smsNXT Terms and Service
Effective November 21, 2024
PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF OUR "PLATFORM" AS DEFINED BELOW.
THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US OR OUR AGENTS AND REPRESENTATIVES (INCLUDING ANY THIRD PARTY BENEFICIARY OF THESE TERMS) ON AN INDIVIDUAL BASIS ONLY, AND BY USING THE PLATFORM AND ENTERING INTO THESE TERMS, YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN ANY COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT (INCLUDING AS A CLASS REPRESENTATIVE OR MEMBER OF ANY PUTATIVE CLASS).
YOUR SUBSCRIPTION IS SUBJECT TO "AUTO-RENEWAL" AND CERTAIN LIMITATIONS OF LIABILITY AND INDEMNITY OBLIGATIONS, AS MORE SPECIFICALLY PROVIDED BELOW.
Introduction
These Terms of Service (the "Terms") govern the individual, company and/or organizational (collectively, "you," "your" or "Customer") purchase and use of any of our services, including your use of the various text, SMS (also known as "Short Message Service"), and MMS (also known as "Multimedia Messaging Service") messaging services (collectively, the "Services") and other features available through our website (https://www.smsnxt.com) (including both mobile and online versions) and our mobile app (collectively, the "Site"), any SMS/MMS "long codes" or "short codes" that may be provided or made available to you in conjunction with your use of the Services or the Site (collectively, "SMS/MMS Codes"), and the software, technical and communications platform(s) available on and through the Site (collectively, the "Platform"). The Platform and Services are made available by blubyt Tech Inc. ("Provider," "we," "our" or "us").
If you want to use the Platform or our Services or access the Site, then carefully read these entire Terms (including all links to details), as they constitute a binding written legal agreement between you and us and they affect your legal rights and obligations. The business realities associated with operating the Platform and providing the Services are such that, without the conditions that are set forth in these Terms—such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and arbitration of certain disputes—we would not make the Platform or the Services available to you.
In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Platform or to the Services offered via the Platform or otherwise (in each such instance, and collectively "Additional Terms"). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. By using and/or continuing to use or access the Platform or the Site, including all Services offered therein or thereby, you are agreeing to be legally bound by these Terms and any applicable Additional Terms. Your continued use the Platform or Site or our Services is an affirmation of your consent to these Terms.
Description of Platform and Service. smsNXT provides a web-based application ("smsNXT") for managing mobile marketing campaigns including mobile messaging capabilities (the "Service"). Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to this Agreement. You understand and agree that the Service is provided to you on an "AS-IS" basis and that SimpleTexting assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access and subsequent usage may involve third party fees (such as Internet access to use the Service).
YOUR REGISTRATION OBLIGATIONS. In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or SimpleTexting has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SmsNXT has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). Children under the age of 13 may not sign up for an SmsNXT account or use any SmsNXT services.x
PAYMENT AND FEES.
A. Payment by Credit Card / Paypal. You hereby authorize SmsNXT to charge your credit card as set forth in the Payment Method section of the Registration Form to a monthly Services fee, and overage fees to SmsNXT at the rates set forth on https://www.smsnxt.com/pricing or agreed upon rate.
B. Pass Through Charges. If at any time after execution of this Agreement, a Network Operator or other Third-Party changes the Third-Party Charges on Provisioned Phone Numbers then SmsNXT, at its discretion, may pass through such fees ("Pass Through Charges") to you at cost.
SMSNXT PRIVACY POLICY.
MEMBER ACCOUNT, PASSWORD AND SECURITY. You (the "MEMBER") will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account designation and are fully responsible for all activities that occur under your password or account designation. You agree to (a) immediately notify SmsNXT of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. SmsNXT cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
MEMBER CONDUCT, REPRESENTATIONS AND WARRANTIES
A. You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not SmsNXT, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. SmsNXT does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will SmsNXT be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
SmsNXT is solely a facilitator of the message traffic and has no visibility into or control over individual Messages as they are transmitted through SmsNXT and has no responsibility or liability with respect to the content of any individual Message. Except that SmsNXT may use programmatic means to filter (pre-screen) your messages and block your campaigns or account due to message keywords that SmsNXT has determined, in its sole discretion, may violate an applicable rule, regulation, or law.
