Terms of Service
Effective Date: August 4, 2022
BY DOWNLOADING OR USING THE SUPERCHARGED SMS AND RELATED SERVICES (AS DEFINED BELOW IN SECTION 1) THROUGH ANY ONLINE OR WRITTEN FORM OR OTHER COMMUNICATION PROVIDED BY SUPERCHARGED SMS EVIDENCING CLIENT’S DOWNLOAD OR USE OF THE SERVICE (“ORDER”), THESE TERMS OF SERVICE GOVERNS CLIENT’S ACCESS AND USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT AND USING OR ACCESSING ANY OF THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT, AS MAY BE UPDATED FROM TIME TO TIME.
IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “CLIENT” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT BE PERMITTED TO USE THE SERVICES.
FURTHERMORE, BY ACCEPTING THIS AGREEMENT YOU REPRESENT AND WARRANT THAT ANY AND ALL INFORMATION YOU PROVIDE US THROUGH THE SERVICES IS TRUE, ACCURATE AND COMPLETE. THE PROVISION OF FALSE OR FRAUDULENT INFORMATION IS STRICTLY PROHIBITED.
AS USED HEREIN, THE FOLLOWING DEFINITIONS SHALL APPLY:
“AGREEMENT” OR “TERMS” MEANS THESE TERMS OF SERVICE AND ALL MATERIALS AND LINKS REFERRED TO HEREIN.
“CLIENT” OR “YOU” MEANS THE INDIVIDUAL OR LEGAL ENTITY LICENSING THE SERVICES HEREUNDER.
“SUPERCHARGED SMS” MEANS CROCODILE SOFTWARE, LLC AND ITS AFFILIATES.
“PARTIES” MEANS CLIENT, OR YOU, TOGETHER WITH SUPERCHARGED SMS.
Supercharged SMS’s platform is a unique, proprietary ecommerce marketing platform (“Platform”) that offers solutions for SMS/MMS marketing campaigns, triggered automations (such as abandoned cart & checkout recovery, shipping notifications, and order delivery) (each also referred to as a “Product” and, as may be combined, “Products”). Certain Products enable Client to engage with End-Users by utilizing SMS/MMS/text messages. Through an application provided by Supercharged SMS, or through the Platform, a Client can enable features whereby Client can send marketing and other messages via SMS/MMS/text message regarding the Client’s products or services. “Services,” as used in this Agreement, refers to a Client’s access to the Platform, Products and other ancillary services specified in the Order. All content, data and other information that Client submits to the Services through its use thereof, including, without limitation, such information as Client may collect through the Services from End-Users (as defined below), is “Client Content” for the purposes of this Agreement.
- PROPRIETARY RIGHTS
- Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Supercharged SMS’s rights under this Agreement, between the parties, Client retains all intellectual property and other rights in its intellectual property and to the Client Content provided to Supercharged SMS. Except for Client’s rights under this Agreement, Supercharged SMS and its licensors retain all intellectual property and other rights in the Platform, and in and to each Product, the Services, and any deliverables and related Supercharged SMS technology, templates, documentation, help files, tutorials, formats and dashboards, including any modifications or improvements to these items made by Supercharged SMS and the Usage Data, as defined below (the “Supercharged SMS Materials”). If Client provides Supercharged SMS with feedback or suggestions regarding the Services or other Supercharged SMS offerings, Supercharged SMS may use the feedback or suggestions without restriction or obligation.
- Usage Data. Supercharged SMS may generate technical logs, data and learnings about Client’s use and an End-User’s use of the Services (the “Usage Data”) and the Client Content processed by the Services, and use such information to operate, analyze, improve and support the Platform and/or the Services and for other lawful purposes. Except as required by law, Supercharged SMS will not disclose Usage Data externally, including in benchmarks or reports except in the aggregate.
