PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF THE TEXTSPOT PLATFORM, AS DEFINED BELOW.
What Are These Terms?
These Terms of Service (the “Terms”) govern the individual, company and/or organizational (collectively, “you”, “your” or “Customer”) purchase and use of any of TextSpot 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”) available through our website(s) (https://www.TextReminderApp.com or https://textspot.io) (including both mobile and online versions) (the “Site”), any phone numbers that may be provided or made available to you in conjunction with your use of the Services or the Site (collectively, “Phone Numbers”),_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 Text Reminder App LLC, with the certified assumed name of TextSpot, a Michigan LLC (“TextSpot”, “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. Without the conditions that are set forth in these Terms, TextSpot would not make the Platform or the Services available to you.
Your continued use of 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).
What Does TextSpot Do?
Through the Platform and Services, TextSpot provides messaging services that allows paid subscribers to contact and send information to their contacts through mobile text messaging services and other mobile communication systems. TextSpot does not initiate, send, or generate any messages for you. Messages are initiated by you using our Platform at your sole discretion, subject to these Terms. TextSpot does not draft the content of your messages, control to whom the messages are sent, or provide or generate any phone numbers to be messaged through the Platform or Site.
We reserve the sole discretion and right to permanently delete any data stored in your account immediately after your account termination and any of your assigned Phone Numbers may be reassigned by us to other users.
- Terms Applicable to the Purchase of Subscriptions
- Who Can Purchase? 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).
- How To Purchase? Prior to the purchase of access to the Platform or our provision of the Services, unless we make alternative payment arrangements with you, you must provide us with a valid credit card number and associated payment information 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. TextSpot 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 text/SMS and MMS have character limitations. If a single text/SMS or MMS exceeds the character limitation and requires the use of multiple credits, you will be charged for each credit used.
- Length of Subscription? 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 TextSpot. Your subscription 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 you cancel (the “Subscription Term”). The fee for the subscription only covers the number of credits associated with that Subscription level. For any credits used beyond the number of credits allowed in your subscription, you will be charged an additional fee per credit.
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, nor any unused credits.
- Can TextSpot Terminate? TextSpot 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 TextSpot any amount due to TextSpot under these Terms; and/or (b) the Customer materially breaches any term or condition of these Terms. TextSpot 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 TextSpot is declined for any reason, TextSpot reserves the right, without notice, to immediately close your account, delete any data stored in your account and re-assign Phone Numbers to other users. 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.
- What About the Free Trial? 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 TextSpot 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.
- Does the Subscription Auto-Renew? 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 subscription fee is charged to the member at the time of renewal. To the extent your Subscription Term is on a month-to-month basis, your subscription will automatically renew on the one (1) month anniversary of your first use of our Platform or Services and will continue to renew every month thereafter on that anniversary date until you cancel as set forth in Section 1(G) below. A Customer whose subscription fee (as posted on the Platform at time of sign-up) has been paid is entitled to all features included in the subscription until the subscription is cancelled by the Customer as set forth in the paragraph below, or the subscription is otherwise terminated. By providing your payment method information for your subscription, you are agreeing to pay a subscription fee, that will automatically renew, as described above. 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 TextSpot to charge your payment method for these amounts. TextSpot reserves the right to change the pricing of subscription at any time. In the event of a price change, TextSpot will post the new pricing on the Platform and attempt to notify you in advance by sending an email to the address you have registered for your account. 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 through an electronic communication from us and 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 consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to you. 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 TextSpot 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 TextSpot within sixty (60) days after they first appear on an account statement.
- Can the Customer Cancel? A Customer has the right and ability to cancel or otherwise upgrade/downgrade their subscription to the Platform at any time upon using the functionality available in their account settings. If you are unable to log-in to your account, you may contact TextSpot by email at firstname.lastname@example.org. 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. 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 data stored in your account is immediately deleted and any of your assigned Phone Numbers 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.
