- “Acceptable Use Policy” means those policies, set forth in Section 6 below, that govern your use of the Message Beam Services.
- “Affiliates” means entities that control, are controlled by, or are under common control with Message Beam;
- “Contacts” or “Contacted Parties” refers to individuals or entities that have received or are scheduled to receive messages created by Customers and delivered by Message Beam.
- “Content” means all data, software and information including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, video, music, graphics, images, web pages, applets or servlets that you create, install, upload or transfer in connection with your use of the Services.
- “Customer” or “you” refers to entities or individuals using the Message Beam services, and those individuals designated by a Customer to utilize the Message Beam services on its behalf.
- “Services” refers to all Message Beam message delivery service offerings including any free trial or beta offerings, and Web sites. “Services” does not include any Client Management, training or other professional services performed by Message Beam which shall be subject to separate terms and conditions.
6. Acceptable Use Policy. As a condition of your continued use of the Services, you agree not to use the Services in any manner that could damage, impair, disable or overburden the Services, interfere in any way with the rights of Message Beam, interfere in any way with any third party’s use and enjoyment of the Services, or otherwise infringe on any third party’s rights. Without limiting the foregoing, you specifically agree that:
- your use of the Services will be in compliance with all applicable laws and regulations, including but not limited to 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). It is your responsibility to be informed as to the requirements of all applicable laws and regulations.
- you will not use, or attempt to use, the Services to convey any information that may be considered unlawful, harassing, libelous, abusive, threatening, obscene, hateful, offensive, harmful, vulgar, distasteful, defamatory, libelous, or invasive of another person’s privacy or proprietary rights.
- If you are sending commercial messages to Contacts, you will use, or attempt to use, the Services to contact only those individuals or entities with whom you have a prior business relationship or have obtained their prior written consent;
- you will not use, or attempt to use, the Services to contact any person or entity by telephone or text message that has previously requested not to be called or has “opted-out” of receiving telephone or text messages from you and that you will maintain a list containing the names and phone numbers of such individuals or entities;
- you will not use, or attempt to use, the Services in connection with any chain letters, spam, or messages that are unsolicited or unreasonably duplicative;
- you will not send, or attempt to send, any material for the purposes of debt collections;
- you will not send, or attempt to send, any material that causes the introduction of “viruses,” “worms,” “Trojan horses,” “email bombs,” “cancelbots” or other similar destructive computer programming routines
- you will not send, or attempt to send, telephone or text messages to emergency lines, to a healthcare facility or similar establishment, to numbers assigned to radio common carrier services or to any service for which the Contacted Party would be charged for the call;
- you will not abandon any telephone messages without providing the Contacted Party with an automated, interactive voice and/or key press activated opt-out mechanism that enables the Contacted Party to make a do-not-call request prior to terminating the call;
- you will not transmit, or attempt to transmit, any material that may infringe the contractual, fiduciary, intellectual property rights, or other rights of third parties, including trademark, copyright or the right of publicity;
- you will not impersonate, or attempt to impersonate, any other individual, falsify contact information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with Message Beam, or otherwise attempt to mislead Contacted Parties as to the identity of the sender or the origin of a message;
- you will not interfere, or attempt to interfere, with or disrupt connections to the Services or violate the regulations, policies or procedures of such connections; and
- you will not attempt to gain unauthorized access to the Services, other Customer accounts, computer systems or networks connected to the Services.
10. Ownership of Content. Message Beam does not claim ownership of any Content. You hereby grant to Message Beam a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, display and replay Content solely for the purpose of providing the Services to you. Except as set forth in this Section 10, you retain all right, title, and interest in and to the Content. Data uploaded and stored in any Message Beam system greater than 14 days with no messaging activity may be routinely deleted from the Message Beam system automatically. Disaster recovery or business continuity services may be available at an additional charge.
11. Limited Purpose Access to Content. You acknowledge that the Services are provided by automated means (e.g., uploading Content via the applicable software tools or utilizing telephone or mobile phone technology) and that Message Beam personnel will not access, view, or listen to any Content, except as necessary to perform the Services, including but not limited to the following: (i) if during a Services interruption as necessary to restore the applicable Content at your request; (ii) if you have requested that Message Beam serve as producer, designer or creator of any message to be distributed through the Services on your behalf; or (iii) as deemed necessary or advisable by Message Beam in good faith to conform to legal requirements or comply with legal process. You acknowledge that text messages may be transmitted over a provider’s network in an unencrypted format, and that additional laws or regulations may apply to information that is transmitted in an unencrypted format. To the extent permitted by law, Message Beam or any provider may intercept and disclose any text messages transmitted over such Provider’s Network to the extent reasonably necessary to protect Message Beam’s or such provider’s network, or to comply with any legal, regulatory or governmental inquiries or requirements.
12. Representations and Warranties About Content. You represent and warrant that you: (i) are the owner or authorized licensee of any and all Content; and (ii) will not publish, post, upload, record, or otherwise distribute or transmit Content that violates the Acceptable Use Policy.
14. Compliance with Applicable Law and Industry Standards. Regardless of your location when you access the Services, you agree to comply with all applicable United States export control laws, including those regarding the export of data. You may not export, re-export, divert, transfer or disclose any portion of the Services, directly or indirectly, in violation of any applicable export law or regulation. You may not call or text phone numbers that are located outside of the United States. You are also responsible for complying with all other laws, rules, and regulations that may be applicable to your use of the Services. To the extent you use the Services to send text messages, you agree to comply with the Mobile Marketing Association Code of Conduct set forth here, and as may be amended from time to time.
