TERMS AND CONDITIONS OF SERVICE |
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF SERVICE ("AGREEMENT") CAREFULLY. BY USING (1) ANY SERVICE PROVIDED BY MESSAGE COMMUNICATIONS, INC., A CALIFORNIA CORPORATION OR (2) ANY SERVICES ACCESSIBLE THROUGH WWW.MESSAGECOMMUNICATIONS.COM OR WWW.DO-NOT-REPLY.COM OR (3) ANY SERVICE THAT REDIRECTS, RESOLVES, OR FORWARDS TO WWW.DO-NOT-REPLY.COM (herein referred to as "the Service", "Service", or "Services") YOU, AND THE ENTITY YOU REPRESENT (herein referred to as "Client") ACKNOWLEDGE, UNDERSTAND, AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS DESCRIBED HEREIN. IF YOU ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, OR IF YOU ARE NOT OF AGE, OR OTHERWISE UNABLE BY LAW TO BE A PARTY TO THIS AGREMEENT, DO NOT USE THE SERVICE. Message Communications, Inc. ("Broadcaster") its owner(s), affiliates, distributors, and their respective officers, directors, partners, members, managers, agents, employees, suppliers, representatives, shareholders, and each of their successors and assigns (collectively, the "Broadcaster Entities") shall not be liable and are not responsible for any loss or damage Client suffers, or any loss or damages suffered by any party through or under Client, as a result of, or related to, the use, misuse, or abuse of the Service including, but not limited to: any indirect, incidental, special, punitive or consequential damages, resulting from or relating in any way to the use of the Service, even if the Broadcaster Entities have been advised of the possibility of such damages. Client agrees to indemnify and hold Broadcaster Entities harmless from any and all claims, losses, damages, actions, demands, penalties, judgments, expenses and costs (including any attorney's fees and expenses) arising out of : Broadcaster Entities make no express or implied representations or warranties about the Service and disclaim any implied warranties, including, but not limited to, warranties of title, implied warranties of merchantability, fitness for a particular purpose, legal compliance, or non-infringement. Broadcaster Entities do not authorize anyone to make any warranties on their behalf, and Client may not rely on any statement of warranty as a warranty by Broadcaster Entities. Client recognizes that use of the Service is inherently complex, presenting sophisticated legal issues. For specific legal advisement, legal service, legal representation or legal opinions, Client agrees to consult it's own legal advisor. Broadcaster Entities expressly do not provide any legal advice, legal service, legal representation or legal opinions regarding the use of the Service. No legal advice, legal service, legal representation or legal opinion whatsoever is implied or warranted by Broadcaster Entities. Broadcaster Entities do not warrant that the Service performed will meet Client's requirements, or will operate in the manner desired by Client, or that the Service will be free from unauthorized intrusion. Client acknowledges and accepts that communications and transactions conducted online are not secure, that there may be a system failure that limits Client's accessibility to the Service online and that the Service is not guaranteed to be error free. Client acknowledges any data transmitted to, or processed by Broadcaster Entities may be lost, corrupted, destroyed, edited, deleted or contain errors. Broadcaster Entities are not responsible for the loss of any Client data. By using the Service, Client agrees to accept all responsibility and risk associated with the use of the Service online and the internet generally. Client acknowledges that Broadcaster has no control over how its underlying telecommunications provider(s) operate. Client agrees that Broadcaster Entities shall not be liable for any loss or damage sustained due to any failure in or breakdown of the communication facilities or computer applications associated with providing the Service, for any delay, interruption, or degradation of the Service. Service may be temporarily refused, limited, interrupted or curtailed due to system capacity limitations, technology migration, upgrades, repairs, relocations, limitations imposed by Broadcaster's underlying providers, or activities necessary for the operation or improvement of Broadcaster's network. Client acknowledges Service does not include any E911 or related emergency dialing features. Client acknowledges that the service is not intended, nor can it be used, as an outbound telephone replacement. Client agrees to maintain standard access to land-line or mobile telephone service with E911/short digit emergency dialing service. Service is provided on a "as is" and "as available" basis. Broadcaster Entities shall be held harmless in the event calls cannot be effected for any reason. Broadcaster reserves the right to cancel any scheduled campaign at any time. Should a scheduled campaign be cancelled for any reason by Broadcaster the limit of liability is the refund of any remaining prepaid balance for that particular campaign. Client agrees the total liability under ANY circumstances of Broadcaster Entities in aggregate hereunder shall not exceed $1,000 (One Thousand US Dollars) or the amount actually paid by the Client under this agreement, whichever is less. Should a scheduled campaign be canceled by Client, no refund will be issued. Client understands and acknowledges Service is a non-refundable, non-returnable, non-exchangeable, non-transferrable, prepaid Service. All purchases are final. Unused balances are