Welcome to <aisms>! We are so glad that you’re interested in learning about our products. This is our terms of service, which governs all use of the services (including websites) provided Smart Campaigns Inc. (“aisms”). Please review it carefully. By accessing or using any of our websites or services, you are agreeing these terms.
The Terms of Service (“Terms”) applies to all access to or use of the <aisms> websites, offerings, and services (collectively, “Services”). The Services are described in more detail in Section 3. <aisms> provides you with these Services subject to your acceptance, without any modifications, of the Terms, as well as any other operating rules and policies that <aisms> publishes on its website, such as our privacy policies (collectively, the “Agreement”). By accessing one of our Services, you represent that you have reached the age of majority for where you live or that you have had a parent or legal guardian consent to be bound by these Terms.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING ONE OF <AISMS>’S SERVICES, YOU ACCEPT THE TERMS OF THIS AGREEMENT AND IT BECOMES A LEGALLY BINDING COMMITMENT BETWEEN YOU AND <AISMS>. IF YOU DO NOT AGREE WITH ANY PORTION OF THE AGREEMENT OR IF YOU DO NOT INTEND TO USE THE SERVICES IN ACCORDANCE WITH THESE TERMS, YOU MAY NOT ACCESS OR USE ANY <AISMS> SERVICE; YOU SHOULD LEAVE THIS WEBSITE IMMEDIATELY BY CLOSING YOUR INTERNET BROWSER WINDOW.
We reserve the right to change these Terms from time to time, and any revised Terms will supersede prior versions. Any updates to these Terms shall be posted on this website. Unless indicated otherwise, they will be effective on the date listed at the top of the Terms. You acknowledge your responsibility to review our Terms from time to time and to be aware of any such changes. By continuing to use any of the <aisms> Services after we post any such changes, you accept the revised Terms.
2. The Parties
2.1. Definitions. In this Agreement, “we,” “us,” or “our” refers to <aisms>. “You,” “your,” and “Customer” refers to you personally, unless you are accessing or using our Services on behalf of an organization that does not have an existing contract with <aisms> that governs your actions. If the latter is the case, you are accepting the Terms for that organization and representing that you have the authority to bind the organization to the Terms; as such, “you,” “your,” and “Customer” will refer to the organization. If the organization already has a separate contract with <aisms> that covers your access and use of our Services, however, the contract will govern, as opposed to these Terms.
2.2. Affiliates. In this Agreement, an affiliate is an entity or person that controls a party, is controlled by a party, or is under common control with a party (such as a subsidiary, parent company, or employee). Each party to this Agreement will be responsible for the acts and omissions of their affiliates in connection with this Agreement.
3. The Services
When we refer to our Services in the Terms, we are referring to any of our platform services, including our programs, features, websites, account portals, and technical support.
4. Service Availability
Services described on the <aisms> Sites may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries, and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.
We transmit messages initiated by you through different routes, and the level of reliability and support for special features varies according to the route. You are responsible for obtaining and providing opted-in customer information as well as all computer hardware, software, and communications equipment needed to access the Services and for paying all access charges (e.g., Internet Service Provider, telecommunications) incurred while using the Services.
<aisms> transmits and receives text messages via other mobile network operators, and thus <aisms>’s influence over the timing of the transmission of your messages and broadcasts is only within the technical constraints imposed upon <aisms>. While <aisms> shall use commercially reasonable efforts to transmit your messages to the applicable network for final delivery to your designated recipients during the hours of 10am and 6pm local time USA time zones, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of your messages across the public switched telephone network and/or Internet. You should know that communications carriers assign text messages with a default lifetime and any message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. <aisms> is not liable for any loss incurred by the failure of a message or broadcast to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from <aisms> for any such non-deliveries. Furthermore, you agree that message contents are deemed to have zero value.
5. Our Storage and Use of Your Data
5.2. Deletion of Your Data. While our platform hosts some Customer data, the continued hosting and storage of your data is not guaranteed by us. Except as otherwise agreed between us in writing, we may occasionally delete your data, and we will not be liability for any damages, losses, or other consequences that you may incur as a result.
We may make additional features and products offered by third-parties (“Add-ons”) available on our Services. Your use of Add-ons available through our Services is subject to these Terms.
We also may also be granted access to 3rdparty sites, use through our Services is also subject to these Terms.
7. Your Account
Before you can use our Services, you must first create an account and provide us with some basic information, such as your full name, telephone number, and email address. All information that you provide about yourself while maintaining a <aisms> account must be accurate, complete, and current.
