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By clicking on the "Submit"
button, you agree that you have read, understand, and accept the terms and
conditions below for all use of SMS Messaging, Inc's services. If you do not agree to these
terms and conditions, do not subscribe.
These Terms and Conditions May Change
SMS Messaging, Inc reserves the right
to update or amend these Terms and Conditions at any time.
SMS Messaging, Inc May Change or Suspend Services
SMS Messaging, Inc and/or its clients
may, at its sole discretion, terminate or suspend the access to the Services or
any portion thereof of any user for any reason.
Eligibility
You must be at least 18
years old to be eligible to use the Services. However, if you are at least 13
years old but not yet 18, you may use the Services if, and only if, you have
your parents' or guardians' prior permission. No one under age 13 may use the
Services under any circumstances. By clicking the "SUBSCRIBE" button you are
representing that you are at least 18, or that you are at least 13 years old and
have your parents� permission to register for the Services.
Costs
There may be some costs
associated with the use of SMS Messaging, Inc and its Clients services. For example, your
pager or cellular phone service provider may charge you to receive Wireless Text
Messages. Neither SMS Messaging, Inc, its partners, or its clients, will be held
responsible for any charges related to the use of the Services.
Warranty & Disclaimer
SMS Messaging, Inc PROVIDES THE
SERVICES "AS IS" WITH NO WARRANTIES OF ANY KIND. SMS Messaging, Inc EXPRESSLY DISCLAIMS ANY
WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, OR THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED OR FREE OF
ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL
SMS Messaging, Inc OR ITS EMPLOYEES, OFFICERS, OR DIRECTORS BE LIABLE TO YOU FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF
OR IN CONNECTION WITH USE OF THE SERVICES WHETHER OR NOT SMS Messaging, Inc HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If you are dissatisfied
with the Services or any content on any of SMS Messaging, Inc's or its client's website
properties, or with these Terms and Conditions, your sole and exclusive remedy
is to discontinue using the Services. You acknowledge, by your use of the
Services, that your use of the Services is at your sole risk.
Indemnity
You agree to indemnify,
defend and hold harmless SMS Messaging, Inc, its partners, clients, employees, officers and
directors, from and against any and all claims, liabilities, penalties,
settlements, judgments, fees (including reasonable attorneys' fees) arising from
(i) any content that you or anyone using your account may submit, post or
transmit to the web site; (ii) your use of the Services; (iii) your violation of
the terms of these Terms and Conditions; and (iv) any violation or failure by
you to comply with all laws and regulations in connection with the Services.
Assignment
You may not assign any of
your rights or delegate any obligations hereunder, in whole or in part, whether
voluntarily or by operation of law, without the prior written consent of SMS Messaging, Inc
or its client's. Any such purported assignment or delegation by you without the
appropriate prior written consent of SMS Messaging, Inc or its client's will be null and
void and of no force or effect.
All clients must agree to
and abide by these Terms and Conditions:
READ THESE TERMS CAREFULLY
BEFORE USING THIS SERVICE. BY USING THIS SERVICE, YOU REPRESENT THAT YOU ARE
AUTHORIZED TO ENTER INTO BINDING AGREEMENTS EITHER INDIVIDUALLY OR ON BEHALF OF
YOUR COMPANY AND ARE NOW COMPLETING SUCH A BINDING AGREEMENT. THIS AGREEMENT
CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND ALL OTHER ADDITIONAL OR
CONTRARY DOCUMENTS, OR REPRESENTATIONS, WRITTEN OR ORAL, ARE HEREBY REJECTED AND
SHALL NOT BE BINDING.
1.1 Introduction.
The technology for this
message delivery platform (�!") is provided by SMS Messaging, Inc Inc. (�SMS Messaging, Inc �) and is
furnished �as is" under this License Agreement (�Agreement") for the fees
specified in our pricing plan. You must read this Agreement and agree to its
terms before you may create an account with SMS Messaging, Inc.
