Texting.Biz Terms of Service

Texting.biz, LLC. Or “Texting.Biz” offers cloud-based software services that enable landline and VOIP telephone numbers to send and receive text messages.  Texting.biz provides its Services subject to these Terms of Service (“Terms”).

For our Services:

  • you are our “Customer” if you are the legal or natural person that orders our Services.
  • you are an “Authorized User” if you are an employee, consultant, contractor, agent or other representative authorized by Customer to access and use our Services under our agreement with our Customer. If you are Customer and a natural person (and not a representative of our Customer who or that is a legal entity), then you also are an Authorized User.
  • an “End User” receives text messages through the Services from Customer but does not have a direct contractual relationship with Texting.biz.

When used in these Terms, “you” (and variants) means the Customer or Authorized User that uses the Services.

BY SIGNING AN ORDER FORM OR BY CLICKING “CONFIRM” OR OTHERWISE ELECTRONICALLY AGREEING TO THESE TERMS, YOU AFFIRM TO TEXTING.BIZ THAT:

IF YOU USE THE SERVICES OR AGREE TO THESE TERMS ON BEHALF OF A LEGAL ENTITY, THEN YOU REPRESENT TO TEXTING.BIZ THAT YOU HAVE THE AUTHORITY TO BIND THAT LEGAL ENTITY TO THESE TERMS.

IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT HAVE THE AUTHORITY TO AGREE TO THESE TERMS, THEN YOU ARE NOT AUTHORIZED TO USE THE SERVICES.

IMPORTANT NOTE: These Terms contain provisions that limit our liability to you and require you to resolve any dispute with us through arbitration on an individual basis and not as part of any class or representative action. Please see “Agreement to Arbitrate.” (Section 23) and “Waiver of Class or Consolidated Actions” below for more information. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THIS AGREEMENT TO ARBITRATE AND CLASS ACTION WAIVER.

  1. Defined Terms.

For your convenience, many of the capitalized terms that we use in these Terms are defined in this Section 1:

Beta Services means new functionality or components of the Services made available from time to time for a Customer to try that are clearly identified as ‘beta’, ‘pilot’, ‘preview’, ‘evaluation’ or similar designation. Without limiting the foregoing, Beta Services may include code snippets that Texting.biz may elect to provide to a Customer for Customer’s evaluation and testing purposes in connection with enhancing the interoperability of the Services with Customer’s platform.

Confidential Information means all information disclosed by or on behalf of Texting.biz to Customer or an Authorized User (and vice versa), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

CTIA Guidelines means the Messaging Principles and Best Practices published by the CTIA, as amended from time to time, available at https://api.ctia.org/wp-content/uploads/2019/07/190719-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf.

Customer Application means any software developed by Customer to interact with the Services.

Customer Data means data in any form or medium that are transmitted to or through the Services or otherwise made available by Customer, Authorized Users or End Users in connection with the Services, including Messages but excluding Usage Data.

Customer Marks means Customer’s proprietary trademarks, trade names, branding or logos, whether or not registered.

Documentation means all manuals, instructions or other documents or materials that Texting.biz provides or makes available to Customer in any form or medium and that describe the functionality, components, features or requirements of the Services, as updated from time to time.

Feedback means ideas, suggestions, documents, proposals or other feedback about the Services submitted to Texting.biz by Customer or an Authorized User or End User.

Fees means the fees due to Texting.biz for use of the Services that are specified in an Order Form.

“Inappropriate Content” means Customer Data that (i) violates applicable law, (ii) is an unsolicited Message, such as Messages that are spam, “phishing” and other unsolicited commercial Messages (iii) likely or intended to deceive the recipient, (iv) is abusive, harmful, deceptive, fraudulent, misleading, malicious, harassing, threatening, discriminatory, bullying, excessively profane, obscene, defamatory, libelous, promotes or glamorizes alcohol abuse, illegal drug use or use of tobacco products, incites harm or violence, is intended to intimidate, cause safety concerns; (v) includes Malicious Code; (vi) violates any authoritative industry guideline (including the CTIA Guidelines) or any of the telecommunications carrier requirements, conditions or codes of practice, including the requirements and guidelines described in of these Terms.

Integration Partner means a third party that provides software that is integrated with the Services pursuant to a written agreement between that third party and Texting.biz.

Integration Partner Services mean an Integration Partner’s software and related services that Customer orders on an Order Form or otherwise obtains directly from an Integration Partner.

Malicious Code means any virus, Trojan horse, worm, back door, trap door, time bomb, drop-dead device, timer, clock, counter or other limiting routine, as well as other software or hardware designed to disable, erase or otherwise harm software, hardware or data stored in electronic form.

Message means any message sent through a multi-media messaging service (MMS) or short message service (SMS).

Subscription Form means an offline or online ordering form specifying the Services to be provided pursuant to these Terms that is agreed by and between Customer and Texting.biz, including supplements thereto.

Subscription Plan means the bundle of Services made available by Texting.biz and selected by its Customers.

Subscription Term has the meaning given in Section 14.

Territory means the U.S. and Canada.

Third-Party Materials means technology and services provided by a third party that interoperate with or otherwise support the Services, such as spam filtering, security and hosting service providers.

Usage Data means data related to Customer’s use of the Services that is used by Texting.biz to compile statistical and performance information related to the provision, operation and improvement of the Services and to detect and prevent fraud.

Texting.biz API means Texting.biz’s messaging application program interfaces (APIs) and associated Documentation. For purposes of these Terms, the Texting.biz API is part of the Services unless otherwise indicated.

Texting.biz Business Directory means the list of Customers displayed to certain telecommunication providers to assist them with fraud detection and prevention and also used by Texting.biz to authenticate Customers.

Texting.biz Marks means Texting.biz’s proprietary trademarks, trade names, branding or logos, whether or not registered.

Inbound Only Customer is a customer that is signed up for our inbound only free program.

  1. How these Terms Apply.

These Terms apply to access to and use of the Services. Unless otherwise indicated, these Terms also apply to Beta Services and Free Trials.