B. You agree to not use the Service to:
- upload, post, text message, email, transmit or otherwise make available any illegal contests or gambling, unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- upload, post, text message, email, transmit or otherwise make available any adult Content or Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, or that you do not have a right to make available under any law or under contractual or fiduciary relationships;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- upload, post, text message, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any mobile telephone, mobile device, computer software or hardware or telecommunications equipment;
- "stalk" or otherwise harass another; and/or
- Using any equipment or software that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, in conjunction with your use of the Services;
- Using any equipment or software that has the capacity to initiate messages without human intervention, in conjunction with your use of the Services;
- Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility-related telephone numbers;
- Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;
- Harvesting, or otherwise collecting information about others, without their consent;
- Misleading others as to the identity of the sender of your messages, by creating a false identity, impersonating the identity of someone/something else or by providing contact details that do not belong to you;
- Transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;
- Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity;
- Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs;
- Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;
- Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
- Abusing the fair use policy with regard to unlimited keywords—that is, registering many keywords without using them for weeks or months, as is determined to be abuse in the sole discretion of SmsNXT;
- Interfering with another's use and enjoyment of the Services or SmsNXT Sites; or
- Engaging in any other activity that SmsNXT believes could subject it to criminal liability or civil penalty/judgment.
C. You acknowledge that SmsNXT may or may not pre-screen Content, but that SmsNXT and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, SmsNXT and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
D. You acknowledge, consent and agree that SmsNXT may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any subpoena or other legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of SmsNXT, its users and the public.
E. You understand and agree that all messages you send via the SmsNXT service will be sent, and certify that any subscriber list you decide to import into SmsNXT was collected, in compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing SMS messages, advertising, and telemarketing, including, without limitation, Section 5 of the FTC Act (15 U.S.C. § 45), the CAN-SPAM Act (15 U.S.C. §§ 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227), the Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.) and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations, and, as applicable for SMS to Canadian numbers, the CRTC's Unsolicited Telecommunications Rules, including the CRTC Telemarketing Rules, National DNCL Rules, and Automatic Dialing and Announcing Device Rules, Telecom Decision CRTC 2007-48, as amended.; and all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices (collectively, "Applicable Message Requirements"). SmsNXT provides the software and carrier-connectivity through which you send your messages; you are solely and exclusively responsible for complying with Applicable Message Requirements (and for defending and indemnifying SmsNXT from any claims in which it is alleged that you failed to do so). If for any reason SmsNXT suspects that your use of its Services in any way is contrary to any Applicable Message Requirements, it reserves the right to request a written explanation from you, the client, including the method of collecting the subscriber's phone numbers and a guarantee signed by you that all the people on your subscriber list provided you prior express written consent to receive text messages from you of the type that you had sent. You agree to provide all such information and documents reasonably requested by SmsNXT. SmsNXT reserves the right to take any action it thinks appropriate in the case of non-compliance, including but not limited to suspension and/or cancellation of the account, without any liability to you therefor.
F. You represent and warrant that you are aware that, among other requirements, the TCPA requires prior express written consent from a consumer before you can send them marketing text messages using an autodialer, with no purchase required as a condition of their consent, and such consent must be clear and conspicuous. Furthermore, damages for each message sent in violation of the TCPA is $500 and can be $1500 if the violation is proven to be "willful and knowing."
G. Through the Platform and Services, we provide notification and messaging services that allow paid subscribers to contact and send information to their user database through mobile text messaging services and other mobile communication systems. We have made efforts to make the Platform and Services are Systems and Organization Controls 2 ("SOC 2") and Health Insurance Portability and Accountability Act ("HIPAA") compliant but you are ultimately responsible for ensuring compliance with all laws, rules and regulations applicable to you and you organization. After purchasing a subscription to the Platform, you can communicate with your customers utilizing the dashboard. As part of the Services and Platform, we provide businesses and organizations with a variety of tools to input names, mobile phone numbers, email addresses, and other information that have been collected by Customer on an opt-in basis and to help you import such customer data (collectively, "Customer Data"). However, contact information should be imported only if your users have given you consent to receive a specified type of messaging from you (as required by applicable law or your privacy policy). Further, Provider does not initiate, send or generate any messages for you or on your behalf; rather, the messages are initiated by you using our Platform at your sole discretion, subject to these Terms. For example, Provider does not draft the content of your messages, control when the messages are sent or to whom, or provide or generate any phone numbers to be messaged through the Platform or Site. All of these functions must be manually performed by you and are not automated. We cannot and will not send any messages randomly or send recurring messages, and cannot generate random or sequential phone numbers for you. We will not provide you with any legal advice on how to comply with applicable law using the Platform, and nothing on the Site or the Platform should be taken as providing such advice. You will be solely responsible for complying with applicable law under these Terms.