- LIMITED LICENSE TO ACCESS AND LIMITED LICENSE TO THE CLIENT CONTENT
- License to the Services. Subject to the terms and conditions set forth herein (including without limitation payment of the applicable fees), and during the term of this Agreement only, Client may access and use the Services only for its internal business purposes in accordance with the Terms of this Agreement, including any usage limits on an applicable Order. Access to the Services is limited to Client’s employees and contractors acting for the sole benefit of Client (“Permitted Users”). Client and its Permitted Users may need to register for a Supercharged SMS account in order to access or use the Services. Client is responsible for ensuring that account registration information is accurate, current and complete.
- License to the Client Content– Client grants to Supercharged SMS a worldwide, non-exclusive, transferable, royalty-free license during the term to, and hereby instructs Supercharged SMS, to use, transfer, copy, reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or through third parties, create derivative works of Client Content and otherwise use and commercially exploit any Client Content in any media formats (i) to the extent necessary to provide Client with access to and use of the Services in accordance with the Terms of this Agreement, (ii) to comply with law, (iii) to detect, prevent and investigate security incidents, fraud, spam or unlawful use of the Services, (iv) to address technical problems, address support requests, and attend to the proper working of the Services, (v) to protect the rights, property or safety of Supercharged SMS, its customers, its customers’ end-users, and/or the public, and (vi) subject to the Data Processing Addendum, described in Section 9.b below, for any other lawful purpose, including without limitation, for the purposes set forth in Section 2.b hereof. Such license will apply to any form, media or technology now known or hereafter developed.
- Open Source Software. The Services may include certain open source components owned by a third party that are subject to open source licenses (“Open Source Software”). Some of the Open Source Software is not subject to the terms and conditions of these Terms. Instead, each item of such Open Source Software is licensed under the applicable license terms which accompany such Open Source Software. Nothing in these Terms limits your rights under, nor grants you rights that supersede, the terms and conditions of any applicable license terms for the Open Source Software.
- LIMITATIONS OF USE
- Client’s use of the Services shall be limited to its own internal business use Except as specifically permitted herein, Client shall not (i) sell, license (or sub-license), lease, assign, transfer, pledge or share any of its rights under this Agreement with/to any other party, entity or person, (ii) transfer, distribute, copy all or any part of the Services and/or the Supercharged SMS Materials, (iii) refer to the Services by use of framing and/or deep-linking, (iv) make use of the Services or distribute any part thereof in any jurisdiction where same is illegal or where such use or distribution would subject Supercharged SMS or its affiliates to any registration requirement within such jurisdiction or country (v) use, encourage, promote, facilitate or instruct others to use the Platform for any illegal, harmful or offensive use, (vi) promote any content, products, services, or other information that may be illegal to sell or promote under any applicable law or may reasonably be perceived to be unlawful, inflammatory, offensive or otherwise inconsistent with the spirit of Supercharged SMS’s Services, brand or image, (vii) transmit any viruses or other harmful, infringing, illegal, disruptive or destructive content, messages or files, (viii) visit the Platform or access the Services through unauthorized means, including, without limitation, any data mining, robots/bots, or similar data gathering and extraction tools to extract for re-utilization of any parts of the Platform, (ix) distribute, publish, send or facilitate the sending of unsolicited mass messages, promotions, advertising, or solicitations (e.g. “spam”) including unlawful commercial advertising and informational announcements, (x) distribute, publish, send, or facilitate the sending of any inappropriate, inaccurate, misleading, fraudulent or otherwise illegal content or content which infringes intellectual property rights of third parties or their right for privacy, (xi) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), make any attempt to discover the source code of the Platform and/or the Services and/or any other software available therein or create derivative works thereof, (xii) remove any copyright, trademark or other proprietary rights notices contained in or on the Platform, (xiii) remove, change or modify any trademarks from or attach any additional trademarks to the Platform, (xiv) use the Platform or the Services in a manner that subjects any part thereof to any obligation to disclose or distribute the source code thereof and/or that may cause others to have the right to modify or create derivative works thereof; or cause them to become redistributable at no charge; or (xv) use the Services in a manner that violates Twilio’s Terms of Service (Twilio Terms of Service) or Messaging Policy (Twilio Messaging Policy). Client is solely responsible for obtaining, paying for, repairing and maintaining all the equipment, software, hardware and services required for Client to access the Services.
