TERMS OF SERVICE
Last Update : September 24, 2018
Welcome to our terms of service page.
Textmunication is a mobile marketing provider. Our product and services serve as mobile engagement gateway by giving users the ability to connect whomever under compliant considered measures. We have listed out the legalese below but if you have any questions to please contact: firstname.lastname@example.org
Terms & Conditions
Supported Carriers (US)
All West Wireless, Appalachian Wireless (EKN), AT&T, Bluegrass Cellular, Cambridge Cellular (CTC), Cellcom, Cellular One of East Central Illinois (ECIT), Cellular South, Centennial Wireless, Cincinnati BellCox Communications, FMTC (Farmers Mutual Telephone Cooperative), GCI Communications, Illinois Valley Cellular (IVC),
Supported Carriers (Canada)
The mobile operators participating in this campaign are Bell Mobility Inc., Rogers Cantel Inc, Telus Mobility, Aliant Mobility, Fido, Mobilicity, MTS/Allstream Inc, Northern Telephone, Sasktel Mobility, Telebec, Videotron, Virgin Mobile Canada and WIND.
Short Codes & Shared Short Codes
A short code is a 5 to 6 digit telephone number that Textmunications mobile engagement platform uses to send and receive SMS, MMS and RCS messages to and from mobile phones. We currently offer
– A shared short code is a short code that is shared between other users.
– A dedicated short code is a short code that is only used by your business.
For questions about our provisioning and carrier approval for dedicated short codes, please contact: email@example.com
Web Site Terms and Conditions of Use
Effective as of the date indicated on the Textmunication Service Agreement (“Agreement”), the client (hereinafter referred to as “Licensee”), hereby agrees to become a non-exclusive licensee of the Mobile Marketing Service and Application software which provides, among other things, access to certain proprietary campaign management functionality and the delivery of SMS text messages between Licensee and end users’ (“Users”) wireless devices (the “Service”), provided by Textmunication, Inc. (“Textmunication”), whose address is 1940 Contra Costa Blvd, Pleasant Hill, Ca 94523.
2. LICENSE TO USE SERVICE :
Textmunication hereby grants to Licensee a limited, non-exclusive license to use the Service and the Textmunication Materials (as defined in Section 7, below) during the Term only as reasonable and necessary for the purposes contemplated by this Agreement. All rights not expressly granted are reserved by Textmunication Licensee agrees not to modify, sublicense, distribute, market, transfer, reverse engineer, reverse compile or make any copies of any of the Textmunication Materials, or otherwise attempt to gain access to elements of the Textmunication Materials. Immediately after the Effective Date, Textmunication shall deliver to Licensee online access to the Service and any and all accompanying documentation provided by Textmunication to other licensees. Licensee shall have the right to use the Service for purposes related solely and exclusively to Licensee. Licensee shall not be entitled to sell, give, lease, distribute or otherwise transfer the Service to any other person, firm or station, whether or not affiliated with or commonly owned by Licensee.
3. REFERENCE SCHEDULE :
In exchange for the service:
A. One Time Set Up Fee of for initial provisioning of the KEYWORD(s) and set up of the SMS Program Capability to be paid upon final signature of agreement.
B. A Monthly payment will be charged that will include outbound SMS messages, keyword(s) and unlimited inbound SMS messages per month, as set forth in the signed “Agreement”, (Messages/keywords exceeding above agreed upon amounts will be charged at negotiated pricing schedule attached) account support, technical support and creative support. Any increase/decrease in this monthly fee will be negotiated each year as necessary on the anniversary date of signature.
C. If and when additional projects outside the scope of this agreement are negotiated or additional services at the beginning of this agreement, they can be added to this agreement on a project by project or item by item basis. They will be included in this contract on the basis of the mutual written agreement and signature of both Textmunication and Licensee on a Statement of Work or a Statement of Work Addendum. The Statement of Work and Statement of Work Addendums will be considered part of this contract on the date of signature by both parties.