You agree that you will include clear opt-out/unsubscribe information on your messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages, and that you will promptly process all such do-not-text or do-not-call requests and maintain those numbers on your internal do-not-call/text list.
H. You shall schedule your messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, pictures or videos for inclusion in any outbound messages. If you are unfamiliar or unclear on the legalities of any message that you intend to initiate through the Services, you must consult with your attorney prior to your use of the SmsNXT Sites or Services.
I. You represent and warrant that you have all power and authority and have procured all rights and licenses necessary to use and text enable those Phone Numbers utilized for SmsNXT services. In the case of shared use Phone Numbers, you expressly represent that you are the Phone Number Owner.
J. Provider maintains a no-tolerance policy toward spam. Although Provider does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Site and Services. All mobile marketing messages must conform to the latest available best-practice guidelines drafted and published by the MMA (currently available at http://www.mmaglobal.com/policies/consumer-best-practices) and the CTIA (currently available at https://api.ctia.org/wp-content/uploads/2019/07/190719-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf), which you agree to review and abide by before using the Platform. For example, and without limitation, these guidelines may recommend "STOP" instructions using SMS/MMS Codes (see Provision and Use of SMS/MMS Codes for more information) in order to allow recipients to "opt-out" of receiving future messages. In this regard, the Platform provides mandatory STOP instructions on your first welcome message and pre-populates STOP instructions for subsequent messages. However, you are solely responsible for any claims or incidents that may result from your removal of these STOP instructions. If a user replies to a text message you send through the Platform with messages other than STOP instructions, they will appear in your inbox. You are solely responsible for monitoring messages received in your inbox. You agree that any individuals requesting "Do-Not-Call" ("DNC") status shall immediately be placed on your company DNC list and, except as otherwise noted above, Provider shall have no other responsibility for notifying you of such opt-outs. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or STOP request.
You hereby acknowledge and confirm that you are solely responsible for the content of your messaging. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages. You hereby acknowledge that Provider merely provides a platform for facilitating the sending of your text messages, and that you shall have sole responsibility and liability for your messages and communications. You also agree to defend, indemnify and hold harmless Provider from and against any claims or damages which may result from your use of the Platform and Services, including, but not limited to, claims, damages, or lawsuits threatened or filed by third parties as well as inquiries and investigations by local, state and federal regulators (see Indemnity provision for a complete list of your indemnities to Provider). We reserve the right to hold, suspend or terminate your account or access to the Platform and/or Services as well as your use of the Site or SMS/MMS Codes for any alleged violation.
K. The Platform may NOT be used for sending any unsolicited messages except with our prior written approval and may NOT be used for sending any messages that violate applicable law or these Terms. You agree to our Privacy Policy and anti-spam policies described in these Terms and agree to enforce the indicated permission-based marketing practices with anyone using your account as required by law. You agree to assume full responsibility and accept the legal consequences of any action by anyone using your account and will indemnify us in relation to the same, according to these Terms. We reserve the right to suspend or terminate your account at any time, at our sole discretion, and without prior warning or refund if your account activity is reasonably believed to violate any term in these Terms or applicable law. Violation of applicable anti-spam laws and regulations, regardless of whether specifically described below, may also result in third-party legal actions against you. Provider also reserves the right to terminate your access to the Platform and Services at any time and immediately if we believe that your conduct is harmful to the interests of Provider or the "Provider Parties" as defined below. We reserve the sole discretion and right to permanently delete any Customer Data stored in your account immediately after your account termination and any of your assigned SMS/MMS Codes may be reassigned by us to other users.
