Terms of Service
Effective Date: January 1, 2020
Welcome to Vivial Connect, located at https:/www.vivialconnect.net/ (the “Website”). Vivial Connect is a service of Vivial Mobile LLC and its affiliates (collectively, “Vivial,” “we,” “our” or “us”) offering an application programming interface (“API”) and related services that enable text messaging capabilities for customer applications (“Vivial Connect”) as described below. Using Vivial Connect, You can, subject to complying with these Terms of Service, do the following:
· Provision phone numbers to use for sending and receiving text messages.
· Send and receive text messages with Your application using calls to the API.
· Attach media files to messages.
· Set up callbacks to Your application that report the status and other metadata about text messages You send and receive.
· Set up and manage a Vivial Connect account for Your business.
(collectively referred to as the “Services”).
By clicking “I AGREE,” You agree to comply with this Terms of Service (“Terms of Service”) and the then-current Acceptable Use Policy (“Acceptable Use Policy”), which is incorporated by reference into the Terms of Service and made a part hereof, in the use of the Services, for Yourself and any entity that You represent (you and any such entity shall be referred to collectively as “You”, “Your” or “Yourself”). The person clicking “I AGREE” represents and warrants that he/she has the authority to bind him/herself and the entity that he/she represents to these Terms of Service. If You do not agree to the Terms of Service, You are not permitted to use the API or the Services. As used in these Terms of Service, the terms “You” and “Your” encompasses each user accessing the API and/or the Services by means of a valid account established by You, including, if you are a corporation or other similar legal entity, all of Your employees and personnel (collectively “Your Users”). Capitalized terms are defined in these Terms of Service, including, without limitation, in Section 21 below.
You may be enrolled for a free trial of certain Vivial Connect Services (“Free Trial”). During the Free Trial, We grant You a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services to send SMS Messages for Your own internal business operations on an evaluation basis. Free Trials may offer limited access to certain features and capabilities of the API Services and have usage constraints as defined by the trial description on vivialconnect.net. The Terms of Service and the Acceptable Use Policy apply during any use of the Services by You, whether during a Free Trial or paid use of the Services.
You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the API and/or the Services, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the API and/or the Services.
We may change these Terms of Service (including, without limitation, the Acceptable Use Policy, Rate Card and the other policies incorporated into these Terms of Service) at any time without notice, and any changes will be included in the Terms of Service or Acceptable Use Policy or other incorporated policies, as applicable. Please check the Terms of Service, Acceptable Use Policy and other incorporated policies for changes periodically. Your continued use of the API and the Services after the Terms of Service, Acceptable Use Policy or other incorporated policies have been changed constitutes Your acceptance of such changes.
THESE TERMS OF SERVICE INCLUDE A MANDATORY ARBITRATION PROVISION THAT DISALLOWS CLASS ACTIONS, A CLASS ACTION WAIVER PROVISION, AND A JURY WAIVER PROVISION.
IMPORTANT: You must incorporate these Terms of Service into the Applications, products and/or services that You create utilizing the API and the Services. You must ensure that Your Users as well as Your end users, customers and/or subscribers for Your Applications (collectively, “Your End Users”) comply with these Terms of Service, the Acceptable Use Policy and the other incorporated policies. You will be solely responsible if Your Users or Your End Users fail to comply with these Terms of Service, the Acceptable Use Policy or other incorporated policies.
1. Obtaining a Code
Use of the Services will permit You to obtain Code(s) from us. We will exercise commercially reasonable efforts to gain access to Your requested Code, but we do not guarantee Code availability. We may, upon fourteen (14) business days’ prior written notice, reclaim any Codes that have not been used to pass traffic within the immediately preceding one hundred twenty (120) day period. We will not reclaim a Code without prior written notice to You followed by such fourteen (14) business day cure period if You remedy such non-use during such fourteen (14) day cure period. From time to time, we may request from You a forecast of expected usage volumes and/or Code procurement. You will cooperate with such requests. In the event You anticipate changes in usage volumes, You will proactively contact us to review such changes. We will use commercially reasonable efforts to maintain adequate capacity to meet Your forecasts. Our failure (or that of our third party providers) at any time to adequately provide capacity, regardless of reason, will not constitute a breach of these Terms of Service. The Services are subject to modification or change from time to time, including as a result of changes necessary or prudent to comply with Applicable Laws and changes made or required by the relevant Carrier(s). We will notify You of changes which may have a significant or adverse effect on You.
2. Using the API
You may write software application(s) and/or website(s) (each an “Application”) that interface with the API and/or the Services. We or our third party providers may modify or republish the API for any or all of the Services from time to time; You are solely responsible to ensure that any calls or requests that Your Applications make to or utilizing the API and/or the Services will properly function with the then-current API. We will use commercially reasonable efforts to inform You of any modifications to the API so You can make appropriate changes to Your Applications, but we will have no obligation to do so. Your Applications may make calls or requests to the API and/or the Services, and send and receive SMS messages, only if such uses comply with these Terms of Service, the Acceptable Use Policy and any other incorporated policies. You are solely responsible for Your Applications and any SMS messages sent or received utilizing the API and/or the Services by You, Your Users and Your End Users. You are solely responsible for the development, maintenance and operation of Your Applications. You represent and warrant to us and our third party providers that You: (i) have all consents, licenses, rights, and title to use and display Your Applications; (ii) Your Applications and Your use of the API and the Services will comply with all Applicable Law; and (iii) Your Applications do not (A) violate or infringe any rights of either us, our third party providers or any third party, and/or (B) defame, invade the privacy or publicity of, or violate any third party; and (iv) have not designed Your Applications for use in or the facilitation of any discriminatory or illegal activity.
3. SMS Messaging
A. Use of the Services will permit You to use SMS in connection with the Code(s) You acquire from us. Your Applications may make calls or requests to the API and/or the Services and send or receive SMS messages so long as You comply with these Terms of Service. You are solely responsible for Your Applications and/or SMS Messages sent or received utilizing the API and/or the Services.
B. You may not (i) use or otherwise enable any Codes provided by us or our third party providers at any time in connection with any SMS message and/or other form of traffic, other than for the uses permitted under these Terms of Service, or (ii) establish and/or operate peer-to-peer relationships with any third party(ies) with respect to any Codes provided by us or our third party providers at any time. For clarity, “peer-to-peer relationships” mean direct network interconnection arrangements that permit You and any applicable third party to exchange traffic associated with Codes provided by us and our third party providers directly to each other without utilizing our and our third party provider’s network with respect to such traffic. Notwithstanding the foregoing, You will be responsible for all liability arising from Your acts and omissions (and those of Your Users and Your End Users) in establishing and/or operating such peer-to-peer relationships, and will defend, indemnify and hold harmless us and our third party providers from and against any and all third party claims in relation to such acts and omissions in accordance with and subject to these Terms of Service.
C. SMS is a Short Message Service delivering messages between Your IP address(es) or domain(s) and our third party provider’s SMS facilities. For purposes of this Terms of Service, “SMS” is intended to include MMS services where available and/or applicable. “MMS” means Multimedia Messaging Service, which is a standard way to send messages that include multimedia content and are supported as an extension of the core SMS capabilities. Pricing, throughput and other terms and conditions may vary for MMS. SMS is designed for a natural person and for person-to-person messaging only, meaning each SMS message must be initiated due to human interaction (as opposed to automated or timed messages). An SMS message may originate from a mobile phone, a computer or an Internet-based service, but the SMS message must be initiated due to human interaction, versus an automated or timed message. Each SMS message is viewed as a single instantiation of these definitions (i.e., if a message is transmitted from a natural person to an application and a subsequent message is transmitted from the application to a natural person, such as an SMS search function). Although the round-trip appears as though the SMS message originated from a natural person back to the same natural person, each SMS message is viewed individually. To that end, the initial SMS message in the foregoing example constitutes a single SMS message sent from a natural person to an application and the subsequent SMS message constitutes a single SMS message sent from an application to a natural person. Any SMS message originating other than from a natural person for person-to-person messaging constitutes a violation of the Acceptable Use Policy and a Default pursuant to these Terms of Service.
D. Message Routing. All Codes provided by us or our third party providers to You that are used for message routing with SMS will be used for both Outbound and Inbound messaging. Outbound SMS delivers IP-originated messages over SIP or the API to us or our third party providers and routes those messages to SMS-enabled Codes on the PSTN, and Inbound SMS routes SMS messages sent to an SMS-enabled Code on our or our third party provider’s network to our customers, including, without limitation, Your End Users, through the Internet using SIP or the API.
E. You may not use the Codes that You obtain from us or DID/DODs to route messages over any other provider’s network.
F. SMS limits the maximum number of SMS messages You may transmit measured on a per second basis. The maximum number of SMS messages per second You may transmit with respect to any Code is limited to one (1). For clarity, the foregoing maximum number of SMS messages per second You may transmit includes all SMS messages sent and/or received by all Your End Users on an aggregated basis with respect to any one (1) Code.
G. We rate SMS messages for billing purposes on a per SMS message sent and/or received basis. Billable components of each SMS message are based on: (i) the authorized IP sending an SMS message (“Outbound Message”), and (ii) You or Your DID/DOD (also known as destination number) receiving an SMS message (“Inbound Message”). If any fee(s) is imposed by any destination network, including, without limitation, any international termination fee(s), we will charge You such fee(s) and reserve the right to include an administrative or other fee(s) in addition to any such fee(s).