- CLIENT OBLIGATIONS
- Compliance with Law. Client represents, warrants and covenants to Supercharged SMS that Client’s use of the Services shall comply with the limitations of use in Section 4 and all applicable laws, rules or regulations of any jurisdiction, including, without limitation, those relating to (i) communication by telephone, text/SMS/MMS message or email for advertising, marketing or other purposes, (ii) monitoring or recording of electronic or telephonic communications, (iii) the privacy, security or protection of “personal data” or “personal information”, as such terms are defined under privacy laws (collectively, “Personal Information”), including, without limitation, as applicable to the collection, storage, retention, processing, transfer, disclosure, sharing, disposal or destruction of Personal Information, (iv) requirements for websites and mobile applications, online behavioral advertising, or online tracking technologies, or (v) applicable economic or financial sanctions or trade embargoes, including those administered by the U.S. government through the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State, or the Israeli government (collectively, “Laws”). Without limiting the foregoing, Laws include the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Do-Not-Call Implementation Act, the Controlling the Assault of Non Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act (“COPPA”), the Federal Trade Commission Act, the California Consumer Privacy Act (“CCPA”), other state privacy, data security and breach notification laws, state consumer protection laws, the European Union’s General Data Protection Regulation (2016/679) (“GDPR”) and Privacy and Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), the United Kingdom’s Data Protection Act 2018 (together with the GDPR, the ePrivacy Directive and any national legislation implementing either, “European Data Protection Law”), Canada’s Personal Information Protection and Electronic Documents Act, Canada’s Anti-Spam Legislation (S.C. 2010, c 23), the U.S. Trading with the Enemy Act of 1917, the U.S. International Emergency Economic Powers Act, the Israeli Trading with the Enemy Ordinance of 1939, and any legislation and/or regulation implementing or made pursuant to, or which amends, replaces, re-enacts or consolidates, any of the foregoing. For purposes of this Agreement, Laws also include the Cellular Telecommunications Industry Association (CTIA) Messaging Principles and any other applicable self-regulatory rules or codes of conduct, as amended from time to time, including, without limitation, such rules and guidelines issued by the Mobile Marketing Association and telecommunications providers. You also represent, warrant and covenant that you are not identified on the OFAC list of Specially Designated and Blocked Persons or any other U.S. or Israeli list of restricted parties, are not operating from, established under the laws of, or ordinarily resident in Cuba, Iran, Lebanon, North Korea, Syria, or the Crimea region of Ukraine (each a “Sanctioned Country” and collectively the “Sanctioned Countries”), and will not use the Services in a Sanctioned Country.
- Restricted Data. Client shall ensure that Client Content does not include (i) protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or medical information governed by state healthcare privacy laws, (ii) Social Security numbers, driver’s license numbers or other government-issued identification numbers, (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm Leach-Bliley Act, (iv) payment card data regulated by the Payment Card Industry Data Security Standards; (v) biometric data regulated by biometric privacy laws, (vi) online account passwords, login credentials or related information (vii) criminal history, (viii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes “special categories of data” regulated by the GDPR or (ix) Personal Information of children under sixteen (16) years of age regulated by COPPA, the GDPR or under the age of consent for purposes of applicable privacy laws. Supercharged SMS shall have no liability with respect to such information, notwithstanding anything in the Agreement to the contrary.
- Security. Client shall use its best efforts to prevent unauthorized access to or use of the Services through its or its Permitted Users accounts, promptly notify Supercharged SMS of any unauthorized access or use and provide reasonable cooperation regarding information requests from law enforcement, regulators or telecommunications providers.
