TERMS OF SERVICE
Effective: May 1, 2024
Introduction
DESCRIPTION OF SERVICE
Textmunication, Inc. provides a web-based application (“SAM”) for managing mobile marketing campaigns including mobile communication messaging capabilities (the “Service”). Unless explicitly stated otherwise, any new features that augment or enhance to SAM shall be subject to this Agreement. You understand and agree that the Service is provided to you on an “AS-IS” basis and that Textmunication assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to SAM and that access and subsequent usage may involve third-party fees (such as Internet access to use the Service).
SMS/MMS CPAAS (Communications Platform as a Service) is a cloud-based service provided by Textmunication that enables businesses to send and receive SMS and MMS messages to and from their customers using an application programming interface (API). With Textmunication’s SMS/MMS CPAAS, businesses can easily integrate messaging capabilities into their existing software systems or mobile applications. The service provides features such as two-way messaging, message scheduling, message personalization, message tracking, and delivery confirmation. SMS/MMS CPAAS can be used for a variety of purposes, including marketing campaigns, customer support, appointment reminders, notifications, and alerts. It provides businesses with an efficient and cost-effective way to communicate with their customers, as SMS and MMS messages have high open rates and are typically read within minutes of being received, delivery is not guaranteed due to carrier bandwidth and network uptime. Textmunication’s SMS/MMS CPAAS is scalable and customizable, meaning that businesses can tailor the service to their specific needs and usage requirements. The service also offers comprehensive reporting and analytics, allowing businesses to track message delivery and campaign performance. Textmunication’s SMS/MMS CPAAS is a powerful and flexible messaging solution that enables businesses to engage with their customers via SMS and MMS messages with ease and convenience.
Terms & Conditions
By participating in the Textmunication Mobile and Communication program, you are agreeing to the terms and conditions presented here. View our privacy policy.
Recurring Msg&Data Rates May Apply, Reply STOP 2 stop, (800) 677-7003 for HELP. T-Mobile is not liable for delayed or undelivered messages.
I consent to receive coupons and promotions understand and agree that my information will be used as described here and what is stated in the privacy policy and terms of service located at textmunication.com. I further agree to receive recurring text messages at the phone number I have provided above. I understand that not all carriers are covered and will not charge me for the text messages. Standard message and data rates may apply. I understand that my consent is not required and is not a condition of any purchase. Text HELP to 87365 for help. To opt-out, text STOP to 87365 you will receive a text message confirming your opt-out.
Supported Carriers (US)
All West Wireless, Appalachian Wireless (EKN), AT&T, Bluegrass Cellular, Cambridge Cellular (CTC), Cellcom, Cellular One of East Central Illinois (ECIT), Cellular South, Centennial Wireless, Cincinnati BellCox Communications, FMTC (Farmers Mutual Telephone Cooperative), GCI Communications, Illinois Valley Cellular (IVC), inland Cellular, Keystone Wireless (Immix/PC Management), MetroPCS, Nex-Tech Wireless, NNTC Wireless (Nucla-Naturita Phone Company), nTelos, Revol Wireless, Silver Star PCS (Gold Star Communications), Snake River PCS (Eagle Telephone Systems), South Central Wireless, Sprint Nextel, Syringa Wireless, T-Mobile®, U.S. Cellular®, UBET Wireless (UBTA-UBET), Unicel (RCC/Rural Cellular Corporation), United Wireless, Verizon Wireless, Virgin Mobile, West Central Wireless (includes Five Star Wireless)
Supported Carriers (Canada)
The mobile operators participating in this campaign are Bell Mobility Inc., Rogers Cantel Inc, Telus Mobility, Aliant Mobility, Fido, Mobilicity, MTS/Allstream Inc, Northern Telephone, Sasktel Mobility, Telebec, Videotron, Virgin Mobile Canada and WIND.
Short Codes & Shared Short Codes
Short Codes, 10DLC, and Toll Free Numbers
Shortcode: A shortcode is a five or six-digit number used to send and receive SMS and MMS messages. Shortcodes are commonly used for marketing campaigns, voting, and alerts. They are typically easier to remember and more recognizable than traditional phone numbers, making them a popular choice for businesses to communicate with their customers.
10DLC: A 10DLC (10 Digit Long Code) is a long-form phone number that can be used to send and receive SMS and MMS messages. 10DLC numbers are designed for businesses that need to send a high volume of messages to their customers. They are cheaper than shortcodes and are ideal for non-time-sensitive messages such as appointment reminders, shipping notifications, and marketing messages.