1.2 Modification of This License Agreement.
SMS Messaging, Inc reserves the right
to change this Agreement and any additional terms at anytime, effective upon
making the modified provisions available on the SMS Messaging, Inc web site
(www.). You are responsible for regularly reviewing these terms and
conditions. Continued use of SMS Messaging, Inc after any such changes shall constitute
your consent to such changes, including changes in fees. SMS Messaging, Inc does not and
will not assume any obligation to notify you of any changes to the terms of use
and notices, or additional terms.
2.1 License.
SMS Messaging, Inc grants you
(referred herein as �you" or �client") a non-exclusive, nontransferable license
to create an account for and use. Your
organization in accordance with the terms of this Agreement. The information
provided on this web site regarding Features and Pricing, Privacy Policy, and
Anti-Spam Policy is incorporated herein by reference. You specifically
understand and agree that SMS Messaging, Inc and any associated documentation are and shall
remain the sole and exclusive property of SMS Messaging, Inc, and is copyrighted and
licensed, not sold.
2.2 Services Provided.
SMS Messaging, Inc shall provide some
or all of the following services, depending on services availability, and the
service contract purchased: account management platform; e-mail messaging,
including bounce reports, subscriber reports, campaign reports and others; voice
messaging and call campaign (voice call), including Intelligent Answering and
Filtering and detailed reports; text messaging to domestic customers, including
2-way premium campaigns (e.g., for contests or polls) and results reports; fax
messaging with detailed delivery reports; other services as may be/become
available; and reasonable technical and administrative support (collectively,
�Service" or �Services").
SMS Messaging, Inc is accountable for
providing the Services, but provides said Services �as is" and is only
responsible for ensuring that the client�s messages leave the SMS Messaging, Inc network.
SMS Messaging, Inc is not and cannot be responsible for the ultimate delivery of the
client�s messages, and makes no such warranty or guarantee.
SMS Messaging, Inc reserves the right
to send, dispatch, remit, transmit and/or forward any type, category or form of
communication to you including, but not limited to, e-mails, SMS/text messages,
facsimiles and/or telephone calls to address or discuss any issue related to
SMS Messaging, Inc�s Services.
2.3 Copyright.
SMS Messaging, Inc�s databases contain
material that is protected by United States Copyright Law and trade secret law,
and by international treaty provisions. All rights not granted to you herein are
expressly reserved by SMS Messaging, Inc. You may not remove any material belonging to
SMS Messaging, Inc from any web site or any of SMS Messaging, Inc�s databases. You are not authorized
to use SMS Messaging, Inc�s name, logos or any related product and service names, design
marks and slogans in any advertising, publicity or any other commercial manner
without the prior written consent of SMS Messaging, Inc.
2.4 Confidentiality.
You acknowledge that
SMS Messaging, Inc possesses valuable trade secrets and agrees to maintain the
confidentiality of SMS Messaging, Inc�s proprietary materials.
SMS Messaging, Inc agrees to maintain
as confidential your e-mail, phone, fax, physical mailing addresses, instant
message handles and pager list(s). SMS Messaging, Inc agrees not to compile, buy, sell,
rent, rent or trade your e-mail, phone, fax, physical mailing addresses, instant
message handles or pager list(s), or send unauthorized emails, instant messages,
wireless text messages (SMS), direct mail, voice messages or faxes to any
individual or entity on your list(s). SMS Messaging, Inc further agrees not to use your
customer list(s) or any other customer information for any other purposes than
those intended with the Service. Your customer information shall not be shared
with any other third parties unless required by law. SMS Messaging, Inc will provide you
with reasonable advance notice prior to disclosing confidential information on
this basis and agrees to stipulate to any orders necessary to protect said
information from public disclosure.
2.5 Restrictions.
SMS Messaging, Inc maintains 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 SMS Messaging, Inc
has full discretion to block the uploading of any e-mail address which it has
placed on such a list, and will not be liable for the blocking of any such
address from any customer database.