- Obligations Regarding Client Content. Client is solely responsible for the accuracy, content and legality of the Client Content. Client acknowledges that the Services are provided by Supercharged SMS to Client on a business-to-business basis, and that Supercharged SMS does not have a direct relationship with any End-User as a result of providing the Services to Client hereunder. As a result, Client acknowledges that Supercharged SMS relies on Client’s rights to the Client Content in order to provide the Services, and processes Client Content according to the Supercharged SMS Data Processing Addendum and Client’s instructions thereunder. Client is solely responsible for the accuracy, content and legality of Client Content. Supercharged SMS shall not be liable for any Client Content, and shall be entitled, in its sole discretion, to edit or remove from the Platform any Client Content which Supercharged SMS reasonably believes to be inaccurate, inappropriate or otherwise not in compliance with the Agreement or applicable law. NOTHING IN THIS AGREEMENT OBLIGATES SUPERCHARGED SMS TO DISPLAY ANY CLIENT CONTENT THAT SUPERCHARGED SMS REASONABLY BELIEVES TO BE INACCURATE, INAPPROPRIATE OR OTHERWISE NOT IN COMPLIANCE WITH THIS AGREEMENT OR APPLICABLE LAW OR TO USE SUCH CLIENT CONTENT AT ALL OR IN A CERTAIN MANNER. Client shall designate a copyright agent and implement a notice and takedown mechanism in compliance with the Digital Millennium Copyright Act (or other comparable applicable laws in jurisdictions outside of the United States), and Client shall comply with any such takedown notice received in respect of any Client Content, in each case, to the extent required by applicable law.
- Rights in Client Content. Client represents and warrants to Supercharged SMS that Client has given all notices and obtained all rights consents, assignments, licenses, permissions and authorizations (including the waiver of any moral rights) necessary for Client to transfer to Supercharged SMS and for Supercharged SMS to collect, use and share the Client Content (and any Personal Information contained therein) as contemplated by this Agreement without violation or infringement of (i) any Laws, (ii) intellectual property, publicity, privacy or other rights, or (iii) any terms of service or other agreements governing the Client Content or Client’s activities relating to its use of the Services.
- Order Fulfillment. As between Client and Supercharged SMS, Client is solely responsible for all customer service, order fulfillment and returns, and payment of taxes or charges associated with any products or services that Client sells or markets in connection with the domains listed on the Order.
- Sending Messages to End-Users via the Services. To the extent that Supercharged SMS provides Client with access to functionality that allows Client to send Client communications by telephone, text/SMS/MMS message or email to End-Users, including, without limitation, marketing and advertising communications (“Client Messages”), Client agrees not to send any unsolicited, commercial communications. Further, Client acknowledges that Client is solely responsible for all content of Client Messages created by or on behalf of Client and for Client’s compliance with all Laws in connection with Client’s use of the Services to send Client Messages. Accordingly, and notwithstanding any representation or warranty disclaimer in the Agreement, Client represents, warrants and covenants that: (i) all applicable lists of email addresses and/or phone numbers were created and/or shared with Supercharged SMS in a manner that complies with Laws, (ii) each End-User or other recipient of Client Messages or other communications has been given clear and conspicuous notice prior to the collection of his or her phone number, email address and/or other contact information that such information may be collected, used or shared to facilitate sending Client Messages to such recipient and as contemplated in this Agreement and (iii) each End-User or other recipient of applicable communications has given all consents required by Law to receiving commercial email and other forms of communication, including, but not limited to, consent to receive the Client Messages. Client acknowledges that the Services may employ automated telephone dialing systems regulated by the TCPA to transmit Client Messages and Client agrees that such consents shall be sufficient to permit the Services’ use of such systems, including without limitation, to send messages for advertising and solicitation purposes.
- Limits on Certain Messages. By using functionality to send Client Messages to End-Users, Client agrees to make End-Users aware of their right to opt out of any future messages, as required by law. Client is responsible for honoring all opt-out requests from End-Users. Client must use a valid telephone number. Phone numbers such as landline numbers that cannot receive SMS/MMS or text messages will not be eligible for the Services. Client agrees that Supercharged SMS reserves the right in its sole discretion to cap the number of Client Messages that may be sent in connection with the Services. Applicable message and data rates apply to such messages. Client hereby acknowledges and agrees that (i) Supercharged SMS merely plays a technical role in transmitting or routing Client Messages sent by Client as a conduit, (ii) that Client is the sender of any Client Messages for purposes of Laws, (iii) Supercharged SMS has no relationship with or any obligation to any End User or any other person or entity with to whom Client provides services utilizing the Services (“End-User Services”), none of whom is a third-party beneficiary of this Agreement, and (iv) Client shall have sole responsibility and liability for any Client Messages and for compliance with any Laws related to End-User Services. Supercharged SMS may suspend or disable Client’s ability to send messages through the Services at any time if Supercharged SMS, in its sole discretion, believes Client is sending messages in violation of the Terms of this Agreement.
