The Service
We may, at any time, modify these Terms and Conditions of Use, including our Privacy Policy. Any such modification will be effective immediately upon public posting. Your continued use of our Service and this Site following any such modification constitutes your acceptance of these modified Terms.
TextVending May Change or Suspend Services at its sole discretion, terminate or suspend the access to the Services or any portion thereof of any user for any reason.
Textvending wants your feedback and suggestions on how to make our service better.
Textvending Marketing Alerts is a subscription alert service which provides consumers with recurring alerts, updates, news, information and promotions through via SMS. This is a standard-rate SMS service and as such message and data rates may apply. Subscribers will receive one (1) opt-in confirmation message. By opting into Textvending Marketing Alerts the subscriber agrees to receive prewritten marketing messages from or on behalf of Textvending via short code 420247 and understands that consent is not a condition of purchase. You will not receive any unsolicited messages from this short code. The service is not intended for children under 13, and Student Help Center does not knowingly collect information from children under the age of 13
HELP: Send or reply ‘HELP’ to short code 420247 for assistance. For additional customer support, contact us by: 1(888) [email protected] STOP: Send STOP, QUIT, END, CANCEL or UNSUBSCRIBE to 420247 at any time to opt out of the service.
ACTIVE KEYWORDS: JOIN, HELP, STOP, END, QUIT, CANCEL, UNSUBSCRIBE
SUPPORTED CARRIERS: Carriers are not liable for delayed or undelivered messages. Textvending Marketing Alerts is available on the following carriers:
Alltel, Boost, AT&T, Nextel, Sprint, T-Mobile, Verizon Wireless, Metro PCS, Virgin Mobile US, ACS Wireless, All West Wireless, Amerilink Wireless, Arch Wireless, Bluegrass, Cellcom, Cellular One, C-Spire, Centennial, Central Wireless, Cincinnati Bell, Cox Communications, Cricket, CTC Telecom, Dobson Cellular, ECIT, Edge Wireless, FMTC, Immix, Inland Cellular, Illinois Valley Cellular, Iowa Wireless, Metrocall US, Mid-text Cellular, Midwest Wireless, NNTC, North Coast PCS, Ntelos, Pocket Wireless, Revol, Rural Cell, Qwest Wireless, Silverstar, Southwestern Bell, Suncorn, West Central Wireless. * Sprint does not support standard rate video * Boost, VMU, & Nextel do not support MMS services
Eligibility
You must be at least 18 years old to be eligible to use the Services. However, if you are at least 13 years old but not yet 18, you may use the Services if, and only if, you have your parents’ or guardians’ prior permission. No one under age 13 may use the Services under any circumstances. By clicking the “SUBSCRIBE” button you are representing that you are at least 18, or that you are at least 13 years old and have your parents’ permission to register for the Services.
Costs
There may be some costs associated with the use of TextVending and its Clients services. For example, your pager or cellular phone service provider may charge you to receive Wireless Text Messages. Neither TextVending, its partners, or its clients, will be held responsible for any charges related to the use of the Services.
Warranty & Disclaimer
TEXTVending PROVIDES THE SERVICES “AS IS” WITH NO WARRANTIES OF ANY KIND. TEXTVending EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS.
* Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL TEXTVending OR ITS EMPLOYEES, OFFICERS, OR DIRECTORS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SERVICES WHETHER OR NOT TEXTVending HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If you are dissatisfied with the Services or any content on any of TextVending’s or its client’s website properties, or with these Terms and Conditions, your sole and exclusive remedy is to discontinue using the Services. You acknowledge, by your use of the Services, that your use of the Services is at your sole risk.
Indemnity
You agree to indemnify, defend and hold harmless TextVending, its partners, clients, employees, officers and directors, from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable attorneys’ fees) arising from (i) any content that you or anyone using your account may submit, post or transmit to the web site; (ii) your use of the Services; (iii) your violation of the terms of these Terms and Conditions; and (iv) any violation or failure by you to comply with all laws and regulations in connection with the Services.
Assignment
You may not assign any of your rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of TextVending or its client’s. Any such purported assignment or delegation by you without the appropriate prior written consent of TextVending or its client’s will be null and void and of no force or effect.
