INTERNATIONAL TERMS & CONDITIONS
PLEASE READ THIS AGREEMENT CAREFULLY. THIS USER AGREEMENT (“AGREEMENT”) DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH WEBTEXT HOLDINGS LTD, trading as WEBTEXT (“WEBTEXT”), OFFERS THE CUSTOMER (THE “CUSTOMER” OR “YOU” OR “YOUR”) AN ACCOUNT (THE “ACCOUNT”) FOR USE OF THE WEBTEXT SERVICES (THE “SERVICES”)
This Agreement is between WEBTEXT Holdings Limited and Customers located outside North America. This Agreement governs access to and use of the Services. By clicking “I Agree”, signing a copy of the Agreement or using the Services, the Customer agrees to this Agreement as a Customer.
1. DEFINITIONS
The following are definitions and acronyms used in these terms and conditions and the attached Service Attachment(s).
“A2P” or Application to Person refers to SMS messages that are generated and sent by an automated machine or computer program rather than a person.
“Application Programming Interface” or “API” is the connectivity method in place between WEBTEXT and The Customer. The API format may vary by Customer, but is limited to the specifications or formats offered by WEBTEXT. Examples of API formats may include, but are not limited to, Web services (HTTP), and SMPP.
“Billing Month” means the month beginning on the 1st through the last day of the same calendar month.
“Client” means an entity that purchases Services for its own internal business purposes from The Customer.
“Content” means information contained in a text.
“Customer” means the individual accepting the terms of this Agreement or the entity such individual represents, as applicable.
“End Users” means The Customer’s subscribers or The Customer’s clients’ subscribers to specifically include the final recipient of the text message
“Long Code” means a combination of digits in E.164 format to which End Users can direct text messages to or from their wireless device.
“MO” means mobile originated.
“MT” means mobile terminated.
“North America” means USA and Canada.
“Notice” means the method of serving notices by the parties, whether under this MSA or the SA
“P2P” or Person to Person refers to SMS messages that are generated and sent by a person to another person (Individual rather than group).
“Services” means any service that WEBTEXT will provide to the Customer, which may include but is not limited to the delivery of SMS messages to WEBTEXT supported wireless carriers and devices, including mobile phones.
“Short Code” means a combination of fewer than ten (10) digits to which End Users can direct text messages to or from their wireless device.
“SLA” means service level agreement.
“SMS” means Short Message Service.
“Transmission” means data communication session for the exchange of information.
“WEBTEXT” means: WEBTEXT Holdings Limited trading as WEBTEXT (a company registered in Ireland with registered office at 193 Lower Kimmage Road, Dublin 6W, Ireland) and/or WEBTEXT LLC (a Pennsylvania limited liability company that does business under the name “WEBTEXT”) as applicable.
2. THE SERVICES
WEBTEXT provides the Service(s) with the capability to send SMS to mobile phones via the World Wide Web on the WEBTEXT™ system. WEBTEXT may terminate, change, suspend or discontinue the Service(s), including the availability of any features of the Site, at any time. WEBTEXT may from time to time provide additional services subject to charges according to the sole discretion of WEBTEXT.
The Service(s) provided may be used by The Customer or any lawful affiliate of The Customer only as expressly authorized under these terms and conditions. The Customer shall not make the Service(s) available to any third party through any resale, sublicense, re-marketing or re-packaging. The Customer shall not use any Service(s) in such a manner as to interfere unreasonably with the use of Service(s) by other WEBTEXT Customers or authorized users.
3. MEMBER ACCOUNT
(A) Accounts are not available to minors or any person who cannot legally agree to the terms of this Agreement. By accepting these terms, You confirm that You are capable of entering into a binding agreement. You must accurately complete any subscriber information requested by WEBTEXT. The Service(s) is intended to appeal to a broad audience, and therefore it is the responsibility of the parent or guardian to determine whether any use of the WEBTEXT Services are inappropriate for Your child.
