TERMS OF SERVICE AND MASTER SUBSCRIPTION AGREEMENT
These Terms of Service (“Terms of Service”) and any use of the Services or Platform (as herein defined), collectively constitute a binding agreement between BuddySystems, Inc. (“BuddySystems,” “us,” “we,” or “our”) and you or the legal entity you represent (“Customer” or “you”).
These Terms of Service state the terms upon which the Site and Services (as defined below) are provided to individuals or entities who use or seek to use the Site and Services and govern your use of the website located at buddytexts.com and any related subdomains (“Site”), and BuddySystems’ online customer management, messaging, marketing, and analytics software presently offered or available (the “Services” or “Platform”), which includes, but is not limited to, using BuddySystems’ marketing software to retrieve customer information from SMS or MMS text messages and online forms, websites and similar opt-ins, viewing data available from the messages, and using BuddySystems’ marketing platform to send Messages to individual consumers, text subscribers, and end customers via SMS or MMS text messages, or any text or electronic messages that may include marketing promotions, surveys, conversations, and other materials (collectively, “Messages”).
By using the Site and/or our Services, you acknowledge:
- the Site and Services are provided “as is” without warranties of any kind and BuddySystems’ liability to you is limited
- BuddySystems and Customer will resolve disputes arising under these Terms of Service through binding arbitration. By accepting these Terms of Service, you and BuddySystems are each waiving the right to a trial by jury or to participate in a class action.
BuddySystems will permit Customer to use the Services subject to these Terms of Service. By using the Site and/or Services, Customer agrees to all of these Terms of Service, including but not limited to the limitations on liability set forth herein. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF SERVICE, CUSTOMER IS NOT PERMITTED TO USE THE SITE OR SERVICES.
1.a. Agreement to Provide Services. Subject to these Terms of Service and during the term of these Terms of Service, BuddySystems will provide to Customer access to the Services purchased through and described on the Site at buddytexts.com and any other or related domains or sub domains. Customer’s Services start on the date of the beginning of the Term (as defined herein). Customer understands and agrees that by agreeing to these Terms of Service, Customer has made a binding selection of the type of Services to be provided and all associated specifications, prices, policies and documentation related to the delivery of the Services.
1.b. Service Orders. Each Service Order is hereby incorporated into these Terms of Service by this reference and is subject to these Terms of Service; provided, however, that in the event of a conflict, the terms contained in such Service Order shall control. In the event of any conflict between the terms of these Terms of Service or a Service Order and any Customer-issued order form or purchase order, these Terms of Service and the applicable Service Order shall control.
- LICENSE, OWNERSHIP, AND INTELLECTUAL PROPERTY RIGHTS
2.a. License. Subject to the Terms of Service, BuddySystems grants to Customer a non-exclusive, non-transferable, revocable license during the Term (as defined below), without the right to sublicense, to use the software and other technology supplied by BuddySystems to enable Customer to receive or access the Services solely for the purposes of accessing and using the Services. Except for the limited licenses granted hereunder, BuddySystems reserves all rights not expressly granted and no such additional rights may be implied.
2.b. Ownership. Customer acknowledges that (i) all right, title and interest in and to the Services, including the Platform, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and other proprietary and intellectual property rights embodied therein or associated therewith, are and shall remain with BuddySystems or its third party licensors; (ii) no right or interest in the Services or the Platform is conveyed other than the limited licenses granted herein; (iii) the Services and the Platform are protected by copyright whether registered or unregistered and other intellectual property laws; and (iv) BuddySystems asserts that the Services and the Platform embody valuable confidential and secret information of BuddySystems or its licensors, the development of which required the expenditure of considerable time and money.
2.c. No Modification. Customer agrees that Customer shall not (i) modify or alter the Platform; (ii) create derivative works of the Platform; (iii) decompile, disassemble, decode or reverse engineer the Platform, translate the Platform or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Platform or reduce the Platform by any other means to a human perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms.
