NICE CXone Terms of Service
1. Terms of Service
These Terms of Service (the “Terms”) govern your use of the website located at: https://textel.net (the “Website”), our downloadable software applications (each, an “App” and collectively “Apps”), the Software (as defined below), Textel Application Program Interfaces (collectively “API”), and hosted services enabled or available via the Website, Apps, Software (as defined below), and API (the “Services”) that are offered by Textel LLC. (“Textel”, the “Company” or “we”).
1.1 Use of the Service. The Website, App, the Software (as defined below), the API, the Services and the information and content available in the App, the Software (as defined below), the API, and the Services (collectively, the “Company Properties”) are protected by copyright laws throughout the world. Unless otherwise specified by the Company in a separate license, your right to use any Company Properties is subject to the Terms.
1.2 Application License. Subject to your compliance with the Terms, the Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the App on mobile devices or computers that you own or control solely for your business purposes, and not for further resale. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace or any similar store or marketing place (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g. Apple App Store’s “Usage Rules”) (the “Usage Rules”).
1.3 Company API. Subject to your compliance with the Terms, including the Service Subscription Fees outlined in section 6, Company hereby grants to you the right to access and use the Company API m ade available by Company to you, solely for the purpose of accessing the Services and for no other purpose. This right specifically excludes Company’s Provisioning API, which is used for text enabling phone numbers. We may limit: (i) the number of network calls that you may make via the API; (ii) the maximum file size; and (iii) the maximum Content that may be accessed, or anything else about the API and the Content it accesses that we deem appropriate, in our sole discretion. We may impose or modify these limitations without notice. We may utilize technical measures to prevent over-usage or stop usage of the API by you or any other user after any usage limitations are exceeded or suspend your access to the API with or without notice to you in the event you exceed any such limitations.
1.4 Updates. You understand that the Company Properties are evolving. As a result, the Company may require you to accept updates to the Company Properties that you have installed on your computer or mobile device. You acknowledge and agree that the Company may update the Company Properties with or without notifying you. You may need to update third-party software (e.g. your device’s operating system) from time to time in order to use the Company Properties.
1.5 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Company Properties or any portion of the Company Properties, (ii) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of the Company; (iii) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (iv) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) access the Company Properties in order to build a similar or competitive website, application or service; (vi) except as expressly stated herein, no part of the Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (vii) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Company Properties. Any future release, update or other addition to the Company Properties shall be subject to the Terms. The Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Company Properties terminates the licenses granted by the Company pursuant to the Terms.
1.6 Necessary Equipment and Software. You must provide all equipment, internet or mobile connectivity, and software necessary to connect to the Company Properties, including but not limited to, a mobile device that is suitable to connect with and use the Company Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Company Properties.
2.1 Registering Your Account. In order to access certain features of the Company Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user of the Services (“User”) who has registered an account on the Website, API, Software, or App (“Account “).
2.2 Registration Data. In registering for use of the Services you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the App’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (x) at least thirteen (13) years old; (y) of legal age to form a binding contract; and (z) not a person barred from using the Company Properties under the laws of your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree to (a) notify the Company immediately of any unauthorized use of your password or any other breach of security at [email protected]; and (b) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Company Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Company Properties if you have been previously removed by the Company, or if you have been previously banned from any of the Company Properties.
2.3 Your Phone Numbers. You represent and warrant that (i) you have procured all rights and licenses and have all power and authority necessary to use and text enable those phone numbers you register or associate with your Account without the consent of any third party, (ii) you will not use the services on a phone number that has been exchanged, rented, or purchased from a third party without the permission of the phone number owner, (iii) the phone number is not a mobile subscriber phone number and (iv) you will use the Services for legal purposes only.
3. Responsibility for Content; Confidential Information
3.1 Types of Content and Confidential Information. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Company Properties (“Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not the Company, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available (“Make Available”) through the Company Properties (“Your Content”), and that you and other Users of the Company Properties, and not the Company, are similarly responsible for all Content they Make Available through the Company Properties (“User Content”). As such, you retain all rights in ownership to Your Content and any User Content that is related to your Users; subject to the Company’s right to use Your Consent and any User Content pursuant to Section 4.4 of these Terms, below. The Company shall treat Your Content and User Content as Confidential Information (as defined below).Each party agrees to protect the Confidential Information of the other party. Each party will afford to the other party’s Confidential Information at least the same degree of care as it normally employs to avoid unauthorized disclosure of its own Confidential Information. Confidential Information includes any technical and non-technical information whether in graphic, electronic, optical, written, oral or other form, that is either identified as confidential or proprietary or which, given the nature of the information and circumstances of disclosure would reasonably be considered confidential or proprietary, including but not limited to any emails, texts or other communications of occurring through the Company Properties, as well as any ideas, techniques, drawings, designs, descriptions, specifications, works of authorship, patent applications or other filings, models, inventions, know-how, processes, algorithms, software source documents, materials related to the current, future and proposed technologies, products and services of the parties, any information concerning research, experimental work, development, financial information, purchasing, customer lists, employees, business and contractual relationships, business forecasts, business plans, property information, personally-identifiable information, sales and merchandising, marketing plans, and methods of operation.
3.2 No Obligation to Pre-Screen Content. You acknowledge that the Company has no obligation to pre-screen Content (including, but not limited to, User Content), although the Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. Without limiting the foregoing, the Company shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
3.3 Storage. The Company has no obligation to store any of Your Content that you Make Available on the Company Properties. Notwithstanding the foregoing, the parties agree that in a separate agreement to a timeline for storing your content. The Company has no responsibility or liability for the accuracy of any Content, including Your Content; or the failure to transmit or receive transmission of Content. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that the Company retains the right to create reasonable limits on the Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by the Company in its sole discretion.
3.4 Privacy & Data Processing Laws. For the purposes of privacy and data protection laws, for much of the personal information we process when providing the Service, we act as your processor or service provider in accordance with our Data Processing Addendum.
4.2 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of the Company.