Toll-free numbers (TFN): A toll-free number is a phone number that customers can call or send messages to without incurring any charges. Toll-free numbers are commonly used for customer support and marketing purposes. They can also be used to send SMS and MMS messages, making them a convenient and cost-effective option for businesses to communicate with their customers. Shortcodes, 10DLC, and toll-free numbers are all different types of phone numbers that businesses can use to send and receive SMS and MMS messages. Each type of number has its own unique benefits and use cases, and businesses should choose the one that best fits their communication needs.
By participating in the Textmunication Mobile and Communication program, you are agreeing to the terms and conditions presented here. View our privacy policy.
Recurring Msg&Data Rates May Apply, Reply STOP 2 stop, (800) 677-7003 for HELP. T-Mobile is not liable for delayed or undelivered messages.
For questions about our provisioning and carrier approval for dedicated short codes, 10DLC, and TFN , please contact: sales@textmunication.com
Web Site Terms and Conditions of Use
1. GENERAL:
Effective as of the date indicated on the Textmunication Service Agreement (“Agreement”), the client (hereinafter referred to as “Licensee”), hereby agrees to become a non-exclusive licensee of the Mobile Marketing Service and Application software which provides, among other things, access to certain proprietary campaign management functionality and the delivery of SMS text messages between Licensee and end users’ (“Users”) wireless devices (the “Service”), provided by Textmunication, Inc. (“Textmunication”), whose address is 1940 Contra Costa Blvd, Pleasant Hill, Ca 94523.
2. LICENSE TO USE SERVICE :
Textmunication hereby grants to Licensee a limited, non-exclusive license to use the Service and the Textmunication Materials (as defined in Section 7, below) during the Term only as reasonable and necessary for the purposes contemplated by this Agreement. All rights not expressly granted are reserved by Textmunication Licensee agrees not to modify, sublicense, distribute, market, transfer, reverse engineer, reverse compile or make any copies of any of the Textmunication Materials, or otherwise attempt to gain access to elements of the Textmunication Materials. Immediately after the Effective Date, Textmunication shall deliver to Licensee online access to the Service and any and all accompanying documentation provided by Textmunication to other licensees. Licensee shall have the right to use the Service for purposes related solely and exclusively to Licensee. Licensee shall not be entitled to sell, give, lease, distribute or otherwise transfer the Service to any other person, firm or station, whether or not affiliated with or commonly owned by Licensee.
3. REFERENCE SCHEDULE :
In exchange for the service:
A. One Time Set Up Fee of for initial provisioning of the KEYWORD(s) and set up of the SMS Program Capability to be paid upon final signature of agreement.
B. A Monthly payment will be charged that will include outbound SMS messages, keyword(s) and unlimited inbound SMS messages per month, as set forth in the signed “Agreement”, (Messages/keywords exceeding above agreed upon amounts will be charged at negotiated pricing schedule attached) account support, technical support and creative support. Any increase/decrease in this monthly fee will be negotiated each year as necessary on the anniversary date of signature.
C. If and when additional projects outside the scope of this agreement are negotiated or additional services at the beginning of this agreement, they can be added to this agreement on a project by project or item by item basis. They will be included in this contract on the basis of the mutual written agreement and signature of both Textmunication and Licensee on a Statement of Work or a Statement of Work Addendum. The Statement of Work and Statement of Work Addendums will be considered part of this contract on the date of signature by both parties.
D. Payment: Licensee shall pay to Textmunication those fees described in the Agreement and Statement of Work or Statement of Work Addendums attached hereto and made a part hereof. All invoices shall be due within thirty (30) days of Licensee’s receipt of such invoice thru automatic draft via credit card or ACH (echeck). The fees shall be valid during the Term of this Agreement or any extension thereof.
4. TERM/CANCELLATION :
Unless sooner terminated pursuant to Exhibit A, the Term of this Agreement shall be a monthly agreement, commencing on the Effective Date, and shall automatically renew for successive one (1) month terms, unless terminated by either party by written notice not less than thirty (30) days prior to the end of then-current Term. The Textmunication Cancellation Form must accompany the written notice to execute termination of the service. Textmunication may, upon thirty (30) days written notice, change the fees payable under this Agreement if the carrier network or aggregator imposes additional or increased fees for transmission or receipt of text messages. If the imposed increase in fees is greater than 10% of the then-current fee, then Licensee has the option to terminate this Agreement by written notice within the same thirty (30) day period, without penalty. There are no refunds for any fees paid. Textmunication may terminate this Agreement or the service, disable your account, or put your account on inactive status, at any time, with or without cause, and with or without notice. Textmunication shall have no liability to you or any third party because of such termination or action. Textmunication may delete any of your archived data within 30 days after the date of termination by either party. If your account is classified (at Textmunication’s sole discretion) as inactive for over 180 days, Textmunication has the right to permanently delete all of your account data. Textmunication in good faith will attempt to contact you via email prior to taking any permanent data removal actions.Unless the client contacts Textmunication to discontinue service for any reason, the client is responsible for all payments until the service has been cancelled. Refunds or credits will not be issued for lack of use.
