Last Updated: April 15, 2020
Terms of Service
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PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF THE SMS SERVICE PLATFORM. THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SMS SERVICE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SMS SERVICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR THE INABILITY TO USE THE SITE, SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY INQUIRE ABOUT AND/OR APPLY FOR THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION AND/OR SERVICES OBTAINED FROM, OR TRANSACTIONS ENTERED INTO THROUGH, THE SITE AND/OR SITE OFFERINGS; (C) THE FAILURE TO QUALIFY FOR ANY OF THE SMS SERVICE SERVICES; (D) THE UNAUTHORIZED ACCESS OR USE OF YOUR REGISTRATION DATA; AND (E) ANY OTHER MATTER RELATING TO THE SITE, SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY INQUIRE ABOUT AND/OR APPLY FOR THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND ANY AND ALL OTHER TORTS. YOU HEREBY RELEASE SMS SERVICE FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATION STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATION, THE MAXIMUM LIABILITY OF SMS SERVICE TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00).
THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SMS SERVICE . THE SITE, SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY INQUIRE ABOUT AND/OR APPLY FOR THROUGH SAME WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
"RINGLESS VOICEMAIL" IS A WIDELY ADOPTED, BUT POTENTIALLY INACCURATE, INDUSTRY TERM TO DESCRIBE A VOICEMAIL DELIVERY SERVICE. WHILE WE MAKE A BEST EFFORT, WE MAKE NO GUARANTEE THAT OUR DELIVERY OF YOUR MESSAGE WILL NOT CAUSE YOUR CONTACT'S PHONE TO RING.
These Terms of Service (the "Terms") govern the individual, company and/or organizational (collectively, "you", "your" or "Customer") purchase and use of any of SMS SERVICE services, including your use of the various text/SMS/MMS/Voicemail message marketing services (collectively, the "Services") available through our website (www.smsservice.co) (including both mobile and online versions) (the "Site"), and the software, technical and communications platform(s) available on and through the Site (collectively, the "Platform"). The Platform and Services are made available by Drop Productions, LLC., d/b/a SMS SERVICE ( "SMS SERVICE", "we", "our" or "us").
Description of SMS SERVICE
1. Terms Applicable to the Purchase of Subscriptions to the Platform and Services
- A. Generally. To purchase access and use of the Platform and gain access to our Services, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence and authorized to bind the specific entity on whose behalf you are accessing and using the Platform or obtaining Services (if applicable). Prior to the purchase of access to the Platform or our provision of the Services, unless we make alternative payment arrangement with you, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For the specific subscription to the Platform/Services which you order, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. SMS SERVICE or our third party credit card/payment processor will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please be aware that the text/SMS standard permits only 160 characters in an individual message. The submission of a seemingly-valid text/SMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid text/SMS message or broadcast exceeding 160 characters will yield distinct, individually debited messages, each of 160 characters or less, together comprising the original message. Please be aware that the MMS standard permits only 1600 characters in an individual message. The submission of a seemingly-valid MMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid MMS message or broadcast exceeding 1600 characters will yield distinct, individually debited messages, each of 1600 characters or less, together comprising the original message. You can obtain the status of your account at any time through the online interface.
- B. Subscription Term & Termination. Except in the event of a promotional offer, your subscription to the Platform (including all Services available through the Platform and otherwise) will commence as of the date your payment for a subscription is received by SMS SERVICE . Your subscription (as applicable) will continue in full force for the length of the term you specifically purchased and if no specific length of time is specified will be on a month-to-month basis until such time as the Customer cancels the subscription as further explained below and will be limited by the number of messages/month and Keywords (defined below) identified on the Site when you purchase your subscription (the "Subscription Term"). In the event that a Customer cancels a subscription in the middle of their Subscription Term, the Customer will not be entitled to receive a refund for the unused portion of the remainder of that Subscription Term. SMS SERVICE will have the right, upon written notice to Customer, to terminate these Terms, and suspend a Customer's access to their subscription to the Platform and Services, if: (a) any Customer fails to pay SMS SERVICE any amount due to SMS SERVICE under these Terms; and/or (b) the Customer materially breaches any term or condition of these Terms. SMS SERVICE shall have the right to terminate these Terms and immediately suspend a Customer's access to the Platform and Services and/or suspend the provision of Services for non-payment. To the extent that your credit card on file with SMS SERVICE is declined for any reason, SMS SERVICE reserves the right, without notice, to immediately close your account, delete any data stored in your account and re-assign Keyword(s) (defined below) to other users. Upon the expiration or termination of these Terms for any reason, Customer's access to, and use of, the Platform and Services will terminate and you will no longer be charged for continued access.