  1. Changes to these Terms.

You acknowledge and agree that Texting.biz has the right to modify these Terms from time to time to reflect changes to the Services, industry requirements or applicable law. Texting.biz will notify Customers at least ten (10) business days in advance of material modifications to these Terms that reduce legal rights. Texting.biz will send notifications of material modifications by email using the email addresses associated with Customer’s account and through a notice posted in the Services. For non-material modifications, Texting.biz will notify Customers and Authorized Users by posting a notice in the Services. Continued use of the Services after the end of the notice period specified in the notification is deemed conclusive acceptance of the Terms as modified. Customer acknowledges and agrees that changes to applicable law and changes required by telecommunications providers may prevent Texting.biz from providing advance notification.

  1. Changes to Our Services.

We are always looking to improve our service offerings.  As a result, Texting.biz may from time to time update the Services, including enhancements, modifications, upgrades and other changes to the existing features and operability of the Services (collectively, “Changes”). Whenever possible, Texting.biz will provide Customer with reasonable, advance notice (which may include notice by way of website posting, email or “other” form of communication to enable Customer to prepare for the Changes. Customer acknowledges and agrees that Changes made to comply with applicable law and Changes required by telecommunications providers may not allow Texting.biz to provide advance notice of Changes.

Certain modifications that add material new features or functionality to the Services (collectively “Enhancements”) may be made available to Customers at Texting.biz’s discretion upon amendment to a Customer’s Subscription Plan and the payment of additional Fees, if any. Texting.biz may elect to deprecate certain functionality or features within the Services upon notice posted on the Texting.biz website or as part of the Services portal. Texting.biz will provide at least one hundred and eighty (180) days advance notice of deprecation of any material function (and any related support) within the Services by way of website posting or within the Services portal.

Customer is responsible for notifying Authorized Users and End Users about Changes that affect them.

  1. Accounts and Subscription Plans.

Texting.Biz services require that each Authorized User create an account. To create an account, the Authorized User must (i) choose a username and password (“Account Credentials”); (ii) provide true, accurate, current and complete information and maintain that information as accurate, current and complete; and (iii) use appropriate safeguards to maintain the confidentiality and security of Account Credentials. Texting.biz may, in its sole discretion, suspend or terminate Account Credentials and access to the Services if account information is inaccurate, out of date or incomplete (or if Texting.biz reasonably believes it is).

During signup every customer must choose a Subscription Plan as part of the account creation process. A Subscription Plan may require designation of an Authorized User who controls the account (“Admin User”). Depending on the Subscription Plan, the Admin User may create users for the number of Authorized Users specified in the customers Subscription.  The total number of Authorized Users must not exceed the number set forth in the Subscription Plan selected by the customer.

Free Inbound Subscription (Program)- The free inbound texting program is a free service provided by Texting.Biz to allow customers to only “Receive” inbound text messages at no cost.  Texting.Biz reserves the right to terminate this free service at anytime for any reason.  Texting.Biz also reservices the right to access a fee to the “Free Inbound Program” if it deems necessary.  If such changes are made Subscriber is in no way obligated to pay for service going forward, also they will have a total of three (3) days to download any data from the platform before their account is deactivated.

Use of the Services.

Subject to and conditioned on compliance with these Terms by Customer and Authorized Users, Texting.biz hereby grants the following a limited, revocable, non-exclusive, non-transferable rights during the Subscription Term: (i) to use the Services to send to and receive Messages from Customer’s End Users in the Territory; (ii) to develop Customer Applications that communicate and interoperate with the Services; and (iii) to access and use the Services and Documentation solely for Customer’s own business purposes in connection with its use of the Services. Texting.biz reserves all rights that are not expressly granted in these Terms. Texting.biz makes the Services available in compliance with laws applicable to Texting.biz and not necessarily in compliance with laws applicable to Customer’s specific use of the Services.

  1. Customer Responsibilities.

Customer is solely responsible for:

  • Compliance with these Terms and the Acceptable Use Policy, including use of the Services and decisions and actions based on use of the Services by Authorized Users and End Users;
  • Compliance with all applicable laws, regulations and written telecommunications provider (e.g., carrier) rules and industry standards related to Customer’s use of the Services, such as obtaining all necessary consent, honoring all opt-out requests from End Users with respect to sending and receiving Messages and the quality, integrity and lawfulness of all Customer Data;
  • The security and use of Access Credentials associated with Customer and Authorized Users and all activities that occur through those Account Credentials. Texting.biz is not responsible for loss or damages arising from unauthorized use of Account Credentials unless such loss or damage arises directly from Texting.biz’s gross negligence or willful misconduct. (Please immediately notify Texting.biz at support@Texting.biz if unauthorized activity is suspected or detected.);
  • Issues arising from or related to changing telecommunication providers, such as lost or undelivered Messages. Porting your voice service from one carrier to another may break your texting service and Texting.biz has no control over this. You will remain responsible for all charges associated with your account notwithstanding a break in the texting service as a result of your change of carriers. (Please notify Texting.biz at support@Texting.biz of any change in your texting service);
  • Use of reasonable and appropriate administrative, physical and technical safeguards to protect against unauthorized access to or use of the Services;
  • Reasonably cooperating with Texting.biz’s investigation of Inappropriate Content or Customer Data that Texting.biz believes violates law or these Terms;
  • The information technology infrastructure through which Customer accesses and uses the Services, including hardware and other equipment, software, networks and internet connectivity (and associated fees), whether operated directly by Customer or through the use of third-party services (“Customer Systems“) and Customer Applications, all access to and use of the Services directly or indirectly through the Customer Systems, whether or not authorized and the operation, maintenance and management of the Customer Systems; and
  • For creating backup copies of Customer Data at Customer’s sole cost and expense. Except as otherwise agreed in writing, Texting.biz may periodically delete Customer Data. Texting.biz has no responsibility or liability for damages, losses or other consequences arising from or related to Texting.biz’s deletion of Customer Data.
  1. Use Conditions.