5. DATA :
“Data” shall consist of User information including, but not limited to, name, address, age, and cell phone number. Licensee shall be the sole owner of all Data, and shall retain all right, title and interest in and to the Data, provided any Data included within an opted-in database shall only be used with the related short code/shared short code in compliance with applicable industry and carrier guidelines. Licensee hereby grants Textmunication a limited, non-exclusive, non-transferable license to use, review and modify the Data, and to extract non-personally identifiable statistical information from the Data for the purpose of reporting industry trends, statistical data and analysis, provided Textmunication shall not identify either the Licensee or any subscriber without Licensee’s express written consent.
6. CONTENT SUBMISSION :
Confidential or Proprietary Information. You agree that any information or materials that you or individuals acting on your behalf provide to Textmunication (other than information required for your use of the Services as contemplated herein) will not be considered confidential or proprietary. Furthermore, except as otherwise required for your use of the Services as contemplated herein, you should not send any confidential or proprietary information to Textmunication via the Textmunication Sites or the email addresses referenced on the Textmunication Sites.
Your Rights in the Information. In connection with your provision of such information and materials, you warrant and represent to Textmunication that you have all rights, title, and interests necessary to provide such information and materials to Textmunication and that your provision of the content to Textmunication does not infringe any third party’s proprietary or personal rights, including, but not limited to, any trademark, copyright, patent, or trade secret. By providing any such information or materials to Textmunication (other than information required for your use of the Services as contemplated herein), you grant to Textmunication an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, publicly display, publicly perform, transmit, modify, adapt, make derivative works of, and distribute such information and materials, in whole or in part, in any format or medium now known or later developed. You further agree that Textmunication is free to use any ideas, concepts, techniques or know-how that you or individuals acting on your behalf provide to Textmunication as we may determine in our sole discretion. You understand and agree, however, that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques, and you have no right to compel such use, display, reproduction, or distribution.
Online Forums/Blogs. Textmunication may at its option provide you with one or more areas within the Textmunication Sites for online discussions (e.g., a message board, wiki, chat room, or blog). Should you choose to participate in such a forum, you agree to not utilize the forum for illegal or inappropriate purposes. Textmunication reserves the
right, but will not be obligated, to edit or delete postings to its forums at any time and for any reason. Textmunication shall also have no responsibility or liability for any content created or posted by you or other third parties within any online forum.
7. 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 software programs, product, methodology, research, customers, business partners, business plans, financial information, sales, marketing and merchandising plans and any information which provides a competitive advantage (“Confidential Information”). Textmunication may also have access to customer, employee or other personally identifiable information, including, without limitation, name, address, phone number, fax number, email address, account information or purchase information (hereinafter “Personally Identifiable Information”). The receiving party shall employ reasonable measures to prevent the unauthorized use of Confidential Information and/or Personally Identifiable Information (collectively, “Proprietary Information”) (a “Privacy Breach”) by protecting the other’s Proprietary Information with the same degree of care it uses for its own Proprietary Information (and at least a reasonable degree of care), using the information only to carry out this Agreement, and disclosing the information only to its employees (or agents bound by similar confidentiality obligations) with a need to know for that purpose and shall use the information solely for the purposes of this Agreement. In the event of a Privacy Breach, Textmunication shall immediately notify Licensee and cooperate with Licensee, as required by applicable law, to provide prompt notice to affected customers. The cost of any such notice shall be borne solely by Textmunication. Proprietary Information shall remain the property of the disclosing party and shall be returned or (along with all copies) destroyed upon request; provided, neither party shall be obligated to remove Proprietary Information from any backup system that is either (i) not reasonably accessible by such party or (ii) not reasonably subject to deletion. Information shall not be deemed Proprietary 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; or (iii) is already known by the receiving party at the time of disclosure. Proprietary Information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure. This section will survive the termination of this Agreement.
8. OWNERSHIP AND AUTHORITY :
Textmunication warrants that, to the best of its knowledge and in good faith, we will not sell or transfer, and do not own or have rights to merchants or supporters of Licensee, independent agent’s list of supporters, or contact information provided by Licensee’s independent agents.
