CloudTXT Terms of Service
Last Updated: June 5, 2023
CloudTXT may update these Terms of Service at any time, in its sole discretion. CloudTXT will notify you of changes to these Terms of Service by posting the changes to the CloudTXT Website, by email, or through other communications. If you continue to use CloudTXT’s Services after CloudTXT posts updated Terms of Service, you agree to be bound by those updated terms.
SECTION 12 - “DISPUTE RESOLUTION” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS.
“Applicable Laws” means all applicable laws, rules, and regulations, including the Telephone Consumer Protection Act (TCPA), the Controlling the Assault of Non-Solicited Pornography and Marketing Acts (CAN-SPAM), the Florida Telephone Solicitation Act (FTSA), the Florida Telemarketing Act (FTA), and all other federal and state applicable laws, rules, and regulations relating to data privacy and consumer protection.
“Confidential Information” means all confidential information disclosed by a party to the other party, whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the circumstances. Confidential Information includes business and marketing plans, technology and technical information, product plans and designs, pricing information, and business processes. For clarity, CloudTXT’s software and the CloudTXT Website are CloudTXT’s Confidential Information.
“CTIA Policies” means the policies and rules of the Wireless Association (CTIA), including the CTIA Messaging Principles and Best Practices Guidelines, and the CTIA Short Code Monitoring Handbook, and any similar generally accepted industry policies or rules adopted by carriers, or other practices enforced by carriers.
“Customer” or “you” refers to the individual or entity using the CloudTXT Website Services.
“Customer Data” means any data, information (including personal information), Subscriber Lists, content (including marketing and promotions), or other materials submitted, posted, transmitted, or otherwise provided by or on behalf of a Customer, its service providers, or its End Users in connection with the Services provided by CloudTXT. For clarity, Customer Data excludes, in all cases, CloudTXT’s Website Services.
“End User” means an individual who interacts with Customer, its affiliates, or agents in connection with the CloudTXT Website Services.
“End User Data” means personal information of your End Users that is included in your Customer Data.
“End User Terms” means Customer’s terms of service between the Customer and End Users.
“Fees” means all fees related to your purchase and use of the CloudTXT Website Services, as set forth in your account or in a relevant Service Order.
“Intellectual Property Rights” means, on a worldwide basis, any and all: (a) rights associated with works of authorship, including copyrights, moral rights, database rights and mask works; (b) trademarks; (c) trade secret rights; (d) patents, designs, algorithms and other industrial property rights; (e) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (f) registrations, initial applications, renewals, extensions, continuations, divisions or reissues of the foregoing.
“Payment Information” means the payment information provided through your CloudTXT account, which may include your credit card number, the expiration date of your credit card, your email and postal addresses for billing and notification, and additional information to verify your identity.
“Payment Method” means the credit card, bank account, or other payment method represented by your Payment Information.
“CloudTXT Website Services” means the CloudTXT Website, the CloudTXT software and services provided via the CloudTXT Website or the Shopify App Store, related documentation, and any additional services related to the foregoing as set forth in a Service Order (for example, online customer management services).
“CloudTXT Website” means the website located at https://www.cloudtxt.com.
“Service Order” means an account order form for the purchase of CloudTXT Website Services executed by CloudTXT and a Customer.
“Subscriber List” means information about individuals which may be used for SMS messaging, including names, phone numbers, and whether the individual has opted in or out.
“Taxes” means any taxes, levies, duties, or similar governmental assessments of any nature (including, for example, value-added, sales, use, or withholding taxes) assessable by any applicable taxing authorities.
Under these Terms of Service and any relevant Service Order, the words “include” and “including” mean “including but not limited to.”
2. Accessing the CloudTXT Website Services
2.1 Eligibility. To use the CloudTXT Website Services, you must be 18 years of age or older, capable of forming a binding contract with CloudTXT, and not otherwise barred from using the CloudTXT Website Services under Applicable Laws. If you do not meet the requirements set forth in this Section, you may not use the CloudTXT Website Services. If you access or use the CloudTXT Website Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity to these Terms of Service, and that by accepting these Terms of Service, you are doing so on behalf of that entity. If you act as an agency on behalf of a Shopify merchant, any act or omission of that merchant that would be a breach of these Terms of Service will be deemed a breach by you, and you will enter a written agreement with such merchant that is at least as protective of CloudTXT as these Terms of Service.
