Trial Account Terms and Conditions
TEXTKEY TRIAL LICENSE AGREEMENT
EFFECTIVE: JUNE 20, 2014
IMPORTANT NOTICE: THE TERMS OF THIS LICENSE AGREEMENT DESCRIBED BELOW CREATE A BINDING AGREEMENT BETWEEN TEXTPOWER, INC. AND YOU.
BEFORE USING TEXTPOWER.COM AND ANY LINKED PAGES (THE “SITE”) OR THE SERVICES (AS DEFINED BELOW IN SECTION 2), PLEASE READ THIS LICENSE AGREEMENT CAREFULLY, AS THEY DESCRIBE YOUR LEGAL RIGHTS AND OBLIGATIONS WHEN YOU USE THE SITE AND THE SERVICES, AND EVEN AFTER THIS CONTRACTUAL AGREEMENT HAS BEEN TERMINATED.
1. ACCEPTANCE OF TERMS
By registering for an account, and each time that you use any portion of the Services, you agree to comply with the terms and conditions set forth in this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT REGISTER FOR AN ACCOUNT OR USE ANY PORTION OF THE SERVICES. Acceptance of the License Agreement creates a binding legal contract between you and the Company. If you are an authorized party acting on behalf of your employer (a "Principal"), then this Agreement is binding on such Principal. If you are using the Site and/or the Services on behalf of a Principal, then (a) you represent and warrant that you have the authority to bind, and have bound, such Principal to this Agreement, and (b) you agree to be jointly and severally liable for any breach of this Agreement by Principal.
TextPower reserves the right to change, add, or delete portions of the Agreement at any time and without further notice. Any such changes will become effective immediately once posted to the Site, and your continued use of the Services after any changes have been made constitutes your acceptance of such changes. It is your responsibility to review this Agreement on a regular basis to determine if there have been any changes, which will be indicated by a revision to the effective date posted on the applicable webpage. Nonetheless, in the event that any portion of this Agreement is updated, TextPower has the right, but not the obligation, to notify you of such update via an electronic communication to the e-mail address you registered when you created an account and/or a notice posted to the Site.
The Services are intended solely for users who are 18 years of age or older. If you are under the age of 18, you are not permitted to use the Site, the Services or any portion thereof. By creating an account and/or using the Services you represent to us that you are at least 18 years old.
2. TEXTKEY SERVICES
TextPower provides you with a limited, non-exclusive, non-sublicenseable, non-transferable right to access its proprietary cloud-based authentication software (“Software”), which allows you to verify the credentials of your website’s users (each an “Individual User”) by requiring those users to send a unique code to the Company’s proprietary database. Once our database verifies the unique identification embedded in a phone pre-registered by you, the Individual User is granted access to your website. Collectively, the foregoing shall be referred to herein as the “Services”.
You may access the Services (i) on a limited basis (as described further herein) free of charge for a Trial Period of up to sixty (60) days from the date of this License Agreement provided, however, that, in either case, you will be required to register for an account as described in Section 3 below. For the avoidance of doubt, access to the Services, and use of the Software, is licensed and not sold, and accordingly, TextPower retains all rights, title, and interest in and to the Services, including the intellectual property and Software contained therein.
A. Terms Applicable to Trial Subscribers
Trial Subscribers may register up to fifty (50) mobile phone numbers (the “Trial Subscriber Threshold”). For Trial Subscribers, access to the Service begins upon your completion and TextPower’s approval, in its sole discretion, of your Registered Account (as defined below).
A Trial Subscriber’s access to the Services shall automatically terminate in sixty (60) days from the date of this Agreement. With respect to Trial Subscribers, either party may terminate this Agreement for any reason, and at any time, in their sole discretion. Each Trial Subscriber may terminate this Agreement by closing its Registered Account, in which case the termination shall become effective immediately. TextPower may terminate a Trial Subscriber’s Registered Account solely by providing written notice (e-mail suffices) to the Trial Subscriber and closing such Trial Subscriber’s account, in which case, the termination shall become effective, and the Trial Subscriber’s access to the Services and right to use the Software shall cease immediately upon the Trial Subscriber’s receipt of such notice or account closure.