9. TECHNOLOGY :
As between the parties and except to the extent such materials are created by, owned by or provided through Textmunication, Licensee is and shall be the sole and exclusive owner of any of its proprietary technology, including the station call letters, contest names, any derivative works thereof, and any related documentation (collectively, the “Licensee Materials”), and all copyrights, trademarks, service marks, trade names, patents, trade secrets and other intellectual property and proprietary rights in and to the Licensee Materials and all portions thereof, and this Agreement shall not be construed in any manner as transferring any rights or ownership or license thereto, except as specifically stated herein. During the Term, each party grants to the other a limited, non-exclusive license to use the Textmunication Materials or Licensee Materials, respectively, only as reasonable and necessary for the purposes contemplated by this Agreement. All rights not expressly granted are reserved by Textmunication and Licensee, respectively. Other than as expressly provided by this Agreement, Licensee agrees not to modify, sublicense, distribute, market, transfer, reverse engineer, reverse compile or make any copies, of any of the Textmunication Materials. Licensee and Textmunication agree not to attempt to gain access to elements of the Textmunication Materials or Licensee Materials, respectively.
Intellectual Property
No Customer Right to Textmunication Intellectual Property. You are permitted to access the Textmunication Services and any content provided by Textmunication (which may include text, images, hosted software, sound files, video, or other content and which may be provided via the Textmunication Sites or otherwise) solely for the purpose of receiving information about Textmunication’s business and products, purchasing and utilizing our Services, communicating with us, entering prize promotions offered by us, or as otherwise stated on the Textmunication Sites. Textmunication hereby grants a worldwide, fully paid-up, perpetual, non-exclusive, non-transferable license to you to use the Textmunication Services solely for that purpose.
Except as expressly provided in these Terms, the availability of the Services and the Textmunication Sites does not give you any license to any patent, trademark, copyright, or other intellectual property rights in or to the Services, including the web pages that are part of the Services and Textmunication Sites. All copyrights, trademarks, patents, trade secrets, and other intellectual proprietary rights contained in the Textmunication Services are the sole property of Textmunication or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the Services, including any proprietary communications protocol used by the Services without the express written permission of Textmunication. All other trademarks or trade names are the property of their respective owners, and such material may not be copied, downloaded, redistributed, modified, or otherwise exploited, in whole or in part, without the permission of the owner.
11.2. Compliance with the Digital Millennium Copyright Act. Textmunication abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, we may remove or disable access to material residing on a site that is controlled or operated by Textmunication and that is claimed to be infringing, in which case we will make a good faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. Textmunication does not control content hosted on third-party websites, and we cannot remove content from sites it does not own or control.
If you are the copyright owner of content hosted on a third-party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed.
Before serving either a Notice of Infringing Material or a Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with Textmunication’s rights and obligations under the DMCA and, in particular, section 512(c). They do not constitute legal advice.
Filing a Notice of Infringing Material Under the DMCA. To file a notice of infringing material on a Site owned or controlled by Textmunication, please provide a notification containing the following details:
1. Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example, the title, author, any registration or tracking number, and URL);
2. Reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example, a link to the page that contains the material);
3. Your contact information so that we can contact you (for example, your address, telephone number, or email address);
4. A statement that you have a good faith belief that the use of the material identified in (2) is not authorized by the copyright owner, its agent, or the law;
5. A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.
6. Your physical or electronic signature.
10. COMMUNICATIONS ABOUT TEXTMUNICATION SERVICES AND PRODUCTS :
Newsletters. With the exception of Services obtained through Textmuncation.com, any email addresses or mobile number submitted when registering for a new account to use Textmunication Services are automatically added to the Textmunication newsletter, emails, blogs. To opt into the separate newsletter offered through Textmunication.com.
To unsubscribe from any Textmunication newsletter except for the one offered by ClubTexting.com, please email support@textmunication.com from the email address you want unsubscribed and ask to unsubscribe from the newsletter. To unsubscribe from the Textmunication.com newsletter and emails, please email support@Textmunication.com from the email address you want unsubscribed and ask to unsubscribe from that newsletter.
Communications about our services. By creating an account with Textmunication, you agree that Textmunication may contact you via calls, text messages, or email to provide you with information about your account, transactions, and/or the Textmunication services requested by you.
To the extent you have separately agreed to receive periodic text or voice alerts about products, services, events, special offers, or other promotional messages related to
Textmunication services, Textmunication may contact you pursuant to the terms of any such separate agreement.
11. PUBLICITY :
Textmunication may issue one or more press releases announcing and promoting Licensee’s use of the Textmunication Services, and create various forms of collateral documentation concerning Licensee’s use of the Textmunication Services, including white papers, case studies, brochures, web site content and related materials, provided, Textmunication complies with Licensee’s trademark use policies.
12. INDEMNIFICATION :
Each Party shall indemnify, defend and hold harmless the other Party (and each of its officers, directors, employees and agents) from and against any and all third party claims, and any related liabilities, penalties, damages, judgments and expenses, including reasonable attorneys’ fees, in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any message(s) you distribute using this service or (iii) otherwise arises from or relates to your use of our service. Each Party’s obligation to indemnify, defend and hold harmless the other Party (and each of its officers, directors, employees and agents) is subject to the indemnified Party having given the indemnifying Party prompt written notice of the claim or of the commencement of the related action, as the case may be, and permitting the indemnifying Party to consult with the indemnified Party with respect to the defense of the claim or action, at the indemnifying Party’s own expense. The indemnified Party shall not settle or compromise any such third Party claim without the consent of the indemnifying Party (which consent shall not be unreasonably withheld).
