SUBSCRIBER AGREEMENT AND TERMS OF SERVICE
This Subscriber Agreement and Terms of Service ("Agreement") contains the complete terms and conditions between Tuxt Inc. (“Tuxt,” “we,” “us” or “ours”), a Delaware corporation located at 6320 Canoga Avenue, Suite 1700, Woodland Hills, California 91367 and the subscriber indicated in the onboarding subscription form (“Subscription Form”) completed by you.
BY AGREEING TO BECOME A SUBSCRIBER TO TUXT AND CLICKING THE “i aGREE” BOX ON THE SUBSCRIPTION FORM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
- The term “Services” as used in this Agreement includes the use of the Tuxt software platform (the “Platform”) which enables subscribers to the Platform (“Subscribers,” “You,” or “Yours”) to send product offerings (“Content”) to selected recipients, including consumers (“Consumers”) to enable Consumers to order and pay for a Subscriber’s product offerings (“Products”). This Agreement also includes any additional services that we may perform for you from time to time, subject your agreement. “Content” as used in this Agreement means all content created and uploaded by a Subscriber through the Platform to be delivered to Consumers via SMS text messaging, including information regarding Products and the purchase and payment by Consumers for such Products.
- We may modify this Agreement, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Although we will endeavour to provide you with notice of material changes, your use of the Platform after such posting shall be deemed to constitute acceptance by you of such modifications, additions or deletions.
- We may change or discontinue any aspect, service or feature of our Platform at any time, including, but not limited to, content and functionality of the Platform, hours of availability, and equipment needed for access or use.
- These Terms of Service supersede all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Platform, the Content, products or services provided by or through the Platform, and the subject matter of these Terms of Service.
- SERVICE LIMITATIONS
- You understand that the Platform provides you with the ability to send text messages to Consumers and for Consumers to use the Content to obtain information about and to pay for your goods and services.
- You understand that you are primarily responsible for:
- the drafting and creation of text messages and Content;
- the recipients to whom such text messages and Content will be sent;
- the timing of when the text messages and Content will be sent; and
- the options that your Consumers have to obtain information about your goods and services, including ordering and payment services.
- We do not and cannot guarantee the results of your use of the Platform. We make no promises regarding the outcome of the Services that we provide for you.
- In the event that you a Consumer cancels an order through the Platform, you are not entitled to any refund from us of any fees associated with the order, such as SMS or transaction fees.
- COMPLIANCE WITH TCPA
- By subscribing to and using the Services or making use of the Platform in any manner (including sending or allowing to be sent Content to Consumers and allowing Consumers to pay for Products), you are expressly representing that you are and will remain in full compliance with the Telephone Consumer Protection Act (“TCPA”) and all related regulations, including the Federal Communications Commission’s rules interpreting the TCPA and related regulations and legal cases interpreting the TCPA and its regulations. Among other requirements, the TCPA requires that you obtain a Consumer’s prior express written consent before calling or sending such Consumer a text message. Without limiting the foregoing, you expressly represent and agree that:
- all phone numbers that you upload to the Platform or to which you send Content using the Platform have been obtained with the prior express written consent of the subscribers and Subscribers of such phone numbers, and that such phone numbers were in fact obtained in full compliance with the TCPA and all its regulations;
- every Customer to whom you send Content through the Services has provided you with prior express written consent to receive the Content you send the Customer. You further understand that obtaining consent from Consumers to receive a particular message does not necessarily provide you with consent to send the recipient other messages, and you are responsible for determining the scope of consent that a Customer has provided to you;
- you will comply with all opt out requirements and requests from Consumers to stop obtaining text messages and Content;
- you will not send any Content to any Consumers whose contact information was obtained by means other than in full compliance with the TCPA and applicable regulations, as then in effect;
- every phone number for a Customer to which you send Content using the Services is a United States phone number, that none are for numbers for residents outside of the United States, and that you will not send Content using the Platform outside the United States;
- you are at least 18 years of age;
- your Consumers are of the age of consent in the locality in which they are resident and have consented to receive notifications and communications from you; and
- you and not Tuxt are the “maker,” “sender” and “initiator” of text message transmissions under the TCPA and applicable regulations.