D. Payment: Licensee shall pay to Textmunication those fees described in the Agreement and Statement of Work or Statement of Work Addendums attached hereto and made a part hereof. All invoices shall be due within thirty (30) days of Licensee’s receipt of such invoice thru automatic draft via credit card or ACH (echeck). The fees shall be valid during the Term of this Agreement or any extension thereof.
Unless sooner terminated pursuant to Exhibit A, the Term of this Agreement shall be a monthly agreement, commencing on the Effective Date, and shall automatically renew for successive one (1) month terms, unless terminated by either party by written notice not less than thirty (30) days prior to the end of then-current Term. The Textmunication Cancellation Form must accompany the written notice to execute termination of the service. Textmunication may, upon thirty (30) days written notice, change the fees payable under this Agreement if the carrier network or aggregator imposes additional or increased fees for transmission or receipt of text messages. If the imposed increase in fees is greater than 10% of the then-current fee, then Licensee has the option to terminate this Agreement by written notice within the same thirty (30) day period, without penalty. There are no refunds for any fees paid. Textmunication may terminate this Agreement or the service, disable your account, or put your account on inactive status, at any time, with or without cause, and with or without notice. Textmunication shall have no liability to you or any third party because of such termination or action. Textmunication may delete any of your archived data within 30 days after the date of termination by either party. If your account is classified (at Textmunication’s sole discretion) as inactive for over 180 days, Textmunication has the right to permanently delete all of your account data. Textmunication in good faith will attempt to contact you via email prior to taking any permanent data removal actions.Unless the client contacts Textmunication to discontinue service for any reason, the client is responsible for all payments until the service has been cancelled. Refunds or credits will not be issued for lack of use.
“Data” shall consist of User information including, but not limited to, name, address, age, and cell phone number.
Each party may have access to the other party’s information, which shall be deemed confidential information if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding software programs, product, methodology, research, customers, business partners, business plans, financial information, sales, marketing and merchandising plans and any information which provides a competitive advantage (“Confidential Information”). Textmunication may also have access to customer, employee or other personally identifiable information, including, without limitation, name, address, phone number, fax number, email address, account information or purchase information (hereinafter “Personally Identifiable Information”). The receiving party shall employ reasonable measures to prevent the unauthorized use of Confidential Information and/or Personally Identifiable Information (collectively, “Proprietary Information”) (a “Privacy Breach”) by protecting the other’s Proprietary Information with the same degree of care it uses for its own Proprietary Information (and at least a reasonable degree of care), using the information only to carry out this Agreement, and disclosing the information only to its employees (or agents bound by similar confidentiality obligations) with a need to know for that purpose and shall use the information solely for the purposes of this Agreement. In the event of a Privacy Breach, Textmunication shall immediately notify Licensee and cooperate with Licensee, as required by applicable law, to provide prompt notice to affected customers. The cost of any such notice shall be borne solely by Textmunication. Proprietary Information shall remain the property of the disclosing party and shall be returned or (along with all copies) destroyed upon request; provided, neither party shall be obligated to remove Proprietary Information from any backup system that is either (i) not reasonably accessible by such party or (ii) not reasonably subject to deletion. Information shall not be deemed Proprietary Information if it: (i) is disclosed by the disclosing party to others without restriction on use and disclosure; (ii) becomes known to the receiving party without restriction from a third party who is not in breach of a confidentiality agreement with the disclosing party; or (iii) is already known by the receiving party at the time of disclosure. Proprietary Information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure. This section will survive the termination of this Agreement.
4.OWNERSHIP AND AUTHORITY :
Textmunication warrants that, to the best of its knowledge and in good faith, we will not sell or transfer, and do not own or have rights to merchants or supporters of Licensee, independent agent’s list of supporters, or contact information provided by Licensee’s independent agents.
