Terms of Service
The service provided by Textey LLC (“Textey”) enables the users of our system to send and receive SMS communication from within Salesforce.com. Textey provides its services subject to the terms and conditions contained in these Terms of Service (this “Agreement”). To become eligible to use Textey’s services under this Agreement, you must review and accept the terms of this Agreement by clicking on the “I Accept” button or other mechanism provided.
Please review the terms of this Agreement carefully. Once accepted, this Agreement becomes a binding legal commitment. If you have any questions, you can reach the Textey team at firstname.lastname@example.org.
The following definitions shall apply to this Agreement:
“Authorized Users” shall mean Customer, employees and members of Customer, and those individuals and entities who Customer authorizes to receive messages from, and send messages to, Customer using the Services in accordance with this Agreement.
“Confidential Information” shall mean any information relating to, or disclosed in the course of the Term of this Agreement, which is designated as ‘confidential’ or ‘proprietary’ or some similar designation, or information which is or should be reasonably understood to be confidential or proprietary to the disclosing party. Confidential Information includes but is not limited to the Textey Services, the underlying software, the Documentation, the terms and pricing under this Agreement, business strategies, specifications, and technical data. Confidential Information shall not include information (a) already known to either party at the time of receipt thereof from the other; (b) that was readily available to the general public at the time of receipt thereof from the other; (c) that subsequently becomes known to the general public through no fault or omission on the part of the party receiving such information; (d) that is subsequently disclosed by a third party which has a bona fide and legal right to make such disclosure; or (e) that is required to be disclosed by a court of competent jurisdiction or other governmental authority or pursuant to applicable law, provided that the receiving party shall give prompt notice to the disclosing party prior to any such disclosure and reasonably assist the disclosing party in seeking a protective order.
“Customer” shall mean the individual accepting the terms of this Agreement or the entity such individual represents, as applicable.
“Customer Data” means data and other information made available to Textey through the use of the Textey Services under this Agreement, including but not limited to call records, SMS records, and SMS message content.
“Documentation” shall mean all of the instructions, code samples, on-line help files, user manuals, and technical documentation made available by Textey for the Textey Services. Documentation is provided in electronic form.
“Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services.
“Fee(s)” shall mean all fees for purchasing Textey Services and related licenses.
“Textey Acceptable Use Policy” means certain terms and conditions relating to the use of the Textey Services, available at http://www.textey.io/acceptable-use-policy, as may be updated from time to time.
“Textey API” means an application-programming interface for the Textey Services (or feature of the Textey Services) provided to Customer by Textey.
“Textey Properties” means the Textey website, Textey API, Documentation, and technical support made available by Textey to Customer in connection with the Textey Services.
“Textey Services” shall mean the services provided by Textey to Customer under this Agreement, including all programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by Textey, including without limitation the Textey APIs and any software provided to Customer in connection with its use of the Textey Services.
“Payment Method” shall have the meaning given in Section 4.3.
“Price List” shall mean the list of Fees for Textey Services available at http://www.textey.io/pricing.
“Release” shall mean any version, update, release, patch, or enhancement of the Textey Services, including any software provided for the purpose of improving the functions or performance of the Textey Services, changing the intellectual property contained in the Textey Services, expanding the capability or ease of operation of the Textey Services, or for the purpose of fixing errors in program logic, together with Documentation.
“Supported Device” is a device that is supported by the Textey Services.
“Term” shall have the meaning given in Section 5.1.
2. Software as a Service.
2.1 License. Subject to the payment of Fees for Textey Services and subject to the terms and conditions of this Agreement, during the Term of this Agreement, Textey will provide to Customer the Textey Services. Textey grants Customer a non-transferable, non-sublicensable, non-exclusive worldwide license, during the term, to:
2.1.1 access the Textey Services for the internal business purposes of Customer; and
2.1.2 offer and make the Textey Services available to Authorized Users, in accordance with the Documentation and this Agreement.
2.2 Authorized Users. The license granted by this Agreement authorizes access to the Textey Services only by Authorized Users.
2.3 Restrictions. Except as provided in Section 2.1 above, Customer shall not transfer, lease, loan, resell, distribute, or otherwise grant any rights in the Textey Services in any form to any other party, including any commercial time-sharing, rental, or service bureau use. Customer will not use the Textey Services to access or allow access to Emergency Services.
