TERMS AND CONDITIONS
WHEREAS, TEXT4SERVICE provides mobile ordering and assistance request services to customers for the sale and offering of products and services; WHEREAS, Customer desires TEXT4SERVICE messaging services for its location(s);
NOW THEREFORE, in consideration of the foregoing, and the mutual covenants and promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
I. TEXT4SERVICE SCOPE OF SERVICES
TEXT4SERVICE agrees to provide Customer SMS messaging services at Customer location(s) hereinafter “Services” the scope of which is provided herein below and or attached hereto and incorporated herein for all purposes as set forth in Exhibit B of Master Services Agreement.
II. TEXT4SERVICE EQUIPMENT
When requested by Customer herein, TEXT4SERVICE agrees to provide Customer TEXT4SERVICE Equipment as provided herein and or attached hereto and incorporated herein for all purposes as set forth in Exhibit B of Master Services Agreement.TEXT4SERVICE equipment shall always remain property of TEXT4SERVICE and shall include iPad Devices, Cases, Power Supplies, Text Messages, TEXT4SERVICE Apps and all intellectual content viewed by the customer. Purchased equipment shall be Printers, Credit Card readers, and signage hardware.
III. TEXT4SERVICE FEES
Customer agrees to payTEXT4SERVICE for any and all Fees, and applicable taxes, for Services and Equipment as provided herein below and or attached hereto and incorporated herein for all purposes as set forth. TEXT4SERVICE shall be permitted to change Fees in its sole discretion upon thirty (30) days written notice to Customer.
IV. PAYMENT TERMS
TEXT4SERVICE will debit customer credit card or bank account in Exhibit A for the amount due at signing prior to shipping of the equipment. TEXT4SERVICE will invoice Customer on a monthly basis for the current month’s service as well as any overage from the previous month.
Due at signing will be any setup and/or training fees and/or equipment purchased fromTEXT4SERVICE. If the contract start date listed in Exhibit B begins any time other than the 1st of the month, the current month will be charged a prorated amount and will be due at time of signing. Proration will be charged based on the start date of the contract listed in Exhibit B and calculated based on a number of days remaining in the month. Any usage of the account prior to the start date may be subject to an additional charge of the overage rate of the customer’s plan.
Invoices shall be sent to Customer via email. Customer authorizes TEXT4SERVICE to initiate payment processing for TEXT4SERVICE Fees via Credit Card or ACH Debit on the 5th of the month. For Non-sufficient funds (NSF) payments or declined transactions, a $30 fee will be applied. Any past dues balances will be charged a 1.5% penalty on outstanding balance per 15 day period. TEXT4SERVICE may suspend the Services at any point if a balance is more than fifteen (15) days past due.
Where Customer agrees to payTEXT4SERVICE Fees via credit card or automated clearing house “ACH” Debit in accordance with the fee schedule set forth in Exhibit B, Customer hereby agrees to and authorizes TEXT4SERVICE to initiate payment processing for TEXT4SERVICE Fees via credit card or ACH Debit on the 5th of the month for Services and Equipment provided herein in advance and expenses incurred the month prior thereto.
TEXT4SERVICE reviews each invoice for accuracy and value before sending it to the Customer. Upon receipt of invoice, it is important that the Customer promptly does the same and contacts TEXT4SERVICE immediately to discuss any problem. Further, Customer agrees that all of TEXT4SERVICE’s invoices are deemed to be approved 5 days after Customer’s receipt unless TEXT4SERVICE is notified in writing of Customer’s disapproval or dissatisfaction.
If Customer’s credit card or ACH payment is rejected, TEXT4SERVICE will notify Customer of the default in payment; and if not cured within 2 days, TEXT4SERVICE reserves the right to terminate Services, in its sole discretion, until Customer’s payment status is current. Customer agrees to pay any and all TEXT4SERVICE fees associated with a rejected payment including TEXT4SERVICE reasonable and actual attorneys’ fees for collection of Customer’s past due invoices.
Where TEXT4SERVICE Services include payment processing for Customer, TEXT4SERVICE will pay Customer for balances due Customer via ACH credit approximately two (2) banking business days after payment was processed byTEXT4SERVICE. Customer hereby authorizes TEXT4SERVICE to initiate payments directly to Customer’s bank account via ACH credit. Customer further agrees that TEXT4SERVICE shall have the right to offset any payment or reverse ACH debit Customer for any and all past due Fees, ACH and credit card chargebacks or reversals, NSF charges as well as all other Fees, costs or expenses owed by Customer to TEXT4SERVICE.
V. TERM; TERMINATION
The term of an agreement shall commence on the date stated in the signed agreement and shall remain in effect for term of the agreement. Following the last month of the agreement, the agreement shall automatically renew for the same term unless terminated by either TEXT4SERVICE or Customer upon thirty (30) days prior written notice of termination. However, Customer shall be responsible for all TEXT4SERVICE fees and expenses within 5 days of termination.
