
Any content on any ecoFiles website may constitute the intellectual property of ecoFiles. Except where expressly authorized, no material on any ecoFiles website may be copied, reproduced, distributed, republished, uploaded, displayed, posted or transmitted in any way whatsoever. The ecoFiles trademark and logo, as well as Ketch trademark and logo, are proprietary marks of ecoFiles, and the use of those marks is strictly prohibited. Nothing herein gives you the right to use, copy, register as a domain name, reproduce, or otherwise display any logo, tagline, trademark, trade name, copyrighted material, patent, trade dress, trade secret, or confidential information owned by ecoFiles or any of ecoFiles affiliates.
You agree to protect, defend, indemnify and hold harmless ecoFiles, its officers, directors, employees, owner(s), and parent company(ies) and assigns from and against all claims, demands, and causes of action of every kind and character without limit arising out of your conduct. Your indemnity obligation includes, but is not limited to, any third party claim against ecoFiles for liability for payments for, damages caused by, or other liability relating to, you.
G. No Warranty; No Leads
ecoFiles does not promise, guarantee or warrant your business success, income, or sales. You understand and acknowledge that ecoFiles will not at any time provide sales leads or referrals to you. Additionally, ecoFiles' websites and services are provided “as is” without warranty of any kind, either express or implied, including without limitation implied warranties of title, merchantability, fitness for a particular purpose and noninfringement. ecoFiles makes no representation or warranty as to the accuracy, reliability, timeliness or completeness of any material on or accessible through any ecoFiles website or service. Any reliance on or use of such materials shall be at your sole risk. ecoFiles makes no representation or warranty (a) that any ecoFiles website or service will be available on a timely basis, or that access to any ecoFiles website or service will be uninterrupted, error-free or secure; (b) that defects or errors will be corrected; or (c) that any ecoFiles' website or the servers or networks through which any ecoFiles' website is made available are secure or free of viruses or other harmful components. applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
The ecoFiles websites may include inaccuracies, errors and materials that conflict with these Terms. In the event of any conflict between anything posted on any ecoFiles website and these Terms, these Terms shall control.
H. Limitation of Liability.
You agree that in no event shall ecoFiles liability to you for any claim of any kind or description exceed the amount of three (3) times the payments paid by you to ecoFiles for the month preceding the date in which the facts giving rise to a claim against ecoFiles occurred. You waive any right to special, indirect or consequential damages of any kind or description.
I. Force Majeure
ecoFiles will not be responsible to you for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in this Agreement, “Force Majeure Event” shall mean: any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes beyond the control of ecoFiles. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement. ecoFiles shall not be required against its will to adjust any labor or other similar dispute except in accordance with applicable law.
J. Assignment of Rights
ecoFiles may assign its rights under this Agreement at any time, without notice to you. Your rights arising under this Agreement cannot be assigned by without ecoFiles or its assigns express written consent.
K. Information; Registration; Usernames and Passwords
As an ecoFiles Client, you will be required to create an account with ecoFiles or Ketch. You warrant that the information you provide us is truthful and accurate, and that you are not impersonating another person. You are responsible for maintaining the confidentiality of any password you may use to access your ecoFiles or Ketch Client account, and you agree not to transfer your password or Username, or lend or otherwise transfer your use of or access to your Client account, to any third party. So called “agency accounts,” or accounts in which you host funnels or other services for third parties, are prohibited. Should your usage data indicate, in ecoFiles reasonable opinion, that you are operating an “agency account,” i.e., hosting use for one or more third parties, you will be subject to cancellation of your ecoFiles Client Account or enhanced pricing for your ecoFiles account, at ecoFiles discretion. You are fully responsible for all transactions with, and information conveyed to, ecoFiles under your Client Account. You agree to immediately notify ecoFiles of any unauthorized use of your password or Username or any other breach of security related to your Client account. You agree that ecoFiles is not liable, and you will hold ecoFiles harmless, for any loss or damage arising from your failure to comply with any of the foregoing obligations.
L. Release/Authorization to Use Photographs
You grant ecoFiles permission to use any and all photographs taken by ecoFiles or its agents or employees, or submitted by you to ecoFiles as well as all written endorsements of ecoFiles that you send to us, or that you post on social media (photographs, social media posts, and messages sent to ecoFiles are hereinafter referred to as “Photographs”) in any Media (including print, internet, film, television and no matter how distributed or published) for any purpose, which may include, but shall not be limited to, advertising, promotion, marketing and packaging of ecoFiles or any product or service sold and marketed by ecoFiles. You agree that this authorization to use Photographs may be assigned by ecoFiles to any other party. You agree that the Photographs may be combined with other Photographs, sounds, text and graphics, and that the Photographs may be manipulated, cropped, altered or modified in ecoFiles sole discretion. You agree not to charge a royalty or fee, and not to make any other monetary assessment against ecoFiles in exchange for this Release and Assignment. You hereby release and forever discharge ecoFiles from any and all liability and from any damages you may suffer as a result of the use of the Photographs. you further acknowledge and agree that this Release is binding upon your heirs and assigns. you agree that this Release is irrevocable.