- What is Acceptable Use? We 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):
- 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;
- are using the Platform in breach of these Terms;
- infringe, violate, or misappropriate any third party’s intellectual property or proprietary rights;
- have systems which contain software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- are misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
- are libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
- are harmful to minors in any way;
- are hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by TextSpot;
- impersonates a TextSpot employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity, or to obtain access to the Site or a portion thereof without proper authorization;
- interfere or attempt to interfere with the proper working of the Site or prevent others from using the Site, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site, or that otherwise negatively affect another person’s ability to use the Site, or inadvertently or intentionally disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the Site or any other site or system in use by another user of TextSpot;
- use any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the Site or the content contained therein;
- facilitate the unlawful distribution of copyrighted Content;
- license, sublicense, rent or lease the Services to third parties, use the Services for third party training, commercial time-sharing or service bureau use, or otherwise make the Services available to third parties or otherwise commercially exploit the Services;
- include personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site to users;
- engage in any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
- stalk or otherwise harass anyone on the Site or with information obtained from the Site;
- collect, use or disclose data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
- request, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any user of the Site for the purposes of automating logins to the Site;
- attempt to gain unauthorized access to the computer systems of TextSpot or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site;
- decompile or reverse engineer or attempt to access the source code of the software underlying the Site, the Services or any other TextSpot technology;
- copy, archive, store, reproduce, rearrange, modify, download, upload, create derivate works from, display, perform, publish, distribute, redistribute or disseminate all or any part of the Site;
- access the Site for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Site;
- access the Site for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or
- access the Site to upload any Content or computer code for the purposes of: (i) causing a breach of security to the Site; (ii) interfering with the proper working, functionality or performance of the Site; or (iii) preventing others from accessing or using the Site.
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”). 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 and government regulations.
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.
- What About my Credit Card? All payments must be made through a credit or debit card or other payment mechanism we accept at the time you sign up. 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 TEXTSPOT, 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 TextSpot 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 TextSpot does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by TextSpot or its agents.
- What About Taxes? 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.
- Can a Customer get a Refund? TextSpot’s refund policy is to NOT offer any refunds for any subscriptions purchased through the Platform, except in its sole and absolute discretion.
- Opening and Terminating Accounts
In the event that the Platform, Services, or Site experience any kind of data breach, data loss, breach of confidential information, personal identifying information, or any other protected information or data (“Breach”), and said Breach occurred because of Customer’s failure to make reasonable efforts to keep such information or data safe, whether such loss or breach was due to Customer’s failure to abide by this Section 2 or Section 1H, or Customer’s involvement in any fishing scam, ransomware attack, or any other social-engineering-based cyber-attack, any and all costs associated with responding to the Breach in compliance with federal law, state law, and all relevant data privacy regulations, will be bore solely by Customer.
- Content, Ownership, and Limited License
- What is TextSpot’s Content? The Platform contains a variety of content (“Content”) and other items relating to TextSpot, TextSpot’s Platform, and similar items from our licensors and other third parties. Content includes 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. Content also includes and any and all copyrightable material (including source and object code), trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of TextSpot, and other forms of intellectual property.
- What Does TextSpot Own? The Platform (including past, present and future versions), the Content, and Phone Numbers are owned or controlled by TextSpot 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 TextSpot 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. TextSpot owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Platform.
- Is There a License to Use the Platform? During the Subscription Term (defined below), TextSpot will make the Platform and Services (including Phone Numbers) 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, TextSpot 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. You do not have any ownership of, or any other intellectual property interest in, any of the Platform, Services, Content, or Phone Numbers, and The license given in this Section 3(C) may be immediately changed, revised, suspended or terminated for any reason, in TextSpot’s sole discretion, and without advance notice or liability. You acknowledge TextSpot may use a third party hosting providers to host any portion(s) of the Platform and/or Services.
- Will the Platform, Services, and Content Always be Available? TextSpot 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 TextSpot’s sole discretion, and without advance notice or liability. Delivery and deliverability of text/MMS/SMS messages are not guaranteed by TextSpot and are the responsibility of third-party mobile carriers.
- Reservation of All Rights. 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 TextSpot and its licensors and other third parties. Any unauthorized use of any Content, the Platform or the Services for any purpose is prohibited.
- What is Customer Content? You (on behalf of yourself and your Authorized Users) hereby grant TextSpot 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.
- Consents and Legal Compliance for Messaging
Marketing campaigns are regulated. Your use of our Platform should be responsible and compliant. Our Anti-Spam Policy [link] regulates your use of our Platform and is incorporated into these Terms by reference. In these Terms, you can find general information regarding applicable laws, guidelines, and compliance responsibilities pertaining to your use of the Platform. The information herein is provided merely as a courtesy and is not intended to replace your responsibility to know and abide by the legal requirements pertaining to your marketing campaign. Nothing in these Terms or our Anti-Spam Policy is intended to, nor shall it be deemed, to constitute legal advice. Please consult a lawyer for legal advice on your texting practices.