- INTELLECTUAL PROPERTY; LIMITED LICENSE TO SUBSCRIBERS
- Through agreement to these Terms of Service, including payment of and subject to your payment of fees, we grant you a limited, non-exclusive, non-transferable license to use the Platform for use solely by you according to the terms of these Terms of Service. The rights granted to you constitute a license and not a transfer of title. You are not granted any rights to republish, distribute, assign, sublicense, sell or prepare derivative works or other uses.
- You agree that the Platform is protected by intellectual property laws and that any unauthorized use of the Platform may violate these laws as well as these Terms of Service. The rights specified below to view, download, and print the Content from the Platform are not applicable to the design or layout of the Platform. Elements of the Platform are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
- Except as expressly indicated to the contrary elsewhere in this Agreement, you may view, download, and print the Content available on the Platform subject to the following conditions:
- the Platform may not be modified or altered in any way;
- you may not remove any copyright or other proprietary notices contained in the Platform; and
- you acknowledge that Tuxt has reserved the right to revoke the authorization to use the Services and to view, download, and print the Content available on this Platform at any time, and any such use by you shall be discontinued immediately upon notice from Tuxt.
- TRADEMARK INFORMATION
The trademarks, logos, and service marks, including the “Tuxt” trademark (“Marks”) displayed on this Site are the property of Tuxt or other third parties. You are not permitted to use the Marks without the prior written consent of Tuxt or such third party that may own the Marks.
- SUBSCRIBER CONTENT
- Any Content, regardless of format shall be delivered to us with your warranty that such content is rightfully owned by or licensed to you or is in the public domain. We will not verify that Content is validly owned by or licensed to you and, as such, you bear all risk associated with the transmission of said content to us. In posting Content to the Platform and transmitting it to Consumers, you represent and warrant that you either have the right to post such Content, that the holder of any rights has completely and effectively waived all such rights and validly and irrevocably granted to you the right to post Content, or that you have express, verifiable permission from the author of the work prior to posting the Content.
- All Content is solely the responsibility of the Subscriber from whom such Content originated. You hereby agree that in submitting Content or otherwise using the Platform to transmit Content to a Consumer that you will not impersonate any person, or submit any materials that are false, inaccurate, misleading, unlawful, or are otherwise in violation of your obligations under this Agreement.
- You agree to evaluate and bear all risk associated with the use and transmission of Content. Under no circumstances will you hold us liable for such Content. You acknowledge that our Platform acts as a passive conduit for the distribution and publication of Content to Consumers. You further acknowledge that we have no affirmative obligation to screen, review, or pre-approve Content, communications, or information in advance of said content, communications, or information prior to posting by Subscribers.
- Notwithstanding the provisions of this Paragraph, we may review and remove any Content that, in our sole judgment, violates this Agreement, violates applicable laws, rules or regulations, is abusive, disruptive, offensive or illegal, or violates the rights of, or harms or threatens the safety of Subscribers of any of the Platform. You acknowledge that we reserve the right to refuse, delete, rearrange, edit, modify, or otherwise manipulate Content at our sole discretion without advance notification.
- By submitting any Content to be transmitted to Consumers to or through the Platform you grant Tuxt a worldwide, royalty-free, non-exclusive license to modify (but only for purposes of formatting, maintenance, or administration of the Platform) and reproducing such Content in the manner directed by you.
- If we are notified that Content does not conform to this Agreement, we may, in our sole discretion, investigate the allegation and determine whether to take any other actions to remove or request the removal of the Content. We have no liability or responsibility to Subscribers for performance or non-performance of such activities.
- We may remove your Content from the Platform at any time in our sole discretion.
- We do not represent or guarantee the truthfulness, accuracy, or reliability of Content or any other communications posted by Subscribers or endorse any opinions expressed by Subscribers.
- CONSUMER DATA
- For the purposes of this Agreement, “Consumer Data” means information or data, including “Personal Information” as defined in Section 9, that is submitted, posted, or otherwise transmitted by a Consumer to the Subscriber, or otherwise collected and managed on behalf of the Subscriber, through the Platform and Services.
- You acknowledge that Tuxt may combine Consumer Data regarding a particular Consumer from multiple Subscribers to create a profile for such consumer to facilitate orders, payments and other use of the Platform.
- Tuxt acknowledges that, as between Tuxt and the Subscriber, the Subscriber owns all right, title and interest in Consumer Data. Subscriber hereby grants to Tuxt a non-exclusive, royalty-free, worldwide license to reproduce, distribute and otherwise use and display the Consumer Data and perform all acts with respect to the Consumer Data as may be necessary for Tuxt to provide the Platform and Services, including creation of customer profiles.