You shall not: (1) use or
copy SMS Messaging, Inc�s platform, network, marks or web site or its associated
documentation except as provided in this License Agreement; (2) modify or merge
SMS Messaging, Inc�s platform, network, marks or web site or its associated documentation;
(3) publish, display, disclose, rent, lease, modify, loan, distribute, create or
otherwise make available the derivative works based on SMS Messaging, Inc�s platform,
network, marks or web site or its associated documentation or any part thereof,
in whole or in part, to any other person or entity; (4) remove, obliterate, or
cancel from view any copyright, trademark, confidentiality or other proprietary
notice, mark, or legend appearing on SMS Messaging, Inc�s platform, network, marks or web
site or its associated documentation; (6) reverse engineer, decompile,
translate, adapt, or dissemble SMS Messaging, Inc�s platform, network, web site or its
associated documentation, nor shall you attempt to create the source code from
the object code for SMS Messaging, Inc�s platform, network, or web site or its associated
documentation; (7) sublicense or assign the license for SMS Messaging, Inc�s platform,
network, marks or web site or its associated documentation; and (8) copy these
terms and conditions or this License Agreement for you and your customers� own
use. You shall have the right to copy specific sections as a means of complying
with such section in your agreements with its independent contractors, e.g.,
your customers.
You must include the
relevant subscribe/unsubscribe information (as well as a physical address for
the CAN SPAM act and an abuse link to SMS Messaging, Inc�s abuse system) provided by
SMS Messaging, Inc in each message you send using SMS Messaging, Inc�s email platforms. You shall also
honor in a timely manner all unsubscribe requests sent directly to you from
those who elected not to use SMS Messaging, Inc�s automated subscribe/unsubscribe features,
regardless of how harsh or unpleasant the unsubscribe request may be.
You shall not use SMS Messaging, Inc
or its networks to:
Although SMS Messaging, Inc has no
obligation to monitor the content provided by you or your use of the Services,
it may do so and may remove any such content or prohibit any use of the Services
SMS Messaging, Inc believes may be (or is alleged to be) in violation of the foregoing,
provided that SMS Messaging, Inc provides you with reasonable notice prior to taking such
action.
2.6. �No Spam" and Privacy Policies
You represent, covenant and
warrant that you shall use the Services only in compliance with this Agreement,
the federal CAN-SPAM Act of 2003 and all other applicable laws (including but
not limited to policies and laws related to spamming, privacy, obscenity or
defamation).
In the event you use the
Service to conduct telemarketing activities, you shall warrant to SMS Messaging, Inc that
you will take all required actions necessary to comply with applicable state and
federal �DO NOT CALL" and telemarketing registration statutes and regulations,
and you shall not use the Service in a manner which will result in a violation
of any laws or regulation respecting such Service, including but not limited to
the Federal Telephone Consumer Protection Act, 27 U.S.C. � 227, et seq..
You shall use SMS Messaging, Inc only
for �opt-in" lists, lists in which the recipient has voluntarily signed up to be
on your list and has not requested to be unsubscribed. Any messages sent to
users who did not request to be on your or your customers� lists, whether
purchased or otherwise obtained without the recipients� consent, shall be deemed
as �Spam" and may result in termination of your account without refund and legal
action, including the pursuit of damages, against you for violating our �No
Spam" policy.
You shall also agree to
abide by and display a Privacy Policy or link to a Privacy Policy on your signup
page. You shall either (1) use the Privacy Policy provided by SMS Messaging, Inc (attached
as Exhibit D) or (2) use a Privacy Policy that contains the same provisions, or
their equivalent, as the Privacy Policy that is provided by SMS Messaging, Inc. Any
violation of this Privacy Policy may result in termination of your account
without refund and the commencement of legal action against you. You agree to
indemnify and hold SMS Messaging, Inc harmless from any damages and claims arising from any
violation of this policy.