I. You must connect to our network in a manner and at locations determined by us. You will, at Your sole cost, be responsible: (i) for providing all equipment (including proxy servers), software, facilities and IP connectivity necessary for Your SMS applications and Your network to operate with SMS, and for providing and ensuring the successful installation of all equipment and software necessary for Your Users; (ii) to obtain and provide to us, prior to installation of any SMS service offered by You to Your End Users, the IP address(es) for the proxy server, SMS application and/or any other applicable hardware/software solution. You may cause Your End Users to deliver such information to You; provided, however, as between us and You, all information required to support Your use of SMS will be supplied to us by You. You will have the sole responsibility to input, validate and maintain accurate information with respect to Your End Users; You will furthermore be solely responsible for any and all support of and for Your End Users as it relates to SMS. You are responsible for maintaining continuous availability to receive SMS messages from us via IP connectivity. YOU WILL INDEMNIFY AND HOLD US AND OUR THIRD PARTY PROVIDERS HARMLESS AGAINST ANY AND ALL CLAIMS AND EXPENSES RESULTING FROM THE FAILURE OF YOU, YOUR USERS AND/OR YOUR END USERS TO COMPLY WITH THIS SECTION.
J. Responsibility to Control and Manage Traffic. You will bear the following responsibilities in connection with our provision of SMS: You will manage the integrity of the traffic egressing Your network, and (ii) You will manage and correct, as necessary, any fraudulent use patterns or use patterns perceived as fraudulent that may harm our or our third party provider’s networks. If You fail to comply with the foregoing obligations of this Section 3(J), then we will have the right (but not the obligation) to take protective action against You to protect our or our third party provider’s egress networks. Our protective actions may include, without limitation, the temporary blocking of Your traffic until the applicable problem is resolved in our reasonable discretion.
K. Fraud. You will not participate in or assist in any fraudulent usage, in any form or by any means, either by You, Your Users and/or Your End Users. If You suspect, know of, or should have known of any fraudulent usage, then You will immediately stop all fraudulent usage and notify us. You acknowledge, understand and agree that we do not provide, are not required to provide, and do not warrant, any fraud prevention. If we become aware of unusual usage volumes or patterns, then we will make commercially reasonable attempts to notify You; provided, however, we will have no obligation to notify You of any such volumes or patterns. Our sole obligation to You with respect to any actual, alleged or suspected fraudulent usage will be to reasonably cooperate with You, upon Your request and at no expense to us, to assist Your efforts to stop any fraudulent usage that You report to us. You will be solely responsible for all risks, expenses and liabilities arising from or relating to fraudulent usage by You, Your Users, and/or Your End Users, or any other person or entity directly or indirectly utilizing SMS. Notwithstanding anything in this Section 3(K) to the contrary, You are and will remain solely responsible for any and all usage, fraudulent or otherwise.
L. Regulatory Responsibilities. You (i) will be solely responsible for and will undertake all required action(s) before any Regulator, including but not limited to the FCC, any PUC, any state regulatory agency, any court or any other controlling regulatory bodies, agencies, commissions or other authority; (ii) will obtain any required governmental approval(s); and (iii) will fully comply with any and all Applicable Laws, including, without limitation, all applicable and/or FCC requirements, such as CALEA and CPNI, and the requirements of the General Data Protection Regulation, in each case as such actions, approvals and/or laws and regulations apply or relate to the utilization of SMS by You, Your Users, Your End Users, or any other person or entity to which You provide any services utilizing SMS. You will be solely responsible for compliance by You (and by Your Users, Your End Users, or any other person or entity to which You provide any services utilizing SMS) with any applicable Carrier requirements, Content Standards and Industry Standards applicable to any utilization of SMS by You, Your End Users, or any other person or entity to which You provide any services utilizing SMS. We reserve the right to take any action necessary for us to comply with any applicable Industry Standards. You agree to comply with, and You shall be solely responsible for compliance, by You, Your End Users, or any other person or entity to which You provide services utilizing SMS, all “opt-in” and “opt-out” requirements for sending and receiving messages (including the Content contained therein) under Applicable Law, applicable Content Standards, any applicable Carrier requirements, and the Industry Standards. Without limiting the foregoing, You, for Yourself, Your End Users, or any other person or entity to which You provide any services utilizing SMS, agree to provide notice and receive appropriate affirmative consents from all mobile end users prior to using the message routing Services to transmit messages to such end users’ mobile device.
M. Relationship. We have no relationship with or obligation to any of Your End Users or any other person or entity to whom You provide any services utilizing SMS, none of whom is a third party beneficiary of these Terms of Service. You are solely responsible for all pricing, billing and collections, and/or compliance with any Applicable Laws or regulations related to any services You provide to Your End Users or any other person or entity to which You provide any services utilizing SMS. You will provide technical support to Your End Users and will conduct customary problem resolution and troubleshooting activities directly with Your End Users to determine whether any condition affecting any Service(s) is attributable to our network prior to reporting a Service Event pursuant to these Terms of Service. You acknowledge that we are a conduit for distribution and publication of Content. We are not responsible in any way for any Content or the distribution and publication thereof. You shall not utilize information obtained as a result of these Terms of Service, including electronic data records, other traffic data or message content, for any purpose other than the delivery or receipt of Services hereunder.
N. Use by Your End Users. You will be solely responsible for the evaluation and qualification of Your actual and prospective End Users’ SMS use cases to ensure such use cases follow applicable Industry Standards for acceptable peer-to-peer traffic. You will obtain use cases from all of Your End Users and obtain the right to audit all such use cases. You will include a provision in all contracts with Your End Users to allow You to provide any use case to us, our third party providers, our SMS messaging partners and the Tier-one Operator Community, including, without limitation, Verizon Wireless, T-Mobile USA, AT&T Wireless and Sprint Wireless. We will notify You of the Tier-One Operator Community’s approval and we will pass SMS messaging traffic only to the approving Tier-one Operators. You understand and agree we do not make any representations or warranties with regard to the identification or blockage by SMS of any spam, viruses, malware or inappropriate content. Prior to implementation of any prospective Your End User, if requested by us, You will provide to us, and we may provide to our third party providers and our and their messaging partners all use cases requested prior to implementation of Your End User and will provide all other information reasonably requested by us, our third party provider and/or our or their messaging partners with respect to such Your End User anticipated use of SMS to permit us, our third party provider, and our and their messaging partners to evaluate such anticipated use and to ensure that such use follows Industry Standards for acceptable peer-to-peer traffic.
O. If applicable You and we will reasonably cooperate with each other to test to ensure interoperability between Your and our networks and systems. All necessary interoperability testing will be completed within a reasonable time. If after completion of initial interoperability, You plan to make upgrades, updates and/or enhancements (collectively, “Configuration Changes”), You will notify us prior to implementing a Configuration Change so that You and we may work together in good faith to determine how best to proceed regarding such Configuration Change. If at any time an interoperability condition occurs that adversely affects our or our providers’ network, we may, at our sole discretion, suspend the provision of SMS.
4. Use of Intellectual Property
A. We grant to You, subject to these Terms of Service, an individual, personal, limited, non-sub-licensable, non-exclusive, non-transferable and revocable right during the Term to permit Your Users authorized by You or on Your behalf to use the API and/or the Services in accordance with these Terms of Service. You (and, if You are a corporation or other similar legal entity, Your Users) will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the API or the Services; (ii) modify, translate or create derivative works based on the API or the Services; (iii) rent, lease, distribute, sell, resell, assign, display, host, outsource, disclose or otherwise commercially exploit or otherwise transfer rights to the API or the Services, or make the API or the Services available to any third party; (iv) use the API or the Services available for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices or labels on the API or the Services; or (vi) copy, reproduce, post or transmit the API or the Services in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording or other means. You (and, if You are a corporation or other similar legal entity, Your Users) will make every reasonable effort to prevent unauthorized third parties from accessing the API or the Services. Upon termination of these Terms of Service for any reason, You (and, if You are a corporation or other similar legal entity, Your Users) will cease to use or have access to the API and the Services. For clarity, nothing in these Terms of Service or otherwise shall effect a sale of the API or the Services (or any part thereof), and You shall not acquire hereunder any right, title, or interest in the API or the Services (or any part thereof), except the right to use them in accordance with these Terms of Service. Other than those rights expressly granted herein, we grant to You no other rights to the API or the Services, express or implied, and we reserve all rights in the API and the Services. If You directly or indirectly violate any of the foregoing prohibitions, then we may immediately suspend our performance obligations hereunder and/or terminate these Terms of Service without liability or further obligation of us thereafter.