As between the parties and except to the extent such materials are created by, owned by or provided through Textmunication, Licensee is and shall be the sole and exclusive owner of any of its proprietary technology, including the station call letters, contest names, any derivative works thereof, and any related documentation (collectively, the “Licensee Materials”), and all copyrights, trademarks, service marks, trade names, patents, trade secrets and other intellectual property and proprietary rights in and to the Licensee Materials and all portions thereof, and this Agreement shall not be construed in any manner as transferring any rights or ownership or license thereto, except as specifically stated herein. During the Term, each party grants to the other a limited, non-exclusive license to use the Textmunication Materials or Licensee Materials, respectively, only as reasonable and necessary for the purposes contemplated by this Agreement. All rights not expressly granted are reserved by Textmunication and Licensee, respectively. Other than as expressly provided by this Agreement, Licensee agrees not to modify, sublicense, distribute, market, transfer, reverse engineer, reverse compile or make any copies, of any of the Textmunication Materials. Licensee and Textmunication agree not to attempt to gain access to elements of the Textmunication Materials or Licensee Materials, respectively.
Textmunication may issue one or more press releases announcing and promoting Licensee’s use of the Textmunication Services, and create various forms of collateral documentation concerning Licensee’s use of the Textmunication Services, including white papers, case studies, brochures, web site content and related materials, provided, Textmunication complies with Licensee’s trademark use policies.
Each Party shall indemnify, defend and hold harmless the other Party (and each of its officers, directors, employees and agents) from and against any and all third party claims, and any related liabilities, penalties, damages, judgments and expenses, including reasonable attorneys’ fees, in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any message(s) you distribute using this service or (iii) otherwise arises from or relates to your use of our service. Each Party’s obligation to indemnify, defend and hold harmless the other Party (and each of its officers, directors, employees and agents) is subject to the indemnified Party having given the indemnifying Party prompt written notice of the claim or of the commencement of the related action, as the case may be, and permitting the indemnifying Party to consult with the indemnified Party with respect to the defense of the claim or action, at the indemnifying Party’s own expense. The indemnified Party shall not settle or compromise any such third Party claim without the consent of the indemnifying Party (which consent shall not be unreasonably withheld).
8.STANDARD TERMS & CONDITIONS :
Licensee shall comply with the provisions of Exhibit A, which is incorporated herein by this reference.
Licensee’s trademarks, trade names, service marks, logos and symbols (“Licensee’s Trademarks”) are, and shall
10.GOVERNING LAW :
This Agreement shall be governed by the laws of the State of California. All legal actions in connection with the Agreement shall be brought in the state or federal courts within San Francisco, CA. Licensee agrees to pay all expenses Textmunication may incur in connection with the enforcement of any provisions contained in this Agreement, including all reasonable attorneys’ fees and costs.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
All notices, consents and other communications under or regarding this Agreement shall be in writing, in English, and shall be addressed to the parties at the addresses indicated in the Agreement, addressed to the person who signed the Agreement on behalf of such party, or to such other address or person as a party may designate in writing, and shall be deemed to have been received on the earlier of the date of actual receipt, the third business day after being mailed by first class certified air mail, or the first business day after being sent by a reputable overnight delivery service.
14.RELATIONSHIP OF THE PARTIES :
Each party acknowledges that it is an independent contractor of the other, and in no event will the employees and/or agents of a party be deemed employees and/or agents of the other. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Textmunication in any respect whatsoever.
15.COMPLETE AGREEMENT :
This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement many not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein. This Agreement may be signed in counterparts, which taken together shall constitute a single document, Textmunication and Licensee agree to accept and rely on facsimile transmitted signed documents as if they bore original signatures.
16.FORCE MAJEURE :
If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
This Agreement will be binding upon and will inure to the benefit of and be enforceable by each of the parties, their respective successors and permitted assigns. Neither party may assign its rights and/or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Textmunication may assign this Agreement, in whole, to any third party in connection with any merger, consolidation, reorganization, liquidation, or sale of all or substantially all of the business or assets of Textmunication upon prior written notice to Licensee. Any purported assignment or transfer of the Agreement in violation of this Section 18 will be null and void.
