Last Updated: March 23, 2020
PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR SERVICES PROVIDED BY TXTWAVE AND YOUR ACCESS AND/OR USE OF OUR PLATFORM, AS DEFINED BELOW. THESE TERMS AND CONDITIONS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
General Description of txtWave, the Platform, and the Services
Through the Platform and Services, txtWave provides P2P text notification and messaging services allowing paid Platform subscribers to contact, select, and send information to telephone numbers through mobile text messaging services and other mobile communication systems for informational messaging purposes. Although the Platform is not intended to be used for traditional “marketing” (i.e., marketing, advertising and/or sale of products and services to consumers), the Platform gives you the ability to create and send a variety of text message “campaigns” to third parties of your choosing and at your discretion subject to these Terms and any Additional Terms. As a communications platform provider, txtWave does not draft the content of your messages, control when the messages are sent or to whom, or provide or generate any phone numbers to be messaged through the Platform or Site. All of these functions must be manually performed by you or an individual on your behalf and are not automated. txtWave cannot send any messages randomly or send recurring messages.
We reserve the right to suspend or terminate your account at any time, at our sole discretion, and without prior warning or refund if your account activity is reasonably believed to violate any term in these Terms or applicable law. Violation of applicable privacy or anti-spam laws and regulations, regardless of whether specifically described below, may also result in third-party legal actions against you. txtWave also reserves the right to terminate your access to the Platform and Services at any time and immediately if we believe that your conduct is harmful to the interests of txtWave.
1. General Terms Applicable to the Purchase, Subscription, Access, and Use of the Platform and Services.
A. Generally. To subscribe to, use, and/or access the Platform, Site, or 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). All Customers subscribing to the Platform (as opposed to an Authorized User of a subscriber) must comply with the payment terms set forth in any Additional Terms that may apply in order to access and use, continue accessing and using, or permit others on the subscriber’s behalf to access or use the Platform, the Site, or our Services. In that regard, to the extent payment is to be made or that messaging is to be credited to the subscriber’s account on a per-message/transmission basis, please be aware that the current text/SMS standard permits only 160 characters in an individual message (e.g., standard text and hyperlinks) and the submission of a seemingly-valid text/SMS message or broadcast will cause an associated quantity of messages to be debited from your account. In other words, each SMS messages of 160 characters or less counts as one message/transmission. Accordingly, the submission of a seemingly-valid text/SMS message or broadcast exceeding 160 characters will yield distinct, individually debited messages, each of 160 characters or less, together comprising the original message. Similarly, please be aware that the current MMS standard permits only 160 characters in an individual message or certain types and limited sizes of multimedia messages (e.g., JPEG, PNG, TIFF, GIF files). In other words, each MMS messages of 160 characters or less counts as one message/transmission. The submission of a seemingly-valid MMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid MMS message or broadcast exceeding 160 characters will yield distinct, individually debited messages, each of 160 characters or less, together comprising the original message. Subscribers can obtain the status of their accounts at any time through the online interface. Delivery and deliverability rates, which are the responsibility of third party carriers and not txtWave, for any messages sent using the Platform and Site may vary.
B. Subscription Term. The “Subscription Term” as used below shall be the duration or term limit set forth in any Additional Terms that apply to the Customer’s purchase of txtWave’s Services, and shall continue until the expiration thereof or unless cancelled, suspended, or terminated in accordance with any Additional Terms or these Terms. If no such duration is specified, the Subscription Term will be on a month-to-month basis unless cancelled, suspended, or terminated in accordance with any Additional Terms or these Terms. Customer and any Authorized Users, as that term is defined below, may only access and use the Platform during the Subscription Term. Unless otherwise specified in these Terms or any Additional Terms, all other rights and remedies set forth in the Terms below shall continue after the expiration of the Subscription Term.
C. Suspension and Termination. Unless otherwise specified in any Additional Terms that may apply to your use and access of the Platform and our Services, txtWave will have the right, upon written notice to Customer, to terminate these Terms, and to suspend or terminate a Customer’s use of and access to the Platform and Services, if: (a) any subscribing Customer fails to pay txtWave any amount due to txtWave under any Additional Terms (including but not limited to any messaging charges, service fees, or applicable taxes); and/or (b) the Customer or any user acting on the Customer’s behalf materially breaches any term or condition of these Terms or any Additional Terms. txtWave shall also have the right to terminate these Terms and to immediately and without advance written notice to the Customer to suspend or terminate access to the Platform and Services and/or suspend the provision of Services for any violation or suspected violation of applicable law in relation your access to or use of the Platform or Site and, in that regard, txtWave reserves the right, without notice, to immediately close and delete your account and any information relating thereto. We also reserve the right to suspend access to the Platform or provision of the Services if we reasonably determine that you or any Authorized Users (defined below): (i) use of the Platform disrupts or poses a security risk to the Platform, may harm our systems or may subject us or any third-party to liability; (ii) are using the Platform (including our Services) for fraudulent or illegal activities; or (iii) are using the Platform (including our Services) in breach of these Terms. Upon 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.
