Thanks for using SellbyTextMessage.
1. General information
5. Monthly Plans
Our charges for monthly plans are posted on our Website and may be changed from time to time. You will be notified by email or by logging in to your account if the price of the plan in which you are enrolled will change. Payments are due for any month on the same or closest date to the day you made your first monthly payment (the “Pay Date”). If you go over your sending limit, you’ll have to pay for the additional text messages, emails, or push notifications sent either on a per message basis. If the Term ends before that payment is due, you’ll still be required to make one payment at the higher level. Any unused messaging credits that you have will rollover. Rollover credits expire at the end of the month one (1) year from the month in which they were originally purchased.
6. Per Message Plan
You may buy text message, email, or push notification credits to use our Services instead of committing to a monthly plan. This is explained in more detail on our Website. If you choose a per message plan, you’ll still be considered a Member, and all the terms of this Agreement will still apply to you. Text message, email, or push notification credits for per message accounts roll over and don’t expire, but if your account is inactive for more than 12 months, it may be deleted.
Credit Card payments will be processed through Stripe, according to its terms of service. As long as you’re a Member or have an outstanding balance with us, you must provide us with valid credit card information and authorize us to deduct the monthly charges against that credit card. You’ll replace the information for any expired credit card with up to date information for a valid one. Anyone using a credit card represents and warrants that they are authorized to use that credit card, and that any and all charges may be billed to that credit card. If we’re unable to process your credit card payment, we’ll attempt to contact you by email and suspend your account until a payment can be processed for your account. You are also responsible for paying any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions, including taxes not collected by SellbyTextMessage.
We’ll give you a refund for a prepaid month if we stop providing you Services for a reason not provided for in these Terms. You won’t be entitled to a refund from us under any other circumstances. We may refund a Member’s monthly fee if a request is made based on the requirements posted on the Website.
9. Charges for Add-Ons
Some features are offered as add-ons to your SellbyTextMessage account. If you add on a feature that has a charge, then you will be billed that additional amount with each billing cycle for as long as the add-on service is active. Some add-ons are intended for particular use cases and may have additional terms or restrictions (“Additional Terms”). If you use an add-on in a way that violates these Terms or the Additional Terms, then we may terminate your use of the add-on service or your entire account, at our sole discretion.
10. Billing Changes
We may change our fees at any time by posting a new pricing structure to our Website and/or sending you a notification by email.
11. Proprietary Rights Owned by Us
You will respect our proprietary rights, include patents, trademarks, service marks, trade secrets, and copyrights, in the Website and the software used to provide SellbyTextMessage.
12. Proprietary Rights Owned by You
14. Right to Review Text Message or Email Campaigns
We may view, copy, and internally distribute content from your emails, text messages, push notificaionts and account to create algorithms and programs (“Tools”) that help us spot problem accounts. We use these Tools to find Members who violate these Terms or laws.
RULES AND ABUSE
15. General Rules
You promise to follow these rules:
SellbyTextMessage does not allow accounts with the primary purpose of promoting or inciting harm towards others or the promotion of discriminatory, hateful, or harassing content. To this end, we may suspend or terminate your account if you send a text message, email, or push notification campaign, submit an advertisement or otherwise distribute any content that we determine, in our sole discretion, contains either of the following:
We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:
Further, you agree that you are not to engage in any of the following prohibited activities in connection with the Service: (1) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (2) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Service in a manner that sends more request messages to the SellbyTextMessage servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that, subject to the privacy settings of our Users, SellbyTextMessage grants the operators of public search engines revocable permission to use spiders to copy materials from SellbyTextMessage for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (3) transmitting spam, chain letters, or other unsolicited email; (4) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (5) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (6) uploading invalid data, viruses, worms, or other software agents through the Service; (7) collecting or harvesting any personally identifiable information, including account names, from the Service; (8) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (9) interfering with the proper working of the Service; (10) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (11) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; (12) decompiling, reverse engineering, or otherwise attempting to obtain the source code of the Service; (13) using the service in any way that violates any law, statute, ordinance or regulation; (14) any sale of narcotics, steroids, certain controlled substances, drug paraphernalia, sexually-oriented materials or services, ammunition, firearms or certain parts of accessories, certain weapons or knives regulated under applicable law, or other products that present a risk to consumer safety; (15) activity that encourages, promotes, facilitates or instructs others to engage in violence, racial intolerance, the financial exploitation of a crime or other illegal activity; (16) misrepresenting your identity or affiliation with any person or entity; (17) supporting pyramid schemes, matrix programs, other schemes or certain multi-level marketing; (18) activity associated with purchases of real property, annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card; (19) activity associated with the sale of traveler’s checks, money orders, currency exchanges or check cashing; (20) activity involving illegal gambling, gaming and/or any other activity with an entry fee and prize, including, but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, games of skill and sweepstakes unless the operator has obtained prior approval from SellbyTextMessage and the operator and customers are located exclusively in jurisdictions where activities are permitted by law; (21) interferes with any other party’s ability to use SellbyTextMessage’s services; or (22) modifies, translates, adapts, edits, copies, decompiles, disassembles or reverse engineers any software used or provided by SellbyTextMessage in connection with SellbyTextMessage’s services or websites.
