TERMS OF SERVICE

1. SERVICES

The TextLegal LLC d/b/a TextBrand services consist of keyword short code SMS forwarding services (the “Services”). The Services allow you to purchase on a “first come, first served” basis, the exclusive right to use certain keyword(s) and short code(s), as approved by the Company, which relate to a SMS short code that allows text messages to be forwarded to you in a limited geographic area as specified by the Company. We will try to ensure uninterrupted and continued use of our services; however, this is largely dependent on the effective functioning of network service providers’ infrastructure, network coverage and the recipients’ mobile handset. You agree that we are only a conduit and take no responsibility for what is sent or where it goes. To deliver your messages, they are transmitted through a system of mobile networks or aggregators. We cannot guarantee (i) uninterrupted and continued use of our Services because we do not control the mobile networks or aggregators that transmit your messages; or (ii) that the Services will work with all carriers and all mobile phones. Your messages are considered delivered once the message has been transmitted from our system to our network or service provider.

2. YOUR ACCOUNT(S)

You are solely responsible for all use (whether or not authorized) of the Services under your customer account(s) and any subaccount(s), including the quality and integrity of your Customer Data (as defined below). You are also solely responsible for all acts and omissions of anyone who has access to or otherwise uses your customer account. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for or any other user of your account to connect to, access, and use the Services.

3. DATA PRIVACY

“Customer Data” consists of data and other information made available to us by or for you through the Services under these Terms.

A. The terms of our Privacy Policy, found at https://textlegal.net/privacy-policy, are made part hereof and shall apply when personal data is being processed pursuant to the Agreement. Additionally, personal data may be disclosed in accordance with our Privacy Policy. You acknowledge that you have read our Privacy Policy and understand that it is how we will collect, store, use and disclose your Customer Data including personal data. If you do not agree with our Privacy Policy, then you must stop using the Services immediately.

B. You grant us the right to use and disclose Customer Data as necessary to (a) provide the Services under the Agreement including and this Section, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Services; and (b) respond to any technical problems or your queries and ensure the proper working of the Services. You acknowledge, that email and SMS are an insecure medium that is generally not encrypted in transit and security of information transmitted through the internet can never be guaranteed and, accordingly, we are not responsible for any interception or interruption of any communications through the internet or for changes to or loss of Customer Data in connection with the Services.

4. TRADEMARKS

The Company name, the terms “TextLegal” and “TextBrand”, the TextLegal and TextBrand logos, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on the Application are the trademarks of their respective owners.

5. CUSTOMER RESPONSIBILITIES, RESTRICTIONS, AND REQUIREMENTS

You should know that you have a number of responsibilities you must carry out and there are some restrictions on what you can do with them and requirements that you must follow if you use the Services.

A. Your Responsibilities. You will: (a) be solely responsible for all use (whether or not authorized) of the Services under your account, including for the quality and integrity of Customer Data; (b) use the Services only in accordance with the Agreement and these Terms, or other applicable terms relating to the use of the Services, and all applicable laws, statues, regulations and ethical rules; (c) be solely responsible for all acts, omissions and activities of your account, including compliance with the Agreement, and any other terms of sales of the Services; (d) do your best to prevent unauthorized access to or use of the Services and notify us promptly of any such unauthorized access or use; (e) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers, and (f) comply with any representations and warranties made under the Agreement.

B. Services Usage Restrictions. You agree that your use of the Services will comply with the terms of Prohibited Use under the Terms of Use, found at https://textbrand.com/terms-of-use, made part hereof.

6. AFFILIATES

Affiliates means any entity or person that controls a party, is controlled by the party, or under common control with the party, such as a subsidiary, parent company, or employee. The term “control” means more than 50% ownership. Your affiliates are not permitted to purchase Services using the Terms of Service that you have accepted. Instead, your affiliates will need to accept the Terms themselves. If your affiliates use the Services under these Terms, then you and those affiliates will be jointly and severally responsible for the acts and omissions of your affiliates, including but not limited to, their breach of these Terms. Any claim from any of your affiliates that use the Services pursuant to these Terms may only be brought against us by you on your affiliate’s behalf.

7. FEES AND TAXES

A. Fees. You agree to pay fees generated under your account(s) in accordance with the rates set forth in the Purchase Order. Additionally, we will charge you if you use our Services in violation of the Agreement and you shall pay any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider or otherwise, as a result of your use of Services.