B. Technical Support; Maintenance.
Excluding periods of Unscheduled Downtime and Scheduled Downtime (each defined below), technical errors, or acts beyond the Company’s reasonable control (each a force majeure event), the Company shall use commercially reasonable efforts to ensure that the Site, Software, and Services shall be available twenty-four (24) hours per day and seven (7) days per week. To the extent that you need assistance with technical errors or issues with the Site, Software, or the Services, including, but not limited to, an inability to access the Site, Software, or Services (“Technical Support”), you may contact TextPower via phone at 818-222-8600 or via e-mail at email@example.com. Technical Support will be available to Trial Subscribers during normal business hours (9:00a.m. to 5:00p.m. PST). The response and resolution times will depend on, among other things, when the Company receives notice of a need for Technical Support and the severity of the technical issue.
On occasion, we may schedule times during which the Site, Software, and/or Services will be unavailable for a defined period of time (“Scheduled Downtime”). The Company will attempt to provide you with forty-eight (48) hours advanced written notice of such Scheduled Downtime to the e-mail account provided as part of your Registration Data (defined below). In addition to Scheduled Downtime, the Company may suffer technical difficulties affecting the Site, Services and/or the Software, in which case, the Company will not be able to provide advance notice (“Unscheduled Downtime”). You are solely responsible for making alternate arrangements during periods of Scheduled Downtime, Unscheduled Downtime, or unavailability due to a force majeure event or otherwise. In each case of Scheduled Downtime or Unscheduled Downtime it shall be your responsibility to notify your Individual Users of the date and time. The Company is not responsible for any access related damages caused by your inability to access the Site, Services or Software during Scheduled or Unscheduled Downtime.
From time to time, we may, in our sole discretion, alter, update, or enhance the Site, Software and/or Services. In the event that we make any change to the foregoing requires updated Software in order to access the Services, we will deliver the updated Software to you as soon as practicable.
D. Effect of Termination.
Upon the termination of a Trial Subscriber Registered Account, such user’s access to the Services, along with any other rights granted to such user herein, shall immediately cease. Nonetheless, Sections 2 and 6 through 14 shall survive termination of this Agreement. To the extent your termination is due to a violation of the terms contained herein, or of either state or federal laws, TextPower hereby reserves the right to pursue claims against you either in law or equity.
3. ACCOUNT REGISTRATION & RESPONSIBILITIES
The Services, and certain areas of the Site, are only available to users who create, and are approved for, an account with the Company (“Registered Users”). When you create an account through the Site, you may be required provide us with certain information, including, without limitation, (i) your and/or your company’s name, physical address, and e-mail address; (ii) the names and corresponding mobile phone numbers to be associated with your account (each an “Individual User”); and (iii) a username and password chosen by you (collectively, the “Registration Data”). Approval or denial of a Registered Account shall be in the Company’s sole discretion. Approval of your account, and your right to access the Services, shall be effective on the date the Company delivers the Software necessary to access the Services to you, either via a plug-in or through an Application Program Interface (“API”).
As indicated in Section 4 below, we do not store all of your Registration Data on our database. By creating an account and submitting the Registration Data, you authorize TextPower to provide all of the necessary aspects of the Registration Data to its third party service providers in connection with your use of the Services. By submitting the Registration Data to us, you certify that each Individual User has consented to the collection and transmission of such personally identifiable information in the manner described in this Agreement.
You, at all times, are responsible for (i) updating the Registration Data to, including, without limiting the generality of the foregoing, adding or removing Individual Users; (ii) maintaining the confidentiality of the Registration Data; and (iii) complying, and ensuring that each Individual User complies, with the provisions contained herein. Furthermore, you hereby accept responsibility for all activities, charges, and damages that occur in connection with the use of your account. If you have reason to believe that someone is using your account without your permission, you should contact us immediately at firstname.lastname@example.org. We will not be responsible for any loss or damage resulting from your failure to notify us of Unauthorized Use (defined below). To report Unauthorized Use of your account, please contact us at email@example.com.
As a condition of your use of the Services, you hereby agree not to use the Site or Services for any purpose that is unlawful or prohibited by this License Agreement, or any other purpose not reasonably intended by TextPower (each an “Unauthorized Use”). By way of example, and not as a limitation, you agree not to:
• provide false or inaccurate Registration Data;
• use the Services for any unauthorized purpose, or in violation of any applicable law, including intellectual property laws;
• use automated means or other means to create bulk accounts, or otherwise avoid exceeding the Trial Subscriber Threshold;
• access or attempt to access the Services other than using our official plugin or API;
• reverse engineer, disassemble, or decompile (or attempt to do any of the foregoing) the software used to provide access to the Services;
• engage in any activity that competes, or is intended to compete, with any portion of the Services. Additionally, you agree that you will not advertise, or participate in an advertising or marketing scheme designed to promote the services of a competitor through your website;
• infringe upon the intellectual property rights of TextPower or any third party;
• post, email, transmit, upload, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed or functioning to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; OR
• provide, export, or attempt to provide or export, the Services or Software, either alone or in collusion with any other person or entity, in violation of the statutes and regulations concerning the exportation of technology imposed by any federal agency.