2.d. License to Customer Marketing Content. In connection with the Services, Customer grants BuddySystems a non-exclusive, transferable, royalty-free license during the Term to use Customer’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and all other marketing or promotional content provided by Customer to BuddySystems (“Customer Marketing Content“) in connection with the advertising, promotion and sale of Customer’s products, services or business, and to sublicense such Customer Marketing Content to third parties in connection with the provision of such Services. Customer acknowledges that any online coupon or similar marketing offer, deal or advertisement to market its products or services (each, an “Offer“) posted on third-party Partner websites(s) may not carry the BuddySystems trademark or branding. Customer further acknowledges and agrees that BuddySystems or its sublicensees may modify Customer Marketing Content in order to effectively provide the Services ordered in BuddySystems’ reasonable discretion, provided, that none of such modifications shall materially alter the terms of any Offer without Customer’s prior written consent.
2.e. User Content. User Content means any content that you post, submit or otherwise transmit (collectively, “Post”) to the Site or using the Services, including, without limitation, text, photographs and/or any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws.
2.f. Disclaimer. We are under no obligation to edit or control User Content that you or other users Post on the Site or using the Services, and cannot and will not be in any way responsible or liable for User Content. BuddySystems may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms of Service or is otherwise objectionable, such as, without limitation, User Content that BuddySystems determines is or could be interpreted to be infringing, defamatory or otherwise unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promoting discrimination, bigotry or racism (collectively, “Objectionable Content”). You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against BuddySystems with respect to User Content. We expressly disclaim any and all liability in connection with User Content.
2.g. Other Obligations. Customer agrees that Customer (i) shall not sell, transfer, lend, provide or otherwise make available, or disclose to third parties, the Services or any components thereof; (ii) shall not obscure, alter or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained within the Services or the Platform, or on any other BuddySystems materials; and (iii) shall take all reasonable precautions to prevent unauthorized or improper use of the Services.
2.h. Non-Assertion of Claims. During the term of these Terms of Service, Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against BuddySystems or any related party, any patent infringement or other intellectual property infringement claim with respect to the Site, Platform or the Services.
2.i. Feedback and Comments. In the event Customer elects, in connection with any of the Services, to communicate to BuddySystems suggestions for improvements to the Services (“Feedback“), BuddySystems shall be entitled to use the Feedback without restriction and Feedback will not be treated as confidential to Customer. Customer hereby grants to BuddySystems a royalty-free, sub-licensable, transferable, perpetual, irrevocable worldwide license in and to the Feedback to use in any manner related to the operation of its business. In addition, BuddySystems hereby disclaims any and all liability for any comments, drawings, depictions, audio clips or other content made available on the Site by Customers of the Site generally (“Comments“). Further BuddySystems (i) shall have a royalty-free, sub licensable, transferable, perpetual, worldwide, irrevocable license in and to such Comments to use in any manner related to the operation of its business, and (ii) reserves the right to remove any such Content from the Site immediately in its sole discretion.
- ACCOUNT SECURITY, MESSAGING
3.a. Account Security. You are fully responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your log-in credentials. You agree to notify BuddySystems immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. BuddySystems cannot and will not be liable for any loss or damage arising from unauthorized use of your log-in credentials whether or not you notify BuddySystems of such unauthorized use or loss of your log-in credentials.
3.b. Messaging. Customer represents, warrants, and covenants that when using the Site and Services to send Messages, you will (i) comply with any and all applicable federal, state, and local laws, regulations, and rules governing such Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, HIPAA, and state and local equivalents; (ii) comply with all applicable industry best practices; (iii) send Messages only to individuals from whom your Organization has obtained the legally required consent to do so; and (iii) promptly notify BuddySystems of all requests made by your end customers to stop receiving Messages from BuddySystems or your Organization. As used in this Section, “Organization” means any company, entity or organization on whose behalf you access and use the Site and Services to send Messages to end customers. BuddySystems cannot and will not be liable for any loss or damage arising from Customer’s non-compliance with this Section.
- EXTERNAL SITES
The Site may contain links to other websites or other online properties that are not owned or controlled by BuddySystems (collectively, “External Sites”). The content of External Sites is not developed or provided by BuddySystems. BuddySystems is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on External Sites. You should contact the site administrator or Webmaster for External Sites if you have any concerns regarding content located on those External Sites. You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Site in connection with your use of External Sites.
