TrueDialog Inc. (“TrueDialog”) operates a technology platform that enables its customers to create and manage mobile messaging content and then initiate the transmission of their messages over communications networks for ultimate delivery to wireless subscribers selected by the customer, as well as to receive communications from wireless subscribers (the “Services”). These Terms of Service (“Terms”) govern your access to and use of the Services, TrueDialog’s website (the “Site”), and any information, text, graphics, or other materials created and/or provided by TrueDialog or appearing on the Site (the “Content”). These Terms of Service limit TrueDialog’s liability and obligations to you, grant TrueDialog certain rights and allow TrueDialog to change, suspend or terminate your access to and use of the Site, Content, Files and Services. Your access to and use of the Site, Content, Files and/or Services are expressly conditioned on your compliance with these Terms of Service. By accessing or using the Site, Content, Files and/or Services you agree to be bound by these Terms of Service.
YOU UNDERSTAND THAT BY CLICKING THE “I AGREE” BUTTON, BY USING THE SITE, CONTENT, FILES AND/OR SERVICES OR YOUR ACCOUNT YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE, CONTENT, FILES OR SERVICES. You are specifically agreeing to a limit of our obligations and liability as referenced in the following Sections: Use of Site at Your Own Risk, TrueDialog is Available “AS IS” and Limitation of Liability. Further, you are specifically agreeing to arbitration, on an individual basis, in the event of a dispute between us in the following Section: Controlling Law, Arbitration, Class Action Waiver and Jurisdiction. If you agree to these Terms of Service on behalf of a business, you represent and warrant that you have the authority to bind that business to these Terms of Service and your agreement to these terms will be treated as the agreement of the business. In that event, “you ” and “your” will refer and apply to that business. This paragraph does not apply if you or your organization have a separate written agreement with TrueDialog covering the use of the Services, such as a Master Services Agreement, in which case that agreement will govern your use of the Services.
The following Definitions are used throughout the “Terms of Service” document.
“Products”: consists of a browser interface, message application, SMS gateway access, data encryption, data transmission, data-access and data storage.
“Keyword”: the word identifier assigned to you when your set up your account. This is a unique set of characters and/or numbers that allows users to text your “keyword” to a short code (70626) and send your messages.
“Statement of Work”: a document that defines the work activities, deliverables, timeline, and projected costs of the project.
Account Pricing Terms and Conditions
The fees will be billed monthly from the date you elect, and will renew annually on the anniversary thereafter unless and until you cancel your account with 30 days notice. Check your “Statement of Work” to see the commencement date for your next renewal period. TrueDialog will automatically bill your credit card each month on the calendar day corresponding to the commencement of your paid account. You acknowledge that the amount billed each month may vary for reasons that include changes due to promotional offers, changes in your account, or changes in the amount of applicable sales tax. Additionally, we will charge you, and you shall pay, any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider as a result of your use of the Services. You authorize us to charge your credit card or banking account for such varying amounts. TrueDialog may also periodically authorize your credit card in anticipation of account or related charges. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods.
In the event of any change in fees and charges, we will give you 30 days’ advance notice of these changes by email. If you want to use a different credit card or if there is a change in your credit card validity or expiration date, you may edit your information by accessing your account or contacting us directly. If your credit card reaches its expiration date, your continued use of the Services constitutes your authorization for us to continue billing that credit card and you remain responsible for any uncollected amounts. It is your responsibility to keep your contact information and payment information current and updated.
Canceling Your Account
Your TrueDialog paid account will continue in effect unless and until you cancel your paid account or we terminate it. You must cancel your paid accounts before it renews each year in order to avoid billing of the next year’s fees to your credit card. TrueDialog will bill the fees associated with your paid accounts plus any applicable tax to the credit card you provide to us during registration (or to a different credit card if you change your account information).
TrueDialog paid accounts are prepaid and are non-refundable. TrueDialog DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL PERIODS. You may cancel your TrueDialog paid account at any time, and cancellation will be effective at your next annual anniversary date. If you wish to cancel your paid account you may do so via your “Account” page or contact Client Services. Should you elect to cancel your paid accounts, please note that you will not be issued a refund.
By signing up for a TrueDialog paid accounts and providing TrueDialog with your payment account information, you hereby agree to these payment terms and conditions.
Your Intellectual Property Rights And License Grant
Some features on the Site and through the Services allow you to create and initiate communications (“Your Content”). You own any intellectual property rights to Your Content, but you automatically grant, or warrant that you and/or the owner of such content has expressly granted TrueDialog a royalty-free, perpetual, irrevocable, worldwide, unlimited, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display Your Content in any media or medium, or any form, format, or forum now known or hereafter developed. We may sublicense these rights through multiple tiers of sublicenses. You are responsible for Your Content, and acknowledge that once published, we cannot always remove it. TrueDialog When you delete Your Content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
You represent and warrant that the information you have provided is accurate information and that you have the necessary rights, ownership of the cell phone, consents and permissions.
