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SMS TEXT SERVICES | END USER ADVERTEXTMEDIA DOTCOM (368266) Terms of Service Last modified: October 1, 2009 This TERMS OF SERVICE AGREEMENT ("TOS") is a legal agreement between you, an individual or an individual acting on behalf of your business or employer, a corporation, partnership, or other legal entity, and Advertextmedia Associates, owners and operators of ADVERTEXTMEDIA. Before you use this site, please read this TOS carefully as they govern...
SMS TEXT SERVICES | END USER
ADVERTEXTMEDIA DOTCOM (368266)
Terms of Service
Last modified: October 1, 2009
This TERMS OF SERVICE AGREEMENT ("TOS") is a legal agreement between you, an individual or an individual acting on behalf of your business or employer, a corporation, partnership, or other legal entity, and Advertextmedia Associates, owners and operators of ADVERTEXTMEDIA. Before you use this site, please read this TOS carefully as they govern your use of the Service provided at this website. By using the Service you are indicating your acceptance of and agreement to be bound by all of the terms of the TOS. Advertextmedia Associates may modify or revise this TOS from time to time without notice to you. Although Advertextmedia Associates may attempt to notify you when major changes are made to this TOS, you should visit this page periodically to review the TOS. Any modification and/or revision of the TOS will be effective when posted on this page. By continuing to use the Service after such modifications and/or revisions are posted, you agree to be bound by such modifications and revisions. If you do not agree with all of the terms of the TOS, then you may not use this service.
1. DESCRIPTION OF SERVICE
The Service provides you the right to use a proprietary web-based software that enables you to create, edit, and send conforming text-based messages to individuals who voluntarily join your mobile list by subscribing from their cell phones using the authorized DOTCOM (368266), DOTNET (368638), and DOTORG (368674) short codes. You also understand and agree that the software itself is the core of the Service, and that the DOTCOM, DOTNET, and DOTORG short codes used by the software are not an integral part of the Service, and that these short codes are provided by third-party short code providers, and that the performance, availability, and charges associated with these short codes are subject to change at any time by the short code providers, and are not guaranteed by this Service. The use of these short codes are being made available to you on an "AS-IS" basis and based exclusively on current conditions whereby the providers of the DOTCOM, DOTNET, and DOTORG short codes are offering the use of these short codes free of charge. You also understand and agree that changes in the performance, availability, and pricing for the use of these short codes are beyond the control of Advertextmedia Associates and may change at any time. You understand and agree that Advertextmedia Associates may determine, in its sole discretion, to limit, change, or otherwise modify the use of the Service, including placing advertising riders with delivered messages, changes in the maximum disk space that will be allotted on servers used on your behalf, and the maximum number of times and the maximum duration for which you may access the Service in a given period of time. You acknowledge and agree that these changes may take place and that Advertextmedia Associates shall have no liability stemming from such changes. Any additions or modifications to the Service shall be at the sole discretion of Advertextmedia Associates and will be subject to this TOS. You are solely responsible for any fees, charges and expenses incurred by you in accessing and using the Service - including, but not limited to, standard text messaging charges that will depend on the plan that you have with your wireless carrier. Advertextmedia Associates uses reasonable efforts to ensure that the Service is available on a 24/7 basis. However, there will be occasions when the Service will be interrupted for maintenance, repairs, upgrades, failure of telecommunications links and equipment, and emergencies that are beyond the control of Advertextmedia Associates. By using the Service you agree that Advertextmedia Associates shall not be liable to you for any modification, suspension or discontinuance of the Service.
2. USING THE SERVICE
The use of this Service requires successful login to an Account that is licensed to and issued by Advertextmedia Associates and must be duly registered to the individual accessing the Service. Your password and account designation will be active upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account designation and are fully responsible for all activities that occur under your password or account designation. You represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to provide true, accurate, current, and complete information about yourself, as well as maintain and promptly update any registration data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Advertextmedia Associates has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Advertextmedia Associates has the right to suspend or terminate your account and refuse any and all current or future use of the Service or any portion thereof. The Service is not designed for or directed to children under the age of 13. Children under the age of 13 may not use the Service. Any use of the Service in violation of or not in strict compliance with this TOS shall constitute grounds for the automatic termination of Service, and shall equally constitute a bar to your access and use of this and other websites associated with the Service. Upon such termination, you shall destroy any and all materials, computer files, and documentations of the Service in your possession and immediately cease marketing, promoting, distributing, using, or offering for use the Service in any manner that may cause the further use of the Service.
3. FEES FOR USING THE SERVICE
Any monetary consideration you paid to be able to use this Service pays exclusively and specifically for your right to use the web-based software which enables you to create, edit, and send conforming text-based messages that can be subscribed from and delivered to cell phones using the authorized DOTCOM (368266), DOTNET (368638), and DOTORG (368674) short codes. Any monetary consideration you paid does not give you ownership of any code, aspect, part, or component of the software, and does not pay for the use of the short codes or any related telecommunications services. You do not own any part of the software that is used in any part of the Service. No refunds shall be given for discontinued use, unused software licenses, prepaid services, or any shipping and handling fee.