All clients must agree to and abide by these Terms and Conditions:
READ THESE TERMS CAREFULLY BEFORE USING THIS SERVICE. BY USING THIS SERVICE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO BINDING AGREEMENTS EITHER INDIVIDUALLY OR ON BEHALF OF YOUR COMPANY AND ARE NOW COMPLETING SUCH A BINDING AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND ALL OTHER ADDITIONAL OR CONTRARY DOCUMENTS, OR REPRESENTATIONS, WRITTEN OR ORAL, ARE HEREBY REJECTED AND SHALL NOT BE BINDING.
1. INTRODUCTION
1.1 Introduction
The technology for this message delivery platform (“!”) is provided by TextVending Inc. (“TextVending “) and is furnished “as is” under this License Agreement (“Agreement”) for the fees specified in our pricing plan. You must read this Agreement and agree to its terms before you may create an account with TextVending.
1.2 Modification of This License Agreement.
TextVending reserves the right to change this Agreement and any additional terms at anytime, effective upon making the modified provisions available on the TextVending web site (www.TextVending.com). You are responsible for regularly reviewing these terms and conditions. Continued use of TextVending after any such changes shall constitute your consent to such changes, including changes in fees. TextVending does not and will not assume any obligation to notify you of any changes to the terms of use and notices, or additional terms.
2. LICENSE
2.1 License
TextVending grants you (referred herein as “you” or “client”) a non-exclusive, nontransferable license to create an account for and use. Your organization in accordance with the terms of this Agreement. The information provided on this web site regarding Features and Pricing, Privacy Policy, and Anti-Spam Policy is incorporated herein by reference. You specifically understand and agree that TextVending and any associated documentation are and shall remain the sole and exclusive property of TextVending, and is copyrighted and licensed, not sold.
2.2 Services Provided.
TextVending shall provide some or all of the following services, depending on services availability, and the service contract purchased: account management platform; e-mail messaging, including bounce reports, subscriber reports, campaign reports and others; voice messaging and call campaign (voice call), including Intelligent Answering and Filtering and detailed reports; text messaging to domestic customers, including 2-way premium campaigns (e.g., for contests or polls) and results reports; fax messaging with detailed delivery reports; other services as may be/become available; and reasonable technical and administrative support (collectively, “Service” or “Services”).
TextVending is accountable for providing the Services, but provides said Services “as is” and is only responsible for ensuring that the client’s messages leave the TextVending network. TextVending is not and cannot be responsible for the ultimate delivery of the client’s messages, and makes no such warranty or guarantee. Textvending is not responsible for the databases that have been uploaded and stored on our servers and is not required nor obligated to send copy’s of databases to anyone for any reason. TextVending reserves the right to send, dispatch, remit, transmit and/or forward any type, category or form of communication to you including, but not limited to, e-mails, SMS/text messages, facsimiles and/or telephone calls to address or discuss any issue related to TextVending’s Services.
2.3 Copyright.
TextVending’s databases contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions. All rights not granted to you herein are expressly reserved by TextVending. You may not remove any material belonging to TextVending from any web site or any of TextVending’s databases. You are not authorized to use TextVending’s name, logos or any related product and service names, design marks and slogans in any advertising, publicity or any other commercial manner without the prior written consent of TextVending.
2.4 Confidentiality.
You acknowledge that TextVending possesses valuable trade secrets and agrees to maintain the confidentiality of TextVending’s proprietary materials. TextVending agrees to maintain as confidential your e-mail, phone, fax, physical mailing addresses, instant message handles and pager list(s). TextVending agrees not to compile, buy, sell, rent, rent or trade your e-mail, phone, fax, physical mailing addresses, instant message handles or pager list(s), or send unauthorized emails, instant messages, wireless text messages (SMS), direct mail, voice messages or faxes to any individual or entity on your list(s). TextVending further agrees not to use your customer list(s) or any other customer information for any other purposes than those intended with the Service. Your customer information shall not be shared with any other third parties unless required by law. TextVending will provide you with reasonable advance notice prior to disclosing confidential information on this basis and agrees to stipulate to any orders necessary to protect said information from public disclosure.
2.5 Restrictions.
TextVending maintains a Global Permanent Removal List which contains addresses and domains which it will not allow any customer to add to a database. You understand and agree that TextVending has full discretion to block the uploading of any e-mail address which it has placed on such a list, and will not be liable for the blocking of any such address from any customer database.