B. You acknowledge that us, our third party providers and our and their licensors retain exclusive ownership throughout the world of the API and the Services, any portions or copies thereof, and all rights therein, including, without limitation, any suggestions, enhancement requests, feedback, recommendation or other information provided by You or any other party relating to the API or the Services. The API and the Services provided to You and all information, documents and materials on our and our third party providers’ websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of the websites, corporate names, service marks, trademarks, trade names, logos and domain names of us and our third party providers (collectively “Marks”) are and will at all times remain the exclusive property of such parties. Subject to these Terms of Service, we grant to You an individual, personal, limited, non-sublicensable, non-exclusive, non-transferable and revocable right during the Term to display the Marks solely to promote or advertise that You use the API and/or the Services. Notwithstanding the foregoing, You may not use any of the Marks (i) except as otherwise expressly provided herein; (ii) to imply an affiliation with, endorsement of, or other similar relationship with us or our third party providers; (iii) to disparage us or our third party providers or our or their products and/or services; or (iv) in connection with any website or other materials that violates the Acceptable Use Policy or any Applicable Laws. Any permissible use of the Marks will be in a manner consistent with any trademark guidelines that we may provide to You from time to time and will not reflect unfavorably on the goodwill or reputation of us and our third party providers. We or our third party providers may revoke any rights to display any Marks in connection with Your Application at any time.
C. You acknowledge and agree that the API and/or the Services may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. We and our third party providers may incorporate such third party software or technology to: (i) add new or additional functionality; or (ii) improve the technical performance of the API and/or the Services. Any such third party software or technology that is incorporated in the API falls under the scope of these Terms of Service. Any and all other third party software or technology that may be distributed together with the API, including, without limitation, any open source software, will be subject to You expressly accepting a license agreement with the third party provider of such other software or technology (subject to the termination rights stated in Section 11(b) below). You acknowledge and agree that You will not enter into a contractual relationship with us or one of our third party providers regarding such other third party software or technology and You will look solely to the applicable third party and not to us or one of our third party providers to enforce any of Your rights.
D. You grant to us and our third party providers the non-exclusive, worldwide right to (i) use, copy, transmit and display any data, information or other materials provided to us or our third party providers by You in the course of using the API and/or the Services (“Your Data”) solely to the extent necessary to provide the Services to You, and (ii) compile and use statistical analyses of Your Data to improve the network, products, Services and/or offerings of us and our third party providers, provided, however, that if we and our third party providers share these statistical analyses with others, Your Data will be aggregated with the data of other customers in a way that You will not be identified and Your Data will not be attributable to You. You acknowledge and agree that Your Data may be transferred outside of the country or other jurisdiction where You or Your Users are located. In addition, You acknowledge and agree that it is Your obligation to inform third parties of the processing of Your Data and to ensure that any required third parties have given their consent to such processing as required by all applicable data protection legislation. You will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Your Data.
E. Subject to the terms and conditions of Section 11(E) below, we and our third party providers will use commercially reasonable efforts to store Your Data generated by use of the API and/or the Services in a manner consistent with generally accepted Industry Standards or as described in the policy(ies) provided to You from time to time or as posted on our Website from time to time; provided, however, we and our third party providers will have no liability for any damage, liabilities or losses (including, without limitation, any loss of Your Data or profits) that may occur due to the loss of Your Data.
We store Your Data and maintain logs regarding Your usage of the Services. If You want Your content to be removed from Your messages, a separate call to the Application is required, but a record of message transmission would remain in our logs.
F. Except as provided above, and specifically excluding the API and/or the Services, You retain all right, title and interest, including, without limitation, all copyright, trademark, patent and other intellectual property rights, to Your Applications and Your Data.
G. During and after the Term, You will not assert (and You will not authorize, assist or encourage any third party to assert) any patent or other intellectual property infringement claim against us and our third party providers with respect to any Services that You use during the Term.
5. Restrictions and Policies
A. You (or, to the extent applicable, Your Users and Your End Users) will comply with all Applicable Laws in connection with Your use of the API and/or the Services, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which we or our third party provider control and operate the API and/or the Services. You (or, to the extent applicable, Your Users and Your End Users) will comply with the then-current Acceptable Use Policy. You acknowledge that restrictive data privacy regulations, anti-bribery laws and other Applicable Laws exists or might exist which could apply to the Services. From time to time, we may provide information to You regarding matters related to compliance with Applicable Laws. You acknowledge and agree that (a) such information is based solely upon our prior experiences in providing the Services generally, (b) we do not represent or warrant the accuracy or completeness of such information, (c) Your use of, or reliance upon, such information or any errors therein or omissions therefrom will not in any way: (i) relieve You of Your obligations hereunder, or (ii) create any liability for us whatsoever to You and/or any of Your End Users relating thereto or resulting therefrom.
B. If You collect personal data from individuals located in the European Union (including, without limitation, if You send SMS messages to an European Union resident), You will be required to execute a Data Protection Agreement, which shall be incorporated by reference and made a part hereof and shall apply to the processing of such personal data pursuant to these Terms of Service. Please contact us if you wish to collect personal data of an European Union resident and we will provide the Data Protection Agreement for your execution. You may not collect personal data of individuals located in the European Union without executing a Data Protection Agreement.
C. Personal Data – Processor – To the extent that either party processes end user Personal Data, each party hereby acknowledges that it is the Data Processor with respect to the Personal Data. In such a case, either party’s third-party customer (“Customer”) or the other party as the case might be is the Data Controller of end user Personal Data. Either party warrants that it will act on the instructions of Customer and/or the other party in relation to the processing of end user Personal Data. Each party agrees to hold any such Personal Data for a reasonable period until the other party instructs otherwise. Notwithstanding the foregoing, either party reserves the right to disclose to any person any information relating to end user Personal Data where such disclosure is made for the purpose of assisting any civil or criminal investigations or proceedings or as otherwise required by applicable law. Further, the Data Controller shall, at all times be responsible for fulfilling all Subject Access Request (SAR) within the timeline prescribed by Applicable Law. The Data Processor shall provide reasonable assistance in responding to any SAR.
Each party will at all times during the Term have appropriate technical and organisational measures in place to protect any Personal Data processed or held by it against unauthorised or unlawful processing, accidental loss, destruction or damage.
“Data Controller”, “Personal Data”, and “Processing”, “Subject Access Request” shall bear the respective meanings given to them in the General Data Protection Regulation and any European Directive applicable from time to time.
D. We respect the privacy of our users. We provide information such as Your name, address, and credit card number to credit verification providers, payment processors and billing service providers to ensure that we receive proper payment for Your use of the API and/or the Services. We will not share, rent, sell or trade personal information (including, without limitation, Your e-mail addresses) that identifies You to third parties except as described herein. We will not share, rent, sell or trade Your Data; provided, however, we and our third party providers may compile statistical analyses of Your Data to improve our network, products, Services and/or offerings, provided, however, that if we or our third party providers share these statistical analyses with others, Your Data will be aggregated with the data of other customers in a way that You will not be identified and Your Data will not be attributable to You. We may use this information to contact You to ensure that You are satisfied with our products or services, learn about any ideas You may have to improve our products, services or offerings, call Your attention to additional products, services or offerings provided by us, and communicate other information that we believe will be useful to You. We may also share Your Data with our third party providers as reasonably required to confirm our compliance with our agreements with such third party providers.
If You are located in North America, we may use Google Analytics to collect information about how our customers use the API and the Services. The information collected through Google Analytics may include Your Vivial Connect ID, and we may connect Your Vivial Connect ID with other information collected by us about how you use our websites. By clicking “I AGREE” on these Terms of Service, You hereby consent to this collection and use of information through Google Analytics. If you do not consent to such use, You cannot use the Services.
E. Certain of our third party providers will abide by applicable CPNI Regulations. You agree and understand that it may be necessary for Vivial and our third party providers in the course of providing the Service to access, use or disclose Your or Your Users, and/or Your End Users’ information, including, without limitation, pursuant to subpoenas duces tecum (and similar subpoenas) or court orders and other actions of governmental agencies or entities.
F. Vivial and our third party providers will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Data. In addition to Your obligations pursuant to Section 10 below, You acknowledge that You will protect and backup Your Data.
A. We warrant that the Services performed under these Terms of Service will be performed in a professional manner, in accordance with generally accepted Industry Standards then in effect for the Services and by personnel having the requisite qualifications to provide the Services. We, or our designee(s), will provide reasonable amounts of e-mail support during customary business hours, except on our or our designee(s), holidays, but we have no obligation to provide You with hard-copy documentation, upgrades, enhancements, modifications or other support unless specifically contracted for by You and us. For clarity, we and our third party providers will have no obligation to any third party, including, without limitation, Your Users and/or Your End Users.
B. We may from time to time interrupt or otherwise impact the Services for maintenance. We and our third party providers will use commercially reasonable efforts to perform such maintenance in a manner that will not unreasonably interrupt the Services. We and our third party providers normally will perform maintenance between the hours of 12:00 AM and 6:00 AM Eastern or on weekends. We reserve the right to interrupt Services at any time without notice to correct, replace or repair network conditions which are likely to cause a service error, and which require immediate correction.
C. If You believe that a loss or material degradation of any Services has occurred (“Service Event”), then You will first conduct customary problem isolation, resolution and troubleshooting activities. If You believe that the Service Event is attributable to or related to us or our third party providers, then You will notify us via email to report the Service Event(s) and initiate an investigation of the cause and remedy of such Service Event (“Trouble Ticket”). Once a Trouble Ticket(s) has been opened, our appropriate personnel will initiate diagnostic testing and isolation activities to determine the source and severity of the Service Event(s) and suggest a remedy to, or enact a remedy on Your behalf; You and Vivial will cooperate to restore Services as soon as reasonably practicable.
