I hereby acknowledge and authorize TextAlertz to charge my credit card according to the terms of this agreement herein.
This Agreement (the “Agreement”) is entered into by and between TextAlertz and (“Customer”), and shall be effective as of this date.
TextAlertz will provide the services set forth in this agreement. TextAlertz will use commercially reasonable efforts to provide a secure transmission of customer data to and from the database. The services and all related software and intellectual property are hereinafter referred to as the “Services.”
Customer shall pay to TextAlertz the fees set forth in Schedule A. TextAlertz will invoice Customer for these fees on a monthly billing cycle. Customer agrees to pre-pay for every month of service. Customer acknowledges that all text message overages are charged in arrears at the rate designated in their existing monthly plan as detailed in Schedule A. All charges and fees hereunder are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed for the provision of Services hereunder.
TextAlertz hereby grants Customer a non-exclusive, non- transferable license to access and use the Services at Customer’s place of business. Customer is prohibited from reselling, loaning or otherwise sharing the Services or divulging any related confidential information including, but not limited to passwords or instructional manuals. Except as expressly permitted in this Section, Customer may not use, reproduce, transfer, share, sublicense or transmit the Services in any form or by any means without the prior written consent of TextAlertz. No customer will be permitted more than two (2) licenses using the same name, address, or method of payment (e.g. Credit Card)
4. LIMITATION OF LIABILITY
a) TEXTALERTZ PROVIDES THE SERVICES “AS IS”AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, ORAL, IMPLIED OR STATUTORY AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
b) TEXTALERTZ SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR INJURY TO ANY PERSON OR PROPERTY WHATSOEVER RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THE SERVICE FOR SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SPECIFICALLY, TEXTALERTZ SHALL NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR REVENUE, OR COSTS, INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOSS OF USE OF THE SERVICES OR SOFTWARE, LOSS OF DATA, BUSINESS INTERRUPTION. COST OF RECOVERING SOFTWARE OR DATA, COST OF SUBSTITUTE SOFTWARE OR DATA. OR OTHER SIMILAR COSTS. IN NO EVENT SHALL TEXTALERTZ’S TOTAL LIABILITY OF ANY KIND, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID TO TEXTALERTZ UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
a) Customer assumes sole responsibility for all use of the Services and agrees to indemnify, defend and hold TextAlertz and its affiliates, and its and their respective officers, directors, employees, agents and representatives harmless from and against any and all claims, causes of action, suits, proceedings, demands, damages, costs, expenses and liabilities of any kind whatsoever, including (without limitation) legal expenses and reasonable attorneys’ fees, from third parties (“Claims”), arising out of or in any way related to (i) Customer’s use of the Services, including without limitation the use or inability to use the same, or any errors or omissions in the same, or (ii) any breach by Customer of this Agreement.
b) If a preliminary or final judgment shall be obtained against Customer’s use of the Services by reason of a Claim that the Services infringe or misappropriate the intellectual property rights of a third party or if the Services are likely to become the subject of such a Claim, TextAlertz shall at its option and expense either procure for Customer the right to continue to use the Services as provided in this Agreement, or replace or modify the Services with a version of Services that is non-infringing, but performing substantially similar functions. In the event that neither of the foregoing options is commercially reasonable in TextAlertz sole judgment, TextAlertz shall cease providing the Services to Customer and refund to Customer any pre-paid license fees paid by Customer for the remainder of the Term. THE RIGHTS AND OBLIGATIONS IN THIS SECTION 7(b) ARE TEXTALERTZ’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
6. TERMS AND TERMINATION
a) The term of this agreement shall commence upon acceptance herein. Thereafter, this Agreement shall automatically renew on a month-to-month term unless either party provides written notice to the other party that it will not renew, such notice to be given at least thirty (30) days prior to the expiration of the then-existing Term.
b) Either party may terminate this Agreement immediately for any breach of this Agreement by the other party that is not cured within thirty (30) days after receipt of written notice of the breach from the non-breaching party; provided, however, that the cure period for the breach of an obligation to pay
c) This Agreement shall be immediately terminated upon the dissolution or bankruptcy of Customer, the filing of a bankruptcy petition by or against Customer or a general arrangement or assignment by Customer for the benefit of creditors.
d) Termination or expiration of this Agreement for any reason shall not release any party from any liabilities or obligations set forth in this Agreement that by their nature would be intended to be applicable following any such termination or expiration.
e) TextAlertz reserves the right to suspend the Services or terminate this Agreement in the event that a payment due remains unpaid five (5) business days after Customer has been notified of such non-payment.