You are solely responsible for all use (whether authorized or not) of our Services under your account(s). You are also solely responsible for all access to and use of your account, and for all acts and omissions of anyone that has access to it.
Keep your information current and let us know if it is compromised. If we believe you misuse our service, we can terminate your account and forward your information to law enforcement if appropriate.
You agree to take all reasonable precautions to prevent unauthorized access to or use of our Services, and you will notify us promptly of any unauthorized access or use. Additionally, you agree to notify <aisms> of any known or suspected unauthorized use(s) of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. We will not be liable for any loss or damage arising from unauthorized use of your account.
Any suspected fraudulent, abusive, or otherwise illegal activity related to our Services may be grounds for suspension or termination of your user account, in <aisms>’s sole discretion, and you may be reported to appropriate law-enforcement agencies.
8. Your Use of Our Services Must Comply with the Law
You agree to use the <aisms> Services in accordance with all applicable guidelines, as well as all state and federal laws that the Services are subject to. In order to confirm your compliance with these Terms, so as to ensure that <aisms> is complying with national and international laws, we may, from time to time, periodically check the messages and broadcasts that you send.
8.1. Representation that Communications with Your Contacts Comply with the Law. You represent and warrant that the owners of the phone numbers you initiate messages to through the <aisms> Services have consented or otherwise opted-in to the receipt of such messages as required by any applicable law or regulation. You agree that you will include clear opt-out/unsubscribe information in your messages when required to do so by any applicable law or regulation, and that you will otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if it is applicable to your messages.
You further agree that any individuals requesting Do-Not-Call (“DNC”) status shall be immediately placed on your DNC accounts list and you further agree that you will not initiate any further messages to any individuals after they request DNC status. <aisms> maintains your “DNC” list by storing any customer response of “Stop” or “Unsubscribe” in your global Do-Not-Call List which will block any future messages from be sent once unsubscribed.
8.2. Agreement to Learn About and Comply with the Relevant Laws. You agree to familiarize yourself with and abide by all applicable local, state, national, and international laws and regulations pertaining to your use of our Services. You are solely responsible for all acts or omissions that occur under your account, including, without limitation, the content of the messages and broadcasts that you create and initiate through our Services. The Telephone Consumer Protection Act (TCPA), Federal Trade Commission and Federal Communications Commission rules, the National DNC list registry rules, and various state laws, rules, and regulations place restrictions on certain types of phone calls and text messages. Without limiting the foregoing, you agree to familiarize yourself with the legal requirements triggered by any messages, calls, broadcasts, and campaigns transmitted through the <aisms> Services by visiting the following websites:
Federal Trade Commission, http://www.ftc.gov
Federal Communications Commission, http://www.fcc.gov
National Do Not Call (DNC) Registry, http://www.donotcall.gov
<aisms> is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy, and it is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages, broadcasts, and campaigns prior to using the <aisms> Sites or Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.
8.3. Prohibited Uses of Our Services. You accept that our Services are provided for professional use only, and you agree that your use of our Services shall not include:
Sending unsolicited marketing messages (i.e., spam);
Sending any prohibited calls to life-line services, such as hospitals, fire, police, 911, or utility- related telephone numbers;
Using strings of numbers, as it is unlawful to engage two or more lines of a multi-line business;
Misleading others as to the identity of the sender of your messages by creating a false identity, impersonating the identity of someone/something else, or by providing contact details that do not belong to you;
Transmitting, associating, or publishing any unlawful, racist, harassing, defamatory, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic, or otherwise objectionable material of any kind;
Transmitting any material that may infringe upon the intellectual property rights of third parties, including trademarks, copyrights, and right of publicity;
Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots, or any other harmful or deleterious programs;
Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies, or procedures of such networks;
Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies, or procedures of such networks;
Interfering with another's use and enjoyment of our Services;
Engaging in any other activity that <aisms> believes could subject it to criminal or civil liability.
You agree to provide legal contact information in any outbound campaign within any voice broadcast’s initial greeting message. You also agree to provide your own sound files for all outbound voice broadcast campaigns. <aisms> will not be liable for any misuse of the Services by you. <aisms> is not responsible for the views and opinions contained in any of your messages . You further agree that <aisms> is, under no circumstances, responsible for the contents and/or accuracy of your messages and that <aisms> will only transmit them on a basis of good faith that you use the Services in accordance with these Terms.