2.4 No Modification or Reverse Engineering. Customer shall not and shall not allow any third party to: (i) reverse engineer, reverse assemble, decompile, or otherwise attempt to derive the source code (or underlying structure or algorithms) from the Textey Services or decode or decrypt any data files created by or associated with the Textey Services; or (ii) alter, adapt, or modify the Textey Services or otherwise create any derivative works from the Textey Services.
2.5 Access to Textey Services Documentation. Customer shall have access to such Documentation as required to access and use the Textey Services. Customer shall not copy the Documentation without the prior written consent of Textey. Customer shall not remove, modify, or obscure any copyright and other proprietary rights notices.
2.6 Acknowledgement Of Textey’s Ownership Rights. Customer acknowledges that the licenses granted under Section 2.1 do not constitute a transfer or sale of Textey’s ownership rights in and to the Textey Services, the underlying software, or the Documentation (or any modifications thereto). All right, title, and interest, including all intellectual property rights, in and to the Textey Services and the Documentation, and any modifications thereto made by or for Customer (including any copies or subsequent Releases), shall be and will remain the exclusive property of Textey or any third party from whom Textey has licensed software or technology. Customer further acknowledges that the Textey Services, the underlying software, the Documentation, and all information therein are proprietary to Textey and its licensors and comprises: (a) original works of authorship, including compiled information containing Textey’s or its licensors’ selection, arrangement and coordination, and expression of such information; (b) confidential and trade secret information; and (c) information that has been created, developed, and maintained by Textey or its licensors at great expense of time and money such that misappropriation or unauthorized use by others for commercial gain would unfairly and irreparably harm Textey and its licensors.
2.7 Phone Numbers. Should Customer terminate or breach this Agreement, Textey reserves the right to reclaim any phone number from Customer’s account and return that number to the relevant numbering plan. In the event that Textey seeks to reclaim one or more phone numbers from Customer’s account, Textey will provide at least two weeks’ written notice to Customer (via email) that Textey is reclaiming one or more phone numbers, unless Textey is otherwise prevented from doing so by the applicable regulatory agency or governmental organization
3. CUSTOMER OBLIGATIONS.
3.1 Customer Responsibility. Customer will be solely responsible for all use (whether or not authorized) of the Textey Services and Documentation under its account, including for the quality and integrity of Customer Data. Customer will ensure that it has a written agreement with each Authorized User (“Authorized User Agreement”) that enables Textey and Salesforce.com to use all Customer Data as necessary to provide the Services and that protects Textey’s rights to the same extent as the terms of this Agreement. The Authorized User Agreement must include terms concerning restrictions on use, use of data, protection of proprietary rights, disclaimer of warranties and limitations of liability. Textey agrees that, subject to the foregoing requirements, the Authorized User Agreement need not specifically refer to Textey. Customer will promptly notify Textey if it becomes aware of any breach of the terms of the Authorized User Agreement that may affect Textey. Customer will take all reasonable precautions to prevent unauthorized access to or use of the Textey Services and notify Textey promptly of any such unauthorized access or use.
3.2 Acceptable Use. Customer will ensure that the Textey Services provided hereunder are used by Customer and all Authorized Users in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement, including Textey’s Acceptable Use Policy, which is hereby incorporated into this Agreement. Specifically and without limitation, Customer will ensure that Textey is entitled to use the Customer Data as needed to provide the Textey Services and will not use the Textey Services in any manner that violates any data protection statute, regulation, order or similar law.
3.3 Use of Data. Textey may obtain information from, or access data stored on, a Customer’s or Authorized User’s Supported Device to provide the Textey Services. The Textey Services may transmit information to and from the Supported Device to provide the Textey Services. The Textey Services may provide salesforce.com, Textey, or other licensors with information related to Customer’s or Authorized User’s use of the Textey Services, including but not limited to information regarding the computer system, call records, SMS records, and SMS message content, which Salesforce.com, Textey, and other licensors may use to provide and improve the Textey Services, the underlying software, and related products. Customer consents to this use of data and agrees to obtain consent from all Authorized Users for the use of data.