(B) To open an account for usage of the Service(s), the User must provide true and accurate information as labelled by the Registration Form and shall regularly update such information to keep it true and accurate. The User shall provide a valid email address belonging to them and choose a password which will be sent to the email address or by sms text message as indicated in his registration form. The User is entirely responsible for the privacy, confidentiality and storage of the email address and password used to access the system. All website activities that can be traced to the email address and password of the User are deemed to have been performed by the User. WEBTEXT does not assume any liability for content of messages sent and is exempt from any claim that may arise from third parties as a result of messages sent. You are fully responsible for any charges and liabilities incurred through the use of the SMS Service or Your Account and for any activities conducted through Your Account. In addition, WEBTEXT may temporarily disable access to Your Account if You report unauthorized use or if usage of the Account dramatically exceeds normal usage patterns within a short time period. The User agrees to notify WEBTEXT immediately of any unauthorized use of the account at abuse(at)webtext.com.
4. RESPONSIBILITIES
WEBTEXT shall provide, maintain and support the Service(s) at the price and terms as detailed in these terms and conditions, and as detailed in the Customer’s order form. The Customer shall:
a. pay all undisputed charges for the Service(s).
b. obtain from any third party any authorizations, access to premises and other cooperation reasonably required by WEBTEXT for the provision of the Service(s);
c. notify WEBTEXT in writing at least ninety (90) calendar days in advance prior to any changes to any Customer equipment, software, operations, network components or procedures that would affect the operation, provision or use of Service(s);
d. report malfunctions of the Service(s) to WEBTEXT as soon as reasonably practicable
5. BILLING AND PAYMENT
You agree to pay all charges that may be required for use of the Service(s). WEBTEXT reserves the right to modify its prices, charges or fees, provided that any changes shall be posted on the Site. You are therefore responsible for reviewing the Site regularly for information regarding fees and charges as well as changes to pricing. Continued use of or non-termination of the Service(s) shall be deemed to be acceptance of any posted changes in the prices for Your use of the Service(s).
All WEBTEXT account balances are expressed in cash values. This cash balance is reduced when a message is sent using the current price per message in effect for the destination network and/or country. The current cash balance of an account is shown to the account holder in their local currency.
The estimated equivalent in SMS messages is also shown. This is calculated by dividing the cash balance by the SMS price per message in effect at that time for the country in which the account has been registered.
SMS message costs are subject to fluctuation which directly affects the price per message charged. The estimated SMS message balance of an account will therefore change whenever the price per message changes. Current pricing per message to all destinations is shown on the website. WEBTEXT may change these terms at any time. Changes become effective when published on the WEBTEXT website.
To the extent applicable, You agree that WEBTEXT may accumulate charges incurred during Your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle and that WEBTEXT may delay obtaining authorization from Your card issuer until submission of the accumulated charge(s). As a result, You understand that accumulated charges may appear on Your credit or debit card statement. Alternatively WEBTEXT may provide all services on a prepaid basis with charges to Your credit card at time of purchase, alternatively WEBTEXT may require payment by bank transfer from you.
If You are utilizing the Service(s) under any special promotion, Your debit or credit card will be immediately charged for any applicable service fees or charges, without further authorization from You and in the absence of notification from you of your desire to terminate or cancel your account or the service, upon the expiration of any free trial period, or shall be charged any applicable additional fees upon expiration of any promotion.
(A) Fees: User shall pay to WEBTEXT a subscription fee according to the Service(s) chosen. The SMS account balance is non-refundable and does not bear interest. All purchases are considered final. The account is valid for 1 year from date of purchase, and any existing account balance will be reset to zero without prior notice unless User reloads the account before the expiration date. If a succeeding prepayment is made before the 1 year expiration, any unused cash credit is carried over to the next period, otherwise it is expired. The terms and conditions shall remain in full force and effect. User’s Account will automatically expire in the event the Account does not have any more credit. The Account will be re-activated upon payment for new credit. Any credit purchased must be used up within 1 year from the date on which it is purchased.
(B) Non-WEBTEXT Fees: Your wireless service provider or pager company may charge You (i) a fee for the ability to receive text messages, or a per message fee for the delivery (or attempted delivery) of text messages to Your cellular phone or pager, (ii) airtime or other connection fees in connection with Your downloading of information or messages from or uploading of information or messages to the Service(s), and/or (iii) roaming fees if delivery of a text message occurs outside of certain geographical areas. You are responsible for paying all such fees, and for any other hardware, service or other costs You incur to access Your Account, plus any applicable taxes. Users will be charged separately for use of the Services in accordance with this Agreement and the terms set forth on the Site.