M. Prohibited Activity
ecoFiles has the right to terminate this Agreement at any time if you engage or have ever engaged in any of the following:
i. HARMFUL ACTS. Any dishonest or unethical business practice; any violation of the law; infliction of harm to ecoFiles reputation; and the violation of the rights of ecoFiles or any third party.
ii. “SPAMMING” AND UNSOLICITED COMMUNICATIONS. Any communications sent or authorized by you reasonably deemed “spamming,” or any other unsolicited solicitations (including without limitation postings on social media or third party blogs) will be deemed a material threat to ecoFiles reputation and to the rights of third parties. It is your obligation, exclusively, to ensure that all business communications comply with state and local anti-spamming or analogous laws.
iii. OFFENSIVE COMMUNICATIONS. Any communication sent, posted, or authorized by you, including without limitation postings on any website operated by you, or social media or blog, which are: sexually explicit, obscene, or pornographic; offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory; graphically violent; solicitous of unlawful behavior; promoting the sale or use of illegal drugs or that violates the intellectual property rights of another.
N. Message Sending Policy and Best Practices
ecoFiles requires you to follow these best practices when sending electronic communications using our services:
i. Use only permission-based marketing electronic communications lists (i.e., lists in which each recipient affirmatively opted-in to receiving those electronic communications).
ii. Always include a working “unsubscribe” mechanism in each marketing electronic communication that allows the recipient to opt out from your mailing list (receipt/transactional messages that are exempt from “unsubscribe” requirements of applicable law are exempt from this requirement).
iii. Comply with all requests from recipients to be removed from your mailing list within the earlier of 10 days of receipt of the request, or the deadline under applicable law.
vi. Include in each electronic communication your valid physical mailing address or a link to that information.
vii. Do not send electronic communications to addresses obtained from purchased or rented lists.
viii. Do not use third party electronic addresses, domain names, or mail servers without proper permission from the third party.
x. Do not send electronic communications that result in an unacceptable number of spam or similar complaints (even if the electronic communications themselves are not actually spam).
xi. Do not disguise the origin, or subject matter of, any electronic communications or falsify or manipulate the originating message address, subject line, header, or transmission path information for any electronic communication.
xii. Do not send offers to obtain or attempt to obtain personal information, or generate leads, for third parties.
xiii. Do not send “chain letters,” “pyramid schemes,” or other types of electronic messages that encourage the recipient to forward the content to strangers.
xiv. Do not send to lists of addresses that are programmatically generated or scraped from the Web.
xv. Do not employ sending practices, or have overall message delivery rates, which negative impact our services or other Clients of our services.
xvi. Do not use our services to send messages that may be considered junk mail. Some examples of this type of messages include messaging related to: penny stocks, gambling, multi-level marketing, payday loans, etc.
O. Compliance with the Law
Your use of our services must comply with all applicable laws, rules, regulations, and court orders of any kind of any jurisdiction applicable to you, us, and any recipient to whom you use our services to send Digital Messages (“Applicable Law”). You have the responsibility to be aware of and understand all Applicable Laws and ensure that you and all Clients of your Account comply at all times with Applicable Law. Some examples of Applicable Laws include: the U.S. CAN-SPAM ACT, The E.U. Directive of Privacy and Electronic Communications, the U.K. Privacy and Electronic Communications (EC Directive) Regulations 2003; the Canada Anti-Spam Law (CASL) and/or any similar law, laws relating to intellectual property, privacy, security, terrorism, corruption, child protection, or import/export laws.
i. Commitment Against Harassment and Interference with Others. You must not use our services to: store, distribute or transmit any malware or other material that you know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive or abusive; or commit (or promote, aid or abet) any behavior, which you know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive or abusive. Examples may include Digital Messages that are themselves are or promote racism, homophobia, or other hate speech.
P. Sensitive Information
You will not import, or incorporate into, any contact lists or other content you upload to any website, software, or other electronic service hosted or provided by ecoFiles, any of the following information: social security numbers, national insurance numbers, credit card data, passwords, security credentials, bank account numbers, or sensitive personal, health or financial information of any kind.
Q. Messaging Software
If you use any ecoFiles messaging software now existing or which may in the future be created, you agree that you will follow all applicable laws with respect to sending messages, including without limitation the federal Telephone Consumer Protection Act (“TCPA”). You further agree to indemnify and defend ecoFiles from any claims, damages, losses, and lawsuits of any kind or nature that may be made against ecoFiles relating in any way to your violation of law or third-party rights by use or misuse of any ecoFiles messaging software.
You further understand and agree that ecoFiles has no control over, and therefore cannot be responsible for, the functionality or failures of any third party software or services, including without limitation Facebook, Facebook Messenger, and internet browser notifications, as well as telephone and SMS service providers. ecoFiles does not warrant that any ecoFiles messaging software will be compatible with any third party software.