You understand and agree that:

  • If Customer purchases Integration Partner Services, Texting.biz may disclose Customer Data to the Integration Partner. Your use of Services may require specific configurations to function with Integration Partner Services or other features of the Services (“Configurations”) and Texting.biz will provide the requirements of Configurations to Customer at the time of account creation. Texting.biz reserves the right to change or remove Configurations if Texting.biz suspects or detects unauthorized use of the Services. if a Configuration includes Integration Partner Services, Integration Partner may have access to your account for purposes of enabling the Configuration.
  • You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing Services. We are not responsible for service failures due to network outages.
  • Texting.biz has the right but no obligation to access and screen Messages and reserves the right in its sole discretion to screen, reject, not transmit or remove from the Services Messages. Texting.biz may filter or block traffic or immediately suspend use of the Services
    • If Texting.biz discovers Inappropriate Content or Messages that is (or could in Texting.biz’s good-faith judgment reasonably become) the subject of any legal, regulatory or other governmental proceeding or process, including any law enforcement demand, process or investigation;
    • To protect End Users;
    • If Texting.biz or a telecommunications carrier learns of End User complaints or opt-out requests that Customer did not honor;
    • To address actual or suspected fraud, security or similar urgent concerns in the discretion of Texting.biz or at the direction of any telecommunications provider.
  • Customer Data submitted through the Services may be transmitted via unencrypted methods over various third party networks. You have no expectation of privacy concerning the transmission of Customer Data.
  • Texting.biz may disclose Customer Data, including the content of communications stored on our systems, if (i) Texting.biz believes that disclosure is reasonably necessary to comply with any law or a request from a government regulator or telecommunications provider that Texting.biz believes in good faith is lawful, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our Services, (iv) to protect ourselves, our other customers or the public from harm or illegal activities, or (v) to respond to an emergency that Texting.biz believes in good faith requires us to disclose Customer Data to assist in preventing a death or serious bodily injury.
  • Texting.biz may impose reasonable limits on storage of Customer Data, such as limits on file size, storage space, processing capacity and similar limits.

For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms expressly permit:

  • copy, modify, frame, mirror or create derivative works or improvements of the Services;
  • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
  • reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
  • bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then-valid Access Credentials;
  • input, upload, transmit or otherwise provide to or through the Services, any information or materials that are unlawful or injurious or contain, transmit or activate any virus, worm, malware or other malicious computer code;
  • damage, destroy, disrupt, disable, impair or otherwise impede or harm in any manner the Services or Texting.biz’s provision of services, in whole or in part;
  • remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notice from any of the Services or Third-Party Materials, including any copy thereof;
  • access or use the Services or Third-Party Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other customer) or that violates any applicable law;
  • permit use of the Services to transmit Inappropriate Content or Malicious Code;
  • access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing product or service or any other purpose that is to Texting.biz’s detriment or commercial disadvantage; or
  • otherwise access or use the Services beyond the scope of the authorization expressly granted under these Terms.

The Services are not designed, intended, authorized or warranted to be suitable for use in the following: life support applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; weapons systems; military or space equipment requiring radiation hardened components; and Enhanced 911 or the E911 emergency calling system (“Prohibited Uses”).

YOU UNDERSTAND AND AGREE THAT YOU WILL NOT USE THE SERVICES FOR ANY OF THE PROHIBITED USES.

  1. Intellectual Property Rights.

9.1       As between Customer and Texting.biz, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, Customer Applications and the Customer System, including all intellectual property rights relating thereto. Customer hereby irrevocably grants to Texting.biz all rights and permissions in or relating to Customer Data as Texting.biz determines necessary or useful to perform the Services, enforce these Terms or otherwise exercise Texting.biz’s rights and perform Texting.biz’s obligations. Customer expressly acknowledges that Customer Data excludes Usage Data

9.2       As between Customer and Texting.biz, Texting.biz is and will remain the sole and exclusive owner of all right, title and interest in and to the Services, including all intellectual property rights therein but excluding Customer Data, Customer Applications and the Customer System. In furtherance of the foregoing, Customer and each Authorized User hereby unconditionally and irrevocably grant to Texting.biz all their respective rights, title and interests (if any) in and to Usage Data.

9.3       You hereby grant to Texting.biz a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of and otherwise exploit in any manner all Feedback. You also acknowledge and agree that Texting.biz may publish your Feedback on its website.

9.4       With respect to Third-Party Materials, the applicable third-party providers own all right, title and interest, including all intellectual property rights, in and to Third-Party Materials. Customer has no right, license or authorization with respect to Third-Party Materials except as expressly set forth in the applicable third-party license. All other rights in and to the Third-Party Materials are expressly reserved by the applicable third-party licensor.

9.5       Subject to these Terms, Texting.biz and Customer each grant the other the right to use and display each other’s name and logos (the “Marks”) in promotional materials (including websites) solely in connection with the Services and in accordance with relevant written usage guidelines. Depending on then current and available features of the Services, Texting.biz may use Customer’s business logo for the purpose of identifying Customer in text messages sent by Customer and its Authorized Users, including for security and fraud prevention purposes and the Texting.biz Business Directory. All such use will inure to the benefit of the Marks’ owner. Texting.biz and Customer each agree not to use, register or take other action with respect to the other’s Marks unless expressly agreed in writing. In using the Marks, Texting.biz and Customer agree to use the then-current Marks and not add to, delete from or modify the Marks or misrepresent the relationship between Texting.biz and Customer.

  1. Accessing and Download Applications.

In order to use Texting.biz’s mobile application, you must have access to a wireless network, and you agree to pay all fees associated with such access.