non-refundable. Clients who manually disable their account or show no activity for over fifteen (15) days without prior written approval from Broadcaster will forfeit any prepaid balance and are subject to immediate account closure. Broadcaster may discontinue furnishing the Service immediately and Client will forfeit any prepaid balance if Broadcaster deems that such action is necessary to prevent or protect against the misuse of the Service. Misuse of the Service includes, but is not limited to; excessive call termination to a single central office in excess of that location's termination capacity; sequential dialing; excessive incomplete calls; violating any applicable law; using a false identity; attempting to mislead others as to the identity of the sender or origin of the message; impersonate any other person or entity; misrepresent your affiliation with any other person or entity; using the Service to distribute any sounds or messages which are obscene, harassing, racist, malicious, fraudulent, libelous, or otherwise objectionable; interfering with or disrupting networks connected to the Service; disrupting, interfering, or harming others use of the Service In no event shall Broadcaster Entities be liable for the fraudulent or illegal use of the Service by Client or by end-users of Client. Client represents and warrants that Service will not be utilized in a manner which results in violation of any law, rule or regulation. Client bears full responsibility for compliance with all state and federal laws regarding the content of the message(s) used. Client warrants message(s) used will be in compliance with 47 U.S.C. § 227 or warrants exemption from its requirements. Client recognizes Broadcaster as "Common Carrier" as defined in 47 U.S.C. § 153 hired to distribute messages on behalf of Client. Client understands the Telemarketing Sales Rules ("TSR") as provided by the Federal Trade Commission ("FTC"). Client agrees to maintain its own Subscription Account Number ("SAN") with the FTC if necessary. Client represents and warrants that message(s) used and Caller ID displayed will comply with all legal requirements. Client warrants compliance with the FTC's identification requirements and agrees to maintain a Do-Not-Call policy as required by law. Client warrants message(s) used will not result in, or intended to result in the sale or lease of goods or services to any California consumer in violation of California Civil Code §1770. Client warrants compliance with California Business & Professions Code §17511 et seq. or exempted therefrom. Client warrants compliance with all requirements prescribed in California Business & Professions Code §17500.3. Client will maintain an agent for service of process if required by the State of California. Client acknowledges that Broadcaster Entities have no obligation to screen, preview, or monitor the content of message(s) used. Broadcaster Entities shall have the right to display scripts and recordings used by Client as examples to other prospective Clients. Client understands some example messages provided or displayed to Client are not for actual use. Clients selecting any example message for actual use do so at their own risk, on their own initiative and are responsible for compliance with all applicable laws, rules and regulations. Broadcaster Entities may at their discretion disclose to a third party any information it deems necessary to satisfy any applicable law, regulation, legal process, governmental request, or in connection with any investigation, inquiry or complaint regarding Client's use of the Service. Client agrees to maintain the confidentiality of their assigned account number and passcode, and further agree take full responsibility for all activities and transactions that occur under Client's assigned account number(s). In the event of a default, Client agrees to pay all reasonable collection and/or attorney fees. Broadcaster is authorized to debit Client's bank account via check draft, Automated Clearing House ("ACH") or Electronic Funds Transfer ("EFT") for any unpaid balance. Broadcaster is authorized to process any check payment(s) received as an ACH or EFT. Client agrees to inform their representatives and all callers that calls are recorded. Call Duration ("CD") measurement is based on the difference in time from acceptance of call by Broadcasters underlying telecommunications provider and termination of call from underlying telecommunications provider billed in one minute (60 second) increments. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. This agreement shall be deemed to have been entered into in the State of California. Client hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Los Angeles County, California. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT CLIENT MAY OTHERWISE HAVE. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of, or related to this Agreement or to the use of the Service. Any disputes or claims made arising out of, or relating to this Agreement or the use of the Service (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) shall be resolved by binding arbitration, except that we may choose to pursue claims in court if the claims relate solely to the collection of any debts owed by Client. In all circumstances, all parties waive any claims for punitive damages and any right to pursue claims on a class or representative basis. Clients who wish to engage in arbitration must first notify Broadcaster of any claim or dispute in writing signed by Client in order to allow Broadcaster an opportunity to resolve the dispute. Client may request arbitration if claim or dispute cannot be resolved within ninety (90) days after notice has been received by Broadcaster. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association ("AAA") rules as modified by this agreement. Client agrees that this agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law. Any arbitration will take place in Los Angeles County, California, and will be conducted in the English language. An arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, or award punitive damages or any other damages aside from the prevailing party's actual damages. In any arbitration applying the AAA Rules applicable to large/complex cases, the Arbitrators must also apply the Federal Rules of Evidence, and the losing party may have the award reviewed in accordance with the review procedures set forth in the AAA Rules. Any arbitration shall be confidential, and neither Client nor Broadcaster Entities may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, than the remainder shall still be given full force and effect. All administrative fees and expenses of arbitration shall be paid by the party requesting the arbitration. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration. All parties to this Agreement are waiving certain rights to litigate disputes in court. If for any reason this arbitration clause is deemed unenforceable, illegal, inapplicable or invalid, all parties waive, to the fullest extent allowed by law, (i) any claims to recover punitive or exemplary damages (ii) Any right to pursue any claims on a class or consolidated basis, or in a representative capacity. (iii) the right to a trial by jury. If any provision of this Agreement is found, by a court or arbitrator of competent jurisdiction, to be unenforceable, illegal, inapplicable, or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Failure of Broadcaster Entities to exercise any right under this agreement shall not constitute a waiver of such right. All Services, pricing, and other charges due are exclusive of all applicable taxes, including value added tax, sales tax, duties, or levies imposed by any authority, government, or government agency, the payment of which shall be the sole responsibility of Client. This Agreement represents the final, complete, entire, and exclusive agreement with regard to the subject matter hereto. This agreement supersedes and merges all prior offers, agreements, promises, understandings, statements, representations, warranties, indemnities, and inducements to the making of this agreement relied upon by either party, whether written or oral. No waiver of any rights under this Agreement, will be effective unless in writing and signed by Broadcaster and Client. Client may not modify or amend this agreement except by a written instrument signed Broadcaster and Client. Broadcaster reserves the right to change or modify this Agreement at any time. Client agrees that such changes and modifications may be made solely by posting the revised Terms and Conditions of Service on Campaign Management Site found at http://www.Do-Not-Reply.com/FULL-TermsAndConditions.html. Client expressly agrees to such form of notification of changes and modifications and waives any right to receive individual notices of such changes or modifications. Any changes or modification will be effective immediately upon posting of the revisions. The continued use of the Service following the posting of any changes or modifications will constitute acceptance of such changes or modifications by Client. Client understands the necessity of reviewing this Agreement whenever using the Service in order to determine if any terms or conditions have changed, and to understand the terms and conditions that apply to the use of the Service by Client. Client may not assign or transfer this Agreement without the prior written consent of Broadcaster. Broadcaster may assign this agreement without consent of Client to any affiliated entity, sister company or successor in interest, whether by merger, reorganization, or transfer. Without obtaining the prior written consent of Broadcaster, Client shall not (i) refer to itself as an authorized representative of Broadcaster Entities in promotional, advertising or other materials; (ii) use Broadcaster's logo, trademarks, service marks, copyrighted materials, or any variations thereof in any of its promotional, advertising, or other materials, (iii) release public announcements referring to Broadcaster Entities or to this agreement without having first obtained prior written consent of Broadcaster. Broadcaster is hereby expressly authorized to identify Client as its customer for Services for the limited purpose of the issuance of marketing and/or promotional announcements. Broadcaster is expressly authorized to publish any Client provided written testimonial. No agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created as a result of this Agreement. Client agrees that all notices by Broadcaster to Client shall be considered written and properly given if sent to Client via the email address provided by Client at the time of registration and as necessarily updated by Client. Client shall configure its email system to accept correspondence from Broadcaster's network. Client hereby consents to receive notifications in email format and acknowledges that such format shall not affect the enforceability thereof. Notices to Client shall be deemed to have been received by Client on the