Terms of Use

1.  General.  Message Beam, Inc., and its Affiliates (“Message Beam,” “we,” or “us”), provides access to this Web site and related services subject to these Terms of Use.   By accessing, viewing, using, or downloading materials from this Web site or using any Message Beam service, including any free trial or beta offering, you agree to be bound by these Terms of Use.  Message Beam may change these Terms of Use from time to time and any such changes will be posted for your review.    If you do not agree with these Terms of Use, or amendments hereto, please do not use the Message Beam Web site or services.

2. Definitions.   For the purposes of these Terms of Use, the following definitions shall apply:

  1. “Acceptable Use Policy” means those policies, set forth in Section 6 below, that govern your use of the Message Beam Services.
  2. “Affiliates” means entities that control, are controlled by, or are under common control with Message Beam;
  3. “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.
  4. “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.
  5. “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.
  6.  “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.

3.  Access to Services; Suspension and Cancellation. Subject to compliance with these Terms of Use, Message Beam grants to Customers a revocable, non-exclusive, nontransferable right to access and use the Services. The Services are provided with Restricted Rights for U.S. Government users. Message Beam reserves the right to suspend or discontinue the Services, or any part thereof, (or otherwise terminate these Terms of Use) at any time without notice. Message Beam may, at any time, revoke your access to the Services delete your Content or limit in any way your access to the Services for any reason in its sole discretion, including, but not limited to, if Message Beam believes that you are in breach of these Terms of Use or the Acceptable Use Policy. Upon any cancellation of these Terms of Use, your access and other rights to the Services will be cancelled and cease. In such event you must cease any further use of the Services.

4. Ownership of Services, Marks, Copyright. The Services are licensed, not sold, solely for use as authorized by Message Beam pursuant to these Terms of Use. Except as specifically set forth herein, Message Beam and its Affiliates, or their licensors, retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Services, including without limitation all technology and software relating to the Services. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Marks”) relating to the Services are the trademarks of Message Beam, its Affiliates or their licensors. You are prohibited from using any Marks without the prior written permission of Message Beam or the owners thereof. Message Beam reserves all rights not expressly granted in these Terms of Use. The works of authorship contained on this Web site including but not limited to all design, text and images, are owned by Message Beam, its Affiliates or their licensors, and may not be copied, reproduced, displayed, performed, distributed, rented, sublicensed, altered, stored for subsequent use or otherwise used in whole or in apart in any manner without our prior written consent.

5. Restrictions. You agree not to copy, reverse assemble, reverse compile, decompile, or otherwise translate the Services, except as expressly permitted by law without possibility of contractual waiver. Unless expressly permitted in another written agreement between you and Message Beam or its Affiliates, you may not: (1) use, copy, modify, create derivative works of, distribute, sell, resell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, any rights in or access to the Services; or (2) remove, deface, cover, alter or obscure any copyright or trademark notices and/or legends or other proprietary notices associated with the Services unless expressly permitted under another written agreement between you and Message Beam or its Affiliates. The Services are to be used by Customers located within the United States solely for directing voice, e-mail and text messages to their Contacts, located in the United States, and only as permitted under these Terms of Use, Acceptable Use Policy and other written agreements with Message Beam or its Affiliates related to the Services, if any.  The advertising of goods, products, services or real property by transmission of unsolicited messages may be in violation of state, federal or other applicable laws and regulations and may subject the advertiser to civil liability and/or criminal penalties. As further set forth in Section 14 below, Customer shall use Services 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).  Message Beam shall have no liability arising out of or relating in any way to any solicitation and/or communication that Customer makes using the Services.

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.

7. Scheduled Downtime; No Training or Technical Support. Message Beam conducts regularly scheduled maintenance for the Services; other scheduled and non-scheduled down times may occur. During such times the Services will not be available for use. Message Beam has no obligation under these Terms of Use to provide support or maintenance services in connection with the Services (“Technical Support”). Message Beam may elect to provide you with Technical Support at its sole discretion. Any enhancements, updates and other materials provided by Message Beam as part of any such Technical Support are considered to be part of the Services and are therefore governed by these Terms of Use.

8. Services Updates. Message Beam may, in its sole discretion, provide, and these Terms of Use shall apply to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Services (collectively, “Updates”) that Message Beam may provide or make available generally to its customers after the date that Services commence, subject to any additional terms and conditions provided by Message Beam applicable to such Updates. Message Beam has no obligation to, and nothing in these Terms of Use may be construed to require Message Beam to, create, provide, or install Updates.