10.1       App Store. If you access and download Texting.biz’s mobile application from Apple’s App Store, you acknowledge and agree that the Terms are concluded between you and Texting.biz only, and not Apple. Texting.biz, not Apple, is solely responsible for Texting.biz’s mobile application and content thereof. Your use of Texting.biz’s mobile application must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Texting.biz’s mobile application. If Texting.biz’s mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for Texting.biz’s mobile application to you and, to the maximum extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to Texting.biz’s mobile application. As between Texting.biz and Apple, all other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Texting.biz. You acknowledge that, as between Texting.biz and Apple, Apple is not responsible for addressing any claim you have or any claim of any third party relating to Texting.biz’s mobile application or your possession and use of Texting.biz’s mobile application, including but not limited to: (i) product liability claims; (ii) any claim that Texting.biz’s mobile application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third-party claim that Texting.biz’s mobile application or your possession and use of Texting.biz’s mobile application infringes a third party’s intellectual property rights, as between Texting.biz and Apple, Texting.biz, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Texting.biz acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms as related to your license of Texting.biz’s mobile application and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of Texting.biz’s mobile application against you as a third-party beneficiary thereof. Without limiting any other terms of these Terms, you must comply with all applicable third-party terms when using Texting.biz’s mobile application.

10.2       Other App Platforms. You acknowledge and agree that the availability of Texting.biz’s mobile application downloadable via Google Play or another platform or online store (“App Platform”) as part of the Services is dependent on the terms of the App Platform from which you received Texting.biz’s mobile application. Texting.biz, not the App Platform, is solely responsible for Texting.biz’s mobile application and its content, maintenance, support services and warranty therefor, and for addressing any claim relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You also agree to pay all fees (if any) charged by the App Platform in connection with Texting.biz’s mobile application. You agree to comply with, and your license to use Texting.biz’s mobile application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Platform’s terms and policies) when using the Services, including Texting.biz’s mobile application. You acknowledge that the App Platform (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce these Terms as related to your license of Texting.biz’s mobile application against you as a third-party beneficiary thereof.

  1. Beta Services.

11.1     Beta Services. Customer may access and use Beta Services solely for testing, demonstration, trial and other evaluative (but not any developmental or productive) purposes, including to assess the Beta Services’ compatibility with the Customer System, Customer Application or business needs. Customer agrees to provide Feedback about the Beta Services as reasonably requested by Texting.biz. Texting.biz reserves the right to modify Beta Services without notice until Beta Services are deemed part of the Services and to decide not to make Beta Services part of the Services. These Terms govern Beta Services unless otherwise stated.

11.2     WAIVERS AND DISCLAIMERS RELATED TO FREE TRIALS AND BETA SERVICES. NOTWITHSTANDING THE WARRANTIES AND DISCLAIMERS, INDEMNIFICATION AND LIMITATIONS OF LIABILITY SECTIONS IN THESE TERMS, SERVICES MADE AVAILABLE DURING A TRIAL OR WITH RESPECT TO BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND AND TEXTING.BIZ SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY OF ANY KIND ARISING FROM USE OF BETA SERVICES. IF ANY EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, TEXTING.BIZ’S LIABILITY WITH RESPECT TO BETA SERVICES SHALL NOT EXCEED $1,000.

WITHOUT LIMITING THE FOREGOING, TEXTING.BIZ DOES NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF BETA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR (B) CUSTOMER’S USE OF BETA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, CUSTOMER IS FULLY LIABLE TO TEXTING.BIZ UNDER THESE TERMS FOR DAMAGES ARISING OUT OF USE OF THE SERVICES BY CUSTOMER AND ITS AUTHORIZED USERS AND END USERS DURING THE FREE TRIAL OR WITH RESPECT TO BETA SERVICES AND ANY BREACH BY CUSTOMER OF THESE TERMS AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

  1. Privacy and Data Protection.

12.1     Privacy Policy. You acknowledge that you have read Texting.biz’s Privacy Policy and understand that it describes how Texting.biz and its authorized agents will collect, use, share and otherwise process personal information and how to exercise privacy rights with respect to that personal information.

12.2     Security. Texting.biz uses administrative, physical and technical safeguards intended to protect Customer Data. Our safeguards are designed to provide a level of security appropriate to the risk of processing Customer Data and include (as applicable) measures to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and a procedure for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of Customer Data.

  1. Customer Confidentiality.

The parties agree that Customer Data are Confidential Information of Customer and that the Documentation, Order Forms, Services and Usage Data are Texting.biz’s Confidential Information.

Each party agrees that it will use the Confidential Information of the other party in accordance with these Terms and it will not use, access or permit the use or access of Confidential Information of the other party except to exercise its rights, perform its obligations in accordance with these Terms and, in the case of Texting.biz, Texting.biz’s Privacy Policy or as permitted by these Terms or the disclosing party in writing. Each party agrees to exercise due care in protecting the Confidential Information of the other party from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with these Terms. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.

In these Terms, Confidential Information does not include any information that: (i) is publicly available through no fault of the receiving party; (ii) was known or disclosed to the receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Customer expressly acknowledges and agrees that use and disclosure of Customer Data to an Integration Partner or telecommunication provider in order to provide the Services to Customer or in connection with fraud detection or spam prevention is not a breach of this Section 13.

Texting.biz and you each expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 13 and that, in the event of an actual or threatened breach of the provisions of confidentiality, the non-breaching party is entitled to seek immediate injunctive and other equitable relief, without the requirement to post bond and without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violation of these confidentiality obligations.

  1. Subscription Term and Termination.

14.1       Subscription Term. The term of Customer’s subscription for the Services begins on the date specified on the customer’s receipt of subscription payment and acceptance of; Terms of Use and Privacy Policy.  This will be understood as the (“Initial Subscription Term”).  The initial term will be a period of 12 months.  Customer’s subscription will automatically renew for successive periods equal in length to the Initial Subscription Term (each, a “Renewal Term”).  The “Renewal Term will begin on the anniversary date of the Initial Term, unless otherwise specified in the Subscription Plan or Customer cancels their subscription renewal at any time during the Initial Term or any subsequential Renewal Term.