- C. Promotional Offerings. We may offer promotional subscriptions to access the Platform and Services at special discounted prices. If you sign up for a promotional use, your rights to use the Platform and Services are limited by the terms of such trial and will terminate or renew on the terms of the promotion and/or any applicable Additional Terms. Please be aware that when you SMS SERVICE sign up for a promotion, you may be required to provide your credit card number and SMS SERVICE will confirm your credit card is valid. When we process your credit card, some credit card companies may place a temporary hold on your account for your first payment. Please contact your credit card company if you have questions. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
- D. Auto-Renewal of Membership . Your subscription to the Platform and Services will automatically renew at the end of your Subscription Term continuously and indefinitely without action by the Customer, and the membership fee is charged to the member at the time of renewal. To the extent your Subscription Term is on a month-to-month basis, your subscription will automatically renew one (1) month from your "go live" date and every month thereafter until you cancel as set forth in Section 1(E) below. A Customer whose fee (as posted on the Platform at time of sign-up) has been paid is entitled to all privileges included in the membership until the membership is cancelled by the enrolled Customer as set forth in the paragraph below. By providing your payment method information for your subscription, you are agreeing to pay a subscription fee, that will automatically renew, at the then current rate, unless you cancel prior to the expiration of the current Subscription Term, and any applicable taxes and service fees (collectively, "Fees"). The Fees will be charged to your original payment method automatically at the beginning of your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of your current Subscription Term, unless you cancel your subscription or your account is suspended or terminated pursuant to these Terms. The renewal Subscription Term will be the same length as your initial Subscription Term unless otherwise disclosed to you at the time of sale. The rate for the renewal Subscription Term will be the then current subscription-rate. The Fees charged to your payment method may vary from Subscription Term to Subscription Term due to changes in your subscription plan or applicable taxes, and you authorize SMS SERVICE to charge your payment method for these amounts. SMS SERVICE reserves the right to change the pricing of subscription at any time. In the event of a price change, SMS SERVICE will post the new pricing on the Platform and attempt to notify you in advance by sending an email to the address you have registered for your account. You agree that we may change the pricing we charge you for your subscription and any Services offered in your subscription package by providing you with notice through an electronic communication from us and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to you. If you do not wish to accept a price or subscription package change made by us, you may cancel your subscription as described below, otherwise you will be deemed to have consented to the price/subscription package change and authorize SMS SERVICE to charge the new Fees to your payment method. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify SMS SERVICE within sixty (60) days after they first appear on an account statement.
- E. Termination/Cancellation of Subscription. A Customer has the right and ability to cancel or otherwise upgrade/downgrade their subscription to the Platform at any time upon using the functionality available in their account settings. If you are unable to log-in to your account, you may contact SMS SERVICE by email at firstname.lastname@example.org. Unless in the instance we offer a money back guarantee, cancellation of your subscription to access the Platform and Services any time after purchase will result in forfeiture of the remainder of your subscription fee and any remaining funds in your account balance. To avoid a late cancellation fee or forfeiture of the subscription renewal fee, your subscription should be cancelled prior to the end of the then current Subscription Term. Upon cancellation or non-payment by you, Customer will immediately lose access to their account, including areas of the Platform and utilization of our Services designated for subscribers only, any data stored in your account is immediately deleted and any of your assigned Keyword(s) (defined below) may be reassigned by us to other users. These Terms may be terminated by either party: (i) if the other party is in material breach of these Terms and the breach is not cured within thirty (30) days after written notice of the breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. We reserve the right to immediately suspend your access to the Platform or provision of our Services if your credit card is declined or you have undisputed amounts more than ten (10) business days past due. We also reserve the right to suspend your access to the Platform or provision of the Services if we reasonably determine that you or any Authorized Users (defined below): (i) use of the Platform disrupts or poses a security risk to the Platform, may harm our systems or may subject us or any third-party to liability; (ii) are using the Platform (including our Services) for fraudulent or illegal activities; or (iii) are using the Platform (including our Services) in breach of these Terms. Upon expiration or receipt of notice of termination of these Terms, you will cease using and accessing the Platform, the Services and any licenses granted under these Terms will immediately terminate.