2. Opening and Terminating Accounts
3. Content, Ownership and Limited License
A. Content. The Platform contains a variety of: (i) materials and other items relating to txtWave, txtWave’s Platform, and similar items from our licensors and other third parties, including all software, layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Platform, and the compilation, assembly, and arrangement of the materials of the Platform and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of txtWave (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
B. Ownership. All right, title, and interest in and to the Content available via the Platform is the property of txtWave 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. txtWave owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Platform.
C. Limited License. During the Subscription Term, txtWave will make the Platform and Services available to you on a non-exclusive basis for your use in accordance with these Terms or any Additional Terms. Subject to your strict compliance with these Terms and the Additional Terms and your payment of the Fees, txtWave grants you and your Authorized Users, as defined below, a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view and use the Platform (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your internal business use only. The foregoing limited license: (i) does not give you or any Authorized Users any ownership of, or any other intellectual property interest in, any of the Platform, Services, Content, or SMS/MMS Codes, and (ii) may be immediately changed, revised, suspended or terminated for any reason, in txtWave’s sole discretion, and without advance notice or liability, in accordance with these Terms, Additional Terms, or applicable law. In some instances, we may permit you to have greater access to and use of Platform, Services, and Content, subject to certain Additional Terms. You acknowledge txtWave may use a third party providers to host or provide any portion(s) of the Platform and/or Services.
4. Platform, Services and Content Use Restrictions
A. Platform/Services Use Restrictions. You agree that you will not: (i) engage in any activities through or in connection with the Platform that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to txtWave; (ii) reverse engineer, decompile, disassemble, reverse assemble, or modify any Platform source or object code or any software or other products, Services, or processes accessible through any portion of the Platform; (iii) engage in any activity that interferes with a user’s access to the Platform or the proper operation of the Platform, or otherwise causes harm to the Platform, txtWave, or other users of the Platform; (iv) interfere with or circumvent any security feature of the Platform or any feature that restricts or enforces limitations on use of or access to the Platform or the Content; (v) attempt to gain unauthorized access to the Platform, other computer systems or networks connected to the Platform, through password mining or any other means; (vi) make the Platform and Services available to anyone other than your employees and Authorized Users (as defined below); (vi) sell, resell, sublicense, share, rent or lease the Platform or Services to any third party; (vii) knowingly use the Platform or Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights; (viii) use the Platform to store or transmit malicious code; (ix) interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein; (x) access the Platform for purposes of monitoring its availability, performance, reliability or functionality, or for any other benchmarking or competitive purposes; (xi) violating our Anti-Spam Policy; or (x) otherwise violate these Terms or any Additional Terms. You shall be responsible for any breach of these Terms by your employees or any other users that have been authorized by you (each, an “Authorized User”). 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.
B. Content Use Restrictions. You also agree that, in using the Platform and Services: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Platform by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of txtWave or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Platform, Services and Content. txtWave 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 txtWave’s sole discretion, and without advance notice or liability. Delivery and deliverability of text/MMS/SMS messages are not guaranteed by txtWave and are the responsibility of third party mobile carriers.
D. Reservation of All Rights Not Granted as to Content, the Platform and Services. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Platform and Services. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by txtWave and its licensors and other third parties. Any unauthorized use of any Content, the Platform or the Services for any purpose is prohibited.