- SUSPENSION OF SERVICE
- Supercharged SMS may suspend Client’s access to the Services if Client breaches Section 4 (Limitations on Use) or Section 5 (Client Obligations), if Client’s account is 30 days or more overdue or if Client’s actions risk harm to other Clients or the security, availability or integrity of the Services. Where practicable, Supercharged SMS will use reasonable efforts to provide Client with prior notice of the suspension. Once Client resolves the issue requiring suspension, Supercharged SMS will promptly restore Client’s access to the Service in accordance with this Agreement. Supercharged SMS reserves the right, but is not obligated, to monitor and audit Client’s use of the Services for any reason or no reason, without notice, to ensure Client’s compliance with this Agreement.
- REPRESENTATIONS AND WARRANTIES
- In addition to representations and warranties made elsewhere in this Agreement, Client represents and warrants to Supercharged SMS that: (i) it has, and will have at all times, all right, title and interest necessary to grant to Supercharged SMS any and all licenses granted by Client or its End-Users or other third parties hereunder for the purposes contemplated by this Agreement, including from Client’s End-Users or any third-party site for the use of the Client Content, (ii) has all necessary rights, permits and licenses under all Laws, rules and regulations to operate the domains listed on the Supercharged SMS Order and to promote, offer for sale, and sell all products or services offered or sold in connection with such domains, (iii) any and all Client Content complies, and will comply at all times during the term of this Agreement, with all Laws, rules and regulations, and this Agreement and does not and will not during the term of this Agreement infringe the rights of any third party, including any intellectual property rights; and (iv) Client shall comply with all Laws, including without limitation, TCPA, CAN-SPAM Act and the Digital Millennium Copyright Act.
- Supercharged SMS represents and warrants that: (i) it has, and will have at all times, all right, title and interest necessary to grant any and all licenses granted by Supercharged SMS hereunder for the purposes contemplated by the Agreement; (ii) it has, to its knowledge, all necessary rights, permits and licenses under all Laws, rules and regulations to operate the Platform in the manner in which it is meant to be operated at any applicable time; and (iii) the Platform (except as related to Client Content, which shall be the responsibility of Client), shall, to Supercharged SMS’s knowledge, not infringe on the rights, including without limitation, intellectual property rights, of any third party.
- During the term of this Agreement, either party (as the “Disclosing Party“) may disclose or make available to the other party (as the “Receiving Party“) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party or any of its Representatives, (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information, (iii) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party, (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.
- The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, (B) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
- The provisions of this Section 8 shall survive the natural expiration or termination of this Agreement for any reason for a period of three (3) years.
- PRIVACY AND DATA PROTECTION
- Supercharged SMS’s Data Processing Addendum, as updated from time to time (currently available at https://www.superchargedsms.com/privacy-policy/) shall apply and form part of this Agreement when Client Content constitutes Personal Information subject to data protection laws, including European Data Protection Law or the CCPA.