7. DISPUTE RESOLUTION & GOVERNING LAW
a) This Agreement will be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflicts of law. Any disputes under this Agreement shall be brought in Monroe County, New York.
b) Any dispute or claim arising hereunder shall be submitted to binding arbitration in Monroe County, New York, and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA), and the parties expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere. The parties hereunder further agree that: (i) any request for arbitration shall be made in writing and must be made within a reasonable time after the claim, dispute or other matter in question has arisen; provided however, that in no event shall the demand for arbitration be made after the date that institution of legal or equitable proceedings based on such claim, dispute, or other matter would be barred by the applicable statutes of limitations; (ii) the award or decision of the arbitrator, which may include equitable relief, shall be final and judgment may be entered on such award in accordance with applicable law in any court having jurisdiction over the matter.
c) In any action, arbitration, or other proceeding by which one party either seeks to enforce its rights under the Agreement, or seeks a declaration of any rights or obligations under the Agreement, the prevailing party will be entitled to reasonable attorney’s fees and reasonable costs and expenses incurred to resolve such dispute and to enforce any final judgment.
a) Notices. All notices and other communications to each party must be in writing and sent to the party at the address specified in this Agreement or to such alternative address as either party may furnish in writing to the other from time to time. If to TextAlertz, Attention: Legal Department. Unless otherwise agreed, notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail. b) Force Majeure. Neither party shall be liable or deemed to be in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including but not limited to acts of God, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, Internet failure, transportation facilities shortages, fuel or materials or for failures of equipment, telecommunications facilities or third party software programs. c) Severability. If any term or condition hereof is found by a court or administrative agency to be invalid or unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. d) Waiver. The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. A party’s remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of a party’s exercise of any other remedy. e) Entire Agreement. This Agreement and related exhibits and attachments represent the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings. There are no representations, warranties, promises, covenants or undertakings, except as described herein. f) Service Enhancements. TextAlertz reserves the right to add or delete programs or services as part of our continued enhancement of the Services. g) Amendment. Except where otherwise provided herein, this Agreement may be amended or modified by TextAlertz at any time. h) Assignment. Customer may not sell, mortgage, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, without the express written consent of TextAlertz i) Independent Contractors. The relationship of the parties will be that of independent contractors. Neither of the parties will have, and will not represent that it has, any power to bind the other or to create any obligation on behalf of the other. Nothing stated in this Agreement shall be construed as constituting or as creating the relationships of employer/employee, fiduciary, principal/agent, partnership, joint venture or representative of the other. j) Third Party Beneficiaries. This Agreement is not intended to benefit any third party and the parties do not intend to create any third party beneficiary rights under this Agreement.
9. SCOPE OF SERVICES
a.) Access to Customer Data. TextAlertz will provide Customer with a username and password to access the marketing services & Application via an online portal. Customer is responsible to adhere to MMA (Mobile Marketing Association) Best Practices Guidelines as frequently updated online at http://mmaglobal.com/ when using the marketing services & Application.
b.) Collection of User Data. As part of the Services, TextAlertz shall collect on behalf of Customer, data regarding the users of the Applications, including, without limitations, traffic collected or created from the Applications and periodically transmit to Customer such data. Customer data will be considered Confidential Information of Customer, and all right, title and interest in and to such information will be owned by Customer. During the Term, TextAlertz will make standard reports available to Customer containing user data and other traffic generated or collected by TextAlertz regarding the use of the Applications.
c.) Back-up of Customer Data. TextAlertz is not responsible for, and Customer hereby agrees to indemnify and hold TextAlertz harmless for, the storage or dissemination of Customer Data by TextAlertz. Customer shall maintain as it deems appropriate back-up copies of all Customer Data transmitted to TextAlertz for use in connection with the Applications. TextAlertz is not responsible for any storing or back-up of such data.
Note: Our servers are a distributed, redundant cloud array and the data is backed up nightly to ensure data integrity. Any sensitive information that we store in our databases is secured using industry standard hash algorithms with salt to obfuscate data. All communications with our SMS platform occur over a verified SSL connection using 128-bit encryption for data security.
10. ACCEPTABLE USE POLICY
Scope. Customer and all persons and entities accessing the Services must comply with this Acceptable Use Policy (“AUP”). By using the Services, Customer acknowledges, and agrees to ensure compliance with, this AUP. TextAlertz in its discretion may modify this AUP at any time.