18.WARRANTY DISCLAIMER :
Use of our service and your reliance upon the service, including any action(s) taken by you because of such use or reliance is at your sole risk. Textmunication does not posit that the service will be uninterrupted or
TERMS AND CONDITIONS
1. Licensee will adhere to MMA guidelines and acceptable code of conduct regarding SMS-mobile marketing.
2. Licensee will ensure that all such content and materials do not and will not contain any material that:
A. is inappropriate, such as profane language, drug references, promoting drug use, or gambling references;
B. is unlawful, obscene, or defamatory;
C. violates intellectual property rights or third party rights;
D. is false, misleading, or likely to mislead or deceive (including, without limitation, information relating to the source or the author of the message);
E. contains sexually explicit images;
F. promotes violence or discrimination;
G. facilitates illegal activities;
H. advertises or promotes a carrier’s competitors if delivering content to the consumer through a specific carrier.
3.Licensee must provide users with information on how to “opt-out” of receiving messages from Licensee in the first message following the first opt-in for clubs or alerts, sent to a user. This message must include, at a minimum, all of the following items (not necessarily in this order):
A. Licensee identifier/name
B. Short description of the service
C. Number and frequency of messages
D. Charging information
E. Opt-out instructions
F. Contact information
G. Where to get assistance/URL
Example: Textmunication: Max 6msgs/wk; Std msging chrgs apply; PLS rply “GO” 2 confirm u want Traffic Alerts. STOP=Optout.
4. Subject to the terms listed in the remainder of this Agreement, you hereby acknowledge and agree that:
A. Our service may only be used for lawful purposes.
B. You agree that you will not access or use ANY third party mailing lists for email addresses, instant message screen names, or mobile phone numbers, or otherwise prepare or distribute unsolicited messages in connection with our service.
C. You agree to import, access, or use only lists for which all listed parties have consented to receive correspondence from you (“Permission Based Lists”) in connection with your use of our service. You hereby covenant that you shall not use any other lists obtained without the expressed consent by members of said list in connection with your use of the service.
D. You acknowledge and agree that not all messages sent via Textmunication’s service will be received by their intended recipients.
E. Every message sent by you in connection with our service must contain Textmunication’s “unsubscribe” link that allows the recipient to remove his or herself from your mailing distribution list(s).
6. Textmunication reserves the right to enable certain ‘template’ activities and keywords in order to ensure the continued availability of the
– (in-built-unsubscribe) STOP, QUIT, END, CANCEL, UNSUBSCRIBE
– (in-built-help) HELP
7. All television, radio, online, and printed advertising materials that encourage participation in a
8. Licensee agrees that all outbound messaging will contain a reference to Licensee’s name or brand.
1. Licensee’s official rules must use the complete Contest Rules text as provided by Textmunication. Licensee’s own legal counsel should advise where and when official rules need to be posted/advertised.
2. Licensee’s ‘REBOUND’ message (that is, the ‘entry confirmation text message’) must include the following: [Sponsor Name], HELP=Help, STOP=Optout, Standard messaging charges apply.
3. Messages containing references to alcohol and gambling cannot be approved or endorsed by Textmunication. Licensee’s own legal counsel should be involved to assess FTC, FCC and state laws surrounding the promotion of such topics to subscribers. Licensee’s own legal counsel should consider that subscribers in receipt of promotions on such topics could be of any age. Licensee acknowledges that Textmunication does not, and is not, providing legal advice to Licensee.
4. Licensee agrees that it will make all reasonable efforts to ensure that any outgoing messages, specifically pushes, are to subscribers who have opted-in to receive message(s) from the Licensee. Licensee assumes all risk if a message is sent to subscribers who have not opted in.
5. Licensee understands the Services are only supported on Windows Internet Explorer version 6.0 or greater / Firefox / Google Chrome ™ / Apple Safari ™. If the Licensee chooses to use the platform with another web browser, Textmunication, Inc. cannot guarantee support.
6. These standards and restrictions will change from time to time based upon carrier requirements. Textmunication reserves the right to amend at any time to be in compliance with carrier requirements and industry best practice standards.