L. Terms Applicable to the Purchase of Subscriptions to the Platform and Services.
A. Generally. To purchase access and use of the Platform and gain access to our Services, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence and authorized to bind the specific entity on whose behalf you are accessing and using the Platform or obtaining Services (if applicable). Prior to the purchase of access to the Platform or our provision of the Services, unless we make alternative payment arrangement with you, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For the specific subscription to the Platform/Services which you order, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. Provider or our third party credit card/payment processor will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please be aware that the current text/SMS standard permits only 160 characters in an individual message (e.g., standard text and hyperlinks). The submission of a seemingly-valid text/SMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid text/SMS message or broadcast exceeding 160 characters will yield distinct, individually debited messages, each of 160 characters or less, together comprising the original message. Please be aware that the current MMS standard permits only 1600 characters in an individual message or certain types and limited sizes of multimedia messages (e.g., JPEG, PNG, TIFF, GIF files). The submission of a seemingly-valid MMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid MMS message or broadcast exceeding 1600 characters will yield distinct, individually debited messages, each of 1600 characters or less, together comprising the original message. You can obtain the status of your account at any time through the online interface. Delivery and deliverability rates, which are the responsibility of third party carriers and not Provider, for any text/SMS/MMS messages sent using the Platform and Site may vary.
DOWNTIME & REFUND POLICY
A. For purposes of this Agreement, a Unit of Downtime is one period of at least 1 day during which access to www.smsnxt.com is unavailable because of problems with hardware or system software. Downtime does not include:
- problems caused by factors outside of our reasonable control
- problems resulting from any actions or inactions by you or any third party
- problems resulting from your equipment and/or third party equipment not within our sole control, or
- network unavailability during scheduled maintenance of our network and/or web servers.
B. In any calendar month, we guarantee that Downtime will not exceed 1 Unit of Downtime excluding, however, regularly scheduled maintenance. Any regularly scheduled maintenance will be performed during the hours of 6pm and 8am. We work to ensure the functioning of all web servers through continuous monitoring by our staff.
C. If Downtime exceeds 1 Unit of Downtime in any calendar month, we will, upon your written request, credit your account (a "Downtime Credit") in an amount equal to the pro-rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.
D. To receive Downtime Credit, you must request such credit by sending an email to support@smsnxt.com within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven (7). Downtime Credits will be applied upon issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the dollar value of the Downtime Credit will be mailed to you within thirty (30) days of the expiration of your service agreement.
E. If you are unhappy with any aspect of our service, please contact us and we will attempt to rectify the situation. Because we are providing a service, which starts when you create the account, we cannot provide a refund except when the service has not been acceptable. This is at our discretion only. No refunds will be made if we terminate your account due to violation of our Acceptable Use Policy or any other violation of our Terms and Conditions, except as may be provided therein. This does not affect your statutory rights. No bill credit will be given for a period of suspension.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE. SmsNXT does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant to SmsNXT the following worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service and elsewhere for the purpose for which such Content was submitted or made available and also for the purpose of providing and promoting the Service.
INDEMNITY. You agree to defend, indemnify and hold SmsNXT, and its affiliates, officers, agents, and employees harmless from any proceeding, suit, claim or demand, including reasonable attorneys' fees, made by any third party relating to, alleging or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your alleged violation of this Agreement, your alleged violation of any rights of another, or your alleged violation of any law ("Indemnifiable Claims"), and to indemnify SmsNXT from any damages, awards, attorneys' fees, and costs awarded against or incurred by SmsNXT in connection with any such Indemnifiable Claims. As a condition of the foregoing indemnification obligations, (a) SmsNXT will provide you prompt notice of any such Indemnifiable Claim, provided, however, that the failure to give such prompt notice shall not relieve you of your obligations hereunder except to the extent that you were actually and materially prejudiced by such failure; (b) you will have the sole and exclusive authority to defend or settle any such Claim (provided that you will obtain our consent in connection with any act or forbearance required by SmsNXT, which consent will not be unreasonably withheld); and (c) SmsNXT will reasonably cooperate with you in connection with your activities hereunder, at your expense. SmsNXT reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, you will not settle any Claims for which you have an obligation to indemnify pursuant to this Section admitting liability or fault on behalf SmsNXT, nor create any obligation on behalf of SmsNXT without its prior written consent.
GENERAL PRACTICES REGARDING USE AND STORAGE. You acknowledge that SmsNXT may establish general practices and limits concerning use of the Service but that SmsNXT has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service.
MODIFICATIONS TO SERVICE. SmsNXT reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that SmsNXT shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
TERMINATION. You agree that SmsNXT may, under certain circumstances and without prior notice, immediately terminate your SmsNXT account, any associated text message address and/or email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (g) your engagement in fraudulent, illegal or improper activities, (h) third party operator requirement, and/or (i) nonpayment of any fees owed by you in connection with the Services. You may terminate your access and use of the Service upon prior written notice to SmsNXT. In no event shall you be entitled to a refund of any fees paid to SmsNXT hereunder.