13. PAYMENTS :
Licensee
Your use of our Services is contingent on your paying for such use (whether paid in advance or through the purchase of credits on the Textmunication Sites), in the amounts and using the methods indicated on the Textmunication Sites. Your payment for the Services, Credits (as defined below in Section Credits), keywords, DIDs, usage-sensitive fees, and/or plans (a portion of which also includes software maintenance and upgrades, as well as customer support) shall be deemed completed when Textmunication receives the full amount of payment owed for such Services, Credits, keywords, DIDs, usage-sensitive fees, and/or plans. You are responsible for paying for any message or broadcast you attempt to send to any number, regardless of whether the message is actually received by the intended recipient. As Textmunication is dependent on other entities for the delivery of your messages and broadcasts, our price per credit may require adjustment in order to account for costs that are not in our control. Accordingly, we may adjust our prices from time to time.
Textmunication or our third-party payment processor will charge your indicated method of payment for the Services, Credits, keywords, DIDs, usage-sensitive fees, and/or plans immediately upon your confirming the payment method and amount. Amounts to be charged may include sales and other taxes, where applicable, and any other amounts indicated on our Sites. Textmunication will assess an additional charge based on the costs Textmunication incurs for porting each DID number assigned to you that you request to be ported within six months of the original assignment by Textmunication, and Textmunication may further restrict your ability to port telephone numbers assigned to you by Textmunication consistent with FCC regulations. Your account will be credited within 24 hours of Textmunication verifying receipt of your payment. If you have elected to make a payment by credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by Textmunication.
Textmunication cannot readily or accurately ascertain your location when you request to use the Services. You therefore agree that your use of the Services occurs in California and is subject to any applicable California taxes. To the extent that you are responsible for any additional taxes or fees beyond those collected by Textmunication, you agree that you will pay them to any applicable taxing authority when due, including any interest or penalties assessed.
Textmunication shall not be responsible for any errors or transmission failures with regard to the charging and collection of funds from your indicated payment method, nor for any actions taken by the provider of the payment method you choose (which could include refusal to authorize the charge). In addition to these Terms, any payments made by you may be subject to the agreement between you and the provider of the payment method.
As between you and Textmunication, you are responsible for all charges related to purchases made using your account and payment method, whether or not you authorized such purchases. Standard charges apply to any test call sent originating from your account or initiated using your API key.
If you elect to purchase a recurring subscription, we or our third-party payment processor will charge your payment method on the date that you subscribe and each subsequent billing period. By providing a payment method, you expressly authorize Textmunication and/or our third-party payment processor to charge all such fees to said payment method.
Automatic Renewal:
Depending on the length of the subscription for which you subscribe, beginning with the first month or year (as applicable, the “subscription period”) following the end of the initial subscription period for which you subscribe, we will automatically renew your subscription. Each renewal period will be for the same length as the subscription period that just expired. By purchasing a recurring subscription, you expressly acknowledge and agree that (a) your subscription has an initial and recurring payment feature, textmunication (or our third party payment processor) is authorized to automatically charge your payment method monthly during the subscription period at the then-current subscription rate for your subscription as long as your subscription continues, and (b) your subscription is continuous and will be automatically extended for successive subscription periods until you cancel it.
You may cancel your recurring subscription at any time, by logging into your account, clicking on your profile dropdown menu, selecting the billing option, and clicking the cancel my account text link. If you cancel your subscription less than [1] business day before your next billing date, your subscription will not be cancelled and you will not receive a refund. Instead, your subscription will renew and you will continue to enjoy your subscription benefits until the expiration of the next subscription period for which you have paid (at which time, your subscription will cancel).
We reserve the right to modify our pricing for the services for which you have subscribed at any time (but not the price in effect for the then-current period for which you have paid), upon 30 days advance notice to you. If you have not cancelled your
Subscription within the 30 day period after receiving notice of a price change by logging into your account, clicking on your profile dropdown menu, selecting the billing option, and clicking the cancel my account text link, your subscription will auto-renew at the price indicated in the notice.
In the event of accidental under billing in favor of a Customer and a Customer’s subsequent nonpayment, Textmunication shall be entitled to immediately proceed with collection remedies and shall be entitled to recover any and all costs, fees, and expenses of such collection efforts, including but not limited to: collection agencies, court costs, filing and service of process fees, attorneys’ fees incurred from counsel of Textmunication’s choosing, or any other costs, fees, and expenses incurred in the pursuit of collection on all customer accounts and receivables due and payable under these Terms.