- We also may use Customer Data in an anonymized or aggregate form for analytic purposes that excludes any Personal Information regarding a particular customer.
- CONFIDENTIAL INFORMATION
- From time to time, either party to this Agreement may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (“Confidential Information”). “Confidential Information” includes, but is not limited to, Consumer Data. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain or becomes so known and available through no fault of the receiving party; (b) known to the receiving party at the time of disclosure as evidence by its written records; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party not subject to confidentiality obligations with respect to same; or (d) independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
- The receiving party shall not use the disclosing party’s Confidential Information for any purpose whatsoever other than that for which it was given pursuant to this Agreement and shall not disclose or make available, directly or indirectly, the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, consultants, or professional advisors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder.
- Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (b) to establish a party’s right under this Agreement, including to make required court findings.
- PERSONAL INFORMATION AND PRIVACY
- CALIFORNIA CONSUMER PRIVACY ACT (CCPA)
- The parties agree that for the purposes of the California Consumer Privacy Act (“CCPA”) that you as Subscriber are a “Business” (as such term is defined by the CCPA) and that Tuxt is a “Service Provider” (as such term is defined by the CCPA). For avoidance of doubt, a “Service Provider” processes information on behalf of a “Business” which discloses the Personal Information of Consumers to the Service Provider for the business purposes specified in this Agreement.
- Tuxt will promptly forward to Subscriber any requests that it receives by a Consumer pursuant to any rights under the CCPA, including any requests pursuant to the right to know, right to delete, and right for disclosure of Personal Information. Subscriber will be responsible for responding to and verifying such requests and communicating with the Consumers submitting such requests.
- Tuxt will provide Subscriber with assistance and cooperation needed to allow Subscriber to respond to any CCPA rights requests.
- USE OF PAYMENT PROCESSORS
- INFORMATION SECURITY
Tuxt represents and warrants that it has implemented and maintains and will at all times maintain a reasonable and commercially appropriate information security program to protect the security, confidentiality and integrity of Consumer Data and the Content.
- RESTRICTIONS AND PROHIBITED USES
- You are prohibited from engaging in any unlawful conduct, including transmitting text messages or Content through the 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.
- You are prohibited from using any data mining, robots, or similar data gathering and extraction methods in connection with the Platform.
- You agree that you will not use the Platform to send “SPAM” to text message recipients or to violate laws governing unsolicited text messages or communications.
- You are prohibited from breaching the security of the Platform or any Services, system resources, accounts, passwords, servers or networks accessible through the Platform and are prohibited from:
- accessing data not intended for you or logging into a server or account to which you are not authorized to access;
- interfering with any other user’s enjoyment and use of the Platform;
- uploading or transmitting any viruses or harmful, disruptive or destructive files;
- attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or
- attempting to interfere with service to any user, host or network, including, without limitation, submitting a virus to, overloading, “flooding”, “spamming”, “mailbombing” or “crashing”.
- Violation of these restrictions may result in denial of or limitations on access by you to the Platform or criminal or civil liability. Tuxt may monitor your conduct, including, without limitation, reviewing incoming messages to determine whether you are violating the terms and conditions of this Agreement.
- subscriber COMMENTS AND FEEDBACK
- Any comments, feedback, notes, messages, ideas, suggestions or other communications (collectively, “Comments”) sent by you to us shall be and remain the exclusive property of Tuxt. Your submission of any such Comments shall constitute an assignment to Tuxt of all-worldwide rights, titles and interests in all copyrights and other intellectual property rights in the Comments. We 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. Tuxt expressly disclaims any interest in any Comments that you are not authorized to submit.
- When subscribing to the Platform, you may be asked to create an account and provide us with specific information including, but not limited to, a valid email address for any authorized users of the Platform. By doing so, you represent that you are the individual who is registering and have the right to provide information through the Platform. In the event that you provide accounts for your authorized users, you further acknowledge that we have no responsibility for verifying the identity of authorized users and determining whether a particular user is authorized to use the Platform.
- Each authorized user of the Platform is responsible for maintaining the confidentiality of the user’s account, as well as all associated information, such as user IDs and passwords. You are responsible for all uses of the Platform by your authorized users, whether or not authorized by a Subscriber. Subscribers may not share their password or account access with any other party, either on a temporary or permanent basis. You agree to immediately notify us of any unauthorized use of your account. If you as a Subscriber are no longer authorized to have access to the Platform, you may not use your user ID and password. Tuxt 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.