(C) Payment: Subscription fees are prepaid and are payable through credit cards. WEBTEXT reserves the right to suspend or terminate Your use of the Service without notice upon rejection of any credit card charges, debit card charges or if Your card issuer (or its agent or affiliate) seeks return of payments previously made to WEBTEXT and as to which WEBTEXT believes such payments were proper. In addition, WEBTEXT has the right to seek any fees, damages, expenses or the like arising from Your failure to pay WEBTEXT for use of the Service, including, but not limited to, fees charged to WEBTEXT by any credit card issuer or its agent as a penalty for reversing any payment (i.e., a charge back fee) as well as collection fees and expenses, court costs, and attorney’s fees.
(D) You must promptly notify WEBTEXT in the event of any changes to Your account or billing information or in the event that Your charge card or debit card is cancelled for any reason.
(E) WEBTEXT reserves the right to charge 5 euro cents for inbound messages sent to Your dedicated or shared virtual mobile number in the case where the number of such messages is equal to or greater than the total number of messages sent from the same account.
If charges are payable by invoice, then all charges shall be due and payable, in the currency as detailed in these terms and conditions, and as detailed in the Customer’s order form (if applicable), within thirty (30) calendar days after the receipt of the invoice. Any undisputed amount not paid when due shall bear interest at the compound rate of 1.5% per month. The Customer shall be responsible for maintaining with WEBTEXT at all times its billing address and contact persons who will be responsible for receiving monthly invoices.
The Customer shall provide written notice of any disputes, claims or issues within thirty (30) calendar days of the date of WEBTEXT’s invoice or such disputes, claims or issues shall be deemed waived.
All charges for Service(s) under this Agreement shall include any applicable taxes, assessments or other fees, charges or duties incurred by WEBTEXT with respect to the Service(s) provided or equipment furnished under this Agreement.
Fees will be billed as follows:
- Long number rental fees are invoiced monthly
- Extended support fees are invoiced monthly
- WEBTEXT reserves the right to pass on to the Customer, at 24 hours written notice, any increase in WEBTEXT’s supplier message usage charges. In the event of changes to charges, the Customer may provide WEBTEXT with Termination notice of no less than ninety (90) days.
- Usage Based Messaging Fees: The actual Usage Based Messaging Fees will be invoiced monthly, within thirty (30) days following the month in which the message is processed by WEBTEXT. In the event Usage Based Messaging Fees are less than the applicable minimum monthly charge, the minimum monthly charge will be invoiced.
- The Customer will be required, unless prohibited by law, to receive all WEBTEXT invoices via email. The Customer will indicate on the order form, and be responsible for maintaining with WEBTEXT at all times, its billing address and two (2) invoice contact persons who will be responsible for receiving monthly invoices. Should the Customer’s email address for invoicing change, the Customer will be responsible to provide WEBTEXT with the updated email address within 7 days of the email address change.
Pricing Assumptions
- Payments will be made in the currency specified in the order form (if applicable) or used on the account.
- WEBTEXT is not responsible for any charges, including interconnection, access, termination, pager, wireless, or landline phone charges to Customer or any End User, or which any recipient of a message incurs as a result of the use of the Services. Customer will advise End Users that senders and recipients of messages using the Services may incur third party (e.g. wireless service provider) charges for which they will be responsible.
PLEASE BE ADVISED:
(a) You expressly agree that all charges for payment of the Services are final and non-refundable. You are responsible for all charges resulting from Your use of the Services. Once You sign up for the Services and provide a form of payment, WEBTEXT will not provide You a refund for any charge made on Your credit card, debit card or any payments.
(b) If You believe that You have been improperly charged for any Service, You must notify WEBTEXT within 5 days of any invoice or credit card statement, provide WEBTEXT any information necessary to review the claim, and WEBTEXT will attempt to resolve the claim in a timely manner.
WEBTEXT DOES NOT CONDONE FRAUD: In the event of any unauthorized use of Your account or unauthorized credit card charges or debit card charges, You must notify WEBTEXT, and You will be responsible for such unauthorized use or charges until You notify WEBTEXT. You must also adopt any steps necessary to prevent any further unauthorized use of Your account or unauthorized charges.
