SMS EVERYWHERE, INC.
IMPORTANT NOTICE IF YOU ARE
CONSIDERING USING OUR SERVICE
You may use this service as an individual or as a business entity, corporation, partnership, limited liability corporation, etc.
1. Individual Usage.
2. Usage As A Business or Other Entity.
If you are using the service for your business or other entity, you represent that you have the authority to enter into this agreement on behalf of your business or other entity.
3. An Enforceable Agreement.
Whether you agree individually or on behalf of an entity, you agree to all the terms of this service agreement. THIS IS A BINDING AGREEMENT ENFORCEABLE BY SMS EVERYWHERE, INC. AGAINST YOU SHOULD YOU BREACH IT.
4. What To Do If You Do Not Wish to Enter Into an Agreement.
THE REGISTRATION PROCESS WILL TERMINATE. YOU WILL NOT BE GIVEN ACCESS TO THE SERVICE.
The definitions below and any definitions used elsewhere in this agreement are binding upon the parties.
1. The Service. The "Service" consists of a browser interface, data transmission, data access (as available) and, if applicable, data storage. The "Service" includes a web-site under the name SMSEverywhere.com.
2. You and Yours. "You" and "yours" means each user or customer accessing the Service by means of a valid account established by you. If you are entering into this agreement on behalf of your entity, the term "you" in this agreement means your entity and all of its directors, officers, managers, shareholders, employees, agents, members, or other personnel.
3. Unlawful Activities. "Unlawful activities" includes, but is not limited to, making direct or indirect threats of physical harm, engaging in any conspiracy of any type, violation of any federal, state or local law or ordinance, violation of any international treaty, storing, distributing or transmitting any unlawful material, or attempting to compromise the security of any networked account or site.
4. Internet Service Provider. "Internet Service Provider" or "ISP" is any entity which allows access to the internet or worldwide web.
5. SMS Everywhere, Inc. Software. "SMS Everywhere, Inc. Software" submits messages from internet browsers to certain messaging servers that are designed to send messages to short messaging service compatible devices such as certain cell phones and is proprietary.
6. The Agreement. The "Agreement" or the "Service Agreement" refers to the within electronic document which sets forth the rights of the parties in their entirety.
7. Our or We. "Our" or "we" refers to SMS Everywhere, Inc.
SPECIFIC TERMS AND CONDITIONS
1. Your Responsibilities.
You are responsible for obtaining and maintaining all computer software, hardware and communications and other equipment required to use the Service.
You are responsible for paying all third-party access charges such as ISP or telecommunications incurred.
You will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the SMS EVERYWHERE, INC. Software ("SMS EVERYWHERE, INC. Software").
You will not modify, translate, or create derivative works based on the SMS EVERYWHERE, INC. Software and Service.
You will not rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the SMS EVERYWHERE, INC. Software and Service.
You will not use the SMS EVERYWHERE, INC. Software and Service for the benefit of a third party.
You understand and agree that the SMS EVERYWHERE, INC. Software is proprietary. You agree not to publish or disclose to third parties any evaluation of SMS EVERYWHERE, INC.'s Software without SMS EVERYWHERE, INC.'s prior written consent.
You acknowledge that SMS EVERYWHERE, INC. retains exclusive ownership throughout the world of all Software, any portions or copies thereof, and all rights therein. Upon termination of this Service Agreement for any reason, you will cease to use and have access to the Software.
i. You will not use the Software and the Service for chain letters, junk mail, advertising, spamming in any form, market research, surveys of any type, or distribution lists to contact any person or entity or allow any third party to use the Service.
ii. You agree not to transmit or permit anyone to transmit any unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind.
iii. You will only use the Software and the Service for lawful purposes, and in compliance with all applicable laws including, without limitation, copyright, trademark, patent, intellectual property, obscenity and defamation laws, whether statutory or common-law in nature.
iv. You will not use the Software and the Service for any unlawful activities.
v. You agree to defend, indemnify and hold SMS EVERYWHERE, INC. harmless against any claim or action that arises from your use of the Software and the Service in an unlawful manner or in any manner inconsistent with the restrictions and policies of this agreement.
vi. You will not use the Software and the Service to compete against SMSEverywhere.com.