14.2       Termination or Suspension by Texting.biz. Texting.biz may terminate Customer’s subscription by providing Customer with at least thirty (30) days’ prior written notice, with termination to take effect at the end of the Subscription Term in which the notice period concludes. Texting.biz may terminate or suspend access to the Services immediately if Texting.biz determines in its sole discretion that: (a) Customer or any of Customer’s Authorized Users violated (or give Texting.biz reason to believe you have violated) these Terms or the Acceptable Use Policy; (b) the traffic created from Customer’s use of the Services or Customer’s use of the Services is fraudulent or adversely affecting the operating capability of the Services; (c) providing the Services is prohibited by law or has become impractical or unfeasible for any legal or regulatory reason; (d) Customer has experienced a liquidation, commencement of dissolution proceedings, disposal of assets or change of control, a failure to continue business, assignment for the benefit of creditors, or Customer became the subject of bankruptcy or similar proceeding; (e) use of the Services by Customer or its Authorized Users or End Users threatens the availability, integrity, resilience or security of the Services; or (f) Customer has not paid the applicable Fees due as described in Section 15. Texting.biz also may be required to suspend the Services generally as a result of changes in telecommunications provider requirements, some of which may occur without notice to Texting.biz. Texting.biz shall not be liable to you or any third party for any suspension associated with changes in telecommunications provider requirements.

14.3       Termination by Customer. Customer may cancel or terminate Customer’s subscription by providing Texting.biz with at least thirty (30) days’ prior written notice, with termination to take effect at the end of the Subscription Term in which the notice period concludes. To be effective, a cancellation notice must be sent to Accounting@texting.biz

14.4       Notice of Suspension or Termination. If Texting.biz suspends access to the Services, Texting.biz will make a reasonable attempt to notify Customer and, once the violation is remedied, restore access to the Services. If Texting.biz terminates Customer’s access to the Services, Texting.biz will send a notice using the contact information provided by Customer. Texting.biz shall not be liable to Customer (including, for clarification, any Authorized User or End User) or any third party for any suspension or termination that complies with these Terms.

14.5       Effect of Termination. Upon expiration of any earlier termination of the Subscription Term, your right to use the Services automatically terminates and all Customer Data associated with your account may be deleted. Texting.biz will not have any liability whatsoever to you for any suspension or termination, including for deletion of Customer Data. Texting.biz may retain Customer’s Confidential Information (including Customer Data) in standard archival or computer back-up systems, or for litigation and regulatory purposes or to the extent required by law. All retained information is treated as Confidential Information for as long as Texting.biz retains it.

You are solely responsible for ensuring you export any Customer Data prior to any termination of your access to the Services. Upon a Customer’s request, and provided such Customer is not in breach of any of its obligations under these Terms, including Customer’s payment obligation, Texting.biz may, in its sole discretion, export Messages in a format determined by Texting.biz to Customer. Customer will be responsible for any costs associated with such export.

If your ability to access the Services is discontinued by Texting.biz due to your violation of these Terms or the Acceptable Use Policy, then you agree that you will not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated.

The terms of this Section 14 and the terms of the following Sections will survive: Section 12 (for as long as Texting.biz holds your personal information) and Sections 9, 13, 14, 17, 18, 19 and 23.

  1. Fees and Payment Terms.

15.1.    Fees. Customer agrees to pay Fees when due and using the payment method set forth in the Texting.Biz Subscription Portal. Fees may include an activation fee and/or recurring minimum payments, per message charges and/or charges for each text-enabled telephone number as set forth in the Order Form. Except as set forth in these Terms or a customer subscription, all Fees are non-refundable. Unless expressly agreed otherwise in writing with Texting.biz, Texting.biz reserves the right to increase Fees applicable to any Renewal Term upon at least forty-five (45) days’ prior written notice to Customer.

15.2     Credit Card Payment. If Customer elects to pay via credit card, then Customer agrees that Texting.biz will charge Customer’s credit card as set forth in the Subscription Portal. If the credit card provided is declined for any reason, then Texting.biz reserves the right to suspend the Services. By providing Texting.biz with your credit card number account and associated payment information, you agree that Texting.biz is authorized to immediately charge your account for all Fees due and payable to Texting.biz hereunder and that no additional notice or consent is required. You agree to immediately notify Texting.biz in writing of any change in your billing address or the credit card or billing information, used for payment hereunder. If you elect to pay via credit card, then you are responsible for either (a) enabling auto-recharge on your account or (b) ensuring that your account has a sufficient positive balance to cover all Fees due. If, for any reason, you have a negative balance on your account, then we reserve the right to suspend the Services.

15.3     Invoicing. All invoices will be sent via our Subscription portal no more than 5 days prior to your subscription payment date.  On the Subscription Payment Date funds will be change to the payment method customer has imputed in the Subscription Portal.  If Customer is overdue on any payment of Fees and fails to pay within thirty (30) days of Texting.biz’s of the due date, then Texting.biz may assess and Customer must pay a late charge of 1.5% per month or the maximum amount allowable by applicable law, whichever is less. Following the notice of non-payment, Texting.biz also may suspend the Services until Customer pays the unpaid Fees plus late fees. Texting.biz will have no liability for any damage, liability, loss (including any loss of data or profits) or any other consequence that Customer may incur if Texting.biz suspends Customer’s access to the Services pursuant to this Section 15.3.

15.4     Fee Disputes. If Customer has a good-faith dispute about any of the Fees, Texting.biz and Customer agree to cooperate diligently to resolve the dispute. Customer must notify Texting.biz at billing@Texting.biz in writing within sixty (60) days of the date on which Customer is charged.

15.5     Cancellation/Reduction in Services. Customer is entering into a contract with Texting.biz for Services for the Subscription Term designated in the Subscription Portal.  Unless otherwise agreed in writing, Texting.biz will access the fees for the entire Subscription Term in advance, then applies those fees the fees paid monthly against the Subscription. Cancellation of the base texting subscription anytime during the subscription period will result in the customer being charged the remainder of their base texting Subscription.  Customer does have the right at anytime during the subscription period to add or delete additional or “Named Users”.  Any named users that is added during a monthly billing period will be prorated to the customers monthly billing cycle.  However any users that are deleted will NOT result in any refund for that monthly billing period but will be removed from any further billing period.  If you cancel your subscription, your ability to use the Services will terminate at the end of the then-current Subscription Term unless expressly otherwise agreed with Texting.biz and Customer is not eligible for a prorated refund of any portion of the Fees paid for the then-current Subscription Term.