D. For purposes of this Section 6, each of the following will constitute an “Exclusion” (for which we have no support obligations or if we provide support, such support will be subject to additional fees) : a Service Event arising due to: (i) You or Your agents; (ii) Your equipment or local area network; (iii) third parties that are not our service providers or subcontractors; (iv) force majeure events; (v) scheduled maintenance; (vi) emergency maintenance; (vii) our inability to access or utilize any property or equipment not owned or controlled by us or our service providers or subcontractors; (vii) services or equipment not owned or controlled by us or our service providers or subcontractors that are beyond our demarcation point (or the demarcation point of our service providers or subcontractors), and/or (xi) traffic exchange points which are controlled by third parties (that are not our service providers or subcontractors).
7. Provision of Contact and Billing Information and Payment of Fees
A. Invoicing and Payment. The fees for using the API and the Services and other applicable charges (collectively, the “Fees”) are set forth in the rate card: (i) for usage in North America, the applicable fees are found at https://www.vivialconnect.net/pricing; and (ii) for usage outside North America, the applicable fees are found at https://dashboard.vivialconnect.net/docs/general/international.html (as applicable, the “Rate Card”), each of which is incorporated by reference and made a part hereof. Fees will vary depending on the payment option chosen. Information regarding payment options can be found at https://dashboard.vivialconnect.net/docs/general/billing.html . You have the option of selecting a subscription plan (each a “Subscription Plan”) or paying on an on-demand basis. You agree to pre-pay us for Services through payment of the Fees set forth in the Rate Card or any other material(s) provided to You, and payment shall be made through a payment card processed by our third party payment processor(s). In addition to these Terms of Service, You also agree to comply with the terms and conditions of our third party payment processor(s). You represent and warrant to us that You have received and reviewed the Fees set forth in the Rate Card, and that You are eligible and authorized to use the payment card submitted by You to pay the Fees. By accepting these Terms of Service, You hereby consent to and authorize us to: (i) obtain payment of Fees from You; (ii) utilize third party payment processor(s) to process payment of Your Fees; and (iii) submit Your information, including payment information, to such third party payment processor(s) on Your behalf. Miscellaneous charges and/or fees imposed by any third party carrier or any underlying payment processor(s) from time to time, whether charged to or against us, will be payable by You, including without limitation, any cost recovery fee which shall represent an accurate and non-inflated recovery of the miscellaneous charges and/or fees to or against us or our third party providers associated with the provision of the Services by us to You. All amounts under these Terms of Service are stated and payable in United States Dollars, unless a Rate Card specifies that a different currency applies. Any pre-paid amounts shall not be maintained in segregated accounts or entitle You to interest thereon. Costs of collection (including, without limitation, attorneys’ fees) and related bank charges shall be paid by You. In the event that the Rate Card does not refer to any specific pricing for any Services (or part thereof), then such Services (or part thereof) shall be provided at our then current standard charges, which we will provide to You upon request. IN ADDITION TO ANY FEES OTHERWISE SET FORTH IN THE RATE CARD, YOU SHALL BE RESPONSIBLE FOR ALL CARRIER RATE INCREASES ARISING AFTER THE EFFECTIVE DATE (e.g., SMS MESSAGE RATE INCREASES), AND FOR ALL CARRIER-SPECIFIC CHARGES, IF ANY, WHICH WE WILL PASS-THROUGH TO YOU AT COST. YOU ARE ALSO RESPONSIBLE FOR FRAUDULENT USAGE CHARGES, SPAM, NON-COMPLIANCE WITH LOCAL REGULATIONS. ADDITIONALLY, ALL FEES (INCLUDING SMS MESSAGE FEES) ARE SUBJECT TO CHANGE FROM TIME TO TIME INCLUDING BASED UPON CHANGES IN CURRENCY EXCHANGE RATES. We retain the right to charge You for actual and reasonable costs incurred by us from time to time related to our or our third party providers’ compliance with court orders and other actions of governmental agencies or entities, including, without limitation, subpoenas duces tecum (and similar subpoenas), related to telephone numbers and other information related to or associated with You or Your Users or Your End Users. All Fees under these Terms of Service are irrevocable and nonrefundable.
B. Message Rating. Long message content (such as SMS messages over 160 characters) will be split into multiple segments based on received data encoding, and each message segment is billable as one SMS message. If any fee(s) is imposed by any destination network, including, without limitation, any international termination fee(s), Vivial will charge You such fee(s) and reserves the right to include an administrative or other fee(s) in addition to any such fee(s). Message and data rates may apply according to Your User’s mobile plan. Additional terms related to toll-free message rating are as stated in Section 22 of these Terms of Service.
C. Taxes. You agree to pay any applicable sales and privilege, use, excise, gross receipt, value added tax (“VAT”) or other tax (excluding any tax that is based on our income), duty, surcharges, fees or other charge or similar liabilities of any kind or nature that is levied or imposed by any governmental authority or regulatory body in connection with these Terms of Service or the Services provided hereunder. You agree to pay any sales, use or other tax (excluding any tax that is based on our income), duty or other charge of any kind or nature that is levied or imposed by any governmental authority, regulatory body or financial institution in connection with these Terms of Service and the Services provided hereunder.
D. Contact Information. You agree to provide us with accurate billing information and with truthful, accurate and complete contact information, including Your legal name, company name, street address, e-mail address and telephone number. We will endeavor to contact You only during normal business hours; however, You will be available at all times to assist us to respond as reasonably necessary to applicable law enforcement or other similar inquiries, which can be time-sensitive. You will update this information within thirty (30) days of any change to it. If the contact information You have provided is false or fraudulent, we reserve the right to terminate Your access to the API and/or the Services immediately without any obligation to return Your Data.
E. If You believe we have charged You incorrectly, You must contact us in writing no later than thirty (30) days after the date of the first billing statement in which the error or problem appeared to receive an adjustment or credit. We maintain billing logs with respect to your use of the Services, which shall be used as the basis for our billing calculations, and shall prevail over Your records in the event of a billing dispute.
F. Where there is a dispute, the aggrieved party shall notify the other party in writing of the nature of the dispute in reasonable detail. A representative from each party shall meet in person or communicate by telephone within five (5) business days of the date of the written notification, each using good faith efforts to reach amicable resolution within thirty (30) days of the date of the notice. For the avoidance of doubt, the dispute resolution process envisaged herein shall not apply to invoice dispute resolution which are subject to the provisions of Section 7.D herein. Any dispute, controversy or claim arising out of or relating to these Terms of Service not resolved amicably, including any question regarding its breach, existence, validity or termination or the legal relationships established by these Terms of Service, shall be finally resolved by arbitration under the American Arbitration Association. The number of arbitrators shall be one. The arbitration shall be held in Dayton, Ohio. The language to be used in the arbitral proceedings shall be English.
G. Your access to the Services may be suspended if Your account is delinquent for any reason. We may impose a charge to restore Your Data from delinquent accounts. Our suspension of the Services based on Your failure to make payment will not excuse You from Your obligation to make payment(s). Any account which is suspended for more than thirty (30) days will be terminated without any obligation on our part to maintain Your Data.
H. We retain the right to charge, including any amended or corrected amounts previously charged, for the Services for a period of up to twelve (12) months after the date we provide the Services to You. For the duration of this period, we will not be deemed to have waived any rights with regard to charging for the provided Services that are subject to this period, nor will any legal or equitable doctrines apply, including estoppel or laches.
We may, without terminating these Terms of Service and without any liability to You or any Third Party and in addition to any other rights set forth herein, immediately suspend part or all of the Services for as long as we deem reasonably necessary due to any of the conditions set forth below. We will notify You as soon as reasonably practicable of any such suspension. In addition to any other suspension rights set forth elsewhere in these Terms of Service, the reasons for possible suspension include:
A. our belief that we are obligated to comply with an order, instruction or request of any court, administrative tribunal, governmental body or regulatory body;
B. our maintenance or repair of our network and systems;
C. carrier request;
D. our belief that Your use of the Services is violating Applicable Law, the Industry Standards, the Applicable Use Policy or the terms of these Terms of Service;
E. unauthorized or fraudulent use of the Services, or if Your use of the Services is causing or may cause damage to our network or a carrier’s system; or
F. You are in breach of Your obligations under these Terms of Service.
The parties acknowledge and agree that (a) any suspension pursuant to this Section 8 may affect You and/or Your End Users that do not relate to the event giving rise to the suspension, and (b) You shall remain responsible for payment of all Fees otherwise applicable to any period of suspension where the reason for such suspension is related to Your (and/or any of Your End Users’) actions or inactions.
9. Publicity and Marketing
You agree (a) that we may publicly refer to You, orally and in writing, as our customer, and (b) to be listed as our customer on our website including the use of Your logo and trademarks there and in other marketing collateral, in connection with which You hereby grants to us a non-exclusive license to use Your logo and trademarks.