In addition, either party may terminate the agreement if (a) a petition under any bankruptcy law is filed by or against the other party, (b) the other party executes an assignment for the benefit of creditors, (c) a receiver is appointed for the other party’s assets, or (d) the other party becomes insolvent or takes advantage of any insolvency or any similar statute.
Subject to the terms, conditions, use limitations and payment of fees as set forth herein, TEXT4SERVICE grants Customer the non-exclusive license(s) to install and use TEXT4SERVICE Services. The license granted by TEXT4SERVICE is for internal use by Customer only. Customer is permitted to grant access to the software and/or to data derived from the software (a) to its employees while in the performance of Services for Customer, (b) to Customer’s information technology contractors while in the performance of Services for you, and (c) to Customer’s trading partners provided such access is limited to that permitted by and for the performance of Services herein. Customer may not grant access to the software or to data derived from the software to any other entity.
TEXT4SERVICE will provide to Customer materials via internet download. These Services materials will be copy protected and will require software activation.
Customer agrees to reproduce TEXT4SERVICE’s copyright and other proprietary rights notices on all copies of the TEXT4SERVICE Services materials made by Customer. Customer agrees not to reverse engineer, interrogate or decode any TEXT4SERVICE Services materials or attempt to derive any source code or algorithms therefrom. Customer acknowledges that transfer by Customer of any copy of the Services materials to anyone other than Customer is a serious crime and is grounds for suit for damages, injunctive relief and attorney’s fees. Customer agrees to take all reasonable and prudent measures to safeguard the security of the TEXT4SERVICE Services materials and all copies and installs made by Customer. Customer agrees to take such measures no less than those taken by Customer to secure it’s own proprietary and confidential business information. Customer agrees to notify TEXT4SERVICE immediately if Customer becomes aware of the theft or unauthorized possession, use, transfer or sale of the TEXT4SERVICE Services materials, copies and installs licensed to Customer by TEXT4SERVICE.
TEXT4SERVICE reserves the right to change TEXT4SERVICE Services functionality from time to time. TEXT4SERVICE agrees to provide customer with updates as they become commercially available in its sole discretion. Customers agree to perform any and all required updates to its software within Ninety (90) days of its release.
VII. EQUIPMENT USE AND OWNERSHIP
Where Equipment is provided to Customer by TEXT4SERVICE, Customer may use Equipment in the course and scope of its business to provide Services herein. TEXT4SERVICE shall retain all ownership rights, title and interest to Equipment by TEXT4SERVICE. Upon termination of Services, Customer shall return all equipment within ten (10) days. Customer shall be financially liable for the replacement cost of any and all loss and damage to Equipment except for ordinary wear and tear.
VIII. LIMITATION ON WARRANTY AND LIABILITY
TEXT4SERVICE warrants that the TEXT4SERVICE Services will operate in substantial conformance with written performance-related materials provided by TEXT4SERVICE to Customer under normal use and service for the duration of the agreement. However, the sole obligation of TEXT4SERVICE and the sole remedy of Customer under this warranty is for TEXT4SERVICE to use commercially reasonable efforts to either correct the defect or provide a suitable “bug fix” or “work around”. Corrected TEXT4SERVICE Services, or any equipment upgrades, will be warranted as provided above for any remaining term or until termination of the signed agreement.
TEXT4SERVICE warrants that the Equipment will be free from defects in material and workmanship under normal use and service for the duration of the signed agreement. The sole obligation of TEXT4SERVICE and the sole remedy of Customer under this warranty are for TEXT4SERVICE, at its election, to either repair the defect or replace the defective Equipment subject to availability. TEXT4SERVICE, prior to return of the equipment, must approve a defect claim in TEXT4SERVICE’s sole discretion. Customer is responsible for removing defective Equipment, shipping defective Equipment to TEXT4SERVICE or a designated TEXT4SERVICE agent, and installing replacement Equipment. Any replacement Equipment will be new or like new. Equipment that is replaced is the property of TEXT4SERVICE. Repaired or replaced Equipment will be warranted as provided above for the balance of the duration of the signed agreement.