3.4 Salesforce Data. Customer agrees that, by using the Textey Services, electronic data or information submitted by Customer directly into Salesforce.com’s systems through their use of the Salesforce.com services will be transmitted outside Salesforce.com’s system. To that extent, Customer agrees that Salesforce.com is not responsible for the privacy, security or integrity of such data.
3.5 Suspension of Services. At Textey’s sole discretion, Textey may suspend or stop providing the Textey Services to Customer immediately and without notice if Customer does not comply with the terms of this Agreement or if Textey is investigating suspected misconduct.
3.6 Changes to Service. Customer acknowledges that the features and functions of the Textey Services, including the Textey APIs, may change over time. It is Customer’s responsibility to ensure that calls or requests Customer makes to the Textey Services are compatible with then-current Textey APIs. Although Textey endeavors to avoid changes to the Textey APIs that are not backwards compatible, if any such changes become necessary, Textey will use reasonable efforts to notify Customer at least 60 days prior to implementation and to provide information required for Customer to continue to use the Services.
4. FEES AND EXPENSES.
4.1 Fees and Expenses. Customer shall pay the appropriate Fees in the Price List to Textey on a monthly basis. Should Customer request Textey personnel to travel to Customer’s site, Customer agrees to reimburse Textey for all travel and travel related expenses incurred by such Textey personnel.
4.2 Fee Increases. Textey reserves the right to adjust pricing for the Textey Services in any manner and at any time as Textey may determine in Textey’s sole and absolute discretion.
4.3 Payment Terms. All Fees, expenses, and costs shall be paid in United States dollars. Customer shall provide valid credit card information (the “Payment Method”) to Textey for billing purposes. Customer authorizes Textey to charge the monthly Fee at the then current rate, and any other charges Customer incurs in connection with Customer’s use of the Textey Services, to the Payment Method. Customer acknowledges that the amount billed each month may vary from month to month. The Fee for the Textey Services will initially be billed on the Effective Date and each month thereafter unless and until the Agreement terminates. Textey shall automatically bill Customer’s Payment Method each month on the calendar day corresponding to the Effective Date of this Agreement. Textey reserves the right to change the timing of billing, in particular, as indicated below, if Customer’s Payment Method has not successfully settled. In the event Customer’s paying membership began on a day not contained in a given month, Textey may bill Customer’s Payment Method on a day in the applicable month or such other day as Textey deems appropriate. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Customer does not update the Payment Method information or terminate the Agreement within thirty (30) days of Textey’s notification to Customer that a payment has not settled, Textey reserves the right to terminate the Agreement in accordance with Section 5 of this Agreement. Customer shall remain responsible for any uncollected amounts and authorizes Textey to continue billing the Payment Method, as it may be updated. Any amounts not paid when due shall be subject to interest at the lesser of 1.5% per month or the maximum rate allowed by applicable law.
4.4 Taxes. All Fees are exclusive of any and all taxes, duties, or levies assessed by applicable governmental authorities. All such taxes, duties, and levies (exclusive of any taxes based upon Textey’s income) shall be assumed by and paid for by Customer.
5. TERM AND TERMINATION.
5.1 Term. The term of this Agreement shall commence upon the date Customer accepts this Agreement (the “Effective Date”) and continue in full force and effect for a period of one (1) month unless earlier terminated in accordance with this Section 5, or as otherwise specified in this Agreement. Upon expiration of the initial term, this Agreement shall automatically renew for successive one (1) month periods unless Customer provides Textey with written notice of Customer’s termination in accordance with this Section 5. “Term” shall mean the initial one (1) month term plus any successive one (1) month term extensions.
5.2 Bankruptcy. Either party may terminate this Agreement by providing written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for the other party or its property; (ii) the other party makes a general assignment of all or substantially all of its assets or business for the benefit of its creditors; (iii) the other party commences or has commenced against it proceedings under any bankruptcy law, which proceedings are not dismissed within sixty (60) days; or (iv) the other party ceases to do business.