You have additional responsibilities set forth elsewhere in this agreement.
2. Our Responsibilities.
A. What You Receive Under This Agreement.
SMS EVERYWHERE, INC. grants to you an individual, personal, non-sub licensable, non-exclusive and non-transferable license or right to use our service pursuant to the terms and conditions set forth in this agreement and as they may be modified on our web site.
SMS EVERYWHERE, INC. does not guarantee the continuous availability of the service or of any specific feature. SMS EVERYWHERE, INC. will inform you via its web site only of any significant changes to the Service or this Agreement.
It is our policy to respect the privacy of our users.
We will not share, rent, sell, or trade personal information (including e-mail addresses) identifying our customers or users to third parties.
We will not share, rent, sell, or trade data contained in your account. We, however, may use this information to contact you to insure that you are satisfied with our products and services, to learn about any ideas you may have to improve our offerings, to call your attention to additional or new offerings or services, and communicate other information.
We may send e-mail to your registered e-mail address concerning our news.
We may ask you to provide demographic or personal preference data. If you provide such data, we may use it to analyze the characteristics of our customers and visitors. We may also use the data to customize the specific information provided to you, or tailor it to better meet your needs.
We reserve the right to contact you about your account status or changes or alterations to the service, or additional offerings or services. You may request that you not receive informational e-mail messages not related to your account activity or current use by e-mailing to SMSEVERYWHERE.com.
SMS EVERYWHERE, INC. delivers messages through a variety of private and public systems. We do not guarantee privacy.
SMS EVERYWHERE, INC. will cooperate with any legitimate law enforcement agency if our messaging services are suspected of use for any unlawful or improper purpose.
C. Warranty and Disclaimer.
THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. SMS EVERYWHERE, INC. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES; IF YOU ARE ACCEPTING THIS AGREEMENT UNDER THE LAWS OF ONE OF THESE STATES, YOU MAY NOT USE OUR SERVICE.
SMS EVERYWHERE, INC. DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
3. Limitation of Liability.
SMS EVERYWHERE, INC.'S LIABILITY (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY YOU IN THE TWO (2) MONTHS PRIOR TO THE ACT OR OMISSION THAT GAVE RISE TO THE LIABILITY.
SMS EVERYWHERE, INC. SHALL NOT BE LIABLE FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING THE COST OF ANY SUBSTITUTE PROCUREMENT), FORESEEABLE OR NOT AND EVEN IF SMS EVERYWHERE, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM USE OF THE SERVICE.
SMS EVERYWHERE, INC., or its designee, shall provide e-mail support to paid service customers. It has no obligation to provide you with hard-copy documentation, upgrades, enhancements, modifications, or other support unless there is a separate written contract to that effect.
5. Provision of Contact and Billing Information and Payment of Fees.
SMS EVERYWHERE, INC. uses the billing services of a third-party. Your failure to pay a bill may be considered a breach of this agreement, and SMS EVERYWHERE, INC. may terminate service as a result of your breach.
6. Passwords and Security.
You will choose all applicable passwords to use in connection with the Service.
You are responsible for maintaining the confidentiality of your passwords and account.
You are entirely responsible for any and all activities that occur under your account. You shall insure that you exit from your account at the end of each session.
You shall notify SMS EVERYWHERE, INC. immediately of any unauthorized use of your account.
You may not allow any third party, related or unrelated, to use your account.
SMS EVERYWHERE, INC. cannot and will not be liable for any loss or damage arising from your failure to comply with these requirements.
This Service Agreement is a monthly agreement, automatically renewable unless either party requests change or termination.
Either party may terminate this Service Agreement by notifying the other party in writing at least thirty (30) days before the termination date.
SMS EVERYWHERE, INC., in its sole discretion, may terminate your use of the Service if you fail to comply with this Agreement.
You will pay in full for the Service up to and including the last day of the current billing cycle. To cancel the Service or change the type of service, you must contact us in writing. All such requests received prior to ten (10) days of the end of the customer billing cycle will incur no additional charges. Requests for cancelled or changed service received within ten (10) days of the end of the customer billing cycle may incur one additional month of charges.
SMS EVERYWHERE, INC. will remove the data of an account after termination. SMS EVERYWHERE, INC. may, but is not obligated to, delete archived data. We reserve the right to cease offering the Service to no-charge users at any time.