- TERM AND PAYMENT
- The term of this Agreement begins on the date indicated on the Subscription Form and will continue month-to-month or for the term specified in the Subscription Form (“Term”) until terminated as provided herein.
- Subscriber shall pay Tuxt the fees (“Fees”) for the Services specified in the Subscription Form. Subscriber shall make all payments in advance hereunder in US dollars according to the payment method specified in the Subscription Form. [How will this work for the pay as you go plan?] Subscriber shall insure that a current payment method is implemented for its account and will continue to do so for the .
- When you purchase a subscription to use the Services (a “Subscription”), we may ask you to supply additional information in the Subscription Form, including, without limitation, your credit card number, the expiration date of your credit card and your billing address (“Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Subscription, you authorize us to provide your Payment Information to third parties so we can complete your subscription and charge your payment method for the type of Subscription you have selected.
If you elect to purchase a Subscription, you will be charged the
annual or monthly Subscription fee (“Subscription Fee”) at the
beginning of your Subscription and each year or month thereafter,
respectively, at the then-current rate. If you elect to purchase an
annual Subscription, we will automatically charge you on the
anniversary of the commencement of the Subscription using the
Payment Information you have provided. If you elect to purchase a
monthly Subscription, we will automatically charge you each month,
on the calendar day corresponding to the commencement of your
Subscription, using the Payment Information you have provided. In
the event your Subscription began on a day not contained in a given
month, we may charge your payment method on the previous day in the
applicable month or such other day as we deem appropriate. For
example, if you started your Subscription on January 31st, Your
next payment date is likely to be February 28th, and your payment
method would be billed on that date.
- By entering into the Agreement and electing to purchase an annual or monthly Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Tuxt. We may also periodically authorize your payment method in anticipation of applicable fees or related charges. Your Subscription continues until cancelled by you or we terminate your access to, or use of, the Services or the Subscription in accordance with this Agreement.
- All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessment. Subscriber is responsible for all sales, use, and excise taxes and any other similar taxes, duties and charges of any kind imposed by federal state or local government or regulatory authority on any amounts payable by Customer hereunder.
- In addition to any other express termination right set forth in this Agreement, we may terminate this Agreement and the Services provided to a Subscriber if the Subscriber fails to pay any amount when due hereunder or if a payment method provided by the Subscriber is invalid, and such failure continues more than thirty (30) days after we have delivered written notice thereof or if the Subscriber breaches its obligations under Section 8 (Confidentiality) or Section 13 (use restrictions).
- Customer may terminate this Agreement upon thirty (30) days’ notice prior to the end of the term specified herein.
- Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach remains uncured sixty (60) days after the non-breaching party provides the breaching party with notice of such breach.
- Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for bankruptcy or otherwise become subject to any proceeding under bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Upon expiration or termination of this Agreement, the Services subscribed to shall automatically terminate. No expiration or termination will affect the Subscriber’s obligation to pay all fees that may have become due before such expiration or termination or entitle Subscriber to any refund.
- If you cancel your account or it is cancelled by us, all your account information will be deleted from our databases and will be removed from the Platform. The timeliness of the deletion is at our sole discretion. Information may continue to be available for some period of time due to delays in propagating such deletion through our web servers and other reasons beyond our immediate control.
- In the event that you cancel your Subscription you are not entitled to a refund for any remaining portion of the Term of the Subscription.
- WARRANTIES AND DISCLAIMERS BY TUXT
- Except as expressly provided otherwise in a written agreement between you and Tuxt, thE Platform and Services accessible through thE Platform are provided “as is” without warranty of any kind. TO THE FULLEST EXTENT PERMITTED BY LAW, TUXT DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, QUIET ENJOYMENT OR SITE AVAILABILITY.
- Without limiting the foregoing, Tuxt makes no warranty that:
- the Services and Platform will meet your requirements;
- the Services and Platform will be uninterrupted, timely, secure, or error-free;
- the results that may be obtained from the use of the Services or Platform will be effective, accurate, or reliable;
- the quality of any Services or Platform obtained or accessible by you through the Platform will meet your expectations; and
- THAT THE SITE CONTENT IS FREE FROM INACCURACIES OR TYPOGRAPHICAL ERRORS, THAT THE CONTENT OF THE SITES IS COMPLETE OR TIMELY, AND THAT any errors in the Services or Platform, or any defects in the Platform and Services will be corrected.
