TEXTLINE TERMS OF SERVICE
Last Updated: June 15, 2023
Effective July 10, 2023
PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF OUR “PLATFORM” AS DEFINED BELOW.
THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US OR OUR AGENTS AND REPRESENTATIVES (INCLUDING ANY THIRD PARTY BENEFICIARY OF THESE TERMS) ON AN INDIVIDUAL BASIS ONLY, AND BY USING THE PLATFORM AND ENTERING INTO THESE TERMS, YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN ANY COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT (INCLUDING AS A CLASS REPRESENTATIVE OR MEMBER OF ANY PUTATIVE CLASS).
YOUR SUBSCRIPTION IS SUBJECT TO “AUTO-RENEWAL” AND CERTAIN LIMITATIONS OF LIABILITY AND INDEMNITY OBLIGATIONS, AS MORE SPECIFICALLY PROVIDED BELOW.
Introduction
These Terms of Service (the “Terms”) govern the individual, company and/or organizational (collectively, “you,” “your” or “Customer”) purchase and use of any of our services, including your use of the various text, SMS (also known as “Short Message Service”), and MMS (also known as “Multimedia Messaging Service”) messaging services (collectively, the “Services”) and other features available through our website (https://www.textline.com) (including both mobile and online versions) and our mobile app (collectively, the “Site”), any SMS/MMS “long codes” or “short codes” that may be provided or made available to you in conjunction with your use of the Services or the Site (collectively, “SMS/MMS Codes”), and the software, technical and communications platform(s) available on and through the Site (collectively, the “Platform”). The Platform and Services are made available by Textline, Inc. (“Provider,” “we,” “our” or “us”).
If you want to use the Platform or our Services or access the Site, then carefully read these entire Terms (including all links to details), as they constitute a binding written legal agreement between you and us and they affect your legal rights and obligations. The business realities associated with operating the Platform and providing the Services are such that, without the conditions that are set forth in these Terms—such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and arbitration of certain disputes—we would not make the Platform or the Services available to you.
In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Platform or to the Services offered via the Platform or otherwise (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. By using and/or continuing to use or access the Platform or the Site, including all Services offered therein or thereby, you are agreeing to be legally bound by these Terms and any applicable Additional Terms. Your continued use the Platform or Site or our Services is an affirmation of your consent to these Terms, any Additional Terms, and any changes thereto (see Updates to Terms section below for more information).
Description of the Platform and Services
Through the Platform and Services, we provide notification and messaging services that allow paid subscribers to contact and send information to their user database through mobile text messaging services and other mobile communication systems. We have made efforts to make the Platform and Services are Systems and Organization Controls 2 (“SOC 2”) and Health Insurance Portability and Accountability Act (“HIPAA”) compliant but you are ultimately responsible for ensuring compliance with all laws, rules and regulations applicable to you and you organization. After purchasing a subscription to the Platform, you can communicate with your customers utilizing the dashboard. As part of the Services and Platform, we provide businesses and organizations with a variety of tools to input names, mobile phone numbers, email addresses, and other information that have been collected by Customer on an opt-in basis and to help you import such customer data (collectively, “Customer Data”). However, contact information should be imported only if your users have given you consent to receive a specified type of messaging from you (as required by applicable law or your privacy policy). Further, Provider does not initiate, send or generate any messages for you or on your behalf; rather, the messages are initiated by you using our Platform at your sole discretion, subject to these Terms. For example, Provider does not draft the content of your messages, control when the messages are sent or to whom, or provide or generate any phone numbers to be messaged through the Platform or Site. All of these functions must be manually performed by you and are not automated. We cannot and will not send any messages randomly or send recurring messages, and cannot generate random or sequential phone numbers for you. We will not provide you with any legal advice on how to comply with applicable law using the Platform, and nothing on the Site or the Platform should be taken as providing such advice. You will be solely responsible for complying with applicable law under these Terms.
As further specified in Section 6 below, the Platform may NOT be used for sending any unsolicited messages except with our prior written approval and may NOT be used for sending any messages that violate applicable law or these Terms. You agree to our Privacy Policy and anti-spam policies described in these Terms and agree to enforce the indicated permission-based marketing practices with anyone using your account as required by law. You agree to assume full responsibility and accept the legal consequences of any action by anyone using your account and will indemnify us in relation to same, according to these Terms. We reserve the right to suspend or terminate your account at any time, at our sole discretion, and without prior warning or refund if your account activity is reasonably believed to violate any term in these Terms or applicable law. Violation of applicable anti-spam laws and regulations, regardless of whether specifically described below, may also result in third-party legal actions against you. Provider also reserves the right to terminate your access to the Platform and Services at any time and immediately if we believe that your conduct is harmful to the interests of Provider or the “Provider Parties” as defined below. We reserve the sole discretion and right to permanently delete any Customer Data stored in your account immediately after your account termination and any of your assigned SMS/MMS Codes may be reassigned by us to other users.
1. Terms Applicable to the Purchase of Subscriptions to the Platform and Services
A. Generally. To purchase access and use of the Platform and gain access to our Services, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence and authorized to bind the specific entity on whose behalf you are accessing and using the Platform or obtaining Services (if applicable). Prior to the purchase of access to the Platform or our provision of the Services, unless we make alternative payment arrangement with you, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For the specific subscription to the Platform/Services which you order, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. Provider or our third party credit card/payment processor will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please be aware that the current text/SMS standard permits only 160 characters in an individual message (e.g., standard text and hyperlinks). The submission of a seemingly-valid text/SMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid text/SMS message or broadcast exceeding 160 characters will yield distinct, individually debited messages, each of 160 characters or less, together comprising the original message. Please be aware that the current MMS standard permits only 1600 characters in an individual message or certain types and limited sizes of multimedia messages (e.g., JPEG, PNG, TIFF, GIF files). The submission of a seemingly-valid MMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid MMS message or broadcast exceeding 1600 characters will yield distinct, individually debited messages, each of 1600 characters or less, together comprising the original message. You can obtain the status of your account at any time through the online interface. Delivery and deliverability rates, which are the responsibility of third party carriers and not Provider, for any text/SMS/MMS messages sent using the Platform and Site may vary.