8.4. No Intentional Calls to Non-RBOC Areas. You agree that you will not purposely route calls to high-cost non-RBOC (Regional Bell Operating Company) areas for origination or termination of telecommunications traffic on the <aisms> system. Calls may be monitored and reported upon each billing cycle to ensure sound traffic patterns. <aisms> will address any excessive routing of high-cost calls by a Customer, and fines may be assessed to recover excess charges from <aisms> VoIP termination companies.
9. Other Limitations
The following is a list of prohibitions and limitations on your use of our Services.
9.1. Use for Emergency Services Prohibited. You will not attempt to use our Services to access or allow access to Emergency Services.
9.2. Reverse Engineering Our Software Prohibited. Except as allowed by applicable law, you will not reverse engineer, decompile, disassemble, derive, or otherwise create, attempt to create or derive, or assist anyone else to create or derive the source code of any software provided in connection with our Services.
9.3. Right to Reclaim Phone Numbers. We reserve the right to reclaim any phone number from your account and to return that number to the relevant numbering plan if you do not send sufficient traffic over that phone number, such that the phone number is unutilized or underutilized, as defined by any local or federal regulatory agency and/or governmental organization with oversight over the relevant phone number and numbering plan. When reclaiming unutilized or underutilized phone numbers, we will notify you at least fourteen (14) days in advance, unless we are prevented from doing so by the relevant carrier regulatory agency or governmental organization.
We also reserve the right to reclaim phone numbers with no notice to you if your account is suspended for failure to pay or for suspected fraud, as well as if your free trial account is unutilized for more than thirty (30) days.
9.4. <aisms> Is Customer of Record. You acknowledge that <aisms> is the “customer of record” for all phone numbers provided as part of our Services. As the customer of record, we have certain rights with respect to porting phone numbers. You understand and agree that you may use the phone numbers provided as part of our Services subject to these Terms. Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in our sole discretion.
10. Content Submission
10.1. Confidential or Proprietary Information. You agree that any information or materials that you or individuals acting on your behalf provide to <aisms> (other than information required for your use of the Services as contemplated herein) will not be considered confidential or proprietary. Furthermore, except as otherwise required for your use of the Services as contemplated herein, you should not send any confidential or proprietary information to <aisms> via the <aisms> Sites or the email addresses referenced on the <aisms> Sites.
10.2. Your Rights in the Information. In connection with such information and materials, you warrant and represent to <aisms> that you have all rights, title, and interests necessary to provide such content to <aisms> and that your provision of the content to <aisms> does not infringe any third party’s proprietary or personal rights, including, but not limited to, any trademark, copyright, patent, or trade secret. By providing any such information or materials to <aisms> (other than information required for your use of the Services as contemplated herein), you grant to <aisms> an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of, and distribute such information and materials. You further agree that <aisms> is free to use any ideas, concepts, or know-how that you or individuals acting on your behalf provide to <aisms>.
11. Intellectual Property
11.1. No Customer Right to <aisms> Intellectual Property. You are permitted to access the <aisms> Services and any content provided by <aisms> (which may include text, images, hosted software, sound files, video, or other content and which may be provided via the <aisms> Sites or otherwise) solely for the purpose of receiving information about <aisms>’s business and products, purchasing and utilizing our Services, communicating with us, entering prize promotions offered by us, or as otherwise stated on the <aisms> Sites. <aisms> hereby grants a worldwide, fully paid-up, perpetual, non-exclusive, non-transferable license to you to use the <aisms> Services solely for that purpose.
We may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Services, including the web pages that are part of the Services and the <aisms> Sites. Except as expressly provided in these Terms, the availability of the Services and the <aisms> Sites does not give you any license to these patents, trademarks, copyrights, or other intellectual property. All copyrights, trademarks, patents, trade secrets, and other intellectual proprietary rights contained in the <aisms> Services are the sole property of <aisms> or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the Services, including any proprietary communications protocol used by the Services without the express written permission of <aisms>. All other trademarks or trade names are the property of their respective owners, and such material may not be copied, downloaded, redistributed, modified, or otherwise exploited, in whole or in part, without the permission of the owner.
11.2. Compliance with the Digital Millennium Copyright Act. <aisms> abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, we may remove or disable access to material residing on a site that is controlled or operated by <aisms> and that is claimed to be infringing, in which case we will make a good-faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. <aisms> does not control content hosted on third party websites, and we cannot remove content from sites it does not own or control.
If you are the copyright owner of content hosted on a third party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed.
