Terms of Service
Take 44 Terms of Service
Last Modified: January 15, 2021
We are Take 44, Inc. (“Take 44”), the company behind NextAgency. We are proud to provide you, an authorized user (“User”) access to this software subject to the conditions and terms described in this document.
I. NATURE OF THIS AGREEMENT
NextAgency and its components, (collectively referred to as “NextAgency” or the “NextAgency Platform” ) are licensed to you through a Software as a Service licensing model ( “SaaS Service” ). The SaaS Service we are providing to you may change at any time without prior notice to you.
These Terms of Service document ( “TOS” or “Agreement” ) constitutes a legally binding agreement. By using the NextAgency Platform you and your company or agency ( “Agency” ) are agreeing to be bound by this agreement as it may be amended by Take 44 from time to time in our sole discretion. If we determine there has been a material change to this TOS, we will post a notification of the changes here, inform you through the NextAgency Platform or use some other means to make you aware the change and when it takes effect.
This TOS applies to all users of the NextAgency Platform. A different Terms of Service agreement applies to visitors of www.NextAgency.com and its related sites.
Your right to use the NextAgency Platform is provided on a non-exclusive, personal, and non-transferable basis, subject to this TOS and conditioned on payment of a licensing fee by the Agency.
By using NextAgency you represent that you are at least 18 years old and that you are legally able to enter into this Agreement. You are also agreeing to be bound by the Binding Arbitration provisions described below.
II. OWNERSHIP OF INTELLECTUAL PROPERTY
Take 44 owns all rights, title, and interest in and to the SaaS Services and its components. This includes, but is not limited to, the design, code, and all intellectual property rights related to NextAgency.
You own the data you enter into the NextAgency Platform (e.g., information related to prospects, clients, or Agency). By using NextAgency you are stating you have the right to use this data and related intellectual property.
III. RESPONSIBILITIES CONCERNING USE AND CONTENT
You may access and use the SaaS Services only for lawful, authorized purposes. Administrative Brokers of your NextAgency instance are responsible for the actions of Users they invite to access the NextAgency Platform.
Users are responsible for the appropriateness and legality of the content they enter into the NextAgency Platform. We take no responsibility for the nature of the content Users post in NextAgency. When Take 44 determines, in its sole discretion, that content entered into NextAgency is offensive or illegal we have the right to remove the inappropriate content.
IV. PRIVACY OF CONTENT AND DATA
All users should be aware that Administrative Brokers, and Users they authorize, have the right to access data entered by you and other Users.
Users responsible for payment of a licensing fee on behalf of your Agency (referred to as “Licensees”) to NextAgency must make their payments in a timely fashion or risk revocation of your Agency’s and all its User’s access to NextAgency. Licensees are required to provide Take44 accurate information regarding your payment method and agree to promptly update your account information with any changes in your payment information. You agree to pay Take 44 in accordance with the terms set forth on the Site and this TOS. Any sales taxes and use taxes are the responsibility of Licensees.
The standard NextAgency licensing fee provides access for one month (Monthly Licensing Fee). As a convenience, Licensees may choose to pay an annual fee to reduce the total fees they pay in a year (Annual Licensing Fee). The selection of a new licensing fee period (e.g., moving from a Monthly Licensing Fee to an Annual Licensing Fee) will become effective at the termination of your current licensing fee period.
All licensing fees paid to Take 44 are paid in advance of the licensing term and are non-refundable. Notifying Take 44 of your intent to cancel your license neither terminates your access to NextAgency prior to the end of your licensing period nor will it result in a full or partial refund.
Take 44 reserves the right to change our prices in the future, subject to guarantees offered in the NextAgency.com marketing website. If we increase our base license fee (the license fee for the specified period prior to limited-time promotional discounts) for your Service plan, we will provide notice of the change in an email to you at least one hundred and twenty (120) days before the change is to take effect. The email will be sent to the most recent email address we have for the Licensee. You are responsible for updating that email address. Your continued use of the Service after the price change goes into effect constitutes your agreement to pay the changed amount. Changes to your license fee due to the expiration of a promotional discount are not subject to the 120-day advance notification.