Upon expiration of the subscription for the Services, WEBTEXT shall automatically renew Your subscription and charge Your credit or debit card. If You do not wish to renew, You must notify WEBTEXT at cancel(at)webtext.com no less than 5 days prior to the expiration of Your subscription otherwise You shall be responsible for all fees and charges incurred for such renewal.
WEBTEXT shall have the right to terminate Your account immediately, and You shall have no right to a refund of any service fees or charges, in the event You in any manner violate these Terms and Conditions or the Privacy Policy or any other applicable WEBTEXT policy, rule or conditions of use. While You may choose to terminate Your account voluntarily at any time, You will not have a right to any refund of any service fees or charges.
6. USE OF ACCOUNT
(A) You and other users of Your Account must comply with all applicable laws and regulations in using the Service. You may not use the Service for any of the following purposes or in any of the following manners: (i) to impersonate or harass any other person; (ii) to send any information that is or the disclosure of which would be libellous, abusive, threatening, false, fraudulent, misleading, or obscene; that misappropriates or infringes any person’s proprietary right (including posting any links or URLs that You do not have the right to post or disclose); (iii) that violates any person’s rights of privacy or publicity, (iv) to send messages that contain any sexual, racist or discriminatory content constituting harassment of any individual or organization, (v) that constitutes or that violates any law, statute, ordinance or regulation (including applicable export control, consumer protection, unfair competition, anti-discrimination or false advertising laws, and without limiting the foregoing You specifically agree to comply with all applicable laws regarding the transmission of the technical data exported from the United States or the country in which You reside; (vi) to intercept any communications not intended for you; (vii) to release, post, distribute or execute any viruses or other harmful computer code; or (viii) to upload, post, email, or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party or (ix) to engage in “spamming,” transmission of “junk mail” or “chain letters” or unsolicited mass distribution of SMS and e-mail or any similar conduct.
(B) WEBTEXT does not control the data, information or other postings provided by other users that are made available through the Service. You may find other users’ information to be offensive, harmful, inaccurate, or deceptive or to otherwise violate this Agreement. Please use caution and common sense when using the Service or relying on any data, information or other postings provided through the Service.
(C) At our option and without further notice, we may use anti-spam technologies, such as automatic word and spam filters, that may terminate messages You send without delivering them or prevent messages from reaching You. User may not use the Service in a way that imposes an unreasonable or disproportionately large load (as determined by us in light of the purposes for which You are using the Service and the load imposed by other users generally) on our infrastructure or that otherwise would harm or breach our arrangements with any of our service providers.
(D) You acknowledge that WEBTEXT may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that messages or other uploaded content will be retained by the Service, the maximum number of messages that may be sent from or received by an account on the Service, the maximum size of any message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on the servers on Your behalf, and the maximum number of times (and the maximum duration for which) You may access the Service in a given period of time. You agree that WEBTEXT has no responsibility or liability for the deletion or failure to store any messages and other communications or other content maintained or transmitted by the Service. You acknowledge that WEBTEXT reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that WEBTEXT reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
(E) After a successful registration, You may receive advertisements, promotions or similar messages on Your mobile phone, personal computer or other similar device from WEBTEXT.
(F) User agrees that WEBTEXT may terminate User’s Account and use of the Service (and other WEBTEXT services) if WEBTEXT believes User has in any manner (i) violated the terms and conditions of this Section 4, (ii) violated the Service Terms and Conditions or the Terms and Conditions of the Site or any other service offered by WEBTEXT, (iii) violated this Agreement, (iv) provided WEBTEXT false, inaccurate or incomplete not current information, or (v) violated any applicable law, regulation or rule of any state or country.
7. PRIVACY
WEBTEXT recognizes that our users have legitimate concerns about privacy.
