SENDPLEX TERMS AND CONDITIONS
Last Revised: October 1, 2018
1. ACCEPTANCE OF TERMS AND CONDITIONS
Sendplex, LLC provides its service to You, subject to the following Terms and Conditions (“T&C"), which may be updated without any notice. You (also referred to as “Licensee”) can review the most current version of the T&C at any time by visiting this page. Sendplex and Licensee may be referred to in the T&C collectively as “Parties” or individually as a “Party.” Sendplex and Licensee may agree to terms that are additional to or different from those contained in this T&C, if the additional or different terms are 1) in writing and 2) signed by both Licensee and Sendplex, The Parties agree that this T&C, any additions or edits to it, as well as any supporting documents such as a Scope of Work (“SOW”), form a single Agreement.
2. DESCRIPTION OF SERVICE
Sendplex provides customers with access to a rich collection of resources, including various communications tools, mobile services, search services, personalized content and branded programming through its network of properties which may be accessed through any various mediums or devices now known or hereafter developed (the “Service" of “Services”). The Services may be ordered through Sendplex.com. Alternatively, Services may be ordered from Sendplex directly, in which circumstance Licensee and Sendplex will enter into a SOW detailing the Services provided.
3. PAYMENT AND PROCESSING
Sendplex may make available to You various payment processing methods to facilitate the purchase of Services from Sendplex. You must abide by any relevant terms and conditions or other legal agreement, whether with Sendplex or a third party, that governs Your use of a given payment processing method. Sendplex may add or remove payment processing methods at its sole discretion and without notice to You. You agree to pay for any Services that You order and You agree that Sendplex may charge Your credit card or other form of payment that You indicate for any Services ordered, along with any additional amounts (including any taxes). You agree that You are solely responsible for all fees associated with purchases You make on Sendplex.
Sendplex displays the pricing for Services on Sendplex.com, within Your online Account Center, or on an SOW negotiated between Licensee and Sendplex. Pricing and availability of all Services are subject to change at any time.
You are responsible for any Taxes, where applicable, and must pay Sendplex for Services without any reduction for Taxes. If Sendplex is obligated to collect or pay Taxes, the Taxes will be invoiced to You, unless You provide Sendplex with a valid tax exemption certificate authorized by the appropriate taxing authority. If You are required by law to withhold any Taxes from Your payments to Sendplex, You must provide Sendplex with an official tax receipt or other appropriate documentation to support such payments. “Taxes" means any duties, customs fees, or taxes (other than Sendplex’s income tax) associated with the sale of Services, including any related penalties or interest.
Payments shall be in United States dollars.
If the Licensee’s procedures require that an invoice be submitted against a purchase order before payment can be made, the Licensee will be responsible for issuing such purchase order 5 days before the payment due date and must be setup with Sendplex ahead of time to receive invoices.
4. SUPPORT SERVICES
Sendplex Support is available in the following ways: a) by going online to www.Sendplex.com, 24 hours a day, 7 days a week; b) by texting HELP to any of the Sendplex managed shortcodes (i.e. HELP to 24587); c) by calling 315.600.TEXT or by chatting with a representative during normal business days from 9:00AM Eastern Time to 4:00PM Eastern Time; or d) by calling Your Customer Care Representative, should You have one.
Sendplex shall use commercially reasonable efforts, without unnecessary delays, to correct the problems/defects reported; to provide Licensee with a way to temporarily work around the critical problem if able to do so; or to notify Licensee on a regular basis as to the progress of the corrective efforts, until such time as a correction can be made.
Licensee, upon detection of any error, defect or nonconformity, shall, if requested by Sendplex, submit to Sendplex a listing of output and any such other data which Sendplex reasonably may request in order to reproduce operating conditions similar to those present when the error occurred or the defect or nonconformity was discovered, as the case may be.
Either Party may disclose the general existence and nature of any Agreement between the Parties, but may not disclose the specific terms of any Agreement without the prior consent of the other Party, unless the Agreement is publicly available. Sendplex shall not issue a press release concerning any agreement with Licensee without first obtaining the cooperation and permission of Licensee.
