ACCEPTANCE OF TERMS
BY ACCESSING AND USING THIS WEBSITE; COMPLETING ANY REGISTRATION PROCESS ASSOCIATED WITH EXPRESS TEXT; VALIDATING AND/OR REGISTERING YOUR MOBILE PHONE FOR ANY SERVICES OFFERED THROUGH THE SITE; RECEIVING A PASSWORD FOR SERVICE; OR OPTING IN TO ANY EXPRESS TEXT SERVICES AND/OR CLIENT SERVICES; YOU ARE STATING THAT YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS
By utilizing the Services or making use of the Site in any manner (including to send out text messages), you are expressly representing that you are and will remain in full and absolute compliance with the Telephone Consumer Protection Act (“TCPA”) and all related regulations. Among other items, the TCPA requires that you obtain a Subscriber’s prior express written consent before calling or sending such Subscriber a text message. You are hereby representing that you are familiar with and are (and will remain) in full compliance with the applicable provisions of the TCPA, regulations and the Federal Communications Commission’s rules interpreting the TCPA and related regulations and legal cases interpreting the TCPA and its regulations. Without limiting the foregoing, you agree that in your acquisition of phone numbers you have and will remain in full compliance with the TCPA and applicable regulations. You also represent that you will remain informed of any amendments or changes to the TCPA and its regulations and will remain fully compliant with any such future amendments. Without limiting the foregoing, you expressly represent and agree that:
all phone numbers that you upload on to our system or to which you send messages using the Express Text Services have been obtained with the prior express written consent of the owners and users of such phone numbers, and that you have personal knowledge that such phone numbers were in fact obtained in full compliance with the TCPA and all its regulations;
every recipient to whom you send text messages through the Express Text Services has provided you with their prior express written consent to receive the text messages you intend to send to them. You further understand that obtaining consent from recipients to receive a particular message does not necessary provide you with consent to send the recipient other messages, and you agree to consult with legal professionals to assist you in determining the scope of consent that a recipient has provided to you;
you comply with all opt out requirements and requests;
you will not send any promotional advertising to any subscribers whose contact information was obtained by means other than in full compliance with the TCPA, as then in effect. Without limiting any other provision in this Agreement, you understand and agree that you will fully indemnify us in the event that we are compelled to defend ourselves due to your violations of the TCPA or any applicable law or regulation; and
every phone number to which you send text messages using the Services are United States phone numbers, and that none target residents outside of the United States.
You understand that the Express Text Services provided through the Site comprise of a text messaging software platform. You understand and agree that Express Text provides no advertising strategy services or marketing services. We do not review, approve or assist you with the creation or drafting of your text messages. You, as the platform user, will fully control: (i) the drafting and creation of text messages, (ii) their content, (iii) the recipients to whom such text messages will be sent; and (iv) the timing of when the text messages will be sent. We serve merely as a conduit and carrier of your text messages. Consequently, we will not assist you with the creation of text message, nor will we review or approve your messages. It is entirely your obligation and duty to ensure that your practices and activities are in full compliance with applicable laws or regulations, and including the TCPA. In sum, you understand and agree that you are entirely responsible for any applicable laws and regulations (including the TCPA) relating to advertising, calling and sending text messages.
YOU ARE THE “MAKER”, “SENDER” AND “INITIATOR” OF TEXT MESSAGE TRANSMISSIONS UNDER THE TCPA
The TCPA restrictions and requirements apply to the “maker”, “sender” and “initiator” of text message transmissions. Because Express Text serves merely as a passive software platform, you understand and agree that by utilizing the Express Text Services, you – as the party using the system to send out text messages – will be considered the party “making” the call to the recipient. In the context of text message transmissions, by using the Express Text Services, you are the party “sending” the text messages and “initiating” the transmissions. It is you – not Express Text – that (i) creates the text messages, (ii) uploads the recipient phone numbers, and decides whether and when to send the text messages.