  1. Taxes

16.1     Taxes. Texting.biz’s Fees are exclusive of any applicable Sales Tax, VAT taxes, use taxes, utility user’s fees, excise taxes, any other business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes and carrier surcharges imposed on or with respect to our Services, whether these taxes are imposed directly on you or on Texting.biz (collectively, the “Taxes”). If any Services, or payments for any Services, under the Terms are subject to Taxes, or in any country/jurisdiction and you have not remitted the applicable Taxes to Texting.biz, you will be responsible for the payment of such Taxes and any related penalties or interest to the relevant tax authority, and you will indemnify Texting.biz for any liability or expense we may incur in connection with such Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable Taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Texting.biz is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. For purposes of this section, Taxes do not include any taxes that are imposed on or measured by the net income, property tax or payroll taxes of Texting.biz.

  1. Warranties; Disclaimers; Release.

17.1     Customer Warranties. Customer represents and warrants to Texting.biz that (i) Customer has all necessary rights and consents to use Customer Data and grants Texting.biz the right to use Customer Data as required or permitted in these Terms; and (ii) Customer will comply with these Terms and all applicable laws related to Customer’s use of the Services, including without limitation obtaining all necessary consent and honoring all opt-out requests from End Users with respect to sending and receiving Messages

YOU REPRESENT AND WARRANT THAT (I) YOU HAVE OR HAVE PROCURED ALL POWER AND AUTHORITY NECESSARY TO USE THE SERVICES AND THE DEVICES AND TELEPHONE NUMBERS THAT YOU REGISTER OR ASSOCIATE WITH YOUR ACCOUNT AND NO CONSENT OF ANY THIRD PARTY IS REQUIRED, (II) YOU WILL NOT USE THE SERVICES ON A TELEPHONE NUMBER THAT WAS EXCHANGED, RENTED OR PURCHASED FROM A THIRD PARTY UNLES YOU HAVE PERMISSION OF THE TELEPHONE NUMBER’S OWNER, (III) THE TELEPHONE NUMBER IS NOT A WIRELESS MOBILE TELEPHONE NUMBER, AND (IV) YOU AGREE TO EXECUTE ANY ADDITIONAL DOCUMENTS NECESSARY TO ENSURE YOUR AUTHORITY TO USE AND TEXT ENABLE THOSE TELEPHONE NUMBERS.

17.2     Texting.biz Warranties. Texting.biz represents and warrants to Customer that the Services will perform materially in accordance with the applicable Documentation. Customer’s sole and exclusive remedy if Texting.biz breaches the foregoing warranty is, at Texting.biz’s option, to re-perform the affected Services or refund to Customer the Fees actually paid for the affected Services.

17.3     Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES (INCLUDING BETA OFFERINGS AND FREE TRIALS) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TEXTING.BIZ DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, AVAILABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.

TEXTING.BIZ MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; OR (5) TEXTING.BIZ WILL CONTINUE TO OFFER THE SERVICES IN WHOLE OR IN PART.

CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT TEXTING.BIZ IS NOT LIABLE AND CUSTOMER EXPRESSLY AGREES NOT TO SEEK TO HOLD TEXTING.BIZ LIABLE FOR (i) THE CONDUCT OF OPERATORS OF TELECOMMUNICATIONS NETWORKS AND MOBILE CARRIERS, AND THAT THE RISK OF INJURY FROM THESE THIRD PARTIES RESTS ENTIRELY WITH CUSTOMER AND (II) MALICIOUS CODE OR INAPPROPRIATE CONTENT SUBMITTED TO OR THROUGH THE SERVICES BY AN UNAUTHORIZED THIRD PARTY.

17.4      Release. Customer and each Authorized User hereby release Texting.biz and its affiliates and each of their respective officers, directors, investors, shareholders, employees, agents and permitted successors and assigns from claims, demands, losses, damages, rights and actions of any kind (including personal injury, death and property damage) (each, a “Claim”) that directly or indirectly relates to or arises from use of the Services, including any interactions with or conduct of other Authorized Users, End Users or third-party websites of any kind arising in connection with or as a result of these Terms or use of the Services.

If you are a California resident, you hereby expressly waive any rights you may have under California Civil Code Section 1542, which states “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

  1.  

Customer will defend, indemnify and hold Texting.biz and its officers, directors, employees and agents harmless from and against any actual or threatened claim, third-party discovery demand, governmental investigation or enforcement action (each, a “Indemnified Claim”) arising out of or relating to breach of Customer’s warranties in Section 17.1 or the Acceptable Use Policy. Texting.biz will cooperate as fully as reasonably required in the defense of any Indemnified Claim, at Customer’s expense. Texting.biz reserves the right, at Customer’s expense, to retain separate counsel in connection with an Indemnified Claim or, if Customer has not responded reasonably to the Indemnified Claim, to assume the exclusive defense and control of the Indemnified Claim in which Customer is a named party and that is otherwise subject to indemnification under this Section 18. Customer will pay all costs, expenses, reasonable attorneys’ fees, government fines and penalties, settlement amounts and other damages incurred by Texting.biz in connection with an Indemnified Claim. Customer also is liable to Texting.biz for all costs and reasonable attorneys’ fees Texting.biz incurs to establish or enforce Texting.biz’s right to indemnification under this Section 18. Customer agrees that this Section 18 survives termination of any account associated with Customer and the expiration or any earlier termination of these Terms.

  1. Exclusion of Damages; Limitations of Liability.

EXCEPT FOR LIABILITY ARISING FROM VIOLATIONS OF SECTIONS 7, 8 OR 17.1, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT AS DESCRIBED IN THIS SECTION 19, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL TEXTING.BIZ BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM OR $500, WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TEXTING.BIZ AND YOU. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

  1. Export Controls.

The Services may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. You will not directly or indirectly, export, re-export or release the Services to, or make the Services accessible from, any country, jurisdiction or third party to which export, re-export or release is prohibited by applicable law. You will comply with all applicable laws and complete all requirements (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing or otherwise making the Services available outside the US.