Textmunication has the right to increase pricing plans based on carrier fees and business economics.
Credits
Using Credits. Credits are paperless vouchers that you purchase and which facilitate the transmission of the Textmunication Services selected by you. Both the chosen route and the destination of a message or broadcast impact the amount of credits required for each transmission of our Services. Additionally, the value of credits may change over time as the cost of transmission changes, and thus you acknowledge that the number of credits needed to utilize the Services may change correspondingly. The pricing information, however, will always be made known beforehand through the Pricing Pages on our Textmunication Sites. The submission of a seemingly-valid message or broadcast will cause an associated quantity of credits to be debited from your account, and you can obtain the real-time status of your account at any time through the online interface.
Expiration of Credits and Prepaid Minutes. Credits purchased as a part of a package or monthly plan (including any additional credits purchased during your monthly billing cycle as part of an upgrade to your plan) and not used within the month of purchase expire at the end of the month, unless the plan explicitly provides for a roll-over of credits. Individual anytime, nonmonthly plan credits purchased through your account automatically expire after 12 months from the date of purchase, unless otherwise stated at the time of purchase. Credits are purchased on a first-bought, first-to-expire basis. Any unused value shall be forfeited upon expiration.
All prices, per-minute rates, and billing increments for credits are subject to change at any time due to fluctuations in market conditions. You may request a full refund of any unused, nonmonthly plan credits within one (1) business day of purchase. No other refunds will be given.
Right to Offer Customized Plans. Notwithstanding the above, we may, in our sole discretion, offer customized plans that provide for individualized terms concerning credit expiration, billing cycles, account maintenance fees, and other agreed-upon terms. We reserve the right to do so without publicly listing the pricing for these customized plans on our Sites.
14. LICENSEE’S TRADEMARKS:
Licensee’s trademarks, trade names, service marks, logos and symbols (“Licensee’s Trademarks”) are, and shall remain, Licensee’s sole and exclusive property. Textmunication recognizes the value of the goodwill associated with Licensee’s Trademarks and acknowledges that all rights therein belong exclusively to Licensee, and Textmunication has not acquired, and shall not acquire, any right, title or interest in any of Licensee’s Trademarks. Any and all goodwill and rights under trademark and copyright law, and all other intellectual property rights, that arise in favor of Licensee’s Trademarks as a result of this Agreement or otherwise shall inure to the sole and exclusive benefit of Licensee. Textmunication shall not, during or after the Term of this Agreement, do anything which could in any way conflict with Licensee’s use or ownership of Licensee’s Trademarks and shall not attack, dispute or challenge Licensee’s right, title and interest in and to Licensee’s Trademarks or assist others in so doing.
15. GOVERNING LAW :
This Agreement shall be governed by the laws of the State of California. All legal actions in connection with the Agreement shall be brought in the state or federal courts within San Francisco, CA. Licensee agrees to pay all expenses Textmunication may incur in connection with the enforcement of any provisions contained in this Agreement, including all reasonable attorneys’ fees and costs.
16. SEVERABILITY :
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
17. WAIVER :
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
18.NOTICES :
All notices, consents and other communications under or regarding this Agreement shall be in writing, in English, and shall be addressed to the parties at the addresses indicated in the Agreement, addressed to the person who signed the Agreement on behalf of such party, or to such other address or person as a party may designate in writing, and shall be deemed to have been received on the earlier of the date of actual receipt, the third business day after being mailed by first class certified air mail, or the first business day after being sent by a reputable overnight delivery service.
19. RELATIONSHIP OF THE PARTIES :
Each party acknowledges that it is an independent contractor of the other, and in no event will the employees and/or agents of a party be deemed employees and/or agents of the other. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Textmunication in any respect whatsoever.
20. COMPLETE AGREEMENT :
This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement many not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein. This Agreement may be signed in counterparts, which taken together shall constitute a single document, Textmunication and Licensee agree to accept and rely on facsimile transmitted signed documents as if they bore original signatures.
21. FORCE MAJEURE :
If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
22. ASSIGNMENT :
This Agreement will be binding upon and will inure to the benefit of and be enforceable by each of the parties, their respective successors and permitted assigns. Neither party may assign its rights and/or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Textmunication may assign this Agreement, in whole, to any third party in connection with any merger, consolidation, reorganization, liquidation, or sale of all or substantially all of the business or assets of Textmunication upon prior written notice to Licensee. Any purported assignment or transfer of the Agreement in violation of this Section 18 will be null and void.