- EXCEPT AS EXPRESSLY PROVIDED HEREIN: (I) THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY AND ALL SUPERCHARGED SMS MATERIALS, THE SERVICES (INCLUDING WITHOUT LIMITATION INSTALLATION, INTEGRATION AND IMPLEMENTATION SERVICES), AND THE PRODUCTS ARE PROVIDED BY SUPERCHARGED SMS “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED; (II) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SUPERCHARGED SMS DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE; (III) SUPERCHARGED SMS DOES NOT WARRANT THAT THE SUPERCHARGED SMS MATERIALS, THE SERVICES OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND (IV) SUPERCHARGED SMS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT CLIENT’S USE OF THE SERVICES WILL COMPLY WITH LAWS OR OTHERWISE RELATING TO THE USE OR THE RESULTS OF THE USE OF THE SERVICES, THE SUPERCHARGED SMS MATERIALS OR OTHER CONTENT MADE AVAILABLE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CLIENT IS RESPONSIBLE FOR EVALUATING THE CAPABILITIES AND FEATURES OF THE SERVICES AND MAKING ITS OWN DETERMINATION ABOUT WHETHER CLIENT IS ABLE TO USE THE SERVICES IN COMPLIANCE WITH LAWS. CLIENT IS RESPONSIBLE FOR TAKING ALL PRECAUTIONS IT BELIEVES NECESSARY OR ADVISABLE TO PROTECT IT AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ITS USE OF OR RELIANCE UPON THE PLATFORM, SUPERCHARGED SMS’S WEBSITE, OR THE SERVICES. SUPERCHARGED SMS ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD-PARTY TELECOMMUNICATIONS PROVIDERS. THE SERVICES SHOULD NOT BE USED FOR EMERGENCY COMMUNICATIONS AND SUPERCHARGED SMS WILL HAVE NO LIABILITY ARISING FROM SUCH USE.
- CLIENT ACKNOWLEDGES, THAT EMAIL AND TEXT/SMS/MMS MESSAGES ARE INSECURE MEDIUMS THAT ARE GENERALLY NOT ENCRYPTED IN TRANSIT AND SECURITY OF INFORMATION TRANSMITTED THROUGH THE INTERNET CAN NEVER BE GUARANTEED AND, ACCORDINGLY, SUPERCHARGED SMS IS NOT RESPONSIBLE FOR ANY INTERCEPTION OR INTERRUPTION OF ANY COMMUNICATIONS THROUGH THE INTERNET OR FOR CHANGES TO OR LOSS OF CLIENT CONTENT IN CONNECTION WITH THE SERVICES.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE.
- LIMITATION OF LIABILITY
- TO THE MAXIMUM PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WHATSOEVER WILL SUPERCHARGED SMS NOR ITS RESPECTIVE AFFILIATES OR PARTNERS NOR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS OR SUPPLIERS BE RESPONSIBLE OR LIABLE, UNDER ANY LEGAL THEORY, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, FOR ANY COMPENSATORY, DIRECT OR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS AND LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, REVENUE, INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT THAT SUPERCHARGED SMS IS FOUND LIABLE OR RESPONSIBLE TO YOU FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE IN CONNECTION WITH THESE TERMS AND/OR THE MATTERS CONTEMPLATED HEREIN, SUPERCHARGED SMS’S AGGREGATE LIABILITY TO YOU SHALL BE LIMITED TO $100.00.
- SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE.
- YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE A MATERIAL, BARGAINED-FOR BASIS OF THESE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY SUPERCHARGED SMS TO OFFER TO YOU AND BY YOU TO USE THE SERVICES AND THE PLATFORM.
- Indemnification by Supercharged SMS. Supercharged SMS will defend Client, its officers, directors, employees and affiliates (“Client Indemnified Parties”) from and against any third-party claim made against a Client Indemnified Party to the extent alleging that the Platform or the Services, when used by Client as authorized in this Agreement, infringes such third-party’s U.S. patent, copyright, trademark or trade secret, and will indemnify and hold harmless Client Indemnified Parties against any damages or costs awarded against Client (including reasonable attorneys’ fees) or agreed in settlement by Supercharged SMS resulting from the claim.
- Indemnification by Client. Client will defend Supercharged SMS, its officers, directors, employees, and affiliates (“Supercharged SMS Indemnified Parties”) from and against any third-party claim, demand, suit, or proceeding made or brought against a Supercharged SMS Indemnified Party to the extent resulting from Client Content, or Client’s breach or alleged breach of Section 5 (Client’s Obligations), Client’s use of the Services or any activities other than in accordance with these Terms; and will indemnify and hold harmless Supercharged SMS Indemnified Parties against any damages or costs awarded against Supercharged SMS Indemnified Parties (including reasonable attorneys’ fees) or agreed in settlement by Client resulting from the claim.