Upon expiration or termination, you will immediately cease all use of the Service, including the SMS EVERYWHERE, INC. Software and any documentation. Termination is not an exclusive remedy. All other remedies will be available. Your payment obligation will survive termination.
If you are dissatisfied with the Service or with any of our terms and conditions, your sole and exclusive remedy is to discontinue the Service. There will be no refunds of any fees paid.
8. Third Party Links.
SMS EVERYWHERE, INC. may provide links to other internet sites or resources. We have no control over such sites and resources. You therefore agree that SMS EVERYWHERE, INC. is not responsible for the availability and content of other internet sites or resources.
You agree further that SMS EVERYWHERE, INC. does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.
You agree that SMS EVERYWHERE, INC. shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
9. Non-Waiver of Additional Rights.
This Agreement is between SMS EVERYWHERE, INC. and you. It is not for the benefit of any third party, whether directly or indirectly (including any user accessing the Service by means of an account established by you). The failure of either party to exercise any right provided will not be deemed a waiver of any further rights.
10. Effect of Invalidity of a Provision of This Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11. Non-Assignability of This Agreement.
This Agreement is not assignable, transferable or sub-licensable by you except with SMS EVERYWHERE, INC.'s prior written consent.
12. Law of the State of New Jersey to Control.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. YOU AND SMS EVERYWHERE, INC. AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW JERSEY.
13. One Year to Bring a Claim.
You agree that any cause of action or claim arising out of or related to this Service and this Agreement must be filed with a court or other governmental agency having jurisdiction within one (1) year after the cause of action or claim arose. Otherwise, the cause of action or claim is barred.
14. Sole Agreement of the Parties.
This Agreement is the complete and exclusive statement of the mutual understandings of the parties. It supersedes and cancels all previous or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All modifications must be in writing signed by both parties, except as otherwise provided herein. There are no oral agreements or side agreements of any type.
15. No Agency Created By This Agreement.
No agency, partnership, joint venture, or employment is created as a result of this Agreement. You do not have any authority to bind SMS EVERYWHERE, INC. in any respect.
16. No Attorney's Fees or Costs Available.
In any action, complaint, administrative proceeding, informal complaint to any court or agency, federal, state, or local, to enforce rights under this Agreement, neither the prevailing nor the losing party will be entitled to recover costs and/or attorneys' fees.
All notices must be in writing. A notice is deemed to have been given:
i. When received, if personally delivered;
ii. When receipt is electronically confirmed, if transmitted by facsimile or e-mail;
iii. The day after it is sent, if sent by next-day delivery by recognized overnight delivery service; and
iv. Upon receipt, if sent by certified or registered mail, return receipt requested.
18. Agreement in English.
This Agreement and all related documents have been prepared in English with the consent of the parties.
19. Electronic Nature of This Agreement.
The parties acknowledge that they have met over the internet, that they have not met in person and have not had any direct telephonic contact, that this agreement has been provided by SMS EVERYWHERE, INC. to the customer over the internet and through the SMS web site, that this agreement has been executed electronically, that there is no hard or paper copy of this agreement, that the parties consent to the manner and circumstances of the making of this agreement, and that said agreement is to have the full force and effect of any agreement prepared in writing.
20. United States Government and Other Matters.
You may not remove or export from the United States or allow the export or re-export of any part of the Software or applicable documentation, if any, or any direct product thereof in violation of any restrictions, laws or regulations of the United States including the Department of Commerce, the Department of Treasury Office of Foreign Assets Control, or any other United States agency or of any foreign agency or authority.
As defined in FAR § 2.101, the software and documentation licensed in this Agreement are "commercial items" and according to DFAR § 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation."
Refunds (for Professional SMS, Bulk SMS and API users)If you wish to receive a refund, you must contact SMS Everywhere. There is 30-day money-back guarantee for the first payment. After that, you are entitled to a refund only if there is a technical problem that SMS Everywhere technical support is unable to resolve within 15 days. After 15 days, you may request a refund. You agree to allow up 30 days for the refund to process.
In case of a bank chargeback from you, you agree that SMS Everywhere may charge you $10.00 to compensate for the chargeback fees.