You shall not: (1) use or copy TextVending’s platform, network, marks or web site or its associated documentation except as provided in this License Agreement; (2) modify or merge TextVending’s platform, network, marks or web site or its associated documentation; (3) publish, display, disclose, rent, lease, modify, loan, distribute, create or otherwise make available the derivative works based on TextVending’s platform, network, marks or web site or its associated documentation or any part thereof, in whole or in part, to any other person or entity; (4) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on TextVending’s platform, network, marks or web site or its associated documentation; (6) reverse engineer, decompile, translate, adapt, or dissemble TextVending’s platform, network, web site or its associated documentation, nor shall you attempt to create the source code from the object code for TextVending’s platform, network, or web site or its associated documentation; (7) sublicense or assign the license for TextVending’s platform, network, marks or web site or its associated documentation; and (8) copy these terms and conditions or this License Agreement for you and your customers’ own use. You shall have the right to copy specific sections as a means of complying with such section in your agreements with its independent contractors, e.g., your customers.
You must include the relevant subscribe/unsubscribe information (as well as a physical address for the CAN SPAM act and an abuse link to TextVending’s abuse system) provided by TextVending in each message you send using TextVending’s email platforms. You shall also honor in a timely manner all unsubscribe requests sent directly to you from those who elected not to use TextVending’s automated subscribe/unsubscribe features, regardless of how harsh or unpleasant the unsubscribe request may be.
You shall not use TextVending or its networks to:
1. send unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes (a.k.a., “Spam”) to anyone;
2. send unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes to email addresses, phone/pager numbers, landline phones or fax machines, obtained from any purchased or harvested lists in which the recipient did not expressly request to receive your message (or your customers’ messages);
3. send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that harass, embarrass, defame, abuse, threaten, libel, slander or otherwise violate the legal rights of any individual, group, or organization;
4. send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by TextVending;
5. send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contains copyrighted material, including text, graphics (including trademarked material), software or other material protected by intellectual property law, for which you do not have a lawful authorization to reproduce, publish, or otherwise distribute;
6. send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain a computer virus or other code or file that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group or organization;
7. perform or promote illegal activities such as starting or forwarding chain letters, illegal contests or promotions, or any other activity that is illegal;
8. impersonate, use the name of (without express permission) or misrepresent any individual, group or organization;
9. violate any applicable governmental laws or regulations or perform any activity that would cause TextVending to violate any law, statute or regulation.
Although TextVending has no obligation to monitor the content provided by you or your use of the Services, it may do so and may remove any such content or prohibit any use of the Services TextVending believes may be (or is alleged to be) in violation of the foregoing, provided that TextVending provides you with reasonable notice prior to taking such action.
2.6. “No Spam” and Privacy Policies
You represent, covenant and warrant that you shall use the Services only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity or defamation).
In the event you use the Service to conduct telemarketing activities, you shall warrant to TextVending that you will take all required actions necessary to comply with applicable state and federal “DO NOT CALL” and telemarketing registration statutes and regulations, and you shall not use the Service in a manner which will result in a violation of any laws or regulation respecting such Service, including but not limited to the Federal Telephone Consumer Protection Act, 27 U.S.C. § 227, et seq..
You shall use TextVending only for “opt-in” lists, lists in which the recipient has voluntarily signed up to be on your list and has not requested to be unsubscribed. Any messages sent to users who did not request to be on your or your customers’ lists, whether purchased or otherwise obtained without the recipients’ consent, shall be deemed as “Spam” and may result in termination of your account without refund and legal action, including the pursuit of damages, against you for violating our “No Spam” policy.
You shall also agree to abide by and display a Privacy Policy or link to a Privacy Policy on your signup page. You shall either (1) use the Privacy Policy provided by TextVending (attached as Exhibit D) or (2) use a Privacy Policy that contains the same provisions, or their equivalent, as the Privacy Policy that is provided by TextVending. Any violation of this Privacy Policy may result in termination of your account without refund and the commencement of legal action against you. You agree to indemnify and hold TextVending harmless from any damages and claims arising from any violation of this policy.
TextVending is compliant with the CAN-SPAM laws and enforces such practices for all of its customers. TextVending also works closely with the major anti-spam organizations such as Mail Abuse Prevention System (MAPS), SpamCop, Spamhaus, and Spam Prevention Early Warning System (SPEWS) to ensure that all of its customers are not in violation of spamming policies.
You understand that e-mails that are sent through TextVending’s Services may generate abuse complaints from recipients. As a matter of privacy, TextVending does not have to share with you the e-mail addresses, instant message handles, phone numbers, pager numbers or fax numbers of those who complain about your campaigns.