- PAYMENT, BILLING
5.a. Fees. In consideration for the provision of Services to Customer, Customer will pay to BuddySystems all Services fees (“Fees“) due according to the Service Order. Charges are exclusive of all applicable taxes, payment of which shall be the sole responsibility and liability of the Customer in addition to the Fees. BuddySystems will provide Customer fourteen (14) calendar days advance notice for any increase in fees or addition of new fees for any existing Services, other than Fees contained in the applicable Service Order. Customer’s continued use of the Services after a fee increase will constitute Customer’s agreement to the increase in service fees.
5.b. Billing and Payment Terms. BuddySystems will, using Stripe (or any other third party payment processors), charge Customer the Fees and applicable taxes for the Services rendered for each billing period on or after the first day of such billing period. If Customer is paying by credit card, (a) Customer hereby irrevocably authorizes BuddySystems to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, and (c) if Customer’s credit card expires, Customer hereby gives BuddySystems permission to submit the credit card charge with a later expiration date. All billing disputes must be emailed to email@example.com within fourteen calendar (14) days of delivery of the billing statement, and disputes not made within that time are waived by Customer. BuddySystems reserves the right to have Customer complete a credit application to determine Customer’s creditworthiness as a condition of receiving further Services. If BuddySystems must initiate a collections process to recover Fees due and payable hereunder, then BuddySystems shall be entitled to recover from Customer all costs associated with such collections efforts, including, but not limited to, reasonable attorneys’ fees. In the event BuddySystems delivers to Customer an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within ten (10) calendar days of the date of such invoice. In the event an account is past due and Customer requests to cancel, Customer is required to pay for the month of service from their initial bill date decline.
5.c. Past Due Bills. In the event of a credit card decline, BuddySystems will attempt to reach out to Customer for a new payment method. If BuddySystems fails to resolve the issue with Customer, the account will be terminated due to non-payment and BuddySystems will attempt to collect on any past due balances at Customer’s expense. In the event Customer requests to cancel with a past due balance, Customer is required to pay for the month of service from their initial bill date decline.
- TERM, TERMINATION
6.a. Term. Subject to BuddySystems’ receipt of all applicable Fees, and unless otherwise terminated in accordance with this Section, these Terms of Service shall commence upon Customer’s first use of the Services or acceptance of these Terms of Service (whichever comes first) and shall continue in effect for the period specified on the applicable Service Order (the “Term”). Each Service Order shall continue for the Term specified therein, and will automatically renew for subsequent Terms (“Renewal Term”) of the same duration as the Term unless either party provides at least thirty (30) calendar days written notice of non-renewal prior to the expiration of the then-current Term that it elects not to renew the Services under such Service Order at the end of such Term.
6.b. Termination by Customer. Customer may terminate this agreement for material breach of these Terms of Service. In the event Customer chooses not to renew the Services for a subsequent Term, notification of such non-renewal from Customer to BuddySystems must be emailed to firstname.lastname@example.org, which must be confirmed by BuddySystems. If Customer chooses not to renew, Customer must fully notify BuddySystems in writing at least thirty (30) calendar days prior to the Renewal Term, in which case, Customer will continue to have access to the Services and be billed until the end of the then current term. Customer shall not receive a refund for any unused portion of the Term. In the case Customer fails to fully notify BuddySystems of its intent not to renew within this time, the Renewal Term will commence at the end of the then-current term and Customer is responsible for the payment of Fees for the Services rendered for that Renewal Term. Customer shall not in any event be entitled to any refund of any Fees previously paid to BuddySystems for Services.
6.c. Termination by BuddySystems. BuddySystems shall have the right to terminate these Terms of Service or any Service Order at any time with or without cause and with or without notice, at BuddySystems’ sole discretion. In addition, BuddySystems may terminate these Terms of Service or any Service Order upon written notice to Customer if Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors. Upon a termination by BuddySystems without cause, Customer may be entitled to a pro-rata refund of any pre-paid and unused Fees advanced to BuddySystems.
6.d. Consequences of Termination. Upon termination of these Terms of Service, a Service Order, and/or the Services, for any reason whatsoever, Customer shall cease to use the BuddySystems Platform, the Services and Site. BuddySystems retains the right to terminate Customer’s access to any BuddySystems Platform and Services in the event of termination by either party.