- You understand and acknowledge that:
- Tuxt does not control, endorse, or accept responsibility for any Content, text message, products, or services offered by third parties or Subscribers through the Platform;
- Tuxt makes no representation or warranties whatsoever about any such third parties or Subscribers, their Content, products, or services;
- any dealings you may have with such third parties or Consumers are at your own risk; and
- Tuxt shall not be liable or responsible for any content, products, or services offered by third parties or site Subscribers.
- By sending/receiving text messages through our Platform, you understand that some Content or messages may not be delivered due to various technical, network, and/or other reasons. Tuxt will not be held responsible or liable for undelivered Content or messages.
- The use of the Services or the transmission of content through the platform is done at your own discretion and risk and with your agreement that you will be solely responsible for any damage to your computer system, loss of data, or other harm that results from such activities. Tuxt assumes no liability for any computer virus or other similar software code that is downloaded to your computer from the Platform or in connection with any Services offered through the Platform. No advice or information, whether oral or written, obtained by you from Tuxt or through or from the Platform shall create any warranty not expressly stated in these Terms of Service.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES THAT ARE NOT PERMITTED TO BE EXCLUDED ARE LIMITED TO NINETY (90) DAYS OR SUCH LONGER PERIOD AS APPLICABLE LAW REQUIRES.
- SITE CONTENT MAY CONTAIN INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE SITES OR THEIR CONTENT. BY USING THE SITES, YOU AGREE TO THESE TERMS AND CONDITIONS OF SERVICE, AND YOU AGREE TO USE THE SITES AT YOUR OWN RISK. WE MAY CHANGE THE SITES AT ANY TIME. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE SITES.
- REPRESENTATIONS AND WARRANTIES BY SUBSCRIBER
- You represent and warrant that:
- your text message(s) and Content comply with all applicable laws and regulations, including the TCPA and applicable regulations and industry standards and policies outlined in this Agreement;
- Content transmitted through the Platform is not misleading, unfair or deceptive;
- you hold the necessary rights to permit Tuxt to transmit the text messages and Content; and
- that the use, reproduction, distribution, or transmission of the text message and Content 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.
- LIMITATION OF LIABILITY
- In no event, including, without limitation, negligence, shall Tuxt, 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 the loss of use, data, or profits, whether or not Tuxt has been advised of the possibility of such damages, and on any theory of liability, including, without limitation:
- those resulting from your violation of this Agreement;
- those resulting from your violation of the TCPA;
- THOSE RESULTING FROM YOUR VIOLATION OF ANY LAWS PERTAINING TO PRIVACY, INCLUDING THE CCPA;
- those arising out of or in connection with the use of or the inability to use this Platform or its Services;
- the statements or actions of any third party on or through the Platform;
- any dealings with other Subscribers 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 Platform that are delayed or interrupted; or
- any website referenced or linked to or from this Platform.
- Notwithstanding anything to the contrary in this Agreement, Tuxt 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 Tuxt 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.
- IN NO EVENT WILL TUXT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO TUXT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
- You agree to defend, indemnify and hold harmless Tuxt, 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 Platform or Services, including without limitation any actual or threatened suit, demand, or claim made by any third party against Tuxt or its employees, agents, owners, directors, independent contractors, service providers, or consultants; or
- arising out of or relating to your conduct, your violation of this Agreement, including your representations and warranties, or your violation of the rights of any third party or any law respecting third parties;
- arising out of or relating to your breach of any laws relating to privacy, including the CCPA; and
- arising out of relating to your breach of the Confidentiality provisions in section 8 of this Agreement.
- Without limiting the foregoing, you understand and agree that you will be solely responsible, and fully indemnify Tuxt, for any violations relating to TCPA, Section 3 of this Agreement and applicable regulations resulting from your use of the Platform or 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).
- You agree to jointly and severally indemnify Tuxt and to hold Tuxt 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 Tuxt), arising out the copying, printing, distributing, or transmission of your Content or text message(s).
- We shall provide notice to you promptly of any claim, suit or proceeding. You shall cooperate as fully as reasonably required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without our written consent.
- We may transfer, assign, sub-contract or otherwise deal with our rights and/or obligations under 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 Tuxt.