- F. Methods of Payment, Credit Card Terms and Taxes. All payments must be made through a credit or debit card or other payment mechanism we accept at the time you sign up. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms to determine your rights and liabilities as a cardholder. You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT SMS SERVICE , ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify SMS SERVICE of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If SMS SERVICE does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by SMS SERVICE or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value- added taxes. SMS SERVICE shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
- G. Refund Policy. All purchase transactions made through the Platform are subject to SMS SERVICE ’s refund policy in effect at the time of purchase. Currently, SMS SERVICE 's refund policy is to not offer any refunds for any subscriptions or services purchased through the Platform, except at its sole and absolute discretion.
- H. No Responsibility to Sell Mispriced Services. We do our best to describe every product or service offered on this Platform as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Platform is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, product or service, SMS SERVICE shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge.
2. Opening and Terminating Accounts
3. Keywords, Content, Ownership and Limited License
- A. Keywords. The SMS SERVICE Platform may provide you with the option to select unique keywords for your campaigns (each a "Keyword"). The use of such Keyword in connection with the Services does not grant you ownership of such Keyword. SMS SERVICE retains ownership of all Keywords made available in its Services and reserves the right to change the Keyword associated with your account at any time. In such an event, we may provide you with an alternative Keyword. SMS SERVICE reserves the right to reclaim Keywords at any time and for any reason including those Keywords that have minimal usage or have not been used within the past thirty (30) days. SMS SERVICE may, in its sole discretion, institute a waiting period before reissuing Keywords that have been previously assigned. Additionally, SMS SERVICE may deny you the ability to use any of its Services for a Keyword for any reason and in its sole discretion. SMS SERVICE may determine, in its sole discretion, to limit the use of the Services, add data storage limitations, charge or change fees for the Services or otherwise modify the Services in the future. You acknowledge and agree that these changes may take place and that SMS SERVICE shall have no liability stemming from such changes. You agree not to create or otherwise use a Keyword that violates the provisions of Section 5 below.
- B. Content. The Platform contains a variety of: (i) materials and other items relating to SMS SERVICE , SMS SERVICE’s Platform, and similar items from our licensors and other third parties, including all software, layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the "look and feel" of the Platform, and the compilation, assembly, and arrangement of the materials of the Platform and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of SMS SERVICE (collectively, "Trademarks"); and (iii) other forms of intellectual property (all of the foregoing, collectively "Content").
- B. Ownership. The Platform (including past, present and future versions), the Content and Keywords are owned or controlled by SMS SERVICE and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Platform is the property of SMS SERVICE or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, or other intellectual property and unfair competition rights and laws to the fullest extent possible. SMS SERVICE owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Platform.
- C. Limited License. During the Subscription Term (defined below), SMS SERVICE will make the Platform and Services (including your designated Keywords) available to you on a non- exclusive basis for your use in accordance with the terms of these Terms. Subject to your strict compliance with these Terms and the Additional Terms and your payment of the Fees, SMS SERVICE grants you a limited, non-exclusive, revocable, non-assignable, personal, and non- transferable license to download (temporary storage only), display, view and use the Platform (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a "Device ") for your internal business use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any of the Platform, Services, Content or Keywords, and (ii) may be immediately suspended or terminated for any reason, in SMS SERVICE 's sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Platform, Services, Content and Keywords, subject to certain Additional Terms. You acknowledge SMS SERVICE may use a third party hosting providers to host any portion(s) of the Platform and/or Services.