3. Use of the CloudTXT Website Services
3.1 Your Compliance with Applicable Laws. You will comply with all Applicable Laws, CTIA Policies, and the CloudTXT Content Policy in connection with your use of the CloudTXT Website Services, including but not limited to the TCPA, CAN-SPAM, FTCA, FTA, and all relevant implementing rules, orders, and regulations of the Federal Trade Commission and Federal Communications Commission. You are solely responsible for: (a) collecting and maintaining your Subscriber Lists and other Customer Data in accordance with Applicable Laws and CTIA Policies; (b) providing notice and obtaining consent from your End Users as required under Applicable Laws for your use of the CloudTXT Website Services, including sending text messages; (c) ensuring that all marketing and promotional activities that you conduct through the CloudTXT Website Services comply with Applicable Laws, CTIA Policies, and the CloudTXT Content Policy, including the content of your messages and campaigns, and any contests, raffles, sweepstakes, or similar activities; and (d) providing End User Terms to End Users. To the extent CloudTXT provides advice, guidance, templates, or suggestions via the CloudTXT Website or otherwise, the foregoing are provided solely for convenience and CloudTXT does not assume any responsibility for your obligations under this Section, and you remain solely responsible for your own compliance. You should confer with your own independent legal counsel to determine whether marketing activities and content are sufficient for your purposes and meet your obligations under Applicable Laws. If CloudTXT reasonably determines that a Customer may be in breach of this Section, Customer will promptly (and no later than within twenty-four (24) hours of receipt of notice) make available Customer leadership for a meeting with CloudTXT to discuss the issue.
3.2 End User Terms. At all times while you are using the CloudTXT Website Services, you will publicly post End User Terms. You will be solely responsible for ensuring that all of your End Users agree to such End User Terms before interacting via the CloudTXT Website Services. You will link to the End User Terms at each time and place in which you collect approval for your End Users to subscribe to text message marketing, and you will display those links in a style and manner that complies with Applicable Laws and any other reasonable requirements communicated by CloudTXT. CloudTXT makes no representation or warranty regarding the End User Terms. YOU EXPRESSLY AGREE THAT CloudTXT IS NOT PROVIDING LEGAL ADVICE AND NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED BY YOUR USE OF THE END USER TERMS. You further accept full legal responsibility for the End User Terms and acknowledge that you have been advised to obtain independent legal counsel before implementing the End User Terms. If you would like to request updates to the form of End User Terms provided by CloudTXT, you will provide all suggested modifications by written notice at least thirty (30) days before such modifications go into effect. CloudTXT will use commercially reasonable efforts to accommodate any such requested modifications, provided that CloudTXT may reject any modifications that CloudTXT reasonably determines would create a legal risk to CloudTXT or its other customers.
3.3 Insurance. At all times while these Terms of Service are in effect, you will, at your own cost and expense, maintain an insurance policy of the type and in the minimum amounts reasonably necessary and appropriate for your marketing and promotional activities with a reputable insurance carrier duly qualified in all relevant jurisdictions. Upon CloudTXT’s request, you will provide a certificate of insurance. You acknowledge that the best practice for Customers is to obtain a policy with a coverage rider expressly providing for the coverage of TCPA claims and a “most favored jurisdiction” provision.
3.4 Third-Party Services and Integrations. You may not use the CloudTXT Website Services in connection with a third-party integration unless it is officially supported by CloudTXT, as described on the CloudTXT Website. Please contact CloudTXT support if you have questions about other third-party integrations. If you use the CloudTXT Website Services in connection with a third-party service, whether through an integration offered by CloudTXT or otherwise, you are solely responsible for your use of such third-party service, including any disclosure or other processing of your Customer Data in connection with such third-party service. Any use of a third-party service is at your own risk. CloudTXT will have no liability for your use of any third-party service in connection with the CloudTXT Website Services, and disclaims all responsibility for the functionality, security, availability, and operation of any third-party service. You will provide advance written notice to CloudTXT if you require assistance with suspending or terminating an integration between a third-party service and the CloudTXT Website Services.
3.5 Updates to the CloudTXT Website Services. CloudTXT may, in its sole discretion, at any time, with or without notice, and without liability to you, make updates to the CloudTXT Website Services, and change or discontinue the availability of some or all functionality of the CloudTXT Website Services. CloudTXT may provide notice of material changes to the CloudTXT Website Services by posting to the CloudTXT Website or by email. It is your responsibility to check the CloudTXT Website periodically to be informed of any changes. Your continued use of the CloudTXT Website Services following any update or change will be deemed your acceptance of such modifications.