9. Privacy. you agree to allow Message Beam and its Affiliates to store and use the information you provide to us in connection with your use of the Services, including your name, phone number(s), and e-mail address(es), anywhere Message Beam and its Affiliates do business, solely as set forth in the Privacy Policy set forth . Message Beam will not access, view or otherwise use any information included in your Content except as provided in Section 11 below. You confirm that you are solely responsible for any information that may be contained in your Content including compliance with applicable data protection laws.

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.

13. Confidentiality. You agree to treat each of the following as “Message Beam Confidential Information” regardless of whether it contains restrictive markings indicating the confidential nature thereof or have been identified as Message Beam Confidential Information prior to disclosure: (a) all feedback, and suggestions in any form that you provide to Message Beam related to the Services, and (b) your account number, account identifier and/or password for the Services. Notwithstanding anything in these Terms of Use, you agree not to communicate, publish, disseminate or otherwise discuss with or disclose to any third party the Message Beam Confidential Information. You agree to use the same care and discretion to avoid disclosure of the Message Beam Confidential Information as you use with your own similar information that you do not wish to disclose, but in no event shall such degree of care be less than reasonable care. You agree not to disclose to Message Beam any information that is considered confidential or proprietary to you or any third party except under a signed, separate, written confidentiality agreement. You are also responsible for all uses of your account in accordance with these Terms of Use, whether or not actually or expressly authorized by you.

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.

20. Indemnity. You agree to defend, indemnify, and hold harmless Message Beam and its Affiliates and their officers, directors, employees, consultants, agents and suppliers from and against any and all third party claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of or related to: (i) your use of the Services, (ii) any violation of these Terms of Use or applicable law by you in connection with your use of the Services, (iii) any actual or alleged infringement by you, or any person accessing the Services using your password or account identifier, of any intellectual property or privacy or other right of any third party, or (iv) any unauthorized use of 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.

24.  Liquidated Damages for Spam.  If a Customer sends spam or other unsolicited messages to its Contacts, this can cause significant harm to Message Beam that may be difficult to quantify.  If a court of competent jurisdiction finds that you have sent spam in violation of federal, state or local law or have otherwise sent unsolicited messages to your Contacts, you agree to pay Message Beam liquidated damages equal to US$5.00 for each piece of spam or unsolicited message transmitted from or otherwise connected with your account as well as any actual damages or fines incurred by Message Beam in connection with your violation of these Terms of Use.

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.

26. Governing Law; Exclusive Forum. These Terms of Use, and the relationship between you and Message Beam resulting from your use or attempted use of the Services or Software, and the resolution of any dispute arising out of that relationship, shall all be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to any conflict of law provisions. You agree that any legal action or proceeding arising out of or related in any manner to these Terms of Use, or the relationship between you and Message Beam resulting from these Terms of Use or your use or attempted use of the Services, shall be brought exclusively in the state or federal courts located in Boston, Massachusetts.  The parties expressly waive any right to a jury trial for disputes related to the subject matter of these Terms of Use. Any legal or other action related to a breach of these Terms of Use must be commenced no later than two (2) years from the date on which the cause of action arose.

27. Injunctive Relief. Your use of the Services in violation of these Terms of Use would cause irreparable harm to Message Beam, its Affiliates and suppliers for which no adequate remedy at law exists, and under such circumstances Message Beam, its Affiliates and suppliers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

28. Miscellaneous. If any part of these Terms of Use is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement will continue in effect. If any provision is found to be contrary to law, then such provision will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Message Beam’s failure to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision unless agreed to by Message Beam in a writing signed by a duly authorized representative of Message Beam. Message Beam reserves the right to modify these Terms of Use, and related Acceptable Use Policy at any time by providing such revised terms to you. Your continued use of the Services shall constitute your acceptance to be bound by any such revised terms and conditions.

29. Entire Agreement. These Terms of Use (including any accompanying Message Beam Services Agreement or Services Order Agreement) constitutes the entire agreement between Message Beam and you with respect to the Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between Message Beam and you regarding the Services. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, e-mail, or other document that you may now or later provide to Message Beam, will have no effect.

Effective date:   March 8, 2018

MessageBeam

Terms of Use

By using this service, you agree that the email address and phone numbers you supply belong to you, and you will not send demonstration calls or emails to any third party.

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.