4. Platform, Services and Content Use Restrictions
- A. Platform/Services Use Restrictions. You agree that you will not: (i) engage in any activities through or in connection with the Platform that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to SMS SERVICE ; (ii) reverse engineer, decompile, disassemble, reverse assemble, or modify any Platform source or object code or any software or other products, Services, or processes accessible through any portion of the Platform; (iii) engage in any activity that interferes with a user's access to the Platform or the proper operation of the Platform, or otherwise causes harm to the Platform, SMS SERVICE , or other users of the Platform; (iv) interfere with or circumvent any security feature of the Platform or any feature that restricts or enforces limitations on use of or access to the Platform or the Content; (v) attempt to gain unauthorized access to the Platform, other computer systems or networks connected to the Platform, through password mining or any other means; (vi) make the Platform and Services available to anyone other than your employees and Authorized Users (as defined below); (vi) sell, resell, sublicense, share, rent or lease the Platform or Services to any third party; (vii) knowingly use the Platform or Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights; (viii) use the Platform to store or transmit malicious code; (ix) interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein; (x) access the Platform for purposes of monitoring its availability, performance, reliability or functionality, or for any other benchmarking or competitive purposes; (xi) violating our Anti-Spam Policy; or (x) otherwise violate these Terms or any Additional Terms. You shall be responsible for any breach of these Terms by your employees or any other users that have been authorized by you (each, an "Authorized User"). Further, you shall: (a) be responsible for compliance with these Terms by your employees and any other users accessing the Platform and Services using username(s) and password(s) furnished to you; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Services, and notify us promptly of any such unauthorized access or use; and (c) use the Platform and Services only in accordance with applicable laws and government regulations.
- B. Content Use Restrictions. You also agree that, in using the Platform and Services: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Platform by using any robot, rover, "bot", spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors' products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third- party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of SMS SERVICE or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
- C. Availability of Platform, Services and Content. SMS SERVICE may immediately suspend or terminate the availability of the Platform, the Services and Content (and any elements and features of them), in whole or in part, for any reason, in SMS SERVICE 's sole discretion, and without advance notice or liability.
- D. Reservation of All Rights Not Granted as to Content, the Platform and Services. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Platform and Services. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by SMS SERVICE and its licensors and other third parties. Any unauthorized use of any Content, the Platform or the Services for any purpose is prohibited.
5. Customer Content
You (on behalf of yourself and your Authorized Users) hereby grant SMS SERVICE a limited, non- exclusive, non-transferable, worldwide, royalty-free license, during the Subscription Term to: (i) use and distribute any and all messages, data, text, video, photos, audio and all other materials and information (including personal information of your users) which is submitted to us or the Platform by you (or on your behalf), including, but not limited to, your trademarks, trade names and service marks (collectively, "Customer Content") as necessary for our operation of Platform and provision of the Services; (ii) sublicense the foregoing rights to third parties; and (iii) sublicense the foregoing rights to our subcontractors as necessary to provide the Platform and Services. In addition to and without limitation to terms under the use restrictions set forth in Section 4 above, SMS SERVICE prohibits any use of the Platform in connection with any of the following types of content, products, and services:
- Pornography, sexual products, otherwise sexually explicit material, and escort services;
- Illegal drugs and drug contraband;
- Alcoholic beverages, especially any promotion of alcohol to persons under twenty-one (21) years of age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Instructions or materials for the assembly of bombs or other weapons;
- Disclosure of anyone's private or personally identifying information without such party's prior express written consent (or parents' prior express written consent in the case of a minor);
- Material that displays any person under eighteen (18) years of age in an illicit or otherwise exploitative manner;
- On the basis of the practices and standards of your industry and community, any illegal or improper promotion to persons under eighteen (18) years of age;
- Products, services, or content commonly associated with unsolicited commercial messages (a.k.a. spam), including, but not limited to, online and direct pharmaceutical sales (e.g., health and sexual well-being products), work-at-home businesses, credit or finance management (e.g., credit repair, debt relief, stock and trading tips), mortgage finance, claims of lost bank accounts or inheritances, and odds-making, sweepstakes, contests and gambling services (e.g., poker, casino games, horse and dog racing, college and professional sporting events);
- Pyramid schemes or multilevel-marketing (a.k.a. MLM or network marketing) businesses, including, but not limited to, "get rich quick," "build your wealth," and "financial independence" offerings;
- Any libelous, defamatory, scandalous, threatening, or harassing activity;
- Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and any discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Advocation, promotion, or other encouragement of violence against any government, organization, group, or individual or any instruction, information, or assistance in causing or carrying out such violence;
- Any product or service related to death (e.g., mortuaries and cemeteries);
- Any product or service that is unlawful where such product or service or promotion thereof is received;
- Images of authors, artists, photographers, or others without prior express written consent form the content owner; and
- Any mention of any wireless carrier or any representation that copies or parodies any product or service of any wireless carrier.