A. The Customer acknowledges that in connection with the Customer’s and End Users’ use of the Services, WEBTEXT may receive domain names, Customer’s Client or End User names, addresses, passwords, telephone and device numbers, the Content of messages, data files and other data and information provided by End Users or in connection with the Services (collectively “User Information”). WEBTEXT exercises no control whatsoever over any Content or User Information, including the Content of messages and information that may be transmitted and/or generated using the Services. WEBTEXT’s responsibilities are limited to storing the User Information and transmitting the User Information to and from the Customer, the Customer’s Clients, End Users, and other third parties identified by the Customer, the Customer’s Clients, or End Users. WEBTEXT has no obligation and undertakes no responsibility to review User Information to determine whether any such User Information may violate any applicable law or regulation, or create liability to, or on the part of, any third party. The Customer is solely responsible for the Content of all User Information and transmissions thereof and use of the Services. Without prejudice to the foregoing, WEBTEXT reserves the right to monitor Customer’s, Customer’s Clients’, and End Users’ use of the Services for purposes of verifying compliance with the terms and conditions of the AUP provided that WEBTEXT disclaims any obligation to monitor, filter, or edit any of Customer’s, Customer’s Clients’, or End Users’ Content.
B. WEBTEXT will not use or disclose confidential End User Information, except as necessary or required, in any of the following instances:
i. as required by law, regulation or third parties (e.g. wireless service providers) involved in providing the Services,
ii. to provide and/or invoice Customer for the Services, and/or
iii. to protect WEBTEXT, its facilities, network, service, Customers or third parties.
C. Customer acknowledges that (i) End Users who use the Services are also the end user Customers of the carriers whose services are used by WEBTEXT to transmit messages over the carrier networks; and (ii) Carriers assert that information of or about carriers’ end user Customers (who may also be Customer’s End Users) derived solely by such end user Customers’ use of the carriers’ networks is confidential information of the carriers and the private information of such end user Customers of the carriers.
8. CONTENT
You understand that WEBTEXT has no editorial control over any third party content and that WEBTEXT does not guarantee the accuracy or completeness of any third party content. You agree that WEBTEXT will have no liability to You, or anyone else who uses Your Account, with regard to any third party content. Under no circumstances will WEBTEXT be liable in any way for any Content, including but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the user of any Content posted, emailed, or otherwise transmitted via the Service. You also understand that the third party content is the proprietary material of WEBTEXT and/or the third party that supplies it, is protected by copyright and other applicable laws, and may not be reproduced, published, broadcasted, rewritten, or redistributed without the written permission of the third party that supplied it, except to the extent allowed under the “fair use” provisions of the U. S. copyright laws or comparable provisions of foreign laws.
9. MODIFICATION TO THE SERVICE
(A) User acknowledges that WEBTEXT is dependent on various telecommunications networks and institutions for the delivery of its messages and that WEBTEXT may adjust its prices and offering, should the prices be adjusted due to reasons that are not within WEBTEXT’s control. User will be notified of any such changes through publication on the Site.
(B) You understand that WEBTEXT may, in its discretion, from time to time change, add, or remove certain features of the Service or change the terms of this Agreement by informing You through publication on the WEBTEXT website or through an email describing the changes. If You are dissatisfied with any such changes to the Service or this Agreement, You may cancel Your Account as provided in Section 14 of this Agreement. In addition, WEBTEXT reserves the right to discontinue the Service altogether for all users at any time in its discretion.
10. DISCLAIMERS AND WARRANTIES
WEBTEXT warrants that it will provide its services with due care and in a workmanlike manner. Except for this express warranty, WEBTEXT makes no other representations or warranties, express or implied, including, but not limited to, any warranties of merchantability or suitability, or fitness for a particular purpose or non-infringement of Intellectual Property.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL WEBTEXT OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, TOLL FRAUD, COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE. THE TOTAL AGGREGATE LIABILITY OF EACH OF WEBTEXT FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE BY COMPANY UNDER THESE TERMS IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. HOWEVER, THEY WILL NOT APPLY IN CASES OF WILLFUL MISCONDUCT, PERSONAL INJURY OR BREACHES OF COMPANY’S LICENSE RESTRICTIONS. THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SUPPLIERS.
12. INDEMNITY
The Customer will defend, indemnify, and hold harmless WEBTEXT in connection with any claims or proceedings brought against The Customer or WEBTEXT alleging that The Customer, The Customer’s employees or agents, or The Customer’s end users’ violation of an applicable Acceptable Use Policy or use or misuse of the Service(s) constitutes an infringement of any existing patent, copyright, or trademark of third parties, or violates rights of a third party. The Customer shall indemnify WEBTEXT against all costs, damages, and expenses finally awarded against WEBTEXT attributable to such claim. The Customer is solely responsible for any and all activities that occur on its Services account.
