505 TEXT MESSAGE MARKETING SERVICE AGREEMENT
THIS TEXT MESSAGE SERVICE AGREEMENT (hereinafter referred to as the “Agreement”) is between 505 Marketing (hereinafter referred to as “Company”), with an address of: P.O. Box 73, Landisville, Pennsylvania 17538, and you as the subscriber (hereinafter referred to as “Customer”).
W I T N E S S E T H:
WHEREAS, 505 Marketing. provides 505Text opt-in based text message advertising service (“Service”). Customers opt-in to the service by sending a text message with a customer specific 3-8 character long keyword to short code provided by 505 Marketing.
WHEREAS, a chosen keyword(s) will be assigned to the Customer if available. If the requested keyword(s) are not available a representative from 505 Marketing will contact you to assist in selecting a keyword.
WHEREAS, an automatic confirmation message is sent to new clients when they opt-in to Service. This message will be developed by the Company and the Customer.
WHEREAS, this Agreement sets forth the Standard Terms and Conditions that apply to the use of the 505 Marketing’s Text Messaging Marketing Services.
ARTICLE 1: USER ELIGIBILITY
1.01 You represent and warrant that you are the person legally responsible for all use of this account, and are at least 18 years of age. You agree to provide 505 Marketing with your full legal name or legal business name, postal address and telephone number for our records, and you have a continued obligation to keep this information current. You also agree that you are an authorized user of any credit card or check that you supply to us, and you understand and agree that we have an obligation to fully investigate any possible fraudulent online check or credit card use.
ARTICLE 2: CONTENTS OF MESSAGES
2.01 You are responsible for the contents of your text messages and the consequences thereof. You further agree not to use 505Text to send any text messages that are not based in customer opt-in or material that are unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or may otherwise constitute a criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, regulation or court order. 505 Marketing reserves the right to terminate your account without prior notice if 505 Marketing becomes aware of and determines, in its sole discretion, that you are violating any of the foregoing guidelines.
ARTICLE 3: UNLAWFUL OR PROHIBITED USE
3.01 As a condition of your use of the 505Text Service you warrant to 505 Marketing that you will not use the 505Text Service for any unlawful purpose.
ARTICLE 4: SERVICE PLAN AND PRICING
4.01 Your Service Package selected will include a predetermined number of sent text message per month. The service fee for the Service Package is payable in advance in one-month, three-month, six-month or twleve-month intervals, based on the frequency of the plan selected.. A one time set up fee may apply. Additional text messages over and above the number included are purchased separately by Customer at a cost of no more than $.10 each and will vary based upon Service Package selected. Service Packages may be upgraded at any time during the agreement term listed in ARTICLE 5.
ARTICLE 5: TERM
5.01 The initial term of this Agreement varies and is based upon on the service package selected. This Agreement will automatically renew in increments of one-month, three months, six months or twelve months based upon the service package selected unless cancelled 30 days prior the end of the current term.
ARTICLE 6: TERMS OF PAYMENT
6.01 You agree to pay 505 Marketing the appropriate payment for the services received from 505 Marketing, 3 months in advance for the time period during which such services are provided. You agree to provide 505 Marketing with current billing and contact information and authorize 505 Marketing to bill all account and related charges to the credit card or online checking information on file.
(A) Cancellation. You further agree that until and unless you notify 505 Marketing in writing only, with delivery confirmation, of your desire to cancel any or all services received, and you complete the cancellation process, those services will be paid in full at the time of cancellation. You agree that prepayments will be billed and charged automatically, that 505 Marketing may apply the amount due to the provided card at any time, and will issue absolutely no refunds.
6.02 Pay by Credit Card. If your credit card is denied for any reason on the first attempt, we will automatically attempt to resubmit your card on or around the 7th, 14th, 25th and last day of the month. A credit card resubmission fee of $10.00 will be charged against the account for every time we attempt resubmission. Should the card be denied a second time, we may terminate the account, and the resubmission fees will need to be paid before the account can be reactivated. All files within the account may be deleted on termination. You may notify us in advance of your next billing cycle your desire to provide for alternative payment arrangements.