- Procedures. The indemnifying party’s obligations in this Section 12 are subject to receiving (i) prompt written notice of the claim, (ii) the exclusive right to control and direct the investigation, defense and settlement of the claim and (iii) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Supercharged SMS is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
- Mitigation and Exceptions. In response to an actual or potential infringement claim, if required by settlement or injunction or as Supercharged SMS determines necessary to avoid material liability, Supercharged SMS may at its option: (i) procure rights for Client’s continued use of the Platform or the Services, (ii) replace or modify the allegedly infringing portion of the Platform or the Services to avoid infringement without reducing the Platform’s or the Services’ overall functionality or (iii) terminate the affected Order and refund to Client any pre-paid, unused fees for the terminated portion of the subscription Term. Supercharged SMS’s obligations in this Section 12 do not apply (1) to infringement resulting from Client’s modification of the Platform or the Services or use of the Platform in combination with items not provided by Supercharged SMS (including third-party platforms), (2) to infringement resulting from Services other than the most recent release, (3) to unauthorized use of the Platform or the Services, or (4) if Client settles or makes any admissions about a claim without Supercharged SMS’s prior written consent. This Section 12 sets out Client’s exclusive remedy and Supercharged SMS’s entire liability regarding infringement of third-party intellectual property rights.
- THIRD-PARTY PLATFORMS AND CONTENT
- Client may choose to use the Services with certain platform(s), publisher(s), add-on, website(s), service or product not provided by Supercharged SMS that Client elects to integrate or enable for use with the Services (“Third-Party Platforms“). Third-Party Platforms are not responsible for the Services or the obligations between Supercharged SMS and Client pursuant to these Terms. Use of Third-Party Platforms is subject to Client’s agreement with the relevant provider and not this Agreement, except where expressly agreed by a Third-Party Platform, Third-Party Platform cannot provide assistance with the installation or use of the Services. Supercharged SMS does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use any and all data including (without limitation) End-User data. If Client enables a Third-Party Platform to integrate or otherwise operate in connection with the Services, Client authorizes Supercharged SMS to (i) access and exchange Client Content and End-User data (including personally identifiable information) with the Third-Party Platform on Client’s behalf and (ii) if required by the applicable Third-Party Platform, retain Client Content and/or End-User data for such time period and otherwise in accordance with the terms of the applicable Third-Party Platform, subject in each case to Supercharged SMS’s obligations under the Data Processing Addendum.
- TERM, TERMINATION, AND PAYMENT OF FEES
- This Agreement is effective between Client and Supercharged SMS as of the date of Client’s accepting this Agreement by downloading or using the Services and will continue in effect until terminated by Client or Supercharged SMS as set forth in this Section 14. NOTWITHSTANDING THE FOREGOING, SUPERCHARGED SMS RESERVES THE RIGHT UPON AT LEAST SEVEN (7) DAYS WRITTEN NOTICE TO CLIENT TO INCREASE THE PRICING IN EFFECT.
- Either Supercharged SMS or Client may terminate this Agreement if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days. Notwithstanding the forgoing, Supercharged SMS may terminate this Agreement: (i) at any time without notice if it ceases to support the Services, which Supercharged SMS may do in its sole discretion, or (ii) on thirty (30) days written notice.
- In any event of termination of this Agreement by either Party, all rights granted hereunder shall immediately expire and any and all use and/or exploitation by Client and/or on its behalf of the Services or the Platform, and any part thereof, shall immediately cease and expire. The following Sections shall survive termination or expiration of the Terms: 2, 3.2, 7-9, 11-17.
- In addition to termination rights under Section 12.d, upon termination by Supercharged SMS, under this Section 14, Client shall promptly pay Supercharged SMS any and all applicable fees and payments due up to and including the date of termination. Upon such termination by Client under this section, Supercharged SMS shall promptly refund to Client any fees previously paid by Client that pertain to any Services not yet provided as of the date of termination. Except in the event of termination caused by an uncured, material breach, fees paid are non-refundable.