4.3 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
4.4 License to Your Content. In order to enable the Company to send and deliver your messages and otherwise provide you the Services, you grant the Company a fully paid, royalty- free, revocable, limited , non-exclusive right (including any moral rights) and license to use, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) solely for the purposes of operating and providing the Company Properties to you and to your You agree that you, not the Company, are responsible for all of Your Content that you Make Available on or in the Company Properties. Should you revoke this right then Company may immediately discontinue Services.
4.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to the Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that the Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to the Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Company Properties. You also acknowledge and agree that, with your prior written consent in each instance, the Company may use your name and logo(s) to identify you as a customer of the Company Properties, and, with your prior written consent in each instance, use your Feedback in connection with your name and logo(s) on the Company Properties.
5. User Conduct
5.2 Unauthorized Applications. You understand that the Company Properties are not designed, intended, authorized or warranted to be suitable for use in the following “Unauthorized Applications”: life support applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; weapons systems; military or space equipment requiring radiation hardened components; and Enhanced 911 or the E911 emergency calling system. You warrant that you will not use the Company Properties for Unauthorized Applications.
5.3 Acceptable Use Policy. You agree that your use of the Services is subject to, and you agree to abide by, our Acceptable Use Policy, attached hereto.
6. Representations and Warranties
The Company represents and warrants that (i) it shall perform the Services in a professional and workmanlike manner, in accordance with best industry standards for similar services; (ii) the Company Properties and all of the Services provided by the Company will, at all times, be in material compliance with all applicable laws, including, but not limited to, the TCPA; (iii) to Company’s knowledge, none of the Company Properties or your use thereof infringe or will infringe any intellectual property right of any third party; and (iv) the Company Properties will not introduce any virus, trojan horse, or other similar defects in your environment or your customers’ environment.
7. App Stores
You acknowledge and agree that the availability of the App is dependent on the App Store from which you received the App license. You acknowledge that the Terms are between you and the Company and not with the App Store. The Company, not the App Store, is solely responsible for the Company Properties, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Company Properties, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third- party terms of agreement (e.g., the App Store’s terms and policies) when using the Company Properties, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
You agree to indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (i) your use of the Company Properties in violation of the Agreement (and all exhibits thereto, including these Terms), (ii) your negligence or misconduct, and (iii) your violation of any applicable laws, rules or regulations, only to the extent it does not arise from the Company’s negligence, misconduct, or violation of the Agreement (and all exhibits thereto, including these Terms) by the Company. The Company reserves the right, at its own cost, to assume the defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of the Agreement (and all exhibits thereto, including these Terms), your Account, and your access to the Company Properties.
The Company agrees to indemnify and hold You, your officers, employees, agents and partners harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) the Company’s negligence or misconduct; (ii) Company’s violation of any applicable laws; (iii) the Company’s breach of the Agreement (and all exhibits thereto, including these Terms), or (iv) the infringement by all or any portion of the Company’s Properties on a third party’s intellectual property rights.
9. Disclaimer of Warranties
9.2 No Liability for Conduct of Third Parties. You acknowledge and agree that the Company Parties are not liable, and you agree not to seek to hold the Company Parties liable for the conduct of Third Parties, including operators of telecommunications networks and mobile carriers, and that the risk of injury from such Third Parties rests entirely with notwithstanding the foregoing, you acknowledge that Company may use certain subcontractors from time to time, and to the extent such subcontractors provide some of the services provided under this agreement, Company agrees that it shall assume all liability for subcontractors and shall be responsible for the services that such subcontractors provide. Company shall ensure that services provided by subcontractors meet all of the standards, terms and conditions provided in this agreement.
9.3 No Liability for Conduct of Other Users. You are solely responsible for all of your communications and interactions with other users of the Company Properties. You understand that Company does not make any attempt to verify the statements of Users of the Company Properties.
10. Limitation of Liability
10.1 Disclaimer of Certain Damages. The Parties acknowledge and agree that in no event shall either Party be liable for any loss of profits, revenue or data, indirect, incidental, special, exemplary, or consequential damages arising out of or in connection with the Company Properties, or damages or costs due to loss of production or use, business interruption, procurement of substitute goods or services, or personal or property damage or emotional distress, whether or not Company has been advised of the possibility of such damages, arising out of or in connection with the Terms or from any communications, interactions or meetings with other users of the Company Properties, on any theory of liability resulting from (i) unauthorized access to or alteration of your transmissions or data or (ii) statements or conduct of any Third Party on the Company Properties;
10.2 Cap on Liability. Under no circumstances will either Party be liable to the other Party for more than two (2ONE1) times the amount received by the Company pursuant to the services provided under this agreement.
10.3 User Content. The Company Parties assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any content (including, but not limited to, your content and user content), user communications or personalization settings.
10.4 Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Company and certain jurisdictions do not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above exclusions or limitations may not apply to you and you might have additional rights.
11. Term and Termination
11.2 Termination of Services by Company. Any Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if the Company is required to do so by law (e.g., where the provision of the Website, the App, Software or the Services is, or becomes, unlawful), the Company has the right to, immediately and without notice, suspend or terminate any Services provided to you.
11.3 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may include deletion of your password keys and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. The Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. Notwithstanding the foregoing, You shall have 60 days following termination to obtain a copy of Your Content that has been stored by the Company or within the Company Properties. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12.1 Violations. If the Company becomes aware of any possible violations by you of the Terms, the Company reserves the right to investigate such violations. If, as a result of the investigation, the Company believes that criminal activity has occurred, the Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. The Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Company Properties, including Your Content, in the Company’s possession in connection with your use of the Company Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Terms, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of the Company, its Users or the public, and all enforcement or other government officials, as the Company in its reasonable discretion believes to be necessary or appropriate.