You must be at least 18 years old to be eligible to use the Services (21 years of age for designated venues where the age of majority is 21). You must also be a resident of the United States and utilize the Services only in the United States. No text messages may be directed at residents outside of the United States. By obtaining an account with Express Text or by utilizing the Express Text Services of or sending any text messages through the Express Text Services, you are representing that you are at least 18, a resident of the United States and that you will not use our Services to target recipients who reside outside of the United States. You further certify that you will not send unsolicited text messages/SPAM to any person(s) through any Express Text Services.
You represent to Express Text that each of your Subscribers (i.e., the owner/user of every phone number to which you send text messages through the Express Text Services) has affirmatively opted-in to receive your text messages. Subscribers can opt-in by taking prescribed action, such as sending a text message to a particular number as directed by an advertisement. Before adding a Subscriber to your database of subscribers, we reserve the right to validate that the prospective Subscriber is the owner of the phone for which the Subscriber is requesting your text message(s).
INTELLECTUAL PROPERTY; LIMITED LICENSE
In addition to the Materials and Services offered by Express Text, this Site may also make available materials, information, and services provided by third parties (collectively, the "Third Party Services"). The Third Party Services may be governed by separate license agreements that accompany such services. Express Text offers no guarantees and assumes no responsibility or liability of any type with respect to the Third Party Services or products. You agree that you will not hold Express Text responsible or liable with respect to the Third Party Services or seek to do so.
Except as expressly indicated to the contrary elsewhere on this Site, you may view, download, and print the Express Text Content available on this Site subject to the following conditions:
The Express Text Content may not be modified or altered in any way.
You may not remove any copyright or other proprietary notices contained in the Express Text Content.
Express Text reserves the right to revoke the authorization to use the Services and to view, download, and print the Express Text Content available on this Site at any time, and any such use shall be discontinued immediately upon notice from Express Text.
The rights granted to you constitute a license and not a transfer of title.
The rights specified above to view, download, and print the Express Text Content available on this Site are not applicable to the design or layout of this Site. Elements of this Site are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
The trademarks, logos, and service marks, including the "Express Text" trademark ("Marks") displayed on this Site are the property of Express Text or other third parties. You are not permitted to use the Marks without the prior written consent of Express Text or such third party that may own the Marks.
LICENSE TO EXPRESS TEXT FOR USER CONTENT
By submitting any User Content (such as text messages that you draft to be transmitted to your database of recipients) to or through the Site you grant Express Text the following type of license: For User Content that is intended to be saved on the Site or transmitted through the Services, you grant Express Text a worldwide, royalty-free, non-exclusive license to modify (but only for purposes of formatting, maintenance, or Site administration) and reproduce such User Content in the manner directed by you.
DIGITAL MILLENNIUM COPYRIGHT ACT
If you are a copyright owner or an agent thereof and believe that any User Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You may send the notification to Support@ExpressText.net.
PROHIBITED COMMUNICATIONS AND TEXT MESSAGES
You may submit only User Content to the Site, and text message content sent through the Services, that is (a) owned by you, (b) submitted with the express permission of the owner or within the scope of the license to such content, or (c) in the public domain. You are prohibited from transmitting text messages through the Express Text platform that contain any unlawful, threatening, harassing, libelous, offensive, defamatory, obscene, or pornographic materials, or other materials that would violate any law or the rights of others, including, without limitation, laws against copyright infringement, and rights of privacy and publicity. Violation of these restrictions may result in denial of or limitations on access by you to this Site. You agree that you will not use Express Text Services to spam text message recipients. Express Text may monitor your conduct, including, without limitation, reviewing incoming messages to determine whether you are violating the terms and conditions of this Agreement.