SMS Messaging, Inc is compliant with
the CAN-SPAM laws and enforces such practices for all of its customers. SMS Messaging, Inc
also works closely with the major anti-spam organizations such as Mail Abuse
Prevention System (MAPS), SpamCop, Spamhaus, and Spam Prevention Early Warning
System (SPEWS) to ensure that all of its customers are not in violation of
spamming policies.
You understand that e-mails
that are sent through SMS Messaging, Inc�s Services may generate abuse complaints from
recipients. As a matter of privacy, SMS Messaging, Inc does not have to share with you the
e-mail addresses, instant message handles, phone numbers, pager numbers or fax
numbers of those who complain about your campaigns.
2.7. Addressing Spam Complaints
You are responsible for
ensuring that your campaigns do not generate a number of abuse complaints in
excess of industry standards. An excessive number of such complaints may result
in the termination of your account. SMS Messaging, Inc, in conjunction with you, shall
mutually determine whether your level of abuse complaints is within industry
norms. In the event that your use of SMS Messaging, Inc�s Services results in you being
listed on SpamCop or any other anti-spam organization, SMS Messaging, Inc reserves the
right to require that you utilize a �double opt in" feature which will require
newly added users to verify their assent to receiving your communications after
they have been added to your database(s).
ISP FBL Complaints. SMS Messaging, Inc
is enrolled in feedback loops (�FBL") which are offered by internet service
providers to send back complaints when an end user designates the message as
�spam." The internet service provider tabulates the amount of complaints per
campaign and assesses penalties when a campaign exceeds a particular threshold
amount which is a percentage of the campaign�s volume. If your campaign exceeds
FBL complaint thresholds, you shall be responsible for the following charges:
These charges shall be
payable by you within 30 days of receipt of invoice from SMS Messaging, Inc.
Abuse E-Mail Complaints.
Abuse complaints are also transmitted via e-mail to
abuse@ or via the SMS Messaging, Inc corporate web site when a
message recipient follows the �Complain" link located at the footer of each
client e-mail message (http://www./abuse.) For each such complaint, you shall be
responsible for the following charges: $10 per each complaint; or $100 per
complaint if you cannot show proof of an opt-in for the complainant (also calls
for immediate hold and consultation with possible termination). These charges
shall be payable by you within 30 days of receipt of invoice from SMS Messaging, Inc.
Spamcop. SpamCop (located
at
www.spamcop.org) is one of the largest Blacklists on the Internet.
An excessive number of complaints to SpamCop may result in a blockage of a
mailing IP address and a disruption of SMS Messaging, Inc�s Services to other customers.
For any complaint submitted to SpamCop, SMS Messaging, Inc, SMS Messaging, Inc�s hosting company or
received from SpamCop relating to any messages transmitted by you shall be
responsible for the following charges:
These charges shall be
payable by you within 30 days of receipt of invoice from SMS Messaging, Inc.
2.8 Enforcement.
You acknowledge that upon
your breach of Sections 2.3, 2.4, 2.5, or 2.6 SMS Messaging, Inc shall be entitled to
equitable relief to protect its interests, including preliminary and permanent
injunctive relief and you further agree to waive any right or claim to which you
may be entitled to immunity or exemption from liability. SMS Messaging, Inc may also seek
damages as a result of such breach.
2.9 Term and Termination.
The length of your
agreement with SMS Messaging, Inc will be set by separate written agreement. You understand
that this Agreement is effective from the date you create an account with
SMS Messaging, Inc and shall continue until the contract is complete or the account is
terminated either by you or by SMS Messaging, Inc. SMS Messaging, Inc MAY CONTAIN A DISABLING DEVICE
THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OF THIS LICENSE. YOU WILL
NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE
PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO
LONGER BE USED. SMS Messaging, Inc may terminate this Agreement immediately if: i) you fail
to comply with the terms of this Agreement; ii) your account is dormant for a
period of 60 consecutive days; iii) the SMS Messaging, Inc Service is discontinued; or iv)
you have an overdue balance for any Services or products purchased on or through
www.. If SMS Messaging, Inc terminates your account, you must immediately stop
using SMS Messaging, Inc and associated documentation, including sample documents provided
within SMS Messaging, Inc, and all copies you made of them.