WEBTEXT hereby expressly disclaims any warranties, express or implied, related to intellectual property rights.
13. CONFIDENTIALITY
Neither WEBTEXT nor its Customer will directly or indirectly disclose any information concerning the other’s business methods, Customers or finances, or any other information which is disclosed to it, whether or not in writing and whether or not designated as confidential, without the prior written permission of the other, unless such disclosure is specifically required in the course of performance by either of them.
14. SUSPENSION AND TERMINATION OF ACCOUNT
TERM AND TERMINATION
The minimum period for which WEBTEXT will provide its services is for an initial term of one year from the Effective Date (“Initial Term”) and shall renew automatically for successive one-year periods (“Renewal Term”), unless The Customer provides ninety (90) days or WEBTEXT provides ninety (90) days written notice prior to the end of the initial or any “Renewal Term”.
DEFAULT TERMINATION
The occurrence of any of the following shall constitute a default, giving WEBTEXT the right to terminate its services on the provision of written notice:
(a) a material breach of these terms and conditions by the Customer and if such failure continues for a period of thirty (30) calendar days after the receipt of written notice thereof; or
(b) any insolvency, reorganization, bankruptcy, liquidation, assignment for the benefit of creditors, appointment of a trustee or receiver, or other similar event.
Upon the written notification of default to The Customer pursuant to sub-section (a) of this Article, WEBTEXT reserves the right to immediately suspend its services.
SERVICE SUSPENSION
WEBTEXT may modify, suspend, limit, restrict, and place conditions on the Services, and/or terminate the Services with advance notice, unless advance notice is not feasible or practicable under the circumstances, if:
i. necessary to comply with applicable laws, regulations, or requirements of wireless service providers, Short Code providers/licensors, mobile industry associations and regulatory/governmental authorities or other third parties related to the Services;
ii. a law or regulatory action prohibits, impairs or makes impractical the provision of the Services;
iii. there is use of the Services which WEBTEXT determines may create liability or may be fraudulent, illegal, unauthorized or in violation of the Acceptable Use Policy;
iv. there is unauthorized use or disclosure of the API; and/or provided that with respect to any of the foregoing, WEBTEXT and Customer will engage in reasonable and good faith discussions, as soon as reasonably practicable, to explain the reasons for the modification, suspension, limitation, restriction, or condition and to discuss mutually beneficial ways of avoiding, or in the event such actions have occurred, resolving any issues arising from such modification, suspension, limitation, restriction, or condition.
EFFECTS OF TERMINATION
i. Customer is solely responsible for procuring any new or replacement Services upon termination;
ii. Customer will remain obligated for any fees and costs accrued prior to the termination date and any other amounts owed by Customer accrued prior to termination date.
15. SERVICES
Under these terms and conditions, the Customer is permitted to use the Services solely in connection with the Customer’s or the Customer’s Clients’ use of the Service. As used herein, “Client” or “Clients” means an entity that purchases Services for its own internal business purposes from the Customer. The Customer is responsible for any use of the Services by the Customer, the Customer’s Clients, or the Customer’s Clients’ End Users and for any violation of the Services by the Customer, the Customer’s Clients, or the Customer’s Clients’ End Users and agrees to indemnify WEBTEXT from any legal claims initiated by either clients, third parties or end users Except with respect to the Customer’s resale of the Services to its Clients as provided for herein, the Customer is expressly prohibited from copying, sublicensing, reselling, renting, leasing or otherwise redistributing the Services, or permitting either direct or indirect use of the Services by any third party. The Customer agrees not to modify, disassemble, decompile, reverse engineer, or create derivative works of the Service. In the event any modifications are made to the Services by anyone other than WEBTEXT, any and all warranties with respect to the Services will immediately terminate.
16. SERVICE LEVEL AGREEMENT (“SLA”)
WEBTEXT will provide the Services detailed in the Service Level Agreement to persons who have contracted for “Extended Support” only (available on request). The SLA is not available to customers receiving basic support.
