Message Beam Services Agreement
IF YOU DO NOT AGREE WITH THESE TERMS, OR ANY NEW OR MODIFIED TERMS, DO NOT CLICK “I ACCEPT” OR SIGN A SERVICES ORDER AGREEMENT OR IN ANY MANNER USE ANY FEE-BASED SERVICES OR FUNCTIONALITY OFFERED HEREWITH.
Subject to your compliance with the terms and conditions set forth in this Agreement, Message Beam grants you and your majority-owned subsidiaries a revocable, non-exclusive, nontransferable right to access and use the Services during the term of this Agreement. You are responsible for the acts or omissions of any of your subsidiaries utilizing the Services pursuant to this Agreement.
MESSAGE BEAM SERVICES OBLIGATIONS:
Message Beam will provide limited technical support for your use of the Services during the term of this Agreement. Technical support includes electronic assistance during Message Beam business hours for problems associated with your use of the Services. Support is not provided for any non-current versions of the Services or any related software or any problem or failure caused by: (i) your use of any hardware, operating system, internet browser, and software or telephone technology not currently supported by Message Beam; or (ii) improper use or modification of the Services or any related software by you. Message Beam may subcontract the Services, or any part thereof, including technical support, to subcontractors selected by Message Beam.
“Alert Call” means a telephone call where a message is transmitted to a Contact and the call does not enable the Contact to connect to your call center or allow any additional functionality (such as a survey or questionnaire) other than repeating the message.
“Alert Call Minutes” are minutes consumed by an Alert Call.
“Carrier” shall mean those paging and mobile telephone network service providers supported by Message Beam.
“Interactive Call” means a telephone call where a message is transmitted to a Contact and enables the Contacted Party to connect to your call center phone system.
“Direct Connect Call” means a telephone call where a Contacted Party has elected to connect to your call center system after having received an Interactive Call.
“Direct Connect Minutes” are minutes consumed by Direct Connect Calls. There are two types of charges for Direct Connect Minutes: (a) “Outbound Direct Connect” charges apply when a Direct Connect Call results from an Outbound Call; and (b) “Inbound Direct Connect” charges apply when a Direct Connect Call results from an Inbound Call.
“Free-to-End-User” or “FTEU” messages allow a Customer to send a Text Message to a Contact without the Contact incurring any cost from their wireless provider.
“Inbound Call” is defined as a telephone call initiated by a Contacted Party using a phone number provided by Message Beam.
“Local Connect” is an additional Services feature that delivers local caller ID information to your Contact.
“Local Connect Minutes” are outbound minutes consumed with the Local Connect feature enabled. This includes Interactive Call, Alert Call, and Return Call Minutes.
“Mobile Web” refers to an Application whereby Message Beam creates and hosts unique, mobile enabled webpages (each a “webpage”) accessible via a link delivered by Customer to a Contact through the ASP Service. Each such webpage shall display a unique message for a Contact. Each webpage shall incur a Mobile Web Distribution Fee as well as a per message fee for the email or text distribution of such message, as applicable.
“Number Bucket” is a set of Direct Inward Dial (“DID”) Local Access Numbers.
“Outbound Call” is defined as a call initiated on the Message Beam system by or for the Customer.
“Provider” is defined to include Carriers and other companies that provide internet and message routing services to the telephone industry.
“Return Minutes” are all minutes consumed when the Contacted Party uses the Local Connect number (i.e., Contact returns call from caller ID number).
“Short Code” refers to the 5 or 6-digit code that enables the Carrier to identify Message Beam as the intended recipient or the originator of a Text Message.
“Special Information Tone” or “SIT” refers to a three beep signal indicating a call did not go through and usually precedes a recorded announcement explaining the problem.
“Telephone Number and Carrier Verification Services” identifies cellular and landline telephone numbers, the Carrier to which they are assigned as well as invalid numbers.
“Text Message” or “SMS Message” shall mean a short message service text or binary message and all associated Content.