Your license to use and invite others to use the NextAgency Platform renews automatically for the duration of the license period you have paid (e.g., for one month if paid monthly; for one year if paid annually), subject to the terms described below in the Termination section. Fees will be prorated to provide for a shared license renewal date for all Users in your Agency.
VI. REPRESENTATIONS AND WARRANTIES
The following terms are important as they limit our responsibility for risks associated with using the NextAgency Platform.
You represent and warrant to Take 44 that you own all your content and data or have obtained all permissions, releases, rights, or licenses required prior to entering such content or data into the NextAgency Platform.
YOU ACKNOWLEDGE AND AGREE THAT THE NEXTAGENCY PLATFORM, SAAS SERVICES AND CONTENT PROVIDED ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS. NONE OF TAKE 44, INC.’S AFFILIATES, SUBSIDIARIES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OR AGENTS (REFERRED TO COLLECTIVELY “TAKE44 PARTIES “) GUARANTEES THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, SUITABILITY OR USEFULNESS OF THE NEXTAGENCY PLATFORM, SAAS SERVICES OR CONTENT. NONE OF THE TAKE44 PARTIES WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SITE, ITS SERVER, OR ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SITE ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS.
YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE NEXTAGENCY PLATFORM AND SAAS SERVICES AND THE ACCURACY, TIMELINESS, OR COMPLETENESS OF THE CONTENT IS ASSUMED SOLELY BY YOU. NONE OF THE TAKE44 PARTIES MAKE ANY, AND EACH HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE NEXTAGENCY PLATFORM, SAAS SERVICES AND ALL CONTENT, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THIS SITE IS TO STOP USING THE SITE.
You agree that you are responsible for the means you use to access the site and all costs associated in doing so. You understand that Take 44 is not responsible for the performance of your hardware, software, the Internet, your Internet Service Provider, or other third parties involved in connecting you to the NextAgency Platform. You expressly absolve and release the Take 44 Parties from any claim of harm resulting from a cause beyond their control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, terrorist activities, or governmental restrictions.
UNDER NO CIRCUMSTANCES WILL ANY OF THE TAKE 44 PARTIES BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON THE SITE OR ANY CONTENT. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE NEXTAGENCY PLATFORM, SAAS SERVICES AND ALL CONTENT. IN NO EVENT SHALL ANY OF THE TAKE44 PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE NEXTAGENCY PLATFORM, SAAS SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY. IN THE EVENT ANY JURISDICTION DOES NOT ALLOW ANY EXCLUSION OR LIMITATION OF LIABILITY SET FORTH HEREIN, IN SUCH JURISDICTION, THE LIABILITY OF THE TAKE44 PARTIES IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
VII. DISPUTE RESOLUTION, STATUTE OF LIMITATIONS AND FORUM
PLEASE READ THIS SECTION CAREFULLY AS IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.
Mandatory Binding Arbitration: In order to expedite and control the cost of disputes, you and Take 44 agree that any legal or equitable claim, dispute, or cause of action (referred to as “Claim” ) related to your use of the NextAgency Platform, SaaS Services, or this TOS will be subject to binding arbitration. This arbitration will be the sole and exclusive procedure to obtain a remedy for any such claim. ARBITRATION MEANS THAT YOU AND TAKE 44 WAIVE OUR RIGHTS TO A JURY TRIAL.
To pursue any claim, the claimant must submit to the other party in writing an explanation of the claim and a demand that the claim be resolved by arbitration. If the parties do not settle such claim within thirty days of the receipt of the demand for arbitration, the claim must be submitted to binding arbitration in accordance with the commercial rules of the American Arbitration Association. The arbitration proceedings will be held in Dallas, Texas. The arbitration will be conducted by a single arbitrator selected by agreement between you and Take 44, Inc.; or, if no agreement on the arbitrator can be reached within 21 days, either party may request that the chief judge of the Dallas County Court, Dallas Texas select an arbitrator. The expenses of the arbitration, including attorneys' fees, will be paid in accordance with the award issued by the arbitrator. Any arbitration award rendered pursuant to this TOS will be final and binding.