next business day following the sending thereof. In the event Client wishes to not receive notices electronically, Client shall inform Broadcaster of such desire and Broadcaster shall terminate the Service immediately without further liability. Client agrees that all notices by Client to Broadcaster shall be in writing, sent via United States Postal Service, certified mail return receipt requested, and addressed to: 861 North Norman Place, Second Floor, Los Angeles, California, 90049-1532. Notices to Broadcaster from Client shall be evidenced only by signed return receipt and shall be deemed to have been received when successfully delivered by the United States Postal Service. All information and materials published, transmitted, or otherwise available on the Message Communications website or Campaign Management website, is the valuable property of Message Communications, Inc. and its licensors and is protected by copyright and other intellectual property laws and treaties. Message Communications, Inc. and its licensors own all right, title and interest in and to all content, including all copyright and other intellectual property rights. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, arbitration provisions, warranty disclaimers, limitations of liability, governing law and venue provisions. Termination of Client access to and use of Services shall not relieve Client of any obligations arising or accruing prior to such termination or limit any liability which Client may otherwise have to Broadcaster Entities, including without limitation any indemnification obligations contained herein. ELECTRONIC PAYMENT ACCEPTANCE AND AUTHORIZATION: Broadcaster is hereby authorized to initiate Electronic Funds Transfers ("EFTs") in varying amounts to the Bank Account and Routing Number ("Bank Account") provided by Client for fees (debit transactions), and refunds (credit transactions). If an error is made, Broadcaster is authorized to correct the entry. EFTs will be made in compliance with the United States Code of Federal Regulations ("CFR") Section E. Client certifies under the penalty of perjury that they have the authority to accept these terms for the Bank Account provided. The individual consenting to this agreement personally guarantees all obligations and EFTs under this agreement. REQUIRED LEGAL DISCLOSURES AND WAIVERS FOR ELECTRONIC FUNDS TRANSFERS: (Confidentiality & Privacy Statement) (12 CFR § 205.7(b)(9)) Bank Account information may only be disclosed to third parties : (i) In order to comply with government agency or court order, (ii) In order to verify the existence and condition of the Bank Account, (iii) When necessary to complete, authorize, or confirm EFTs. If Bank Account Holder(s) have questions regarding EFTs by Broadcaster they may call (12 CFR § 205.7(b)(3)) Monday through Friday 9am to 5pm Pacific Standard Time (Contact Information) (12 CFR § 205.7) Toll free at 800-848-8621. (Documentation) (12 CFR § 205.7(b)(6)) Bank Account Holder(s) will be provided with periodic notifications or statements showing transactions. (Consumer Liability)(12 CFR § 205.7) Bank Account Holder(s) within the limitations prescribed by 12 CFR § 205.6 may be liable for unauthorized EFTs. (Right to stop payment) (12 CFR § 205.10(d)) Bank Account Holder(s) voluntarily waive the right to make a stop payment orally, but retain the right to make stop payments in writing by notifying Message Communications via Certified Mail Return Receipt Requested at least three business days before the scheduled date of a transfer to 861 North Norman Place, Second Floor, Los Angeles, CA 90049. (12 CFR § 205.10(d) (Right to stop payment) This authorization is to remain in full force and effect until revoked in writing via Certified Mail Return Receipt Requested and Message Communications has had reasonable time to act upon it. (Mailing Address : 861 Norman Place, Second Floor, Los Angeles, CA 90049) (Notice of Varying Amounts)(12 CFR § 205.10(d)(2) by Range) Bank Account Holder(s) retain the right to be given 10 days notice of EFTs which "vary in amount from the previous transfer", but agree only to be given notice of EFTs which exceed three times the average dollar amount of EFTs initiated by Message Communications. The individual party to this agreement on behalf of Client represents and warrants that he/she has the full capacity and authority to enter into this agreement on behalf of Client, and that he/she has taken all steps necessary to obtain and achieve said authority. To the extent that such authority is found wanting by a court or arbitrator, he/she agrees to immediately take all steps necessary to obtain and achieve said authority, and that until he/she does so, he/she will remain personally liable for all obligations contained herein. The individual party to this agreement personally guarantees all payments, debts, obligations, and liabilities incurred under this agreement. In the event that a court or arbitrator should hold that any of the provision, terms, conditions, disclaimers, limitations of liabilities or remedies available as set forth Agreement, or any portions thereof, are unenforceable for any reason, or that any of the Client's remedies under this Agreement fail of their essential purpose, Client expressly agrees that under no circumstances shall Broadcaster Entities total liability to any party for any cause whatsoever and regardless of the form of action, whether in contract or in tort, including negligence or strict liability, in the aggregate, exceed $1,000 (U.S.). |