USE OF VOICE MESSAGING SERVICES:
Customer may create, design, write and/or record one or more messages for transmission to its designated Contacts. Customer shall be solely responsible for the accuracy and legality of all message Content, including compliance with the Telephone Consumer Protection Act of 1991 (TCPA), Health Information Technology for Economic and Clinical Health Act (HITECH) and Health Insurance Portability and Accountability Act (HIPAA). Customer is further solely responsible for obtaining any required prior written consents from its designated Contacts. Each message must begin by stating clearly the Customer’s identity. Your messages must also include: (1) any necessary disclosures required by federal, state or local law; (2) a telephone number at which a Contacted Party can make a do-not-call request during your regular business hours; and (3) an automated, interactive voice and/or key press activated opt-out mechanism for the Contacted Person to make a do-not-call request, including brief explanatory instructions on how to use such mechanism. Under no circumstance shall any message be sent for the purposes of collections, unless otherwise stated in the Agreement. Customer shall be solely responsible for establishing and providing to Message Beam the time, date and delivery schedule for each message it plans to transmit utilizing the Services. Customer shall not schedule any telemarketing message for transmission before 8 a.m. or after 9 p.m. local time at the Contact’s location or as otherwise prohibited by federal, state or local law.
USE OF TEXT MESSAGING SERVICES:
Short Code Programs. Short Codes are required for all Customer Text Messages. Any Short Code delivered by Message Beam to Customer under this Agreement will be owned exclusively by Message Beam and no rights in such Short Code are granted to Customer hereunder. Accordingly, Message Beam may use the Short Code in any manner at its sole discretion. Customer may acquire Short Code from a third party at its own expense for use in connection with the Services. Message Beam may require at least 45 days to provision a Short Code for a Customer. Message Beam is not responsible for any delays in provisioning due to Customer’s failure to timely respond to requests for information and payment, or due to any lack of responsiveness from any Carrier.
Telephone Number and Carrier Verification Services: Message Beam uses commercially reasonable efforts to ensure the accuracy of its Telephone Number and Carrier Verification Services. Message Beam makes no warranty of any kind regarding the accuracy of data returned from the Telephone and Carrier Verification Services.
TERM OF SERVICES/TERMINATION:
The “Initial Term” of this Agreement shall be one (1) month, or such other period set forth in a Services Order Agreement, from the date Message Beam provides you with access to the Services subject to this Agreement (“Effective Date”). This Agreement will automatically renew for an additional term equal to the Initial Term unless either party provides written notice to the other of its intent to terminate the Agreement no less than thirty (30) days prior to the expiration of the then current term.
Termination for Bankruptcy. Message Beam may terminate this Agreement without notice in the event you file for bankruptcy or reorganization or fail to discharge an involuntary petition for bankruptcy or reorganization within the time permitted by law.
Charges for the Services are set forth on the Message Beam Web site order page for online orders or as otherwise set forth in a Services Order Agreement. Charges are calculated on a monthly basis for each calendar month. Prices do not include taxes or similar fees now in force or enacted in the future that are imposed on the delivery of Services, and Customer will be solely responsible for and will pay directly or reimburse Message Beam in full for all taxes, including but not limited to, sales, usage, excise, VAT, property or any other taxes, duties, customs fees or surcharges, excluding taxes based on Message Beam’s income. Prices are subject to change upon 30 days’ prior written notice from Message Beam.
Additional Terms for Voice Messaging Charges. All Inbound, Outbound and Direct Connect Calls will be assessed a charge as set forth in this section except those calls that result in a busy signal or no answer. All call minutes are billed in 6-second increments. If Customer elects to have Outbound Calls hang-up on answering machines, each such call will be charged at a rate of 12 seconds. If a call in an SIT tone or otherwise fails to connect, each such call will be charged at a rate of 12 seconds. Interactive Call Minute charges begin when the Interactive Call is picked up by any person or device and ends when the call is terminated or, if applicable, a Direct Connect Call begins. Direct Connect Minute charges begin when Customer’s contact center phone system picks up the Direct Connect Call. Alert Call Minute charges begin when the Alert Call is picked up by any person or device and ends when the call is terminated. Local Connect is a separate feature associated with Outbound Call services and is charged accordingly. Distribution Fees apply to the delivery of messages to all countries in the country code +1 North American Number Plan Area (“NANPA”). For messages to be delivered outside of the NANPA, pricing is available upon written request.