You acknowledge and agree that you should not rely on the Site, Content, Messaging and Services for any reason. You further acknowledge and agree that you are solely responsible for maintaining and protecting all data and information that is stored, retrieved or otherwise processed by the Site, Content, Messaging or Services. Without limiting the foregoing, you will be responsible for all costs and expenses that you or others may incur with respect to backing up, and restoring and/or recreating any data and information that is lost or corrupted as a result of your use of the Site, Content, Messaging and/or Services.
You are responsible for safeguarding the password that you use to access the Site, Content, Messaging and Services. You agree not to disclose your password to any third party. You agree to take sole responsibility for any activities or actions under your password, whether or not you have authorized such activities or actions. You will immediately notify TrueDialog of any unauthorized use of your password. You acknowledge that if you wish to protect your transmission of data and/or files to TrueDialog, it is your responsibility to use a secure encrypted connection to communicate with and/or utilize the Site, Messaging and Services, where possible.
TrueDialog only provides that the Services are processed correctly and the messages you initiate are further transmitted by TrueDialog to the applicable network. TrueDialog is not responsible for the final delivery of any communication initiated through the Services, as this is out of TrueDialog’s control and is the responsibility of downstream communications carriers.
TrueDialog transmits and receives text messages via other major telecommunications companies and mobile network operators, and thus TrueDialog’s influence over the timing security of the transmission of your messages is within the technical constraints imposed upon TrueDialog. While TrueDialog shall use commercially reasonable efforts to transmit your messages to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of your messages across the communications ecosystem. You should also know that wireless carriers assign text messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the wireless carrier without notice. TrueDialog is not liable for any loss incurred by the failure of a message to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from TrueDialog for any such non-deliveries. You further agree that communications and content transmitted through the Services shall not be deemed confidential and TrueDialog shall have no obligation to maintain the confidentiality of your messages.
Your Use of the Services
TrueDialog grants you a limited, nonexclusive, nontransferable, revocable license to use the Site, Content, Messaging and Services subject to the restrictions set forth in these Terms of Service.
TrueDialog Property and Feedback
All right, title, and interest in and to the Site, Content, and Services are and will remain the exclusive property of TrueDialog and its licensors, including all Intellectual Property Rights (as defined below) therein, even if TrueDialog incorporates any of your Feedback (as defined below) into subsequent versions. The Site, Content, and Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Except as expressly permitted in these Terms of Service, you may not reproduce, modify or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Site, Content, or Services. You may not copy or modify the HTML or other code used to generate web pages on the Site.
All feedback, comments, and suggestions for improvements (the “Feedback”) that you provide to TrueDialog, in any form, and any contributions you make to the Site by posting content and communicating with other TrueDialog users via posts to forums on the site (“User Posts”) will be the sole and exclusive property of TrueDialog. You hereby irrevocably transfer and assign to TrueDialog and agree to irrevocably assign and transfer to TrueDialog all of your right, title, and interest in and to all of your Feedback and User Posts, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, the “Intellectual Property Rights”) therein. At TrueDialog’s request and expense, you will execute documents and take such further acts as TrueDialog may reasonably request to assist TrueDialog in acquiring, perfecting and maintaining its Intellectual Property Rights and other legal protections for your Feedback and User Posts. You will not earn or acquire any rights or licenses in the Site, Content, and Services or in any TrueDialog Intellectual Property Rights on account of these Terms of Service or your performance under these Terms of Service.
Acceptable Use Policy
TrueDialog provides a self-service communications platform that allows you to create text messages, and initiate those messages to recipients you have selected. TrueDialog is a passive conduit in further transmitting the text messages you control and initiate yourself through the Services. You further understand that, in addition to potentially applicable legal requirements, your text messages may be subject to certain disclosure requirements mandated by the wireless carriers, such as those contained in the CTIA Short Code Monitoring Handbook (e.g., opt-in and opt-out confirmation messages). You understand that TrueDialog does not control such wireless carrier requirements, and your use of the Services may be subject to the approval of the wireless carriers – including your inclusion of disclosures that may be transmitted as a result of a wireless subscriber’s interaction with you or your messaging program. You agree that you are fully responsible for complying with all legal and industry requirements, and that you are the initiator of all text messages occurring under your account.
You further agree that the Services may not be used in any manner that: (i) is illegal; (ii) is non-compliant with accepted industry best practices or applicable guidelines, (iii) disrupts or damages any of TrueDialog’s computer systems or network or other parties’ computer systems and networks, or (iv) violates any person’s rights.
The following list provides examples of prohibited uses and is not meant to be comprehensive, and you are ultimately responsible for the messages that you initiate through the Services.