SMSNXT'S PROPRIETARY RIGHTS. Title, ownership rights and all intellectual property rights in and to the Services shall remain the sole and exclusive property of SmsNXT. SmsNXT retains all rights not expressly granted to you in this Agreement. You are prohibited from attempting, or knowingly permitting or encouraging others to attempt, to reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Services except and only to the extent permissible by applicable law despite such prohibition. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the Service (including your SmsNXT I.D., account, account designation, password and other SmsNXT information), use of the Service, or access to the Service.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
A. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SmsNXT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B. SmsNXT MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (VI) THAT THE INTERNET WILL BE AVAILABLE AND WILL PERFORM.
C. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SmsNXT OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY.
A. YOU EXPRESSLY UNDERSTAND AND AGREE THAT SmsNXT SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SmsNXT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
B. YOU EXPRESSLY UNDERSTAND AND AGREE THAT SmsNXT's service providers disclaim all liability with regard SmsNXT's customers, whether direct, indirect, incidental, consequential, punitive or otherwise, arising out of or related to the use of the services provided under this Agreement. You hereby release SmsNXT's service providers from and against all claims, liability and damages arising out of or related to your use of the services provided under this Agreement. Company Customer will be solely responsible for any third party claims, damages and liability arising out of, resulting from or caused by Company Customer's use of the Services provided under this Agreement including, without limitation, any claims, damages and liability arising out of, resulting from or caused by any Message or Content generated by Company Customer.
EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NOTICE. SmsNXT may provide you with notices, including those regarding changes to the Agreement, by either text message, e-mail, regular mail, or postings on the Service.
TRADEMARK INFORMATION. The trademarks, service marks, logos and product and service names of SmsNXT are trademarks of SmsNXT, LLC (the "SmsNXT Marks"). You agree not to display or use in any manner, the SmsNXT Marks without SmsNXT's express prior written consent.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT. SmsNXT respects the intellectual property of others, and we ask our users to do the same. SmsNXT may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to SmsNXT's Copyright Agent:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Notice of claims of copyright or other intellectual property infringement should be addressed to: SmsNXT, ATTN: SmsNXT Legal, 811 S Central Expwy Richardson TX. You may also email us: legal@smsNXT.com
GENERAL INFORMATION
Choice of Law and Forum. This Agreement and the relationship between you and SmsNXT shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and SmsNXT agree to submit to the personal and exclusive jurisdiction of the courts located within Kings County, New York.
Waiver and Severability of Terms. The failure of smsNXT to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
Non-Transferability. You agree that your SmsNXT account is non-transferable, and this Agreement may not be assigned by you without SmsNXT's prior written consent.
SMS/MMS MOBILE MESSAGING MARKETING PROGRAM
SMS NXT (the "Program", "we", "us") offers a mobile messaging program. By opting into the Program, you agree to these Mobile Messaging Terms and our Privacy Policy.
1. User Opt-In: The Program allows users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that these Terms apply to your participation in the Program. By participating in the Program, you agree to receive auto-dialed or mobile messages at the phone number associated with your opt-in. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
2. User Opt-Out: If you do not wish to continue participating in the Program, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out.
3. HELP: For support or assistance, reply HELP to any mobile message from us or email us at support@smsnxt.com.
4. Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control.
Entire Agreement. This Agreement constitutes the entire agreement between you and SmsNXT and governs your use of the Service, superseding any prior agreements between you and SmsNXT with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services from SmsNXT.
DEFINITIONS
"Network Operator" means any mobile network operator, wireless service provider, wireless carrier, cellular company, Third Party operator or user of a communications network to and from which SimpleTextng can directly transmit and receive Messages.
"Third Party" means any Person not a Party to this Agreement.
"Third Party Charges" means any fees or charges that any Third Party imposes on SmsNXT in connection with any Services, including without limitation Service and Transit Fees.
"Transit Fees" means any fees imposed by a Network Operator or Third Party for the delivery of any Message.
Contact information:
If you would like to contact us to understand more about this Policy or wish to contact us concerning any matter relating to individual rights and your Personal Information, you may send an email to support@smsNXT.com.