3.6 Beta Features. CloudTXT may, in its sole discretion, invite you to use pre-release or beta features that are not yet generally available. Access to such features may be conditioned upon additional terms and conditions. Any beta features will be considered CloudTXT’s Confidential Information. CloudTXT MAKES NO REPRESENTATIONS OR WARRANTIES THAT BETA FEATURES WILL FUNCTION, AND ANY USE OF BETA FEATURES WILL BE AT OUR OWN RISK.
3.7 Restrictions. In connection with Customer’s use of the CloudTXT Website Services, Customer will not, and will not authorize or encourage any third party to, directly or indirectly:
- Violate Applicable Laws, CTIA Policies, or the Cloud TXT Content Policy;
- Operate, administrate, run, or distribute materials related to an illegal lottery or other promotion in violation of Applicable Laws regarding gambling, contests, sweepstakes, and gaming;
- Permit any End User under the age of 18 years old to use the CloudTXT Website Services;
- Engage in any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Distribute spyware, adware, or other harmful programs;
- Sell, transfer, lease, sublicense, loan, distribute, or otherwise transfer to third parties the CloudTXT Website Services or any portion thereof;
- Obscure, alter, or remove any notice of Intellectual Property Rights or other proprietary rights appearing on or contained in the CloudTXT Website Services;
- Modify, alter, copy, adapt, translate, or create derivative works based on the CloudTXT Website Services;
- “Frame” or “mirror” any content forming part of the CloudTXT Website Services;
- Reverse engineer, decompile, disassemble, decode, or otherwise attempt to derive or determine the source code of the CloudTXT Website Services, except to the extent expressly permitted by Applicable Laws and then only upon advance written notice to CloudTXT;
- Bypass, delete, or disable any copy protection mechanisms or security mechanisms of the CloudTXT Website Services;
- Attempt to gain unauthorized access to, or disrupt the integrity, performance, or security of the CloudTXT Website Services;
- Use or access to CloudTXT Website Services to monitor the availability, performance, or functionality of the CloudTXT Website Services, CloudTXT’s other products or services, or any portion of the foregoing, or for any similar benchmarking purposes;
- Access the CloudTXT Website Services to build a competitive product or service.
3.8 Usage Information. The CloudTXT Website Services may automatically collect information about your usage of the CloudTXT Website Services. You agree that CloudTXT may use information about your usage of the CloudTXT Website Services internally for any purpose, including to improve its products and services. You agree that CloudTXT may use aggregated or deidentified information about your usage of the CloudTXT Website Services in our marketing and promotional materials, provided that such information cannot reasonably be used to identify you or any End User.
3.9 Blog Comments and Posts. CloudTXT may provide various open communication tools on our website, such as blog comments, blog posts, public chat, forums, message boards, newsgroups, product ratings and reviews, various social media services, etc. You understand that generally CloudTXT does not pre-screen or monitor the content posted by users of these various communication tools, which means that if you choose to use these tools to submit any type of content to the CloudTXT Website, then it is your personal responsibility to use these tools in a responsible and ethical manner. By posting information or otherwise using any open communication tools as mentioned, you agree that you will not upload, post, share, or otherwise distribute any content that:
- Is illegal, threatening, defamatory, abusive, harassing, degrading, intimidating, fraudulent, deceptive, invasive, racist, or contains any type of suggestive, inappropriate, or explicit language;
- Infringes on any trademark, patent, trade secret, copyright, or other proprietary right of any party;
- Contains any type of unauthorized or unsolicited advertising;
- Impersonates any person or entity, including any CloudTXT employees or representatives; OR
- Violates Applicable Laws.
3.10 Unsubscribing. If you wish to unsubscribe from receiving text marketing messages and notifications from CloudTXT, reply with “STOP” to any mobile message sent from us or use the unsubscribe link we provided you within any of our messages. You understand and agree that alternative methods of opting out, such as using alternative words or requests, will not be considered a reasonable means of opting out. We do not charge for the service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. For any questions, please text HELP to the number you received the messages from. You can also contact us at info@CloudTXT.com for more information.
3.11 Modification of any Telephone Number or Short Code. CloudTXT has the right to modify any telephone number or short code we use to operate the service at any time. You will be notified on such occasions. You agree that any messages you send to a telephone number or short code we have changed, including any STOP or HELP requests, may not be received, and we will not be liable for honoring requests made in such messages.