If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or any portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Terms of Service shall continue in full force and effect. Any failure by Tuxt to enforce or exercise any provision of these Terms of Service or related right shall not constitute a waiver of that right or provision.
- Sections 3-6, 8-10, 13, 16-24 and 26 of this Agreement survive any expiration or termination of this Agreement.
- APPLICABLE LAW
These Terms shall be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions.
- SEVERABILITY. If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provisions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted and the remainder of the provision will continue in effect.
- RESERVATION OF RIGHTS. Tuxt reserves all rights not expressly granted to the Subscriber in this Agreement.
- ENTIRE AGREEMENT. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to the subject matter of the Agreement.
- NOTICES. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and address to the parties at the addresses set forth on the final page of this Agreement (or to such other address that may be designated by the party giving the Notice from time to time). All Notices must be delivered by personal delivery, or nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission). Notices are effective upon receipt by the receiving party.
- FORCE MAJEURE. In no event shall Tuxt be liable to Subscriber, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Tuxt’s reasonable control.
- AMENDMENT AND MODIFICATION. No amendment or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
- COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
- AUTHORIZATION. Tuxt may reference Subscriber in discussions with prospective customers, marketing materials, or its website.
- All disputes regarding these Terms of Service shall be determined pursuant to arbitration on the following terms, namely:
- Any controversy or claim arising out of or relating to this Agreement or relating to the Platform or Services, the parties’ relationship, the enforcement or interpretation of this Agreement, or because of an alleged breach, default or misrepresentation in connection with this Agreement, shall be determined by final, binding and confidential arbitration.
- The arbitration proceedings shall be held and conducted by one or more arbitrators in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS (the “JAMS Rules”), as modified by this Agreement.
- Such arbitration shall take place in Los Angeles County, California, and be initiated by any party in accordance with the JAMS Rules.
- The demand for arbitration shall be made by any party hereto within a reasonable time after the claim, dispute or other matter in question has arisen, and in any event shall not be made after the date when institution of legal proceeding, based on such claim, dispute or other matter in question, would be barred by the applicable statute of limitations. California Code of Civil Procedure Section 1283.05, which provides for certain discovery rights, shall apply to any such arbitration, and such Code Section is incorporated herein by reference.
- Discovery issues shall be decided by the arbitrator(s).
- Post-hearing briefs shall be permitted.
- The arbitrator(s) shall render a decision within twenty (20) days after the conclusion of the hearing(s). In reaching a decision, the arbitrator shall have no authority to change, extend, modify or suspend any of the terms of this Agreement, or to grant an award or remedy any greater than that which would be available from a court under the statutory or common law theory asserted. The arbitrator(s) shall issue a written opinion that includes the factual and legal basis for any decision and award.
- The arbitrator(s) shall apply the substantive law (and the law of remedies, if applicable) of California or federal law, or any of them, as applicable to the claim(s) asserted. Judgment on the award may be entered in any court of competent jurisdiction.
- In addition, either party may seek, from a court of competent jurisdiction in Los Angeles County, provisional remedies or injunctive relief in support of their respective rights and remedies hereunder without waiving any right to arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- The arbitrator shall allocate all costs and expenses of the arbitration (including legal and accounting fees and expenses of the respective parties) to the parties in the proportions that reflect their relative success on the merits (including the successful assertion of any defences);
- The party desiring arbitration shall nominate one arbitrator and shall notify the other parties of such nomination. Such other parties shall within ten (10) days after receiving such notice, nominate an arbitrator and the two arbitrators shall select a chairman of the arbitral tribunal to act jointly with them. If the arbitrators shall be unable to agree in the selection of such chairman, the chairman shall be designated by a Judge of the applicable jurisdiction upon an application by any party;
- If the parties hereto receiving the notice of the nomination of any arbitrator by the party desiring arbitration fail within the said ten (10) days to oppose the nomination of said arbitrator, the nominated arbitrator shall be performed as the arbitrator for the purposes of arbitration under this Agreement. The arbitrator nominated by the party desiring arbitration may proceed alone to determine the dispute in such manner and at such time as he shall think fit and his decision shall, subject to the provisions hereof, be binding upon the parties; and
- Notwithstanding the foregoing, any arbitration may be carried out by a single arbitrator if the parties hereto so agree, in writing. In this event, the provisions of this paragraph shall apply mutatis mutandis; to the single arbitrator.