Terms and Conditions
ACCEPTANCE OF TERMS
{name}, ({abbreviation}) welcomes the undersigned customer (“You”). {name} provides its service to You subject to the following Terms of Service (“TOS”), which may be updated from time to time at {name}’s discretion with notice provided to you via e-mail or SMS. By logging into our system, you agree to these terms of service.
DESCRIPTION OF PRODUCTS & SERVICES DESCRIPTION
{name} provides users with an innovative method to transmit information via SMS text messaging, done through an easy-to-use web site (the “Service”).You agree that the Service may include various communications from {name} to You via SMS and e-mail, such as service announcements and administrative messages, and that these communications are considered part of the membership of {name}. Unless explicitly stated otherwise, any new features that amplify or enhance the current Service, shall be subject to the TOS. You understand and agree that the Service is provided “AS-IS”. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for said fees, including any fees associated with the display or delivery of {name} messages. You must provide, and are responsible for, all equipment needed to access the Service.
{name} PRIVACY POLICY
In order to set up Your account, You must provide {name} certain information. {name} will never distribute Your information to anyone for any reason without prior approval by You, unless required to do so by law. As part of its service, {name} collects the phone numbers of prospective buyers that access information via text message (SMS).
The phone numbers collected by Your leased codes will never be shared with other {name} users (unless those numbers are collected other user’s leased codes) of the system nor will they be shared outside the system, unless required by law.
MEMBER ACCOUNT, PASSWORD & SECURITY
You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all actions that occur under your password or account. You agree to (a) immediately notify {name} of any unauthorized use of Your password or account or any other breach of security, and (b) make certain that you exit from Your account at the end of each session. {name} is not liable for any loss or damage arising from Your failure to comply with the above Section 4.
MEMBER CONDUCT
You agree to not use the Service to:
1. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise offensive;
2. harm or disturb minors in any way;
3. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
4. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;
5. upload, post, email, transmit or otherwise make available any material that contains software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
6. interfere with or disrupt the Service or servers or networks connected to the Service, or violate any requirements, procedures, policies or regulations of networks connected to the Service; or
7. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law.
You acknowledge that {name} may or may not pre-screen Content, but {name} and its designees shall have the right to (but not the obligation), in their sole discretion, pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, {name} and its designees shall have the right to remove any Content that violates the TOS or is otherwise offensive. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You acknowledge, consent and agree that {name} may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; (e) protect the rights, property, or personal safety of {name}, its users and the public; or (f) subject to a legally issued subpoena or court order.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by {name} and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
INDEMNITY
You agree to defend, indemnify and hold {name}, and its subsidiaries, officers, agents, co-branders or other partners, and employees, harmless from any claim, complaint, demand or lawsuit, including reasonable attorneys’ fees, made by any third party due to or arising in any way out of Your subscription with {name} or Your use of {name} services.
NO RESALE OF SERVICE
{name} service is non-transferable. You may not to reproduce, duplicate, copy, disseminate, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
MODIFICATIONS TO SERVICES
{name} reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that {name} shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Service.
TERMINATION
You agree that {name} may, under certain circumstances and without prior notice, immediately terminate Your {name} account and access to the Service. Cause for termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by You (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) You have engaged in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of Your {name} account includes (a) removal of access to all offerings within the Service (b) deletion of your password and all related information, text associated to codes, activity reports and content associated with or inside Your account (or any part thereof), and (c) barring further use of the Service. Further, You agree that all terminations for cause shall be made at the sole discretion of {name} and that {name} shall not be liable to You or any third-party for any termination of your account or access to the Service.
DISCLAIMER & WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. {legalname} EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
{legalname} MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM {legalname} OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE — DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT {legalname} SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF {legalname} HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iv) ANY OTHER MATTER RELATING TO THE SERVICE.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY TO YOU.
NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this TOS, there shall be no third party beneficiaries to this Agreement.
NOTICE
{legalname} may provide You with notices, including those regarding changes to the TOS, by either email, regular mail, or postings on the Service.
TRADEMARK INFORMATION
The {name} logo, any trademarks, service marks and other {name} logos, product and service names are trademarks of {name} (the “{name} Marks”). {name} grants you permission to use the {name} Marks on advertising brochures, sign riders and other related marketing campaigns.
GENERAL INFORMATION
Entire Agreement. The TOS constitutes the entire agreement between You and {legalname} and governs your use of the Service, superseding any prior agreements between You and {legalname} with respect to the Service.
Choice of Law and Forum. The TOS and the relationship between you and {legalname} shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.
Arbitration and Class Action Waiver
Except as otherwise provided by applicable law, any and all controversies and disputes arising in connection with use of the Service, the TOS, the Privacy Policy, and/or their interpretation shall be settled by binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be in Delaware. Arbitration hereunder shall be conducted by one neutral arbitrator appointed by the AAA. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to this arbitration clause. Any disputes, including any threshold disagreement about the arbitrability of any claim, shall be delegated to the arbitrator (and not a court). In no event shall the arbitrator have any authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. Irrespective of the outcome of arbitration, each party shall bear its own costs and expenses, including its own attorney’s fees, and an equal share of the arbitrator’s fees and administrative fees of arbitration. The arbitrator shall not determine or award any alternative allocation of costs and expenses, including any attorney’s fees. Judgment upon the arbitration award may be entered in any court having jurisdiction thereof. You agree and submit to the personal jurisdiction and venue of any such court of competent jurisdiction. In the event that this arbitration clause is deemed to be invalid or otherwise unenforceable or illegal, the remaining TOS shall remain in full force and effect, including the waiver of the right to proceed in a class action. THE PARTIES AGREE TO WAIVE THE RIGHT TO BRING OR PARTICIPATE IN ANY CONSOLIDATED OR CLASS ACTION AND AGREE THAT ALL FORMS OF CLASS ACTION OR CLASS WIDE ARBITRATION ARE EXPRESSLY PROHIBITED. THE PARTIES UNDERSTAND THEY WILL NOT HAVE THE RIGHT TO A TRIAL BY A COURT OR A JURY AND THAT THE INFORMATION THAT CAN BE OBTAINED IN DISCOVERY FROM EACH OTHER OR FROM THIRD PERSONS IN ARBITRATION IS GENERALLY MORE LIMITED THAN IN A LAWSUIT. IN ADDITION, OTHER RIGHTS THAT THE PARTIES WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Service, TOS, and/or the Privacy Policy must be brought within one (1) year after such claim or cause of action arose or be forever barred.
Waiver and Severability of Terms. The failure of {legalname} to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
No Right of Survivorship and Non-Transferability. You agree that your {name} account is non-transferable and any rights to Your {name} account or contents within Your account terminate upon Your death. Upon receipt of a copy of a death certificate, Your account may be terminated and all contents therein permanently deleted.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
VIOLATIONS
Please report any violations of the TOS to our Violation to {email}.