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 Services. 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.

  1. Registration

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.

  1. 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.

  1. Ownership

4.1 Company Properties. You agree that the Company and its suppliers own all rights, title and interest in the Company Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Company Properties. Company’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Company Properties are the trademarks of the Company and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Company Properties are the property of their respective owners.

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.

  1. User Conduct

5.1 General. In connection with your use of the Company Properties, you shall not: (i) Make Available any Content that (a) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (d) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (e) promotes illegal or harmful activities; (ii) Harm minors in any way; (iii) Impersonate any person or entity, including, but not limited to, the Company personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity; (iv) Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (v) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; (vi) Intentionally or unintentionally violate any applicable local, state, provincial, national or international law, treaty, or regulation, or any order of a court; (viii) Send Protected Health Information unless allowed under applicable law; (ix) Register for more Accounts or associated Admin Logins or User Logins than for which fees have been paid or register for an Account on behalf of an individual other than yourself; (x) Stalk or otherwise harass any other User of our Company Properties; (xi) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section; (xii) Use the Company Properties in violation of consumer protection laws/regulations as applicable to your country/region, including, without limitation, the United States’ Telephone Consumer Protection Act (TCPA) 47 USC 227 (as amended) and Canada’s Anti-SPAM Legislation (S.C. 2010, c. 23) (as amended).

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.

  1. 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.

  1. 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.

  1. Indemnification

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.

  1. Disclaimer of Warranties

9.1 As Is. EXCEPT AS OTHERWISE STATED IN THESE TERMS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND THE COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. (i) THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. (ii) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. CONNECTIVITY, FEATURES, OR DELIVERY CAPABILITY MAY VARY, MAY BE LIMITED, AND MAY CHANGE OVER TIME. (iii) YOUR CONTENT MAY BE TRANSMITTED VIA UNENCRYPTED METHODS OVER VARIOUS THIRD PARTY NETWORKS.

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.

  1. 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.

  1. Term and Termination

11.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Company Properties, unless terminated earlier in accordance with the Terms.

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.

  1. Remedies

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.

  1. 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.

  1. 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]

Service Level

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.

Scheduled Downtime

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

Version 3.0

This Acceptable Use Policy (the “Policy”) applies to Users of these Company Properties, and is incorporated by reference into the Textel Terms of Use at https://textel.net/nicterms/(“Terms”). In the event of any conflict between this Policy and the Terms, the terms of this Policy shall supersede to the extent of any actual conflict.  Capitalized terms used herein, but undefined will have the meaning given to such term in the Terms. This Acceptable Use Policy is not to be construed as legal advice or superseding applicable law or regulation. Textel encourages customers to seek legal counsel for all associated compliance considerations.

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.
  1. 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.
  1. 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.

Privacy Policy

Revised and Effective: May 15, 2016

Version 3.0

Textel LLC (“Company“) appreciates your trust and is committed to protecting your privacy.  We have prepared this Privacy Policy to describe to you what data we collect, why we do so, and what we do with it. It applies to the personal information we collect from users of our website located at https://textel.net  (the “Site“), our Application Program Interfaces (collectively the “API“), our downloadable software applications (to include mobile applications) (each, an “Application“), and online services available therein (the “Services“).

  1. Questions; Contacting Company; Reporting Violations.  If you have any questions or concerns or complaints about our Privacy Policy or our data collection or processing practices, or if you want to report any security violations to us, please contact us at the following address or phone number:

Textel LLC.

1120 S. 6th St

Suite 120

St. Louis, MO 63104

1-844-4TEXTEL (483-9835)

  1. 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.

  1. 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.

  1. Disclosure of Your Personal Information.  We disclose your personal information as described below and as described elsewhere in this Privacy Policy.

(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.

(e) Marketing.  Personal information will not be used for third party marketing purposes with the following exceptions:  (1) Third party analytics companies or advertisers on our website may collect and use information via their own technical tools such as cookies. This policy does not apply to, and we are not responsible for, cookies used by analytics companies or in third party ads. We encourage you to check the privacy policies of advertisers and/or ad services to learn about their use of cookies and other technologies. If you would like more information about this practice and to know your choices about not having this information used by these companies, click here: http://www.networkadvertising.org. And, (2) third parties may track and record user clicking/browsing data as related to retargeting display adds.

(f) Other Disclosures.  Regardless of any choices you make regarding your personal information (as described below), our Company may disclose your personal information if it believes in good faith that such disclosure is necessary (i) in connection with any legal investigation; (ii) to comply with relevant laws or to respond to subpoenas or warrants served on Company; (iii) to protect or defend the rights or property of Company or users of the Application or Services; and/or (iv) to investigate or assist in preventing any violation or potential violation of the law, this Privacy Policy, or our Terms of Use.

  1. 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.

  1. 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.
  2. Changes to This Privacy Policy.  This Privacy 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. If you do not agree to the proposed changes to this Policy.

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