5. Customer Content
You (on behalf of yourself and your Authorized Users) hereby grant txtWave a limited, non-exclusive, non-transferable, worldwide, royalty-free license, during the Subscription Term to: (i) use and distribute any and all messages, data, text, video, photos, audio and all other materials and information (including personal information of your users) which is submitted to us or the Platform by you (or on your behalf), including, but not limited to, your trademarks, trade names and service marks (collectively, “Customer Content”) as necessary for our operation of Platform and provision of the Services; (ii) sublicense the foregoing rights to third parties; and (iii) sublicense the foregoing rights to our subcontractors as necessary to provide the Platform and Services. In addition to and without limitation to terms under the use restrictions set forth in Section 4 above, txtWave prohibits any use of the Platform in connection with any of the following types of content, products, and services:
- Pornography, sexual products, otherwise sexually explicit material, and escort services;
- Illegal drugs and drug contraband;
- Alcoholic beverages, especially any promotion of alcohol to persons under twenty-one (21) years of age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Instructions or materials for the assembly of bombs or other weapons;
- Disclosure of anyone’s private or personally identifying information without such party’s prior express written consent (or parents’ prior express written consent in the case of a minor);
- Material that displays any person under eighteen (18) years of age in an illicit or otherwise exploitative manner;
- On the basis of the practices and standards of your industry and community, any illegal or improper promotion to persons under eighteen (18) years of age;
- Products, services, or content commonly associated with unsolicited commercial messages (a.k.a. spam), including, but not limited to, online and direct pharmaceutical sales (e.g., health and sexual well-being products), work-at-home businesses, credit or finance management (e.g., credit repair, debt relief, stock and trading tips), mortgage or automobile finance, claims of lost bank accounts or inheritances, and odds-making, sweepstakes, contests and gambling services (e.g., poker, casino games, horse and dog racing, college and professional sporting events);
- Pyramid schemes or multilevel-marketing (a.k.a. MLM, tiered, leveled, or other network marketing programs) businesses, including, but not limited to, “get rich quick,” “build your wealth,” and “financial independence” offerings;
- Any libelous, defamatory, scandalous, threatening, abusive, or harassing activity;
- Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and any discrimination on the basis of race, sex, religion, nationality, ethnicity, disability, sexual orientation, gender identity, political affiliation, or age;
- Advocation, promotion, or other encouragement of violence against any government, organization, group, or individual or any instruction, information, or assistance in causing or carrying out such violence;
- Any product or service related to death (e.g., mortuaries and cemeteries);
- Any product or service that is unlawful where such product or service or promotion thereof is received;
- Images of authors, artists, photographers, or others without prior express written consent form the content owner;
- Any mention of any wireless/telecommunications carrier or txtWave, or any representation that copies or parodies any product or service of any wireless/telecommunications carrier or txtWave; and
- Any other material that is or may be unlawful under any applicable law, statutes, and regulations.
6. Consents and Legal Compliance for Messaging
- 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. Also, some 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.;
- The California Consumer Privacy Act of 2018 (“CCPA”);
- 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.
- For further information, please visit the following websites:
- Federal Communications Commission, http://www.fcc.gov
- Federal Trade Commission, http://www.ftc.gov
- Do-Not-Call Registry Info, http://www.donotcall.gov
- MMA, http://www.mmaglobal.com
- CTIA, http://www.ctia.org
- You will not use the Platform in any way that violates the rights of third parties under any applicable law, including but not limited to under the CCPA.
- You agree to represent truthfully your identity, the identity of your organization, and any other content aspects of your messaging through the Platform.
- You agree to comply with all local, state, and federal laws and regulations as well as general industry best practices governing your messaging content.
txtWave maintains a no-tolerance policy toward spam. Although txtWave does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Site and Services. All mobile marketing messages must conform to the latest available best-practice guidelines drafted and published by the MMA (currently available at http://www.mmaglobal.com/policies/consumer-best-practices) and the CTIA (currently available at https://api.ctia.org/wp-content/uploads/2019/07/190719-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf), which you agree to review and abide by before using the Platform. You agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your company’s DNC list and, except as otherwise noted above, txtWave shall have no other responsibility for notifying you of such opt-outs. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out request.
You hereby acknowledge and confirm that you are solely responsible for the content of your messaging. You hereby acknowledge that txtWave 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. As provided below, you also agree to defend, indemnify and hold harmless txtWave 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 in Section 14(c) below) provision for a complete list of your indemnities to txtWave). We reserve the right to hold, suspend or terminate your account or access to the Platform and/or Services as well as your use of the Site or SMS/MMS Codes for any alleged violation of this Section 6 and/or any unusual or suspicious activity related to your account.
7. Support and Customer Service
Except as otherwise provided herein, txtWave will: (i) use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond our reasonable control, including, without limitation, acts of God, pandemics, 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 firstname.lastname@example.org. You acknowledge that the provision of customer support is at txtWave’s sole discretion and that we have no obligation to provide you with customer support of any kind.