Statute of Limitations: Regardless of any statute or law to the contrary or the applicable dispute resolution process, you and Take 44 must start this dispute resolution process within one (1) year after the cause for the dispute arose or be forever barred. For Claims pursuant to the exceptions identified in Section 10.e., these Claims must be filed with the appropriate court within three (3) years after such claim or cause of action arose or be forever barred.
Choice of Law and Forum: This TOS and the relationship between the parties shall be governed by the laws of the State of Texas without regard to its conflict of law.
You may stop using NextAgency at any time. You may terminate your subscription to NextAgency at the end of your current license period. You must inform us of your subscription termination prior to the automatic renewal of your license. Otherwise, you will be charged new license fees (and other fees, if applicable). NextAgency license fees are paid in advance and are non-refundable.
We reserve the right to suspend, restrict or terminate your account in the NextAgency Platform at any time for any reason. We will make reasonable efforts to notify you ninety (90) days prior to the suspension, restriction, or termination of your account in NextAgency using the most recent contact information we have for you. If you are in violation of this TOS, subject to a court order, or a danger to other users, however, we may suspend, restrict, or terminate your license to use NextAgency immediately and without notice.
Administrative Brokers (and Users to whom they have delegated this authority) may deactivate your account in NextAgency at any time pursuant to policies and procedures established by your Agency. Deactivation of your account disables your ability to access NextAgency, but does not delete data you have entered or had entered on your behalf. Administrative Brokers and authorized Agency Users may still access this information.
Upon termination of your license with NextAgency your data will be deleted by us within twelve months.
You agree to indemnify, defend, and hold harmless Take 44, Inc., its affiliates, subsidiaries, officers, directors, employees, consultants, contractors, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of the NextAgency Platform, your violation of this TOS, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. Take 44, Inc. will notify you promptly of any such claim, loss, liability, or demand.
X. Other Provisions
Severability: If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable.
Enforcement: The failure of either you or Take 44 to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision.
Only Agreement: This TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this TOS. You may request waivers and modifications to this TOS in writing, which Take 44 may grant at its sole discretion. Granted waivers or modifications must be signed by both parties and expressly identify the waiver of modification.
No Authority Granted: No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Take 44 in any respect whatsoever.
Assignment: You may not assign this TOS without the prior written consent of Take 44, except, if you are a company or other legal entity, you may assign this TOS in connection with a merger, re-organization or acquisition of all or a substantial portion of your assets by another company, but only upon 30-days prior notice to Take 44. Take 44 may assign or transfer this TOS, in whole or in part, without restriction.
Notices: Except as otherwise set forth herein, all notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Notices to Take 44 should be sent to:
- By mail: Take 44, Inc. 2470 Sterns Street, #194 Simi Valley, CA 93065
- By phone: (469) 708-4250
- By email: Info@Take 44.com
Substantive changes effective January 15, 2021:
- Clarifies license fee changes resulting from expiration of a promotion are not subject to the 120-day advance notification requirement
- Removes references to NextHR
- Changes references to Administrative Brokers from System Administrators
- Changes where notices to Take 44 should be sent
- Clarifies process for Users requesting waivers and modifications to the TOS
- Edits made for clarity
Substantive changes effective November 11, 2019:
- Adds language emphasizing that license fees are non-refundable.
- Adds language making it clear that user and sales taxes are the responsibility of the licensee.
Substantive changes effective May 1, 2019:
- Adds Licensee’s responsibility to provide Take 44 with current email address
- Clarifies the duration of a license (e.g., for one-full month or one-full year)
- Describes impact of failing to notify Take 44 of your intent to cancel at end of license period before renewal