Agreements may only be
terminated by providing written notice to SMS Messaging, Inc�s billing department
(billing@). Cancellation must be completed prior to the next billing
period which occurs on the first (1st) of the month. If account is not cancelled
by the first (1st), all Service fees will continue to be charged. You will not
be entitled to any refund of fees paid. In the event that you are on a contract
and terminate said contract before it has completed, you agree to pay an early
termination fee equal to the higher of a) the amount remaining on the contract,
or b) the difference between the highest equivalent non-contract monthly rate
charged and the amount you actually paid for each month of Service under the
agreement. SMS Messaging, Inc may terminate this Agreement or the Services, disable your
account or put your account on inactive status, in each case at any time with or
without cause, and with or without notice. SMS Messaging, Inc shall have no liability to
you or any third party because of such termination or action. Should SMS Messaging, Inc
take any such action, it will delete any of your archived data within 30 days
after the date of termination. After termination, SMS Messaging, Inc will provide upon
request the list of unsubscribe requests from within 30 days of your last email
campaign, but will not process said requests. If your account is classified (at
SMS Messaging, Inc�s sole discretion) as inactive for over 60 days, SMS Messaging, Inc has the right
to permanently remove your subscriber data. SMS Messaging, Inc will attempt to contact you
via email prior to taking any permanent removal actions.
2.10. Risks.
SMS Messaging, Inc and its platforms
may have errors and may produce unexpected results. Except as otherwise
expressly provided herein, you agree that any use of SMS Messaging, Inc�s platforms will be
entirely at its own risk. You agree to backup you information and take other
appropriate measures to protect programs and data. You may not allow a third
party to use SMS Messaging, Inc�s account and agree to indemnify and hold SMS Messaging, Inc harmless
from any damages or claims arising from such use by any third party. You
specifically understand that you assume the risk of your messages actually
reaching their destination, and that SMS Messaging, Inc does not and cannot guarantee the
ultimate delivery of your messages.
3.1 Disclaimer of Warranty.
EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, SMS Messaging, Inc�S SERVICES ARE PROVIDED ON AN �AS IS" BASIS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SMS Messaging, Inc DISCLAIMS ALL OTHER WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SMS Messaging, Inc DOES
NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS PLATFORM WILL MEET ANY
REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT SMS Messaging, Inc WILL OPERATE ERROR FREE, OR
IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN SMS Messaging, Inc�S PLATFORM
WILL BE CORRECTED, OR THAT SMS Messaging, Inc�S PLATFORM IS COMPATIBLE WITH ANY OTHER
PARTICULAR PLATFORM.
YOU SPECIFICALLY UNDERSTAND
THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF SMS Messaging, Inc, THAT E-MAILS,
INSTANT MESSAGES, TEXT MESSAGES, PHONE MESSAGES AND FAX MESSAGES MAY NOT REACH
THEIR INTENDED RECIPIENTS, AND UNDERSTAND THAT SMS Messaging, Inc CANNOT AND DOES NOT
ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF YOUR MESSAGES.
If you receive a claim that
the use of the Services infringes a patent, copyright or other intellectual
property right, you must promptly notify SMS Messaging, Inc in writing. SMS Messaging, Inc, at its own
expense and option, may (i) defend and settle such claim, (ii) procure you the
right to use the platform, (iii) modify or replace the platform to avoid
infringement; or (iv) refund the license fees you paid, if applicable. Subject
to Section 3.3 below, these are your sole and exclusive remedies for any and all
claims you may have against SMS Messaging, Inc arising out of or in connection with the use
of SMS Messaging, Inc�s platform, whether made or suffered by you and whether based in
contract or in tort.
