Terms of Service
These Terms of Service define the terms by which you may use the LocalTextMarketers.com website (“Website”), hosted interface (“Platform”) and texting services (“Services”) and are an agreement between you and Netelligence Inc. d/b/a Local Text Marketers (“Company”) (the Company, Website, Platform, and Services are collectively referenced as “we” or “us”).
By using this Website and our Platform and Services, you expressly acknowledge that you have read, accept, and agree to be bound by these Terms of Service, as well as any applicable laws hereunder. You should not use either this Website or our Platform and Service, if you do not agree to these Terms of Service.
This Agreement applies to all visitors who visit our Website and all subscribers who evaluate or pay for our Services.
Our Company provides user-friendly, text messaging Services to small to medium sized businesses and organizations. We provide…
(a) Mass texting tools (Broadcast): that our customers can use to build a list of opted-in subscribers, to whom they can then market to directly via cell phone with text messages
b) Peer-to-peer two SMS communication tools (CONNECT): For non-commercial messaging and communication with people with whom you have an established relationship and appropriate permission to contact.
c) Appointment notifications systems (Appointment Manager): Allows service provides to send appointment reminders to clients (with whom they have the appropriate permission as deemed by the law of your perspective country or territory) reduce last minute cancellations and no shows.
You do not have to register in order to visit our Website. In order to evaluate or use our Platform or Service, however, you will need to register, create an account, and become either a trial or monthly subscriber. When you subscribe, you will be asked to provide the following information: first and last name, name of business, address, and credit card information (including a three digit security number). We will create for you a user name and password to access the Platform and Service, which you may then change at your sole discretion.
Once you have selected your password, you should not disclose it to any third party. You are solely responsible for keeping your password confidential and for the activity that occurs on your account. We will never ask you to send your password or other sensitive information to us in an email. If you suspect any unauthorized use of your account or access to your password, please change your password immediately and contact us. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. You are solely liable for any loss or damage arising from your failure to comply with this Section 2.
All information provided by you in your registration must be truthful and complete. We may suspend or cancel your registration without notice if we have any reason to believe that this is not the case. In addition, we may suspend or cancel your registration with us at any time without prior warning if you fail to comply with our Terms of Service, without limiting any other remedies to which we may be entitled. In addition, if we determine that you have committed fraud or engaged in any other illegal activity, we may report you to the appropriate law enforcement authorities.
Only Canadian and U.S. residents, who are at least eighteen (18) years of age, are eligible to register to use our Platform and Service. In addition, you must be fully competent to enter into and to comply with the terms, conditions, obligations, representations, and warranties set forth in these Terms of Service. By registering and/or using our Website, Platform, or Service as a business, you represent and warrant that you are an authorized representative of the business and have the right, authority, and capacity to subscribe and legally bind the business to these Terms of Service.
If you sign up to use our Platform and Service, the following terms shall apply:
(a) Access: We grant access to use our Service on a business account basis, so a business may maintain a single account for use by multiple workers.
(b) Scope of Subscription. We grant each subscriber to our Service a non-transferable, non-exclusive right to (a) access, use, and display our Platform and Service for your business purposes; (b) to upload and store opt-in textword subscriber lists to your account on our Platform; (c) to create and send content through our Platform and Service; and (d) to use, display, and make copies of documentation about our Platform and Service for your internal business purposes only.
(c) Restrictions. You may not share, rent, resell, lease, sublicense, or otherwise permit any third party to access, use, or display or Service. You agree not to take any action to reverse engineer, compile, translate, disassemble, copy, or create derivative works of any part of the Platform of Service, in whole or in part, nor to permit any third party to do so.
(d) Services. Services covered by this agreement are any services offered by Local Text Marketers. These services include CONNECT, Broadcast (Mass Texting Service) and Appointment Manager. Your use of the Service is at your sole risk. The service is provided on an AS IS and AS AVAILABLE basis. You understand that your content may be transferred unencrypted over the internet.
e) Subscriptions: We reserve the right to change the price of our standard plans at any time upon prior written notice. Subscription payments are billed upon the commencement of any subscription period. All payments are non-refundable. Service will be suspended in the event that any invoice remains unpaid on the fifteenth (15th) day of the any subscription period. We reserve the right to submit any unpaid invoice to our collections agency, and in any such case, you agree to be responsible for all collection costs.