WITHOUT LIMITING THE FOREGOING, YOU AGREE TO NOT TRANSMIT ANY TEXT MESSAGES THROUGH THE EXPRESS TEXT SERVICES WHICH CONTAIN OR PROMOTE, IN OUR SOLE DETERMINATION, SEXUALLY EXPLICIT MATERIALS, HATE OR FIREARMS. ALL SUCH CONTENT IS STRICTLY PROHIBITED. WITH RESPECT TO ANY TEXT MESSAGES THAT EITHER CONTAIN, PROMOTE OR DIRECT THE RECIPIENT TO CONTENT RELATING TO NON-EXPLICIT SEXUAL CONTENT, ALCOHOL OR TOBACCO, YOU AGREE THAT ALL SUCH TEXT MESSAGES SHALL BE “AGE-GATED” AND SHALL BE DIRECTED ONLY TO THOSE RECIPIENTS WHO HAVE EXPRESSLY OPTED INTO RECEIVING SUCH MESSAGES AND ONLY TO THE EXTENT THAT SUCH RECIPIENTS ARE 21 YEARS OF AGE.
YOU AGREE THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IF WE BELIEVE THAT YOUR TEXT MESSAGE CONTENT MAY ADVERSELY AFFECT THE EXPRESS TEXT PLATFORM OR ITS STANDING WITH TEXT MESSAGE CARRIERS, AS DETERMINED IN OUR SOLE DISCRETION, WE SHALL HAVE THE RIGHT TO DISALLOW, PREVENT FROM SENDING, DISCONTINUE OR DELETE YOUR TEXT MESSAGE CAMPAIGN, AND TO IMMEDIATELY, WITHOUT PRIOR NOTICE TO YOU, DELETE OR TERMINATE YOUR ACCOUNT. IF YOU HAVE PREPAID FOR SERVICES, WE WILL REFUND TO YOU SUCH AMOUNTS PREPAID FOR SERVICES NOT YET RENDERED BY US.
In using the Site, including all Services and Materials available through it, you agree: not to disrupt or interfere with any other user's enjoyment of the Site or affiliated or linked sites; not to upload, post, or otherwise transmit through the Site any viruses or other harmful, disruptive, or destructive files; not to create a false identity; not to use or attempt to use another's account, password, service, or system without authorization from Express Text; not to disrupt or interfere with the security of, or otherwise cause harm to, the Site, or any Services, Materials, system resources, accounts, passwords, servers, or networks connected to or accessible through the Site or any linked sites. You understand and agree that sending unsolicited text messages or spam through the Site is expressly prohibited by these terms. As the user, you are required to accept total responsibility for your behavior and conduct while using the Services.
MANAGING CONTENT AND COMMUNICATIONS
Express Text reserves the right, in its sole discretion, to delete or remove User Content from the Site and to restrict, suspend, or terminate your access to all or part of this Site, at any time without prior notice or liability. Express Text may, but is not obligated to, monitor or review outgoing and incoming text messages. To the maximum extent permitted by law, Express Text will have no liability related to your User Content. Express Text disclaims all liability with respect to the misuse, loss, modification, or unavailability of any User Content. You agree and represent that you are entirely responsible for all User Content that you upload or transmit/send through the Express Text platform.
USER COMMENTS AND FEEDBACK
Any comments, feedback, notes, messages, ideas, suggestions or other communications (collectively, "Comments") sent by you to ExpressText.net shall be and remain the exclusive property of Express Text. Your submission of any such Comments shall constitute an assignment to Express Text of all-worldwide rights, titles and interests in all copyrights and other intellectual property rights in the Comments. ExpressText.net will be entitled to use, reproduce, disclose, publish and distribute any Comments you submit for any purpose whatsoever, without restriction and without compensating you in any way. You agree not to submit any Comments that may be submitted in violation of law or any agreement or obligation to keep the content of such Comments confidential. Express Text expressly disclaims any interest in any Comments that you are not authorized to submit.
You understand that you are solely responsible for maintaining the confidentiality of your password. You shall be solely and fully responsible for all activities that occur under your Username and Password. Express Text shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of any username, mobile number, and/or password. If a password is lost or stolen, it is your responsibility to notify Express Text so that the missing password can be deactivated and a new one assigned.
