OptSpot Service Agreement
OPTSPOT’S CUSTOMER AGREEMENT
TERMS AND CONDITIONS
THIS AGREEMENT is made by and between OptSpot, LLC (“OptSpot”) and Customer, and covers the terms and conditions of Customer’s use of OptSpot services. Customer agrees the Services that OptSpot provides to you are subject to this Agreement and its terms and conditions. This Agreement and its terms and conditions are collectively referred to hereinafter as the “Terms”) and are as follows:
- A. OWNERSHIP
OptSpot has licensed a proprietary web-based software package and databases that simply the process of sending and receiving wireless text messages (“SMS”) to and from cellular phones using shortcode technology. The implementation and maintenance of the foregoing are referred to as OptSpot “Services”.
- B. SERVICES PROVIDED
The Services to be provided by OptSpot shall include some or all of the following as determined and elected by Customer at its discretion:
- OptSpot grants to Customer a non-exclusive, nontransferable license to utilize the Services in connection with its businesses in accordance with, and subject to, the Terms of this Agreement. For the avoidance of doubt, Customer specifically understands and agrees that the Services shall remain the sole and exclusive property of OptSpot, and that same is not sold to Customer but is only licensed for the use of Customer. As used herein, a Customer is an entity who shall register and create an account via the Services that will allow Customer to receive and transmit SMS messages to Customer in accordance with other provisions hereof.
- OptSpot will provide an account management platform that will allow Customer to communicate with Customer’s clients by way of text messaging. Such services will also include tools that will allow Customer to communicate with and access data provided by Customer’s clients at all times.
- OptSpot will provide the ability to communicate with Customer’s clients by text messaging through National carriers, including two-way standard and premium campaigns (e.g., for contests or polls) and results reports as requested by Customer. The ability to communicate with Customer’s clients by way of multimedia messaging to mobile phones on enabled National carriers, including the transmission of ring-tones, wallpapers, images, audio, and video elements.
- OptSpot agrees to maintain at all times on secure servers, all information concerning each Customer’s client and the activities of all Customer’s clients (“Customer Property”) and agrees that all such information is and shall at all times be the sole property of Customer. OptSpot guarantees that Customer shall have 24/7 access to all databases concerning Customer Property with a minimum of 99.5% uptime, subject to applicable terms and conditions hereof. Customer understands that OptSpot is not responsible for ensuring that messages to Customer’s clients are received by such Customer’s clients, but only that such messages are appropriately sent by OptSpot to the applicable address provided by Customer.
- OptSpot will provide Customer with appropriate technical support to Customer during normal business hours of 9 AM to 6 PM MST time. OptSpot technical support will also be promptly available through email contact on a 24/7 basis in the event of a major software failure. OptSpot will work with Customer as it relates to a catastrophic failure, or to correct software failures or errors that prevent the software from functioning.
- C. PAYMENT
In consideration for providing the Services, Customer will pay OptSpot based on a separate pricing schedule agreed to by the Parties. Any fees not paid in full within 60 days of the date of invoice will incur a 10% late fee and may result in account deactivation. Any fees not paid in full within 90 days of the date of an invoice will incur a 15% late fee in addition to termination of the account. All past due fees shall also accrue interest at 10% or the maximum rate allowed by law, whichever is higher. The prevailing party in any dispute shall be entitled to recover its reasonable attorney, professional, and collection fees and costs. Checks returned for insufficient funds or any chargebacks initiated will incur a fee of $25 per incident.
- D. CONFIDENTIALITY
All information contained in or relating to this Agreement and pricing schedule is confidential information. Each party agrees that it will maintain the confidentiality of any proprietary information that it may obtain regarding the other by operation of this Agreement and will not, without the prior written consent of the other party, disclose any such confidential information to any person. Without limiting the generality of the foregoing, OptSpot shall maintain as part of the confidential Customer Property any and all information of or relating to Customer and any Customer’s clients, including but not limited to, all e-mail addresses, phone numbers, fax numbers, physical mailing addresses, instant message handles, mobile phone numbers, and pager list(s). Accordingly, without limiting the generality of the foregoing, OptSpot will not compile, buy, sell, rent, use or trade any Customer Property or other information concerning or relating to Customer or any Customer’s clients, or send unauthorized e-mails, instant messages, SMS, direct mail, voice messages, or faxes to any Customer’s clients. For further avoidance of doubt, OptSpot agrees that it will at no time use any of Customer’s client lists or information received from or in respect of Customer’s clients for any purpose other than those intended with the furnishing of the Services without Customer’s prior express written consent unless otherwise ordered by a Court.