6. TERM AND TERMINATION
At its discretion, Sendplex may end the Service or Services at any time.
The termination of Service shall not relieve the Licensee’s obligation to pay all fees that accrued prior to such termination.
Upon termination, the Licensee must have all outstanding invoices and debts fully paid before an electronic output of the Licensee’s complete contact database can be released. Sendplex will deliver an electronic output of the Licensee’s complete contact database within thirty (30) days from receiving payments for all outstanding debts. If the Licensee requires a custom extract of their data, an additional fee will be applied in order to extract the needed information.
Sendplex reserves the right to remove a Keyword from an account if there has been no intentional use of the keyword and no purchase of credits in the last 365 days.
7. SERVICE USE
Sendplex will provide the Services in accordance with industry standards.
Sendplex will reasonably publicize changes to the Services which apply generally.
Sendplex will give You reasonable advance notice of any interruption of a Service due to maintenance.
In order to manage or send messages from the Sendplex Mobile Marketing and Messaging Platform, You must register for an account. Registering for an account can only be done on www.Sendplex.com or by contacting someone at Sendplex directly. Upon registering, the Licensee, will be granted a “License” to use the products and services available from Sendplex, including those on the Sendplex Mobile Marketing and Messaging platform.
You must only use the Services –
When You use our Services, You must not –
In addition, You must not do anything which does or may –
We provide You with a login and password. Any security measures over and above these are Your responsibility.
Although we provide API connection specifications and will attempt to keep the specifications accurate and up to date, these specifications may be incomplete and may change from time to time without notice to You. You must test the specifications thoroughly on a regular basis, as we are not liable for specifications that may be incorrect or incomplete.
Sendplex gives You the ability to add single contacts and/or the ability to upload multiple contacts. You agree by uploading or adding contacts You are solely responsible for the collection of these numbers. You further represent and warrant that You have gotten prior written consent (“Opt-In”) from these individuals to send them text or email messages, and further You agree to provide documentation of Opt-In if requested by Sendplex.
Mobile Contests & Sweepstakes (Text-to-Win)
If Licensee uses Services to conduct contests or sweepstakes (such as “text-to-win”) Licensee agrees that it is solely responsible for ensuring that the sweepstakes or contest applies with all applicable laws. Further, Licensee is solely responsible for compiling and administering the sweepstakes or contest rules. Licensee acknowledges that messages are distributed via third-party mobile network providers and, therefore, Sendplex cannot control certain factors relating to message delivery. Licensee acknowledges that, depending on the recipient’s mobile provider service, it may not be possible to transmit the message to the recipient successfully. Sendplex does not claim or guarantee availability or performance of this Service, including liability for transmission delays or message failures.
Receiving Messages and/or initiating a message response
Standard Text Messaging and Data rates apply for all messages sent or received.
Sendplex managed shortcodes include, but are not limited to, 24587, 31279 and 63784.
Sendplex’s Services are supported on the following mobile carriers in the United States and Puerto Rico:
ACS Wireless, AIO Wireless, Alltel AWCC, Appalachian Wireless, AT&T, Bandwidth, Bluegrass Cellular, Boost (iDEN), Boost Unlimited (CDMA) C Spire, Cablevision, Carolina West Wireless, Cellcom, Cellular One (East Central Illinois, Montana, Northeast Arizona), Chat Mobility, Cincinnati Bell, Claro Puerto Rico, Cricket Communications, CTC, DTC Wireless, Duet Wireless, Epic Touch, Flat Wireless, GCI Communications, Golden State Cellular, Google Voice, Illinois Valley Cellular, Immix Wireless, Inland Cellular, iWireless, Leaco, MetroPCS, Mobi PCS, Mobile Nation, Mosaic Telecom, MTA Wireless, Nex-Tech Wireless, Northwest Missouri Cellular, nTelos Wireless, Open Mobile Puerto Rico, Peoples Wireless, Pine Cellular, Pioneer Cellular, Plateau Wireless, PTCI, Sagebrush Cellular, SouthernLinc Wireless, Sprint, Sprocket Wireless, Thumb Cellular, T-Mobile, Union Wireless, United Wireless, US Cellular, US Chariton Valley Cellular, Verizon Wireless, Viaero Wireless, Virgin Mobile USA, West Central Wireless
plus these additional carriers on shortcode 63784 only:
Element Mobile, Chariton Valley Cellular, RINA USA, Siwireless USA, Alaska DigiTel, Panhandle USA, Copper Valley USA
and the following mobile carriers in Canada:
Bell Mobility, Fido (part of Rogers Wireless), Lynx Mobility, Mobilicity, MTS Mobility, Rogers Wireless, SaskTel Mobility, Telus Mobility, Vidéotron, Virgin Mobile Canada, Wind Mobile.