RESERVATION OF RIGHT TO REFUSE USERS/SERVICE
Express Text reserves the right to refuse or terminate Services granted to you for any reason whatsoever, at our sole discretion and without notice to you. Express Text shall have no liability with respect to such termination of services except to refund prepaid and unused service fees, if any.
RESALE OF SERVICE
You agree not to resell the Service, use of, or access to the Service.
WARRANTIES AND DISCLAIMERS
Except as expressly provided otherwise in a written agreement between you and Express Text or you and a third party with respect to such party's materials or services, this Site, and all Materials and Services accessible through this Site, including the text messaging software platform, are provided "as is" without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability or fitness for a particular purpose, or the warranty of non-infringement. Without limiting the foregoing, Express Text makes no warranty that (i) the Services and Materials will meet your requirements; (ii) the Services and Materials will be uninterrupted, timely, secure, or error-free; (iii) the results that may be obtained from the use of the Services or Materials will be effective, accurate, or reliable; (iv) the quality of any Services or Materials obtained or accessible by you through the Site will meet your expectations; and (v) any errors in the Services or Materials obtained through the Site, or any defects in the Site, its Services or Materials, will be corrected. You understand and acknowledge that (i) Express Text does not control, endorse, or accept responsibility for any content, text message, products, or services offered by third parties or site users through the Site; (ii) Express Text makes no representation or warranties whatsoever about any such third parties or site users, their content, products, or services; (iii) any dealings you may have with such third parties or site users are at your own risk; and (iv) Express Text shall not be liable or responsible for any content, products, or services offered by third parties or site users. By sending/receiving text messages through our service, you understand that some messages may not be delivered due to various technical, network, and/or other reasons. Express Text will not be held responsible or liable for undelivered messages. Although 99% of messages generally reach their intended recipient, we cannot guarantee delivery of any message sent through our services.
PERSONAL INFORMATION AND PRIVACY
LIMITATION OF LIABILITY
In no event, including, without limitation, negligence, shall Express Text, its subsidiaries, affiliates, agents, officers, directors, employees, partners, or suppliers be liable to you or any third party for any special, punitive, incidental, indirect, or consequential damages of any kind, or any damages whatsoever, including, without limitation, those resulting from your violation of this Agreement, your violation of the TCPA, loss of use, data, or profits, whether or not Express Text has been advised of the possibility of such damages, and on any theory of liability, arising out of or in connection with the use of or the inability to use this Site, its Services, or Materials, the statements or actions of any third party on or through the Site, any dealings with other users or other third parties, any unauthorized access to or alteration of your transmissions or data, any information that is sent or received or not sent or received, any failure to store or loss of data, files, or other content, any Services available through the Site that are delayed or interrupted, or any website referenced or linked to or from this Site.
Notwithstanding anything to the contrary in this Agreement, Express Text shall have the absolute unilateral right and power, without any consent from or liability to you, to delete any and all content that you may store on the Express Text platform, including contact lists, phone numbers, marketing content or any other information stored on your account. You are advised to backup any such data on your own systems. Moreover, we reserve the right to unilaterally terminate your account at any time, and upon such action we will refund to you any advance service fees you paid to us but for which services have not been provided as of the date of termination.
You agree to defend, indemnify and hold harmless Express Text, its independent contractors, service providers and consultants, and their respective owners, directors, employees and agents, from and against any third party claims, damages, loss, liability, costs and expenses (including, but not limited to, reasonable attorney's fees) arising out of your use of the Site or the Express Text Services, including without limitation any actual or threatened suit, demand, or claim made against Express Text or its employees, agents, owners, directors, independent contractors, service providers, or consultants, arising out of or relating to your conduct, your violation of this Agreement, your violation of the TCPA and its regulations, or your violation of the rights of any third party or any law respecting third parties. Without limiting the foregoing, you understand and agree that you will be solely responsible, and fully indemnify Express Text, for any violations relating to TCPA and applicable regulations resulting from your use of the Site or its Services. If your violation or alleged violation causes us harm or requires us to defend ourselves in a legal (or administrative) action, you will fully indemnify us and reimburse us for all expenses, losses and injuries resulting from such action, including attorney fees and court costs relating to our defense of such action and the cost of collection (including attorney fees and court costs).