4. Fees and Payment Terms
4.1 Fees Generally. You are responsible for and will pay all Fees incurred under your account and, if applicable, all Fees set forth in a Service Order. The applicable Fees for your use of the CloudTXT Website Services will be set forth in your account, unless otherwise set forth in a Service Order. CloudTXT may update or modify the applicable Fees and rates for the CloudTXT Website Services unless otherwise set forth in a Service Order, and provided that CloudTXT will provide reasonable advance notice of such changes.
4.2 Subscriptions. CloudTXT may make the CloudTXT Website Services available on a subscription basis. By purchasing a subscription, you agree that your subscription will automatically renew until canceled in accordance with these Terms of Service, and that you will pay all recurring Fees for your subscription until it is canceled. Unless otherwise set forth in a Service Order, you may upgrade, downgrade, or cancel your subscription as set forth in your account. Certain subscription packages may only be available to Customers who enter a Service Order, and changes to those packages may only be requested by contacting CloudTXT support. Cancellations and downgrades will not take effect until the start of the following subscription period. Requests for cancellation or downgrade made by contacting CloudTXT support must be initiated at least five (5) days before the end of the current subscription period. If you cancel your subscription as set forth in this Section, you will continue to have access to the CloudTXT Website Services until the end of the final subscription period.
4.3 Transaction-Based Fees. Certain features of the CloudTXT Website Services may require CloudTXT to remit payments to you. The Fees for such features may be determined as a percentage of the relevant transaction, and may also include relevant third-party payment processor fees, as further set forth in your account or a relevant Service Order. If you use such features, you will provide all Payment Information required to enable CloudTXT to transfer relevant payments to you. CloudTXT will not be responsible for any consequences if you fail to provide the required Payment Information. CloudTXT may use a third-party payment processor for all transfers of payments to you. Before using relevant features of the CloudTXT Website Services, you are required to agree to such third-party payment processor’s terms of service. You authorize such third-party payment processor to directly remit to CloudTXT any Fees owed for the relevant transactions and then pay the remainder to you. You further agree that CloudTXT has no responsibility for any errors, negligence, or misconduct of such third-party payment processor, and that you will release and hold CloudTXT harmless from the foregoing.
4.4 Promotions and Discounts. CloudTXT may make available promotions and discounts from time to time. All promotions and discounts are subject to any terms and conditions communicated to you at the time of purchase or in a Service Order, and do not automatically renew or roll over. Following the expiration of a promotion or discount, regular Fees and billing terms will apply.
4.5 Your Payment Method. CloudTXT may ask you to provide Payment Information through your account. At all times, you will ensure that your Payment Information and Payment Method are correct, up to date, and valid, and you are solely responsible for your failure to do so, including if you incur overdraft fees or fees related to a declined payment. You may make changes to your Payment Information and update your Payment Method through your account. In accordance with Applicable Laws, CloudTXT may update your Payment Information if such information is provided by your financial institution.
4.6 Payment Processing. CloudTXT will charge you for Fees on the billing cycle described in your account using the Payment Method you provide through your account, unless otherwise set forth in a Service Order. CloudTXT may use a third-party payment processor. By providing your Payment Information through your account: (a) you authorize CloudTXT and its third-party payment processor to charge your Payment Method for all relevant Fees when due, including for any recurring Fees for your subscription and when you reach your charge cap; (b) you agree that CloudTXT’s third-party payment processor may store your Payment Information; and (c) you agree that CloudTXT’s third-party payment processor may authenticate your Payment Information and Payment Method, including by running one or more payment authorization checks (for example, by charging an amount less than one dollar and reversing that amount). If CloudTXT and its third-party payment processor are unable to charge you using the Payment Method associated with your account for any reason (including expiration or insufficient funds), you remain responsible for any uncollected amounts, and CloudTXT may attempt to charge your Payment Method again, as you may update your Payment Information.
4.7 Refunds. TO THE EXTENT PERMITTED BY LAW, YOUR PURCHASE IS FINAL AND CloudTXT HAS NO OBLIGATION TO ISSUE A REFUND. IF YOU CANCEL OR CHANGE YOUR SUBSCRIPTION AS PERMITTED IN THIS SECTION, YOU WILL BE RESPONSIBLE FOR ALL FEES INCURRED FOR THE THEN-CURRENT SUBSCRIPTION PERIOD. Without limiting the foregoing, if something unexpected happens in the course of completing a transaction, we reserve the right to cancel that transaction for any reason. If we cancel a transaction, we will refund any payment you have already remitted to us for that transaction. We recognize that exceptional situations may occur, and we reserve the right to issue refunds in our sole discretion.