If TextPower is notified, becomes aware of, or suspects that there is inaccurate Registration Data or an Unauthorized Use with respect to your account, it has the right, in its sole discretion, but not the obligation, to conduct an investigation. In the event TextPower elects to conduct an investigation, you hereby agree to cooperate in such investigation until TextPower determines the cause of the inaccuracy or the Unauthorized Use. If TextPower suspects that you intentionally provided it with inaccurate Registration Data or participated in an Unauthorized Use, we may, in our sole discretion, suspend or terminate your account, prevent you from accessing the Services indefinitely, and/or pursue any available remedy at law or in equity. The foregoing shall not in any way limit our ability to restrict your access to the Services for any reason or no reason at all, including without limitation a breach of any other provision of this License Agreement.
4. DATA STORAGE
TextPower is required to maintain a record of all text messages sent over its system for a period of 2-4 years. Such data is maintained by us as required by law or our agreements with the cellular carriers, and is used for no other purpose.
6. CONSENT TO ELECTRONIC COMMUNICATION
By creating a Registered Account, you acknowledge that TextPower may need to send you communication or data, via e-mail, regarding the Services, including, but not limited to, notices about your use of the Services, updates to the Services, and promotions regarding additional services offered by us. By using the Services, you consent to the receipt of electronic messages from us to the e-mail address provided by you in the Registration Data.
7. INTELLECTUAL PROPERTY RIGHTS
Subject to certain intellectual property rights governed by laws of the United States, foreign jurisdictions or international conventions, TextPower owns or has licensed the Site, Software, and the Services and all content thereon, including, but not limited to, trademarks, service marks, logos, music, sounds, videos, text, software, scripts, graphics, interactive features or any downloadable content. Pursuant to this Agreement, TextPower provides you with a limited, non-transferable, non-sublicensable, revocable license to use the Site, Services, and Software, including any the foregoing content, on an AS-IS basis as described herein. Furthermore, the license granted herein is personal and may not be used, copied, reproduced, distributed, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. TextPower reserves all rights not expressly granted in and to the Site, Services, and the Software. By becoming a Registered User or using the Services, you hereby agree not to engage in the unauthorized use, copying, or distribution of any of the Software, including the intellectual property contained therein, without the express written consent of the Company.
9. REPRESENTATIONS AND WARRANTIES
By creating a Registered Account, or using the Services, you represent and warrant that you: (1) have the legal right and authority to enter into this License Agreement; (2) have submitted accurate and complete Registration Data; (3) have the requisite authority and right to operate your website, accept receipt of and use the plug-in or API delivered by the Company and which is necessary to access the Services; (4) have obtained the consent of the Individual Users to provide aspects of the Registration Data which pertain to them; (5) will not, either alone or in collusion with another party, attempt to decompile, reverse engineer, or hack the Site or the Services; (6) will only use the Services for lawful purposes; and (7) are at least eighteen (18) years old.
10. DISCLAIMER OF WARRANTIES
THE SITE AND SERVICES, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, SOFTWARE, AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE SITE OR THROUGH THE SERVICES, ARE PROVIDED "AS-IS," "AS AVAILABLE," AND "WITH ALL FAULTS." TO THE FULLEST EXTENT PERMISSIBLE BY LAW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, TEXTPOWER AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) ABOUT: (A) THE SITE; (B) THE SERVICES, (C) ANY SOFTWARE, INCLUDING INTELLECTUAL PROPERTY PROVIDED THROUGH THE SITE OR THE SERVICES; (E) THE FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION (INCLUDING REGISTRATION DATA OR PAYMENT INFORMATION) THROUGH THE SITE OR THE SERVICES OR ANY LINKED SITE. TEXTPOWER DOES NOT WARRANT THAT THE SITE, SERVICES, SOFTWARE OR ANY OF THEIR RESPECTIVE FUNCTIONS OR ANY INTELLECTUAL PROPERTY PROVIDED THEREON OR THROUGH THE FOREGOING WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
FURTHER, THE COMPANY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND THE AFFILIATES OF THE FOREGOING DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE.