B. Taxes. Unless otherwise stated in an Order Form, you shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of this Agreement. “Taxes” mean all applicable federal, state and local taxes, fees, charges, telecommunication provider (e.g., carrier) surcharges or other similar exactions, including, without limitation, sales and use taxes, communications service taxes, utility user’s taxes or fees, excise taxes, VAT, GST, other license or business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes. Taxes do not include any Taxes that are imposed on or measured by our net income, property tax, or payroll taxes. If you are exempt from any such Taxes for any reason, we will exempt you from such Taxes on a going-forward basis once you deliver a fully executed and dated valid exemption certificate to our tax department and our tax department has approved such exemption certificate. Such exemptions should be sent directly to 2 Prudential Plaza, 180 N. Stetson Avenue, Suite 1300, Chicago, Illinois 60601. If for any reason a taxing jurisdiction determines that you are not exempt from any such exempted Taxes and then assesses use such Taxes, you agree to promptly pay to us such Taxes, plus any applicable interest or penalties assessed.

Should you be required by applicable law to withhold any tax from any payment owed to us, then you may provide us with an exemption certificate or similar document to reduce or eliminate any such withholding. Upon receipt of such certificate or document, you shall thereafter reduce or eliminate, as the case may be, such withholding. You shall provide us with documents evidencing your payment of any such withheld Tax to applicable tax authorities.

C. Fee Disputes. If you are disputing any fees or Taxes, you must act reasonably and in good faith and you must cooperate diligently with us to resolve the dispute. You must notify us in writing if you dispute any portion of any fees paid or payable by you pursuant to these Terms. You must provide that written notice to us within 60 days of the date we bill you for the charge you want to dispute, and we will work together with you to resolve the dispute promptly.

8. OWNERSHIP

You agree that we exclusively own and reserve all right, title and interest in and to the Services as listed under the Intellectual Property Rights and Trademarks defined in our Terms of Use made part hereof.

9. CONFIDENTIALITY

A. Confidential Information. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential information does not include any information which: (i) publicly available through no fault of the receiving party; (ii) was properly known by the receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (iv) is independently developed by the receiving party without use or reference to the Confidential Information of the disclosing party.

B. Use and Disclosure. The receiving party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of the kind (but not less than reasonable care) to (i) not use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the disclosing party in writing, limit access to the Confidential Information of the disclosing party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are legally bound to keep such information confidential consistent with the terms of this section. The Company may disclose the terms of any order or other purchase of Services to its affiliates, legal counsel and accountants without your prior written consent, and the Company will remain responsible for its affiliate’s, legal counsel’s or accountant’s compliance with this section. Notwithstanding the foregoing, (x) the Company may disclose the terms of this Agreement and any applicable purchase transaction to a subcontractor to the extent necessary to perform our obligations under this Agreement; and (y) the Company may use and disclose your Confidential Information as necessary to provide the Services, and in each case of (x) and (y) under terms of confidentiality materiality as protective as set forth herein.

C. Compelled Disclosure. The Company may disclose your Confidential Information if so required pursuant to a regulation, law or court order. We will give you notice of the compelled disclosure (to the extent legally permitted). You will reimburse us for our reasonable legal fees for preparation of witnesses, deposition and testimony to the extent such compelled disclosure is in connection with a lawsuit or legal proceeding to which you are a party or to the extent that fees are incurred in connection with reasonable assistance we provide to you in connection with your efforts to contest disclosure.

D. Injunctive Relief. The Company and you expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 10 and that, in the event of an actual or threatened breach of the provisions of this Section 10, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

10. REPRESENTATIONS AND WARRANTIES

A. Provision of the Services. The Company represents and warrants that the Services will comply with laws applicable to the Company’s provision of the Services to its customers generally (i.e. without regard for Customer’s particular use of the Services), and subject to the Customer’s use of the Services in accordance with the Agreement.

B. Use of the Services. You represent and warrant that you will use the Services in accordance with all applicable laws, statues, regulations and ethical rules, including without limitation, the Telephone Consumer Protection Act. You further represent and warrant that the subscribers of the phone numbers to which you initiate messages through the Services have consented or otherwise opted-in to the receipt of your messages as required by any applicable law or regulation.

C. Customer Data. You represent and warrant that you have provided (and will continue to provide) adequate notices and have obtained (and will continue to maintain) adequate notices and have obtained (and will continue to obtain) the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to our use of Customer Data.

11. DISCLAIMER OF WARRANTIES

A. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY EXPRESSLY DISCLAIMS 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 NON-INFRINGEMENT.

B. THE COMPANY WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICE, HOWEVER, THE COMPANY IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICE. THE COMPANY DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND, (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.

12. TERM; TERMINATION; SUSPENSION

A. Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated as outlined below.

B. Termination. Either party may terminate these Terms and close your customer account(s) for any reason upon 30 days written notice to the other party. The Company, at its sole discretion, may terminate these Terms and close your customer account(s) in the event you commit any material breach of these Terms and fail to remedy that breach within 5 days after the Company provides written notice of that breach to you. You may also terminate these Terms in the event we commit a material breach of these Terms and fail to remedy that breach within 5 days after providing written notice of that breach to us. Upon termination: (i) all rights granted to you under this Agreement will also terminate; and (ii) you must cease all use of the Services. Termination will not limit any of Company’s rights or remedies at law or in equity.