12.2 Breach by you. In the event that the Company determines that you have breached any portion of the Terms or the Agreement, or have otherwise demonstrated conduct inappropriate for the Company Properties, the Company reserves the right to: (i) Warn you via email (to ) that you have violated the Terms; (ii) If the breach is not remedied within thirty (30) days of our email warning, delete and/or discontinue delivery or transmission of any of your Content provided by you or your agent(s) to the Company Properties; (iii) Discontinue your registration(s) with the any of the Company Properties; (iv) Discontinue your subscription to any Services, terminate this Agreement, and retain all fees paid by You; (v) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (vi) Pursue any other action which the Company deems to be appropriate.
12.3 Breach by the Company. In the event that you determine that the Company is in breach of any portion of the Terms, you will have the right to: (i) Warn the Company via email (to [email protected]) that we have violated the Terms; (ii) If the breach is not remedied within thirty (30) days of your email warning, you will have the right to terminate this Agreement immediately and obtain reimbursement of the prorata portion of any prepaid unused services; and/or (iii) Pursue any other action which you deem to be appropriate.
12.4 No Subsequent Registration. If your registration(s) with or ability to access the Company Properties is discontinued by the Company due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Company Properties or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, the Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
12.5 International Users. The Company Properties can be accessed from countries around the world and may contain references to services and content that are not available in certain countries. These references do not imply that the Company intends to announce such services or content in other countries. The Company Properties are controlled and offered by the Company from its facilities in the United States of America. The Company makes no representation that the Company Properties are appropriate or available for use in other locations. Those who access or use the Company Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
13. General Provisions
13.1 Electronic Communications. The communications between you and the Company may use electronic means, whether you visit the Company Properties or send the Company emails, or whether the Company posts notices on the Company Properties or communicates with you via email. For contractual purposes you (i) consent to receive communications from the Company in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that you and the Company provide to the other electronically, satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. All electronic communications to you will be accompanied by a copy to .
13.2 Assignment. The parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument. Neither party may assign, subcontract, delegate or otherwise transfer the Terms, and all rights and obligations hereunder, without the other party’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however that each party shall have the right to assign this Agreement and its rights and obligations under it, in whole or in part, to any present or future Affiliate, or to any other entity which acquires all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale or otherwise, provided that, such party is bound by the terms of this Agreement.
13.3 Force Majeure. Neither party shall be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Company Properties, please contact us at: https://textel.net/contact. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
13.5 Limitations Period. YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE COMPANY PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN TWO (2) YEARS AFTER YOU BECOME AWARE OF THE CAUSE OF ACTION THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13.6 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement through discussions between the respective and Company executives responsible for this Agreement. If these discussions are unsuccessful, the parties agree that any legal action or proceeding with respect to this Agreement (including any tort claims) will be brought either in the state court of Delaware, or the Federal District Court of the United States of America for and by execution and delivery of this Agreement, each party hereby consents to the jurisdiction of the aforesaid courts solely for the purpose of adjudicating its rights with respect to this Agreement or by document related thereto. In the event suit is brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover as an element of its costs of suit, not as damages, reasonable attorney’s fees and costs to be fixed by the court.
13.7 Notice. You may give notice to the Company at the following address: Textel, 1120 South 6th St., Suite 120, Saint Louis, MO 63104 or via electronic mail to [email protected], with a copy to Stock Legal, LLC 4512 West Pine Blvd., St. Louis, MO 63108, Attn: Sara K. Stock or via electronic mail to [email protected] Such notice shall be deemed given when received by the Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address on the day that it was sent if using electronic mail. Any notices by Textel to may be given at the following address:
13.8 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.9 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.10 Accessing and Download the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(i) You acknowledge and agree that (a) the Terms are concluded between you and the Company only, and not Apple, and (b) the Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(ii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(iii) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between the Company and Apple, any other claims, losses, liabilities, damages costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company.
(iv) You and the Company acknowledge that, as between the Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (a) product liability claims; (b) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
(v) You and the Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between the Company and Apple, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(vi) You and the Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(vii) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
13.11 Consumer Complaints. In accordance with California Civil Code 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
13.12 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. No amendment of these Terms or the Agreement, to which they are attached, shall be effective unless reduced to writing signed by both parties.
13.13 Independent Contractor. In entering into and complying with this Agreement, Company is at all times performing as an independent contractor. Nothing in this Agreement shall constitute or be construed as the creation of an agency, employment, partnership or joint venture between Company and Customer.
14. Service Response Times and Service Levels
Company’s policy is to respond to all customer cases within 24 hours. Company shall support Customers 24 hours a day for 7 days a week (24X7) for all Priority 1 and 2 issues as defined in Section 5 below. For Priority 3 and below issues, Company will provide support during normal business hours with the exception of US Holidays. (M-F 8am-6pm CT)
(i) Telephone: 844-483-9835 (ii) E-mail: [email protected]
Company will use commercial best efforts to make the Company Properties (excluding upstream mobile carriers, networks or data providers) available at least 99.5% of the time as measured over the course of each calendar month during the term of this Agreement (each such month a “Service Period”).
“Available” means the Company Properties are available for access and use and operating in material accordance with the Agreement and any specifications which accompany the Company Properties.
For purposes of calculating the Availability Requirements, the following are “Exceptions” to the Availability Requirement and neither the Company Properties will be considered un-Available nor any Service Level Failure (defined below) shall be deemed to have occurred in connection with any failure to meet the Availability Requirement or impaired ability to access or use the Services that is due, in whole or in part, to any:
> Any act or omission by you that does not comply with this Agreement;
> Your lack of Internet connectivity;
> Occurrence and continuance of a Force Majeure event as described in the Agreement;
> Failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by us pursuant to this Agreement; or
> Scheduled Downtime (as defined below).
“Service Level Failure” means a material failure of the Company Properties to meet the Availability Requirement.
We shall use commercially reasonable efforts to (a) schedule downtime for routine maintenance of the Services between the hours of 12:01 a.m. and 6:00 a.m. Central Time; and give you at least 24 hours prior notice of all scheduled outages of Company Properties (“Scheduled Downtime”).