Additional Terms for Text Messaging Charges. Message Beam offers both Standard Alert and Free-to-End User (“FTEU”) message options which include both Text Messages sent and those received by Message Beam on Customer’s behalf.
In the event any Text Message exceeds 160 characters of text (excluding those texts which, by law, are not to exceed 160 characters of text) or 140 bytes of binary data, or other amount designated by the Carrier through which the message is sent or received, the Text Message may be divided into two (2) or more messages and delivered separately. In such case, each separately delivered Text Message shall result in a charge. Customers are charged for all inbound Text Messages (and associated outbound responses, if any) to any Text Messages they have previously sent. These inbound Text Messages will commonly lag the initial outbound Text Message and accordingly may be billed in a subsequent monthly invoice. Short Code program fees, if any, commence on the Effective Date. Customer will be charged for all Short Codes delivered by Message Beam on a quarterly basis. Short Code fees are not refundable in the event of any termination, cancellation or expiration of this Agreement. For shared Short Codes, Customer will be charged for inbound Text Messages received by Message Beam within 60 days of the last interaction between Customer and the Contacted Party. In addition, Customer will be charged for any responses to these inbound Text Messages (for example, the confirmation of an opt-out request). Customer will not be charged for any responses received by Message Beam on Customer’s behalf after the 60-day window has expired. For dedicated Short Codes that are still active, Customer will be charged for all inbound Text Messages received, as well any responses to these inbound Text Messages by Customer.
Each month Message Beam will issue an invoice (or, if you pay by credit card, an e-mail notification to the address set forth on the Services Order Agreement) that will include any or all of the following: (1) monthly minimum usage fee set forth on the Message Beam Web site order page for online orders or as otherwise set forth in a Services Order Agreement for previous month; (2) non-recurring charges that were incurred in the previous month; (3) metered service charges based on the minutes of Services used during the previous month in excess of the monthly minimum usage; and (4) any unpaid amounts from previous invoices, including late payment fees and interest accrued, as applicable.
You must pay for all charges in full each month as set forth in this section. In the event of late payment, Message Beam reserves the right to suspend the provision of the Services to you and/or impose a late payment fee and charge interest on any amounts overdue. Such late payment fee will be the lesser of: (1) one and one-half percent (1.5%) of such overdue payment per every thirty (30) day period or portion thereof; or (2) the maximum amount permissible by applicable law. You agree to pay all attorneys’ and collection fees arising from efforts by Message Beam to collect any past due amounts from you to the extent allowed by law
Additional Terms for Monthly Invoice Orders. Monthly payments must be received by Message Beam no later than thirty (30) days from the date the invoice was issued as stated on the invoice.
Additional Terms for Online Orders. For online orders, you must provide Message Beam with your credit card information on the Message Beam Web site order page. Message Beam may take commercially reasonable actions to validate your credit card information. You agree that on or before the first business day of each month all charges you incur for use of the Services will be charged to the credit card number you provide. If Message Beam does not receive payment from your card issuer, you agree to pay Message Beam all amounts due immediately upon demand.
Message Beam shall not be responsible for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control.
You may not assign or transfer rights or delegate obligations or performance under this Agreement without the prior written consent of Message Beam and any such assignment, transfer or delegation without such consent shall be void. Message Beam may assign this Agreement to an Affiliate without prior notice to you.
Neither party will have the right to publicly announce the existence or terms of this Agreement without the prior written approval of the other party, except that without such approval Message Beam may include Customer’s logo and name on its Web site and in other marketing collateral as well as in its annual report.
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For text messages, standard message and data rates may apply. Wireless carriers are not liable for delayed or undelivered messages. Participating carriers include (but are not limited to) AT&T, SprintPCS, T-Mobile® , U.S. Cellular®, Verizon Wireless, and MetroPCS.
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