- What is Spam? Spam is any type of unsolicited message. You should not assume that an existing relationship with any message recipient constitutes permission to send text messages. If your customer has not given you specific permission to send marketing messages, you may not have permission to send text messages to that customer. Federal and state laws restrict the hours and days when marketing calls can be made. Before using the Platform, you agree to review and abide by all federal, state, and local laws, statutes and regulations as well as applicable text/SMS/MMS messaging/telecommunications industry guidelines, including, but not limited to, the following laws and guidelines, and to check for any revisions, as they may be amended over time:
- Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., and related regulations, 47 C.F.R. Part 64.1200, et seq;
- Telemarketing Sales Rule (“TSR”), 16 C.F.R. Part 310, et seq.;
- Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act of 2003;
- Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices Guidelines for Messaging;
- Cellular Telecommunications Industry Association (“CTIA”) Best Practices and Guidelines for Location-Based Services;
- CTIA Messaging Principles and Best Practices;
- CTIA SMS Interoperability Guidelines; and
- CTIA Short Code Monitoring Program Handbook.
- How is the Customer Regulated on this Site When it Comes to Spam?
You represent and warrant that the owners of the phone numbers to which you transmit outbound text messages through TextSpot have expressly consented or otherwise opted-in to the receipt of such messages, in accordance with the TCPA, the TSR, and other applicable federal, state, local laws, statutes and regulations and industry guidelines.
You agree that all mobile marketing messages sent by you will conform to the latest available best-practice guidelines drafted and published by the MMA and the CTIA.
You acknowledge that you are solely responsible for all acts or omissions or violations of law that may occur in connection with your use of TextSpot’s Platform or Services.
You acknowledge and agree that you shall have sole responsibility for obtaining any consents for uploaded mobile numbers and for complying with any terms and/or conditions that may govern previously opted in mobile numbers.
You agree that you will not access or otherwise use any third-party list of phone numbers or otherwise engage in unsolicited messaging in connection with the Platform.
You agree not to send messages to your users beyond the frequency represented in any or your own disclosures or terms.
You agree that any contact information you have on the Platform you will have been obtained with each user’s consent and that each user has consented to receive communications from you.
You agree to retain proof of each user’s said consent.
You hereby acknowledge and confirm that you are solely responsible for the content of your messaging.
You hereby acknowledge that TextSpot 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 agree to represent your identity, the identity of your organization, your product or service, availability of goods or services, pricing, benefits, and any other offering aspects in your messaging, truthfully.
You agree to comply with all local, state, and federal laws and regulations as well as general industry best practices governing your content or promotion type.
You also agree to defend, indemnify and hold harmless TextSpot 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 TextSpot).
- Can I be Shut Down for Spam? TextSpot maintains a no-tolerance policy toward spam. Although TextSpot 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. We reserve the right, at our sole and absolute discretion, to suspend or deny access, to impose a stringent qualification process, to require proof of consent or opt-in method, or to require documentation of your or your organization’s legal identity. 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 Phone Numbers for any alleged violation of this Section 3 and/or any unusual or suspicious activity related to your account.
- Support and Customer Service
Except as otherwise provided herein, TextSpot will use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven (7) days a week. The Platform, from time to time, may not be available due to planned downtime or 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 email@example.com. You acknowledge that the provision of customer support is at TextSpot’s sole discretion and that we have no obligation to provide you with customer support of any kind.
- Linked Services; Dealings with Third Parties
- What are Linked Services? 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 TextSpot. TextSpot may have no control over the content, operations, policies, terms, or other elements of Linked Services, and TextSpot does not assume any obligation to review any Linked Services. TextSpot does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. TextSpot is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Services. TextSpot 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. TextSpot 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.
- How Can the Customer Interact with Third-Parties on the Site? 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). TextSpot disclaims all liability in connection therewith. 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.
- What About the Use of Phone Numbers? Use of the Platform may involve use of Phone Numbers assigned and approved by a third-party telecommunications service provider/carrier. The purpose of Phone Numbers is to allow message recipients to respond to your messages. On the Platform, Phone Numbers are primarily used to allow your message recipients to make STOP requests, thereby allowing them to “opt-out” from receiving further messages from you. The volume and types of messages (e.g., marketing or non-marketing) that may be sent using Phone Numbers 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 TextSpot’s control, including based on current technology, the telecommunications service providers/carriers, industry standards, and applicable law. By using the Platform and any Phone Numbers, you agree to abide by any laws, statutes, regulations, and industry standards that may apply to the use of Phone Numbers, including but not limited to applicable CTIA SMS messaging guidelines. The use of Phone Numbers in connection with the Services or the Platform does not grant you ownership of such Phone Numbers or the right to use or be assigned any particular or specific Phone Numbers or type of Phone Numbers, or any other rights with respect to the Phone Numbers you may use or that maybe assigned to you. All Phone Numbers used in connection with the Platform (i) may be assigned or provided to you at TextSpot’s sole discretion, (ii) may be suspended, changed, reassigned, 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 Phone Numbers 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 Phone Numbers at any time and without advanced notice.