(e) Subscription Period: Subscriptions expire thirty (30) days following the commencement of any subscription and automatically renew for successive, additional monthly periods (“Renewal Periods”). Unused message credits roll over at the end of each subscription period.
(f) Cancellation. You may cancel your subscription at any time without notice through your account profile on our Platform, which is accessible through our Website. We also reserve the right to cancel your subscription at any time in the event that you materially breach any term or condition of our Terms of Service. All cancellations will be effective at the end of the applicable subscription period. We do not provide refunds for unused message credits following any cancellation of your account.
(g) Upgrades. In the event you upgrade your service package at any time, your upgraded service package will be effective immediately, and you will automatically be billed the applicable service fee for the upgraded package. Any unused message credits on the prior service package will be rolled over to the new subscription period that commences upon the completion of the upgrade.
(h) Newsletters. When you sign up for a service package with us, you will be invited to subscribe to our email newsletter, which you may then opt out of at any time by clicking the “unsubscribe” link. If you elect to opt out, please be advised that you may lose access to vital information on our Platform updates and improvements, as well as strategies and best practices for utilizing our Service.
(i) Textword Subscribers. You may have us add subscribers to your textword lists via a CSV file; provided, however, you may only upload subscribers who have given their express consent to opt-in to your textwork list (or express or implied consent in Canada). Failure to abide by this consent requirement shall constitute a material breach of these Terms of Service subjecting you to immediate cancellation. We will sign a standard non-disclosure agreement before handling any client data. Each time a new subscriber joins your list, we will automatically send an introductory message to the subscriber as mandated by the third party carrier (the “Carrier”) and any applicable industry association rules, which text will be credited as a regular text from your account. You acknowledge and agree that each text message that you send will be deducted as a message credit, regardless of whether or not such text message is received by the intended recipient. You will also be responsible for any other text messages we are mandated to send by a Carrier or any other applicable industry association rules, regardless of whether or not you initiated the text.
(j) Message Content. We agree that you or your licensors will retain all right, title, and interest in the content of any message that you send through your account. You expressly warrant that you own all right, title, and interest in all such content, or in the alternative, that you have procured a valid license from the copyright owner of the content, which authorizes you to grant sublicenses to authorize the distribution of such content as set forth herein. You are solely responsible for ensuring that the content of all of your messages is appropriate; legal and not in violation of any applicable law or ordinance; is not obscene or pornographic; does not defame any third party; is not threatening or harassing; does not depict or endorse violence; does not invade anyone’s privacy; is not infringing; does not contain profane or hate speech; and is not otherwise objectionable. You acknowledge and agree that we have the right to screen message content at our sole and absolute discretion and to refuse to send message content that is deemed inappropriate or in violation of these Terms of Service. Sending content that promotes illegal or illicit drugs or controlled substances is expressly prohibited. You acknowledge and agree that your messages are transmitted in real time, and that we have no control over individual messages or their content. You are solely responsible and liable for any messages you send, including any loss, damage, or liability from any transmissions. To the extent permitted by applicable law, you grant to us and any Carrier, (i) a non-exclusive license to send, intercept, and read the text messages and use your messages and content as necessary to perform the Service contemplated herein; (ii) a perpetual, non-exclusive license to store all text messages and content on the back-end of our servers and to create archived, back-up copies; and (iii) the right to provide your text messages and content as required by any governmental body or court order as necessary to defend our rights in a legal dispute or as legally compelled by a third party.
(k) Platform Access. We use commercially reasonable efforts to maintain our Website and Platform and to keep them operating on a 24 hour, 7 day a week basis, free from bugs, errors, technical problems, or defects. If, at any time in the future, we identify any bugs, errors, technical problems, or defects, then we will assign technicians to address and resolve the issue.
