PLEASE REVIEW THIS AGREEMENT ("AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU "CLIENT", AND TEXTLANE ("TEXTLANE").
THE CLIENT IS APPLYING TO USE TEXTLANE’s INVOLVE’s SERVICES (THE "SERVICES" ). IN ORDER TO USE THESE SERVICES, CLIENT MUST FIRST READ THE AGREEMENT AND ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN (THE “TERMS”). THE CLIENTS USE OR CONTINUED USE OF THE SERVICES INDICATE THAT YOU ACCEPT THE TERMS IN PLACE AT THAT TIME. THIS IS AN AGREEMENT FOR SERVICES AND CLIENT IS NOT BEING GRANTED A LICENSE TO ANY SOFTWARE UNDER THIS AGREEMENT.
- Services. During the term of the Agreement and subject to the Terms, TextLane agrees to use commercially reasonable efforts to provide Client with the Services. TextLane will provide the Client with an account and will send to Client's designated email address or mobile number of record in Client's account information, information such as usernames and/or passwords which will enable Client to access the Services (the "Passwords"). The Client is solely responsible for maintaining the confidentiality of the password and is entirely responsible for all activities that occur under the Client’s Services account. The Client must ensure that no person other than itself or authorized agents gain access at any time to their Passwords and Services account. The Client agrees to immediately notify TextLane as to any theft of, loss or unauthorized use of Passwords or Services account. Any unauthorized use of the Passwords by Client will constitute a material breach of this Agreement. The Client agrees that TextLane’s records are conclusive evidence of the Client’s order for, and use of, the Services. TextLane reserves the right to modify the specifications of the Services, the content contained within any message and to stop the Services from time to time to perform maintenance, modifications, to protect against fraudulent or illegal use or to otherwise protect TextLane from legal liability of any kind.
- Fees and Payment. The cost of the Services will be calculated according to the applicable fees set out on the Site and are made up of keyword leases, short code leases, credit purchases, per message fees, and other charges and fees that TextLane may charge for the Services (the “Fees”). All Fees are non-refundable and there are no refunds for partially used periods or unused credits. TextLane may change the Fees in effect, or add new fees and charges from time to time. Client acknowledges that from time to time, delivery of any messages sent using the Services may be blocked or prevented by third parties. Client's payment obligation set forth herein continues regardless of whether delivery of such messages is prevented or blocked by a third party. TextLane may require Client to set up an automated payment system by establishing a credit card account from which payments are debited. The Client agrees that TextLane shall automatically bill the nominated credit card account on a transactional basis. If a credit card payment is declined more than once on a billing cycle, TextLane may charge the Client a $10 fee for each additional decline. The Fees shall include all applicable foreign, federal, state and local taxes payable with respect to this Agreement. Any payment not received by TextLane from Client by the due date, which is defined as at the time of the transaction, may be subject, at TextLane's sole discretion, to a late fee equal to 1.75% per month (or the maximum rate permitted by law) of the amount then due, calculated daily. In the event Client fails to make timely payments when due, TextLane may, at its election, discontinue, terminate or suspend the Services and delete all Client Data (as defined below) from its systems, in each case, without incurring any liability to Client. For amounts outstanding after sixty (60) days from the due date, Client shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to court and attorneys' fees and expenses. From time to time, and at any time, TextLane may require from Client reasonable credit guarantees before continuing its provision of the Services hereunder.
- Client Data. TextLane will not own any data, information or material that Client submits to TextLane in the course of its provision of the Services (the "Client Data"). Client will be solely responsible for all Client Data, and sole intellectual property ownership thereof. Further, Client will be solely responsible for maintaining, securing and storing all Client Data. TextLane will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data.
- Intellectual Property Rights. This is an agreement for services and Client is not granted any license hereunder. All software within the Services (the "Software"), and the Services, are and shall remain the sole and exclusive property of TextLane. Accordingly, Client acknowledges that TextLane owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Client will not have or acquire any rights or interest in or to the Software or the Services. Client acknowledges that the Software contains proprietary information and trade secrets of TextLane. Client will not take any actions inconsistent with TextLane's ownership of each of TextLane's rights in and to the Software. Client agrees that Client will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by TextLane.
