TEXTBYCHOICE grants to Client a non-transferable, non-exclusive license (the “License”) to use the TEXTBYCHOICE messaging service (the “Messaging Service”), during the term of this agreement, for the sole use and purpose of mobile marketing or mass communication with its members (students, employees etc.) or customers. Subject to the terms and conditions of this Agreement, during the term hereof TEXTBYCHOICE shall provide to Client the Messaging Products and Services (the “Products and Services”) outlined in this Agreement.
Client agrees to use TextByChoice services responsibly. Client will ensure that prior “opt-in” has been obtained when uploading lists of subscribers in accordance with FCC regulations. Only authorized representatives from our clients (name(s) mentioned on the agreement and/or provided to us ahead of time) are permitted to communicate with us when assistance is needed. Unlimited Texting plans are subject to reasonable use policy; if number of members/subscribers/units increases/decreases by 5% or more, client will inform TextByChoice and the monthly rate may be adjusted accordingly.
2. FEES AND PAYMENTS.
Client shall pay TEXTBYCHOICE fees and charges for the Products and Services to be provided hereunder in accordance with this Agreement. All Fees shall be due and payable as stated above. Overdue accounts and any other fees and expenses not paid to TEXTBYCHOICE in accordance with this Agreement will be charged a late fee at the maximum rate allowed by law commencing with the date payment was first due. TEXTBYCHOICE reserves the right to modify prices from time to time. Clients will be given a 30 day notice prior to any such changes.
3. PROPRIETARY RIGHTS.
TEXTBYCHOICE’s trademarks, trade-names, service marks, logos, other names and marks, and related Product and Service names, design marks, slogans, object code, source code, design features, visual expressions, screen formats, graphics, content, report and display formats, trademarks and copyrights, and the ideas, methods and concepts used (collectively, the “TEXTBYCHOICE Property”) are the sole and exclusive property of TEXTBYCHOICE. Client agrees not to display or use any of the TEXTBYCHOICE Property in any manner without TEXTBYCHOICE’s express prior written consent. Client acknowledges that TEXTBYCHOICE and/or its licensors have copyright, trade secret and other intellectual property rights in the TEXTBYCHOICE Property and the documentations relating hereto, and that all such copyright, trade secrets, subscriber information (names, telephone numbers, email addresses etc.), and other intellectual property rights remain the exclusive property of TEXTBYCHOICE at all times and cannot be used by any other entity unless written consent is given by TEXTBYCHOICE. Client agrees it will use TEXTBYCHOICE Products and Services only in its own business, and not directly or indirectly for the use or benefit of anyone other than Client, and only pursuant to the scope of the grant of the License set forth herein.
4. DISCLAIMER OF TEXTBYCHOICE WARRANTIES.
TEXTBYCHOICE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, REGARDING ANY TEXTBYCHOICE SOFTWARE, PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF TEXTBYCHOICE HAS BEEN INFORMED OF SUCH PURPOSE. TEXTBYCHOICE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND CLIENT’S USE OF THE TEXTBYCHOICE PRODUCTS AND SERVICES IS AT CLIENT’S SOLE RISK. NO AGENT OF TEXTBYCHOICE IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS ON TEXTBYCHOICE AS EXPRESSLY SET FORTH HEREIN. TEXTBYCHOICE MAKES NO WARRANTY THAT (i) THE TEXTBYCHOICE PRODUCTS AND SERVICES WILL MEET CLIENT’S REQUIREMENTS, (ii) THE TEXTBYCHOICE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. IN NO EVENT SHALL TEXTBYCHOICE’S AGGREGATE LIABILITY FOR ANY DAMAGES TO CLIENT AND ANY THIRD PARTIES EXCEED THE AMOUNT OF FEES PAID HEREUNDER BY CLIENT TO TEXTBYCHOICE DURING THE PRECEDING ONE (1) MONTH.
Client shall defend, indemnify and hold harmless TEXTBYCHOICE, its officers, directors, employees, shareholders, agents and representatives, from and against all claims, losses, causes of action, liability, damages, costs and expenses (including without limitation reasonable attorneys’ fees, costs and expenses) relating to, arising from, or in connection with Client’s breach of this Agreement or any law or third party right.
6. LEGAL REMEDIES.
The validity, construction and enforceability of this Agreement shall be governed in all respects by the law of Florida. If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees and costs. Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Florida. The arbitration will be held in Florida. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
7. RELATION PARTIES.
Nothing in this Agreement will create or imply an agency relationship between TEXTBYCHOICE and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
Client may terminate service and this Agreement at any time by notifying TextByChoice’s customer support a minimum of 14 days prior to their billing date. Lack of activity in client’s account does not automatically terminate the account, and client is still liable for service fees until they specifically cancel their account. Client understands and agrees that TextByChoice will make no refunds of any fees paid regardless of whether the service may or may not have been used or logged into. TextByChoice may terminate this Agreement or the service, disable or deactivate client accounts with or without cause, and with or without notice. No refunds are made in this event. TextByChoice shall have no liability to client or any third party because of such termination or action. TextByChoice may delete any archived data within 30 days after the date of termination.
9. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated here.