If you become aware of an error, bug, or other technical problem, then you should notify us immediately of the incident and provide us with the following information: (i) the specific sequence of events which generated the incident, and a full description; (ii) the exact wording of any error messages, if applicable; and (iii) any special circumstances surrounding the discovery of the incident for which you are seeking technical support.
We cannot guarantee that your access to the Website or Platform will be uninterrupted, or that the Website or Platform will be available at all times. We use commercially reasonable efforts to ensure that our Website and Platform are protected from viruses and other destructive software, as well as hacking and other destructive activities by third parties, but we cannot guarantee that we will never be affected by viruses and other destructive software, hacking, or other destructive, third party acts.
(l) Service Downtime and Suspensions; Force Majeure. We use commercially reasonable efforts to make our Service available at least 99.5% of the time in any calendar month. You acknowledge and agree that your access and use of the Service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of all or any portion of the Service for any reason, including as a result of power outages, system failures, or other interruptions. In addition, you agree that we may, without liability to you, suspend access to all or any portion of the Service at any time, on a Service-wide basis in the event of any the following cases: (i) for scheduled downtime to permit us to conduct maintenance or make modifications to the Service; (ii) in the event of a denial of service attack, other attack on the Service, or other event that we determine, in our sole discretion, may create a risk to the Service or our other subscribers if the Service is not suspended; or (iii) in the event we determine that it is necessary or prudent to do so for legal or regulatory reasons. You agree to solely assume all risk of loss, damage, or liability that you suffer as a result of any Service suspension. To the extent that we are able to do so, we will make commercially reasonable efforts to provide you advance notice of any Service suspension, but you agree to solely assume all risk of loss, damage, or liability from any failure by us to provide such notice. You acknowledge and agree that our failure to maintain our Service by reason of “acts of God,” acts of governments, terrorism, riots, wars, accidents, or deficiencies in materials or transportation, or other causes of any nature beyond our control shall not be deemed to be a breach of your subscription, provided that we provide written notice of the existence and nature of such reason for the nonperformance and delay, and resume performance immediately upon the elimination of the relevant force majeure.
(m) Emergency Services. You acknowledge and agree that you may not currently access any emergency services through this Service. Our Service in not intended to replace any primary phone service, such as a traditional landline or mobile phone, that may be used to contact emergency services.
(n) Electronic Communications. You agree and acknowledge that we are entitled but not obligated to review and retain your electronic communications in order to confirm your compliance with these Terms of Service, to ensure the security of the Service, and for quality assurance purposes. You agree and acknowledge that we may disclose your electronic communications if required by law or in the good faith belief that such disclosure is reasonably necessary to (i) comply with a subpoena or law enforcement demand, (ii) enforce these Terms of Service, (iii) respond to any claims that your electronic communications violate the rights of third parties; or (iv) to protect the rights or personal safety of our subscribers, subscribers to your text messages, or any third party.
(o) Use of Textwords. You understand and agree that you will have the use of the textwords that you choose as part of the Service only while you maintain an active subscription on your account, and that we can make no guarantees that you will be able to continue to use the textwords following cancellation or suspension of your subscription.
(p) Other Subscriber Responsibilities.
(i) Third Parties. You acknowledge and agree (A) that the successful delivery of any text is dependent on the services of third parties, including technology partners and Carrier networks, which we have no control over; (B) texts may be dropped by such third parties from time to time, and that any dropped text will still be treated as a completed text against your account; and (C) third parties make every effort to eliminate spam from their networks, but they cannot absolutely prevent spam from being transmitted ..
(ii) Reliance on Services. You are solely responsible for any and all acts or omissions taken or made by you in reliance on our Service.
(iii) Compliance with Acceptable Use Policy, Applicable Laws, and Industry Requirements. You agree to comply at all times with the terms of our Acceptable Use Policy; all applicable laws, regulations, and guidelines, including but not limited to those established by the Canadian Radio Television and Telecommunications Commission in Canada and the Federal Trade Commission and Federal Communications Commission in the United States; the Telephone Consumer Protection Act in the United States and the Do Not Call Registry Rules; Canada’s Anti-Spam Legislation (“CASL”); and all applicable industry rules such as those established by the CTIA-The Wireless Association and the Mobile Marketing Association. You should consult the CTIA’s CSC Monitoring Compliance Handbook and the Mobile Marketing Association’s Consumer Best Practice Guidelines for additional information about current industry rules.
