MOBILE TEXT ALERTS SERVICES AGREEMENT
Version Date: 7/6/2021
This Mobile Text Alerts Services Agreement is made by and between Vimbly MTA LLC dba Mobile Text Alerts, a New York limited liability company ("Mobile Text Alerts" or "Us" or "We"), and You, a User seeking to create a Mobile Text Alerts account and use the Mobile Text Alerts “Services” provided by Mobile Text Alerts through www.mobile-text-alerts.com, any affiliated sub-domains, its application programing interface (“API”), and any affiliated websites on which these Terms are posted or a link to these Terms is posted, including, but not limited to, any social media accounts maintained by Mobile Text Alerts, and their related services (collectively, the "Website") and the Mobile Text Alerts Mobile Application ("User" or "You" or “Your”).
Mobile Text Alerts provides internet-based tools for its users to populate and manage contact lists and then initiate short message service (SMS) messages to the users' contacts (“Text(s)”), telephone calls, and other communications (collectively, "Communications") through one or more third-party providers (collectively, the "Services"). The Services are accessible through the Website.
All access to the Services shall be through the Website and User shall not have any right to download or install any software or other tools directly onto Subscriber's computer or other equipment. The Services may be further described and/or limited through User's order forms submitted through the Services, including through the account dashboard, each of which are incorporated into this Agreement.
Individuals under the age of 18 are not eligible to use our Website, Application or Services. By using, visiting, or browsing our Website, using our Application or creating an Account for Services, or submitting any information through the Website, Application or Services, User represents and warrants that User is 18 years of age or older.
Mobile Text Alerts does not intend to use the Website, Application or Services to collect any information from children under age 18. Pursuant to 47 U.S.C. § 230(d), You are notified that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist You in limiting access to material that is harmful to minors. For information on providers of such services, contact Your information technology professional.
We are committed to protecting the privacy of children. The Website, Application and Services were not designed or intended to attract individuals under the age of 18, and We do not knowingly collect personal information online from visitors under the age of 18. If You are a parent or guardian and You are aware that Your child has provided Us with personal information, please contact Us so that We may take steps to remove that information from our servers. If We become aware that We have collected information from children without verification of parental consent, We will take steps to remove that information from our servers.
In order to create an Account with Mobile Text Alerts and use the Services, User must complete the required registration form found on the Website, which requires supplying a valid email address, telephone number, and password. Additionally, if User upgrades to a paid account, User must provide valid payment information through the payment processor and comply with the payment processor's applicable terms and conditions.
As part of the registration process, User will select an email/username and password combination that will be used to access User’s Mobile Text Alerts account (User’s "Account"). User must provide Mobile Text Alerts with accurate, complete and updated registration information, and may not impersonate another person or entity. Mobile Text Alerts reserves the right, in its sole and absolute discretion, to deny any person or entity the right to register with Mobile Text Alerts.
User shall notify Mobile Text Alerts of any known or suspected unauthorized uses of User’s Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of User’s username or password. User is solely responsible for maintaining the confidentiality of User’s username and password and is solely responsible for all usage and activity on or through User’s Account, including use of User’s Account by a third party authorized by User.
Any fraudulent, abusive or otherwise illegal activity is grounds for immediate termination of User’s Account by Mobile Text Alerts, in its sole and absolute discretion, and referral to the appropriate law enforcement agencies. In addition, Mobile Text Alerts reserves the right, in its sole and absolute discretion, to terminate any person or entity's Account and access to the Services at any time.
COMMUNICATIONS WITH USER
CONTROL OVER CONTACTS AND COMMUNICATIONS; COMPLIANCE WITH APPLICABLE LAWS AND GUIDANCE
Mobile Text Alerts provides User tools and User is solely responsible for lawfully and responsibly using those tools. User understands and agrees that User is solely responsible for determining the content of User's Communications, determining whether to send Communications, determining which persons the User will send the Communications, determining when to send Communications, and all other decisions regarding the sending of Communications to User's contacts.
User represents and warrants that the owners of the telephone numbers to whom You initiate Communications have consented or otherwise opted-in to receive such Communications from You, in accordance with and as required by Applicable Law. User will not submit any telephone numbers or other contact information to Mobile Text Alerts, and will not initiate any Communications to any such numbers or contacts, unless the owner of that telephone number or contact information has provided all necessary consents required by Applicable Law.