- Claims Against TextSpot
- How Long to File a Claim? TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
- What About Injunctive Relief? The foregoing provisions of this Section 6 will not apply to any legal action taken by TextSpot 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 TextSpot’s intellectual property rights (including such TextSpot may claim that may be in dispute), TextSpot’s operations, and/or TextSpot’s products or services.
- 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, TextSpot and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “TextSpot Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to: (i) the Site and Platform (including the Content); (ii) the Services; (iii) the functions, features, terms, or any other elements on, or made accessible through, the Site and Platform (including but not limited to Phone Numbers); (iv) any products, services (including, without limitation, the Services), or instructions offered or referenced at or linked through the Site and Platform; (v) security associated with the transmission of your materials and data transmitted to TextSpot via the Site and Platform or using Phone Numbers; (vi) 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); (vii) whether the information (including any instructions) on the Site and Platform is accurate, complete, correct, adequate, useful, timely, or reliable; (viii) whether any defects to or errors on the Site and Platform will be repaired or corrected; (ix) whether your access to the Site, Platform and Services (including use of Phone Numbers) will be uninterrupted; (x) whether the Site, the Platform and Services will be available at any particular time or location; (xi) whether certain Phone Numbers will be assigned to you, either exclusively or on a shared basis; (xii) whether your use of the Site, Platform and Services (including Phone Numbers) is lawful in any particular jurisdiction; and (xiii) whether any text/SMS/MMS messages sent using the Site, Platform and Services, regardless of the type of Phone Numbers used, will be actually delivered to and received by the intended recipients on their mobile devices.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A TEXTSPOT PARTY, TEXTSPOT 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, 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.
- LIMITATIONS OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY TEXTSPOT 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: (i) the Site and Platform (including the Content and Phone Numbers) or use thereof, including but not limited to any violation of the TCPA or other applicable laws, statutes, or regulations; (ii) the Services (including Services available through the Platform or Services provided by employees of the TextSpot Parties outside of the Platform environment), including, without limitation, lost communications, errors, mistakes, typos, communication failures, etc.; (iii) your use of or inability to use the Platform or Services or the performance of the Platform and Services; (iv) any action taken in connection with an investigation by TextSpot Parties or law enforcement authorities regarding your access to or use of the Platform; (v) any action taken in connection with copyright or other intellectual property owners or other rights owners; (vi) the availability and use of any particular Phone Numbers provided in the course of using the Platform; (vii) the delivery and/or deliverability rates of any text/SMS/MMS messages that might be sent using the Platform or Site; (viii) any errors or omissions in the Platform’s technical operation, including delivery of messages; or (ix) 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 TextSpot 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 TEXTSPOT 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 TEXTSPOT IN THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
- 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 TEXTSPOT OR A LICENSOR OF TEXTSPOT.
- UPDATES TO TERMS
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.
- GENERAL PROVISIONS
- Indemnity. You agree to, and you hereby defend, indemnify, and hold TextSpot 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 TextSpot 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 Phone Numbers; (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; (x) TextSpot 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”); and (xi) any and all loss or breach of data, confidential information, personal identifying information, or any other protected information or data which was lost or breached as a result of Customer’s failure to make reasonable efforts to keep such information or data safe, whether such loss or breach was due to Customer’s failure to abide by Section 2 or Section 1H , or Customer’s involvement in any fishing scam, ransomware attack, or any other social-engineering-based cyber attack.
You agree to cooperate as fully as reasonably required by the TextSpot 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 TextSpot Party. You acknowledge and agree to be held liable for any and all damages caused to the TextSpot 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 TextSpot Parties to you.
- 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,”.
- 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.
- Investigations; Cooperation with Law Enforcement; Termination; Survival. TextSpot 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 TextSpot 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 TextSpot under these Terms or any Additional Terms. Upon suspension or termination of your access to the Platform/Services, or upon notice from TextSpot, 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 TextSpot 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.
- Assignment. TextSpot 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 TextSpot.
- No Waiver. Except as expressly set forth in these Terms or any Additional Terms: (i) no failure or delay by you or TextSpot 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.
- 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.
- 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.
- 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, COVID-19-related shut downs or closures, closures related to any pandemic/epidemic/or other health crisis, 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.
- Subcontractors. You acknowledge that we may, in the rendition of the Platform and Services hereunder, engage third party suppliers and other vendors and subcontractors (collectively, “Subcontractors”) from time to time to provide certain Services offered as part of the Platform. TextSpot 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.