4.8 Late Payments. Late Fee payments will accrue interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If your Payment Method is declined and you fail to resolve the issue within five (5) business days after CloudTXT informs you, your payment will begin to accrue interest under this Section. If CloudTXT must initiate a collections process to recover unpaid Fees, then CloudTXT will be entitled to recover from Customer all costs of such collections process, including reasonable attorney’s fees.
4.9 Taxes. The Fees do not include Taxes. You are responsible for paying all Taxes associated with your use of the CloudTXT Website Services. If CloudTXT has the legal obligation to pay or collect Taxes for which you are responsible, then CloudTXT will invoice you and you will pay for that amount, unless you provide CloudTXT with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, CloudTXT is solely responsible for Taxes assessable against CloudTXT based on its income, property, and employees.
4.10 Free Trial. CloudTXT may make certain CloudTXT Website Services available to you for evaluation purposes free of charge. Such free trial is subject to any terms and conditions communicated to you at the time you initiate the free trial, including any limitations on total messaging or other features. Unless otherwise set forth in a Service Order, CloudTXT may terminate a free trial at any time in its sole discretion.
4.11 Billing Disputes. If you would like to dispute any invoice or charge received from CloudTXT, you must provide CloudTXT with written notice within fourteen (14) days of delivery of the relevant invoice or billing statement. If you fail to notify CloudTXT of a billing issue or dispute as required under this Section, you waive your right to such dispute. Any billing dispute is further governed by Section 12 (Dispute Resolution).
5. Intellectual Property Rights
5.1 License to Use the CloudTXT Website Services. Subject to these Terms of Service, CloudTXT grants you a limited, revocable, personal, non-sublicensable, non-transferable, non-exclusive license to use the CloudTXT Website Services solely for your own marketing and promotional activities, and solely in the manner permitted under these Terms of Service. This license will immediately terminate upon termination of your account or these Terms of Service.
5.2 License to Customer Data. Customer grants CloudTXT a non-exclusive, non-transferable (except as set forth in Section 13.3 (Assignment)), worldwide, royalty-free license to host, copy, process, transmit, and otherwise use Customer Data for the purpose of providing the CloudTXT Website Services and as otherwise expressly permitted under these Terms of Service.
5.3 Marketing and Publicity Rights. CloudTXT may use your name and logo to identify you as a CloudTXT customer in CloudTXT marketing and promotional materials, including on the CloudTXT Website and in case studies. In addition, CloudTXT may use examples of messages and other marketing content from you or your End Users in CloudTXT’s marketing and promotional materials, provided that such examples could not reasonably be used to identify any End User. If you object to a particular use of your name or branding and notify CloudTXT in writing, CloudTXT will use commercially reasonable efforts to accommodate your requests to change or remove the relevant use. Any use of your name and marks will inure to your benefit.
5.4 Reservation of Rights. CloudTXT owns all rights, title, and interest, including all Intellectual Property Rights, in and to the CloudTXT Website Services and all other CloudTXT products, services, and marks and branding. As between you and CloudTXT, you own all rights, title, and interest, including all Intellectual Property Rights, in and to your Customer Data. Except as expressly set forth in this Section, no rights are granted in or to either party’s Intellectual Property Rights.
5.5 Feedback. If you provide any feedback regarding the CloudTXT Website Services or other CloudTXT products or services, you agree that CloudTXT will be free to use such feedback for any purpose, including to improve the CloudTXT Website Services and other CloudTXT products and services, and to develop new products and services.
6. Customer Data
6.1 Compliance of Customer Data with Applicable Laws. You will only upload, transmit, store, and otherwise process Customer Data in connection with the CloudTXT Website Services if: (a) such activities comply with all Applicable Laws and CTIA Policies; (b) all consents required by Applicable Laws and CTIA Policies have been obtained by you or on your behalf; and (c) you have all other rights, permissions, and consents required for your and CloudTXT’s use of Customer Data as contemplated by these Terms of Service and any relevant Service Order. With respect to any Subscriber List or portion of a Subscriber List collected or obtained outside of the CloudTXT Website Services, CloudTXT may require that you certify and provide supporting materials that such Subscriber List was collected in compliance with Applicable Laws and CTIA Policies before it is uploaded or used in connection with the CloudTXT Website Services. You will implement all opt out requests of End Users (including requests received by email, integration partners, or other channels), and you will immediately convey any such opt out requests to CloudTXT. In addition, you will maintain an internal “do not call” list documenting all End Users who have opted out of your marketing. If you determine that an End User opt out request was not immediately provided to CloudTXT, you will notify CloudTXT and promptly provide all details and logs reasonably requested by CloudTXT.