C. Suspension of Services. In addition to suspension of Services for non-payment of fees, we may also suspend the Services immediately upon notice for cause if (i) you violate (or give us reason to believe you have violated) any provision of these Terms, our Terms of Use, or our Privacy Policy; (ii) there is reason to believe that the traffic created from your use of the Services or your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (iii) we determine, in our sole discretion, that providing the Services is prohibited by applicable law or ethical rules, or it has become impracticable or unfeasible for any legal or regulatory reason to provide the Services; (iv) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change in control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding, or (v) there is any use of the Services by Customer that in our judgment threatens the security, integrity or availability of the Services. However, the Company will use commercially reasonable efforts under the circumstances to (a) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension; (b) where practicable, limit the suspension based on the circumstances leading to the suspension (e.g., to certain phone numbers, sub-accounts or other subset of traffic); and (c) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.

13. LIMITATION ON LIABILITY

IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE TO ANY ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES EVEN IF THE COMPANY IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR DIRECT DAMAGES EXCEED THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR THE APPLICABLE SERVICE IN THE LAST THREE (3) MONTHS OUT OF WHICH LIABILITY AROSE.

14. INDEMNIFICATION

You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorney’s fees) arising out of or relating to your violation of these Terms of Service.

15. SURVIVAL

Upon termination of these Terms, or the Agreement, your payment obligations and the terms of the following Sections will survive: Section 7, Fees and Taxes; Section 8, Ownership; Section 9, Confidentiality; Section 11, Disclaimer of Warranties; Section 13, Limitation on Liability; Section 14, Indemnification; Section 15, Survival; Section 18, Governing Law and Jurisdiction; Section 19, Arbitration; Section 20, 20. Class Action Waiver / No Joinder of Plaintifs; Section 21, Limitation on Time to File Claims; Section 25, Waiver and Severability; and Section 26, Entire Agreement.

16. ASSIGNMENT

You will not assign or otherwise transfer these Terms, in whole or in part, without prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be void. The Company may assign these terms in whole or in part without consent.

17. RESALE OF SERVICE

You agree not to reproduce, duplicate, copy, sell as a finished service to third party, or otherwise exploit any portion of the Service, use of the Service, or access to the Service without the express permission of the Company.

18. GOVERNING LAW AND JURISDICTION

All matters relating to the Services and these Terms, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction).

Any legal suit, action, or proceeding arising out of, or related to, these Terms or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois, in each case located in the County of Cook. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

19. ARBITRATION

At Company’s sole discretion, it may require you to submit any disputes arising from these Terms or use of the Services including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) applying Illinois law. Any such arbitration shall take place before a panel of three neutral arbitrators selected in accordance with the procedures of the AAA. The arbitration proceeding shall be conducted in Chicago, Illinois. Judgment upon any award made in such an arbitration may be entered and enforced in any court of competent jurisdiction.

20. CLASS ACTION WAIVER / NO JOINDER OF PLAINTIFFS

To the fullest extent permitted by law, you and the Company agree that any claims or controversies between the Parties must be brought against each other only on an individual basis. Neither you nor the Company may bring a claim as a plaintif or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person or entity’s claims into a single case and cannot preside over any class, consolidated, or representative proceeding (unless the Parties explicitly agree otherwise). Moreover, the arbitrator’s decision or award in one person or entity’s case can only impact the person or entity that brought the claim, not other customers of the Company; it cannot be used to decide other disputes with customers.

21. LIMITATION ON TIME TO FILE CLAIMS

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

22. FORCE MAJEURE

Excluding payment obligations, neither party will liable for default or delay of obligations under the terms outlined in this document if any such default or delay results from conditions beyond the reasonable control of either party. Such conditions include, but are not limited to, earthquakes, flood, fire, accident, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes.

23. NOTICES

Any notice required or permitted to be given hereunder will be given in writing to the party at the address specified in the Agreement by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer in its account. Notices to the Company shall be copied to support@textlegal.net.

24. RELATIONSHIP

The Company and you are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms or otherwise, unless expressly provided in writing, is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for its respective employees and agents and respective labor costs and expenses arising in connection with the party’s respective employees and agents. Each party will also be solely responsible for any and all claims, liabilities or damages, debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither the Company nor you has the authority to commit the other in any way and will not attempt to do so or imply it has the right to do so.

25. WAIVER AND SEVERABILITY

No waiver by the Company of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and efect.

26. ENTIRE AGREEMENT

These Terms, our Terms of Use, and our Privacy Policy constitute the sole and entire agreement between you and TEXTLEGAL, LLC regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.