Customer Messaging Terms Of Service Agreement

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEBSITE. YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN YOU MAY NOT USE THIS WEBSITE OR THE SERVICES.

This Agreement is made this day between Customer Messaging, Inc. (“Customer Messaging” or “us”) and you ("Customer" or “you”).Customer Messagingprovides small businesses and organizations with a variety of products and services and related offerings, features and functionalitiesfor sending and receiving Text Messages (a “Text”)and E-mail messages (an “E-mail”) to customers and clients (individually, a "Service" and collectively, the "Services"). This website (the "Site") and the Servicesare provided subject to these Terms and Conditions, as they may be amended by us, and any guidelines, rules or operating policies that we may post on this website, including, without limitation, our Anti-Spam Policy, our Prohibited Content and Commerce Statement and our Privacy Statement, which are specifically incorporated herein by reference (collectively, the "Agreement").

1. ACCEPTANCE OF TERMS AND CONDITIONS

By using any of the Services, Customer agrees to be bound by this Agreement. If you do not agree to any of the terms of this Agreement, do not use any of the Services and contact Customer Messaging to cancel your account.

2. AMENDMENTS

Customer Messaging reserves the right to modify this Agreement. Amendments shall be effective immediately upon being posted of the Site. Continued use of the Service shall be deemed to constitute acceptance of all amendments. Customer is responsible for reviewing this Site and this Agreement on a regular basis.

3. REGISTRATION INFORMATION

Customer shall provide Customer Messaging with accurate and valid information when registering for or using the Services. Customer Messaging in its sole discretion, has the right to suspend use of the Services or terminatethis Agreement, if Customer Messaging has reason to believe Customer has failed to provide accurate information.

4. FEES AND PAYMENT

Customer will be subject to fees in accordance with any applicable Fee Schedule. Payment for the Services will be made in advance by a valid credit card accepted by us. You hereby authorize us to charge your credit card for such amounts on a regular monthly basis beginning at the end of any applicable free trial period and continuing until such time as your account is terminated. If we are for any reason unable to effect automatic payment by credit card, we will attempt to notify you by email and your CustomerMessaging account may be disabled until payment is received.The applicable Fee Schedule is subject to change at any time in our sole discretion, and if you do not agree to any such changes, you should contact us to cancel your account.

Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.

We collect and remit sales tax from our customers located in certain state and local jurisdictions, including those jurisdictions where software delivered as a service is taxable and where we maintain a physical presence. We determine your local taxing jurisdiction based on the billing address that you provided us. Fees set forth in the applicable Fee Schedule do not take into account any taxes.

You agree to be responsible for and to pay any sales, or any other taxes that may be imposed, based on this Agreement, use or possession of the Site or the Services or your products or services (except for taxes based on net income payable by us).

We will use good faith efforts to notify you prior to the effectiveness of any significant change to the applicable Fee Schedule, but you are responsible for reviewing the applicable Fee Schedule from time to time and remaining aware of the fees charged by us and any applicable discounts. There are no refunds of payments.

5. RESTRICTIONS AND MODIFICATION OF SERVICE

Customer Messaging reserves the right, exercisable in its sole discretion, to establish procedures and limits concerning the use of the Service, including without limitation the maximum duration for retention of messages, the maximum number of messages to be retained, the maximum number of messages that may be sent from or received by an account on the Service, length of message sent, maximum number of times the message may be sent, and the maximum duration for which Customer may access the Service in a given period of time. Customer Messaging has no responsibility or liability for the deletion of messages or failure to store messages and other communications maintained or transmitted by the Service.

6. ACCOUNT SECURITY

Customeris responsible for maintaining the security of itsCustomer Messaging account, passwords and files. Customer Messaging will accept the instructions of any individual who claims to be authorized to direct changes to your Customer Messaging account so long as such person presents the Customer’s username and password or provides other appropriate account identifying information, as determined by us in our sole discretion, by email or by phone. You agree to notify us immediately of any unauthorized use of your Customer Messaging account or any other breach of security.

7. SOFTWARE

Any software available for download via the www.customermessaging.com website is the copyrighted work of Customer Messaging or its licensors. Use of such software is governed by the terms of the end user license agreement that accompanies or is included with the software. Downloading, installing, and/or using any such software indicates your acceptance of the terms of the end user license agreement.

8. CONDUCT

Customer will not use the Services for any purpose that is unlawful or prohibited by this Agreement. Customer may not use the Services in any manner that could damage, impair, disable or overburden the Service, interfere in any way with our rights, interfere in any way with any other Customer's usability and access to the Services, or otherwise infringe on any person's rights. Without limiting the foregoing, youshall not:

9. NO UNSOLICITED MESSAGES

The Site and the Services may not be used for the sending of unsolicited email messages (sometimes called "spam"). All messages sent by means of the Site or the Services shall be in compliance with our Anti-Spam Policy.