Acceptable Use Policy
Revised and Effective: May 15, 2016
Prohibited Uses and Activities
1. No Infringing, Illegal, Threatening, Defamatory, and Offensive Uses. You may not use the Services to violate any applicable laws, rules, or regulations issued or promulgated by any competent government authority, including, but not limited to, the federal Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), as amended, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. § 103 et. seq), the United States’ National Do Not Call Registry, Rules for Carriers Subpart L “Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising” (47 U.S.C. § 64.1200), and (if applicable) the Canada Anti-SPAM Legislation (S.C. 2010, c. 23). Without limiting the foregoing, Registered User shall not use the Services for, or in connection with, the following:
- Theft or infringement of copyrights, trademarks, trade secrets, or other types of intellectual property.
- Fraud; forgery; or theft or misappropriation of funds, credit cards, or personal information.
- Export, re-export, or transfer of restricted software, algorithms or other data in violation of applicable export control laws.
- Deceptive practices such as posing as another service for the purposes of Phishing or Pharming.
- Distributing any materials of a threatening or harmful nature, including without limitation threats of death or physical harm, or materials that are malicious, harassing, libelous, defamatory, or which facilitate extortion or harmful action.
- Distributing any offensive materials, including without limitation obscene, pornographic, indecent or hateful materials and materials which promote gambling or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Sending unwanted telemarketing, promotional or informational messages without having procured the necessary consents, right and license from the recipient(s) of your messages.
- Sending messages in violation of the National Do Not Call Registry or related considerations under applicable law
2. Security and Interference. You may not use the Services to violate, attempt to violate, or knowingly facilitate the violation of the security or integrity of any network, electronic service, or other system that is accessible through, or in connection with, the Services. You shall not use the Services in a manner that interferes with any other party’s ability to use and enjoy the Services, that interferes with the Company’s or its service partners’ ability to provide the Services, or that otherwise may create legal liability for the Company or its service partners in the Company’s sole discretion. You shall not use the Services to violate the acceptable use policy or terms of service of any other service provider, including, without limitation, any Internet service provider. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
- Hacking, cracking into, or otherwise using the non-public areas of the Services or any other system without authorization.
- Unauthorized probes or port scans for vulnerabilities.
- Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any system.
- Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled.
- Unauthorized network monitoring or packet capture.
- Forged or non-standard protocol headers, such as altering source addresses.
- Denial of Service (DoS) attacks of any kind.
- Distributing unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
- Operating network Services such as: open proxies; open mail relays; or open, recursive domain name servers.
- Sharing or publishing content from the Services to cause, or have the consequence of causing, the user of the content to be in violation of the terms and this AUP.
3. Spam. You shall not use the Services for purposes of distributing text messaging “spam,” bulk unsolicited messages, or any other form of unsolicited electronic communications distributed on a bulk basis to recipients with which you has no preexisting business or personal relationship. You shall not use the Services to collect responses from spam. You shall not harvest, collect, gather or assemble information or data of users, including e-mail addresses, without their consent. You are solely responsible for obtaining all necessary and appropriate rights, licenses and consents from those person(s) and entity(ies) with whom you message or otherwise communicate with via the Services, prior to commencing any such messaging or communication. Additionally, you shall not use the service to send unwanted messages to individuals who have asked to stop receiving messages through any medium. To the extent required by applicable law, you must track and record all such requests specific to your business. You must also provide recipients of those MMS/SMS messages you send via the Services with conspicuous notice of their ability to opt-out from receiving any future text messages, by texting STOP in a stand-alone message with no additional characters or punctuation. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
- Sending pyramid schemes.
- Sending chain letters.
- Sending any mail in contravention of the CAN-SPAM Act of 2003 or other applicable state or federal laws and regulations.
- Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.
Textel’s platform responds programmatically to the keyword STOP, and it works with a market-leading digital security firm to monitor for and prevent spam.
CHANGES TO THIS POLICY. This Policy is subject to occasional revision, and if the Company makes any substantial changes to this Policy, the Company will notify you and this Agreement will be amended to incorporate the changes. Any material changes to this Policy will be effective upon both parties agreeing in writing to the amended terms.
Revised and Effective: May 15, 2016
1. Questions; Contacting Company; Reporting Violations.
1120 S. 6th St
St. Louis, MO 63104
2. Types of Data We Collect.
(a) We collect personal information from users or prospective customers during their use of the website, use of our products, or communication with our employees. This includes: (1) basic data passed during text message transmission (including, but not limited to, message content, photos, files, and message count/volume), (2) information entered in website forms or when creating or using accounts, (3) mobile device information including mobile devise identification, service provider, and location, (4) payment information, and (5) information or feedback provided through e-mail, voice, letter, or online posting. We also collect data (including phone number, transmission, and message data) from general text messaging users who send messages to users of Company Services.
(b) We also collect information using technology. We gather (1) clicking, browsing, and use data/patterns (including, but not limited to, information gathered through “cookies” and “pixel tags” as well as information about your IP address, browser, internet service provider, pages, operating system, date/time stamps, and clickstream data), (2) information about your mobile device, use of our app, or app performance and (3) information (via “pixel tags”) about how emails we have sent have been accessed. Third party advertisers or data analytics providers also gather similar information and/or match this information to that from other sources.
3. Use of Your Information
(a) General Use. In general, personal information you submit to us is used to provide the Services, for our direct marketing purposes, to respond to requests that you make, or to aid us in serving you better. We will also use the information to contact you via e-mail or phone call for (1) phone number verification, (2) marketing/promotional purposes, (3) enrollment/activation activities, (5) response to your request/inquiry, (6) encouraging or enabling your use of the Services including, but not limited to, specific features, (7) billing inquiries, (8) to address possible inappropriate use, or at our Company’s discretion, (9) to provide users material updates related to the Services.
(b) User Feedback. If you provide us with feedback, we may post it on the Site or our blog from time to time. (We love to share positive customer experiences!) If we desire to post your full first and full last name along with the feedback, we will ensure that we obtain your consent prior to posting.