B. Subscription Term & Termination. Except in the event of a free trial offer, your subscription to the Platform (including all Services available through the Platform and otherwise) will commence as of the date your payment for a subscription is received by Provider. Your subscription (as applicable) will continue in full force for the length of the term you specifically purchased and if no specific length of time is specified will be on a month-to-month basis until such time as the Customer cancels the subscription as further explained below and will be limited by the number of messages/month identified on the Site when you purchase your subscription (the “Subscription Term”). In the event that a Customer cancels a subscription in the middle of their Subscription Term, the Customer will not be entitled to receive a refund for the unused portion of the remainder of that Subscription Term. Provider will have the right, upon written notice to Customer, to terminate these Terms, and suspend a Customer’s access to their subscription to the Platform and Services, if: (a) any Customer fails to pay Provider any amount due to Provider under these Terms; and/or (b) the Customer materially breaches any term or condition of these Terms. Provider shall have the right to terminate these Terms and immediately suspend a Customer’s access to the Platform and Services and/or suspend the provision of Services for non-payment. To the extent that your credit card on file with Provider is declined for any reason, Provider reserves the right, without notice, to immediately close your account and delete any data stored in your account. Upon the expiration or termination of these Terms for any reason, Customer’s access to, and use of, the Platform and Services will terminate and you will no longer be charged for continued access. Customer acknowledges that following termination it will have no further access to any Customer Data input into the Platform or Services, and that Provider may delete any such data as may have been stored by Provider at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
C. Free Trials/Promotional Offerings. We may offer promotional trial subscriptions to access the Platform and Services for free for a limited time or at special discounted prices. If you sign up for a trial use, your rights to use the Platform and Services are limited by the terms of such trial and will terminate or renew on the terms of your trial arrangement and/or any applicable Additional Terms. Please be aware that when you sign up for a free trial, you may be required to provide your credit card number and Provider will confirm your credit card is valid. When we process your credit card, some credit card companies may place a temporary hold on your account for your first payment. Please contact your credit card company if you have questions. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
D. Auto-Renewal of Membership. Your subscription to the Platform and Services will AUTOMATICALLY RENEW at the end of your Subscription Term continuously and indefinitely without action by the Customer, and the membership fee is charged to the Customer at the time of renewal. To the extent your Subscription Term is on a month-to-month basis, your subscription will automatically renew one (1) month from your “go live” date and every month thereafter until you cancel as set forth in Section 1(E) below. A Customer whose fee (as posted on the Platform at time of sign-up) has been paid is entitled to all privileges included in the membership until the membership is cancelled by the enrolled Customer as set forth in the paragraph below. By providing your payment method information for your subscription, you are agreeing to pay a subscription fee, that will automatically renew, at the then current rate, unless you cancel prior to the expiration of the current Subscription Term, and any applicable taxes and service fees (collectively, “Fees”). The Fees will be charged to your original payment method automatically at the beginning of your Subscription Term, and at the beginning of each renewal Subscription Term thereafter on the calendar day corresponding to the commencement of your current Subscription Term, unless you cancel your subscription or your account is suspended or terminated pursuant to these Terms. The renewal Subscription Term will be the same length as your initial Subscription Term unless otherwise disclosed to you at the time of sale. The rate for the renewal Subscription Term will be the then current subscription-rate. The Fees charged to your payment method may vary from Subscription Term to Subscription Term due to changes in your subscription plan or applicable taxes, and you authorize Provider to charge your payment method for these amounts. Provider reserves the right to change the pricing of subscription at any time at its discretion. In the event of a pricing change, Provider will post the new pricing on the Platform and/or Site and will make reasonable attempts to notify you of pricing changes by sending an email to the address you have registered for your account, but said notification make not occur until after a price change has already been implemented. You agree that we may change the pricing we charge you for your subscription and any Services offered in your subscription package by providing you with notice either through an electronic communication to you from us or by us posting or otherwise disclosing the revised pricing on the Platform and/or Site, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically (either directly or via the Platform or Site) satisfy any legal requirement that such communications be timely and in writing. You consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to you or through posting or otherwise disclosing the revised pricing on the Site. If you do not wish to accept a price or subscription package change made by us, you may cancel your subscription as described below, otherwise you will be deemed to have consented to the price/subscription package change and authorize Provider to charge the new Fees to your payment method. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify Provider in writing by email at support@textline.com within sixty (60) days after they first appear on an account statement; otherwise, you will have agreed to the new pricing.
E. Termination/Cancellation of Subscription. A Customer has the right and ability to upgrade/downgrade their subscription to the Platform at any time upon using the functionality available in their account settings and to cancel their subscription to the Platform at any time by emailing support@textline.com or utilizing the chat feature available through the Platform. If you are unable to log-in to your account, you may contact us by email at support@textline.com. Unless in the instance we offer a thirty (30) day money back guarantee, cancellation of your subscription to access the Platform and Services any time after purchase will result in forfeiture of the remainder of your subscription fee. To avoid a late cancellation fee or forfeiture of the subscription renewal fee, your subscription should be cancelled prior to the end of the then current Subscription Term. Upon cancellation or non-payment by you, Customer will immediately lose access to their account, including areas of the Platform and utilization of our Services designated for subscribers only, any Customer Data stored in your account is immediately deleted and any of your assigned SMS/MMS Codes may be reassigned by us to other users. These Terms may be terminated by either party: (i) if the other party is in material breach of these Terms and the breach is not cured within thirty (30) days after written notice of the breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. We reserve the right to immediately suspend your access to the Platform or provision of our Services if your credit card is declined or you have undisputed amounts more than ten (10) business days past due. We also reserve the right to suspend your access to the Platform or provision of the Services if we reasonably determine that you or any Authorized Users (defined below): (i) use of the Platform disrupts or poses a security risk to the Platform, may harm our systems or may subject us or any third-party to liability; (ii) are using the Platform (including our Services) for fraudulent or illegal activities; or (iii) are using the Platform (including our Services) in breach of these Terms. Upon expiration or receipt of notice of termination of these Terms, you will cease using and accessing the Platform, the Services and any licenses granted under these Terms will immediately terminate.