User represents and warrants that it understands that the TCPA requires “prior express consent” for certain calls and texts, and “prior express written consent” certain calls and texts that include or introduce an advertisement or constitute telemarketing. See 47 U.S.C. § 227(b)(1); 47 C.F.R. § 64.1200(a). For User’s reference only, currently, the term “prior express written consent” is defined to mean “an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.” 47 C.F.R. § 64.1200(f)(8). The required written agreement “shall include a clear and conspicuous disclosure informing the person signing that: (A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and (B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.” 47 C.F.R. § 64.1200(f)(8)(i). The term “signature” includes “an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.” 47 C.F.R. § 64.1200(f)(8)(ii). The term “advertisement” means “any material advertising the commercial availability or quality of any property, goods, or services,” 47 C.F.R. § 64.1200(f)(1), and the term “telemarketing” means “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person,” 47 C.F.R. § 64.1200(f)(12). The term “clear and conspicuous” means “a notice that would be apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures.” 47 C.F.R. § 64.1200(f)(3). User is solely responsible for monitoring changes to the law applicable to User’s use of the Services.
User represents and warrants that User will include clear opt-out/unsubscribe information in User’s Communications when required to do so by Applicable Law or Industry Guidance. User further agrees that any individuals requesting to opt-out of receiving further Communications or Do-Not-Call ("DNC") status shall be immediately placed on User’s DNC accounts list and User further agrees that User will not initiate any further Communications to any individuals after they request DNC status or otherwise request not to receive Communications from User.
User understands and agrees that it is solely responsible for confirming that mobile numbers collected by User have not been ported to another individual for purposes of monitoring that User continues to have the requisite consent to use the Services to communicate with the individuals on User’s contact’s list. User represents and warrants that it will implement reasonable processes and procedures to monitor ported numbers.
User represents and warrants User will not engage in any kind of deceitful, deceptive, misleading, or other unfair trade practices or advertising or any other fraudulent or other unlawful practice and all of User's Communications are truthful, not deceptive or misleading, and any claims contained therein can be appropriately substantiated.
User represents and warrants User will comply with all laws governing the particular content of the Communications being sent by User using Mobile Text Alerts’ Services, including, but not limited to, including any required disclosures, notices, warnings.
If Mobile Text Alerts receive notice from any source of any spam or other abuse of the Services related to User's use of the Services, Mobile Text Alerts reserves the right to take appropriate actions, including terminating or suspending User's Account without notice, in Mobile Text Alerts' sole discretion.
ACCEPTABLE USE POLICY
User is prohibited from sending any Communications to any person or entity that contain, advertise, contribute to, or relate to any of the following:
Mobile Text Alerts reserves the right to suspend and/or terminate User’s Account if User sends Communications to any person in violation of this Agreement. Mobile Text Alerts reserves the right, but not the obligation, to monitor the content sent to User's contacts to monitor compliance with this Agreement.
RECURRING PAYMENTS; SUBSCRIPTION
If You sign up for a subscription account, Your provided payment method will be charged for the subscription every period until You cancel Your subscription, in accordance with the specific terms of Your subscription. Please review the specific terms of Your subscription for more information.
If You purchase a subscription but choose not to include a renewal option, Your access to the applicable paid portion of the Services will terminate when Your subscription period has ended.
By signing up for a paid subscription, You agree to pay all applicable fees set forth on Your particular order page. Prices are subject to change during the term of the subscription.
You can cancel Your subscription at any time by cancelling Your account in Your Mobile Text Alerts account settings. You must cancel Your subscription before Your renewal date in order to avoid incurring a charge for the next renewal period.
FREE AND UPGRADED SERVICES
Mobile Text Alerts may make some of the Services available for free (the "Free Services"). Mobile Text Alerts does not guarantee that any portion of the Services will always be available for free and reserves the right to begin charging for any portion of the Services at any time.
The Free Services may have reduced functionality, including limitations on the number of contacts or Communications capable of being sent by User. You can upgrade Your Account to change these limitations or to add additional services.
Please review the specific terms for Your applicable Account. Prices are subject to change. Mobile Text Alerts reserves the right to immediately terminate an Account and Your access to the Services if payment is not made.
Mobile Text Alerts may offer its Services through free trial offers from time to time. The failure to cancel Your free trial during the stated period (or prior to the occurrence of any other stated condition) will result in You being charged for the associated subscription fees beginning at the end of the trial period, in accordance with the specific terms of the free trial offer. For more details, please review the specific terms of the free trial offer, if applicable.
Mobile Text Alerts does not guarantee that any portion of the Services will always be available for free.
PASS THROUGH FEES
In the event Mobile Text Alerts is charged fees by any third-parties as a result of Your specific use of the Services, You agree to pay Mobile Text Alerts for all such pass-through fees.
Unless otherwise stated, Mobile Text Alerts does not guarantee any refunds and reserves the right to decline any refund requests; however, if You are unsatisfied with any purchase from Mobile Text Alerts, You may contact Us at email@example.com.