- Use of Services. Client acknowledges and agrees that it will use the Services only for Client's "internal business purposes" and will not use the Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material harmful to children or violative of third party privacy rights; (iii) send messages to any purchased lists; or (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (v) send messages or operate marketing campaigns containing Prohibited Content or is otherwise involved in any way. Prohibited Content is that involving (a) The Provision, sales or offers to sell the following products or content (or services related to the same): pornography; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons ;(b) Provides, sells, or offers to sell or rent any mailing list; (c) Material that exploits children, or otherwise exploits children under 18 years of age; (d) The disclosure of any personally identifying information or private information about children without their consent (or their parents consent in case of a minor); (e) Material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content; (f) The sale or promotion of any products or services that are unlawful in the location at which the content is posted or received ; (g) The introduction of viruses, worms, harmful code and/or Trojan horses on the Internet; (h) The promotion, solicitation or participation in pyramid schemes; (i) Any libelous, defamatory, scandalous, threatening, harassing activity; (j) Any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence. In addition, TextLane reserves the right to prohibit the use of the Services by any company or site at its sole discretion. Client agrees to report immediately to TextLane, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this clause. In the event of any suspected violation of this clause, TextLane may immediately disable Client's access to the Services and suspend its provision thereof.
- Message Inclusions. TextLane may require specific content or functionality to be included in each message to remain compliant with appropriate regulations or third party networks, such as wireless carriers. Where the Services contain such content the Client agrees that it will not attempt to remove or disable such content.
- Confidential Information. Each party (Recipient) undertakes that, in respect of Confidential Information disclosed to the Recipient by the other party (Disclosing Party), it will not disclose or allow or make it possible for any person to observe that Confidential Information except as approved but the Disclosing Party or as authorized herein. Confidential Information means all information relating to or used by the Discloser, including know-how, trade secrets, ideas, marketing strategies, operational information, personnel, financial matters, technology, research and development or product plans. Confidential Information excludes information that is publicly known or becomes publicly known other than by breach of this Agreement; is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; was in the Recipient’s possession to prior to receipt or is developed independently without reliance on the Confidential Information; or is required to be disclosed by order of court or law. The parties acknowledge that monetary damages alone would not be adequate compensation for a breach of the obligations of confidentiality under this Agreement, and a Disclosing Party is entitled to seek an injunction from a Court of competent jurisdiction on a breach or threatened breach of this clause.
- Use of Certain Information. In the course of using the Services, Client may provide to TextLane certain information, including, but not limited to, contact and technical information (the "Information"). Client agrees that TextLane may use the Information in connection with its provision of the Services, including the consent to receiving communications from TextLane and its third party partners. These communications may include notices about applicable fees and charges, transactional information and other information concerning or related to our Services. These communications are part of your relationship with TextLane and you receive them as part of your use of the Services. TextLane also has the unconditional and irrevocable right to disclose details of the Client and Client Data in the event of any complaint received from any regulatory or governmental body or licensed telecommunications carrier, in connection with the Client.
- Warranties. Client represents, warrants and covenants to TextLane that: (a) if an individual, Client is at least eighteen (18) years old; (b) if an entity, it is a valid company and has full power and authority to enter into this Agreement with legally binding obligations enforceable against it; (c) all information provided by it during the term of this Agreement, is and will be truthful and accurate; (d) its use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services.
- Disclaimer. THE USE OF THE SERVICES AND ANY RELIANCE UPON THE SERVICES IS AT THE CLIENTS SOLE RISK. TEXTLANE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TEXTLANE DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL TEXTLANE OR ANY REPRESENTATIVE (INCLUDING BUT NOT LIMITED TO EMPLOYEES, SUPPLIERS, AFFILIATES, DISTRIBUTORS, PARTNERS, DEALERS, DIRECTORS OR AGENTS, THEREAFTER “REPRESENTATIVES”) BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY MONETARY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES, OR TO THE PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF TEXTLANE OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL TEXTLANE OR ANY REPRESENTATIVE'S MAXIMUM AGGREGATE LIABILITY TO CLIENT OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY, PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES, EXCEED THE ACTUAL FEES CLIENT PAID TO TEXTLANE FOR FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO AS OF THE DATE OF THE CLAIM, LOSS, OR DAMAGE. IN THE EVENT OF ANY FAILURE, OR TEXTLANE NON-PROVISION, OF THE SERVICES. THE CLIENT'S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR TEXTLANE TO USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR OR PROVIDE THE SERVICES.