6.e. Data Removal, Preservation, Retrieval, or Transfer. In the event of a temporary suspension of Customer’s access to Services, (i) BuddySystems will not take any action to intentionally erase or delete Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event Customer becomes inactive due to past-due amounts, Customer agrees that BuddySystems may delete all End Customer Data after a period of sixty (60) calendar days. In the event of the expiration or earlier termination of these Terms of Service and/or a Service Order, Customer may, upon reasonable notice to BuddySystems, elect to retrieve Customer Data using the self-service tools BuddySystems makes available to Customer. If these Terms of Service and/or a Service Order are terminated for any reason other than Customer’s breach, BuddySystems will not take any action to intentionally erase or delete Customer Data stored on the Services for a period of sixty (60) calendar days, after which BuddySystems may delete the End Customer Data. If these Terms of Service are terminated on account of Customer’s breach or alleged breach of these Terms of Service and/or a Service Order, BuddySystems will not take any action to intentionally erase or delete Customer Marketing Content or Customer Data stored on the Services for a period of fifteen (15) calendar days, after which BuddySystems may delete End Customer Data. In each case, Customer’s post-termination retrieval or transfer of Customer Data will be conditioned on BuddySystems’ receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Customer’s compliance with such reasonable terms of service as BuddySystems may establish with respect to such retrieval or transfer. In addition, if Customer utilizes the professional services of BuddySystems to assist Customer in connection with such retrieval or transfer, Customer will be responsible for BuddySystems’ then current charges for such professional services. In the event that BuddySystems does not receive all such Fees and amounts due within the applicable time periods described above, or in the event that Customer fails to notify BuddySystems of Customer’s election with respect to the retrieval or transfer of Customer Data within such period, BuddySystems shall have no obligation to continue to store Customer Data or permit Customer to retrieve or transfer the same.
BuddySystems will respond to requests to transfer or delete End Customer Data only to the extent such requests are addressed to BuddySystems from an email address from the email domain that is the same as the domain associated with Customer’s BuddySystems account.
- CUSTOMER DATA
7.a. Customer Data. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to BuddySystems, all programs, data, information and other content transmitted via the BuddySystems Platform and hosted through the Services, including, without limitation, End Customer Data (as defined below) and the Customer Marketing Content (collectively, the “Customer Data“) and has the full authority to transmit and store the Customer Data through the Services. Customer hereby authorizes the storage of Customer Data by BuddySystems through the Services that Customer collects elects to transmit via the BuddySystems Platform. Customer acknowledges that Customer bears sole responsibility for adequate security, protection and backup of Customer’s Data on the BuddySystems Platform. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Customer restoring files that are no longer usable. Without limiting the generality of this Section, BuddySystems will have no liability to Customer whatsoever for any unauthorized access to, or use, alteration, corruption, deletion, destruction, misuse, or loss of any of Customer Data on the BuddySystems Platform.
7.b. End Customer Data. In connection with BuddySystems’ performance of the Services, BuddySystems may collect online data from Customer through the BuddySystems Platform regarding Customer’s customers (the “End Customer Data“). Further, Customer acknowledges that such End Customer Data may include personal information of Customer’s customers as well as data relating to messages and interactions with the Customer’s customers. BuddySystems will not retain, use, or disclose such End Customer Data for any purpose other than to provide the Services to Customer, or as otherwise directed by Customer or required by applicable law. BuddySystems may create and derive from its provision of the Services anonymized and/or aggregated data that does not identify any Customer or End Customer, and use, publicize or share with third parties such data to improve BuddySystems’ products and services and for BuddySystems’ other lawful business purposes.
To the extent Customer authorizes a third party to access Customer’s End Customer Data, Customer shall be solely responsible for ensuring that such access complies with all applicable privacy or data protection laws, and that Customer has the necessary rights to authorize the access and has provided all required information and choices to Customer’s relevant customers. To the extent that any privacy or data protection laws impose an obligation upon BuddySystems to comply with an individual’s request for access to or correction of their personal information that is End Customer Data, Customer agrees that Customer shall satisfy such obligations. BuddySystems agrees that it shall forward any such individual requests that it receives to Customer and shall reasonably assist Customer, at Customer’s request and expense, to satisfy such obligations. BuddySystems will provide other assistance to Customers in responding to individuals’ requests to the extent BuddySystems deems such appropriately limited and reasonable (“Additional Assistance”). BuddySystems reserves the right to require Customer to bear the costs of any assistance that Customer requests BuddySystems to provide and any Additional Assistance at BuddySystems’ then-current professional services rates, which shall be made available to Customer upon request. Customer agrees that it may be necessary for BuddySystems to access End Customer Data to respond to Customer’s request for assistance with any technical problems and/or queries. Customer shall hold BuddySystems, its subcontractors, suppliers and licensors harmless from any and all privacy or data protection claims relating to such access. BuddySystems may transfer End Customer Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of BuddySystems’ stock or assets or business to which these Terms of Service apply.