23. WARRANTY DISCLAIMER :
Use of our service and your reliance upon the service, including any action(s) taken by you because of such use or reliance is at your sole risk. Textmunication does not posit that the service will be uninterrupted or error free, nor does it make any warranty as to the results that may be obtained from use of the service. The service is provided “as is” and Textmunication disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.
Exhibit A
TERMS AND CONDITIONS
Licensee shall adhere to all policies from Textmunication and the carriers regarding the content, user interaction, and transmission of messages as described below. Contravention of any of these clauses could lead to the disablement of Licensee’s short code/shared short code on supporting wireless carriers.
1. Licensee will adhere to MMA guidelines and acceptable code of conduct regarding SMS-mobile marketing.
2. Licensee will ensure that all such content and materials do not and will not contain any material that:
A. is inappropriate, such as profane language, drug references, promoting drug use, or gambling references;
B. is unlawful, obscene, or defamatory;
C. violates intellectual property rights or third party rights;
D. is false, misleading, or likely to mislead or deceive (including, without limitation, information relating to the source or the author of the message);
E. contains sexually explicit images;
F. promotes violence or discrimination;
G. facilitates illegal activities;
H. advertises or promotes a carrier’s competitors if delivering content to the consumer through a specific carrier.
3.Licensee must provide users with information on how to “opt-out” of receiving messages from Licensee in the first message following the first opt-in for clubs or alerts, sent to a user. This message must include, at a minimum, all of the following items (not necessarily in this order):
A. Licensee identifier/name
B. Short description of the service
C. Number and frequency of messages
D. Charging information
E. Opt-out instructions
F. Contact information
G. Where to get assistance/URL
Example: Textmunication: Max 6msgs/wk; Std msging chrgs apply; PLS rply “GO” 2 confirm u want Traffic Alerts. STOP=Optout.
4. Subject to the terms listed in the remainder of this Agreement, you hereby acknowledge and agree that:
A. Our service may only be used for lawful purposes.
B. You agree that you will not access or use ANY third party mailing lists for email addresses, instant message screen names, or mobile phone numbers, or otherwise prepare or distribute unsolicited messages in connection with our service.
C. You agree to import, access, or use only lists for which all listed parties have consented to receive correspondence from you (“Permission Based Lists”) in connection with your use of our service. You hereby covenant that you shall not use any other lists obtained without the expressed consent by members of said list in connection with your use of the service.
D. You acknowledge and agree that not all messages sent via Textmunication’s service will be received by their intended recipients.
E. Every message sent by you in connection with our service must contain Textmunication’s “unsubscribe” link that allows the recipient to remove his or herself from your mailing distribution list(s).
5. Licensee must include a prominent link on a publicly accessible website to SMS Terms and Conditions that will have clear instructions for the user to update or remove his/her details from the Licensee database, or to unsubscribe/opt out.
6. Textmunication reserves the right to enable certain ‘template’ activities and keywords in order to ensure the continued availability of the short code/shared short code assigned to Licensee with supporting wireless carriers. Example of Current Template: “in-built-unsubscribe” and “in-built-help”; the following keywords will be included in all campaigns:
– (in-built-unsubscribe) STOP, QUIT, END, CANCEL, UNSUBSCRIBE
– (in-built-help) HELP
7. All television, radio, online, and printed advertising materials that encourage participation in a text based activity with the Licensee must include the following disclaimer: “Standard messaging charges apply per your carrier. Send HELP to [insert short code/shared short code number] for information. Send STOP to [insert short code/shared short code number] to opt out of the service. For full Terms & Conditions, please visit [insert T&C URL].” When applicable, the URL referenced should be to the actual rules of the promotion and/or contest. However, Licensee should consult their legal counsel.
8. Licensee agrees that all outbound messaging will contain a reference to Licensee’s name or brand.
Contests:
1. Licensee’s official rules must use the complete Contest Rules text as provided by Textmunication. Licensee’s own legal counsel should advise where and when official rules need to be posted/advertised.
2. Licensee’s ‘REBOUND’ message (that is, the ‘entry confirmation text message’) must include the following: [Sponsor Name], HELP=Help, STOP=Optout, Standard messaging charges apply.
3. Messages containing references to alcohol and gambling cannot be approved or endorsed by Textmunication. Licensee’s own legal counsel should be involved to assess FTC, FCC and state laws surrounding the promotion of such topics to subscribers. Licensee’s own legal counsel should consider that subscribers in receipt of promotions on such topics could be of any age. Licensee acknowledges that Textmunication does not, and is not, providing legal advice to Licensee.
4. Licensee agrees that it will make all reasonable efforts to ensure that any outgoing messages, specifically pushes, are to subscribers who have opted-in to receive message(s) from the Licensee. Licensee assumes all risk if a message is sent to subscribers who have not opted in.