If you have any questions or complaints concerning any of the Terms, you may contact ecoFiles by e-mail at help@ecoFilesMobile.com
, or by regular mail 100 Walnut Avenue, Suite 210, Clark, NJ 07066.
California residents, under California Civil Code Section 1789.3, may also reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
S. Digital Millennium Copyright Act
If you believe that materials or content available on any ecoFiles website infringes any copyright you own, you or your agent may send ecoFiles a notice requesting that ecoFiles remove the materials or content from the ecoFiles website. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send ecoFiles a counter-notice. Notices and counter-notices should be sent to ecoFiles, Attention: Legal, at 100 Walnut Avenue, Suite 210, Clark, NJ 07066, or by e-mail to help@ecoFilesMobile.com
T. Arbitration, Governing Law, and Attorneys’ Fees
i. ARBITRATION. Any claim or grievance of any kind, nature or description that you have against ecoFiles including, but not limited to, economic losses, personal injury, or property damage, shall be resolved exclusively in binding arbitration in Union County, New Jersey. You agree not to file suit against ecoFiles or any of its affiliates, subsidiaries, officers, directors, employees, successors, or assigns. The arbitration will take place before a neutral arbitrator (hereafter, “Arbitrator”) agreed upon by you and ecoFiles. In the event that you and ecoFiles are unable to reach agreement on an Arbitrator, you and ecoFiles will each select an arbitrator, and the two of them will select the Arbitrator, who must be a resident of Union County, New Jersey. The arbitrators selected by you and ecoFiles will have no further involvement in the arbitration. The Arbitrator will determine the rules governing arbitration. The decision of the Arbitrator will be final and binding on you and ecoFiles and may be reduced to a judgment in any court of competent jurisdiction. This agreement to arbitrate survives any termination or expiration of the Agreement.
ii. GOVERNING LAW. This Agreement shall be governed, construed, and interpreted in accordance with the laws of the State of New Jersey without regard to any choice of law provisions.
iii. WAIVER OF CLASS ACTION CLAIMS. You understand and agree that you will not have the right to participate in a representative capacity or as a member of any class of claimants pertaining to any claims that may arise under, or be in any way related to, this Agreement. There is no right or authority for any claim you have against ecoFiles to be brought on a class action basis or on any basis involving claims brought in a purported representative capacity on behalf of the general public, or on behalf of other persons or entities similarly situated. Claims brought against ecoFiles may not be joined or consolidated with claims brought by anyone else.
iv. LIMITATIONS PERIOD. Any claim brought in arbitration must be brought within the time period set forth in any statute of limitations that, but for this agreement to arbitrate, would apply to the claims asserted in any arbitration proceeding.
v. INJUNCTIVE RELIEF. Nothing in this Agreement prevents ecoFiles from applying to and obtaining from any court having jurisdiction a temporary injunction, preliminary injunction, permanent injunction, or other relief available to protect ecoFiles's rights prior to, during, or following any arbitration proceeding.
vi. ATTORNEYS’ FEES. You agree that in the event of any arbitration or litigation, each Party will each bear its own costs and attorneys’ fees, regardless of who is deemed the prevailing party. The foregoing notwithstanding, if either you or ecoFiles commences an action in a court of law or equity and the responding Party successfully moves such court to compel arbitration, the Party who moved for the order compelling arbitration shall be entitled to recover its reasonable costs and attorneys’ fees incurred on the motion to compel from the other Party.
U. Changes to Terms
ecoFiles reserves the right to change these Terms, in whole or in part, from time to time at ecoFiles' sole and absolute discretion, and to provide you with notice of such change by any reasonable means, including without limitation posting revised Terms https://ecoFilesMobile.com/terms
. By your continued use of ecoFiles services, and unless you terminate this agreement as provided herein, you manifest your agreement to any subsequent changes to the Terms.
If any Term set forth herein is deemed unenforceable under any applicable law, the remaining Terms shall remain in full force and effect and these Terms shall be read, collectively, as if the unenforceable Term(s) were omitted.
No waiver by ecoFiles of any breach or default of these Terms will be deemed to be a waiver of any preceding or subsequent breach or default.
Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
Any notice required to be given to ecoFiles under or related to these Terms must be in writing, addressed as follows:
Bull’s Eye Innovations Corp dba ecoFiles
100 Walnut Avenue, Suite 210
Clark, NJ 07066
Notices to you may be made by posting a notice (or a link to a notice) on https://ecoFilesMobile.com/terms
, by e-mail, or by regular mail, at ecoFiles discretion.
Z. Data Privacy Shield - GDPR
General Data Protection Regulation (GDPR) is the EU Data Privacy Shield that was effective on May 25, 2018. It applies to any person or business that sells or markets goods or services to EU residents or deals with personal data of those that reside under European Union. The "Personal Data" definition under GDPR is very broad as it covers any information that could potentially identify the data subject being targeted.