10. Passwords and Security
You will choose or be given all applicable login ID, account number and/or passwords (the “Credentials”) to use in connection with the API and/or the Services. You are entirely responsible for maintaining the confidentiality of Your Credentials and account (including, if applicable, the passwords and accounts of each User accessing the Services by means of an account established by You). Furthermore, You are entirely responsible for any and all activities that occur under Your account (including, if applicable, the accounts of each User accessing the API and/or the Services by means of an account established by You), and You will ensure that You exit from Your account at the end of each session. You will notify us immediately of any unauthorized use of Your account (including, if applicable, the Credentials of each User accessing the API and/or Services by means of an account established by You) or any other breach of security. We and our third party providers cannot and will not be liable for any loss or damage arising from Your failure to comply with these requirements.
11. Term and Termination and Subscription Cancellation
A. The term (“Term”) to which these Terms of Service apply will begin once You accept these Terms of Service as described above and will continue as described herein. If applicable, Your Term shall be for the duration of the Subscription Plan for which You subscribe and any renewal(s) thereof. These Terms of Service will apply until terminated by You or us pursuant to these Terms of Service (subject to the survival of certain provisions as described below).
B. Either You or we may terminate these Terms of Service without cause at any time at our or Your convenience by closing Your account, and the parties acknowledge that in the case of termination without cause (and where no breach has occurred), the terminating party may terminate these Terms of Service without liability except that You shall pay all Fees incurred prior to the effective date of termination and, and You are responsible for payment of any applicable Subscription Cancellation Fee as set forth below.
C. You may cancel Your Subscription Plan at any time. If You cancel Your Subscription Plan before the Term of Your Subscription Plan has expired or if we terminate Your Services due to Your Default, a Subscription Cancellation Fee shall apply. “Subscription Cancellation Fees” consist of amounts due and owing for the unused portions of Your Subscription Plan, and shall vary depending on the maturity of the Subscription Plan as follows: (i) If the Subscription Plan is in its first month of a twelve (12) month plan when canceled, the balance for the remaining eleven (11) months are credited to the On-Demand plan, and any credits remaining for first month are subsequently forfeited; (ii) If the Subscription Plan has matured beyond its first month, the On-Demand account balance is credited with fifty (50) percent of the value of the remaining Subscription Plan (for example, if You are in the sixth month of a twelve (12) month plan, You would receive a three (3) month credit to Your account), and any credits assigned to the current month will be forfeited. Please direct all inquiries regarding Subscription Plans and the Subscription Cancellation Fees associated thereto to firstname.lastname@example.org.
D. If we determine, in our sole discretion, that (i) Your use (or, to the extent applicable, the use of Your Users or Your End Users) of the API or the Services (or the specific method or technology utilized by You and/or Your Users or Your End Users) materially and/or adversely interferes with or otherwise places in jeopardy the API, the Services, or the network of Vivial and/or its third party providers, or our or their other customers, partners and/or our or their overall business(es), our third party providers, or any of our or their other customers or partners, (ii) You (or, to the extent applicable, Your Users or Your End Users) violate any provision of the Terms of Service or Acceptable Use Policy or we reasonably conclude that You (or, to the extent applicable, Your Users or Your End Users) have violated the Terms of Service or Acceptable Use Policy; (iii) we reasonably conclude that an unusual increase in Your use of the Services may be attributable to fraudulent usage and/or will materially and adversely impact the Services or our network, (iv) we reasonably conclude that the provision of the API and/or the Services to You will violate Applicable Laws or has become impractical due to Applicable Laws; (v) we are prevented from providing any portion or all of the Services required under these Terms of Service by Applicable Law or if a notice from a government agency or department with proper jurisdiction indicates that we are not permitted to provide any portion or all of the Services to be provided; and/or (vi) we decide to cease offering the Services to any persons generally, we may suspend or terminate these Terms of Service and/or any or all of the Services immediately without liability, upon as much prior notification to You as is practicable under the circumstances, if any.
E. Upon the occurrence of a Default, we may, in addition to any other rights that we may have arising as a result of such Default: (i) suspend our performance of any or all of the Service without liability or further obligation immediately; and/or (ii) terminate these Terms of Service without liability or further obligation immediately upon written notification of termination to You. All remedies expressed in these Terms of Service are without exclusion as to any rights or remedies that the parties may have under these Terms of Service or which may be recognized under controlling law.
F. At Your written request, within thirty (30) days of termination of these Terms of Service, provided a Default has not occurred, we will make available to You a file of Your Data then in our possession. You agree and acknowledge that we have no obligation to retain Your Data and that Your Data may be irretrievably deleted after thirty (30) days following the termination of these Terms of Service.
G. Upon termination of these Terms of Service, You will immediately cease all use of the Services, the API, and any documentation relating thereto. Notwithstanding any such expiration or termination, Your obligation to pay for the Services will survive with respect to any use of the Services previously utilized. Termination is not an exclusive remedy and all other remedies will be available whether or not the license granted herein is terminated. Notwithstanding the foregoing, if You are dissatisfied with the API and/or the Services, Your sole and exclusive remedy is to discontinue using the API and/or the Services.
12. Representations and Warranties; Disclaimer
A. You represent that You have the full right, power and authority to enter into these Terms of Service and to perform the acts required, Your agreement to these Terms of Service and performance of Your obligations under these Terms of Service do not and will not violate any other agreement to which You are a party; that these Terms of Service will constitute the legal, valid and binding obligation of You when upon Your assent to such Terms of Service; and that You will comply with Applicable Laws in the exercise of Your rights and performance of Your obligations hereunder. You further represent, warrant and covenant to us that any Content: (i) will not contain any material that is obscene, profane, libelous or defamatory; (ii) will not violate or infringe any copyright, patent, trademark or trade secret or right of privacy or publicity or any other personal or proprietary right of us or any Third Parties; (iii) will comply with Applicable Law, the Applicable Use Policy, the Content Standards and the Industry Standards; and (iv) at the time of delivery to us, will not contain any viruses, worms, trap doors, back doors, timers, clocks, counter or other limiting routines, instructions or designs. You further represent and warrant to us that You will not use the Services, or allow Your Users or Your End Users to use the Services: (v) in violation of Applicable Law, the Applicable Use Policy, the Content Standards and/or the Industry Standards, including to engage in any spamming, mail-bombing, spoofing or any fraudulent, illegal, unauthorized, prohibited or improper use, (vi) to send any confidential or sensitive information, privileged data and/or personally identifiable information, or (vii) for medical purposes (other than general administrative purposes), nuclear or energy-related facilities, aircraft navigation or other communications systems, air traffic control, or any other uses in which the failure or delay of the Services could lead to death, personal injury, physical property damage or any environmental damage.
B. You further represent and warrant that, on behalf of Yourself and Your employees, agents and contractors, that (i)such person is not a person listed on the Specially Designated Nationals and Blocked Persons list maintained by the U.S. Treasury, Office of Foreign Assets Control, the Denied Persons or Denied Entities lists maintained by the U.S. Department of Commerce, Bureau of Industry and Security, the Debarred Persons List maintained by the U.S. Department of State, Office of Defense Trade Controls, any successors to the foregoing or any similar lists maintained by any agency of the United States government and (ii) You do not engage in prohibited dealings or transactions with any persons on the foregoing lists nor dealings or transactions which would cause us to be in violation of any United States embargo or other law; and (iii) no agent, affiliate, employee or other person associated with or acting on behalf of you, directly or indirectly, has or will: (iv) provide anything of value in the form of any unlawful contribution, gift, entertainment or other unlawful expense to any foreign official or foreign political party in any polity for the purpose of gaining or retaining business or obtaining any unfair advantage; (v) violate any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (“FCPA”) (15 U.S.C. 78dd-I, and 78dd-3 (1977) (amended 1998)), the United Nations Convention Against Corruption (GA Res. 58/4, UN Doc. A/58/422 (2003)), or the Organization for Economic Cooperation and Development (“OECD”) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (DAFFE/IME/BR(97)20 (Dec. 17, 1997)) or Bribery Act 2010 (and associated guidance published by the Secretary of State for Justice) in the United Kingdom; or (v) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
C. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ARE USING THE API, OUR SYSTEM AND/OR THE SERVICES AT YOUR OWN SOLE RISK. THE SERVICES AND THE API ARE PROVIDED “AS IS” WITHOUT WARRANTY, TERM OR CONDITION OF ANY KIND, AND WE AND OUR THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. WE AND OUR THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT THE USE OF THE API AND/OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES, THE API OR THE SERVER THAT MAKES THE API AND/OR THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE API AND/OR THE SERVICES ARE FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS), THAT THE CONTENT WILL BE KEPT CONFIDENTIAL OR THAT ALL OR ANY CONTENT WILL BE DELIVERED OR RECEIVED AFTER LEAVING OUR SYSTEM. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE API AND/OR THE SERVICES IS DONE AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM USE OF THE API AND/OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CARRIERS) OR ANY SUCH THIRD PARTY’S PRODUCTS OR SERVICES. THIS SECTION 12 SHALL SURVIVE TERMINATION OF THESE TERMS OF SERVICE.
13. Limitation of Liability
A. NEITHER WE, OUR AFFILIATES, OUR THIRD PARTY PROVIDERS, NOR OUR AND THEIR LICENSORS WILL BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), WHETHER OR NOT FORESEEABLE AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
B. WE, OUR AFFILIATES, AND OUR THIRD PARTY PROVIDERS’ TOTAL LIABILITY WITH RESPECT TO YOUR USE OF THE API AND/OR THE SERVICES (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY YOU TO US FOR THE SERVICES UTILIZED BY YOU PURSUANT TO THESE TERMS OF SERVICE IN THE SIX (6) MONTHS PRIOR TO THE ACT OR INJURY THAT GAVE RISE TO THE LIABILITY.