17. CUSTOMER’S RESPONSIBILITIES
The Customer will:
a. maintain the security of, and prevent unauthorized access to the Services.
b. allow WEBTEXT to list the Customer on WEBTEXT’s website and in press releases.
c. provide access to the Services from its network or data processing equipment via the Internet or telephone facilities and pay any service charges and fees associated with such access.
d. co-operate with WEBTEXT, third-party service providers, and governmental authorities in investigations of any alleged or perceived violation of any law, rule, regulation, or the Acceptable Use Policy (“AUP”) as detailed in Schedule B of these terms and conditions.
e. give all End Users and any third parties located in North America to whom messages may be transmitted and all End Users and any third parties located elsewhere to whom marketing messages may be transmitted using the Services the rights to opt-in (which must be accepted in the affirmative by end user or third party prior to sending a message) and opt-out of the SMS message or marketing message as the case may be. The Customer agrees to indemnify WEBTEXT from any legal claims initiated by either clients, third parties or End Users arising from Customers’ failure to follow the opt in and opt out procedures.
18. LINKS
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. User agrees that WEBTEXT is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that WEBTEXT shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
19. INTELLECTUAL PROPERTY RIGHTS
All right and title to, and interest in, the Service(s), and any software including all modifications, enhancements, improvements, alterations or updates, utilized by WEBTEXT or licensed to The Customer by WEBTEXT to provide the Service(s) pursuant to these terms and conditions, belong to WEBTEXT or the third party from whom WEBTEXT procures software. Unless specifically stated in these terms and conditions, no licenses, expressed or implied, under any patents, copyrights, trademarks, or other tangible or intellectual property rights are granted by WEBTEXT to The Customer.
20. THIRD PARTY FACTORS AND EXTENT OF CONTROL
Customer acknowledges that WEBTEXT’s provision of the Services is dependent on the facilities, networks, connectivity, and any acts and/or omissions of third party wireless service providers (“Carriers”) and/or any third party aggregators (collectively, including the Carriers, “Third Party Factors”). The Customer acknowledges that the performance of the Services may be affected by such Third Party Factors. Third Party Factors are deemed to be outside WEBTEXT’s extent of control. WEBTEXT’s “Extent of Control” is defined as those areas of functionality and technology used in the provision of the Services that are under the direct control of WEBTEXT (excluding Third Party Factors). WEBTEXT will have no liability for any reduction, interruption, termination or suspension of the Services related to any issues deemed by WEBTEXT to be outside WEBTEXT’s span of control. Neither WEBTEXT, its suppliers, nor any carrier:
A. will be liable to the Customer or any user for any discrete or individual messages deleted or not delivered, regardless of the reason for deletion or non-delivery including, without limitation, message processing or transmission errors; nor
B. makes any representations or warranties regarding the quality, reliability, timeliness or security of the services or that the services will be error-free, uninterrupted, or free from unauthorized access. The services are provided “as is”, “with all faults”. To the maximum extent permitted by applicable law, WEBTEXT expressly disclaims all implied and/or statutory warranties with respect to the services.
21. ACCEPTABLE USE
A. The Customer and all persons and entities accessing the Services provided to the Customer, including the Customer’s End Users, the Customer’s Clients, employees, agents, representatives and third-party contractors must comply with WEBTEXT’s latest AUP (see schedule A). The Customer is solely responsible for any and all activities that occur on its Services account.
B. The Customer will defend, indemnify, and hold harmless WEBTEXT from and against all third party Claims arising from The Customer’s or the Customer’s Clients, including Customer’s End Users, employees, agents, representatives and third-party contractors’ violation of the AUP.
C. Customer agrees to immediately notify WEBTEXT of any unauthorized use of the Services or any other breach of security known to Customer.
D. Because carriers may require changes to the use restrictions imposed on WEBTEXT from time to time, WEBTEXT may modify the AUP from time to time upon receipt of such changes from carriers. WEBTEXT will give Customer prompt written notice of any changes to the AUP.
22. MISCELLANEOUS
If any provision of this Agreement is invalid or unenforceable under applicable law, such provision will be deemed modified to the extent necessary to render such provision valid and enforceable and the other provisions of this Agreement will remain in full force and effect. This document and the pages referred to herein represent the entire agreement governing use of the SMS Service and supersede any prior or contemporaneous written or oral statements by WEBTEXT or its representatives or resellers. The failure of WEBTEXT to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement may not be amended except as provided in Section 7.