(iv) Monthly Message Obligation. You are responsible for sending one text message per month to each subscriber to your textword list that reminds such subscriber that he or she is subscribed to the list and provide clear opt-out/unsubscribe information.
You acknowledge and agree that we own and shall retain all right, title, and interest in all of the documentation, marks, logos, text, and other content posted to our Website and Platform, as well as all of the trade secrets, code and databases comprising our Platform and Services (the “Intellectual Property”). Except as otherwise expressly stated herein, you may only display or view the Intellectual Property posted to the Website and incorporated into the Platform and Services, and you may not reproduce, display, copy, republish, download, upload, post, transmit, publicly perform or display, distribute, create derivative works of, misappropriate, or otherwise use for any purpose the Intellectual Property without our express written consent. Using the Intellectual Property on any other website or for any other commercial purpose is expressly prohibited.
Intellectual Property Infringement Complaints
We respect the intellectual property rights of others. If you ever suspect that your intellectual property has been copied in any manner that constitutes intellectual property infringement, then please notify our IP Agent immediately at firstname.lastname@example.org or by mail at 923 King’s Mill Rd, Stirling, Ontario, Canada, K0K 3E0 providing the following information:
(a) Identification of the Intellectual Property. The name of the owner of the intellectual property and a signature of the person authorized to act on behalf of the intellectual property interest, which is alleged to be infringed;
(b) Description of Infringed Right. A description of the intellectual property right that you claim has been infringed;
(c) Location of Infringing Item. A description of where the allegedly infringing item is located on the Website;
(d) Contact Information. Your address, telephone number, and email address; and
(e) Statement under Penalty of Perjury. A statement by you confirming that you are the intellectual property owner or are authorized to act on the intellectual property owners behalf, made under penalty of perjury.
You warrant and represent that (a) you will not use the Website, Platform, or Service in a manner that violates these Terms of Service; (b) the information you provide in connection with your registration and subscription to the Service is accurate, truthful, and complete; (c) if you are a business, you are duly authorized to do business in the jurisdiction where you operate; and (d) you will be responsible for any and all charges incurred through the use of this Service.
COMPANY WARRANTY; DISCLAIMER
We warrant and represent that we will operate our Website, Platform, and Service in a workmanlike manner in accordance with these Terms of Service and with generally accepted security standards. You agree and acknowledge that your use of our Platform and Service is at your sole risk. We make every effort to keep all of your contacts, message content, and other data that you upload to the Platform and Service secure, but we cannot guarantee that we will absolutely be successful at doing so. You acknowledge and agree that you are solely responsible for maintaining adequate security, protection, and backups of content that you upload to your account. You acknowledge and agree that we will have no liability to you for any unauthorized access or use, corruption, deletion, destruction, or loss of any of your content or data uploaded to your account.