F. Methods of Payment, Credit Card Terms and Taxes. All payments must be made through a credit or debit card or other payment mechanism we accept at the time you sign up. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms to determine your rights and liabilities as a cardholder. You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT US, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all Fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Provider of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Provider does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Provider or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. Provider shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase. Though we use security measures to protect your payment information, we do not guarantee its security, and you are providing it at your own risk. We do not have access to your full credit card number and you are not to send it to us in any form of communication.
G. Refund Policy. All purchase transactions made through the Platform are subject to Provider’s refund policy in effect at the time of purchase. Currently, Provider’s refund policy is to NOT offer any refunds for any subscriptions purchased through the Platform, except in its sole and absolute discretion.
H. No Responsibility to Sell Mispriced Services. We do our best to describe every product or service offered on this Platform as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Platform is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, product or service, Provider shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge.
I. Use of “Payments” Functionality. To the extent you utilize the Platform’s “Payments” feature for your customers, you acknowledge that processing services for you are provided by Stripe and are subject to the Stripe Connected Account Agreement (available at https://stripe.com/legal/connect-account), which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms or otherwise using the “Payments” feature available through the Platform, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of you enabling payment processing services through Stripe, you agree to provide us with accurate and complete information about you and your business, and you authorize us to share it and transaction information related to your use of the payment processing services provided by Stripe.
2. Opening and Terminating Accounts
In order to access or use the features and Services available through the Platform, you will be required to first register for an account through our online registration process and purchase a subscription as described in Section 1 above. The Platform’s practices governing any resulting collection and use of your personal information are disclosed in the Privacy Policy. By using the Platform, you not only agree to these Terms but also acknowledge and accept the Platform’s Privacy Policy and consent to the collection and use of your data in accordance with the Privacy Policy. If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity or is offensive. We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current and complete; (iii) You are solely responsible for all activities that occur under your account, password and username—whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device (defined below) so that others may not access any password protected portion of the Platform using your name, username or password; (v) You will immediately notify us of any unauthorized use of your account, password or username, or any other breach of security; and (vi) You will not sell, transfer or assign your account or any account rights. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits—all in our sole discretion, for any reason, and without advance notice or liability.
Customer is responsible for all activity occurring under it and its Authorized Users accounts and logins. Customer shall: (i) use the Services and Platform solely for its internal business purposes and not for the benefit of any third parties, except as permitted by Provider in writing; (ii) use the Services and Platform only in accordance with these Terms; (iii) comply, and cause its Authorized User’s to comply, with these Terms; (iv) obtain all required consents from third parties with whom Customer has a business relationship (e.g. network providers or outsourced IT resource providers) necessary for Customer and its Subcontractors (defined below) to provide the Services and Platform; (v) prior to providing personal data to Provider, provide to, and obtain and maintain from, third parties (including Customer’s contacts, resellers, distributors, administrators and employees) all notices and consents required for Provider and its Subcontractors to process personal data under applicable law; (vi) keep a secure password for use of the Services and Platform and require each Authorized User to keep the password confidential; (vii) promptly notify Provider of any unauthorized access or use of the Services and Platform, passwords, authentication credentials or a security event; (viii) comply with all local, state, federal and foreign laws applicable to Customer’s use of the Services and Platform; (ix) select, purchase, configure, operate and maintain its equipment, hardware, websites, network and Internet, data and telephone connections necessary for use and support of the Services and Platform; and (x) install and use upgrades to Services and Platform if required by Provider.
<span id="section3">3. Content, Ownership and Limited License</span>
A. Content. The Platform contains a variety of: (i) materials and other items relating to Provider, Provider’s Platform, and similar items from our licensors and other third parties, including all software, layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Platform, and the compilation, assembly, and arrangement of the materials of the Platform and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks and/or trade identities of various parties, including those of Provider (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
B. Ownership. The Platform (including past, present and future versions), the Content and SMS/MMS Codes are owned or controlled by Provider and our licensors and certain other third parties. All right, title and interest in and to the Content available via the Platform is the property of Provider or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent or other intellectual property and unfair competition rights and laws to the fullest extent possible. Provider owns the copyright in the selection, compilation, assembly, arrangement and enhancement of the Content on the Platform.
<span id="section3c">C. Limited License.</span> During the Subscription Term (defined below), Provider will make the Platform and Services (including your designated SMS/MMS Codes) available to you on a non-exclusive basis for your use in accordance with the terms of these Terms or any Additional Terms. Subject to your strict compliance with these Terms and the Additional Terms and your payment of the Fees, Provider grants you a limited, non-exclusive, revocable, non-assignable, personal and non-transferable license to download (temporary storage only), display, view and use the Platform (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your internal business use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any of the Platform, Services, Content or SMS/MMS Codes, and (ii) may be immediately changed, revised, suspended or terminated for any reason, in Provider’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Platform, Services and Content, subject to certain Additional Terms. You acknowledge Provider may use a third-party hosting providers to host any portion(s) of the Platform and/or Services.