If you violate any of these rules, then we may suspend or terminate your account.
16. Member Message Content
You agree not to send any text, email, or push notification messages that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, pornographic, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any text or email messages that you send do not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your text or email message contains music, you hereby represent that you are the owner of or possess all rights to all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such messages and have the power to grant the license granted below. SellbyTextMessage reserves the right, but is not obligated, to reject and/or remove any messaging campaign that SellbyTextmessage believes, in its sole discretion, violates these provisions.
For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
17. Reporting Abuse
If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a SellbyTextMessage user, please report it to our abuse team at email@example.com. If you think anyone has posted material that violates any copyrights, please report it to firstname.lastname@example.org
18. Bandwidth Abuse/Throttling
You may only use our bandwidth for your SellbyTextMessage text messages, emails, or push notifications. We provide image and data hosting only for your text message, email, and push notification campaigns, so you may not host images on our servers for anything else (like a website). We may throttle your sending or connection through our API at our discretion.
19. Compliance with Laws
You represent and warrant that your use of SellbyTextMessage will comply with all applicable laws and regulations. You’re responsible for determining whether our Services are suitable for you to use in light of any regulations like HIPAA, GLB, EU Data Privacy Laws, or other laws. If you’re subject to regulations (like HIPAA) and you use our Service, then we won’t be liable if our Service doesn’t meet those requirements. You may not use our Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce.
If you’re located in the European Economic Area (EEA) or send to anyone in the EEA, you represent and warrant that in creating your Text Message distribution list, sending text messages via SellbyTextMessage, and collecting information as a result of sending text messages, you:
20. U.S. Export Controls
The software that supports the Services (the “Software”) is subject to United States export controls. Export laws are set up by the government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of the Software may be downloaded or otherwise exported or re-exported in violation of United States export laws. You’re downloading and using the Software at your own risk.
21. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLBYTEXTMESSAGE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE OR ANY PRODUCT. UNDER NO CIRCUMSTANCES WILL SELLBYTEXTMESSAGE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLBYTEXTMESSAGE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AVAILABLE ON OR THROUGH THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE OR ANY PRODUCT; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SELLBYTEXTMESSAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Service is controlled and operated from its facilities in the United States. SellbyTextMessage makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You represent and warrant you are not located in a country embargoed by the United States or that has been designated by the United States government as a “terrorist-supporting” country, and that you are not a foreign person or entity blocked or denied by the United States government or otherwise listed on any United States government list of prohibited or restricted parties.
22. No Warranties
THE SERVICE AND ANY PRODUCT OR SERVICE YOU PURCHASE THROUGH THE SERVICE (“PRODUCT”) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND THE PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SELLBYTEXTMESSAGE, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE OR THE PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
SELLBYTEXTMESSAGE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SELLBYTEXTMESSAGE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND SELLBYTEXTMESSAGE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
You agree to indemnify and hold us and our Team harmless from any losses, including attorney fees that result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, including attorney fees, that result from third-party claims that you or someone using your password did something that, if true, would violate any of these Terms.
24. Attorney Fees
If we file an action against you claiming you breached these Terms and we prevail, we’re entitled to recover reasonable attorney fees and any damages or other relief we may be awarded.
25. Equitable Relief
If you violate these Terms then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.
26. Subpoena Fees
If we have to provide information in response to a subpoena related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
We and our Team aren’t responsible for the behavior of any advertisers, linked websites, or other Members.
You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.
29. Choice of Law
30. Force Majeure
We are not liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.
Even if this Agreement is terminated, the following sections will continue to apply: Proprietary Rights Owned by Us, Proprietary Rights Owned by You, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.
If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
The headers and sidebar text are provided only to make this agreement easier to read and understand. The fact that we wrote these Terms won’t affect the way this Agreement is interpreted.
34. Amendments and Waiver
Amendments or changes to these Terms won’t be effective until we post revised Terms on the Website. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and SellbyTextMessage’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Any notice to you will be effective when we send it to the last email or physical address you gave us or posted on our Website. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: SellbyTextMessage, or any addresses as we may later post on the Website.
37. Entire Agreement
This Agreement, together with any amendments and any additional agreements you may enter into with SellbyTextMessage in connection with the Service, shall constitute the entire agreement between you and SellbyTextMessage concerning the Service.