You may not transfer any aspect of our Services without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of the Services if you are placed on any such list or under the control of or an agent for any entity placed on such a list. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that designated by the U.S. Government as a “terrorist supporting” country.

  1. US Government Rights.

The Documentation is and the Services are a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other customers and users under license, in accordance with (i) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

  1. International Users.

The Services are currently made available to customers in the U.S. and Canada from Texting.biz’s facilities in the U.S. Texting.biz makes no representations that the Services are appropriate or available for use outside of the U.S. and Canada. All parties that access or use Services from other jurisdictions or with recipients of other countries do so at their own volition and are responsible for compliance with local law.

  1. Agreement to Arbitrate.

23.1     If a dispute arises out of or relates to these Terms, the breach thereof, or the parties’ relationship, and if the parties cannot settle the dispute through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures before resorting to arbitration. The parties agree to mediation under the AAA Commercial Mediation Procedures. If settlement is not reached within 60 days after service of a written demand for mediation, Customer agrees that any unresolved controversy or claim arising out of or relating to these Terms, the breach thereof, or the parties’ relationship, shall be settled by binding arbitration administered by the AAA under its Commercial Arbitration Procedures pursuant to the terms of this Section 23 (“Agreement to Arbitrate”).

23.2      Exceptions. Customer and Texting.biz each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

23.3      Rules. The arbitration will be conducted before a single arbitrator, unless the claim amount exceeds US $2,500,000 in which case the dispute shall be heard by a panel of three arbitrators. Unless you and Texting.biz otherwise agree, the arbitration will be conducted in English in Seattle, Washington, United States of America, the AAA under its Commercial Arbitration Procedures. The parties may agree to conduct proceedings, when practical, by telephone or other electronic means. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings.

If the disclosed claim does not exceed $250,000, then the arbitration will be conducted pursuant to the AAA Expedited Procedures, unless otherwise agreed by the parties. If the disclosed claim does not exceed $100,000, and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted through a telephonic hearing, or by an in-person hearing, or solely on the basis of documents that Customer and Texting.biz submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the claim exceeds $100,000, then the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of Customer and Texting.biz.

Except as may be required by law, neither a party nor its representatives may disclose the existence, content or results of any arbitration hereunder without the prior written consent of both parties. Notwithstanding any language to the contrary in these Terms, the parties hereby agree that a Final Award issued may be appealed pursuant to the AAA Optional Appellate Arbitration Rules (“Appellate Rules“).

During the arbitration, the amount of any settlement offer made by Customer or Texting.biz may not be disclosed to the arbitrator until after the arbitrator makes a final decision and award (if any). Judgment on an arbitration award may be entered by any court having jurisdiction, in any country which has ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

23.4     WAIVER OF CLASS OR CONSOLIDATED ACTIONS. Customer and Texting.biz agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Also, to the fullest extent legally permissible, the arbitrator cannot consolidate claims into a class proceeding or join any other proceedings or parties. If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.

23.5     Future changes to Agreement to Arbitrate. If Texting.biz makes any changes to this Agreement to Arbitrate, Customer may reject any of those changes by notifying Texting.biz via the process set forth in Section 25.6 within 30 days of the change. By rejecting a change, Customer is agreeing to arbitrate any dispute in accordance with the language of the last Agreement to Arbitrate that Customer accepted.

23.6     Governing Law. This Agreement to Arbitrate is governed by the Federal Arbitration Act (“FAA”) and (only to the extent not inconsistent with the substantive and procedural provisions of the FAA), the laws of the State of Washington, without regard to conflicts of laws principles. If any provision of this Agreement to Arbitrate is found unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, that provision will be severed and the balance of this Agreement to Arbitrate will remain in full force and effect.

If for some reason the entirety of this Agreement to Arbitrate is found to be unenforceable, then Customer and Texting.biz agree to resolve disputes arising from or related to these Terms or use of the Services in the state or federal courts in King County, Washington. Customer and Texting.biz agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

  1. Claims of Copyright Infringement

Texting.biz responds to notices of alleged infringement that meet the requirements of the U.S. Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), including by removing or disabling access to infringing material.

24.1     Notification to Texting.biz. If you have a good faith belief that your work was copied or used by a third party in a way that constitutes copyright infringement in or through Texting.biz’s Services, please send your claim or notice of infringement to Texting.biz’s at legal@texting.biz

  1.  

25.1     Governing Law. Except as set forth in Section 23.6, all matters related to the Services are governed by the internal laws of the State of Michigan, United States, as such laws apply to agreements made and performed therein (without giving effect to the principles of conflicts of laws).

25.2     No Waiver. Texting.biz’s failure to enforce at any time any provision of these Terms or our Acceptable Use Policy does not waive Texting.biz’s right to do so later. Any waiver must be in writing and signed by Customer and Texting.biz to be legally binding.

25.3     Assignment. Customer will not assign or otherwise transfer these Terms, in whole or in part, without Texting.biz’s prior written consent. Any attempt to assign, delegate or transfer in violation of this subsection will be null and void. Subject to this Section 3, these Terms and any Order Form will be binding on both Customer and Texting.biz and their successors and assigns.

25.4     Relationship. Customer and Texting.biz are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Customer and Texting.biz are and will be solely responsible for their respective employees and agents and respective labor costs and expenses arising in connection with those employees and agents.

25.5      Severability. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.

25.6      Notices. Texting.biz requires that Customer maintain as current the email address associated with your account. If your email address is not valid for any reason, Texting.biz’s dispatch of an email to the email address associated with Customer’s account with confirmed delivery containing a legal notice will constitute effective notice.