You are responsible for ensuring that your use of the Site and the Services do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of the Site and the Services if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. You agree to import, access or otherwise use only contact lists in connection with the Site and the Services for which all listed parties have consented to receive correspondence from you. You agree not to send messages through the Site or the Services to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses.

We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email, messages or campaigns from entering, utilizing or remaining within our network.

In Customer’s use of the Site or the Services, you shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious.

Customer agrees that Customer is the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the "CAN-SPAM Act")) of any message sent by you using the Site or the Services.

You agree that you shall not utilize the Site or the Service to send any message to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting.

10. MESSAGE CONTENT

Customer Messaging is not responsible for the accuracy, quality or appropriateness of any communications, information, or other materials provided by Customer. It is solely the responsibility of the Customer to evaluate the accuracy, completeness, or appropriateness of any Content that you send, receive, access, post, or otherwise transmit through the Service. Customer Messaging is not for liable errors or omissions in messages, nor for any loss or damage of any kind incurred as a result of the use of any messages sent, accessed, received or otherwise transmitted via the Service.

For every listing, message or campaign sent or distributed via the Service, you agree that we may add a link to our Site and a statement such as "Email Marketing by Customer Messaging " or "Powered by Customer Messaging" in the footer or other similar location that does not unreasonably obscure the message or campaign.

11. MARKETING STATISTICS

Customer Messaging may provide general statistics and information about its Customer’s to partners, Service Providers, and other third parties. You agree that Customer Messaging may make such uses of information you provide or Customer Messaging collects; provided, however, that Customer Messaging shall not disclose client names, contact information and other identifiable information. If Customer Messaging should be sold or merged or the Service should be sold or merged, you consent to the transfer of your account and relevant data as one of the transferred assets.

12. WARRANTY

YOU EXPRESSLY AGREE THAT THE SITE AND THE SERVICES (INCLUDING ANY CUSTOM SERVICES OFFERINGS) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SITE OR THE SERVICES AND ANY RELIANCE BY YOU UPON THE SITE OR THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.

NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE SERVICES SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE SERVICES.

13. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CUSTOMER MESSAGING OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS AND MEMBERS OF OUR NETWORK, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "CONSTANT CONTACT") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF WE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF OUR TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE SERVICE IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM. You agree that Customer Messaging has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.

14. INDEMNIFICATION

Customer understands and agrees that Customer is personally responsible for his/her behavior on the Site. Customer agrees to indemnify, defend and hold harmless Customer Messaging its parent companies, subsidiaries, affiliated companies, joint venturers, business partners, licensors, employees, agents, and any third-party information providers to the Service from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of your use, misuse, or inability to use the Site, the Service, or the Content, or any violation by you of this Agreement.

15. PROPRIETARY RIGHTS

Customer acknowledges and agrees that the Services, and any necessary software used in connection with the Service, contains proprietary and confidential information that are protected by applicable intellectual property and other laws. Customer Messaging grants to Customer a non-exclusive, limited license to use the Services only for the purpose set forth herein and subject to this Agreement. Customer may not reproduce the structure, design, etc. of the Service for reuse in other products or services, create derivative works of the Services, reproduce, distribute, transmit, display, modify, reformat, publish, license, transfer, sell, or store the content provided through the Services, or provide others with access to the Services. Customer may not authorize or assist any third party to do any of the things described in this section. By using the Services, you represent and warrant that you will use the Services only for lawful purposes and in accordance with this Agreement and not to violate any law, regulation, or ordinance, or any right of Customer Messaging or any third party. You shall not modify, copy, distribute, transmit, displace, perform, reproduce, publish, license, transfer, or sell any information, products or services that you access or obtain from any portion of the Services. Customer agrees not to display or use the Customer Messaging logo in any manner without the prior written permission of Customer Messaging.

16. NOTICE

Customer agrees that Customer Messaging may communicate any notices in regard to your account or your conduct through email, regular mail, through the Service, telephone or via courier.

17. GOVERNING LAW AND LEGAL ACTIONS+

This Agreement shall be governed by the laws of the State of New Jersey and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of New Jersey, in each case. All legal actions in connection with this Agreement shall be brought in the state or federal courts located in New Jersey and Customer hereby consents to the jurisdiction of such courts.

18. ENTIRE AGREEMENT

The Agreement governs your use of the Service and constitutes the entire and complete understanding and agreement between you and Customer Messaging. It supersedes any prior agreements between us.