In order to receive any messages from a Sendplex managed shortcode, an individual (“User”) must initiate an opt-in expressing affirmative consent to receive messages.
Opt-ins by a User include giving consent by sending a text message KEYWORD to a Sendplex managed shortcode from a User’s mobile phone. Opt-In may also be available through contacting Licensee.
The Sendplex Service is delivered without charge from Sendplex to the User, however Standard Message and Data Rates may apply. Standard text message charges may appear on Licensee or User’s wireless bill or may be deducted from a prepaid balance. Licensee or User is fully liable for any mobile phone charges incurred (usage, subscription, etc.) as a result of using any of Sendplex’s Services. Licensee and User should consult their mobile service carrier’s pricing plan to determine the charges for sending and receiving text messages.
Message Subscriptions & Alerts
By Opting-In to a program, Licensee or User grants consent to Licensee and Sendplex to receive text messages from Licensee through Sendplex’s Services.
Message Subscriptions & Alerts
By Opting-In to a program, Licensee or User grants consent to Licensee and Sendplex to receive text messages from Licensee through Sendplex’s Services.
Users can opt-out or unsubscribe from this Service at any time. To opt-out, the User can text STOP to the Sendplex managed shortcode from User’s mobile phone. (for example. STOP to 24587) In addition to STOP, UNSUBSCRIBE, EXIT, QUIT, CANCEL can be texted to the shortcode to opt-out. Licensee may also opt-out Users through the Sendplex Mobile Marketing and Messaging Platform.
Messages are deemed to have been delivered when we have delivered or sent the messages to the immediate destination that our software is programmed for, including SMTP servers, mobile telephone networks, or any other intermediary server or API that Sendplex deems to be the point of dispatch of the message.
Please note that, although we focus on providing extensive coverage aggregation services, third party network providers may choose from time to time to not be part of our networks or the networks of our service providers. This may result in messages not being delivered to the User.
Messages and Other Limitations
Sendplex is not responsible for the deletion or failure to store information by Licensee.
Sendplex sets no fixed upper limit on the number of messages You may send through the Service, subject to any limits You agreed to with Sendplex.
Although we try our best to deliver messages quickly, messages may be delivered late due to queuing, network traffic, or carrier outages. This may still result in the message being seen as “delivered" in Your Account Center on Sendplex.com.
Sendplex owns and/or operates several different shortcode and longcode numbers. Sendplex will use all reasonable efforts to accommodate Your preferences. However, Sendplex reserves the right to change Your number at any time without any notice.
Sendplex is not responsible for any Licensee expenses with regards to use of the Services.
8. SERVICE AVAILABILITY
Sendplex shall attempt to provide the Services for twenty-four (24) hours per day, seven (7) days per week throughout the term of this Agreement. Licensee agrees that from time-to-time the Services may be inaccessible or inoperable for any reason, including, without limitation:
Licensee agrees Sendplex has no control of availability of the Services on a continuous or uninterrupted basis. Licensee further agrees that as a normal course of its business, it may be necessary for Sendplex to migrate its servers. As a result, even though Licensee may have a dedicated IP, Licensee may be assigned a different IP number. Sendplex does not warrant that Licensee will be able to consistently maintain its given IP numbers.