Except as otherwise provided in these Terms, (i) Customer will give any notice required under these Terms (i) to Texting.biz at the following address: Texting.biz, LLC. PO Box 254, Spring Arbor, MI 49283 (delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address) and by sending an email (with confirmed delivery) to legal@Texting.biz. with the “Legal Notice” in the subject line; and (ii) Texting.biz will give any notice required under these Terms to Customer, at the address in the Order Form (delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address) and by sending an email (with confirmed delivery) to the email address(es) associated with Customer’s account. Any mailed notice shall be deemed given when received.

25.7     Entire Agreement. Except as provided in these Terms (including documents incorporated herein by reference), these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written with respect to the subject matter hereof. No oral or written information or advice given by Texting.biz, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms.

25.8     Electronic Communications. The communications between Customer and Texting.biz may use electronic means. Except as prohibited by applicable law, Customer (a) consents to receive communications from Texting.biz in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Texting.biz electronically provides to Customer satisfy any legal requirement that such communications would satisfy if it were to be in writing.

25.9     Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.

QUESTIONS OR SUPPORT

If you have any questions on this agreement please feel free to contact Texting.Biz by phone or email legal@texting.biz.

 

ACCEPTABLE USE

PROHIBITED USES AND ACTIVITIES

  1. No Infringing, Illegal, Threatening, Defamatory, and Offensive Uses. You may not use the Services to violate any Applicable Law. “Applicable Law” includes all applicable laws, rules and regulations applicable to you, your business or the subject matter of the Terms including without limitation, laws governing the use of individual information, deceptive and misleading advertising, electronic commercial communications, telemarketing and other similar laws, which include without limitation the U.S. Telephone Consumer Protection Act of 1991, U.S. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and the Canada Anti-SPAM Legislation, if applicable, and each as amended. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
    • Theft or infringement of copyrights, trademarks, trade secrets, or other types of intellectual property.
    • Fraud; forgery; or theft or misappropriation of funds, credit cards, or personal information.
    • Impersonation of any person or entity, including, but not limited to, Texting.Biz personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity.
    • Harm minors in any way.
    • Making available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any Applicable Law or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities.
    • Making available any Content 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 non-disclosure agreements).
    • Stalking or otherwise harassing any person or entity.
    • Export, re-export, or transfer of restricted software, algorithms or other data in violation of applicable export control laws.
    • Intentionally or unintentionally violate any applicable local, state, provincial, national or international law, treaty, or regulation, or any order of a court.
    • Deceptive practices such as posing as another service for the purposes of phishing or pharming.
    • Distributing any materials of a threatening or harmful nature, including without limitation threats of death or physical harm, or materials that are malicious, harassing, libelous, defamatory, or which facilitate extortion or harmful action.
    • Distributing any offensive materials, including without limitation obscene, pornographic, indecent or hateful materials and materials which promote gambling or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
    • Sending unwanted telemarketing, promotional or informational messages without having procured the necessary consents, right and license from the recipient(s) of your messages.
    • Sending messages in violation of the U.S. National Do Not Call Registry or related considerations under Applicable Law.
    • Send Protected Health Information unless allowed under Applicable Law.
    • Registering for more Accounts or associated Admin Logins or User Logins than for which fees have been paid or register for an Account on behalf of an individual other than yourself.
    • Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

 

  1. Security and Interference. You may not use the Services to violate, attempt to violate, or knowingly facilitate the violation of the security or integrity of any network, electronic service, or other system that is accessible through, or in connection with, the Services. You shall not use the Services in a manner that interferes with any other party’s ability to use and enjoy the Services, that interferes with Texting.Biz’s or its service partners’ ability to provide the Services, or that otherwise may create legal liability for Texting.Biz or its service partners in Texting.Biz’s sole discretion. You shall not use the Services to violate the acceptable use policy or terms of service of any other service provider, including, without limitation, any Internet service provider. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
    • Hacking, cracking into, or otherwise using the non-public areas of the Services or any other system without authorization.
    • Unauthorized probes or port scans for vulnerabilities.
    • Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any system.
    • Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled.
    • Unauthorized network monitoring or packet capture.
    • Forged or non-standard protocol headers, such as altering source addresses.
    •  
    • Denial of Service (DoS) attacks of any kind.
    • Distributing unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
    • Operating network services such as: open proxies; open mail relays; or open, recursive domain name servers.
    • Sharing or publishing content from the Services to cause, or have the consequence of causing, the user of the content to be in violation of the Terms and this Policy.
    • Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

 

  1. Spam. You shall not use the Services for purposes of distributing text messaging “spam,” bulk unsolicited messages, or any other form of unsolicited electronic communications distributed on a bulk basis to recipients with which you have no preexisting business or personal relationship. You shall not use the Services to collect responses from spam. You shall not harvest, collect, gather or assemble information or data of users, including e-mail addresses, without their consent. You are solely responsible for obtaining all necessary and appropriate rights, licenses and consents from those person(s) and entity(ies) with whom you message or otherwise communicate with via the Services, prior to commencing any such messaging or communication. Additionally, you shall not use the Services to send unwanted messages to individuals who have asked to stop receiving messages through any medium. To the extent required by Applicable Law, you must track and record all such requests specific to your business. You must also provide recipients of those MMS/SMS messages you send via the Services with conspicuous notice of their ability to opt-out from receiving any future text messages, by texting STOP in a stand-alone message with no additional characters or punctuation. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
    • Sending pyramid schemes.
    • Sending chain letters.
    • Sending any mail in contravention of Applicable Law.
    • Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.
    • Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

Texting.Biz’s platform responds programmatically to the keyword STOP, and it works with a market leading digital security firm to monitor for and prevent spam.

 

CHANGES TO THIS POLICY. This Policy is subject to occasional revision at the sole discretion of Texting.Biz. We will take reasonable steps to notify you of any material changes or modifications to this Policy by way of prominent notice on our website or by email, but you agree to review the website periodically to be aware of any changes or modifications. If you do not agree to the changes in this Policy, you must discontinue use of the Services. Your continued use of the Services shall be deemed your conclusive acceptance of any such revisions.

QUESTIONS OR SUPPORT

We understand that there are quite a few rules to read and absorb. If you have any questions, please feel free to reach out to us at support@Texting.Biz.