4. Platform, Services and Content Use Restrictions
A. Platform/Services Use Restrictions. You agree that you will not: (i) engage in any activities through or in connection with the Platform that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing or abusive, or that violate any right of any third party, or are otherwise objectionable to Provider; (ii) reverse engineer, decompile, disassemble, reverse assemble or modify any Platform source or object code or any software or other products, Services or processes accessible through any portion of the Platform; (iii) engage in any activity that interferes with a user’s access to the Platform or the proper operation of the Platform, or otherwise causes harm to the Platform, Provider or other users of the Platform; (iv) interfere with or circumvent any security feature of the Platform or any feature that restricts or enforces limitations on use of or access to the Platform or the Content; (v) attempt to gain unauthorized access to the Platform, other computer systems or networks connected to the Platform, through password mining or any other means; (vi) make the Platform and Services available to anyone other than your employees and Authorized Users; (vii) sell, resell, sublicense, share, rent or lease the Platform or Services to any third party; (viii) knowingly use the Platform or Services to store or transmit infringing, libelous or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights; (ix) use the Platform to store or transmit malicious code; (x) interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein; (xi) access the Platform for purposes of monitoring its availability, performance, reliability or functionality, or for any other benchmarking or competitive purposes; (xii) violate our Anti-Spam Policy; (xiii) otherwise violate these Terms or any Additional Terms. You shall be responsible for any breach of these Terms by your employees or any other users that have been authorized by you (each, an “Authorized User”); (xiv) access the Platform or Services to build a competitive product or service; (xv) modify, copy, duplicate, download, reverse engineer, disable, decompile, translate, disassemble, create any derivative work of or otherwise attempt to extract any or all of the source code, algorithms, proprietary technology or analytics from, the Platform or Services; or (xvi) license, sublicense (if a license is granted), sell, resell, rent, lease, lend, transfer, assign, distribute, time share, offer in a service bureau or commercially exploit the Services or Platform, use the Services to provide hosting services to third-parties or otherwise make the Services or Platform available to any third-party other than Authorized Users as permitted under these Terms. Further, you shall: (a) be responsible for compliance with these Terms by your employees and any other users accessing the Platform and Services using username(s) and password(s) furnished to you; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Services, and notify us promptly of any such unauthorized access or use; and (c) use the Platform and Services only in accordance with applicable laws, rules and government regulations. Provider shall make access to APIs available as part of the Services to allow you to, for example, send and receive messages, update conversation statuses and read and write to your address book. Provider reserves the right to place limits on access to such APIs (e.g., limits on number of messages). For example, Provider may monitor Customer’s usage of such APIs, limit the number of messages Customer may make, and/or restrict Customer’s ability to update conversation statuses or read and write to Customer’s address book, if Provider believes that Customer’s usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on Provider).
B. Content Use Restrictions. You also agree that, in using the Platform and Services: (i) you will not monitor, gather, copy or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Platform by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool or any other automatic device, utility or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text or page layout); (iii) you will keep intact all Trademark, copyright and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Provider or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Platform, Services and Content. Provider may immediately suspend or terminate the availability of the Platform, the Services and Content (and any elements and features of them), in whole or in part, for any reason, in Provider’s sole discretion, and without advance notice or liability. Delivery and deliverability of text/MMS/SMS messages are not guaranteed by Provider and are the responsibility of third-party mobile carriers.
D. Reservation of All Rights Not Granted as to Content, the Platform and Services. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Platform and Services. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom or otherwise. All rights not expressly granted to you are reserved by Provider and its licensors and other third parties. Any unauthorized use of any Content, the Platform or the Services for any purpose is prohibited.
5. Customer Content
You (on behalf of yourself and your Authorized Users) hereby grant Provider a limited, non-exclusive, non-transferable, worldwide, royalty-free license, during the Subscription Term to: (i) use and distribute any and all messages, data, text, video, photos, audio and all other materials and information (including personal information of your users) which is submitted to us or the Platform by you (or on your behalf), including, but not limited to, your trademarks, trade names and service marks (collectively, “Customer Content”) as necessary for our operation of Platform and provision of the Services; (ii) sublicense the foregoing rights to third parties; and (iii) sublicense the foregoing rights to our subcontractors as necessary to provide the Platform and Services. In addition to and without limitation to terms under the use restrictions set forth in Section 4 above, Provider prohibits any use of the Platform in connection with any of the following types of content, products and services:
A. Customer Data. Customer is and will remain the exclusive owner of all, right, title and interest in and to the Customer Data. Customer grants Provider the right to process, store, access, use, transmit, copy, display, disclose or modify Customer Data, as reasonably necessary for Customer to: (i) provide the Services (including to prevent or address service or technical problems); (ii) verify Customer’s compliance with these Terms; and (iii) improve and enhance its services and solutions in accordance with these Terms. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and means by which Customer acquired the Customer Data and for ensuring that Customer Data complies with these Terms. If Customer knows or learns that any Customer Data violates these Terms, Customer will immediately remove that Customer Data from the Platform. Customer represents and warrants that it has complied with all relevant laws in collecting, using and disclosing the Customer Data. Customer agrees not to provide any health data or similarly sensitive data as part of the Customer Data. Except as set out in this Section or as disclosed in its Privacy Policy, Customer acknowledges that Provider does not exercise any control whatsoever over the content of the Customer Data, and Provider will have no obligation, but reserves the right, to review Customer Data for, without limitation, accuracy, quality, integrity, legality, reliability or appropriateness solely for the purpose of providing the Services. Customer acknowledges that Provider may process certain personal data about the Customer and/or its agents, representatives, employees, or other related third parties for its own purposes including for the purposes of: (i) processing orders; (ii) managing Customer’s account with Provider; and (iii) compiling aggregate statistics of the distribution and use of the Services. Customer may request access to and correction of the personal information or exercise any other rights it may have in respect of this personal data. We agree not to provide to Customer either monetary or other valuable consideration in exchange for the use of personal data and so that our receipt of the Customer Data shall not constitute a sale. More details on Provider’s data processing activities are set out in our Privacy Policy a current version of which is available here. Portions of the Services and Platform may be provided by Subcontractors. Customer will make Customer Data available to Subcontractors as part of Subcontractors providing third-party services. Notwithstanding anything to the contrary herein, Customer agrees that Provider may obtain and aggregate technical and other data about Customer’s use of the Services that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”), and Provider may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including, without limitation, to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Provider customers.