6.3 Retention of Customer Data. After your account is terminated or you otherwise stop using the CloudTXT Website Services, CloudTXT may retain Customer Data including End User Data as long as required to comply with Applicable Laws and CTIA Policies. Provided such termination was not due to your breach of these Terms of Service or a Service Order, you may contact CloudTXT support within thirty (30) days following termination and CloudTXT will provide reasonable assistance in obtaining a copy of your Subscriber Lists from CloudTXT’s systems. Notwithstanding anything in this Section or otherwise, CloudTXT has no obligation to store or backup your Customer Data following termination of your account, and you are solely responsible for backing up your Customer Data.
6.4 Prohibited Data. Customer Data may not include any of the following categories of data, and you will not upload, transmit, store, or otherwise process any data in connection with the CloudTXT Website Services in violation of this Section: (a) sensitive personal information as defined under the California Privacy Rights Act (CPRA) or other Applicable Laws; (b) personal health information as defined under the Health Insurance Portability and Accountability Act (HIPAA) or Health Information Technology for Economic and Clinical Health Act; (c) personal information of children as defined under the Children’s Online Privacy Protection Rule (COPPA) or similar Applicable Laws related to children’s privacy and data; (d) nonpublic personal information subject to the Gramm-Leach-Bliley Act (GLBA) or similar Applicable Laws related to financial privacy and data; and (e) government identifiers that uniquely identify a natural person such as a social security number or passport number. The CloudTXT Website Services are not intended for processing any of the foregoing prohibited data categories.
7. Confidential Information
7.1 Protection of Confidential Information. Each party agrees to maintain Confidential Information in confidence and not to disclose it or any portion of it, except to its employees, consultants, and affiliates who have a need to know such Confidential Information and are bound by obligations of confidentiality similar to these Terms of Service. Each party will use the same care and discretion to avoid disclosure, publication, or dissemination of the Confidential Information as it uses with its own confidential or proprietary information, but in no event less than reasonable care. Each party may only use the Confidential Information of the other party to perform its obligations and exercise its rights under these Terms of Service. Neither party will have liability to the other with regard to any Confidential Information that is required to be disclosed by law or court order, provided that the party that received the Confidential Information (“receiving party”) will provide reasonable advance notice (to the extent legally permitted) to enable the party that provided the Confidential Information (“disclosing party”) to seek a protective order or otherwise prevent such disclosure.
7.2 Exclusions. Notwithstanding anything else, Confidential Information will not include any information that the receiving party can demonstrate: (a) at the time of disclosure is publicly available or becomes publicly available through no act or omission of the receiving party; (b) has been disclosed to the receiving party by a third party who is not under, and to whom the receiving party does not owe, an obligation of confidentiality with respect thereto; or (c) has been independently acquired or developed by the receiving party without use of the Confidential Information of the disclosing party.
8. Representations and Warranties
8.1 Mutual Warranties. Each party represents and warrants that: (a) it has the right, power, and authority to enter into these Terms of Service and any relevant Service Order; and (b) entering these Terms of Service and the performance of the obligations and duties hereunder does not and will not violate any agreement to which it is a party or is otherwise bound.
8.2 Customer Warranties. Customer represents and warrants that: (a) Customer will comply with all Applicable Laws and CTIA Policies in connection with its use of the CloudTXT Website Services, including sending text messages and conducting marketing and promotional activities; (b) Customer Data, including the content of all campaigns and all information about End Users, will not violate any third-party Intellectual Property Rights, publicity rights, or privacy rights; and (c) Customer has all rights, permissions, and consents required to upload, transmit, store, and otherwise process Customer Data in connection with its use of the CloudTXT Website Services, and to grant CloudTXT the rights expressly set forth these Terms of Service.