LICENSE AND INTELLECTUAL PROPERTY
If Mobile Text Alerts receives a subpoena seeking User’s data, User will be responsible for all costs We incur to review and respond to the subpoena, including, but not limited to, Mobile Text Alerts’ attorneys’ fees and costs. As soon as reasonably possible, Mobile Text Alerts will alert User to its receipt of a subpoena and seek guidance from User regarding responding to the subpoena. Mobile Text Alerts reserves the right to respond to the subpoena in accordance with guidance from its legal counsel.
The registered and unregistered trademarks, service marks, tradenames, graphics, logos, page headers, button icons, scripts, trade dress, or other indicia of trade origin (collectively, "Trademarks") of Mobile Text Alerts may not be used without Mobile Text Alert's written consent. All other Trademarks not owned by Mobile Text Alerts that appear on the Website are the property of their respective owners, who may or may not be affiliates with, connected to, or sponsored by Mobile Text Alerts.
Mobile Text Alerts reserves the right, in its sole and absolute discretion, to terminate User’s Account and delete all associated data if it is left inactive for more than six (6) months.
An "inactive" account is one for which both of the following are true for at least six (6) months: (i) no one has logged into the Account, and (ii) no one has sent any Communications through the Services.
Each party represents and warrants that it has the right to enter into and fully perform the Services contemplated herein and there is no outstanding contract, commitment or agreement to which it is a party that conflicts with this Agreement.
Limitation of Liability; Disclaimer of Warranty. IN NO EVENT SHALL MOBILE TEXT ALERTS BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM: (A) USER'S USE OF ANY OF MOBILE TEXT ALERTS' SERVICES OR THE WEBSITE, (B) USER'S SENDING OF ANY COMMUNICATIONS TO ANY PERSONS OR ENTITIES; OR (C) ANY PRODUCTS OR SERVICES SOLD BY USER.
DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY AND THE USE OF THIRD-PARTIES TO FACILITATE COMMUNICATIONS, DOWN TIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE WEBSITE, THE LINKS, OR THE OTHER SERVICES DESCRIBED HEREIN MAY OCCUR. MOBILE TEXT ALERTS DOES NOT GUARANTEE THAT ALL COMMUNICATIONS WILL BE DELIVERED TO ALL OF YOUR CONTACTS AND IS NOT LIABLE FOR ANY FAILURE FOR COMMUNICATIONS TO BE SENT OR DELIVERED. WITHOUT LIMITING THE ABOVE, THE SERVICES ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND MOBILE TEXT ALERTS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN; (C) THAT THE SECURITY METHODS EMPLOYED BY MOBILE TEXT ALERTS WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR AGAINST ALL ATTACKS; OR (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON. ALL INFORMATION AND SERVICES PROVIDED BY MOBILE TEXT ALERTS IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT APPLY TO YOU.
MOBILE TEXT ALERTS' LIABILITY AND USER'S REMEDIES ARE LIMITED SOLELY AND EXCLUSIVELY TO THOSE DESCRIBED HEREIN. MOBILE TEXT ALERTS' LIABILITY, WHETHER BASED ON TORT, CONTRACT, WARRANTY, STRICT LIABILITY, OR ANOTHER LEGAL CLAIM, SHALL NOT EXCEED THE GREATER OF: (A) $100.00; OR (B) THE AMOUNT PAID BY USER TO MOBILE TEXT ALERTS PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM. IN NO EVENT SHALL MOBILE TEXT ALERTS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF CONTACT OR CUSTOMER LISTS, PROPERTY DAMAGE, DAMAGE FOR BODILY INJURY, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF MOBILE TEXT ALERTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Mobile Text Alerts does not guarantee that User will achieve any particular earnings or results through the User of the Services.
User shall not rely solely on the Services for any emergency Communications.
To the extent permitted by law, User agrees to indemnify, defend and hold Mobile Text Alerts and its managers, members, directors, officers, employees, affiliates, agents, advertisers, vendors, insurers, attorneys, successors, and assigns (individually, an “Indemnified Party” and, collectively, the "Indemnified Parties") (collectively, "Indemnified Parties") harmless from any claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorneys' fees and expenses) (collectively "Claims") arising from (a) User's breach of the terms of this Agreement; (b) User's violation of Applicable Law, including User's failure to obtain all necessary consents prior to sending a Communication to any person; (c) User's sending of any Communication; (d) the content of any Communication; or (e) User's use of the Services.
If Mobile Text Alerts receives a subpoena seeking User’s data, testimony or information about Mobile Text Alerts’ Website, Application or Services, User will be responsible for all costs We incur to review and respond to the subpoena, including, but not limited to, Mobile Text Alerts’ attorneys’ fees and costs. As soon as reasonably possible, Mobile Text Alerts will alert User to its receipt of a subpoena and seek guidance from User regarding responding to the subpoena. Mobile Text Alerts reserves the right to respond to the subpoena in accordance with guidance from its legal counsel.