6. Consents and Legal Compliance for Messaging
The following terms and information constitute an introduction to the concept of spam and the general contours of a responsible, permission-based text marketing campaign. In addition, our Anti- Spam Policy applies to your use of the Platform and is incorporated into these Terms by this reference. This general information is not an exclusive source for applicable laws, guidelines, and compliance responsibilities pertaining to your use of the Platform. This Section is not intended to nor shall it be deemed to constitute legal advice. You should consult a lawyer for legal advice on your activities, practices, and your use of the SMS SERVICE Services. The information herein is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your use of our Services prior to using the Platform.
What is spam? Spam is any type of unsolicited message. You should not assume that an existing relationship with any message recipient constitutes permission to send text messages. For example, if a customer disclosed a mobile number to you in the course of business but did not give you specific permission to send marketing messages, you may not have permission to send text messages to that mobile number. Also, some federal and state laws restrict the hours and days when marketing calls can be made. Before using the Platform, you agree to review and abide by all federal, state, and local laws, including, but not limited to, the following laws, and to check for any revisions, as they may be amended over time.
Telephone Consumer Protection Act ("TCPA ")
Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003
Mobile Marketing Association ("MMA ") U.S. Consumer Best Practices Guidelines for Messaging
CTIA - The Wireless Association - Best Practices and Guidelines for Location-Based Services
For further information, please visit websites, including:
- Federal Trade Commission, http://www.ftc.gov
- Federal Communications Commission, http://www.fcc.gov
- Do Not Call Registry Info, http://www.donotcall.gov
You represent and warrant that the owners of the phone numbers to which you transmit messages, call, or otherwise contact through SMS SERVICE , are not listed on any applicable Do Not Call Registry(s) and have consented or otherwise opted-in to the receipt of such messages, in accordance with the TCPA, and other applicable laws and regulations. You acknowledge that you are solely responsible for all acts or omissions or violations of law that may occur in connection with your use of SMS SERVICE's Platform or Services.
The Platform may allow you the ability, at our discretion, to upload previously opted in mobile numbers. You acknowledge and agree that you shall have sole responsibility for obtaining any consents for uploaded mobile numbers and for complying with any terms and/or conditions that may govern these previously opted in mobile numbers, even if you should use any mobile alert terms and conditions we make available through the Platform.
You agree that you will not access or otherwise use any third-party list of phone numbers or otherwise engage in unsolicited messaging in connection with the Platform. Additionally, you agree not to send messages to your users beyond the frequency represented in any disclosures or terms.
You agree that you will import, add, edit, access and otherwise use in connection with the Platform only contact information with proof, which you shall retain, of each user's consent to receive communications from you. We reserve the right, at our sole and absolute discretion, to suspend or deny access to import functions, to impose a stringent qualification process, to require proof of consent or opt-in method, or to require documentation of your or your organization's legal identity.
You agree to represent truthfully your identity, the identity of your organization, your product or service, availability of goods or services, pricing, benefits, and any other offering aspects in your messaging.
You agree to comply with all local, state, and federal laws and regulations as well as general industry best practices governing your content or promotion type.
SMS SERVICE maintains a no-tolerance policy toward spam. Although SMS SERVICE does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Site and Services.
You agree that any individuals requesting "Do-Not-Call" ( "DNC ") status shall immediately be placed on your company DNC list and SMS SERVICE shall have no responsibility for notifying you of such opt-outs. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or stop request.
You hereby acknowledge and confirm that you are solely responsible for the content of your messaging. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages. You hereby acknowledge that SMS SERVICE merely provides a platform for facilitating the sending of your messages, and that you shall have sole responsibility and liability for your messages and communications. You also agree to defend, indemnify and hold harmless SMS SERVICE from and against any claims or damages which may result from your use of the Platform and Services, including, but not limited to, claims, damages, or lawsuits threatened or filed by third parties as well as inquiries and investigations by local, state and federal regulators (see Indemnity provision for a complete list of your indemnities to SMS SERVICE ). We reserve the right to hold, suspend or terminate your account or access to the Platform and/or Services for any alleged violation of this Section 6 and/or any unusual or suspicious activity related to your account.
7. Support and Customer Service
Except as otherwise provided herein, SMS SERVICE will: (i) use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond our reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks. If you have a question regarding using the Platform or Services, you may contact us via email at email@example.com. You acknowledge that the provision of customer support is at SMS SERVICE 's sole discretion and that we have no obligation to provide you with customer support of any kind.