5.3 Termination by Textey. Textey shall have the right to terminate this Agreement in the event Customer (i) commits a material breach of any of its obligations concerning access to or the protection of the Textey Services, intellectual property of Textey, or Confidential Information; or (ii) materially breaches any of its obligations under any provision of this Agreement, including but not limited to failure to pay the Fees in accordance with Section 4 of this Agreement, which breach is not remedied by Customer within thirty (30) days after receipt of written notice of such breach from Textey.
5.4 Termination by Customer. Customer shall have the right to terminate this Agreement at any time, and Customer shall continue to have access to the Textey Services through the end of the current monthly billing period. Payments are nonrefundable, and there are no refunds or credits for partially used period. Customer shall also have the right to terminate this Agreement in the event that Textey materially breaches any of its obligations under this Agreement, which breach is not remedied within thirty (30) days after receipt of written notice of such breach from Customer. In addition, Customer may terminate this Agreement as set forth in Section 5 of the Agreement.
5.5 Rights Upon Termination. Termination of this Agreement shall not limit either party from pursuing other remedies available to it (except where a sole remedy is specified), including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees, expenses, and costs that have accrued or are otherwise owed by Customer to Textey. The parties’ rights and obligations under Sections 1, 2.4, 2.6, 5, 6, 7, 8, 9, and 10 of the Agreement shall survive termination or expiration of this Agreement.
6.1 Third Party Databases; Data. Textey shall not be liable for any specific settings or databases embedded within the Textey Services. Textey does not warrant the accuracy of codes or other data contained in the Textey Services or any third party database incorporated into or affiliated with the Textey Services.
6.2 Data Storage. Textey shall not have any liability for the content of any SMS messages stored by Textey. Customer acknowledges that, unless expressly agreed otherwise in a writing signed by Customer and Textey, data storage is not guaranteed by Textey and agrees that Textey shall not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to the loss or deletion of Customer Data.
6.3 Deliverability. Textey does not guarantee that SMS messages will be delivered within a particular timeframe. Textey shall not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to a delay in SMS message delivery.
6.4 General. Textey SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER Textey NOR ITS LICENSORS WARRANT THAT THE Textey SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY Textey SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. Textey AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES WITH RESPECT TO THE Textey SERVICES, AND/OR ANY MATERIALS OR SERVICES FURNISHED TO CUSTOMER UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE Textey SERVICES PROVIDED HEREUNDER.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF Textey OR ANY OF ITS LICENSORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO Textey DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO LIABILITY UNDER THIS AGREEMENT. IN NO EVENT SHALL Textey OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES CAUSED BY ANY VIRUSES, TROJAN HORSES OR OTHER SIMILAR CODE, OR ANY DENIAL-OF-SERVICE ATTACKS OR ANY UNAUTHORIZED ACCESS TO CUSTOMER’S SYSTEM BY UNRELATED THIRD PARTIES. IN NO EVENT SHALL Textey OR ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA OR OPPORTUNITIES, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT Textey HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.1 Indemnity by Textey. Textey shall indemnify, defend, and hold harmless Customer from and against any and all damages and costs finally awarded for direct infringement of any valid United States patent, trademark, trade secret, copyright, or other intellectual property right of a third party in any suit based upon the proper use by Customer of the Textey Services under the licenses by Textey hereunder, where Textey technology and such services are held to be the cause of such infringement. Textey shall be relieved of the foregoing obligation unless: (a) Customer notifies Textey promptly in writing of any alleged infringement of which Customer becomes aware; (b) Customer gives Textey sole authority to control fully the defense and settlement of any such infringement claim; and (c) Customer furnishes all reasonable assistance and provides all appropriate documentation in its possession requested by Textey.
8.2 Exclusions. Notwithstanding the foregoing, Textey shall have no obligation to indemnify Customer pursuant to this Section 8 with respect to any infringement or alleged infringement resulting from (i) any modification to the Textey Services made by any party other than Textey or Textey’s authorized representatives; (ii) any unauthorized access or use of the Textey Services by Customer or any third party; or (iii) any use of the Textey Services in combination with other software, hardware, data or services not supplied or authorized by Textey.