- REPRESENTATIONS, WARRANTIES, AGREEMENTS
8.a Authority. Customer represents and warrants that (i) Customer has full corporate right, power and authority to enter into these Terms of Service, (ii) the execution of these Terms of Service by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which Customer is a party or by which Customer is bound, and (iii) when executed and delivered, these Terms of Service will constitute your legal, valid and binding obligation, in accordance with its terms.
8.b. Compliance with Law. In connection with the subject matter of these Terms of Service, Customer agrees to, and warrants and represents that it shall, comply with all applicable Federal and State, local, and foreign laws and regulations, including but not limited to any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, and the sending of electronic marketing messages (including but not limited to the CAN-SPAM Act of 2003, the Children’s Online Privacy Protection Act, and HIPAA.)
8.c. Offer Validity. Customer warrants that any Offer shall not violate any laws or regulations and, upon claim by a customer whether on the Site or Services or a Third-Party Partner Site or otherwise, shall be available for redemption by such customer. Customer agrees to comply with the Offer terms of service as set forth in a particular Offer or any other advertising or marketing terms or Offers made available to Customer’s end customers or potential end customers via the Services, and shall at all times honor the terms of any Offer offered or otherwise promoted via the Services. This Section shall remain in effect, regardless of whether Customer is currently using the Services.
8.e. Authorizations and Account Information. Customer represents and warrants that: (i) the information Customer provides in connection with Customer’s registration for the Services is accurate and complete; (ii) if Customer is registering for the Services as an individual, that Customer is at least 18 years of age and has the legal capacity to enter into these Terms of Service; and (iii) if registering for the Services as an entity or organization, (a) Customer is duly authorized to do business in the country or countries and state and local jurisdictions where it operates, (b) the individual accepting these Terms of Service and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Customer, and (c) Customer’s employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Customer to these Terms of Service and all transactions conducted under Customer’s account.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless BuddySystems, its partners, its and their investors, officers, directors, affiliates, subsidiaries, licensors, agents, and employees (collectively, the “BuddySystems Parties”) from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of these Terms of Service; or (b) your access to, use, or misuse of the BuddySystems Platform, Services, Site, or Trademarks; or (c) any allegation that you used the Site or Services, or otherwise caused us, to send a Message in violation of any applicable law, rule, regulation or industry best practice. BuddySystems will provide notice to you of any such claim, suit, or proceeding. BuddySystems reserves the sole right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if BuddySystems believes that you are unwilling or incapable of defending BuddySystems’ interests. In such case, you agree to cooperate with any reasonable requests assisting BuddySystems’ defense of such matter at your expense.
- LIMITATION OF WARRANTY, LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE BUDDYSYSTEMS PLATFORM AND THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, BUDDYSYSTEMS DOES NOT WARRANT THAT THE SITE AND ANY CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN BUDDYSYSTEMS WILL NOT BE RESPONSIBLE FOR THOSE COSTS. BUDDYSYSTEMS HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THESE TERMS OF SERVICE, THE BUDDYSYSTEMS PLATFORM, THE SERVICES OR THE OFFERS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF CUSTOMER ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Without limiting the generality of the foregoing, BuddySystems does not warrant that the BuddySystems Platform or the Services will meet Customer’s requirements or operate without interruption or downtime or be error free.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUDDYSYSTEMS, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS OR RESELLERS, NOR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER’S OR ANY OTHER THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT BUDDYSYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF BUDDYSYSTEMS, ITS LICENSORS, VENDORS AND RESELLERS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED $100. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BUDDYSYSTEMS AND CUSTOMER.