<span id="section6">6. Consents and Legal Compliance for Messaging</span>
The following terms and information constitute an introduction to the concept of spam and the general contours of a responsible, permission-based text marketing campaign. In addition, our <a href="#antispam">Anti-Spam Policy</a> applies to your use of the Platform and is incorporated into these Terms by this reference. This general information is not an exclusive source for applicable laws, guidelines and compliance responsibilities pertaining to your use of the Platform. This Section is not intended to nor shall it be deemed to constitute legal advice. You should consult a lawyer for legal advice on your texting practices. The information herein is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages prior to using the Platform.
For further information, please visit the following websites:
Provider maintains a no-tolerance policy toward spam. Although Provider does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Site and Services. All mobile marketing messages must conform to the latest available best-practice guidelines drafted and published by the MMA (currently available at http://www.mmaglobal.com/policies/consumer-best-practices) and the CTIA (currently available at https://api.ctia.org/wp-content/uploads/2019/07/190719-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf), which you agree to review and abide by before using the Platform. For example, and without limitation, these guidelines may recommend “STOP” instructions using SMS/MMS Codes (see Provision and Use of SMS/MMS Codes for more information) in order to allow recipients to “opt-out” of receiving future messages. In this regard, the Platform provides mandatory STOP instructions on your first welcome message and pre-populates STOP instructions for subsequent messages. However, you are solely responsible for any claims or incidents that may result from your removal of these STOP instructions. If a user replies to a text message you send through the Platform with messages other than STOP instructions, they will appear in your inbox. You are solely responsible for monitoring messages received in your inbox. You agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your company DNC list and, except as otherwise noted above, Provider shall have no other responsibility for notifying you of such opt-outs. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or STOP request.
You hereby acknowledge and confirm that you are solely responsible for the content of your messaging. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages. You hereby acknowledge that Provider merely provides a platform for facilitating the sending of your text messages, and that you shall have sole responsibility and liability for your messages and communications. You also agree to defend, indemnify and hold harmless Provider from and against any claims or damages which may result from your use of the Platform and Services, including, but not limited to, claims, damages, or lawsuits threatened or filed by third parties as well as inquiries and investigations by local, state and federal regulators (see Indemnity provision for a complete list of your indemnities to Provider). We reserve the right to hold, suspend or terminate your account or access to the Platform and/or Services as well as your use of the Site or SMS/MMS Codes for any alleged violation of this Section 6 and/or any unusual or suspicious activity related to your account.
7. Support and Customer Service
Except as otherwise provided herein, Provider will: (i) use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond our reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks. If you have a question regarding using the Platform or Services, you may contact us via email at support@textline.com. You acknowledge that the provision of customer support is at Provider’s sole discretion and that we have no obligation to provide you with customer support of any kind.
8. Linked Services; Dealings with Third Parties; Provision and Use of SMS/MMS Codes
A. Linked Services; Advertisements. The Platform may contain links or utilize the services of third party service providers, such as payment processors, etc. (“Linked Services”), including websites operated by service providers, licensors, licensees and certain other third parties who may have business relationships with Provider. Provider may have no control over the content, operations, policies, terms or other elements of Linked Services, and Provider does not assume any obligation to review any Linked Services. Provider does not endorse, approve or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services or other items. Furthermore, Provider is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Services. Provider will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. Provider disclaims all liability in connection therewith. The Platform may contain features designed to interoperate with Linked Services. To use such features, you may be required to obtain access to such Linked Services from their providers. If the provider of any such Linked Services ceases to make the Linked Services available for interoperation with the Platform on reasonable terms, we may cease providing such features without entitling you to any refund, credit or other compensation.
B. Dealings with Third Parties. Any interactions, correspondence, transactions and other dealings that you have with any third parties found on or through the Platform (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Provider disclaims all liability in connection therewith.
C. Services Provided by Linked Services. The Platform may contain features designed to interoperate with Linked Services (e.g., Facebook or Twitter). To use such features, we may be required to obtain access to such Linked Services from their providers. If the provider of any such Linked Service ceases to make the Linked Service available for interoperation with the Platform on reasonable terms, we may cease providing such features without entitling you to any refund, credit or other compensation.
<span id="section8d">D. Provision and Use of SMS/MMS Codes.</span> Use of the Platform may involve use of SMS/MMS Codes assigned and approved by a third party telecommunications service provider/carrier. The purpose of SMS/MMS Codes is to allow message recipients to respond to your messages. On the Platform, SMS/MMS Codes are primarily used to allow your message recipients to make STOP requests, thereby allowing them to “opt-out” from receiving further messages from you. Today, there are generally two types of SMS/MMS Codes—“short codes” and “long codes.” “Short codes” are five to six digit numbers used to send SMS and/or MMS messages, and may be either dedicated (meaning assigned to one entity) or shared (meaning a single short code represents multiple entities). “Long codes” are 10-digit local or “toll free” (e.g., 1-800, 1-888, or the like) telephone numbers generally used to send SMS messages but may also be used for MMS messages. The volume and types of messages (e.g., marketing or non-marketing) that may be sent using short or long SMS/MMS Codes via the Platform, as well as deliverability and delivery rates of any text/MMS/SMS messages sent using the Platform or Site, may vary or be restricted based circumstances beyond Provider’s control, including based on current technology, the telecommunications service providers/carriers, industry standards and applicable law. By using the Platform and any SMS/MMS Codes, you agree to abide by any laws, statutes, regulations, and industry standards that may apply to the use of SMS/MMS Codes, including, but not limited to, applicable CTIA SMS messaging guidelines. The use of SMS/MMS Codes in connection with the Services or the Platform does not grant you ownership of such SMS/MMS Codes or the right to use or be assigned any particular or specific SMS/MMS Codes or type of SMS/MMS Codes, or any other rights with respect to the SMS/MMS Codes you may use or that maybe assigned to you. All SMS/MMS Codes used in connection with the Platform (i) may be assigned or provided to you at Provider’s sole discretion, (ii) may be suspended, changed, re-assigned and/or withdrawn by us for violating these Terms or any Additional Terms, (iii) may not be assigned, transferred, sold and/or reassigned by you without our express written consent, (iv) may not be used for any other purposes other than use of the Platform, and (v) are subject to the Limited License provision above. We further reserve the sole right to suspend, assign, change and/or withdraw any SMS/MMS Codes assigned or provided to you as may be required by any telecommunications service providers/carriers or as may be necessary to comply with applicable laws, statutes, and regulations or industry standards and guidelines. We may, at our sole discretion, provide you with new or alternate SMS/MMS Codes or assign “short” or “long” SMS/MMS Codes to you at any time and without advanced notice. Provider shall not be responsible for verifying or registering any SMS/MMS Codes provided by us to you in connection with the Platform, including but not limited providing any approved or registered numbers to you (including providing “10DLC” numbers) or registering or seeking approval of any numbers with any phone service carrier, and shall not be held responsible for any message transmission issues relating to use of any unverified or unregistered phone numbers through the Platform.