9.1 Customer Indemnification. To the extent permitted by Applicable Law, you will indemnify, hold harmless, and defend at your expense, CloudTXT and any of its officers, directors, employees, contractors, agents, and affiliates, from any and all third-party claims, actions, proceedings, and suits brought against any of the foregoing indemnified parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses), or other losses incurred by the indemnified parties, arising out of or relating to: (a) your breach of these Terms of Service, including any use of the CloudTXT Website Services in violation of these Terms of Service; (b) your violation of Applicable Laws, CTIA Policies, or any third-party Intellectual Property Rights, publicity rights, or privacy rights in connection with the CloudTXT Website Services; (c) Customer Data that is uploaded, transmitted, stored, or otherwise processed by you or on your behalf in connection with the CloudTXT Website Services; and (d) your End User Terms, as updated from time to time. You will not compromise or settle any indemnified claim in any manner, nor make any admission of liability, without CloudTXT’s prior written consent, which CloudTXT may provide in its sole discretion. CloudTXT reserves the right, at its own expense, to participate in the defense and control of any matter subject to indemnification by you; provided, however, that if CloudTXT reasonably determines that Customer is unwilling or unable to defend CloudTXT or another indemnified party’s interests, then CloudTXT may assume the defense against any claims at Customer’s sole expense.
9.2 Carrier Fines. Notwithstanding anything to the contrary in these Terms of Service, Customer agrees that if CloudTXT is fined by a carrier or regulatory body as a result of Customer’s failure to comply with Applicable Laws or CTIA Policies, CloudTXT may charge Customer for, and Customer will pay, the amount of such fine.
10. Disclaimer of Warranties; Limitation of Liability
THE TERMS OF THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
10.1 DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 (REPRESENTATIONS AND WARRANTIES), THE CloudTXT WEBSITE SERVICES AND END USER TERMS ARE PROVIDED “AS IS”, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CUSTOMER MAY NOT RELY UPON THE PROVISION OF THE END USER TERMS OR ANY OTHER TEMPLATES VIA THE CloudTXT WEBSITE SERVICES AS A REPRESENTATION THAT THE END USER TERMS OR SUCH OTHER TEMPLATES ARE SUFFICIENT FOR CUSTOMER’S PURPOSES OR MEET CUSTOMER’S OBLIGATIONS UNDER APPLICABLE LAWS. CloudTXT MAKES NO WARRANTY THAT THE CloudTXT WEBSITE SERVICES WILL ALWAYS BE UNINTERRUPTED, SECURE, OR ERROR-FREE, OR THAT THE CloudTXT WEBSITE SERVICES WILL MEET YOUR REQUIREMENTS. CloudTXT TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR CUSTOMER DATA, OR LOSS OF DATA OR DAMAGE TO YOUR COMPUTER OR OTHER SYSTEMS THAT RESULTS FROM YOUR USE OF THE CloudTXT WEBSITE SERVICES. CUSTOMERS ARE SOLELY RESPONSIBLE FOR BACKING UP CUSTOMER DATA.
10.2 LIMITATION OF LIABILITY. CloudTXT WILL HAVE NO LIABILITY FOR YOUR LOST REVENUES OR PROFITS, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES RESULTING FROM YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE CloudTXT WEBSITE SERVICES OR THE END USER TERMS PROVIDED OR HOSTED BY CloudTXT, OR OTHERWISE IN CONNECTION WITH THESE TERMS OF SERVICE, EVEN IF CloudTXT HAS BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A LIMITED REMEDY SET FORTH THESE TERMS OF SERVICE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CloudTXT’S TOTAL CUMULATIVE LIABILITY TO YOU FOR ALL CLAIMS RELATING TO THE CloudTXT WEBSITE SERVICES OR THESE TERMS OF SERVICE WILL NOT EXCEED THE TOTAL FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.
10.3 Third-Party Disputes. CloudTXT has no responsibility for any dispute between a Customer and its End Users. CloudTXT will have no liability for any damages of any kind, under any theory of law, that relate to a Customer’s relationship with its End Users, even if CloudTXT has been advised of the possibility of such damages.
11.1 Termination by CloudTXT. Unless otherwise expressly set forth in a Service Order, CloudTXT may immediately limit, terminate, or suspend your access to the CloudTXT Website Services, or terminate these Terms of Service, at any time, without liability to you, and at CloudTXT’s sole discretion. Without limiting the foregoing and notwithstanding anything to the contrary, CloudTXT may terminate your right to use the CloudTXT Website Services or these Terms of Service at any time, without liability to you, if CloudTXT determines in its sole discretion that: (a) you are in breach of these Terms of Service or a Service Order, including your payment obligations; (b) you fail to provide up-to-date Payment Information and a valid Payment Method and CloudTXT is unable to charge you for Fees due and payable for your use of the CloudTXT Website Services; (c) a carrier or third-party aggregator of carrier services prohibits or restricts CloudTXT from providing the CloudTXT Website Services to you, including if a carrier determines that you have violated the carrier’s content policies; (d) your use of the CloudTXT Website Services poses a security or legal risk to CloudTXT or its other customers; or (e) you have filed for bankruptcy, you are dissolving your business, or you are engaging in a similar legal process. If your account is terminated by CloudTXT under this Section, all relevant Service Orders then in effect will also be terminated.