- CUSTOMER CONDUCT GUIDELINES
11.a. Customer Content Liability. You understand that any and all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials, whether publicly posted or privately transmitted (collectively, “Content”), are the sole responsibility of the Customer and user from which such Content originated. This means that you, and not BuddySystems, are entirely responsible for anything and everything that you upload, post, email, transmit or otherwise make available via the Service. BuddySystems does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will BuddySystems be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services. BuddySystems is solely a facilitator of the message traffic and has no visibility into or control over individual Messages as they are transmitted through BuddySystems and has no responsibility or liability with respect to the Content of any individual Message. Except that BuddySystems may use programmatic means to filter (pre-screen) your messages and block your campaigns or account due to message keywords that BuddySystems has determined, in it’s sole discretion, may violate an applicable rule, regulation, or law.
11.b. Prohibited Activities. Prohibited Activities when using the Services include, but are not limited to, uploading, posting, text messaging, transmitting or otherwise making available any illegal contests or gambling, unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; uploading, posting, text messaging, transmitting or otherwise making available any adult Content or Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements, or which violates the intellectual property rights of a third party (“Rights”); impersonating any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; forging headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services; uploading, posting, text messaging, transmitting or otherwise making available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any mobile telephone, mobile device, computer software or hardware or telecommunications equipment; “stalking” or otherwise harassing another; and/or collecting or storing personal data about other users in connection with the prohibited conduct and activities set forth above.
11.c. Contacts and Contact Lists. You certify that any contact list imported into BuddySystems was collected in compliance with applicable legal message requirements, including but not limited to all applicable federal, provincial, state, and local laws, regulations, and rules governing SMS messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, the Personal Information Protection and Electronic Documents Act, provincial privacy legislation, and all state and local equivalents; and all applicable industry guidelines and best practices. If for any reason BuddySystems suspects that your contacts were imported contrary to any governing rules, it reserves the right to request a written explanation from you, the client, including the method of collecting the contacts’ phone numbers and a guarantee signed by you that all the people on your contact list agreed to receive text messages from you of the type that you had sent. BuddySystems reserves the right to take any action it thinks appropriate in the case of non-compliance, including but not limited to cancellation of the account. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against BuddySystems with respect to this section.
11.d. Reminder of Compliance Laws. You guarantee that you are aware that, among other requirements, the TCPA and CTIA rules require prior express written consent from a consumer before you can send them marketing text messages and such consent must be unambiguous (i.e. the consumer must receive a clear and conspicuous legal disclosure). Furthermore, damages for each message sent in violation of the TCPA is $500 and can be $1,500 if the violation is proven to be “willful and knowing.”
- MODIFICATIONS TO THESE TERMS OF SERVICE, WAIVER.
BuddySystems shall have the right to amend these Terms of Service at any time, effective upon posting of an updated version of these Terms of Service at buddytexts.com. BuddySystems may, but, unless required by law, is not obligated to, use reasonable efforts to provide Customer with notice of changes to these Terms of Service, but Customer is responsible for regularly checking the BuddySystems Site to be informed of such changes. Continued use of the Services after any such changes are posted shall constitute Customer’s agreement to such changes. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
- GENERAL TERMS
13.a. Entire Agreement. These Terms of Service, any Additional Policies, and any applicable Service Order(s) set forth the complete understanding of the parties with respect to the subject matter hereof and supersede all prior understandings and communications relating thereto. No term or condition of any other document provided to BuddySystems which is different from, inconsistent with, or in addition to the terms of service set forth herein will be binding upon BuddySystems.
13.b. Marketing. Customer agrees that BuddySystems may refer to Customer by name and trademark in BuddySystems’ marketing materials and website. Customer understands and acknowledges that BuddySystems does not certify or endorse, and has no obligation to certify or endorse, any of Customer’s products or content.
13.c. Compliance with Laws. Customer agrees to comply at all times with all laws, rules and regulations applicable to Customer’s use of the Services, including but not limited to data privacy laws and legal requirements.
13.d. Notices. Except as otherwise provided, notices under these Terms of Service shall be delivered by email addressed to the other party at such address as is set forth in the applicable Service Order or such other email address as Customer may provide to BuddySystems. Such notice will be deemed to have been given as of the date it is delivered by electronic mail, personally, by confirmed facsimile or by courier, or five (5) days after it is sent by postal mail. All communications and notices to be made or given pursuant to these Terms of Service shall be in the English language.