2.7. Addressing Spam Complaints
You are responsible for ensuring that your campaigns do not generate a number of abuse complaints in excess of industry standards. An excessive number of such complaints may result in the termination of your account. TextVending, in conjunction with you, shall mutually determine whether your level of abuse complaints is within industry norms. In the event that your use of TextVending’s Services results in you being listed on SpamCop or any other anti-spam organization, TextVending reserves the right to require that you utilize a “double opt in” feature which will require newly added users to verify their assent to receiving your communications after they have been added to your database(s).
ISP FBL Complaints. TextVending is enrolled in feedback loops (“FBL”) which are offered by internet service providers to send back complaints when an end user designates the message as “spam.” The internet service provider tabulates the amount of complaints per campaign and assesses penalties when a campaign exceeds a particular threshold amount which is a percentage of the campaign’s volume. If your campaign exceeds FBL complaint thresholds, you shall be responsible for the following charges:
Abuse E-Mail Complaints. Abuse complaints are also transmitted via e-mail to [email protected] or via the TextVending corporate web site when a message recipient follows the “Complain” link located at the footer of each client e-mail message (http://www.TextVending.com/abuse.) For each such complaint, you shall be responsible for the following charges: $10 per each complaint; or $100 per complaint if you cannot show proof of an opt-in for the complainant (also calls for immediate hold and consultation with possible termination). These charges shall be payable by you within 30 days of receipt of invoice from TextVending.
Spamcop. SpamCop (located at www.spamcop.org) is one of the largest Blacklists on the Internet. An excessive number of complaints to SpamCop may result in a blockage of a mailing IP address and a disruption of TextVending’s Services to other customers. For any complaint submitted to SpamCop, TextVending, TextVending’s hosting company or received from SpamCop relating to any messages transmitted by you shall be responsible for the following charges:
2.8 Enforcement.
You acknowledge that upon your breach of Sections 2.3, 2.4, 2.5, or 2.6 TextVending shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief and you further agree to waive any right or claim to which you may be entitled to immunity or exemption from liability. TextVending may also seek damages as a result of such breach.
2.9 Term and Termination.
There is no long term contract to sign to use TextVending services but each plan is a recurring monthly subscription that is billed and charged on a monthly basis. You understand that this Agreement is effective from the date you create an account with TextVending and shall continue until the service is terminated either by you or by TextVending. TEXTVending MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OF THIS LICENSE. YOU WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED. TextVending may terminate this Agreement immediately if: i) you fail to comply with the terms of this Agreement; ii) your account is dormant for a period of 60 consecutive days; iii) the TextVending Service is discontinued; or iv) you have an overdue balance for any Services or products purchased on or through www.TextVending.com. If TextVending terminates your account, you must immediately stop using TextVending and associated documentation, including sample documents provided within TextVending, and all copies you made of them.
Subscription may only be terminated by providing written notice via email to TextVending’s billing department ([email protected]). Cancellation must be completed 3 days prior to the next billing period which occurs on the date displayed on your billing page via your user account. If account is not cancelled 3 days prior to your billing date, all Service fees will continue to be charged. You will not be entitled to any refund of fees paid. In the event that you are on a contract and terminate said contract before it has completed, you agree to pay an early termination fee equal to the higher of a) the amount remaining on the contract, or b) the difference between the highest equivalent non-contract monthly rate charged and the amount you actually paid for each month of Service under the agreement. TextVending may terminate this Agreement or the Services, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. TextVending shall have no liability to you or any third party because of such termination or action. Should TextVending take any such action, it will delete any of your archived data within 30 days after the date of termination. After termination, TextVending will provide upon request the list of unsubscribe requests from within 30 days of your last email campaign, but will not process said requests. If your account is classified (at TextVending’s sole discretion) as inactive for over 60 days, TextVending has the right to permanently remove your subscriber data. TextVending will attempt to contact you via email prior to taking any permanent removal actions.
2.10. Risks.
TextVending and its platforms may have errors and may produce unexpected results. Except as otherwise expressly provided herein, you agree that any use of TextVending’s platforms will be entirely at its own risk. You agree to backup you information and take other appropriate measures to protect programs and data. You may not allow a third party to use TextVending’s account and agree to indemnify and hold TextVending harmless from any damages or claims arising from such use by any third party. You specifically understand that you assume the risk of your messages actually reaching their destination, and that TextVending does not and cannot guarantee the ultimate delivery of your messages.