9. SERVICE AVAILABILITY LIMITED CREDIT
Sendplex strives to maintain a service uptime for the Services of 99.9% (“Service Uptime") of available time. If Sendplex fails to maintain this level of service availability, You may request a credit of any messages that may have not sent during the downtime period. All credits will be in the form of message credits added back to Your account and not a monetary value or cash.
The credit does not apply to service interruptions caused by:
Total Service Uptime shall be solely determined by Sendplex and shall be calculated on a monthly basis.
Sendplex respects Your privacy.
Sendplex will not send any messages directly to Licensee’s end Users or contacts unless initiated by Licensee or in direct response to an advertisement interaction from placement of an advertisement on Licensee’s messages.
Sendplex does not monitor, edit, or disclose any of Your personal information or account details without Your prior written permission unless we may or must do so by law.
Sendplex will protect Your privacy on systems and websites that we control to the extent possible.
Sendplex does not warrant the security of the information which You transmit to us.
You give us the right to send You communications of any updates, upgrades, notices, or other information that we deem important for You to know, relating to the Service. Such communications shall not constitute spam. You may ask us to stop providing You with such communications.
Sendplex will, at its own expense, ensure the privacy and security of customer data and take all privacy and security measures, including establishing and maintaining appropriate technical, operational, physical and administrative safeguards in accordance with state of the art and industry standards and applicable law: (i) in the collecting, storing, use, processing, transmission, transfer, and sharing of customer data; (ii) to protect its network and systems as they relate to these terms and conditions from unauthorized access, copying, or use; and (iii) to prevent third party access to its network and systems as they relate to these terms and conditions. Sendplex will immediately inform a Licensee if Sendplex becomes aware of any possible or actual unauthorized access, use, or misuse of the customer data, or Sendplex’s network or systems as they relate to the Licensee data (a “Data Breach”).
11. WARRANTIES OF LICENSEE
Licensee warrants that in connection with its use of the Services, it shall comply with: 1) the terms of this Agreement, and any other agreement between Licensee and Sendplex, 2) the Best Practices, and 3) all applicable federal, state and local laws, ordinances, codes and regulations, including, but not limited to, the TCPA,
Licensee represents and warrants that (a) it has the full right, power and authority to enter into this Agreement and to grant the rights provided for herein; and (b) its execution and performance of its obligations hereunder will not violate any agreement or other obligation by which it is bound.
Licensee warrants that neither the use of the Services nor the use of any deliverable or product will infringe upon or otherwise violate the right of any person, including any patent, copyright, trademark, trade secret or other intellectual property right, or any contractual, employment, confidentiality, privacy or publicity rights.
Licensee shall indemnify, defend and hold harmless Sendplex, and its affiliates, and its and their respective directors, officers, members, managers, employees, shareholders, attorneys, and agents from and against all direct and third-party claims, suits, losses, liabilities, damages and expenses (including reasonable attorney’s fees and costs) based upon, relating to or arising out of: (a) a breach or alleged breach of any representations or warranties made by Licensee herein; (b) a breach or alleged breach by Licensee of any of its obligations in this Agreement or any agreement with Sendplex; (c) the actual or alleged negligence or willful misconduct of Licensee, its employees, agents, or subcontractors; (d) any actual or alleged breach or violation of applicable law by Licensee, including, but not limited to, TCPA; and (e) any allegation or claim that Licensee’s use of the Services infringes and/or otherwise violate any patent, copyright, trademark, trade secret or other intellectual property right or privacy right of any entity or individual.
13. MALICIOUS CODE
In the event Licensee introduces any malicious code into any software, hardware, system or network of Sendplex or any of its affiliates, Licensee shall, at its sole cost and expense, promptly eliminate such malicious code and otherwise remedy any damages, losses or other adverse effects suffered by Sendplex, any Affiliates thereof, any licensors or licensees of Sendplex, or other entity or individual, resulting from such malicious code.
14. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS" AND “AS AVAILABLE" BASIS. SENDPLEX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
SENDPLEX MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii)THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SENDPLEX OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
15. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SENDPLEX SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SENDPLEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE, THIS AGREEMENT, OR ANY OTHER AGREEMENT BETWEEN YOU AND SENDPLEX. SENDPLEX’S TOTAL LIABILITY TO YOU OR ANY THIRD PARTY SHALL NOT EXCEED 100 PERCENT OF THE AMOUNT YOU PAID TO SENDPLEX IN THE PRIOR TWELVE (12) MONTHS.
16. FORCE MAJEURE
Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any fire, flood, explosion, war, strikes, threatened strikes, stoppage of work, slowdowns, picketing, boycotts, embargoes, requirements imposed by governmental regulations, civil or military authorities, acts of God, or other causes that are beyond the reasonable control and without the fault of negligence of the Party unable to perform; provided that such Party gives reasonably prompt notice under the circumstances of such condition(s) to the other Party.
17. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 14 AND 15 MAY NOT APPLY TO YOU.
18. NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this T&C, there shall be no third party beneficiaries to this Agreement.
In the course of the Parties’ business relationship, each of the Parties is likely to receive, learn, or otherwise have access to Confidential Information of the other Party. As used in this Agreement, “Confidential Information” includes, without limitation, all trade secrets and business, financial and technical information of a Party and its affiliates (whether disclosed orally or in documentary form), including, but not limited to, all source codes, object codes, diagrams, flowcharts, algorithms, processes, specifications or functional descriptions, methodologies, tools, techniques, programs, concepts, systems, data, designs, copy, artwork, reports, documents, sales and consumer information, procurement and supplier information, product and brand information, product concepts and potential names and slogans, operational information, personnel information, marketing and promotional information, advertising plans and information, research, ideas, plans, strategies, any information contained in reports and all other information and materials, in whatever form, relating to the current or potential business activities of the party and its affiliates. A Party’s information will not be considered Confidential Information protected hereunder to the extent the same: (1) was or has become readily available from sources in the public domain (unless it became so available through a breach of a duty of confidentiality to the disclosing Party by the other Party hereto), (2) was either known to the other Party prior to disclosure hereunder or was subsequently independently developed without any use of the disclosing Party’s Confidential Information, or (3) was disclosed to the other Party by a third party who had the right to disclose the same to such other Party and who did not obtain it in confidence from the disclosing Party. Each of the Parties agrees that it will hold all Confidential Information of the other Party in strict confidence and will not disclose (or allow others to disclose) any Confidential Information to any third party, except as may be expressly allowed by this Agreement, required by law or court order in circumstances where such Party gives the disclosing Party as much prior notice as practical such that the disclosing Party can seek through appropriate means to limit or restrict such disclosure. Each of the Parties also agrees that it will not make any use whatsoever of the Confidential Information of the other Party except as needed to perform its obligations or to assert its rights or remedies hereunder.
Please report any violations of the T&C or any other agreement between Licensee and Sendplex to su[email protected]
21. CHOICE OF LAW AND DISPUTES
This Agreement and any dispute relating to it or to the Services, shall be governed by the laws of the State of New York, without regard to conflict of law principles. Sendplex and Licensee agree that any suit related to this Agreement and/or the Services will be brought exclusively in a court located in Onondaga County, New York, and Sendplex and Licensee agree to personal jurisdiction and venue in those courts. TO THE EXTENT ALLOWED BY APPLICABLE LAW, EACH PARTY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES.
22. ADDITIONAL TERMS
If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this this Agreement shall be deemed a further or continuing waiver of such term or any other term and Sendplex’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. This Agreement or Licensee’s rights to use the Services may not be assigned without Sendplex’s express, written consent. No Party shall have the power to bind the other; this Agreement does not create a partnership or agency relationship of any kind. This Agreement, together with any supporting documents (such as exhibits and schedules), constitutes a complete statement of the agreement between the Parties with regard to these documents’ subject matter and supersedes all prior representations, discussions, and agreements.