WEBTEXT may assign this Agreement in accordance with the sale of all or substantially all of its stock or membership interest or all or substantially all of its assets to a third party.
(a) Force Majeure. Neither WEBTEXT nor The Customer shall be responsible for any failure to perform its obligations hereunder (except The Customer’s obligation to make payments when due) arising from causes beyond its reasonable control that make such performance commercially impracticable or impossible, including, but not limited to, fires, strikes, embargoes, allocations of supplies, wars, floods, earthquakes, nuclear disasters, and acts of God.
(b) No Third-Party Beneficiaries. These terms and conditions are not intended, nor shall they be construed, to create or convert any right in or upon any person or entity other than WEBTEXT and The Customer.
(c) Notices. Any notice or other communication required shall be given in writing. Any notice or other communication required hereunder shall be deemed to have been given when a) delivered personally; or b) receipt returned from registered mail.
(d) Independent Contractor. WEBTEXT will perform its obligations as an independent contractor and not as the employee or agent of The Customer.
(e) Severability. Each provision of these terms and conditions is severable from the whole, and if one provision is declared invalid, the other provisions shall continue in full force and effect.
(f) No Waiver. Any failure to enforce a specific clause of these terms and conditions, or the waiver thereof in any instance, shall not be construed as a general waiver of rights.
(g) Compliance with Laws. Both WEBTEXT and the Customer shall comply with all applicable national, federal, state, and local laws, regulations and codes, including the procurement of permits and licenses, when needed, of their respective states, territories, and/or countries.
(h) Governing Law. For North American Customers all dealings between WEBTEXT and the Customer shall be subject to and interpreted in accordance with the laws of the state of Pennsylvania and the courts of Pennsylvania shall have jurisdiction thereof. For Customers not located in North America all dealings between WEBTEXT and the Customer shall be subject to and interpreted in accordance with the laws of Ireland and the courts of Ireland shall have jurisdiction thereof.
23. MODIFICATION
WEBTEXT may revise this Agreement from time to time and the most current version will always be posted on the WEBTEXT website. If a revision, in WEBTEXT’s sole discretion, is material, WEBTEXT will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to WEBTEXT’s terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 90 days of receiving notice of the change.
Schedule A
ACCEPTABLE USE POLICY
Customer, Customer’s Clients, and all persons and entities accessing the Services must comply with this Acceptable Use Policy (“AUP”). By using the Services, Customer acknowledges, and agrees to ensure compliance with, this AUP.
Restrictions on Use. Without limiting the foregoing, Customer agrees not to permit the Services to be used to transmit or disseminate any:
i. unsolicited material to persons or entities that have not agreed to receive such material or to whom Customer or its End Users do not otherwise have a legal right to send such material;
ii. material or data that infringes or violates any third party’s intellectual property rights, including patent, copyright, trademark, or trade secret, rights of publicity, privacy, or confidentiality, or the rights or legal obligations of any wireless service provider or any of its Customers or subscribers;
iii. material or data, that is illegal, or material or data that is harassing, coercive, defamatory, libelous, abusive, threatening, obscene, or otherwise objectionable, materials that are harmful to minors or excessive in quantity, or materials the transmission of which could diminish or harm the reputation of WEBTEXT or any third-party service provider involved in the provision of the Services;
iv. material or data that is alcoholic beverage-related (e.g., beer, wine, or liquor), tobacco-related (e.g., cigarettes, cigars, pipes, chewing tobacco), guns or weapons-related (e.g., firearms, bullets), illegal drugs-related (e.g., marijuana, cocaine), pornographic-related (e.g., adult themes, explicit sexual content), crime-related (e.g., organized crime, notorious characters), violence-related (e.g., violent games), death-related (e.g., funeral homes, mortuaries), hate-related (e.g., racist organizations), gambling-related (e.g., casinos, lotteries), specifically mentions any wireless carrier or copies or parodies the products or Services of any wireless carrier;
v. viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
vi. material or information that is false or misleading, or likely to mislead or deceive;
vii. any signal or impulse that could cause electrical, magnetic, optical, or other technical harm to the equipment or facilities of WEBTEXT or any third party.
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