13.e. Assignment. Customer may not assign its rights or delegate any obligations hereunder without the express prior written consent of BuddySystems. Any assignment by Customer without the prior written consent of BuddySystems shall be null and void. BuddySystems may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in these Terms of Service. These Terms of Service shall insure to the benefit of each party’s permitted successors and assigns.
13.f. Severability. In the event that any provision contained herein shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from these Terms of Service, and the remainder hereof shall remain in full force and effect and enforceable.
13.g. Force Majeure. If either party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate these Terms of Service for convenience upon written notice to the other party.
13.h. Headings. The headings of the sections of these Terms of Service are for convenience of reference only and shall not be considered in construing these Terms of Service.
THE SITE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE BY BUDDYSYSTEMS. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SITE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Site, you affirm that either you are at least 18 years of age or have been authorized to use the Site by your parent or legal guardian who is at least 18 years of age.
- OTHER TERMS OF SERVICE
14.a. User Opt In. BuddySystems allows Users to receive SMS/MMS mobile messages by affirmatively opting in, such as through online or application-based enrollment forms or texting an opt-in keyword to a phone number. Regardless of the opt-in method you utilized to join, you agree that this Agreement applies to your participation. By participating, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
14.b. User Opt Out. If you do not wish to continue participating or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from BuddySystems in order to opt out. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
14.c. Jurisdictional Issues. BuddySystems makes no representation that the Site or Services are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Site from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
14.d. Governing Law. These Terms of Service shall be governed by the laws of the State of California without regard to its conflict of laws provisions, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration agreement. Unless you and BuddySystems agree otherwise in writing, in the event that the arbitration agreement is found not to apply to you or a particular claim (except for small claims court actions), as a result of a decision by the arbitrator or a court order, you agree that the claim will be resolved exclusively by a state or federal court located in San Diego County, California. You and BuddySystems agree to submit to the personal jurisdiction of the courts located within California for the purposes of litigating such claims. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Your use of the Services may also be subject to other local, state, national, or international laws.
14.e. Arbitration. In any claim, action or proceeding to enforce any right or obligation of the parties under these Terms of Service including, without limitation, relating to your use of our services, you hereby waive any right you may now have or hereafter possess to a trial by jury. Both parties agree to resolve any dispute either Party may have arising out of or relating to these Terms of Service or the BuddySystems Platform or Services in good faith mediation. In the event no mutual agreement is made under mediation within sixty (60) days of notice of such dispute, the Parties have the right to resolve such dispute via arbitration before a single arbitrator pursuant to the then-current Commercial Rules of the American Arbitration Association (AAA). The arbitrator may award any relief available under applicable law including but not limited to an award of attorneys’ fees, this agreement to arbitrate does not interfere with either party’s right to file a claim with a state or federal agency with jurisdiction thereof to the extent permitted by applicable law. Even if allowed under AAA rules, no class or collective action or arbitration may be brought against BuddySystems hereunder unless required by applicable law. If either you or BuddySystems intends to seek arbitration under these Terms of Service, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to BuddySystems should be sent as required by these Terms of Service. The notice must describe the nature of the claim and the relief being sought. If you and BuddySystems are unable to resolve our dispute within 30 days, either party may then proceed to file a claim for arbitration. The arbitration, information produced, and pre-and post-hearing proceedings will be confidential and any award shall not be used in any other case except to enforce the award itself.
14.f. Class Action Waiver. Any claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the claim is subject to arbitration, the arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration. If this class action waiver is found to be unenforceable, then the entirety of the arbitration agreement, if otherwise effective, shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
14.g. Notice and Procedure for Making Claims of Copyright or Intellectual Property Infringement. BuddySystems respects the intellectual property of others, and we ask our users to do the same. BuddySystems may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to BuddySystems’ Copyright Agent:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Notice of claims of copyright or other intellectual property infringement should be emailed to email@example.com.
The following shall survive the termination of these Terms of Service: (i) all liabilities accrued under these Terms of Service prior to the effective date of termination; and (ii) all provisions of Sections 2.b, 2.c, 2.f, 2.g, 2.i, 3, 5, 6.d, 6.e, 7, 8, 9, 10, 12, 13 and 14 of these Terms of Service. Subject to the provisions of Section 10 hereof, the rights provided in this Section 14 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of these Terms of Service by the other party.