- Indemnification. Client agrees to defend, indemnify and hold harmless TextLane and its Representatives, and its and their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all damages, losses, claims, liabilities, settlements and costs (including, but not limited to, reasonable attorneys' fees) arising from any alleged breach of this Agreement, the use of the Services by the Client, Client's negligence or intentional misconduct. Client's breach of any of its representation, warranties or covenants set forth herein, or Client's infringement of any intellectual property rights or other rights of any person or entity. Client acknowledges and agrees that TextLane has the right to seek damages when you use the Services for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
- Termination. Either party may terminate this Agreement at any time by providing the non-terminating party with thirty (30) days' prior written notice of such party's intent to terminate. CLIENT'S ACCOUNT WILL CONTINUE TO BE BILLED AUTOMATICALLY FOR APPLICABLE UNTIL CLIENT NOTIFIES TEXTLANE IN THE MANNER DESCRIBED IN THIS CLAUSE OF ITS INTENTION TO TERMINATE THIS AGREEMENT. TextLane may terminate this Agreement, the Services and disable Client’s account, for any default in the performance of any of Client’s obligations hereunder or any changes to TextLane’s service provider relationships, and with or without notice. Client acknowledges and agrees that following termination, TextLane has no obligation to retain the Client Data and may delete and destroy such Client Data without providing Client with notice of such deletion.
- Governing Law. This Agreement will be governed by the laws of the State of California as applied to agreements entered into and performed entirely within the state, without regard to any choice of law provisions thereof. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
- Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of a pre-eminent arbitration association within the state of California. Any such arbitration shall be conducted in Los Angeles, California. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, TextLane shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction, to which jurisdiction, for such purpose, Client hereby irrevocably consents.
- Notice. TextLane may provide Client with general notices by electronic mail to Client's e-mail address or by text message to mobile number of record, or by written communication sent by first class mail or pre-paid post to Client's address of record. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by e-mail or text message. Except as otherwise provided herein, Client must give notice to TextLane (such notice shall be deemed given when received by TextLane) at any time by any of the following: letter sent by confirmed facsimile to TextLane in the US at the following fax number 866-350-3551; letter delivered by first class postage prepaid mail to TextLane at the following address: TextLane ; Attn: Support Department; 8800 Venice Blvd. Suite 206, Los Angeles, CA 90034. Notwithstanding the foregoing, Client must provide TextLane with notice of its intention to terminate this Agreement in accordance with the terms and conditions set forth in the clause headed Termination.
- Miscellaneous. (i) Relationship. This Agreement does not create a partnership, joint venture or agency relationship between TextLane and Client. Client does not have any right, power, or authority to act as a legal representative of TextLane. (ii) Export Restrictions. Client acknowledges that the Services may be subject to U.S. or other countries' export control laws and regulations. Client agrees not to export, or transfer for the purpose of re-export, the Services (including technical data) in violation of any U.S. or other applicable export control laws and regulations. (iii) Assignment. Client may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of TextLane. Any such transfer, assignment, sublicense or delegation without consent will be null and void. (iv) Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement. (v) Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement. (vi) No Waivers. TextLane's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default. (vii) Non-Solicitation. During the term of this Agreement, and for a period of twelve (12) months thereafter, the Client shall not directly or indirectly, employ or offer employment to, any employee or contractor of TextLane without prior written approval from TextLane; provided such person is employed or contracted by TextLane at the time, or was employed or contracted within (3) months of any such solicitation or offer of employment. (viii) Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by TextLane and may not be modified by course of conduct. Any headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.