Mobile Text Alerts reserves the right, at User's expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User hereunder. No settlement related to a Claim may be consummated without Mobile Text Alerts' express written authorization, which shall not be unreasonably withheld.
User will immediately notify Mobile Text Alerts of any current, impending, or potential legal action against it by a third party for matters relating to Mobile Text Alerts, this Agreement, or the sending of any Communications when the same arises.
The term "Confidential Information" shall include, without limitation, information regarding processes, techniques, or know-how, or any information or data developed pursuant to the performance of the Services. However, Confidential Information shall not include information that is or becomes part of the public domain through no action or omission of the receiving party, that becomes available to the receiving party from third parties without such receiving party's knowledge of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement.
Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, pandemic, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, however, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
XXI. MANDATORY ARBITRATION AND PROHIBITION ON CLASS ACTIONS
THIS SERVICES AGREEMENT CONTAIN A BINDING ARBITRATION CLAUSE. PLEASE READ THIS PROVISION CAREFULLY, AS IT AFFECTS YOUR LEGAL RIGHTS. IT PROVIDES THAT ANY CLAIM RELATING TO YOUR USE OF THE WEBSITE, APPLICATION OR SERVICES MAY BE RESOLVED EXCLUSIVELY BY BINDING ARBITRATION UNLESS OTHERWISE PROVIDED FOR HEREIN. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT, AND ARBITRATION DECISIONS ARE SUBJECT TO VERY LIMITED REVIEW.
You may obtain copies of the current rules, forms, and instructions for initiating an Arbitration with the AAA by contacting the AAA as follows: on the web at www.adr.org or by writing to AAA at 1633 Broadway, 10th Floor, New York, NY 10019.Other Claims Subject to Arbitration. In addition to Claims brought by either You, Us or a User of the Website, Application or Services, Claims made by or against Us or anyone acting on Your or our behalf (including anyone with access to Your mobile phone or account with Us, or an employee, agent, representative, affiliated company, predecessor or successor, heir, assignee, or trustee in bankruptcy) shall be subject to Arbitration as described herein. Exception. You and We agree not to invoke our right to arbitrate any individual Claim You bring in small claims court or an equivalent court so long as the Claim is pending only in that court and remains pending only in that court. Individual Claims Only. It is the intent of the parties to require all Claims to be submitted to Arbitration on an individual basis only. Claims subject to this Arbitration Clause may not be joined or consolidated in Arbitration with any Claim of any other person or be arbitrated on a class basis, in a representative capacity on behalf of the general public or on behalf of any other person, unless otherwise agreed to by the parties in writing. Mobile Text Alerts and the Released Parties are one person for purposes of this Arbitration Clause. Arbitration Fees. If an Arbitration is initiated by either party, who is responsible for payment of any Arbitration deposit or fees will be governed by the then applicable AAA rules, except that if the claim is governed by the AAA’s commercial rules, the parties agree to share equally in the costs of the Arbitration with respect to any AAA deposits, fees and expenses, except that each party shall be responsible for its own attorneys’ fees and costs. Procedure. A single arbitrator will resolve the Claims. The Arbitrator will be a lawyer with at least ten years’ experience or who is a former or retired judge. The Arbitration shall follow the AAA rules and procedures in effect on the date the Arbitration is filed, except when there is a conflict or inconsistency between the rules and procedures of the Arbitration administrator and this Arbitration provision, in which case this Arbitration provision shall govern. Location of Arbitration Proceeding. Any in-person Arbitration hearing for a Claim shall take place within the federal judicial district in which the claimant lives or maintains its principal place of business, or at such other reasonably convenient location as agreed by the parties. Governing Law. This Arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”).
The Arbitrator shall apply applicable substantive law consistent with the FAA and shall honor all claims of privilege and confidentiality recognized at law. All statutes of limitations that would otherwise be applicable shall apply to any Arbitration proceeding.
The Arbitrator shall only be empowered to grant only relief that would be available in court under law or in equity. The Arbitrator shall not be permitted to disregard the applicable law to do equity.
At the request of any party, the arbitrator will provide a written explanation of the basis for the disposition of each claim, including written findings of fact and conclusions of law.
Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service to User at the address provided during the registration process and to Mobile Text Alerts at the following address:
Vimbly MTA LLC
349 5th Ave
New York, NY 10016
LIMITATION OF TIME TO FILE CLAIMS
ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE WEBSITE, APPLICATION OR SERVICES GOVERNED BY THIS SERVICES AGREEMENT MUST BE COMMENCED WITHIN TWELVE (12) MONTHS AFTER THE LATER OF (I) THE ACCRUAL OF; OR (II) OUR OR YOUR KNOWLEDGE OF (OR WHEN SUCH PARTY SHOULD HAVE REASONABLY BECOME AWARE OF) OR THE CLAIM SHALL BE DEEMED BARRED.