C. Basis of the Bargain. YOU SPECIFICALLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ACTS OR OMISSIONS OF ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CARRIERS), FOR CONTENT PROVIDED BY YOUR SYSTEM, OR FOR CAUSES BEYOND OUR REASONABLE CONTROL. UNDER NO CIRCUMSTANCE SHALL WE BE LIABLE FOR ANY HARMS WHATSOEVER ARISING FROM YOUR TRANSACTIONS WITH YOUR END USERS. The parties acknowledge that the prices have been set, and these Terms of Service entered into, in reliance upon the limitations of liability, remedies, damages, and the disclaimers of warranties and damages set forth herein, and that all such limitations and exclusions form an essential basis of the bargain between the parties. The limitations of liability set forth in this Section 13 shall apply to the maximum extent permitted by law and even if a party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy.
D. Survival. THIS SECTION 13 SHALL SURVIVE TERMINATION OF THESE TERMS OF SERVICE.
A. You, at Your own expense, will indemnify, defend and hold harmless us, our third party providers, and our and their affiliates, and our and their respective employees, representatives, agents, officers and directors (collectively, the “Vivial Indemnitees”) against any claims, losses, liabilities, costs, expenses or damages (including reasonable attorneys’ fees) to the extent based on or relating to: (a) any breach by You of any of Your obligations under these Terms of Service (whether caused by You, Your Users or Your End Users); (b) any product or service provided by You or Your Users or Your End Users; (c) damages to any tangible property or bodily injury to or death of any person arising out of or caused by You, Your Users or Your End Users; (d) an allegation that all or any part of the Content provided by You, Your Users or Your End Users or Your use of the Services (or use by Your Users or Your End Users), including without limitation the CTIA Guidelines: (i) violates Applicable Law, the Applicable Use Policy and/or the Industry Standards; or (ii) infringes upon any valid patent, copyright, trademark, service mark, trade name, trade secret or other intellectual or proprietary rights of any Third Party, including claims for infringement of patents arising from combining or using services or equipment furnished by us or our third party providers with services and/or equipment furnished by any other person or entity, or gives rise to claims for libel, slander, and/or invasion of privacy; (e) any claims arising from any failure, breakdown, interruption or deterioration of service provided by You to Your Users and Your End Users; or (f) Your use and Your End Users’ Use of SMS messaging and/or the Services (a “Claim” or the “Claims”).
B. Indemnification Procedure. We will promptly notify You of a Claim. Notwithstanding any language to the contrary in Section 14(A), You agree that we may, in our discretion, assume and control the defense of any Vivial Indemnitees as to any or all Claims (such assumption and control of defense to include sole authority to compromise, settle or otherwise dispose of the Vivial Controlled Claims). “Vivial Controlled Claim” shall mean any Claim that includes allegations that any Content or use of the Services violates Applicable Law (including the U.S. Telephone Consumer Protection Act or mini-TCPA state statutes), the Applicable Use Policy and/or the Industry Standards, which we elect to assume and control the defense thereof. Our defense of a Vivial Controlled Claim shall not change Your obligations to pay the costs incurred in connection with defending and/or settling any Claims as set forth in Section 14(A). For all Claims that are not Vivial Controlled Claims: (i) we will permit You to assume and control the defense of the Claim; (ii) we will nevertheless have the right to employ separate counsel at our expense and participate in the defense of Claims; (iii) You shall have the sole authority to defend, compromise, settle or otherwise dispose of the Claims, provided that You shall not agree to any disposition or settlement of a Claim that admits liability or imposes duties of performance on Vivial without Vivial’s prior written consent; and (iv) You agree not to publicize the settlement of any Claim without first obtaining Vivial’s written permission.
C. Survival. The rights and obligations under this Section 14 shall survive termination of these Terms of Service.
A. ANY DISPUTE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, THE API OR ANY SERVICES (OTHER THAN CLAIMS WE MAY HAVE TO COLLECT AMOUNTS YOU OWE US) SHALL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS THEN-PREVAILING COMMERCIAL RULES. EACH PARTY WILL BEAR THE COST OF PREPARING AND PROSECUTING ITS CASE. THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO ALTER OR MODIFY THESE TERMS OF SERVICE, INCLUDING, BUT NOT LIMITED TO, THE LIMITATIONS OF LIABILITY SET FORTH HEREIN. ALL CLAIMS MUST BE ARBITRATED INDIVIDUALLY, AND THERE WILL BE NO CONSOLIDATION OR CLASS TREATMENT OF ANY CLAIMS. THIS PARAGRAPH IS SUBJECT TO THE UNITED STATES ARBITRATION ACT. THE ARBITRATOR SHALL APPLY THE SUBSTANTIVE LAW OF OHIO AND SHALL LIMIT ANY REMEDIES TO THOSE PROVIDED IN THESE TERMS OF SERVICE.
B. The parties acknowledge that any threatened or actual breach by You of Your confidentiality obligations to us or of Your threatened or actual breach of our intellectual property rights and other proprietary rights, may result in immediate, irreparable harm to us for which monetary damages alone would be an insufficient remedy. Thus, You specifically agree that, in the event of any threatened or actual breach of any such terms by it, we shall be entitled to injunctive relief or other similar remedy, in addition to any other remedies available, from a court of competent jurisdiction as permitted herein. Additionally: (i) the rights to suspend any Services (or any part thereof) or to terminate this Agreement or any Services (or any part thereof) are in addition to and not in lieu of any other remedies available; and (ii) in the event either party deems it necessary or prudent to respond to any subpoena or governmental inquiry in compliance with this Agreement, such party shall be entitled upon invoice to reimbursement of all reasonable costs and fees, including attorney’s fees and internal resource costs, incurred in such response.
C. Notwithstanding any term or condition of these Terms of Service to the contrary, including, without limitation, Section 15(A) above:
(i) Upon the occurrence of a Default, we may pursue any and all actions and/or remedies pursuant to Section 11 above.
(ii) We may, but will not be obligated, to utilize the dispute resolution proceedings contemplated by Section 15(A) above in connection with any collection of amounts due. For clarity, we may utilize civil actions and/or judicial proceedings in connection with any collection of amounts not timely paid.
ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS ACTION OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. YOU WILL NOT BE A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. THE PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY.
16. U.S. Government Matters
You may not remove or export from the United States or allow the export or re-export of any part of the API, the Services, and/or any applicable documentation, if any, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in the Federal Acquisition Regulations (“FAR”) section 2.101, the software and documentation licensed in these Terms of Service are “commercial items” and according to the Department of Defense Federal Acquisition Regulations (“DFAR”) section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms of Service, and will be prohibited except to the extent expressly permitted by these Terms of Service.
Except as otherwise permitted hereunder, any notices or other communications to be given under these Terms of Service: (a) shall be delivered by electronic mail (if to You, to Your email address on record in our account information and if to us, to the email address provided below); (b) if to You, sent to the address on record in our account information and if to us, to the address provided below (or to such other individual and/or address as a party may specify from time to time by written notice to the other party); (c) delivered by hand, via mail (postage prepaid, certified or registered) or via a commercially recognized overnight courier service; and (d) deemed given upon the earlier of receipt, one business day after deposit with an overnight courier (with written verification of receipt or attempted delivery), or three business days after deposit with the United States Postal Service. Notices to us shall be made to: Vivial, Attn: Legal Department, 160 Inverness Drive West, Suite 250, Englewood, CO 80112; email: Legal@vivial.net.
18. Confidential Information
A. Definition. The parties acknowledge that by reason of their relationship under these Terms of Service, they may have access to and acquire knowledge regarding, material, data, systems and other information concerning the operation, business, projections, market goals, financial affairs, products, pricing, customers and Intellectual Property Rights of the other party that may not be accessible or known to the general public and which is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”). Confidential Information shall include (i) any and all information regarding any software or proprietary technology, including the software and technology itself, utilized by each party to create, operate or maintain such party’s products or services (without limitation, the API shall constitute our Confidential Information); and (ii) any information which concerns technical details of operation of any of a party’s services offered hereunder.