EXCEPT AS OTHERWISE STATED HEREIN, SERVICES AND EQUIPMENT, ACCESS TO THE NETWORK, COMMUNICATION SERVICES ARE PROVIDED “AS IS” AND WHERE IS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. TEXT4SERVICE DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE SERVICES, LICENSED SOFTWARE AND EQUIPMENT, ACCESS TO THE NETWORK, COMMUNICATION SERVICES OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT TEXT4SERVICE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, TEXT4SERVICE EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE AS PROVIDED HEREIN WITH RESPECT TO THE SERVICES, LICENSED SOFTWARE, EQUIPMENT OR ANY PART THEREOF. FURTHER LIMITATIONS ON LIABILITY AND DAMAGES INCLUDE BUT ARE NOT LIMITED TO:
- IN NO EVENT WILL TEXT4SERVICE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR COMMUNICATION OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL TEXT4SERVICE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT FEES PAID OR PAYABLE TO TEXT4SERVICE PURSUANT TO THIS AGREEMENT IN THE TWO MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- IN NO EVENT WILL TEXT4SERVICE BE LIABLE TO CUSTOMER FOR ANY LOSS OR DAMAGE CAUSED BY ANY THIRD PARTY SERVICES OR EQUIPMENT THAT ARE PART OF, MAKE UP OR INCIDENTAL TO TEXT4SERVICE SERVICES.
- IN NO EVENT WILL TEXT4SERVICE BE LIABLE TO CUSTOMER FOR ANY LOSS OF REVENUE AS THE RESULT OF IMPROPER PRICING SETTINGS WHETHER DONE BY TEXT4SERVICE OR CUSTOMER. IT WILL BE THE SOLE RESPONSIBILITY OF CUSTOMER TO CONFIRM ALL PARKING PRICES PRIOR TO RELEASING TO THE GENERAL PUBLIC FOR PURCHASE.
TEXT4SERVICE and Customer agree to keep confidential and not to disclose or use for its own benefit or the benefit of any third party (except as may be required for the performance of Services or as may be required by law), any information, documents or materials which are identified by a party, at the time that they are made available, to be proprietary or confidential. The confidentiality obligations in the preceding sentence, however, shall not extend to any information, documents, or materials that (a) become publicly available without breach of this provision, (b) are received from a third party without restriction, or (c) are independently developed without reference to information received hereunder from the other party, and provided further that such obligations herein shall survive the termination of the signed contract.
Customer agrees that all personal information, including phone number, collected through the use of TEXT4SERVICE will not be used for any marketing or promotional activity beyond the scope of service of TEXT4SERVICE. It is strictly confidential and not the right of the Customer to use outside of TEXT4SERVICE texting purposes. The information is strictly for transaction and reporting purposes with the use of TEXT4SERVICE and should never be included without proper notification and permission to any lists. TEXT4SERVICE will not use any collected information for such purposes either. If Customer uses such information and is found to be in violation, TEXT4SERVICE is not held liable in any way and Customer is responsible, as per this agreement, for all fines or regulations imposed.
X. AGREEMENT DISCLOSURE
Upon written approval Customer hereby authorizes thatTEXT4SERVICE may publicize TEXT4SERVICE and Customer relationship resulting from the signed agreement in the form of digital media including LinkedIn, Twitter, Facebook, etc., press releases and announcements and permit TEXT4SERVICE to include Customer’s name in TEXT4SERVICE Customer roster for the purpose of further business development efforts. Customer may be given reasonable opportunity to review and approve all information pertaining to Customer prior to public disclosure. With Customers prior written consent, Customer may also be requested to participate in additional activities, such as success stories, references and marketing initiatives.
XI. RELATIONSHIP OF PARTIES
Nothing contained in this or the signed Agreement shall create any partnership or joint venture or exclusivity between the parties. Further, TEXT4SERVICE, in furnishing Services and Equipment to Customer, is acting only as an independent contractor. Except where this Agreement expressly provides otherwise, TEXT4SERVICE does not undertake by this or the signed Agreement or otherwise to perform any obligation of Company, whether regulatory or contractual or to assume any responsibility for Customer’s business or operations.
The signed agreement may not be assigned by either party without the prior written consent of the other, and any such purported assignment shall be void. The agreement can be assigned to affiliated entities or buyers.
XIII. DISPUTE RESOLUTION
Any dispute or legal action arising under this or the signed agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this and the signed agreement will be governed by and construed and interpreted in accordance with the laws of the State of Texas. Venue for the arbitration, or any litigation or dispute, will be held in Dallas County, Dallas, Texas. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of these agreements. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
XIV. ATTORNEYS’ FEES
If any litigation or arbitration is necessary to enforce the terms of this or the signed agreement, the prevailing party will be entitled to reasonable and actual attorneys’ fees and costs.
If any term of the signed agreement, or attachment thereto, is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this and the signed agreement will remain in full force and effect.
XVI. FORCE MAJEURE
Neither party will be held responsible for any delay or failure in performance of any part of this or the signed agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
XVII. WAIVER AND MODIFICATION
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This and the signed agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto. However, the parties may add TEXT4SERVICE and Equipment for additional Customer locations through the use of additional pages to the signed agreement.
XVIII. ENTIRE AGREEMENT
The signed agreement, together with any attachments referred to, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into any agreement by any representations or promises not specifically stated herein.