(c) Creation of Anonymous Data. We may create anonymous data records from personal information by excluding information that makes the data personally identifiable to you or your business. We reserve the right to use anonymous data for any purpose and disclose anonymous data to third parties in our sole discretion.
4. Disclosure of Your Personal Information.
(a) Third Parties Designated by You. When you use the Services, the personal information you provide will be shared with the third parties that you designate to receive it (for example, the person you are texting).
(b) Third Party Service Providers. We may share your personal information with third party service providers: (1) to provide you with the Services that we offer you through our Site, (2) to enable message transmission, (3) to conduct quality assurance testing or audits, (4) for our own marketing purposes, (5) to facilitate enrollment and creation of accounts, (6) to provide technical support, (7) to facilitate data storage, (8) for billing, (9) to manage sales accounts, and/or (10) to provide other services to our Company. These third party service providers are required to not use your personal information other than to provide the services requested by our Company.
(c) Public Profile. Profile information, such as your profile photo, name, and telephone number, may be shared between users of Textel Services when communicating via text-enabled landlines.
(d) Corporate Restructuring. We may share some or all of your personal information in connection with or during negotiation of any merger or change in ownership of all or a portion of our business or assets.
5. Your Choices Regarding Your Information.
You have several choices regarding use of information on our Services:
(a) Email Communications. You may indicate a preference to stop receiving further marketing e-mail from us and may “opt-out” by following the unsubscribe instructions provided in the e-mail you receive or by contacting us directly (please see contact information below). Despite your indicated e-mail preferences, we may send you service related communications.
(b) Changing Your Personal Information. You may change certain elements of personal information in your Account by logging into the Site. You may requested deletion of your personal information by us, and at our discretion, we may use commercially reasonable efforts to honor your request; but, please note that we may be required to keep such information and not delete it (or to keep this information for a certain time, in which case we will comply with your deletion request only after we have fulfilled such requirements). When we delete any information, it will be deleted from the active database, but may remain in our archives. We may also retain your information for fraud prevention or similar purposes.
6. Security of Your Personal Information.
Your security matters to us. We use a variety of security technologies and procedures designed to help protect your personal information from unauthorized access, use, or disclosure.
Data Processing Addendum
This Data Processing Addendum (“DPA”) incorporates, forms part of, and is subject to the terms and conditions of the Textel Terms of Service (the “Agreement”) between Textel CX Inc., a Corporation organized under the laws of the State of Delaware, in the United States of America (“Textel”), and the customer entity that is a party to the Agreement (“Client”). This DPA prevails over any conflicting term of the Agreement, but does not otherwise modify the Agreement.
1.2. “Controller,” “Data Subject,” “Personal Data,” “Personal Data Breach,” “Processing,” “Processor,” and “Supervisory Authority” have the meaning given to them in Data Protection Law;
1.3. “Data Protection Law” means: a) for individuals residing in the European Economic Area and Switzerland: Regulation (EU) 2016/679, Directive 2002/58/EC (as amended by Directive 2009/136/EC); and b) for individuals residing in the United Kingdom: the United Kingdom General Data Protection Regulation. Data Protection Law further includes all other data protection laws of the relevant jurisdictions in which individuals reside, and any legal instrument for International Data Transfers, each as applicable, and as may be amended or replaced from time to time;
1.4. “Data Subject Rights” means all rights granted to Data Subjects by Data Protection Law, including the right to information, access, rectification, erasure, restriction, portability, objection, and not to be subject to automated individual decision-making;
1.5. “International Data Transfer” means any transfer of Personal Data from the EEA, Switzerland or the United Kingdom to an international organization or to a country outside of the EEA, Switzerland and the United Kingdom, and includes any onward transfer of Personal Data from the international organization or the country outside of the EEA, Switzerland or the United Kingdom to another international organization or to another country outside of the EEA, Switzerland or the United Kingdom;
1.6. “Personnel” means any natural person acting under the authority of Textel;
1.7. “Sensitive Data” means any type of Personal Data that is designated as a sensitive or special category of Personal Data, or otherwise subject to additional restrictions under Data Protection Law or other laws to which the Controller is subject;
1.8. “Subprocessor” means a Processor engaged by a Processor to carry out Processing on behalf of a Controller; and
1.9. “Standard Contractual Clauses” means: a) for individuals residing in the European Economic Area or Switzerland: the Standard Contractual Clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and the Council approved by European Commission Implementing Decision (EU) 2021/914 of 4 June 2021, and currently located here; and b) for individuals residing in the United Kingdom: the United Kingdom Standard Contractual Clauses which govern the transfer of Personal Data to third countries.
Client is a Controller and appoints Textel as a Processor on behalf of Client.
3.1. This DPA applies to the Processing of Personal Data by Textel in the context of the Agreement.
3.2. The subject matter, nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects are set out in Appendix 1, which is an integral part of this DPA, the Agreement, and any applicable statement of work.
4.1. Client shall only disclose Personal Data to Textel solely for a valid business purpose as set forth in the Agreement, and solely in connection with the Services.
4.2. Textel must only Process Personal Data on documented instructions of Client and is prohibited from Processing Personal Data for any other purpose. Client shall be solely responsible for, and represents and warrants that, any documented instructions it provides hereunder shall comply with Data Protection Law. Moreover, Client shall have sole responsibility for the accuracy, quality, and legality of Client Personal Data and the means by which Client acquired Client Personal Data.
4.3. Client has taken and further undertakes that throughout the Term it shall take, all necessary steps (having regard to the nature of the circumstances in which Client Personal Data will be collected) to provide affected data subjects with an accurate, comprehensible, concise, conspicuous and easily accessible description of all processing of Client Personal Data carried out under and in connection with the DPA, which are sufficient to meet the standards and requirements of Article 13/14 of the GDPR.
4.4. Client’s instructions are documented in Appendix 1, the Agreement, and any applicable statement of work.
4.5. Client may issue additional instructions to Textel as it deems necessary to comply with Data Protection Law. Client shall be responsible for any additional fees, or costs arising from any such additional instructions, which fees or costs shall be mutually agreed upon by the Parties.