TEXTPOWER, AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND THE AFFILIATES OF THE FOREGOING, SHALL NOT BE LIABLE FOR THE USE OF THE SITE, SOFTWARE, OR THE SERVICES INCLUDING, WITHOUT LIMITATION, THE INTELLECTUAL PROPERTY AND ANY ERRORS CONTAINED THEREIN. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THIS AGREEMENT.
11. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT TEXTPOWER LIMITS ITS LIABILITY IN CONNECTION WITH YOUR USE OF THE SERVICES AS SET FORTH BELOW:
UNDER NO CIRCUMSTANCES SHALL TEXTPOWER, OR ITS AFFILIATES, OR THE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, OR AFFILIATES OF EACH OF THEM (COLLECTIVELY, THE "COMPANY ENTITIES AND INDIVIDUALS"), BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, OR CONSEQUENTIAL DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (1) THE SERVICES; (2) THE USE OF, INABILITY TO ACCESS OR USE, OR PERFORMANCE OF THE SITE OR THE SERVICES; (3) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE OR SERVICES; (4) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; OR (5) ANY ERRORS OR OMISSIONS RELATED TO THE TECHNICAL OPERATION OF THE SITE OR SERVICES, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY ENTITIES AND INDIVIDUALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE, OR SERVICES).
IN NO EVENT WILL THE COMPANY ENTITIES AND INDIVIDUALS BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION OR PORTION THEREOF MAY NOT APPLY TO YOU.
IN NO EVENT SHALL THE COMPANY ENTITIES AND INDIVIDUALS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE LESSER OF THE FEES PAID BY YOU IN THE PREVIOUS TWELVE (12) MONTHS, IF APPLICABLE, OR ONE HUNDRED DOLLARS ($100).
THE COMPANY ENTITIES AND INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR, OR ANY INDIVIDUAL USER'S, COMPUTER, MOBILE PHONE, HARDWARE, COMPUTER SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. ACCESS TO AND USE OF THE SITE AND SERVICES IS AT YOUR, EACH INDIVIDUAL USER’S, OWN RISK.
IF YOU ARE DISSATISFIED WITH THE SITE OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITE AND SERVICES. YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THE COMPANY'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE SITE, SERVICES OR OTHER PROPERTY OWNED OR CONTROLLED BY TEXTPOWER AND/OR ITS AFFILIATES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
BY ACCESSING THE SITE OR OTHERWISE USING THE SERVICES, YOU HEREBY RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND AFFILIATES OF THE FOREGOING, FROM ALL LIABILITIES, CLAIMS, ALLEGED CLAIMS, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED), AND INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES RELATED IN ANY WAY TO: (I) YOUR BREACH OF ANY TERM OR CONDITION OF THIS AGREEMENT; AND (II) YOUR USE OF, RELIANCE ON OR ACCESS TO THE SITE, THE SERVICES OR THE SOFTWARE.
If you have a dispute with any third party who provides services to us, you hereby agree to release us (and our officers, shareholders, directors, agents, and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW THAT MIGHT LIMIT YOUR WAIVER OF SUCH CLAIMS, INCLUDING, TO THE EXTENT APPLICABLE, CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
This Agreement constitutes the entire agreement between you and the Company regarding your use of the Site and the Services, superseding any prior agreements between you and the Company relating to the same. The Agreement shall be governed by the substantive laws of California, without regard to conflict of laws principles. Any claim or dispute between you and the Company that arises from your use of the Site, the Services or the Software shall be decided exclusively by a court of competent jurisdiction located in Orange County, California. You hereby expressly consent to the personal jurisdiction of the Federal and State courts located in Orange County, California and waive any objections to the laying of venue in such courts.
Nothing in the Agreement shall create or be deemed to create a partnership, agency, trust arrangement, fiduciary relationship or joint venture between you and the Company.
If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this License Agreement, which shall remain in full force and effect.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and the Company’s failure to assert any right or provision under this License Agreement shall not constitute a waiver of such right or provision.
Our failure to comply with any provision of this Agreement due to an act beyond our control, including but not limited to an act of God, hurricane, war, fire, riot, earthquake, terrorism, act of public enemies, actions of governmental authorities (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of this Agreement.