6.03 Pay by Check. If paying by check and payment is late, an administrative fee of $10.00 per instance will be applied on the 7th, 14th, 25th and the last day of the month after the payment falls due. There is a $35.00 fee for a dishonored check. If after the first month, should payment continue to be late, 505 Marketing may choose to terminate the account at any time and has the right to collect all accumulated fees. 505 Marketing reserves the right to change prices at any time. It is the responsibility of the customer to maintain accurate billing information with 505 Marketing This may include updated credit card information, email address and mailing address.
ARTICLE 7: ZERO TOLERANCE SPAM POLICY
7.01 505 Marketing. takes a zero tolerance stance against sending of unsolicited text messages, commonly known as spam. Any user who sends out spam will have their account terminated without notice, and will be billed at a rate of $100.00 for each recipient to whom the message was sent, regardless of whether the messages were sent from our server, or from another server advertising our short code. All commercial text messages must comply with all applicable federal, state or local laws. 505 Marketing reserves the right to require changes or disable as necessary any website, account, database, or other component that does not comply with this policy, at its sole discretion. 505 Marketing also reserves the right to make any such modifications in an emergency at our sole discretion.
(A) 505 Marketing will not be liable for any damages incurred related to spam.
(B) In the event of litigation, it is the responsibility of each party to bear its own attorneys’ fees and costs throughout the entire process of any proceeding in accordance with Article 17.
ARTICLE 8: MONITORING OF SERVICE
8.01 You agree that 505 Marketing has the right to monitor the service electronically at any time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. 505 Marketing reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement. 505 Marketing also reserves the right to refuse refunds in cases where 505 Marketing believes abuse has taken place. 505 Marketing reserves the right to monitor any and all communications through or with our facilities. You agree that 505 Marketing is not considered a “secure communications medium” for the purposes of the ECPA, and that no expectation of privacy is afforded in the event that such service is monitored and/or disclosed.
ARTICLE 9: SHARING OF ACCOUNT SPACE & RESALE RESTRICTIONS
9.01 You represent and warrant that the account you purchase is purchased either for yourself or on behalf of a client and agree that you are the individual solely responsible for all use of the account. You also understand that 505Text short code is shared with several clients.
ARTICLE 10: REFUND POLICY
10.01 All payments are mutually agreed to be non-refundable.
ARTICLE 11: TERMINATION
11.01 505 Marketing may terminate this agreement and your access to any or all 505 Marketing related services at any time, with or without cause, with a 30-day notice. 505 Marketing shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Anyone determined by 505 Marketing to have violated these Terms of Service may be barred from receiving any services from 505 Marketing without refund, as agreed in Article 10. Any outstanding amount due on the account will still be payable as scheduled.
(A) You may terminate this Agreement by e-mailing the support department at 505 Marketing, who will then provide you with a form that must be completed and returned before your account can be cancelled.
(B) If you should choose to terminate your account before the end of the commitment period, you accept that you will be required to pay the plan setup fee and the value of the services until the end of the ongoing term in accordance with the equivalent rates.
ARTICLE 12: RELATIONSHIP OF THE PARTIES
12.01 Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever.
ARTICLE 13: DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
13.01 THE 505 MARKETING 505TEXT SERVICE PROVIDED IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 505 MARKETING EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE 505 MARKETING 505TEXT SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY 505 MARKETING., ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
13.02 UNDER NO CIRCUMSTANCES WILL 505 MARKETING, OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE 505 MARKETING 505TEXT SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE 505 MARKETING 505TEXT SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO 505 MARKETING RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT 505 MARKETING IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL SERVICES AVAILABLE FROM 505 MARKETINGAND ITS AFFILIATES.
13.03 UNDER NO CIRCUMSTANCES, UNDER THE TERMS OF THIS AGREEMENT, SHALL DAMAGES INCLUDE LOSS OF BUSINESS, OR LOSS OF PROFITS, WHETHER BASED ON BREACH OF AGREEMENT, BREACH OF WARRANTY, PRODUCT LIABILITY, OR OTHERWISE, TO ANY PARTY IN PRIVY TO THIS AGREEMENT, OR ANY THIRD PARTY NOT SO SITUATED.