Truth in Messaging / Indemnification of Liability (Message/Alerts senders): You are solely responsible for any legal liability arising out of or relating to (1) the text messages, and/or (2) any product and/or service which your text message recipients can utilize or access through the text message you send to them. You represent and warrant that your text message(s) comply with Express Text and industry standards and policies (including the MMA (Mobile Marketing Association) guidelines and the CTIA’s Short Code Compliance Handbook, as they are amended from time to time); and that it holds the necessary rights to permit the use of the text message(s) by Express Text to transmit the messages; and that the use, reproduction, distribution, or transmission of the text message will not violate any criminal laws or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights, violation of any anti-discrimination law or regulation, or any other right of any person or entity. You agree to jointly and severally indemnify Express Text and to hold Express Text harmless from any and all liability, loss, damages, claims, or causes of action, and expense of any nature (including reasonable legal fees and expenses that may be incurred by Express Text), arising out of or related to Express Text performance under this agreement, the copying, printing, distributing, or publishing of your text message(s), and/or your breach of any of the foregoing representations and warranties. You grant Express Text the right to use, reproduce, and distribute your text message(s). You agree to request that Express Text be listed as an additional insured on any policy issued to you pursuant to which there could be coverage for any of the forms of legal liability described in this paragraph. You shall not include any advertising via Express Text Services that is misleading, unfair or deceptive. All advertising via Express Text shall comply with all applicable laws and regulations. You shall indemnify Express Text and hold Express Text harmless against all loss, liability, damage and expense of any nature (including legal fees) arising out of your breach of this clause or this Agreement.
You may not assign any of your rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Express Text Any such purported assignment or delegation by you without the appropriate prior written consent of Express Text will be null and void and of no force or effect.
These Terms shall be governed by and construed in accordance with the laws of the State of Illinois, without resort to its conflict of law provisions. Subject to the arbitration provisions below, you agree that any action at law or in equity arising out of or relating to this Agreement or your use of the Site or Service shall be filed only in the state and federal courts located in Cook County, Illinois and, except as provided below (respecting arbitration) you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of or relating to this Agreement or your use of this Site or Services.
THE PARTIES HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIMS OR CONTROVERSIES ARISING OUT OF THIS AGREEMENT OR THE USER’S USE OF THE SERVICES PROVIDED BY OR THROUGH EXPRESS TEXT. IN ADDITION, ANY CONTROVERSY OR CLAIM SHALL BE LITIGATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY (INCLUDING, BUT NOT LIMITED TO, BY MEANS OF CLASS ACTION LAW SUITS).
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES, THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF (COLLECTIVELY, “DISPUTES”) WILL BE SETTLED BY BINDING ARBITRATION BETWEEN YOU AND EXPRESS TEXT, EXCEPT THAT EACH PARTY RETAINS THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF A PARTY’S COPYRIGHTS, TRADEMARKS, TRADE SECRETS, PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS. AS NOTED ABOVE, YOU ACKNOWLEDGE AND AGREE THAT YOU AND EXPRESS TEXT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH YOU AND EXPRESS TEXT OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING. THIS “DISPUTE RESOLUTION” SECTION WILL SURVIVE ANY TERMINATION OF THESE TERMS. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES (THE “AAA RULES”) THEN IN EFFECT. THE ARBITRATION PROCEEDINGS SHALL TAKE PLACE IN COOK COUNTY, ILLINOIS.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.