3.2 Limitations of Liability.
TO THE EXTENT PERMITTED BY
LAW, YOU AGREE THAT IN NO EVENT WILL SMS Messaging, Inc BE LIABLE TO YOU FOR ANY INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL,
PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE
SMS Messaging, Inc�S SERVICES, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF SMS Messaging, Inc HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT SMS Messaging, Inc IS
FOUND LIABLE FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM
OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY OR OTHERWISE), THE LIABILITY OF SMS Messaging, Inc TO YOU WILL BE LIMITED TO THE
AMOUNT CLIENT PAID FOR THE SERVICES.
3.3 Indemnification.
You (the �Indemnitor"), at
your own expense, shall indemnify, defend and hold harmless SMS Messaging, Inc, its
affiliates and their employees, representatives, agents and affiliates (the
Indemnitee"), against any claim, suit, action, or other proceeding brought
against the Indemnitee or any affiliate based on or arising from your use of the
Services, including but not limited to a claim that any action violates any of
the restrictions or terms and conditions, such as violation of the Privacy
Policy or using SMS Messaging, Inc platforms to send Spam, as set forth in this Agreement,
infringes in any manner any intellectual property right of any third party or
contains any material or information that is obscene, defamatory, libelous,
slanderous, that violates any person�s right of publicity, privacy or
personality or has otherwise resulted in any tort, injury, damage or harm to any
person; provided, however, that in any such case: (i) the Indemnitees provides
the Indemnitor with prompt notice of any such claim; (ii) the Indemnitee permits
the Indemnitor to assume and control the defense of such action, with counsel
chosen by Indemnitor (who shall be reasonably acceptable to the Indemnitee); and
(iii) Indemnitor does not enter into any settlement or compromise of any such
claim without the Indemnitee�s prior written consent, which consent shall not be
unreasonably withheld. The Indemnitor agrees to pay any and all costs, damages,
and expenses, including, but not limited to, reasonable attorneys� fees and
costs awarded against or otherwise incurred by the Indemnitee or any affiliate
in connection with or arising from any such claim, suit, action or proceeding.
It is understood and agreed that SMS Messaging, Inc does not intend and will not be
required to edit or review for accuracy or appropriateness any content or
material that client or its organization distributes using the your platforms,
networks or databases.
3.4 Damages.
You understand that the
sending of unsolicited messages may result in fines, penalties, and the blocking
of servers by spam filters and other spam preventing measures, and you shall
reimburse SMS Messaging, Inc for any fines or penalties assessed against, and shall be
liable for damages caused to SMS Messaging, Inc�s server which is blocked as a result of
your use of SMS Messaging, Inc�s Services covered herein. In addition to penalties which
SMS Messaging, Inc may impose if your campaign results in a server being blocked, SMS Messaging, Inc
shall have the right to charge your account for any time spent by SMS Messaging, Inc agents
or employees addressing issues arising out of the unlawful use (or use in any
manner inconsistent with the terms of this Agreement) of SMS Messaging, Inc�s Services, and
that such damages may include, without limitation, direct, indirect, special,
incidental, cover, reliance and/or consequential damages.
4.1 Authorization
By using SMS Messaging, Inc�s
Services, you expressly agree that SMS Messaging, Inc is permitted to bill you the
applicable fees and any other charges for the Services provided by SMS Messaging, Inc. All
fees and charges are nonrefundable and there are no refunds or credits for
partially used periods. SMS Messaging, Inc may change the fees and charges in effect, or
add new fees and charges from time to time.
4.2 Payment Terms
Payment is due in full upon
receipt of the invoice. If the invoice is thirty (30) days past due, SMS Messaging, Inc
may, to the extent permitted by the law of the State of California, charge you a
late fee of up to 1.5 percent per month (18 percent annually). SMS Messaging, Inc may also
charge you for any collection agency fees that SMS Messaging, Inc uses to collect from you.