5.1. Client authorizes Textel to engage Subprocessors set forth on Appendix 3.
5.2. Textel must inform Client at least thirty (30) days prior to any intended change of Subprocessor.
5.3. Textel must obtain sufficient guarantees from all Subprocessors that they will implement appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of Data Protection Law and this DPA.
5.4. Textel must enter into a written agreement with all Subprocessors which imposes the same obligations on the Subprocessors as this DPA imposes on Textel.
5.5. If any Subprocessor fails to fulfill its obligations under Data Protection Law, this DPA, or the agreements between Textel and Subprocessor, Textel will be fully liable to Client for the performance of such obligations.
6. International Data Transfers
6.1. Client authorizes Textel to perform International Data Transfers to the countries specified in Appendix 3.
6.2. Client authorizes Textel to perform other International Data Transfers if it complies with Section 6.3 and provided that the International Data Transfers are performed: (i) to any country that is subject to a valid adequacy decision of the EU Commission; (ii) to an organization that relies on binding corporate rules authorized by Supervisory Authorities; (iii) under Standard Contractual Clauses concluded between Textel and Client; or (v) other adequate safeguards as provided under Data Protection Law.
6.3. Textel must inform Company at least thirty (30) days prior to any intended change of International Data Transfers, including the country, and the legal basis of the International Data Transfer pursuant to Section 6.2.
6.4. By signing this DPA, Client and Textel conclude the Standard Contractual Clauses are hereby incorporated into this DPA and as listed in Appendix 5.
6.5. Any authorization of International Data Transfers is expressly conditioned upon Textel’s ongoing compliance with the requirements of Data Protection Law applicable to International Data Transfers, and any applicable legal instrument for International Data Transfers. If such compliance is affected by circumstances outside of Textel’s control, including circumstances affecting the validity of an applicable legal instrument, Client and Textel will work together in good faith to reasonably resolve such non-compliance.
6.6. Alternative transfer mechanism. To extent that and for so long as the Standard Contractual Clauses as implemented in accordance with Section 6 cannot be relied on to lawfully transfer personal data in compliance with Data Protection Laws. Additionally, to the extent Textel adopts an alternative lawful data transfer mechanism for the transfer of Personal Data not described in this DPA (“Alternative Transfer Mechanism”), the Alternative Transfer Mechanism shall apply instead of the transfer mechanisms described in this DPA (but only to the extent such Alternative Transfer Mechanism complies with applicable Data Protection Laws and extends to the countries to which Personal Data is transferred). In addition, if and to the extent that a court of competent jurisdiction or supervisory authority orders (for whatever reason) that the measures described in this DPA cannot be relied on to lawfully transfer European Data (within the meaning of applicable Data Protection Laws), Textel may implement any additional measures or safeguards that may be reasonably required to enable the lawful transfer of Personal Data.
7.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Textel must implement appropriate technical and organizational measures to ensure that Personnel do not Process Personal Data except on the instructions of the Controller.
7.2. Textel must ensure that all Personnel authorized to Process Personal Data are subject to a contractual or statutory obligation of confidentiality.
7.3. Textel must regularly train Personnel regarding the protection of Personal Data.
8. Security and Personal Data Breaches
8.1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Textel must implement technical and organizational measures to ensure a level of security appropriate to the risks presented by the Processing, including:
the pseudonymisation and encryption of personal data;
the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing; and,
as appropriate and without limiting the foregoing, the measures listed in Appendix 2.
8.2. Textel must inform Client without undue delay and no later than forty-eight (48) hours after becoming aware of a Personal Data Breach. Textel must, either in the initial notice or in subsequent notices as soon as the information becomes available, inform Client of the nature of the Personal Data Breach, the categories and number of Data Subjects, the categories and amount of Personal Data, the likely consequences of the Personal Data Breach, and the measures taken or proposed to be taken to address the Personal Data Breach and mitigate possible adverse effects. If Textel’s notice or subsequent notices are delayed, they must be accompanied by reasons for the delay.
9.1. Taking into account the nature of the Processing, Textel may reasonably assist Client, by implementing appropriate technical and organizational measures, for fulfillment of Client’s own obligations under Data Protection Law, including:
Complying with Data Subjects’ requests to exercise Data Subject Rights;
Replying to inquiries or complaints from Data Subjects;
Replying to investigations and inquiries from Supervisory Authorities;
Conducting data protection impact assessments, and prior consultations with Supervisory Authorities; and
Notifying Personal Data Breaches.
9.2. Unless prohibited by applicable law, Textel must inform Client without undue delay if Textel:
Receives a request, complaint or other inquiry regarding the Processing of Personal Data from a Data Subject or Supervisory Authority;
Receives a binding or non-binding request to disclose Personal Data from law enforcement, courts or any government body;
Is subject to a legal obligation that requires Textel to Process Personal Data in contravention of Client’s instructions;
Is otherwise unable to comply with Data Protection Law or this DPA.
9.3. Unless prohibited by applicable law, Textel must obtain Client’s written authorization before responding to, or complying with any requests, orders, or legal obligations referred to in Section 9.2.
10.1. Textel must maintain records of Processing of Personal Data, including at a minimum the categories of information required under Data Protection Law.
10.2. Textel shall not be responsible for assessing any instruction or verifying the lawfulness of any instructions from Client for the Processing of Personal Data. Textel may inform Client if Textel believes that an instruction of Client violates Data Protection Law. Textel may suspend Processing in its discretion, until Client has modified or confirmed the lawfulness of the instructions in writing.
11.1. Textel is fully liable to Client for any infringements of Data Protection Law or this DPA by Textel or Textel’s Subprocessors.