8. Linked Services; Dealings with Third Parties
- A. Linked Services; Advertisements. The Platform may contain links or utilize the services of third party service providers, such as payment processors, etc. ("Linked Services"), including websites operated by service providers, licensors, licensees, and certain other third parties who may have business relationships with SMS SERVICE . SMS SERVICE may have no control over the content, operations, policies, terms, or other elements of Linked Services, and SMS SERVICE does not assume any obligation to review any Linked Services. SMS SERVICE does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, SMS SERVICE is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Services. SMS SERVICE will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. SMS SERVICE disclaims all liability in connection there with. The Platform may contain features designed to interoperate with Linked Services. To use such features, you may be required to obtain access to such Linked Services from their providers. If the provider of any such Linked Services ceases to make the Linked Services available for interoperation with the Platform on reasonable terms, we may cease providing such features without entitling you to any refund, credit or other compensation.
- B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Platform (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). SMS SERVICE disclaims all liability in connection therewith.
- C. Services Provided by Linked Services. The Platform may contain features designed to interoperate with Linked Services (e.g., Facebook or Twitter). To use such features, we may be required to obtain access to such Linked Services from their providers. If the provider of any such Linked Service ceases to make the Linked Service available for interoperation with the Platform on reasonable terms, we may cease providing such features without entitling you to any refund, credit or other compensation.
- A. Wireless Features. The Platform may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Platform's features and upload content to the Platform, receive messages from the Platform, and download applications to your wireless Device (collectively, "Wireless Features"). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
- B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Platform for Wireless Features, then you agree to notify SMS SERVICE of any changes to your wireless contact information (including phone number).
10. Dispute Resolution
Certain portions of this Section 10 are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and SMS SERVICE agree that we intend that this Section 10 satisfies the "writing" requirement of the Federal Arbitration Act. This Section 10 can only be amended by mutual agreement.
- A. First - Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Platform, the Services, the Content, your Customer Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, "Dispute"), or to any of SMS SERVICE 's actual or alleged intellectual property rights (an "Excluded Dispute", which includes those actions set forth in Section 10(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Section 10(A). Your notice to us must be sent to: SMS SERVICE , 30 N Gould St Ste R, Sheridan, WY 82801 (Attn: Legal Department). For a period of sixty (60) days from the date of receipt of notice from the other party, SMS SERVICE and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or SMS SERVICE to resolve the Dispute or Excluded Dispute on terms with respect to which you and SMS SERVICE , in each of our sole discretion, are not comfortable.
- B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 10(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND SMS SERVICE MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICES OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE PLATFORM (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT - INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD, ANY OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY - AND WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS. The Federal Arbitration Act ("FAA") shall govern the arbitrability of all disputes between SMS SERVICE and you regarding these Terms (and any Additional Terms) and the Platform and Services, including the No Class Action Matters section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.
A Dispute will be resolved solely by binding arbitration administered by the Judicial Arbitration and Mediation Services Inc. ("JAMS"), in accordance with the then-current streamlined Arbitration Rules and Procedures ("Rules") of, or by any other arbitration administration service that you and an officer or legal representative of SMS SERVICE consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator's fees and other costs in accordance with the applicable Rules; but if applicable Rules or laws require SMS SERVICE to pay a greater portion or all of such fees and costs in order for this Section 10 to be enforceable, then SMS SERVICE will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party's individual claim. Issues relating to the enforceability of the arbitration and class action waiver provisions contained herein are for the court to decide.
- C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 10(A); (b) filing for arbitration with JAMS as set forth in Section 10(B); or (c) filing an action in state or Federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
- D. Injunctive Relief. The foregoing provisions of this Section 10 will not apply to any legal action taken by SMS SERVICE to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Platform, the Services, any Content, your Customer Content and/or SMS SERVICE 's intellectual property rights (including such SMS SERVICE may claim that may be in dispute), SMS SERVICE 's operations, and/or SMS SERVICE 's products or services.
- E. No Class Action Matters. YOU AND SMS SERVICE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 10(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 10(F). Notwithstanding any other provision of this Section 10, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this "No Class Action Matters" section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
- F. Federal and State Courts in Sheridan, Wyoming. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Sheridan, Wyoming. Accordingly, you and SMS SERVICE consent to the exclusive personal jurisdiction and venue of such courts for such matters.