5. Licensee understands the Services are only supported on Windows Internet Explorer version 6.0 or greater / Firefox / Google Chrome ™ / Apple Safari ™. If the Licensee chooses to use the platform with another web browser, Textmunication, Inc. cannot guarantee support.
6. These standards and restrictions will change from time to time based upon carrier requirements. Textmunication reserves the right to amend at any time to be in compliance with carrier requirements and industry best practice standards.
Anti-SPAM Policy – Textmunication provides businesses and organizations with a variety of tools to collect names, mobile numbers, IM screen names, and email addresses. Textmunication’s service may NOT be used for sending unsolicited messages (sometimes called “spam”). Textmunication has a “no tolerance” spam policy. Textmunication’s customer support actively monitors large import lists and messages going to a large number of contacts. Any customer found to be using Textmunication for spam will be immediately cut-off from use of the service. If you know of or suspect any violators, please notify us immediately. Every outgoing message via Textmunication contains a mandatory unsubscribe link. If the link is removed or de-activated in any way, Textmunication will, depending on the circumstances, terminate or suspend the customer’s account pending the reactivation of that unsubscribe link. The Do Not Text List. You promise to hastily remove from the all data and information of any person who has previously stated verbally and/or in writing that he or she does not wish to receive Services made by or on behalf of you. You agree to update the Database or any contact lists delivered to Textmunication hereunder prior to commencement by Textmunication Services on your behalf. If you do provide us a list of email addresses and/or cell phone numbers, you will ensure that they do not contain email addresses or cell phone numbers of any person that has previously opted-out of receiving SMS or other communications. Some people just don’t want to get messages Textmunication maintains and owns a Global Permanent Removal List which contains addresses and domains which it will not allow any customer to add to a database. You understand and agree that Textmunication has full discretion to block the uploading of any mobile phone numbers which it has placed on such a list, and will not be liable for the blocking of any such address from any customer database. By clicking on the Unsub tab or on Textmunication’s footer or who sends an email to Textmunication at info@Textmunication.com any message recipient can opt-out of receiving any further communications from you through Textmunication. You agree that Textmunication can place people on the Global Permanent Removal List should that happen. Let’s obey the law We all have to play by the rules. Plain and simple… you agree that it’s your sole responsibility to ensure that your use of the Services requested by you, and transmitted on your behalf by Textmunication comply with all applicable Laws. You represent and warrant that the owners of the phone numbers you provide to Textmunication, to which outbound messages 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 Textmunication’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 Textmunication Services and the Textmunication Sites. 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 Textmunication Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the Textmunication Services by visiting the following websites:
1. Federal Trade Commission, http://www.ftc.gov
2. Federal Communications Commission, http://www.fcc.gov
3. 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. Textmunication 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 Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.
Textmunication prohibits the use of the service by any business, person, or entity that:
1. Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make explosives or incendiary devices or any other sort of weapon.
2. Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
3. Provides, sells or offers products, services or content frequently associated with unsolicited commercial email (Spam) such as online and direct pharmaceutical sales, including but not limited to health and sexual enhancement products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
4. Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
5. Posts or discloses any personally identifying information or private information about children without their consent (or their parents consent in the case of a minor).
6. Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
7. Introduces viruses, worms, harmful code and/or Trojan horses onto the Internet.
8. Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting “get rich quick”, “build your wealth” and “financial independence” offerings.
9. Engages in any libelous, defamatory, scandalous, threatening, and/or harassing activity.
10. Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
11. Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
Textmunication 30 Day Free Trial Terms and Conditions:
This offer (the “New 30-Day Free Trial Offer”), provided by Textmunication (as defined in the Textmunication Terms and Conditions of Use), entitles you access to the Textmunication SMS Platform (as defined in the Textmunication Terms and Conditions of Use) for a period of thirty (30) days from the moment you activate your trial. You must submit your payment details for the Free Trial Period to be activated.
By submitting your payment details, you accept the New 30-Day Free Trial Offer and (i) consent to Textmunication using your payment details in accordance with our Privacy Policy, (ii) acknowledge and agree to Textmunication Terms and Conditions. If you decide you don’t want to become a paying user of the Textmunication Service after the Free Trial Period, you must terminate your service by the end of the Free Trial Period. You may only use this Free Trial Offer once.
Waiver of Special Damages
IN NO EVENT WILL TEXTMUNICATION BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES, OR LOSS OF GOODWILL, DATA OR PROFITS OR COST OF COVER ARISING HEREUNDER, EVEN IF TEXTMUNICATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. FURTHERMORE, IN NO EVENT WILL TEXTMUNICATION’S LIABILITY UNDER THIS AGREEMENT EVER EXCEED THE AGGREGATE OF ALL FEES IT HAS COLLECTED PURSUANT TO THIS AGREEMENT.