Restrictions on Use. You represent and warrant that the owners of the phone numbers you provide to TextAlertz, to which outbound messages and broadcasts are transmitted through the Services, have consented or otherwise opted-in to the receipt of such messages and broadcasts. You agree that you will include clear opt-out/unsubscribe information on at least every fifth text message you send through TextAlertz’s Services and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association. You further agree that any individual requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and removed from your list of approved contacts used with the TextAlertz Services.
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages and broadcasts transmitted through the TextAlertz Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the TextAlertz Services by visiting the following websites:
- Federal Trade Commission, http://www.ftc.gov
- Federal Communications Commission, http://www.fcc.gov
- DoNotCall Registry Info, http://www.donotcall.gov
The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. TextAlertz is in no way attempting to interpret any laws, rules, or regulations. This information 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 messages, broadcasts and campaigns prior to using the TextAlertz Sites or Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.
You shall schedule campaigns responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, for inclusion in any outbound messages, broadcasts, and campaigns. If you are unfamiliar or unclear on the legalities of any message, broadcast or campaign, you must consult with your attorney prior to your use of the TextAlertz Sites or Services.
You accept that the Services are provided for professional use only, and you agree that your use of the TextAlertz Services shall not include:
(i) junk mail, spam, or unsolicited material to persons or entities that have not agreed to receive such material or to whom Customer or its End-Users do not otherwise have a legal right to send such material;
(ii) material that infringes or violates any third party’s intellectual property rights, rights of publicity, privacy, or confidentiality, or the rights or legal obligations of any wireless service provider or any of its customers or subscribers;
(iii) material or data, that is illegal, or material or data, as determined by TextAlertz (in TextAlertz sole discretion), that is harassing, coercive, defamatory, libelous, abusive, threatening, obscene, or otherwise objectionable, materials that are harmful to minors or excessive in quantity, or materials the transmission of which could diminish or harm the reputation of TextAlertz or any third-party service provider involved in the provision of the Services;
(iv) material or data that is alcoholic beverage-related (e.g., beer, wine, or liquor), tobacco-related (e.g., cigarettes, cigars, pipes, chewing tobacco), guns or weapons-related (e.g., firearms, bullets), illegal drugs-related (e.g., marijuana, cocaine), pornographic-related (e.g., adult themes, sexual content), crime-related (e.g., organized crime, notorious characters), violence-related (e.g., violent games), death-related (e.g., funeral homes, mortuaries), hate-related (e.g. racist organizations), gambling-related (e.g., casinos, lotteries), specifically mentions any wireless carrier or copies or parodies the products or Services of any wireless carrier;
(v) viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
(vi) material or information that is false, misleading, or inaccurate;
(vii) material that would expose TextAlertz, any third-party service provider involved in providing the Services, or any other third party to liability; and/or
(viii) any signal or impulse that could cause electrical, magnetic, optical, or other technical harm to the equipment or facilities of TextAlertz or any third party.
You agree to provide legal contact information in any outbound campaign within the initial greeting message. You further agree that TextAlertz is, under no circumstances, responsible for the contents and/or accuracy of your messages or broadcasts and TextAlertz will only transmit them on a basis of good faith that you use the Services in accordance with these Terms. TextAlertz will not be liable for any misuse of the Services by you. TextAlertz is not responsible for the views and opinions contained in any of your messages or broadcasts.
The TextAlertz product is a mobile marketing and communication offering that includes SMS (text) marketing capability. SMS marketing includes the ability to create on demand mobile ads and mobile marketing events including keyword campaigns, auto-responders, blasts, contests and promotions through one way and two-way SMS.
A monthly fee of $60.00 will be assessed for the Bronze TextAlertz product. Included in this monthly fee is the ability to utilize three (3) keywords and 2,000 text messages for SMS marketing. Canadian customer accounts include three (3) keywords and 500 text messages for the rate of $60.00/month Canadian. A keyword is defined as any of the following available functions: Keyword, Auto Responder, Survey, Voting & Polling, or Text-2-Screen. Effective September 1, 2011 the following additional fees may be assessed if more than two (2) keywords and/or 2,000 text messages (500 in Canada) are used:
$15 per month for each additional keyword (U.S. and Canada)
$3 per month for each additional 100 text messages, (or $25 per month for each additional 500 in Canada). Both inbound and outbound messaging (also known as MO and MT) are included in this total.
$7 per month for each mobile website created on the enhanced mobile website builder that is larger than two (2) pages. (U.S. and Canada)