4. YOUR PROPER USE OF THE SERVICE
You understand that any and all "Content" (information, data, text, messages, or other materials), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such content originated. This means that you, and not Advertextmedia Associates, are entirely responsible for all content that you upload, post, email, transmit, or otherwise make available via the Service. Likewise, Advertextmedia Associates does not control the content posted via the Service and, as such, does not guarantee the accuracy, integrity, or quality of such content. You understand that by using the Service, you may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will Advertextmedia Associates be liable in any way for any content, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available via the Service. You agree not to use the Service to upload, post, text message, email, transmit, or otherwise make available any adult content, or any content that may impersonate any person or entity, as well as infringe any patent, trademark, trade secret, copyright, or other proprietary rights. You agree not to use the Service to upload, post, text message, email, transmit, or otherwise make available any content that is considered unacceptable by the TOS governing the use of the DOTCOM, DOTNET, and DOTORG short codes. You agree not to use the Service to upload, post, text message, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable.
5. TRADEMARKS, COPYRIGHT, AND PROPRIETARY RIGHTS
Advertextmedia Associates does not claim ownership of any Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on the Service, you claim that you have the right to use such Content and grant to Advertextmedia Associates a perpetual, non exclusive worldwide, royalty-free, transferable right and license to use in any way such Content, including all related intellectual property rights, to provide the Service. The Service and any website associated with this Service, along with any and all of its aspects, parts or components, or any combination or permutation of such aspects, parts and components, are the exclusive intellectual property of their creator and are protected under intellectual property laws and treaties. You may not exercise any ownership rights over this Service, any and all of its aspects, parts or components, or any combination or permutation of such aspects, parts and components, and may not exercise any rights over the same. Specifically, you may not use in an unintended manner, reverse engineer, decompile or disassemble this Service and any and all of its aspects, parts or components, or any combination or permutation of such aspects, parts and components. Any unauthorized reproduction, publication, further distribution, or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
6. RESELLING THE SERVICE
If you decide to resell, market, promote, offer or otherwise represent the Service to others, you hereby agree to market, promote, distribute, use, and offer for use the Service in a responsible manner, and agree to the burden of exclusive and absolute responsibility for all your Users. You agree to use only methods, media, materials and documents approved by Advertextmedia Associates, and strictly comply with any and all governmental laws pertaining to the sending of commercial messages via the Internet and telephonic devices. Advertextmedia Associates expressly forbids you from marketing, promoting, distributing, using, or offering this Service for use as a tool to deliver unacceptable materials as defined in Section4 above and/or unsolicited commercial messages sent to personal computers and mobile devices. You may not promote or refer to this Service or to Advertextmedia Associates when using any form of unsolicited commercial messages or any messages not approved by Advertextmedia Associates. You understand and agree that Advertextmedia Associates shall have exclusive and final right to determine the occurrence of any violation regarding these matters, whether by you or your Users, and reserves the right to immediately terminate your right to the Service.
7. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Advertextmedia Associates DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. Advertextmedia Associates MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR YOUR EXPECTATIONS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. Advertextmedia Associates DOES NOT AND CAN NOT GUARANTEE THE PERFORMANCE OF THE DOTCOM, DOTNET, AND DOTORG SHORT CODES. Advertextmedia Associates MAKES NO GUARANTEES REGARDING MOBILE CONTENT DELIVERY TIME OR EVEN OF DELIVERY.
8. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL Advertextmedia Associates OR ANYONE ELSE INVOLVED IN ADMINISTERING OR DISTRIBUTING THE SERVICE OR ANY SOFTWARE OR PRODUCT PROVIDED IN CONNECTION THEREWITH, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OR LOSS OF REVENUES, GOODWILL, OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICE, MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO DATABASE RECORDS, PROGRAMS OR SERVICES, EVEN IF Advertextmedia Associates HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
9. INDEMNIFICATION.
You agree to indemnify, defend and hold harmless Advertextmedia Associates, and its officers, directors, employees, subsidiaries, affiliates, agents, shareholders, suppliers, and service providers from any costs, expenses, including, among other expenses, attorneys' fees and expenses, losses, damages, specifically excluding consequential, exemplary, special, indirect or punitive damages, suits, claims, or liabilities incurred and arising from or relating to your marketing, promotion, distribution, use, or offer to use this Service. You also agree to indemnify and hold Advertextmedia Associates, and its officers, directors, employees, subsidiaries, affiliates, agents, shareholders, suppliers, and service providers harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of any and all mobile content you submit, post, transmit, or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
10. CHOICE OF LAW AND FORUM
Interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the laws of the State of KY, without regard to its conflicts of law rules. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to this TOS or your use of the Service shall be filed only in the federal courts or state courts located in the county where Advertextmedia Associates maintains its headquarters in the State of KY, and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
11. ENTIRE AGREEMENT
This TOS constitutes the entire agreement between you and Advertextmedia Associates and governs your use of the Service, superseding any prior agreements between you and Advertextmedia Associates with respect to the Service. Except as expressly set forth in Section 1, the TOS may be modified only in writing signed by Advertextmedia Associates. If any provision of this Agreement shall be held invalid or unenforceable in whole or in part for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability of any of the remaining provisions of this Agreement. Any failure by Advertextmedia Associates to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. You acknowledge that the TOS and any modifications thereto constitute the complete agreement regarding this subject, and supersedes any prior oral or written communications relating to this subject. Report any violation of this TOS to:
Advertextmedia Associates
5209 Baywood Dr.
Louisville, KY 40241
(502)510-4969
sales@advertextmedia.net
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