8.3 Textey Options. In the event of an infringement claim against Customer with respect to the Textey Services, or in the event Textey believes such a claim is likely, Textey shall have the option, at its expense, to (i) modify the Textey Services so that they are non-infringing; or (ii) obtain for Customer a right to continue accessing the Textey Services. If neither of the foregoing alternatives is commercially practicable, Textey shall refund to Customer on a prorated basis all pre-paid Fees for Textey Services, and the license granted for access to the Textey Services shall terminate with no continuing obligation or liability of Textey to Customer.
8.4 Sole Remedy. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF Textey FOR ANY THIRD PARTY CLAIM OF INFRINGEMENT AND IS IN LIEU OF ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, IN REGARD THERETO.
8.5 Indemnity by Customer. Customer shall indemnify, defend, and hold harmless Textey from and against any and all damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of (i) Customer’s failure to comply with all applicable laws, rules, and regulations, and (ii) Customer’s breach of any of the provisions of this Agreement. Textey shall provide Customer with (a) prompt written notice of any such claim of which Textey becomes aware; (b) all reasonable assistance and documentation in Textey’s possession requested by Customer to defend such claim; and (c) control over the defense and settlement of such claim, provided that Customer shall not agree to any settlement or other disposition that imposes any obligation on Textey.
9. OWNERSHIP AND CONFIDENTIAL INFORMATION
9.1 Ownership Rights. As between the parties, Textey exclusively owns and reserves all right, title and interest in and to the Textey Services, Textey Properties and Textey’s Confidential Information. As between the parties, Customer exclusively owns and reserves all right, title and interest in and to the Customer Data and Customer’s Confidential Information.
9.2 Customer acknowledges that the Textey Services, Textey Properties, the underlying software, and the Documentation contain Textey’s and/or licensor’s proprietary information and Confidential Information. Each party shall treat as confidential all Confidential Information of the other party, will not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, will implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse, or removal of the other party’s Confidential Information, and will not disclose such Confidential Information to any third party except as may be reasonably necessary and required in connection with the rights and obligations of such party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the parties will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement, but in no event less than reasonable care.
10. GENERAL PROVISIONS
10.1 Applicable Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the substantive laws of the State of Georgia, without reference to its conflict of laws principles.
10.2 Exclusive Jurisdiction and Venue. Any action of any kind by any party against another party arising as a result of this Agreement may only be brought in the state and federal courts of competent jurisdiction of Carroll County, State of Georgia, and the parties hereby submit to the exclusive jurisdiction and venue of such courts for such purposes.
10.3 Assignment. Customer may not sell, pledge, assign, sublicense, or otherwise transfer or share its rights or delegate its obligations under this Agreement without the prior written consent of Textey, which consent shall not be unreasonably withheld. Any attempted sale, pledge, assignment, sublicense, or other transfer in violation hereof shall be void and of no force or effect. Any authorized assignment by Customer hereunder will be invalid unless the assignee agrees in writing to be bound by and to perform all obligations and terms of this Agreement. Textey may assign its rights and delegate its duties hereunder at any time without the consent of Customer.
10.4 Public Reference. Customer consents to the public use of its name as a Customer of Textey.
10.5 Modification; Amendment. This Agreement may not be modified or amended except by a writing, which is signed by authorized representatives of each of the parties.
10.6 No Waiver. The failure of either party to exercise any right, or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or of any other term of the Agreement.
10.7 Notice. Any notice required or permitted to be sent hereunder shall be in writing and shall be sent in a manner requiring a signed receipt. Notice is effective upon receipt.
10.8 Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies, or any other cause beyond the control of such party provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay.
10.9 Equitable Remedies. The parties recognize that money damages shall not be an adequate remedy for any breach or threatened breach of any obligation hereunder by Customer involving, without limitation, intellectual property, Confidential Information, or access to the Textey Services. The parties therefore agree that in addition to any other remedies available hereunder, at law or otherwise, Textey shall be entitled to an injunction against any such continued breach of such obligations.
10.10 Entire Agreement. This Agreement, together with the Textey Acceptable Use Policy, which is incorporated herein by reference, constitute the sole and entire agreement of the parties with respect to the subject matter hereof and supersede any prior oral or written promises or agreements.
10.11 Severability. If any provision of this agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
10.12 Third Party Beneficiary. No person shall be deemed an intended beneficiary of this Agreement.