- Fees are as described in each Order. All fees and expenses are non-refundable. Bonus, or additional, credits provided by Supercharged SMS to Client for any reason are not transferable and are not refundable or redeemable for cash at any time. Any credits shall expire on the date which is one (1) year after purchase pursuant to this Agreement.
- Supercharged SMS’s fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, other charges, domestic or foreign imposed by any federal, state, or local tax authority with respect thereto including, for example, GST, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with Client’s orders. If Supercharged SMS has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 14, Supercharged SMS will invoice Client and Client will pay that amount unless Client provides Supercharged SMS with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Supercharged SMS is solely responsible for Taxes assessable against it based on its income, property and employees.
- NOTICES, GOVERNING LAW AND JURISDICTION
This Agreement is to be construed in accordance with and governed by the laws of the State of Delaware, United States, without giving effect to its provisions regarding conflict of laws. Each party hereby irrevocably consents to be subject to the exclusive jurisdiction and venue of the courts located in New Castle County, Delaware, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such venue and courts. All notices are to be sent in writing by email to Supercharged SMS at: email@example.com, to Client at the address provided on the Order. Any such notices shall be deemed to have been given upon delivery.
Supercharged SMS may use Client’s name and/logo to identify Client as a Supercharged SMS customer of the Services, including without limitation, on Client’s public website and marketing materials. Any such use shall be subject to Supercharged SMS’s compliance with any written guidelines that Client may deliver to Supercharged SMS regarding the use thereof. Client hereby grants Supercharged SMS a non-exclusive, worldwide, royalty free and fully paid up right and license to utilize its name, logo, trade-marks and trade names for the purposes set forth above.
If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and if such provision is determined to be invalid or unenforceable nonetheless, the provision shall be deemed to be severable from the remainder of the Agreement and shall not cause the invalidity or unenforceability of the remainder of the Agreement. Client acknowledges and agrees that Supercharged SMS has the right, at any time and for any reason, to redesign or modify the Supercharged SMS Materials and other elements of the Platform or any part thereof. This Agreement constitutes the entire agreement between Client and Supercharged SMS respect to the subject matter herein and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, including previous non-disclosure agreements between the parties. Supercharged SMS may update this Agreement from time to time. We will provide prior written notice of any material updates The updated version of this Agreement will supersede all prior versions. Following such notice, Client’s continued use of the Services and Platform on or after the effective date of the updated Agreement constitutes Client’s acceptance of such updated Agreement . If you do not agree to the updated version of this Agreement, you must stop using the Services and Platform immediately. No failure, delay or default in performance of any obligation of a party (other than a payment obligation) shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; epidemic, pandemic or quarantine; earthquake, tornado or other natural disaster; failure or diminishment of power or telecommunications or data networks or services; distributed denial of service or other cyberattacks; or refusal of a license by a government agency. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause. Neither party may assign this Agreement without the prior written consent of the other party, not to be unreasonably withheld, provided that either party may assign or transfer this Agreement, without the prior written consent of the other party, to an affiliate or in connection with a sale or merger of all or substantially all of the assigning party’s business or assets. Any unauthorized assignment will be void and of no force or effect. Except as expressly stated herein, nothing in this Agreement shall be considered as granting any rights to third parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Supercharged SMS may use subcontractors and permit them to exercise Supercharged SMS’s rights (including without limitation the provision of customer support), but Supercharged SMS remains responsible for their compliance with this Agreement and for its overall performance under this Agreement. In any event of a conflict or inconsistency between the terms herein and the terms of the Order Form, the terms of the Order Form shall prevail. Any additional or conflicting terms contained in purchase orders issued by Client with respect to the subject matter hereof are hereby expressly rejected and shall have no force or effect on the terms of this Agreement or any Order Form. EXCEPT FOR CLAIMS RELATED TO OR ARISING FROM CLIENT’S INDEMNITY OBLIGATIONS CONTAINED IN SECTION 12 HEREOF OR CLIENT’S PAYMENT OBLIGATIONS HEREUNDER, CLIENT AND SUPERCHARGED SMS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES OR THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION SHOULD HAVE REASONABLY BEEN DISCOVERED. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.