- E. COPYRIGHT
OptSpot has advised Customer that the documentation provided on the OptSpot website and on the user interface contain materials that are protected by United States Copyright Law and trade secret law. All rights not granted to Customer hereunder are expressly reserved by OptSpot. Customer agrees that it shall not remove any proprietary notice of OptSpot from any documentation submitted to it by OptSpot. Customer is not authorized to use the source code derived from the object code provided in connection with the Services, nor the OptSpot company name, logos, or any related products, service names, design marks and slogans other than in connection with Customer’s use of the Services, including, without limitation, in advising third parties that OptSpot is the vendor being utilized by Customer.
- F. RESTRICTIONS
OptSpot maintains a Global Permanent Removal List which contains addresses and domains which it will not allow Customer to add to a database. Customer understands and agrees that OptSpot has full discretion to block the uploading of any mobile numbers which it has placed on such a list, and will not be liable for the blocking of any such numbers from any database.
- G. PROHIBITED OR UNLAWFUL USE
When using OptSpot’s Services, Customer is required to include opt-out information in each message that is sent using the Services. OptSpot shall honor all unsubscribe requests it receives.
Customer will not use or register the name OptSpot or any other trade name or trademark of OptSpot without the express, prior permission and Customer will not obstruct the identification procedures used by OptSpot in the Services.
Customer may not use OptSpot to:
- Send unsolicited SMS, or Multimedia (MSM) messages to anyone;
- Send unsolicited SMS or MMS messages to mobile numbers obtained from any purchase or harvested lists in which the recipient did not provide an express written request to receive Customer message;
- Send SMS or MMS messages that harass, embarrass, defame, abuse, threaten, are libelous or slanderous, or otherwise violate the legal rights of any individual, group, or organization;
- Send SMS or MMS messages that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by OptSpot;
- Send SMS or MMS messages that contain copyrighted material, including text, graphics, software or other material protected by intellectual property law, for which Customer does not have lawful authority to reproduce, publish, or otherwise distribute;
- Send SMS or MMS messages that contain a computer virus or other code or files that could damage harm, or otherwise disrupt the operations of anyone else’s computer or storage device, or violate the privacy or security of any individual, group or organization;
- Perform or promote illegal activities such as starting or forwarding chain letters, illegal contests or promotions, or any other activity that is illegal;
- Impersonate, use the name of without expressed permission, or;
- Violate any applicable governmental laws or regulations or perform any activity that would cause OptSpot to violate any law, statute or regulation.
Customer is fully responsible for the form and content of anything received and for Customer’s transmissions sent using the Services and agrees and acknowledges that Customer is the creator of all content sent, and that OptSpot is not the creator, author or publisher of any content and OptSpot does not review or participate in any manner with respect to Customer’s form and content or rent, sell or provide data or lists of any kind. OptSpot’s Services are a medium for Customer to send and receive information about Customer’s own choosing using the OptSpot Services.
OptSpot prohibits the use of the Services or its website (or any other web site) by any person or entity that encourages, promotes, provides, sells or offers to sell products or content relating to illegal or fraudulent activities (or services related to the same) including but not limited to: illegal drugs; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons; material that exploits children, encourages violence, spam, obscenity; and similar activities. This is not a complete list, and OptSpot, in its sole discretion, may determine whether Customer’s use is prohibited, and its determination shall be final, binding and irrefutable for all purposes under this Agreement. OptSpot will terminate Customer’s use of its Services if OptSpot determines such prohibited content or use is in violation of this Agreement. Any information stored on the OptSpot servers deemed to be unlawful or a violation of this Agreement or legal and regulatory requirements may be deleted at any time by OptSpot without notice. OptSpot reserves the right to remove any image or other information which violates this Agreement without notice to Customer. Furthermore, OptSpot does not assume liability for claims and causes of action concerning unsolicited text messages sent by Customer or others using your account, including, but not limited to, those claims and causes of action arising from the Telephone Consumer Protection Act of 1991, FCC Rules and Regulations, FTC regulations, Junk Fax Prevention Act of 2005.
OptSpot reserves the right at all times to disclose any information as OptSpot deems necessary or advisable to satisfy any applicable law, regulation, legal process (e.g. subpoena) or governmental request. OptSpot reserves the right but is not obligated to review the content of any of Customer’s information and messages for compliance with these terms and other legal requirements upon receipt of a complaint. OptSpot further reserves the right to take any other action with respect to the Services that OptSpot deems necessary or advisable in its sole discretion if OptSpot believes Customer or Customer’s information may create liability for OptSpot or others, compromise or disrupt the Services for Customer or others, or cause OptSpot to lose (in whole or in part) the services of OptSpot’s internet service providers (ISP) or other suppliers.