11.2. Client represents and warrants that on the effective date of this DPA and during the term of this DPA:
Personal Data has been and will be collected and Processed by Client in accordance with the Data Protection Laws;
The Processing of Personal Data in accordance with this DPA by Textel will not violate the Data Protection Laws;
Client shall provide Data Subjects with appropriate opt-outs where applicable under the Data Protection Laws, and shall inform Textel of any exercise of such rights by a Data Subject; and
Client will take all steps necessary to ensure it achieves the foregoing, including without limitation, by providing Data Subjects with appropriate privacy notices, obtaining any required consent, and ensuring that there is a lawful basis for Textel to Process Personal Data.
Textel must keep all Personal Data and all information relating to the Processing thereof, in strict confidence.
13. Term and duration of the Processing
13.1. The Processing will last no longer than the term of the Agreement.
13.2. Upon termination of the Processing, Textel must, at Client’s choice, delete or return all Personal Data and must delete all remaining copies within ninety (90) days after confirmation of Client’s choice. The foregoing shall be subject to any prohibitions under applicable law.
13.3. This DPA is terminated upon Textel’s deletion of all remaining copies of Personal Data in accordance with Section 13.2.
14. Modification of this DPA
This DPA may only be modified by a written amendment signed by both Client and Textel.
15. Invalidity and severability
If any provision of this DPA is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability of such provision does not affect any other provision of this DPA and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.
Description of the Processing
1. Data Subjects
The Personal Data Processed concern the following categories of Data Subjects (please specify):
2. Categories of Personal Data
The Personal Data Processed concern the following categories of data (please specify):
3. Sensitive Data
The Personal Data Processed concern the following special categories of data (please specify): None
4. Processing operations
The Personal Data will be subject to the following basic Processing activities (please specify):
Description of the technical and organizational security measures implemented by the data importer in accordance with Section II, Clause 1.6(a) (or document/legislation attached):
Textel has in place, and shall maintain technical and organizational security measures including:
i. Asset Management. Textel creates and maintains an inventory of all computer systems utilized by Textel to Process Personal Data.
ii. Human Resources Security. Textel informs all personnel of Textel’s security obligations under the DPA and conducts identity verification background checks of such personnel prior to such personnel performing any aspect of the Services.
iii. Physical and Environmental Security. Textel maintains IT infrastructure that Process Personal Data in a secured area that is protected by a defined security perimeter, with appropriate security barriers and entry controls. Textel environmentally regulates any such defined security perimeter so that the appropriate climate and temperature is maintained to avoid disruptions in the Services.
iv. Encryption. Textel stores all Personal Data in encrypted form using a commercially supported encryption solution.
v. Communications and Operations Management. Textel deploys anti-virus software on all systems commonly affected by computer viruses and/or malicious code. Textel implements and maintains firewalls at the network perimeter between Textel’s internal (private) and public (Internet) networks.
vi. Access Control. Textel implements access controls on any computer system associated with the Service. This includes: (1) user authentication that uses unique identifiers (“User ID”) for each individual; (2) complex password policy that is enforced for each User ID requiring, at minimum, passwords of at least seven characters in length; (3) user access rights/privileges to information resources containing Personal Data that must be granted on a need-to-know basis consistent with role-based authorization; (4) user access to Personal Data is immediately removed upon user separation or role transfer eliminating valid business need for continued access; and (5) default passwords and security parameters are changed in third-party products/applications used to Process Personal Data.
vii. Business Continuity Management. Textel maintains a business continuity plan that will enable Textel, within a reasonable period of time after the occurrence of a disaster, to restore and provide the affected Service to a condition where such Service conforms to the requirements set forth in the Agreement (“Business Continuity Plan”).
Subprocessors and International Data Transfers
Client authorizes Textel to engage the following Subprocessors:
Client authorizes Textel to transfer Personal Data in the following countries:
Jurisdiction Specific Terms
1.1. Objection to Subprocessors. Client may object in writing to Textel’s appointment of a new Subprocessor within five (5) calendar days of receiving notice in accordance with Section 5 of the DPA, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties shall discuss such concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, Textel will, at its sole discretion, either not appoint such Sub-processor, or permit Client to suspend or terminate the affected Service in accordance with the termination provisions in the Agreement without liability to either party (but without prejudice to any fees incurred by Client prior to suspension or termination).
1.2. Government data access requests. As a matter of general practice, Textel does not voluntarily provide government agencies or authorities (including law enforcement) with access to or information about Textel accounts (including Personal Data). If Textel receives a compulsory request (whether through a subpoena, court order, search warrant, or other valid legal process) from any government agency or authority (including law enforcement) for access to or information about a Textel account (including Personal Data) belonging to Client whose primary contact information indicates the data subject is located in Europe, Textel shall: (i) review the legality of the request; (ii) inform the government agency that Textel is a processor of the data; (iii) attempt to redirect the agency to request the data directly from Client; (iv) notify Client via email sent to Client’s primary contact email address of the request to allow Client to seek a protective order or other appropriate remedy; and (v) provide the minimum amount of information permissible when responding to the agency or authority based on a reasonable interpretation of the request. As part of this effort, Textel may provide Client’s primary and billing contact information to the agency. Textel shall not be required to comply with this paragraph 2 if it is legally prohibited from doing so, or it has a reasonable and good-faith belief that urgent access is necessary to prevent an imminent risk of serious harm to any individual, public safety, or Textel’s property, or the Service, but where Textel is legally prohibited from notifying Client of requests it shall use its best efforts to obtain a waiver of the prohibition.
2.1. The following additional terms apply related to the Processing of Personal Data of California residents:
a) Each of the parties will comply with the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA).
b) To the extent Textel receives from Client any personal information (as defined in the CCPA/CPRA) of any “consumer” (as defined in the CCPA/CPRA) for processing (as defined in the CCPA/CPRA) on behalf of the Client pursuant to the Agreement, Textel shall:
2.1.b.1.1. be a “service provider” to the Client under the CCPA/ CPRA
2.1.b.1.2. not retain, use, or disclose the personal information for any purpose other than for the specific purpose of the Services or as otherwise permitted by the CCPA/CPRA, including for any “business purpose” (as defined in the CCPA);
2.1.b.1.3. not retain, use, or disclose the personal information for a “commercial purpose” (as defined in the CCPA/CPRA) other than providing the Services;
2.1.b.1.4. not “sell” the personal information (as “sell” is defined in the CCPA/CPRA); and
2.1.b.1.5. promptly (and, in any case within seven days of receipt) comply with the Client’s written instructions with responding to an individual’s request to exercise their privacy rights with respect to their personal information.