11.2 Consequences of Termination. Upon termination of these Terms of Service or your account, all rights and licenses granted to you by CloudTXT hereunder will immediately terminate, you will immediately cease use of the CloudTXT Website Services and return or destroy all Confidential Information of CloudTXT in your possession or control. In addition, all Fees owed pursuant to Section 4 (Fees and Payment Terms) will become immediately due and payable.
11.3 Survival. This Section and any Sections which by their nature are intended to survive, will survive termination, including: 3 (Use of the CloudTXT Website Services), 4 (Fees and Payment Terms), 5.3 (Marketing and Publicity Rights), 5.4 (Reservation of Rights), 5.5 (Feedback), 6.3 (Retention of Customer Data), 7 (Confidential Information), 8 (Representations and Warranties), 9 (Indemnification), 10 (Disclaimer of Warranties; Limitation of Liability), 12 (Dispute Resolution), and 13 (General).
12. Dispute Resolution
12.1 General. In the interest of resolving disputes between you and CloudTXT in the most expedient and cost-effective manner, you and CloudTXT agree that any dispute arising out of or in any way related to these Terms of Service or a relevant Service Order will be resolved by binding arbitration before one arbitrator in Tampa, Florida. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Service or a relevant Service Order. Judgment on the Award may be entered in any court having jurisdiction. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney’s fees of the prevailing party. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND CloudTXT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THESE TERMS OF SERVICE AND ANY RELEVANT SERVICE ORDER WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
12.2 Arbitrator. Any arbitration between you and CloudTXT will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting CloudTXT. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
12.3 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). CloudTXT’s address for Notice is set forth in Section 13. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice is received, you or CloudTXT may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or CloudTXT must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
12.4 No Class Actions. YOU AND CloudTXT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and CloudTXT agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
13.2 Notice. Any notice required or permitted to be made under these Terms of Service will be in English and in writing. Notice will be deemed to have been fully given and received: (a) when delivered personally; (b) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) one business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (d) to the extent email notice is expressly permitted in these Terms of Service, when delivered. All notices to Customers may be made to the mailing or email address associated with the Customer’s account or as set forth in a relevant Service Order. CloudTXT may also provide notices or messages about the CloudTXT Website Services or these Terms of Service by posting to the CloudTXT Website. All notices to CloudTXT will be made to: CloudTXT LLC, 2202 N. Westshore Boulevard, Suite 200 - #3046, Tampa, FL 33607, with a copy via email to info@CloudTXT.com.
13.3 Assignment. You may not assign or transfer any of your rights or obligations under these Terms of Service without CloudTXT’s prior written consent. Any attempt by you to assign or transfer these Terms of Service without such consent will be null and void. CloudTXT may freely assign or transfer any of its rights or obligations under these Terms of Service without restriction; provided, however, that the CloudTXT Website Services will continue to operate as specified in these Terms of Service. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
13.4 Governing Law. These Terms of Service will be governed by and construed under the Federal Arbitration Act, federal arbitration law, and the laws of the State of Florida without regard to its conflict of laws principles.
13.5 Severability. If any term or condition of these Terms of Service is declared illegal or otherwise unenforceable, it will be severed from the remainder of these Terms of Service without affecting the legality or enforceability of the remaining portions.
13.6 Waiver. CloudTXT’s failure to enforce any right or provision of these Terms of Service will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of CloudTXT. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise.
13.7 Force Majeure. Without limiting any other provision in these Terms of Service, CloudTXT is not responsible or liable to Customer for delay or failure to perform its obligations in the event that any of CloudTXT’s operations or activities are affected by any cause or event beyond the sole and reasonable control of CloudTXT (as determined by CloudTXT in its sole discretion), including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, internet service failure, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.
13.8 Independent Contractors. Neither you nor CloudTXT will be deemed an agent of the other, and the relationship between you and CloudTXT is that of independent contractors.
13.9 Support. For Customer support, please email info@CloudTXT.com.