B. No Disclosure. Each party receiving Confidential Information (the “Receiving Party”) agrees to maintain all such Confidential Information received from the other party (the “Disclosing Party”), both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any Third Party without the prior written consent of the Disclosing Party; provided that the Disclosing Party (a) may disclose the terms and conditions of these Terms of Service to its legal and financial consultants (collectively “Advisors”) on a confidential basis in the ordinary course of its business and (b) to its officers, directors, employees (collectively “Representatives”) and in the case of You, Your End Users, who have a “need to know” such information in order to exercise its rights and perform its obligations under these Terms of Service. The Receiving Party shall be liable to the Disclosing Party in connection with any failure of the Receiving Party’s Advisors or Representatives or in Your case, Your End Users, to comply with the terms and conditions of this Section 18. The Receiving Party further agrees to use such Confidential Information only for the purpose of performing these Terms of Service. Each party agrees to use commercially reasonable efforts to protect Confidential Information of the other party, and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. Each party shall also notify the other party promptly in writing in the event such party learns of any unauthorized use or disclosure of any Confidential Information that it has received from the other party, and will cooperate in good faith to remedy such occurrence to the extent reasonably possible. Whenever requested by the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party all manifestations of the Confidential Information or, at the Disclosing Party’s option, shall destroy all such Confidential Information as the Disclosing Party may designate. The foregoing restrictions shall remain in effect during the Term hereof and for a period of two (2) years after termination of these Terms of Service for any reason; provided, however, that if any such Confidential Information constitutes a trade secret under Applicable Law, such restrictions shall remain in effect for so long beyond such period as such Confidential Information continues to qualify as a trade secret as so defined. Notwithstanding the foregoing, the API shall remain our Confidential Information, and the confidentiality restrictions set forth in this Section 18 will remain in place indefinitely with respect to the API. This Section 18 shall survive termination of these Terms of Service.
Exclusions. Except with respect to the API, the Receiving Party’s obligations under Sections 18(A) and 18(B) above shall not apply to Confidential Information which: (i) is or becomes a matter of public knowledge through no fault of or action by the Receiving Party; (ii) was rightfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (iii) subsequent to disclosure, is rightfully obtained by the Receiving Party from a Third Party who is lawfully in possession of such Confidential Information without restriction; (iv) is independently developed by the Receiving Party without resorting to the Disclosing Party’s Confidential Information; or (v) is required to be disclosed by law or judicial order, provided that prior written notice of such required disclosure is furnished to the Disclosing Party as soon as practicable, and prior to disclosure occurring, in order to afford the Disclosing Party an opportunity to seek a protective order or other legal remedy to prevent such disclosure, and that if such order or remedy cannot be obtained, disclosure may be made without liability.
19. Changes in Laws
If any statute, regulation, decision, rule or order by a court of law or governmental authority: (A) prohibits performance pursuant to these Terms of Service, (B) makes such performance illegal, impossible or impractical, or (C) materially adversely impacts either party’s performance of its obligations under these Terms of Service, including, without limitation, the costs incurred by a party to perform its obligations under these Terms of Service, the parties will use their commercially reasonable efforts, to amend these Terms of Service so that: (i) performance pursuant to these Terms of Service is no longer prohibited, illegal, impossible, impractical or is no longer materially adversely impacted; and (ii) these Terms of Service preserve, to the maximum extent possible, the original intent of the parties. If the parties are unable to amend these Terms of Service as contemplated above, then the party whose performance or use of Services is rendered prohibited, illegal, impossible, impractical or materially adversely impacted may, in its sole discretion, suspend the impacted Services upon written notice to the other party without further obligation or liability, excluding payment of any charges for Services received by You prior to termination. The parties will continue to perform all such obligations and Services under these Terms of Service that are not so prohibited, impossible, impractical or materially adversely affected; provided, however, if a material part of the rights and obligations under these Terms of Service are suspended in accordance with the above and the performance of the remaining obligations would not reasonably maintain the respective original intent of the parties or would not serve the essential purpose of these Terms of Service, then either party will have the right to, at its sole discretion, upon written notification to the other party, terminate these Terms of Service without further obligation or liability, excluding payment for charges for Services received by You prior to termination of these Terms of Service.
A. Entire Agreement. These Terms of Service (including any documents referenced herein which are incorporated herein by this reference) constitute the entire understanding and agreement between You and us with respect to the transactions contemplated, and supersede any and all prior or contemporaneous oral or written representations, proposals, promises, understandings, agreements or communications between You and us concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
B. Amendments. Except as provided herein, these Terms of Service may be amended only by a writing that refers specifically to these Terms of Service and are signed by duly authorized representatives of both parties or electronically accepted.
C. Assignment. These Terms of Service may not be assigned or delegated by You without our written consent. You may not subcontract Your rights hereunder to any Third Party without our prior written consent. Without limiting the foregoing, You acknowledge and agree that: (i) any subcontractor that You use in connection with these Terms of Service (each referred to as “Your Contractor”) has the authority to act on behalf of, and in the name of, You and will bind You in doing so; (ii) we may and will rely on representations and directions of Your Contractor in the performance of our obligations under these Terms of Service; (iii) we may disclose Your Confidential Information to Your Contractor as reasonably required in connection with the performance of our obligations under these Terms of Service; (iv) You will cause Your Contractor to comply with these Terms of Service; and (v) You will be liable to us for any breach of these Terms of Service by Your Contractor as if You had breached these Terms of Service Yourself. We may assign these Terms of Service to any of our affiliates or to any entity acquiring all or substantially all of our assets. Any prohibited assignment shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and shall inure to the benefit of the successors and permitted assigns of You and us. We may also utilize third parties to perform a portion of our obligations under these Terms of Service. You acknowledge and agree that (a) we may subcontract our obligations under these Terms of Service to one or more of our affiliates and third party providers, which may be located in different geographies within the United States and/or geographies outside of the United States; and (b) the performance by us, our affiliates and our third party providers under these Terms of Service may include the transfer of information and/or data (including Your Confidential Information) to different geographies within the United States and/or geographies outside of the United States.
D. No Third Party Beneficiaries. Except for those rights expressly conferred on third party providers under these Terms of Service, nothing in these Terms of Service shall be enforceable by any party other than You and us, and except with respect to third party providers of the API or the Services, no third party beneficiary rights are conferred on any such Third Party, either directly or indirectly (including, if applicable, any Your User or Your End User accessing the API and/or the Services by means of an account established by You). If You violate any rights of our third party providers, such third party providers may bring an action directly against You. We have no relationship with or obligation to any of Your End Users or any other person or entity to which You provide any services utilizing SMS, none of whom is a third party beneficiary of these Terms of Service. You are solely responsible for all pricing, billing and collections, and/or compliance with any applicable laws or regulations related to any services You provide to Your End Users or any other person or entity to which You provide any services utilizing SMS. You will provide technical support to Your End Users and will conduct customary problem resolution and troubleshooting activities directly with Your End Users to determine whether any condition affecting any Service(s) is attributable to our network prior to reporting a Service Event pursuant to these Terms of Service. You may not bring a cause of action against any of our third party providers.
E. Governing Law. THESE TERMS OF SERVICE ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
F. Remedies. The parties acknowledge that any threatened or actual breach by the other party of the Confidential Information obligations in Section 18 or a party’s intellectual property and other proprietary rights, may result in immediate, irreparable harm to the other party for which monetary damages alone would be an insufficient remedy. Thus, each party specifically agrees that, in the event of any threatened or actual breach of any such terms by it, the other party shall be entitled to injunctive relief or other similar remedy, in addition to any other remedies available, from a court of competent jurisdiction as permitted herein. Additionally, our rights to suspend any Services (or any part thereof) or to terminate these Terms of Service or any Services (or any part thereof) are in addition to and not in lieu of any other remedies available to us.
G. Survivability. The terms and conditions of these Terms of Service that by their context or nature are intended to survive after performance hereunder shall survive the termination or expiration of these Terms of Service. Without limiting the foregoing, Sections 4, 5, 7, 10, 11, 12(B), 12(C), 13, 14, 15, 16, 17, 18 and 20 shall survive any expiration or termination of these Terms of Service.
H. Severability. In the event that any provision of these Terms of Service should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not, in any way, be affected or impaired thereby.
I. Waiver. No waiver of any provision of these Terms of Service or any right, power, privilege or remedy of either party hereunder shall be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. No failure or delay on the part of any party in exercising any right, power, privilege or remedy arising hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power, privilege or remedy preclude any other or future exercise thereof or the exercise of any other right, power, privilege or remedy.
J. Independent Contractors. The parties to these Terms of Service are independent contractors. Nothing contained in these Terms of Service shall be construed to create a partnership, agency, joint venture, or employer/employee relationship between the parties. Neither party has the authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other party or to bind such other party in any way. Each party shall be responsible for wages, taxes, withholding, insurance, hours and conditions of employment of its personnel during the Term. Upon our request, You will provide us with a copy of the certificates of insurance verifying placement and maintenance of all required insurance policies.
K. Force Majeure. Neither party shall be liable for any delay or failure to perform per the terms of these Terms of Service (other than obligations to pay money) caused by acts of God or other causes beyond the party’s reasonable control and without such party’s fault or negligence. In such event, either party may suspend these Terms of Service in whole or in part for the duration of the delaying cause. Both parties shall resume performance under these Terms of Service promptly after the delaying cause ceases.
L. General. These Terms of Service is made only in the English language. If there is any conflict in the meaning between the English language version of these Terms of Service and any version or translation of it in any other language, the English language version shall prevail. The section and paragraph headings appearing in these Terms of Service are inserted only as a matter of convenience and in no way define, govern, limit, modify or construe the scope or extent of the provisions of these Terms of Service to which they may relate. Such headings are not part of these Terms of Service and shall not be given any legal effect. Singular terms will be construed as plural, and vice versa. The use of any gender shall be applicable to all genders. Whenever used herein, the term “including” and its equivalents shall be read to mean “including without limitation” or with a similar meaning as the context requires. The parties acknowledge that these Terms of Service were negotiated at arms’ length by commercial entities with access to legal counsel, and no term or provision herein shall be construed favorably or unfavorably as to either party based upon which party drafted or negotiated such term or provision. These Terms of Service supersede any different terms and conditions contained in Your purchase order(s) or any other document that may be accepted by us for Your convenience; we hereby object to the terms and conditions of Your documents to the extent they add to or modify the terms set forth herein. When and where available, You consent to conducting business with us electronically and the parties may accept any documents electronically, in accordance with our approved format.