Customer agrees to defend, indemnify and hold OptSpot and its officers, employees and agents harmless from any and all direct, indirect or consequential claims, losses, damages, judgments, expenses and costs (including any attorney’s fees and expenses) arising out of Customer’s use of the Services, Customer’s violation of the terms of this Agreement, and the receipt and transmission of any of Customer’s messages and documents using the Services, or the infringement of any trademark or copyright by Customer.
- H. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
The Services are provided “as is” and there are no warranties, representations or conditions of any kind, express or implied, oral or written, arising by statute, common law, the operation of law, course of dealing, dealings of trade or otherwise with respect to any other product or services, documentation or service in connection with or provided here. OptSpot does not guarantee the continued availability of the Services or any assumed guarantee of state of sale, acceptable quality, permanence or appropriate application for a specific purpose. No information included in but not limited to marketing statements or materials will be considered a warranty or representation and should not be relied upon and does not obligate OptSpot.
OptSpot is not responsible in any way for actions, omissions, communications or difficulties outside of OptSpot’s control.
The aggregate or maximum liability of OptSpot, whether civil offense (including negligence, tort or other civil wrong), breach of contract, violation of law (including fundamental breach or failure of an essential purpose), misrepresentation or otherwise in respect of a single occurrence or a series of occurrences, shall in no circumstances exceed the amounts paid by Customer to OptSpot with respect to the Service provided in the claim. In no way shall OptSpot be liable for any damages caused to the Customer or any third party even if OptSpot has been advised of foreseeable possible damages.
- I. UNSOLICITED MARKETING
The receipt and transmission of text messages are regulated in the United States under the Federal Telephone Consumer Protection Act and the Junk Fax Prevision Act. Any violation, including unsolicited marketing in violation of such laws, through the use of Services, is prohibited and a violation of this Agreement.
- J. THIRD PARTY RIGHTS
This Agreement has been made solely for the benefit of OptSpot and the Customer, and their particular successors and allowed assigns. Nothing in this Agreement is intended to bestow any rights/remedies under or by reason of this Agreement on any third party.
- K. GOVERNING LAW AND JURISDICTION
Customer agrees to submit to mandatory binding arbitration for any and all claims arising out of or related to this Agreement with OptSpot. Further, to the fullest extent permitted by law, Customer and OptSpot agree that no class or collective actions can be asserted in arbitration or otherwise. All claims, whether in arbitration or otherwise, must be brought solely in Customer’s or OptSpot’s individual capacity, and not as a plaintiff or class member in any purported class or collective proceeding. Subject to the above proviso, the parties hereby waive any rights they may have to trial by jury in regard to arbitrable claims. The parties further waive any rights they may have to pursue or participate in a class or collective action pertaining to any arbitrable claims between Customer and OptSpot. The parties further agree that arbitration shall be conducted in Chandler, Arizona through the American Arbitration Association before a single neutral arbitrator.
If the above arbitration proviso is found to be unlawful, Customer agrees that the Terms shall be governed and construed in accordance with the laws of the State of Arizona and Customer hereby consents to the jurisdiction of such State and agrees that all disputes shall be tried in Arizona. Customer expressly waives any rights and agrees not to have any dispute under the Terms tried by a jury, except where required by law. Customer also agrees to personal jurisdiction and venue in such courts and expressly agrees not to contest jurisdiction, venue or authority of such courts.
In the event of any dispute between the parties concerning the terms and provisions of this Agreement, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorney’s fees.
- L. TERM AND TERMINATION
This Agreement shall continue indefinitely. Termination of this Agreement requires Customer to provide OptSpot with thirty (30) days written notice via e-mail to email@example.com. OptSpot may terminate this Agreement with Customer at any time and for any reason upon providing written notice to Customer.
- M. SEVERABILITY
If any provision or portion of the Terms contained in this Agreement shall be held invalid under any relevant laws, such invalidity shall not affect any other provision of this Agreement.
- N. MISCELLANEOUS
This Agreement constitutes the sole Agreement between Customer and OptSpot, and no representations, statements or inducements, oral or written, not contained in this Agreement shall bind either party. No waiver of any right under this Agreement by OptSpot will be deemed to be either a waiver of any other right or provision or a waiver of the same right or provision at any other time. OptSpot reserves the right to assign, transfer or delegate any rights and/or obligations hereunder, in part or in whole, without your prior consent. Customer may not assign, transfer or delegate your rights or obligations stated here, in whole or in part, without OptSpot’s prior written consent. This Agreement shall be binding upon each party to this Agreement and to their respective successors and permitted assigns.
OptSpot is and shall remain an independent contractor with respect to Customer. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and the parties do not have any authority of any kind to bind the other party in any respect whatsoever.
This Agreement constitutes the entire agreement and understanding between the parties to this Agreement and supersedes all prior and contemporaneous negotiations and understandings between the parties whether oral or written, expressed or implied.