- G. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
11. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES IS AT YOUR SOLE RISK. THE PLATFORM AND SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. Therefore, to the fullest extent permissible by law, SMS SERVICE and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the "SMS SERVICE Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
- (a) the Site and Platform (including the Content);
- (b) the Services;
- (c) whether the Services or Platform constitute an automatic telephone dialing system ( "ATDS"), as such term is used in the TCPA;
- (d) the functions, features, terms, or any other elements on, or made accessible through, the Site and Platform;
- (e) any products, services (including, without limitation, the Services), or instructions offered or referenced at or linked through the Site and Platform;
- (f) security associated with the transmission of your materials and data transmitted to SMS SERVICE via the Site and Platform;
- (g) whether the Site, the Platform or the servers that make the Site and/or Platform available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
- (h) whether the information (including any instructions) on the Site and Platform is accurate, complete, correct, adequate, useful, timely, or reliable;
- (i) whether any defects to or errors on the Site and Platform will be repaired or corrected;
- (j) whether your access to the Site, Platform and Services will be uninterrupted;
- (k) whether the Site, the Platform and Services will be available at any particular time or location; and
- (l) whether your use of the Site, Platform and Services is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A SMS SERVICE PARTY, SMS SERVICE PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions' laws are applicable.
12. LIMITATIONS OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY SMS SERVICE PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
- (a) the Site and Platform (including the Content);
- (b) the Services (including Services available through the Platform or Services provided by employees of the SMS SERVICE Parties outside of the Platform environment), including, without limitation, lost communications, errors, mistakes, typos, communication failures, etc.;
- (c) your use of or inability to use the Platform or Services or the performance of the Platform and Services;
- (d) your use of any mobile alert terms and conditions we make available through the Platform;
- (e) any action taken in connection with an investigation by SMS SERVICE Parties or law enforcement authorities regarding your access to or use of the Platform;
- (f) any action taken in connection with copyright or other intellectual property owners or other rights owners;
- (g) any errors or omissions in the Platform's technical operation; or
- (h) any damage to any user's computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the SMS SERVICE Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Platform).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SMS SERVICE PARTIES' TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE PLATFORM, YOUR UTILIZATION OF OUR SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID SMS SERVICE IN THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
13. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE PLATFORM AND OUR PROVISION OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY SMS SERVICE OR A LICENSOR OF SMS SERVICE.
14. Feedback You Submit
- A. General. SMS SERVICE may now or in the future offer users of the Platform the opportunity to post, upload, display, publish, distribute, transmit or otherwise make available on or submit through the Platform, messages, text, files, comments, responses, information, content, results, reviews, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, "Feedback"). SMS SERVICE may allow you to do this through contact us, email, and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your Feedback and you remain ultimately responsible for it.
- B. Non-Confidentiality of Your Feedback. You agree that: (a) your Feedback will be treated as non-confidential - regardless of whether you mark them "confidential," "proprietary," or the like - and will not be returned; and (b) SMS SERVICE does not assume any obligation of any kind to you or any third party with respect to your Feedback. Upon SMS SERVICE 's request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms.
- C. License to SMS SERVICE of Your Feedback. Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your Feedback), you hereby grant to SMS SERVICE , and you agree to grant to SMS SERVICE , the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Feedback (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such Feedback and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any Feedback for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to SMS SERVICE to your Feedback, you also hereby grant to SMS SERVICE , and agree to grant to SMS SERVICE , the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Feedback, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Feedback, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 14(C).
15. Updates to Terms
16. General Provisions
- A. SMS SERVICE's Consent or Approval. As to any provision in these Terms or any Additional Terms that grants SMS SERVICE a right of consent or approval, or permits SMS SERVICE to exercise a right in its "sole discretion," SMS SERVICE may exercise that right in its sole and absolute discretion. No SMS SERVICE consent or approval may be deemed to have been granted by SMS SERVICE without being in writing and signed by an officer of SMS SERVICE.
- B. Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of Wyoming, without regard to its conflicts of law provisions.