You agree that your use of the TrueDialog Services will only be for lawful purposes, and will not include:
* Initiating any message through the Services to an individual who has not consented or otherwise opted-in to the receipt of such message as required by any applicable law or regulation.
* Engaging in any messaging that is offensive, obscene, libelous, defamatory, fraudulent, abusive, or contains tortious material.
* Engaging in messaging that is unsuitable for minors.
* Engaging in messaging that promotes, incites or instructs on criminal matters.
* Engaging in messaging that is false, misleading or deceptive, or likely to mislead or deceive.
* Engaging in messaging that infringes the intellectual property rights or other rights of a third party, including trademarks, copyrights or other rights of publicity.
* Sending any messages to life-line or public safety services, such as hospitals, fire, police, 911 or utility-related telephone numbers.
* Using the Services to receive, transmit or otherwise maintain electronic Protected Health Information, as defined by the Health Insurance Portability and Accountability Act of 1996, as amended, or use the Services in any manner that would make TrueDialog your or any third party’s business associate.
* Using the Services in any manner that violates: applicable industry standards; any third party policies including all of the applicable guidelines published by the CTIA, or any other accepted industry associations, carrier guidelines (or any similar or analogous industry standards, third party policies or requirements in any other jurisdiction); or additional requirements that TrueDialog may communicate to you.
* Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs.
* Reverse-engineering the Services in order to find limitations, vulnerabilities, or evade monitoring capabilities.
* Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means.
* Engaging in messaging that is otherwise unlawful or could expose TrueDialog or any third party to liability, damages, or danger.
In addition, you will honor immediately any requests to opt-out or stop further messaging (e.g., any “STOP” messages), and desist from initiating any further message following receipt of any such opt-out or stop request. You should also schedule the timing of your messages responsibly and adhere to any calling time restrictions that may be applicable to your messages.
Violation of these usage requirements may result in termination or suspension of all Services provided by TrueDialog and may also result in civil, criminal, or administrative liability or penalties against you. Remember, you are ultimately responsible to make your own informed decisions regarding your use of the Services and you remain fully liable for any use of the Services in violation of any applicable law, as well as this Acceptable Use Policy and any operative agreement(s) between us.
Any failure to enforce this Policy does not amount to a waiver of TrueDialog’s rights.
Digital Millennium Copyright Act Compliance
You will only upload, post, submit or otherwise transmit data and/or files: (i) that you have the lawful right to use, copy, distribute, transmit, or display; or (ii) that does not infringe the intellectual property rights or violate the privacy rights of any third party (including, without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity). TrueDialog has adopted and implemented a policy that permits the deletion of files that violate this policy, and that permits the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders.
Links And Third-Party Content
The Site may contain links to third-party websites or resources. TrueDialog may also act as a conduit between you and certain wireless carriers that may review and approve of your messaging program before you launch it, and continue to monitor your compliance with their requirements thereafter. You acknowledge and agree that TrueDialog is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by TrueDialog of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
You further agree that any information provided to you by TrueDialog regarding potentially applicable legal and industry requirements is for informational educational purposes only, and TrueDialog does not provide legal advice. No action should be taken in reliance on any such informational material posted on the Site or provided to you by TrueDialog. If you are uncertain about the legality of your use of the Services, TrueDialog encourages you to seek the advice of an attorney to ensure that the specific messages you initiate through the Services are fully compliant with all applicable regulations, as you are solely responsible for the messages you initiate through the Services.
If you violate any of these Terms of Service, your permission to use the Site, Content, Messaging and Services will automatically terminate. TrueDialog reserves the right to revoke your access to and use of the Site, Content, Messaging and Services at any time, with or without cause, and with or without notice. TrueDialog also reserves the right to cease providing or to change the Site, Content, Messaging or Services at any time and without notice.
TrueDialog reserves the right to terminate Free Accounts at any time, with or without notice. Without limiting the generality of the foregoing, and without further notice, TrueDialog may choose to delete and/or reduce: (i) any or all of Your Files if your Free Account is inactive for 90 days; and (ii) previous versions and/or prior backups of Your Files.
Use of the Site at Your Own Risk
Your access to and use of the Site, Content, Messaging and Services and is at your own risk. TrueDialog will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Site, Content, Messaging or Services.
TrueDialog is Available “AS-IS”
The site, content, messaging and services are provided “as is”, without warranty or condition of any kind, either express or implied. Without limiting the foregoing, TrueDialog explicitly disclaims any warranties of merchantability, fitness for a particular purpose or non-infringement and any warranties arising out of course of dealing or usage of trade. You acknowledge that use of the site, content, messaging and services may result in unexpected results, loss or corruption of data or communications, project delays, other unpredictable damage or loss, or exposure of your data or your files to unintended third parties.
