PLEASE READ THESE TERMS OF SERVICE (THE "AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED BY LINKTEXTING PTY LTD ("LINKTEXTING"). YOUR USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THE CURRENT VERSION OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY CLICKING THE "SUBMIT" (OR SIMILAR) BUTTON, OR BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (I) YOU OR THE ENTITY YOU REPRESENT ("CUSTOMER" OR “YOU”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND ARE A PARTY TO THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER (IF CUSTOMER IS AN ENTITY). LINKTEXTING MAY UPDATE THE AGREEMENT AT ANY TIME. THE CURRENT VERSION OF THE AGREEMENT CAN BE REVIEWED BY CLICKING THE "TERMS OF SERVICE" HYPERLINKLOCATED AT THE BOTTOM OF THE WEB PAGES OF LINKTEXTING.COM.
1. Customer Account. In order to access and use the Services, Customer may be required to register for an account with Linktexting (“Customer Account”). Customer must keep all information (including any passwords and account ids) related to Customer’s Account confidential and you must immediately notify Linktexting if there is any unauthorized activity in your Customer Account or if your login credentials have been compromised. Customer is responsible for all activities associated with Customer Account, including those activities of any Customer employee, independent contractor or other third party acting on behalf of Customer. The information you provide to Linktexting when you register for a Customer Account must be accurate, complete and you must keep this information current. By registering for a Customer Account with Linktexting, you authorize Linktexting to contact you by email or through your Customer Account regarding any notices or other information related to your Customer Account or the Services.
2. Access to the Service. Subject to Customer's compliance with the terms and conditions of this Agreement and for the Term of this Agreement: (i) Linktexting grants Customer the right to access and use the services specified in Customer’s Account (collectively, the "Service," or "Services") during the Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Linktexting's applicable user documentation; and (ii) Linktexting grants Customer, during the Term, a non-exclusive, non-sublicensable, non-transferable license to (a) incorporate the Linktexting widget, smart badges or smart prompts specified in Customer’s Account (the "Software"), in object code form only, into one or more Customer software applications that communicate with the Service (each a "Customer Application"), and (b) distribute the Software in object code form only as part of a Customer Application.
3. Modifications. Linktexting shall have the right (but not the obligation), at its sole discretion, to modify or replace this Agreement, or change, suspend, or discontinue the Services or Software (including without limitation, the availability of any feature) at any time by posting a notice on Linktexting’s website or by sending you an e-mail. Linktexting may also impose limits on certain features and services or restrict your access to parts or all of the Services or Software without notice or liability. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Services and Software following the posting of any changes to this Agreement constitutes acceptance of those changes. Linktexting shall not be liable to Customer or any third party for any modification, suspension or discontinuance of all or any portion of the Service or Software.
4. Changes to Services or Software. If Linktexting provides Customer with any upgrades, patches, enhancements, or fixes for the Services or the Software ("Updates"), then such Updates will become part of the Services or the Software, respectively, and subject to this Agreement. Notwithstanding the foregoing, Linktexting shall have no obligation under this Agreement or otherwise to provide any such Updates or any other support for the Services or the Software to Customer. Customer understands that Linktexting may cease supporting old versions or releases of the Services or the Software at any time in its sole discretion; provided, however, that Linktexting shall use commercially reasonable efforts to give Customer sixty (60) days prior notice thereof.
5. Ownership; Feedback. Linktexting retains all right, title, and interest in and to the Services and Software, and all products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Linktexting for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Subject to the preceding sentence, Customer shall retain all right, title and interest in and to all Customer’s designs, discoveries, inventions, products, computer programs, procedures, developments, business plans, documents, and information related to the Customer Applications, including all intellectual property rights therein. Customer may from time to time provide suggestions, comments or other feedback to Linktexting with respect to the Software and/or the Service ("Feedback"). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Linktexting notwithstanding anything else. Customer shall, and hereby does, grant to Linktexting a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose; provided that such license grant shall not be construed to relieve Linktexting of any confidentiality obligations it may have hereunder with respect to Customer Data. For the avoidance of doubt, enhancements to the Services or to Software made during this Agreement, even if made in whole or in part as a consequence of Feedback provided by Customer, belong exclusively to Linktexting.
6. Fees and Payment. Linktexting offers different pricing plans for its Customers as specified on Linktexting.com. The fees paid by Customer for the Services are specified in the plan chosen by Customer at https://www.linktexting.com/ (“Fees”), which Linktexting may update from time to time. The Fees include a monthly plan fee as well as credit balance Fees for per SMS charges as specified in the plan chosen by the Customer. From time to time Fees to refill the credit balance will be automatically refill the credit balance. Unless otherwise specified, all Fees shall be billed monthly in advance and all charges issued under this Agreement are paid in U.S. dollars. Customer shall be responsible for all taxes associated with the Services other than taxes based on Linktexting's net income. If Customer has provided credit card information to Linktexting at the time Customer registered for an account with Linktexting, then Customer understands and hereby authorizes Linktexting to charge Customer’s credit card a recurring fee, which will be automatically billed monthly unless Customer cancels in advance. Customer may upgrade or cancel Customer’s plan and the use of the Services by writing to Linktexting at email@example.com. All fees paid to Linktexting for the use of the Services are non-refundable and are not subject to set-off. Linktexting may add new services or features for additional fees and charges, or amend fees and charges for existing services, at any time and in its sole discretion. Linktexting may also modify the various pricing plans. Any changes in the Fees or charges shall become effective in the billing cycle following notice of such change to Customer as provided in this Agreement. Linktexting may disable Customer’s account for non-payment at any time. In addition to the amount due for the Service, delinquent accounts or chargebacks will be charged with fees or charges that are incidental to the collection of delinquent accounts or chargebacks including, but not limited to, collection fees, convenience fees, reasonable attorneys’ fees or any other third parties’ charges. Customer agrees Linktexting may contact Customer by electronic mail at the address provided by Customer to Linktexting with respect to any delinquent accounts. For the paid monthly plans, your plan will automatically renew each month and you will be billed each month for the use of the Services. All information provided by Customer to Linktexting in connection with a purchase or transaction or other monetary interaction with the Service must be accurate, complete and current. Customer agrees to pay all charges incurred by users of your credit card, debit card or other payment method used in connection with the purchase or transaction related to the Service at the prices in effect when such charges are incurred.
7. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service or Software (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service or Software; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or Software; (iv) use the Service or Software for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service, Software, or any portion thereof; (vi) block, disable, hide or limit in any way the ability of any device (whether or not such device includes a Customer Application) to access the Service or any portion or functionality of or enabled by the Service; (vii) modify or extend the Software to any extent; (viii) contaminate, incorporate, integrate, link or bundle any portion of the Software with any software code governed by open source, community source, freeware, shareware, or other public license or distribution model software; or (ix) use the Service or Software to build an application or product that is competitive with any Linktexting product or service. Customer is responsible for all of Customer's activity in connection with the Service. Customer shall use the Service in compliance with all applicable laws and regulations, including providing the appropriate notice and obtaining the necessary consents and releases from Customer’s end users regarding the collection, disclosure, transferring and processing of Customer’s end users’ data in order for Customer to use that data in connection with the Service and for Linktexting to provide the Service. Additionally, Customer shall not: (i) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (ii) bypass any measures Linktexting may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer agrees that monetary damages are insufficient to compensate Linktexting for any breach of Customer's obligations to Linktexting set forth in this Section and that Linktexting is entitled to and may seek injunctive or similar relief for any such breach.
8. Promotion. Customer agrees to allow Linktexting to use Customer's name and logo as an Linktexting customer in Linktexting's marketing materials including on its website.
10. Term; Termination. Unless earlier terminated in accordance with this Section, the term of this Agreement (the "Term") shall be as set forth in the pricing plan chosen by Customer at https://www.linktexting.com/. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Linktexting may suspend Customer's password, account or use of the Service if (i) Customer's account is more than sixty (60) days past due, or (ii) Customer's material breach of this Agreement results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Linktexting's ability to provide access to the Service to other customers; provided that: (a) Linktexting shall use reasonable good faith efforts to work with Customer to resolve or mitigate the consequences of such breach in order to resolve the issue without resorting to suspension; (b) prior to any such suspension, Linktexting shall use commercially reasonable efforts to provide notice to Customer describing the nature of the breach; (c) Linktexting shall reinstate Customer's password, account, or use of the Service, as applicable, if Customer cures such breach within thirty (30) days of receipt of such notice; and (d) if Customer fails to cure such breach within such cure period, Linktexting may, in its sole discretion, terminate this Agreement. Either party may terminate this Agreement provided written notice is provided to the other party no less than seven (7) days prior to the end of any one-month term. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, restrictions set forth in Section 7 hereof, indemnity and limitations of liability.
11. Indemnification. Customer shall defend, indemnify, and hold harmless Linktexting, its affiliates and each of its and its affiliates' employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorneys' fees), that arise from or relate to (i) Customer's use or misuse of, or access to, the Service or otherwise from Customer Data, (ii) Customer's violation of this Agreement, or (iii) a claim alleging that any Customer Data infringes the rights of, or has caused harm to, a third party. Linktexting reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer shall assist and cooperate with Linktexting in asserting any available defenses.
12. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND THE SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. LINKTEXTING DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. LINKTEXTING DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. LINKTEXTING DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE OR WILL ALWAYS BE AVAILABLE. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT LINKTEXTING DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUICATIONS FACILITIES. LINKTEXTING IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. LINKTEXTING EXPRESSLY DISCLAIMS LIABLITY ARISING OUT OF CUSTOMER’S USE OF THE SERVICE.
13. Limitation of Liability. IN NO EVENT SHALL LINKTEXTING, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS OR SUPPLIERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID BY CUSTOMER TO LINKTEXTING HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
14. Miscellaneous. This Agreement represents the entire agreement between Customer and Linktexting with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Linktexting with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving written notice to the other party. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Linktexting shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Linktexting's reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. This Agreement is not assignable, transferable or sublicensable by Customer except with Linktexting's prior written consent, and any action or conduct in violation of the foregoing shall be void and without effect. Linktexting may freely assign, transfer or delegate any of its rights and obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Linktexting to act with respect to a breach of this Agreement by Customer or others shall not constitute a waiver and shall not limit Linktexting's rights with respect to such breach or any subsequent breaches. The Services are controlled and operated from Linktexting's office in the United States. Linktexting makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States laws, state and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United State government. If you are a California resident, you may report complaints, (in accordance with Cal. Civ. Code §1789.3), to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by writing to them at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16. Contacting Us. If you have any questions or concerns about our Services or this Agreement, you may contact us by email at firstname.lastname@example.org.
Last updated: February 23, 2017