- C. Indemnity. You agree to, and you hereby defend, indemnify, and hold SMS SERVICE Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys' fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any SMS SERVICE Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) Customer Content; (ii) your use of the Platform and our Services and your activities in connection with the Platform and Services, including, without limitation, any recording or message sent by you through your use of the Platform; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Platform, Services or your activities in connection therewith; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) any other party's access and/or use of the Platform/Services with your account; (viii) any failure to obtain consents required by applicable law or regulations prior to sending communications using the Platform; (ix) any privacy or spam policy violation alleged to have been committed through any use of your account; and (x) SMS SERVICE Parties' storage, use and distribution of the information and data (including phone numbers) that you provide to us (all of the foregoing, "Claims and Losses"). You agree to cooperate as fully as reasonably required by the SMS SERVICE Parties in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action involving Claims and Losses, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a SMS SERVICE Party. You acknowledge and agree to be held liable for any and all damages caused to the SMS SERVICE Parties by you as a direct result of a violation of local, state, national or international laws and regulations, including, but not limited to, those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by the SMS SERVICE Parties to you.
- D. Operation of Platform; Availability of Services; International Issues. SMS SERVICE controls and operates the Platform and provides the Services from its Wyoming based offices in the U.S.A., and SMS SERVICE makes no representation that the Platform or Services are appropriate or available for use beyond the U.S.A. If you use the Platform and Services from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Platform may describe services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Platform, Services and/or the provision of any content, program, product, service, or other feature described or available on the Platform to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
- E. Export Controls. Software related to or made available by the Platform may be subject to export controls of the U.S.A. No software from the Platform may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or Services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce's Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user, subject to U.S. export controls, including as set forth in subsections (i) - (iii) above.
- F. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word "including" is used in these Terms or any Additional Terms, the word will be deemed to mean "including, without limitation,".
- G. Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Platform, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address.
- H. Investigations; Cooperation with Law Enforcement; Termination; Survival. SMS SERVICE reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Platform security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by SMS SERVICE in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Platform and/or Services, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to SMS SERVICE under these Terms or any Additional Terms. Upon suspension or termination of your access to the Platform/Services, or upon notice from SMS SERVICE , all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Platform and Services. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to SMS SERVICE in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
- I. Assignment. SMS SERVICE may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of SMS SERVICE
- J. No Waiver. Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or SMS SERVICE in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
- K. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Platform and you will be responsible for all charges related to them.
- L. Confidentiality. Each party may have access to the other party's information, which shall be deemed confidential information if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans and any information which provides a competitive advantage. The receiving party shall protect the other's confidential information with the same degree of care it uses for its own confidential information (and at least a reasonable degree of care), shall use the information only to carry out these Terms, and shall disclose the information only to its employees (or agents bound by similar confidentiality obligations) with a need to know for that purpose. Confidential information shall remain the property of the disclosing party and shall be destroyed upon request. Notwithstanding the above, neither party shall be required to accelerate the destruction of any archival back-up tapes created in the ordinary course of business, even if such archival back-up tapes contain confidential information. Information shall not be deemed confidential information if it: (i) is disclosed by the disclosing party to others without restriction on use and disclosure; (ii) becomes known to the receiving party without restriction from a third party who is not in breach of a confidentiality agreement with the disclosing party; (iii) is already known by the receiving party at the time of disclosure; or (iv) is independently developed by the receiving party without any reliance on the confidential information of the disclosing party. Confidential information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure.
- M. Force Majeure. Neither party will be responsible for any failure or delay in its performance under these Terms (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
- N. Subcontractors. You acknowledge that we may, in the rendition of the Platform and Services hereunder, engage third party suppliers and other vendors and subcontractors (collectively, "Subcontractors") from time to time to provide certain Services offered as part of the Platform. SMS SERVICE shall supervise such services and endeavor to guard against any loss to you as the result of the failure of Subcontractors to properly execute their commitments, but we shall not be responsible for their failure, acts or omissions and cannot guarantee any Subcontractor's performance.
- O. Voicemail Delivery. SMS SERVICE designates individual messages as "delivered" and will debit funds from your account if during delivery:
- (a) SMS SERVICE detects that a voicemail system is present for a given phone subscriber.
- (b) SMS SERVICE detects that the voicemail system is ready to receive a voicemail message.
- (c) The connection to the voicemail system stays open for the full duration while SMS SERVICE transmits your voicemail recording.
SMS SERVICE makes no guarantee that the subscriber's voicemail system delivers a missed call notification nor does SMS SERVICE guarantee that the subscriber's voicemail system will deliver the message to the subscriber.