2.2. If Textel authorizes any subcontractor, service provider or third party to Process personal information of the Client, Textel shall into contractual provisions so that such subcontractor, service provider or third party is a “service provider” as defined in the CCPA/CPRA and not a “third party” as defined in the CCPA/CPRA.
3.1. The following additional terms apply related to the Processing of Personal Data of Canadian residents:
a) Textel takes steps to ensure that Textel’s Subprocessors, as described in Section 5 (Subprocessing) of the DPA, are third parties under PIPEDA, with whom Textel has entered into a written contract that includes terms substantially similar to this DPA. Textel conducts appropriate due diligence on its Subprocessors.
b) Textel will implement technical and organizational measures as set forth in Section 8 of the DPA.
Standard Contractual Clauses (European Union)
Having regard to the European Commission’s implementing decision (EU) 2021/914 of 4 June 2021 on Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council.
The data exporting organization (the “data exporter“)
(the “data importer“)
each a “party”; together “the parties”,
HAVE AGREED on the Contractual Clauses for the transfer of personal data to third countries from a data controller in the European Economic Area to a data processor in the United States pursuant to the European Commission implementing decision of 4 June 2021 on Standard Contractual Clauses for the transfer of Personal Data to Processors established in third countries under Regulation (EU) 2016/679 of the European Parliament and of the Council (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
The Clauses are attached hereto by reference with the options and optional modules selected as follows:
· All Sections: Module TWO.
· Section II, Clause 9(a): OPTION 2, general written authorization for sub-processing.
· Section III, Clause 11(a): OPTION NOT INCLUDED.
· Section IV, Clause 17: OPTION 1, the location of the data exporter.
· Section IV, Clause 18: the jurisdiction associated with the data exporter.
Annex I, II, and III are attached to Clauses hereto.
Annex I to Appendix 5
A. LIST OF PARTIES
Data Exporter(s): Client, the Data Controller
Data Importer(s): Textel, the Data Processor
B. DESCRIPTION OF THE TRANSFER
The parties agree that the details of Textel’s processing activities are set forth in Appendix 1 to the Addendum.
Annex II to Appendix 5
TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA.
The parties agree that the technical and organization measures are set forth in Appendix 2 to the Addendum.
Annex III to Appendix 5
LIST OF SUBPROCESSORS
The Parties agree that the list of approved sub-processors is set forth in Appendix 3 to the Addendum.
Transfer Impact Assessment
This Transfer Impact Assessment (“TIA”) provides information to help Client conduct data transfer impact assessments in connection with use of our Services, factoring in the “Schrems II” ruling of the Court of Justice for the European Union and the recommendations from the European Data Protection Board.
This document describes the legal landscape that applies to Textel in the US, the safeguards Textel puts in place regarding transfers of personal data from the European Economic Area, United Kingdom, or Switzerland, and Textel’s efforts to comply with its obligations as a data importer under the Standard Contractual Clauses (“SCCs”).
1. Step 1: Know your transfer
Where Textel processes Personal Data governed by European data protection laws as a data processor, Textel complied with its obligations under this DPA. This Textel DPA incorporates the SCCs and describes Textel’s processing of personal data and Textel’s security measures.
Please see Appendix 1, 2, and 3 of this DPA for information on the nature of Textel’s processing activities in connection with the provision of the Service, the types of Personal Data processed, and the categories of data subjects.
In connection with providing our Service, Textel only stores Personal Data associated with client accounts in the U.S.
2. Step 2: Identify the transfer took relied upon
Where Personal Data originating from Europe is transferred to Textel, Textel relies upon the European Commission’s SCCs to provide an appropriate safeguard for the transfer, as described in detail in this DPA. Where Personal Data originating from the UK is transferred to Textel, Textel relies upon the UK Addendum to provide an appropriate safeguard for the transfer, as described in detail in this DPA.
3. Step 3: Assess whether the transfer tool relied upon is effective in light of the circumstances of the transfer U.S. Surveillance Laws
There are a number of surveillance laws in effect in the US. The ECJ of the European Union has identified certain laws as being potential obstacles to the protection of personal data in the US, including FISA Section 702, Executive Order 12333, and the CLOUD Act. New laws may be enacted.
Textel could technically be subject to FISA 702 where it is deemed to be a service provider, but we do not typically process Personal Data that would be of interest to US intelligence agencies. Also, 702 requires an independent court to authorize a specific type of foreign intelligence data acquisition which is generally unrelated to the types of data we collect. EO 12333 does not authorize the government to compel private companies such as Textel to disclose personal data to US authorities.
We have not been subject to requests under these laws in our day-to-day business operations.
4. Step 4: Identify the technical, contractual and organizational measures applied to protect the transferred data
For information on the technical and organizational measures and practices and procedures Textel takes to secure Personal Data, see our Appendix 2 to this DPA.
5. Step 5: Procedural steps necessary to implement effective supplementary measures
Given all of the above information provided in this document, and our considerable experience in protecting Personal Data combined with our legal and contractual obligations, we believe that any perceived risks in transferring and processing the Personal Data of European and UK residents are low. As such, no additional supplementary measures are necessary at this time.
6. Step 6: Re-revaluate at appropriate intervals
Textel is committed to reviewing the risks of applicable transfers over time in response to changes in laws and other factors.
Legal Notice: Please make your own independent assessment. The information in this document is for informational purposes only, reflects the current Textel Service – which is subject to change without notice, and does not create any commitments or assurances, warranties, or guarantees as to any such matters. This document is not part of, nor does it modify, any agreement between Textel and any customer.