N. Beta Testing. From time to time, You may have the option to participate in a program with us where you get to use alpha or beta services, products, features and documentation (“Beta Services”) offered by us. The Beta Services are not generally available and may contain bugs, errors, defects or harmful components. Therefore, we provide the Beta Services to you on an “as-is,” “where-is” basis. We make no warranties of any kind with respect to Beta Services, whether express, implied, statutory or otherwise, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement. We do not warrant that the Beta Services will be error-free or that they will operate without interruptions or downtime. Our indemnification obligations under these Terms of Service do not apply to the Beta Services.
O. Contact Us. If you have questions about these Terms of Service, please contact us by email at email@example.com.
“ANI” means automatic number identification.
“Applicable Law” means all applicable international (including European Union), national, federal, state and local laws, rules, regulations, directives, statements, and codes of practice, including any export/import laws, relating to any or all countries in the United States or otherwise. Applicable Law includes U.S. CAN-SPAM Act, the U.S. Telephone Consumer Protection Act and any rules promulgated by any Regulator or Carrier.
“CALEA” means Communications Assistance for Law Enforcement Act regulated by the FCC.
“Carrier” means providers of wireless messaging services via wireless telecommunications networks, including without limitation, those Carriers in the Territory with which we maintain connectivity (including via third party service entities that provide network connectivity services for SMS Message delivery to and from Carriers (“Third Party Aggregators”)) from time to time. For purposes of these Terms of Service, the term “Carriers” shall include applicable Third Party Aggregators.
“Code” means a long code or a short code, as applicable.
“Content” means all data, information and other content in any format (including text and image) either (a) provided by You to be sent via the Services or (b) sent to You via the Services. For purposes of these Terms of Service, all Content shall be deemed Your Content, for which You are solely responsible.
“CPN” means called party number.
“CPNI” means Customer Proprietary Network Information and is defined and regulated by the FCC and includes such data as: CDRs, the type of services/network a customer subscribes to, and any other information that appears on a customer’s invoice and/or billing statement.
“Default” means (and will occur): (i) if You fail to make any payment for Services when due; (ii) if You (or, to the extent applicable, Your Users or Your End Users) violate the Acceptable Use Policy; (iii) if You fail to perform or observe any term or obligation of these Terms of Service, including, without limitation, any document incorporated by reference into these Terms of Service, not otherwise specified in clauses (i) or (ii) above and applicable to the Services, which failure remains uncured thirty (30) calendar days after Customer’s receipt of written notification from us informing You of such failure; (iv) upon the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings, by or against You, unless such proceedings have been dismissed or discharged not later than the date thirty (30) calendar days immediately after the commencement of such proceeding; (v) upon the making of an assignment for the benefit of creditors, adjudication of insolvency, or institution of any reorganization arrangement or other readjustment of debt plan, of or by You; and/or (vi) upon the appointment of a receiver for all or substantially all of Your assets.
“FCC” means the Federal Communications Commission.
“Improper Calls” means call types that (i) would result in our incurring originating access charges, local exchange carrier “DIP” fees or other call types that may be subject to a reverse billing process, (ii) 911/E911 or other emergency service calls; (iii) any unauthorized or fraudulent communications on pay-per-call numbers, information service calls, directory assistance calls or the like; and/or (iv) mass calling events, excessive non-completed and invalid calls and failed calls due to Your inadequate capacity.
“Industry Standards” means collectively, as applicable, (a) the standards established by the Carriers and/or Mobile O/S Providers, and any additions, deletions or changes to such Content standards that are hereafter announced from time to time by the Carriers and/or Mobile O/S Providers (the “Content Standards”). The Content Standards include (i) Your full compliance with all Carrier Application Form (“CAF”) filings (and/or other campaign/program representations made during any similar provisioning approval process) as approved by the applicable Carrier; (ii) the standards established by the Carriers, and any additions, deletions or changes to such Content Standards that are hereafter announced from time to time by the Carriers; and (iii) all applicable Carrier and/or association of Carriers (as described in (b) herein) rules, policies, requirements and terms of agreements therewith as such may be updated from time to time; (b) all applicable Carrier, Mobile O/S Provider and/or associations of Carriers (e.g., the CWTA in Canada, the CTIA in the United States and the PhonePayPlus (united Kingdom)) rules, policies, requirements and terms of agreements therewith as such may be updated from time to time; (c) the Mobile Marketing Association’s Code of Conduct and Consumer Best Practices Guideline as each are established from time to time, including as maintained at http://www.mmaglobal.com/node/1563 and https://www.mmaglobal.com/files/Best_Practices_for_Messaging_Version_7.0%5B1%5D.pdf, respectively, which are each incorporated herein by this reference; (d) the CTIA Messaging Principles and Best Practices as established from time to time, including as maintained at https://www.ctia.org/docs/default-source/default-document-library/170119-ctia-messaging-principles-and-best-practices.pdf, which is incorporated herein by this reference; (e) the CTIA Short Code Monitoring Handbook as established from time to time, including as maintained at https://www.usshortcodes.com/info/static/docs/Monitoring_Handbook.pdf and the CTIA recommendations generally, located at http://www.wmcglobal.com/us-resources, respectively, which are each incorporated herein by this reference; (f) the then-current requirements of the US Common Short Code Administrator, as published at www.usshortcodes.com, which is incorporated herein by this reference; (g) compliance requirements and best practices in the industry regarding long codes as such may be modified from time to time, including but not limited to requirements regarding user consent and required auto-responses, and (h) any applicable standards regarding advertising, marketing and promotion / publicity materials contained within the Content.
“Intellectual Property Rights” means any intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights recognized in any country or jurisdiction in the world.
“IP” means Internet Protocol.
“IP Originated” means traffic utilizing TCP/IP as a transmission protocol from the originating equipment (i.e. SIP phones, SIP PBX, TDM to SIP Gateway, IP-adapter, etc.) to a TCP/IP gateway, for termination to an IP destination or the PSTN.
“NADP” means the North American Dialing (or Numbering) Plan.
“PSTN” means the Public Switched Telephone Network.
“PUC” means a public utilities commission (or other similar governmental agency).
“Regulator” means any international, national, state or provincial, or local government authority or law enforcement agency, any court, tribunal or arbitrator(s) of competent jurisdiction, and any self-regulatory organizations with contractual authority to set requirements or guidelines relating to Carriers, You or the Services. Without limiting the foregoing, Regulators include the U.S. Federal Communications Commission and the U.S. Federal Trade Commission.
“Short Message Service” or “SMS” is the text communication service component of mobile communication systems that allows the exchange of short text messages between fixed line or mobile phone devices.
“TCP/IP” means Transmission Control Protocol / Internet Protocol.
“Territory” means any geographic region to which we deliver SMS messages or other Services on Your behalf.
“Third Parties” means any and all persons not a party to these Terms of Service.
“911/E911” means functionality that allows end users to contact emergency services.
22. APPLICABLE ONLY TO TOLL FREE SMS USAGE:
A. All toll free SMS must comply in all respects with these additional terms and restrictions which are in addition to, and not in lieu of, the terms and conditions otherwise set forth in these Terms of Service. These additional terms and restrictions are not inclusive or exhaustive and are subject to change, at Vivial’s discretion.
B. You (i) may not use or otherwise enable any telephone number(s) (including, without limitation, toll-free numbers) provided by Vivial (or its affiliates) at any time in connection with the Services and/or any other form of traffic other than SMS and/or any other form of traffic from Vivial and its affiliates, and (ii) may not establish and/or operate peer-to-peer relationships with any Third Party(ies) with respect to any telephone numbers provided by Vivial (or its affiliates) at any time, except as may be expressly permitted by the CTIA Guidelines from time to time, including, without limitation, with respect to toll-free telephone number(s).
C. You acknowledge that toll free messaging is not free to Your Users. Unlike voice toll free calls, Carriers have not adopted free text messaging for mobile end users when sending text messages to a toll-free number. Vivial will charge You any additional fees imposed by the Carrier(s) for each mobile terminated or mobile originated toll free SMS message sent or received relating to the applicable Carrier and/or its affiliates. For clarity, the additional fees are pass-through fees and are in addition to the toll free SMS fees as well as any other Fees set forth in these Terms of Service, and are subject to change from time to time by the Carrier(s) and/or its affiliates. Vivial will use commercially reasonable efforts to provide advance written notice to Company of changes to the pass-through fees.
D. You acknowledge and agree that Third Party aggregators and/or covered Carriers reserve the right to suspend and/or terminate toll free SMS in their discretion from time to time. Vivial will use commercially reasonable efforts to provide notice to You of any such toll free SMS program suspension or termination promptly after receiving notice of same from the respective aggregator or covered Carrier(s). You may not use Vivial’s telephone numbers or toll-free numbers to route messages over any another provider’s network.