Anti-SPAM Policy – Textmunication provides businesses and organizations with a variety of tools to collect names, mobile numbers, IM screen names, and email addresses. Textmunication’s service may NOT be used for sending unsolicited messages (sometimes called “spam”). Textmunication has a “no tolerance” spam policy. Textmunication’s customer support actively monitors large import lists and messages going to a large number of contacts. Any customer found to be using Textmunication for spam will be immediately cut-off from use of the service. If you know of or suspect any violators, please notify us immediately. Every outgoing message via Textmunication contains a mandatory unsubscribe link. If the link is removed or de-activated in any way, Textmunication will, depending on the circumstances, terminate or suspend the customer’s account pending the reactivation of that unsubscribe link. The Do Not Text List. You promise to hastily remove from the all data and information of any person who has previously stated verbally and/or in writing that he or she does not wish to receive Services made by or on behalf of you. You agree to update the Database or any contact lists delivered to Textmunication hereunder prior to commencement by Textmunication Services on your behalf. If you do provide us a list of email addresses and/or cell phone numbers, you will ensure that they do not contain email addresses or cell phone numbers of any person that has previously opted-out of receiving SMS or other communications. Some people just don’t want to get messages Textmunication maintains and owns a Global Permanent Removal List which contains addresses and domains which it will not allow any customer to add to a database. You understand and agree that Textmunication has full discretion to block the uploading of any mobile phone numbers which it has placed on such a list, and will not be liable for the blocking of any such address from any customer database. By clicking on the Unsub tab or on Textmunication’s footer or who sends an email to Textmunication at info@Textmunication.com any message recipient can opt-out of receiving any further communications from you through Textmunication. You agree that Textmunication can place people on the Global Permanent Removal List should that happen. Let’s obey the law We all have to play by the rules. Plain and simple… you agree that it’s your sole responsibility to ensure that your use of the Services requested by you, and transmitted on your behalf by Textmunication comply with all applicable Laws. You represent and warrant that the owners of the phone numbers you provide to Textmunication, to which outbound messages are transmitted through the Services, have consented or otherwise opted-in to the receipt of such messages and broadcasts. You agree that you will include clear opt-out/unsubscribe information on at least every fifth text message you send through Textmunication’s Services and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association. You further agree that any individual requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and removed from your list of approved contacts used with the Textmunication Services and the Textmunication Sites. You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages and broadcasts transmitted through the Textmunication Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the Textmunication Services by visiting the following websites:
1. Federal Trade Commission, http://www.ftc.gov
2. Federal Communications Commission, http://www.fcc.gov
3. DoNotCall Registry Info, http://www.donotcall.gov
The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. Textmunication is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages, broadcasts and campaigns prior to using the Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.
Textmunication prohibits the use of the service by any business, person, or entity that:
1.Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make explosives or incendiary devices or any other sort of weapon.
2. Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
3. Provides, sells or offers products, services or content frequently associated with unsolicited commercial email (Spam) such as online and direct pharmaceutical sales, including but not limited to health and sexual enhancement products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
4. Provides 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.
5. Posts or discloses any personally identifying information or private information about children without their consent (or their parents consent in the case of a minor).
6. Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
7. Introduces viruses, worms, harmful code and/or Trojan horses onto the Internet.
8. Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting “get rich quick”, “build your wealth” and “financial independence” offerings.
9. Engages in any libelous, defamatory, scandalous, threatening, and/or harassing activity.
10. Posts 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.
11. Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
Textmunication 30 Day Free Trial Terms and Conditions:
This offer (the “New 30-Day Free Trial Offer”), provided by Textmunication (as defined in the Textmunication Terms and Conditions of Use), entitles you access to the Textmunication SMS Platform (as defined in the Textmunication Terms and Conditions of Use) for a period of thirty (30) days from the moment you activate your trial. You must submit your payment details for the Free Trial Period to be activated.
Waiver of Special Damages
IN NO EVENT WILL TEXTMUNICATION BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES, OR LOSS OF GOODWILL, DATA OR PROFITS OR COST OF COVER ARISING HEREUNDER, EVEN IF TEXTMUNICATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. FURTHERMORE, IN NO EVENT WILL TEXTMUNICATION’S LIABILITY UNDER THIS AGREEMENT EVER EXCEED THE AGGREGATE OF ALL FEES IT HAS COLLECTED PURSUANT TO THIS AGREEMENT.