WE DISCLAIM ANY AND ALL LIABILITY FOR ERRORS, LOSSES, OR DAMAGES INCURRED IN CONNECTION WITH THE USE OF THE SERVICE. The Service is provided on an “as is” basis and “as available” basis. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, WE EXPERSSLY DISCLAIM ANY AND 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 NONINFRINGEMENT. WE ALSO EXPRESSLY DISCLAIM THE FOLLOWING:
(a) ANY WARRANTIES THAT OUR SERVICE WILL MEET YOUR NEEDS;
(b) ANY WARRANTIES THAT OUR SERVICE WILL ACHIEVE ANY PARTICULAR OUTCOME OR RESULTS, OR THAT YOU WILL ATTAIN ANY PARTICULAR LEVEL OF SALES PERFORMANCE THROUGH THE USE OF THE SERVICE;
(c) Any and all responsibility for the content or consequences of any third party texts that you receive;
(d) ANY AND ALL RESPONSIBILITY FOR THE HACKING OF THE WEBSITE, PLATFORM, OR SERVICE OR ANY OTHER WRONGFUL ACTS BY ANY THIRD PARTY;
(e) ANY AND ALL LIABILITY FOR THE DISCLOSURE OF SENSITIVE DATA THROUGH THE PLATFORM OR SERVICE;
(f) ANY AND ALL LIABILITY ARISING FROM LOST, UNDELIVERED, DROPPED, OR DELETED MESSAGES OR CONTENT, OR ANY BUSINESS DECISIONS MADE BY YOU OR ANY THIRD PARTY AS A RESULT OF ANY MESSAGES OR CONTENT RECEIVED OR NOT RECEIVED THROUGH THE SERVICE;
(g) ANY WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT ANY MESSAGES OR CONTENT SENT THROUGH THIS SERVICE OR DATA OF ANY NATURE WILL NOT BE DELETED OR LOST DUE TO ANY SUCH TECHNICAL ISSUES;
(h) ANY OR ALL LIABILITY FOR LOST REVENUES THAT MAY RESULT FROM DELETED, DELAYED, LOST, HACKED, OR OTHERWISE UNDELIVERED COMMUNICATIONS;
(i) ANY WARRANTIES THAT ERRORS WITH THE SERVICE WILL BE CORRECTED;
(j) ANY WARRANTIES THAT YOU OR ANY OTHER USER OF THE SERVICE WILL BE KNOWLEDGEABLE AND/OR COMPLY WITH ALL APPLICABLE LAWS, REGULATIONS, AND INDUSTRY RULES, OR THAT YOU WILL NOT RECEIVE MESSAGES FROM A THIRD PARTY WHO HAS FAILED TO COMPLY WITH ANY APPLICABLE LAW, REGULATION, OR INDUSTRY RULES;
(k) ANY AND ALL LIABILITY FOR THE INTEGRITY, DELIVERY, FUNCTIONALITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY CARRIER LINES OR PARTNER SERVICE, AND ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, ERROR, LOSS, TRANSMISSION, OR CORRUPTION, OF ANY MESSAGE ATTRIBUTABLE TO THE CARRIER LINE;
(l) ANY AND ALL LIABILITY FOR DELAYS OF FAILURES IN PERFORMANCE RESULTING FROM ACTS OF GOD OR OTHER EVENTS BEYOND OUR REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO EARTHQUAKES, TORNADOS, HURRICANES, FIRES, LIGHTENING STRIKES, TERRORISM, STRIKES, BLACKOUTS, RIOTS, AND ACTS OF GOVERNMENT;
(m) ANY AND ALL LIABILITY FOR ANY LOSS OR INJURY WHICH RESULTS FROM ANY FAILURE TO TRANSMIT AN EMERGENCY COMMUNICATION THROUGH OUR SERVICE. WE FURTHER DISCLAIM ANY AND ALL LIABILITY FOR SUPPORTING OR CARRYING EMERGENCY COMMUNCIATIONS TO ANY EMERGENCY SERVICES;
(n) ANY AND ALL LIABILITY FOR ANY PHONE CALLS RECEIVED FROM A COMPANY CUSTOMER AFTER SUBSCRIBER HAS EITHER SPECIFICALLY REQUESTED THAT SUBSCRIBER BE REMOVED FROM THE CALLING LIST OR, ALTERNATIVELY, AFTER SUBSCRIBER HAS SPECIFICALLY ELECTED NOT TO AUTHORIZE THE RECEIPT OF CALLS FROM A COMPANY CUSTOMER.
LIMITATION OF LIABILITY; CONSEQUENTIAL DAMAGES; EXCLUSIVE REMEDY
You agree that Company, the Website, the Platform, and our Service will not be liable to you for any indirect, consequential, incidental, special, punitive, or exemplary damages, arising out of or in connection with the use of this Website, Platform, or Service, including but not limited to damages for loss of profits, goodwill, use, data, or other intangible losses (even if we have been advised of the possibility of such damages).
Our liability to you shall in no event exceed the total amount of subscription fees that you paid to us in the year immediately preceding any claim. Some jurisdictions do not allow the limitation of liability or consequential damages, so these limitations may not apply to you.