9. Wireless
A. Wireless Features. The Platform may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Platform’s features and upload content to the Platform, receive messages from the Platform, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Platform for Wireless Features, then you agree to notify Provider of any changes to your wireless contact information (including phone number).
10. Dispute Resolution
PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation or claim arises out of or relates to the Platform, the Services, the Content, your Customer Content, these Terms or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Provider’s actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in Section 10(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Section 10(A). Your notice to us must be sent via certified U.S. mail to: Textline, 1901 Avenue of the Stars, Suite 200, Los Angeles, CA 90067, USA (Attn: Legal Department). The written description included in your notice must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; the date of any purchase or transaction at issue (if any and if available), and the relief sought. For a period of sixty (60) days from the date of receipt of notice from the other party, Provider and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, through an informal telephonic dispute resolution conference between you and Provider in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Provider to resolve the Dispute or Excluded Dispute on terms with respect to which you and Provider, in each of our sole discretion, are not comfortable. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process. Certain portions of this Section 10(A) are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act (“FAA”). You and Provider agree that we intend that this Section 10(A) satisfies the “writing” requirement of the FAA.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 10(A) within sixty (60) days of receipt of the notice, then ANY DISPUTE ARISING BETWEEN YOU AND PROVIDER OR ANY THIRD-PARTY BENEFICIARY OF THESE TERMS (whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, any other intentional tort or negligence), common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory), whether arising before or after the effective date of these Terms, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. The FAA, not state law, shall govern the arbitrability of all disputes between Provider and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. Provider and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 10(J) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies and damages arising between you and Provider regarding these Terms and the Platform, whether arising or stated in contract, statute, common law or any other legal theory, without regard to any jurisdiction’s choice of law principles. An Excluded Dispute will only be subject to binding arbitration pursuant to this Section 10 if the parties mutually agree. Any Dispute will be resolved solely by binding arbitration in accordance with the then-current: (i) Consumer Arbitration Rules of the American Arbitration Association “AAA”) then in effect since the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1; and if such Consumer Arbitration Rules do not apply then: (ii) the Commercial Arbitration Rules (collectively, “Rules”) of the AAA, except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Provider consent to in writing.
C. Arbitration Process. If after sixty (60) days the informal dispute resolution procedure set forth in Section 10(A) above is unsuccessful in resolving the parties’ Dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules. (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf). The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside. The parties will first attempt to agree on an arbitrator. If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the Rules. The arbitration may be conducted by telephone or based on written submissions, and if an in-person hearing is required, then it will be conducted in the county where you live or at another mutually agreed upon location. You and we will pay the administrative and arbitrator’s fees and other costs (and please note that you will be responsible for a portion or percentage of such fees) in accordance with the requirements of the Rules; but if the Rules (or other applicable arbitration rules or laws) require Provider to pay a greater portion or all of such fees and costs in order for this Section 10 to be enforceable, then Provider will have the right to elect to pay the fees and costs and proceed to arbitration. Except as set forth in Section 10(D), the arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. The arbitrator will render an award within the time frame specified in the Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the Rules, and these Terms. The arbitrator’s award of damages and/or other relief must be consistent with the terms of the Limitations of our Liability Section above as to the types and the amounts of damages or other relief for which a party may be held liable. If a claim is brought seeking public injunctive relief and a court determines that the restrictions prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated. In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration. If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), Provider will have the right to recover its attorneys’ fees and expenses. This arbitration provision shall survive termination of these Terms or the Service. You can obtain AAA and JAMS procedures, rules and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
D. Special Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against Provider by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule. Counsel for the claimants and counsel for Provider shall each select five (5) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process; the parties may but are not required to agree in writing to modify the number of cases to be included in the bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision. In the bellwether process, a single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise. After decisions have been rendered in the first ten (10) cases, Provider and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases. If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. After decisions have been rendered in the second group of twenty (20) cases, Provider and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein. Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases, in order to increase the efficiency of administration and resolution of arbitrations, the arbitration provider shall: (i) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. You agree to cooperate in good faith with Provider and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “batch arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind. Provider does not agree or consent to class arbitration, private attorney general arbitration or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 10(D). The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Section10(D) from the time of the first cases are selected for a bellwether process until the time your case is selected to proceed, withdrawn or otherwise resolved. A court shall have authority to enforce this Section 10(D) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Provider.
E. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES—OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 10(A); (b) filing for arbitration with JAMS as set forth in Section 10(B); or (c) filing an action in state or federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
F. Injunctive Relief. The foregoing provisions of this Section 10 will not apply to any legal action taken by Provider to seek an injunction or other equitable relief in connection with, any loss, cost or damage (or any potential loss, cost or damage) relating to the Platform, the Services, any Content, your Customer Content and/or Provider’s intellectual property rights (including such Provider may claim that may be in dispute), Provider’s operations and/or Provider’s products or services.
G. No Class Action Matters. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Except as expressly contemplated for mass arbitrations set forth in Section 10(D), Disputes and Excluded Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute or Excluded Dispute to be arbitrated on a class action basis or on any basis involving Disputes or Excluded Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 10(B) to arbitrate will not apply and the Dispute or Excluded Dispute must be brought exclusively in court pursuant to Section 10(F). Notwithstanding any other provision of this Section 10, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions. Notwithstanding any other provision of this Agreement, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire arbitration agreement shall be void. If any portion of this arbitration agreement other than the class action waiver and prohibition against class arbitration is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration agreement.
H. Federal and State Courts in Los Angeles County, California. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute, arising hereunder may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and Provider consent to the exclusive personal jurisdiction and venue of such courts for such matters.
I. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court on an individual basis for disputes and actions within the scope of such court’s competent jurisdiction.
11. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES IS AT YOUR SOLE RISK. THE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Provider and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors and assigns (collectively, the “Provider Parties”) hereby disclaim and make no representations, warranties, endorsements or promises, express or implied, as to:
(a) the Site and Platform (including the Content);
(b) the Services;
(c) whether the Services or Platform or your use thereof constitute an “automatic telephone dialing system” (“ATDS”), “advertising,” “telemarketing,” or “solicitations,” as such terms are used and defined in the TCPA or by other applicable related regulations or law;
(d) the functions, features, terms, or any other elements on, or made accessible through, the Site and Platform (including but not limited to SMS/MMS Codes);
(e) any products, services (including, without limitation, the Services) or instructions offered or referenced at or linked through the Site and Platform;
(f) security associated with the transmission of your materials to customers and data transmitted to Provider via the Site and Platform or using SMS/MMS Codes (other than the Platform’s SOC 2 and HIPAA compliant security measures);
(g) whether the Site, the Platform or the servers that make the Site and/or Platform available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(h) whether the information (including any instructions) on the Site and Platform is accurate, complete, correct, adequate, useful, timely or reliable;
(i) whether any defects to or errors on the Site and Platform will be repaired or corrected;
(j) whether your access to the Site, Platform and Services (including use of SMS/MMS Codes) will be uninterrupted;
(k) whether the Site, the Platform and Services will be available at any particular time or location;
(l) whether certain SMS/MMS Codes will be assigned to you, either exclusively or on a shared basis;
(m) whether your use of the Site, Platform and Services (including SMS/MMS Codes) is lawful in any particular jurisdiction; and
(n) whether any text/SMS/MMS messages sent using the Site, Platform and Services, regardless of the type of SMS/MMS Codes used, will be actually delivered to and received by the intended recipients on their mobile devices (including but not limited to messages that are not delivered to the extent the SMS/MMS Codes used are not registered, verified, or approved by any phone service carrier).
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A PROVIDER PARTY, PROVIDER PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
12. LIMITATIONS OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY PROVIDER PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental or consequential losses or damages that are directly or indirectly related to:
(a) the Site and Platform (including the Content and SMS/MMS Codes) or use thereof, including but not limited to any violation of the TCPA or other applicable laws, statutes, or regulations;
(b) the Services (including Services available through the Platform or Services provided by employees of the Provider Parties outside of the Platform environment), including, without limitation, lost communications, errors, mistakes, typos, communication failures, etc.;
(c) your use of or inability to use the Platform or Services or the performance of the Platform and Services;
(d) your use of any mobile alert terms and conditions we make available through the Platform;
(e) any action taken in connection with an investigation by Provider Parties or law enforcement authorities regarding your access to or use of the Platform;
(f) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(g) the availability and use of any particular SMS/MMS Codes provided in the course of using the Platform, or the registration or verification thereof;
(h) the delivery and/or deliverability rates of any text/SMS/MMS messages that might be sent using the Platform or Site;
(i) any errors or omissions in the Platform’s technical operation, including delivery of messages; or
(j) any damage to any user’s computer, hardware, software, modem or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the Provider Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure or destruction of the Platform).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE PLATFORM, YOUR UTILIZATION OF OUR SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID PROVIDER IN THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
13. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES OR INJURIES IN CONNECTION WITH YOUR USE OF THE PLATFORM AND OUR PROVISION OF THE SERVICES, THEN THE LOSSES, DAMAGES AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY PROVIDER OR A LICENSOR OF PROVIDER.
14. Feedback You Submit
A. General. Provider may now or in the future offer users of the Platform the opportunity to post, upload, display, publish, distribute, transmit or otherwise make available on or submit through the Platform, messages, text, files, comments, responses, information, content, results, reviews, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “Feedback”). Provider may allow you to do this through contact us, email and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title and interest that you have in your Feedback and you remain ultimately responsible for it.
B. Non-Confidentiality of Your Feedback. You agree that: (a) your Feedback will be treated as non-confidential—regardless of whether you mark them “confidential,” “proprietary” or the like—and will not be returned; and (b) Provider does not assume any obligation of any kind to you or any third party with respect to your Feedback. Upon Provider’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms.
C. License to Provider of Your Feedback. Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your Feedback, you hereby grant to Provider, and you agree to grant to Provider, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of and otherwise use and exploit in any manner whatsoever, all or any portion of your Feedback (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format and remove such Feedback and combine same with other materials, and (b) use any ideas, concepts, know-how or techniques contained in any Feedback for any purposes whatsoever, including developing, producing and marketing products and/or services. In order to further effect the rights and license that you grant to Provider to your Feedback, you also hereby grant to Provider, and agree to grant to Provider, the unconditional, perpetual, irrevocable right to use and exploit your name, persona and likeness in connection with any Feedback, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Feedback, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 14(C).