13.04 THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.
ARTICLE 14: COPYRIGHT AND TRADEMARKS
14.01 All contents of the 505 Marketing and 505Text are proprietary to 505 Marketing, and/or its suppliers and are protected under Copyright. All rights are reserved. 505 Marketing reserves any rights not expressly granted herein. The Customer acknowledges that he/she/it does not presently know the special skills, techniques or business policies, nor does the Customer have business forms or access to the Company’s body of knowledge, and as such, such information is deemed confidential and a trade secret, as such term is defined within the meaning of Pennsylvania Statutes § 688.02 inter alia, entitling Company to all protections available under both Pennsylvania and Federal law.
ARTICLE 15: FORCE MAJEURE
15.01 If by reason of failures of telecommunications or internet service providers, labor disputes, riots, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions or other causes beyond the control of 505 Marketing, 505 Marketing is unable to perform in whole or in part its obligations as set forth in this Agreement, then 505 Marketing shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make 505 Marketing liable to the Customer or other third parties.
ARTICLE 16: GOVERNING LAW
16.01 Pennsylvania law shall govern this Agreement, and any dispute arising from the relationship between the parties to this Agreement, excluding any laws that direct the application of another jurisdiction’s laws. In any litigation, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both), or seeks a declaration of any rights or obligations under this Agreement, each party shall be responsible for their respective attorneys’ fees and costs, as stated in Article 17. The parties consent to the exclusive jurisdiction and venue of the courts of the State of Pennsylvania or to any Federal Court located within the State of Pennsylvania.
ARTICLE 17: ATTORNEYS’ FEES AND COSTS
17.01 Any legal controversy or legal claim arising out of or relating to this Agreement or our services, which results in litigation, shall result in each party being solely responsible for its respective attorneys’ fees and costs throughout the entire process of any and all proceedings.
ARTICLE 18: SEVERABILITY AND SURVIVABILITY
18.01 Severability. If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
18.02 Survivability. The terms of this Agreement apply to those obligations that survive any cancellation, termination, or rescission, namely – warranty, indemnification, liability and limits thereon, rights and obligations upon and following termination and assignment.
ARTICLE 19: INDEMNIFICATION
19.01 You agree to defend, indemnify and hold harmless 505 Marketing against any and all claims, losses, penalties, causes of action, damages, liability, costs, expenses (including but not limited to attorneys’ fees and costs) or claims caused by or resulting indirectly from your use of the service, without limitation or exception, including your violation of any third-party’s rights, (including, without limitation, infringement of any copy right trademark, service mark, trade secrets, right of privacy or publicity or any other third party right). The terms of this section shall survive the termination of your relationship with 505 Marketing
ARTICLE 20: REMEDY
20.01 Customer agrees that his/her/its sole and exclusive remedy to any issues relating to the 505 Marketing 505Text Service is to discontinue using the Service.
ARTICLE 21: ASSIGNMENT
21.01 In the event of a merger or consolidation of 505 Marketing, the surviving or new corporation and any subsidiaries are similarly subject to the rights and obligations of this Agreement.
ARTICLE 22: ENTIRE AGREEMENT
22.01 This Agreement constitutes the complete and exclusive statement of the Agreement between the parties regarding the products and services provided hereunder, and supercedes any prior Agreements between the parties with respect thereto.
ARTICLE 23: WAIVER
23.01 The failure of 505 Marketing to enforce a provision of this Agreement shall not be construed as a waiver or limitation of 505 Marketing’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
ARTICLE 24: MODIFICATION OF TERMS
24.01 505 Marketing reserves the right to modify this policy at any time and without advance notice, effective upon making the modified provisions available on the 505 Marketing 505Text.com Website. You are responsible for regularly reviewing these documents. Continued use of the 505 Marketing Services after any such changes shall constitute your consent to such changes. 505 Marketing does not and will not assume any obligation to notify you of any changes to the Terms of Service.
IN WITNESS WHEREOF, you certify by using the services provided by 505 Marketing know as 505 Text Message Marketing, that you agree and accept all terms set forth in this agreement.