If you are dissatisfied for any reason with our Website, Platform, or Service, your sole and exclusive remedy is to discontinue using our Website, Platform, or Service.
COMPLIANCE WITH THE LAWS
We make every effort to implement and comply with all applicable laws, including but not limited to the CASL, to the best of our knowledge and understanding of such laws.
RELEASE OF CLAIMS
To the maximum extent permitted by applicable law, you hereby release and waive our officers, employees, independent contractors, representatives, and agents from any and all liability for claims, damages (actual and or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature arising from or in any way related to Company, our Website, our Platform, or our Service, including but not limited to any claims alleging any violation of the CASL.
By using this Website, Platform, and/or Service, you agree to indemnify, defend, and hold harmless Company and this Website, Platform, Service, and our partners, officers, directors, employees, independent contractors, representatives, agents, and other visitors against any third party claim arising from or in any way related to your use of this Website, Platform, or Service, including but not limited to any liability or expense arising from any and all claims, demands, losses, damages, costs, expenses, suits, judgments, litigation costs, or attorneys fees.
FEEDBACK; IDEA SUBMISSIONS
We are pleased to hear from you and welcome your feedback about the Website, Platform, and our Service. If you provide any feedback to us, you agree that all such feedback will not be subject to any obligation of confidence by us, and that we will not be liable for any use or disclosure of the feedback. Also, you agree that we may use any such feedback to make improvements to our Website, Platform, or Service at our sole discretion without any obligation to you.
In the event that you submit any ideas to us about the Website, Platform, or Service, you grant to us an exclusive, perpetual, royalty-free, transferable, worldwide license with the right to grant sublicenses to use, display, copy, publish, republish and to incorporate your idea into our Intellectual Property.
We reserve the right to discontinue this Website, Platform, or Service at any time in our sole discretion. You agree that we may assign these Terms of Service without prior notice to a successor entity in the event of a merger, acquisition, or sale of all or part of our business. No waiver of any breach of the Terms of Service, no matter how long continuing or how often repeated will be deemed a waiver of any subsequent breach, nor shall any delay or omission to exercise any right, power, or privilege hereunder be deemed a waiver of such right, power, or privilege. If any section of these Terms of Service is held to be unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining sections shall not be affected by such holding. The meaning of that section shall be construed to the extent feasible to render the section enforceable and to give effect to the Parties’ intentions as reflected in the section. If no feasible interpretation would save such section, it is to be severed from the remainder of these Terms of Service, which are to remain in full force and effect. The Terms of Service constitute the entire agreement with you and us with respect to the subject matter set forth herein. The section headings and subheadings contained in these Terms of Service are included for convenience only and shall not limit or otherwise affect these Terms of Service.
Governing Law; Dispute Resolution
These Terms of Service shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, without regard to conflicts of law principles. All disputes arising under this Agreement shall be submitted to binding arbitration under the Commercial Rules of the Canadian Arbitration Association in Toronto, Ontario by one arbitrator mutually agreed upon by you and us in accordance with the aforementioned Rules. The costs of arbitration, including administrative and arbitrators’ fees, shall be shared equally by each of us. The arbitration award shall be final and each of us shall comply in good faith to the entry of the arbitrator’s award in any court having jurisdiction. If judicial enforcement or review is sought, the prevailing party shall be entitled to costs and reasonable attorney’s fees. All claims you bring against us or the Service must be resolved in accordance with this Section. All claims filed or brought against us contrary to the terms of this Section shall be considered improperly filed. Should you file a claim contrary to this Section, you agree that we may recover attorneys’ fees and costs for the improperly filed claim, provided that we have notified you in writing of the issue and you have failed to properly withdraw the claim.
In the event that you have any questions about these Terms of Service, or that you need further assistance with respect to the access or use of the Website, Platform or Service, please notify us at the contact information listed below:
DBA Local Text Marketers
923 King’s Mill Rd
Canada, K0K 3E0
These Terms of Service were last modified on the 10th of July, 2014.