<span id="updatestoterms">15. Updates to Terms</span>
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable Services to which it applies, shall govern such use (including transactions entered during such use). AS OUR PLATFORM AND OUR SERVICES EVOLVE, THE TERMS OF USE UNDER WHICH WE OFFER THE PLATFORM AND SERVICES MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE PLATFORM OR SERVICES UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE PLATFORM OR UTILIZE OUR SERVICES, YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS OF USE AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE PLATFORM (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE PLATFORM AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted terms of service and any applicable Additional Terms each time you use the Platform and Services (at least prior to each transaction or submission). The new terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Platform and Services will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or Additional Terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page, and the email you associated with your purchases for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or Additional Terms by discontinuing use of the Platform and Services.
16. General Provisions
A. Provider’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grants Provider a right of consent or approval, or permits Provider to exercise a right in its “sole discretion,” Provider may exercise that right in its sole and absolute discretion. No Provider consent or approval may be deemed to have been granted by Provider without being in writing and signed by an officer of Provider.
B. Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.
<span id="section16c">C. Indemnity.</span> You agree to, and you hereby defend, indemnify and hold Provider Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand or proceeding made or brought against any Provider Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) Customer Content; (ii) your use of the Platform and our Services and your activities in connection with the Platform and Services, including, without limitation, any message sent by you through your use of the Platform or use of SMS/MMS Codes; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities in connection with your use of the Platform, Services or your activities in connection therewith; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or entity; (vi) any misrepresentation made by you; (vii) any other party’s access and/or use of the Platform/Services with your account; (viii) any failure to obtain consents required by applicable law or regulations prior to sending communications using the Platform; (ix) any privacy or spam policy violation alleged to have been committed through any use of your account; and (x) Provider Parties’ storage, use and distribution of the information and data (including mobile numbers) that you provide to us (all of the foregoing, “Claims and Losses”). You agree to cooperate as fully as reasonably required by the Provider Parties in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action involving Claims and Losses, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Provider Party. You acknowledge and agree to be held liable for any and all damages caused to the Provider Parties by you as a direct result of a violation of local, state, national or international laws and regulations, including, but not limited to, those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by the Provider Parties to you.
D. Operation of Platform; Availability of Services; International Issues. Provider controls and operates the Platform and provides the Services from its California based offices in the U.S.A., and Provider makes no representation that the Platform or Services (including but not limited to SMS/MMS Codes) are appropriate or available for use beyond the U.S.A. If you use the Platform and Services from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Platform may describe services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Platform, Services and/or the provision of any content, program, product, service or other feature described or available on the Platform to any person, entity, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods. Delivery and delivery rates of text/SMS/MMS messages are the responsibility of third party mobile carriers to whom such messages are delivered and may vary.
E. Export Controls. Software related to or made available by the Platform may be subject to export controls of the U.S.A. No software from the Platform may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or Services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity or end-user, subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.
F. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation.”
G. Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Platform, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address.
H. Investigations; Cooperation with Law Enforcement; Termination; Survival. Provider reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Platform security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Provider in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Platform and/or Services, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Provider under these Terms or any Additional Terms. Upon suspension or termination of your access to the Platform/Services, or upon notice from Provider, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Platform and Services. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Provider in these Terms, as well as the indemnities, releases, disclaimers and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action and mandatory arbitration.
I. Assignment. Provider may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Provider.
J. No Waiver. Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or Provider in exercising any of rights, powers or remedies under will operate as a waiver of that or any other right, power or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
K. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service and other services needed for your access to and use of the Platform and you will be responsible for all charges related to them.
L. Confidentiality. Each party may have access to the other party’s information, which shall be deemed confidential information if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans and any information which provides a competitive advantage. The receiving party shall protect the other’s confidential information with the same degree of care it uses for its own confidential information (and at least a reasonable degree of care), shall use the information only to carry out these Terms, and shall disclose the information only to its employees (or agents bound by similar confidentiality obligations) with a need to know for that purpose. Confidential information shall remain the property of the disclosing party and shall be destroyed upon request. Notwithstanding the above, neither party shall be required to accelerate the destruction of any archival back-up tapes created in the ordinary course of business, even if such archival back-up tapes contain confidential information. Information shall not be deemed confidential information if it: (i) is disclosed by the disclosing party to others without restriction on use and disclosure; (ii) becomes known to the receiving party without restriction from a third party who is not in breach of a confidentiality agreement with the disclosing party; (iii) is already known by the receiving party at the time of disclosure; or (iv) is independently developed by the receiving party without any reliance on the confidential information of the disclosing party. Confidential information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure.
M. Force Majeure. Neither party will be responsible for any failure or delay in its performance under these Terms (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
N. Subcontractors. You acknowledge that we will, in the rendition of the Platform and Services hereunder, engage third party suppliers and other vendors and subcontractors (collectively, “Subcontractors”) to provide certain Services offered as part of the Platform. Provider shall supervise such services and endeavor to guard against any loss to you as the result of the failure of Subcontractors to properly execute their commitments, but we shall not be responsible for their failure, acts or omissions and cannot guarantee any Subcontractor’s performance.
O. Publicity. Provider may: (i) on one or more occasions reference Customer and use its company name, logo, trademark, trade name, service mark or other commercial designation in advertisements, brochures, case studies customer lists, presentations, professional articles, financial reports or other marketing, promotional or related materials; and (ii) upon Customer’s approval, which approval will not be unreasonably withheld, Provider may issue a press release (or similar public announcement or communication) publicizing the relationship between Provider and Customer created by this Agreement.
17. Terms Applicable For Apple Device Users
If you are accessing or using the Services through a Device manufactured and/or sold by Apple, Inc. (“Apple,” with such a device herein referenced as an “Apple Device”):
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