Truedialog makes no warranty that the site, content, messaging or services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Truedialog makes no warranty regarding the quality of any products, services, or information purchased or obtained through the site, content, or services, or the accuracy, timeliness, truthfulness, completeness or reliability of any information obtained through the site, content, files or services.
No advice or information, whether oral or written, obtained from TrueDialog or through the site, content, files or services, will create any warranty not expressly made herein.
You agree to indemnify and hold TrueDialog, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees and costs (including attorneys’ fees incurred from counsel selected by TrueDialog in its sole discretion), arising out of or in any way connected with: (i) your access to or use of the Site, Content, Messaging or Services; (ii) your alleged violation of this Agreement; (iii) your alleged violation of any third party right; (iv) any claim that TrueDialog, or your use of the Services, caused damage or harm to a third party, including without limitation claims that TrueDialog, or use of the Services, infringe the rights of another; (v) responding to a subpoena or other legal process related to your use of the Services.
Limitation of Liability
In no event will TrueDialog be liable to you or to any third party for damages of any kind, including, without limitation, direct, special, incidental, punitive or consequential damages (including loss of use, data, business or profits) arising out of or in connection with this agreement, or from your access to or use of, or inability to access or use, the site, content, messaging and/or services, or for any error or defect in the site, content, messaging or services, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, or any other legal theory, whether or not TrueDialog has been informed of the possibility of such damage, even if a remedy set forth herein is found to have failed of its essential purpose. You specifically acknowledge that TrueDialog is not liable for the defamatory, offensive or illegal conduct of other users or third parties and that the risk of injury from the foregoing rests entirely with you. Further, TrueDialog will have no liability to you or to any third party for any third party content uploaded onto or downloaded from the site or through the services and/or the files, or if your data is lost, corrupted or exposed to unintended third parties.
Free account holders: you agree that the aggregate liability of TrueDialog to you for any and all claims arising from the use of the site, content, messaging and/or services is limited to ten ($10) US Dollars. The limitations of damages set forth above are fundamental elements of the basis of the bargain between TrueDialog and you.
Premium account holders: you agree that the aggregate liability of TrueDialog to you for any and all claims arising from the use of the site, content, files and/or services is limited to lower of the amounts you have paid to TrueDialog during the three month period prior to such claim, for access to and use of the site, content, files or services, or fifty ($50) dollars. The limitations of damages set forth above are fundamental elements of the basis of the bargain between TrueDialog and you.
In the event that any provision of these Terms of Service is held to be invalid or unenforceable, the remaining provisions of these Terms of Service will remain in full force and effect.
The failure of TrueDialog to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision.
You and TrueDialog are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and TrueDialog will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and TrueDialog will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor TrueDialog has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.
You will not assign or otherwise transfer these Terms, in whole or in part, without TrueDialog’s prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be void. TrueDialog may assign these Terms, in whole or in part, without consent.
Controlling Law, Arbitration, Class Action Waiver and Jurisdiction
To the fullest extent permitted by law, each of the parties agrees that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated hereby.
The appointed arbitrator may award monetary damages and any other remedies allowed by the state law designated above. In making his or her determination, the arbitrator will not have the authority to modify any term or provision of these Terms. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance the Award. Any Award (including interim or final remedies) may be confirmed or enforced in any court having jurisdiction, including any court having jurisdiction over either party or its assets. The decision of the arbitrator will be final and binding on the parties and will not be subject to appeal or review. Each party will advance one-half of the fees and expenses of the arbitrator, the costs of the attendance of the court reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to these Terms, the arbitrators will award to the prevailing party, if any, costs and attorneys’ fees reasonably incurred by the prevailing party in connection with that aspect of its claims or defenses on which it prevails, and any opposing awards of costs and attorneys’ fees awards will be offset. The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, or confirmation of an Award or its enforcement, or unless otherwise required by any applicable law. Any documentary or other evidence produced in any arbitration hereunder will be treated as confidential by the parties, witnesses and arbitrators, and will not be disclosed to any third person (other than witnesses or experts), except as required by any applicable law or except if such evidence was obtained from the public domain or is otherwise obtained independently of the arbitration.
The export and re-export of TrueDialog software products are controlled by the United States Export Administration Regulations and such software may not be exported or re-exported to Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States. If you are a resident or national of, or a business located in, any of those countries, you may not download or use the TrueDialog software products. In addition; TrueDialog software may not be distributed to persons on the Table of Denial Orders; the Entity List; or the List of Specially Designated Nationals.
These Terms of Service are the entire and exclusive agreement between TrueDialog and you regarding the Site, Content, Services and Your TrueDialog, and these Terms of Service supersede and replace any prior agreements between TrueDialog and you regarding the Site, Content, Services and Your TrueDialog. We may change these terms at any time. If you continue to use the Services after such change, then you will have been deemed to have accepted such changes.