8. Provision and Use of SMS/MMS Codes
Use of the Platform may involve use of SMS/MMS Codes assigned and approved by a third party telecommunications service provider/carrier. The purpose of SMS/MMS Codes is to allow message recipients to respond your messages. Today, there are generally two types of SMS/MMS Codes—“short codes” and “long codes.” “Short codes” are five to six digit numbers used to send SMS and/or MMS messages, and may be either dedicated (meaning assigned to one entity) or shared (meaning a single short code represents multiple entities). “Long codes” are 10-digit local or “toll free” (e.g., 1-800, 1-888, or the like) telephone numbers generally used to send SMS messages but may also be used for MMS messages. By using the Platform and any SMS/MMS Codes, you agree to abide by any laws, statutes, regulations, and industry standards that may apply to the use of SMS/MMS Codes, including but not limited to applicable CTIA SMS messaging guidelines. The use of SMS/MMS Codes in connection with the Services or the Platform does not grant you ownership of such SMS/MMS Codes or the right to use or be assigned any particular or specific SMS/MMS Codes or type of SMS/MMS Codes, or any other rights with respect to the SMS/MMS Codes you may use or that maybe assigned to you. All SMS/MMS Codes used in connection with the Platform (i) may be assigned or provided to you at txtWave’s sole discretion, (ii) may be suspended, changed, re-assigned, and/or withdrawn by us for violating these Terms or any Additional Terms, (iii) may not be assigned, transferred, sold, and/or reassigned by you without our express written consent, (iv) may not be used for any other purposes other than use of the Platform, and (v) are subject to the Limited License (See Section 3(c) above) provision above. We further reserve the sole right to suspend, assign, change and/or withdraw any SMS/MMS Codes assigned or provided to you as may be required by any telecommunications service providers/carriers or as may be necessary to comply with applicable laws, statutes, and regulations or industry standards and guidelines. We may, at our sole discretion, provide you with new or alternate SMS/MMS Codes or assign “short” or “long” SMS/MMS Codes to you at any time and without advanced notice.
9. Dispute Resolution
Certain portions of this Section 9 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and txtWave agree that we intend that this Section 9 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 9 can only be amended by mutual agreement. PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.
A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Platform, the Services, the Content, your Customer Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of txtWave’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 9(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Section 9(A). Your notice to us must be sent via certified U.S. mail to: txtWave, c/o J. Hawkins, 314 Etowah Dr., Cartersville, GA 30120 For a period of sixty (60) days from the date of receipt of notice from the other party, txtWave and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or txtWave to resolve the Dispute or Excluded Dispute on terms with respect to which you and txtWave, in each of our sole discretion, are not comfortable.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 9(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND TXTWAVE MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICES OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE PLATFORM (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD, ANY OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY – AND WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS. The Federal Arbitration Act (“FAA”) shall govern the arbitrability of all disputes between txtWave and you regarding these Terms (and any Additional Terms) and the Platform and Services, including the No Class Action Matters section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.
A Dispute will be resolved solely by binding arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”), in accordance with the then-current streamlined Arbitration Rules and Procedures (“Rules”) of, or by any other arbitration administration service that you and an officer or legal representative of txtWave consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable Rules; but if applicable Rules or laws require txtWave to pay a greater portion or all of such fees and costs in order for this Section 9 to be enforceable, then txtWave will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. Issues relating to the enforceability of the arbitration and class action waiver provisions contained herein are for the court to decide.
C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 9(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 9(A); (b) filing for arbitration with JAMS as set forth in Section 9(B); or (c) filing an action in state or Federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
D. Injunctive Relief. The foregoing provisions of this Section 9 will not apply to any legal action taken by txtWave 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 txtWave’s intellectual property rights (including such txtWave may claim that may be in dispute), txtWave’s operations, and/or txtWave’s products or services.
E. No Class Action Matters. YOU AND TXTWAVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 9(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 9(F). Notwithstanding any other provision of this Section 9, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
F. Federal and State Courts in Bartow County, Georgia. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Bartow County, GA. Accordingly, you and txtWave consent to the exclusive personal jurisdiction and venue of such courts for such matters.
G. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
10. 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, txtWave and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “txtWave Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Site and Platform (including the Content);
(b) the Services;
(c) whether the Services or Platform or your use thereof constitute an “automatic telephone dialing system” (“ATDS”), “advertising,” “telemarketing,” or “solicitations,” as such terms are used and defined in the TCPA or by other applicable related regulations or law;
(d) the functions, features, terms, or any other elements on, or made accessible through, the Site and Platform (including but not limited to SMS/MMS Codes);
(e) any products, services (including, without limitation, the Services), or instructions offered or referenced at or linked through the Site and Platform;
(f) security associated with the transmission of your materials and data transmitted to txtWave via the Site and Platform or using SMS/MMS Codes;
(g) whether the Site, the Platform or the servers that make the Site and/or Platform available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(h) whether the information (including any instructions) on the Site and Platform is accurate, complete, correct, adequate, useful, timely, or reliable;
(i) whether any defects to or errors on the Site and Platform will be repaired or corrected;
(j) whether your access to the Site, Platform and Services (including use of SMS/MMS Codes) will be uninterrupted;
(k) whether the Site, the Platform and Services will be available at any particular time or location;
(l) whether certain SMS/MMS Codes will be assigned to you, either exclusively or on a shared basis;
(j) whether your use of the Site, Platform and Services (including SMS/MMS Codes) is lawful in any particular jurisdiction; and
(k) whether any text/SMS/MMS messages sent using the Site, Platform and Services, regardless of the type of SMS/MMS Codes used, will be actually delivered to and received by the intended recipients on their mobile devices.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A TXTWAVE PARTY, TXTWAVE PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
11. LIMITATIONS OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY TXTWAVE PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
(a) the Site and Platform (including the Content and SMS/MMS Codes) or use thereof, including but not limited to any violation of the TCPA or other applicable laws, statutes, or regulations;
(b) the Services (including Services available through the Platform or Services provided by employees of the txtWave Parties outside of the Platform environment), including, without limitation, lost communications, errors, mistakes, typos, communication failures, etc.;
(c) your use of or inability to use the Platform or Services or the performance of the Platform and Services;
(d) your use of any mobile alert terms and conditions we make available through the Platform;
(e) any action taken in connection with an investigation by txtWave Parties or law enforcement authorities regarding your access to or use of the Platform;
(f) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(g) the availability and use of any particular SMS/MMS Codes provided in the course of using the Platform;
(h) the delivery and/or deliverability rates of any text/SMS/MMS messages that might be sent using the Platform or Site;
(i) any errors or omissions in the Platform’s technical operation, including delivery of messages; or
(j) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the txtWave 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 TXTWAVE 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 TXTWAVE IN THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
12. 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 TXTWAVE OR A LICENSOR OF TXTWAVE.
13. Updates to Terms
14. General Provisions
A. txtWave’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grants txtWave a right of consent or approval, or permits txtWave to exercise a right in its “sole discretion,” txtWave may exercise that right in its sole and absolute discretion. No txtWave consent or approval may be deemed to have been granted by txtWave without being in writing and signed by an officer of txtWave.
B. Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California (U.S.A.), without regard to its conflicts of law provisions.
C. Indemnity. You agree to, and you hereby defend, indemnify, and hold txtWave 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 txtWave Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) Customer Content; (ii) your use of the Platform and our Services and your activities in connection with the Platform and Services, including, without limitation, any message sent by you through your use of the Platform or use of SMS/MMS Codes; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Platform, Services or your activities in connection therewith; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) any other party’s access and/or use of the Platform/Services with your account; (viii) any failure to obtain consents required by applicable law or regulations prior to sending communications using the Platform; (ix) any privacy or spam policy violation alleged to have been committed through any use of your account; and (x) txtWave Parties’ storage, use and/or distribution of the information and data (including mobile numbers) in relation to the Platform (all of the foregoing, “Claims and Losses”). You agree to cooperate as fully as reasonably required by the txtWave 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 txtWave Party. You acknowledge and agree to be held liable for any and all damages caused to the txtWave 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 txtWave Parties to you.
D. Operation of Platform; Availability of Services; International Issues. txtWave controls and operates the Platform and txtWave makes no representation that the Platform or Services (including but not limited to SMS/MMS Codes) are appropriate or available for use beyond the U.S.A. If you use the Platform and Services from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Platform may describe services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Platform, Services and/or the provision of any content, program, product, service, or other feature described or available on the Platform to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods. Delivery and delivery rates of text/SMS/MMS messages are the responsibility of third mobile carriers to whom such messages are delivered and may vary.
E. Export Controls. Software related to or made available by the Platform may be subject to export controls of the U.S.A. No software from the Platform may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or Services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user, subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.
F. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”.
G. Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Platform, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address.
H. Investigations; Cooperation with Law Enforcement; Termination; Survival. txtWave 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 txtWave 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 txtWave under these Terms or any Additional Terms. Upon suspension or termination of your access to the Platform/Services, or upon notice from txtWave, 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 txtWave 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.
K. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Platform and you will be responsible for all charges related to them.