2.11. Controlled Substances
TextVending prohibits content related to the sale or promotion of substances that are classified as controlled substances under federal law, including Marijuana (Cannabis). TextVending prohibits content pertaining to Marijuana as well as CBD in any form for sale for any purpose, including medicinal or homeopathic. Marijuana and Cannabidiol (CBD) content is prohibited, regardless of whether legal within a given state. Failure to comply to these rules can result in account suspension or termination.
3. DISCLAIMER OF WARRANTIES AND REMEDIES
3.1 Disclaimer of Warranty.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TEXTVending’S SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEXTVending DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TEXTVending DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS PLATFORM WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT TEXTVending WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN TEXTVending’S PLATFORM WILL BE CORRECTED, OR THAT TEXTVending’S PLATFORM IS COMPATIBLE WITH ANY OTHER PARTICULAR PLATFORM.
YOU SPECIFICALLY UNDERSTAND THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF TEXTVending, THAT E-MAILS, INSTANT MESSAGES, TEXT MESSAGES, PHONE MESSAGES AND FAX MESSAGES MAY NOT REACH THEIR INTENDED RECIPIENTS, AND UNDERSTAND THAT TEXTVending CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF YOUR MESSAGES.
If you receive a claim that the use of the Services infringes a patent, copyright or other intellectual property right, you must promptly notify TextVending in writing. TextVending, at its own expense and option, may (i) defend and settle such claim, (ii) procure you the right to use the platform, (iii) modify or replace the platform to avoid infringement; or (iv) refund the license fees you paid, if applicable. Subject to Section 3.3 below, these are your sole and exclusive remedies for any and all claims you may have against TextVending arising out of or in connection with the use of TextVending’s platform, whether made or suffered by you and whether based in contract or in tort.
Short codes, telephone numbers, and other text message identifiers originate from our vendors, the North American Numbering Plan, and other institutions who are not under our control, and accordingly, while we use reasonable efforts, we cannot promise that you will be able to maintain or keep any specific text message short code, originating mobile number, or other specific message origination or destination code, address, or identifier (each of the foregoing, a “Code”) that we provide you, and we may not support Code portability. As between you and TextVending, we own all Codes which we provide as part of the Service, and reserve the right to reallocate them at our discretion when required or for other reasonable purposes. You acknowledge that if the TextVending services are suspended or terminated due to your non-payment or breach of this Agreement, you may not be able to obtain the same Codes or other account identifiers should you reactivate such services. YOU AGREE THAT WE HAVE NO LIABILITY FROM OR ARISING OUT OF ANY CODES WE PROVIDE, ANY REALLOCATION OR LOSS OF THE SAME, OR ANY DAMAGE OR LOSS YOU MAY SUFFER AS A RESULT, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, AND LOSS OF PROFITS OR BUSINESS ADVANTAGE, REGARDLESS OF THEORY, WHETHER TORT, CONTRACT, PROPERTY, RELIANCE, OR OTHERWISE.
3.2 Limitations of Liability
TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL TEXTVending BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE TEXTVending’S SERVICES, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF TEXTVending HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT TEXTVending IS FOUND LIABLE FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF TEXTVending TO YOU WILL BE LIMITED TO THE AMOUNT CLIENT PAID FOR THE SERVICES.
3.3 Indemnification.
You (the “Indemnitor”), at your own expense, shall indemnify, defend and hold harmless TextVending, its affiliates and their employees, representatives, agents and affiliates (the Indemnitee”), against any claim, suit, action, or other proceeding brought against the Indemnitee or any affiliate based on or arising from your use of the Services, including but not limited to a claim that any action violates any of the restrictions or terms and conditions, such as violation of the Privacy Policy or using TextVending platforms to send Spam, as set forth in this Agreement, infringes in any manner any intellectual property right of any third party or contains any material or information that is obscene, defamatory, libelous, slanderous, that violates any person’s right of publicity, privacy or personality or has otherwise resulted in any tort, injury, damage or harm to any person; provided, however, that in any such case: (i) the Indemnitees provides the Indemnitor with prompt notice of any such claim; (ii) the Indemnitee permits the Indemnitor to assume and control the defense of such action, with counsel chosen by Indemnitor (who shall be reasonably acceptable to the Indemnitee); and (iii) Indemnitor does not enter into any settlement or compromise of any such claim without the Indemnitee’s prior written consent, which consent shall not be unreasonably withheld. The Indemnitor agrees to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the Indemnitee or any affiliate in connection with or arising from any such claim, suit, action or proceeding. It is understood and agreed that TextVending does not intend and will not be required to edit or review for accuracy or appropriateness any content or material that client or its organization distributes using the your platforms, networks or databases.