4.3 Automated Credit Card Payments
SMS Messaging, Inc permits you to set
up an automated payment system by establishing a credit card account from which
payments are debited. You agree that SMS Messaging, Inc shall automatically bill your
credit card account on the 1st day of each month after the commencement of your
Services contract with SMS Messaging, Inc. If your credit card is declined on the 1st day
of the month when payment is due, you may log onto your account, but will be
unable to send any messages via SMS Messaging, Inc�s platform. If your credit card is also
declined on the 10th day of the month when payment is due, SMS Messaging, Inc will assess a
$10 late fee. If your credit card is then declined on the 25th day of the month
when payment is due, SMS Messaging, Inc will assess an additional $15 late fee. SMS Messaging, Inc
reserves the right to terminate your account if your credit card is declined in
the next billing cycle. You shall remain responsible for any uncollected
amounts.
4.5 Mobile-Terminated/ Mobile-Originated Messages
A mobile-terminated ("MT")
message is any SMS message sent by SMS Messaging, Inc to an end-user using SMS Messaging, Inc�s
platform. A mobile-originated ("MO") message is any SMS message sent by an
end-user back to SMS Messaging, Inc. For any campaign, your monthly allotted plan includes
only MT messages. Each MT message transmitted to an end-user constitutes a
separate message regardless of the timing of the transmission or identity of a
recipient. You will not be charged for MO messages.
5.1 Miscellaneous.
This license and the rights
granted under this License Agreement may not be transferred or assigned by you.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of California, United States of
America without regard to its principles of conflict of laws. The parties
consent to the jurisdiction of the courts of the State of California and the
federal courts located within the State of California, County of Los Angeles,
and any disputes shall be litigated solely in those courts. In any action or
proceeding to enforce rights under the Agreement, the prevailing party will be
entitled to recover its costs and attorneys� fees. If any clause, sentence or
other provision of this Agreement is held to be illegal, invalid or
unenforceable, the remaining clause, sentence, or other provisions shall remain
in full force and effect. Neither of the parties shall be liable for failures
due to causes beyond their control, including, but not limited to, acts of God,
acts of government, fire, flood, strikes, or acts or omissions of carriers. You
warrant that you shall comply with all applicable laws and regulations that
relate to the performance of this Agreement.�
5.2 No Agency.
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 SMS Messaging, Inc in any respect whatsoever.
THIS AGREEMENT IS EXPRESSLY
MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE
EXPORT FROM THE UNITED STATES OF AMERICA OF SMS Messaging, Inc OR INFORMATION ABOUT SUCH
SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED
STATES OF AMERICA . YOU SHALL NOT EXPORT SMS Messaging, Inc, THE DOCUMENTATION, OR
INFORMATION ABOUT SMS Messaging, Inc, AND THE DOCUMENTATION WITHOUT CONSENT OF SMS Messaging, Inc AND
COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
Any waiver by either party
of any default or breach hereunder shall not constitute a waiver of any
provision of this Agreement or of any subsequent default or breach of the same
or a different kind. This Agreement constitutes the entire Agreement, supersedes
all prior agreements, and changes are only effective when in writing and signed
by both parties.
5.3 Records.
You will ensure that anyone
in your organization or affiliated entities who uses SMS Messaging, Inc (accessed either
locally or remotely) does so only for your authorized use and complies with the
terms of this Agreement.
5.4 Assignment of Accounts
SMS Messaging, Inc reserves the right
to assign its IP and/or client�s accounts and data to another company of equal
or greater capabilities and capacity to handle client�s account. In the event
that SMS Messaging, Inc merges with or is acquired by another company or companies, all of
its client accounts shall be automatically transferred to said new company or
companies.
5.5 Non-Solicitation
During the term of this
Agreement and for a period of two (2) years thereafter, neither you nor any
employee, officer, director, representative, lawyer, agent, or affiliate of
yours will solicit, encourage, or cause others to solicit or encourage any
employees of SMS Messaging, Inc to terminate their employment with Company. |