15. Rights of Contacted Parties. Message Beam offers Contacted Parties with a mechanism for opting out of receiving messages from Customers. Contacted Parties may send opt-out requests by using this opt-out mechanism or by responding to a telephone message or Text Message. Thereafter, Message Beam shall immediately enforce opt-out requests on behalf of the Customer by not sending messages to Contacted Parties who have requested opt-out. You acknowledge that for some messages applicable law requires express written consent prior to a message being sent. It is your responsibility to comply with all applicable laws. A Contacted Party may, upon hearing a live telephone message, simply choose to block the Services by pressing seven (7) on the keypad or, for e-mail messages, elect to “opt-out” of future promotional messages from Message Beam as provided in an applicable message. Contacted Parties may also request to no longer receive Message Beam promotional messages at any telephone number or e-mail address for any reason by writing to us at Message Beam, LLC, 100 Cummings Center, Suite 215C, Beverly, MA 01915, or calling us at 1 (877) 276 4257.
16. Service Providers and Third Party Web Sites. You and your Contacts may be offered the opportunity to be transferred or linked to third party providers of products, services, advertisements or content or Web sites (“Service Providers”) that may be accessible through and interoperate with the Services. Message Beam does not endorse and is not responsible or liable for any content, data, advertising, products or services available or unavailable from, or through, such Service Providers. By accessing or using such Service Provider information, Customers and Contacted Parties agree that Message Beam is not responsible or liable, indirectly or directly, for any damage or loss caused, or alleged to be caused, by or in connection with such access or use. Any such access or use is at the Customer or Contacted Party’s sole risk.
17. Services Registration Requirements; Consent to Recording. You agree, as a condition of your use of the Services, to provide Message Beam with accurate and complete information when registering for or using the Services, and to update and maintain such information in a timely manner. If you are under the age of thirteen, you are prohibited from using or registering for the Services. Upon registration for certain Services, you must select an account identifier, also called an account phone number, and a password. You agree to: (a) exit from your account when you conclude each session; and (b) immediately notify Message Beam of any loss, compromise or unauthorized use of your password or account identifier or any other breach of security. You agree and consent that Message Beam may record voice communications, utterances, conversations or commands made by you during your use of the Services. By using the Message Beam Services, you expressly consent and grant to Message Beam the right to record and use such recordings. If you do not authorize Message Beam to make or use such recordings you may not use the Services.
18. Telephone and Internet Charges and Fees. Customers obtain access to certain Services by dialing a toll free number within the continental United States. When dialing from outside the continental United States you may incur, and will be solely responsible for any, long distance telephone charges. You are also responsible for any other connection charges you may incur when calling the Message Beam toll-free number (for example, any cellular or mobile phone charges that may apply). Access to other Message Beam services may require an internet connection as well as separately available software. Any related charges and fees are the sole responsibility of the Customer.
19. Use of Caller ID and Automatic Numbering Information. When you use the Services to deliver telephone messages, we will require you to enter a reply number to enable your Contacts to reply to you. Whether or not you have blocked caller ID, we will provide this reply number to Contacts scheduled to receive this message. For any future messages from you to your Contacts we may use the automatic numbering information provided by the telephone network (similar to caller ID-type information) to recall the reply number you previously entered and provide it to your Contacts with those messages. If you do not agree that Message Beam may use the automatic numbering information to recall your reply number, you may not use the Message Beam Services.
21. DISCLAIMER OF WARRANTIES. THE SERVICES (INCLUDING ANY ASSOCIATED DOCUMENTATION, INFORMATION AND MATERIALS) ARE PROVIDED TO YOU “AS IS” AND MESSAGE BEAM, ITS AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE SERVICES ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, MESSAGE BEAM, ITS AFFILIATES, SUPPLIERS AND RESELLERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSE.
22. Acceptance of Risk. Message Beam will make commercially reasonable efforts to deliver secure and reliable Services. Notwithstanding the foregoing, you acknowledge and agree that: (i) use of the Services is at your sole risk; (ii) you will be solely responsible for any damages to you resulting from your use of the Services; (iii) the entire risk arising out of use of the Services remains with you; and (iv) Message Beam is not responsible for the availability or performance of any telephone carrier or related service provider or network or of the Internet or for timeliness, deletions, improper delivery or failure to store or deliver any message or Content.
23. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES. IN NO EVENT WILL MESSAGE BEAM OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES, OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF MESSAGE BEAM, ITS AFFILIATES OR SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE MAXIMUM AGGREGATE LIABILITY OF MESSAGE BEAM, ITS AFFILIATES OR SUPPLIERS OR RESELLERS AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO YOUR USE OR ATTEMPTED USE OF THE SERVICES OR SOFTWARE WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES, IF ANY, IN THE TWELVE MONTHS PRECEDING THE CLAIM, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
25. Geographic Scope. Although you may have accessed the Services or Software outside of the United States of America, delivery of the Services or Software by Message Beam or its suppliers will only occur within the United States of America, and Message Beam’s obligations hereunder are valid only in the United States of America.
Effective date: March 8, 2018
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