3.4 Damages.
You understand that the sending of unsolicited messages may result in fines, penalties, and the blocking of servers by spam filters and other spam preventing measures, and you shall reimburse TextVending for any fines or penalties assessed against, and shall be liable for damages caused to TextVending’s server which is blocked as a result of your use of TextVending’s Services covered herein. In addition to penalties which TextVending may impose if your campaign results in a server being blocked, TextVending shall have the right to charge your account for any time spent by TextVending agents or employees addressing issues arising out of the unlawful use (or use in any manner inconsistent with the terms of this Agreement) of TextVending’s Services, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
4. PAYMENT AND PLANS
4.1 Authorization
By using TextVending’s Services, you expressly agree that TextVending is permitted to bill you the applicable fees and any other charges for the Services provided by TextVending. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. TextVending may change the fees and charges in effect, or add new fees and charges from time to time.
4.2 Payment Terms
Payment is due in full upon receipt of the invoice. If the invoice is thirty (30) days past due, TextVending may, to the extent permitted by the law of the State of California, charge you a late fee of up to 1.5 percent per month (18 percent annually). TextVending may also charge you for any collection agency fees that TextVending uses to collect from you. If Textvending is unable to collect the current charges for whatever reason, Textvending has the right to take ownership of the database in the Textvending account to collect any outstanding charges.
4.3 Automated Credit Card Payments
TextVending permits you to set up an automated payment system by establishing a credit card account from which payments are debited. You agree that TextVending shall automatically bill your credit card account each month after the commencement of your Services contract with TextVending. If your credit card is declined on the that day of the month when payment is due, you may log onto your account, but will be unable to send any messages via TextVending’s platform. If your credit card is also declined on the 10th day of the month when payment is due, TextVending will assess a $10 late fee. If your credit card is then declined on the 25th day of the month when payment is due, TextVending will assess an additional $15 late fee. TextVending reserves the right to terminate your account if your credit card is declined in the next billing cycle. You shall remain responsible for any uncollected amounts.
4.5 Mobile-Terminated/ Mobile-Originated Messages
A mobile-terminated (“MT”) message is any SMS message sent by TextVending to an end-user using TextVending’s platform. A mobile-originated (“MO”) message is any SMS message sent by an end-user back to TextVending. For any campaign, your monthly allotted plan includes only MT messages. Each MT message transmitted to an end-user constitutes a separate message regardless of the timing of the transmission or identity of a recipient. You will not be charged for MO messages.
5. MISCELLANEOUS
5.1 Miscellaneous.
This license and the rights granted under this License Agreement may not be transferred or assigned by you. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, United States of America without regard to its principles of conflict of laws. The parties consent to the jurisdiction of the courts of the State of California and the federal courts located within the State of California, County of Los Angeles, and any disputes shall be litigated solely in those courts. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees. If any clause, sentence or other provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining clause, sentence, or other provisions shall remain in full force and effect. Neither of the parties shall be liable for failures due to causes beyond their control, including, but not limited to, acts of God, acts of government, fire, flood, strikes, or acts or omissions of carriers. You warrant that you shall comply with all applicable laws and regulations that relate to the performance of this Agreement.’
5.2 No Agency.
No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind TextVending in any respect whatsoever.
THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF TEXTVending OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA . YOU SHALL NOT EXPORT TEXTVending, THE DOCUMENTATION, OR INFORMATION ABOUT TEXTVending, AND THE DOCUMENTATION WITHOUT CONSENT OF TEXTVending AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. This Agreement constitutes the entire Agreement, supersedes all prior agreements, and changes are only effective when in writing and signed by both parties.
5.3 Records.
You will ensure that anyone in your organization or affiliated entities who uses TextVending (accessed either locally or remotely) does so only for your authorized use and complies with the terms of this Agreement.
5.4 Assignment of Accounts
TextVending reserves the right to assign its IP and/or client’s accounts and data to another company of equal or greater capabilities and capacity to handle client’s account. In the event that TextVending merges with or is acquired by another company or companies, all of its client accounts shall be automatically transferred to said new company or companies.
5.5 Non-Solicitation
During the term of this Agreement and for a period of two (2) years thereafter, neither you nor any employee, officer, director, representative, lawyer, agent, or affiliate of yours will solicit, encourage, or cause others to solicit or encourage any employees of TextVending to terminate their employment with Company.