Before serving either a Notice of Infringing Material or a Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with <aisms>’s rights and obligations under the DMCA and, in particular, section 512(c). They do not constitute legal advice.
11.3. Filing a Notice of Infringing Material Under the DMCA. To file a notice of infringing material on a Site owned or controlled by <aisms>, please provide a notification containing the following details:
1. Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example, the title, author, any registration or tracking number, and URL);
2. Reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example, a link to the page that contains the material);
3. Your contact information so that we can contact you (for example, your address, telephone number, or email address);
4. A statement that you have a good faith belief that the use of the material identified in (2) is not authorized by the copyright owner, its agent, or the law;
5. A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.
6. Your physical or electronic signature.
Then, email this notice to firstname.lastname@example.org.
12. Communications About <aisms> Services
12.1. Newsletters. Any email addresses submitted when registering for a new account to use <aisms> Services are automatically added to the <aisms> newsletter. To opt-out you must click “Unsubscribe” in the footer of any Newsletter.
12.2. Communications About Our Services. By creating an account with <aisms>, you agree that <aisms> may contact you via calls, text messages, or email to provide you with information about your account, transactions, and/or the <aisms> Services requested by you.
To the extent you have separately agreed to receive periodic text or voice alerts about products, services, events, special offers, or other promotional messages related to <aisms> Services, <aisms> may contact you pursuant to the terms of any such separate agreement.
Your use of our Services is contingent on your paying for such use (whether paid in advance or through the Contract Terms provided by the <aisms> representative), in the amounts and using the methods indicated on the <aisms> Sites. Your payment for the Services shall be deemed completed when <aisms> receives the full amount of payment owed for such Services and/or plans.
<aisms> will charge your indicated method of payment for the Services and/or plans immediately upon your confirming the payment method and amount. Amounts to be charged may include sales and other taxes, where applicable, and any other amounts indicated on our Sites. If you have elected to make a payment by credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by <aisms>.
<aisms> cannot readily or accurately ascertain your location when you request to use the Services. You therefore agree that your use of the Services occurs in Wyoming and is subject to any applicable Wyoming taxes. To the extent that you are responsible for any additional taxes or fees beyond those collected by <aisms>, you agree that you will pay them to any applicable taxing authority when due, including any interest or penalties assessed.
<aisms> shall not be responsible for any errors or transmission failures with regard to the charging and collection of funds from your indicated payment method, nor for any actions taken by the provider of the payment method you choose (which could include refusal to authorize the charge). In addition to these Terms, any payments made by you may be subject to the agreement between you and the provider of the payment method.
In the event of accidental under billing in favor of a Customer and a Customer’s subsequent nonpayment, <aisms> shall be entitled to immediately proceed with collection remedies and shall be entitled to recover any and all costs, fees, and expenses of such collection efforts, including but not limited to: collection agencies, court costs, filing and service of process fees, attorneys’ fees incurred from counsel of <aisms>’s choosing, or any other costs, fees, and expenses incurred in the pursuit of collection on all customer accounts and receivables due and payable under these Terms.
14. Fee Disputes
You must notify us in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to us within ninety (90) days of the applicable charge, and we will work together with you to promptly resolve the applicable dispute. If you do not provide us with this written notice of your fee dispute within this 90-day period, you will not be entitled to dispute any fees paid or payable by you.
15. No Warranty; Limitation of Liability
<aisms> reserves the right to modify, suspend, or discontinue the offering of any of the <aisms> Services at any time and for any reason without prior notice. Further, while <aisms> utilizes electronic and physical security to reduce the risk of improper access to or manipulation of data during transmission and storage, we cannot guarantee the security or integrity of the data and shall not be liable for breaches of security or integrity, third-party interception in transit, or any damage caused to your computer or other property by your use of the <aisms> Services.
You acknowledge that text messages are transmitted unencrypted and that eavesdropping of communications by third parties is possible. <aisms> recommends that you ensure sensitive and valuable information is communicated by a protected and/or encrypted method.
<aisms> shall use commercially reasonable efforts to make access to the Services available through the required access protocols, but makes no warranty or guarantee that (i) the Services will be available at any particular time; or (ii) you will be able to access the Services at any particular time or from any particular location. <aisms> will not be liable for any act or omission of any other company or companies furnishing a portion of the Services (including, without limitation communications carriers or ISPs); for any act or omission of a third party (including those vendors participating in <aisms> offerings made to you); for equipment that we do not furnish; or for damages that result from the operation of customer-provided systems, equipment, facilities, or services that are interconnected with the Service.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE <AISMS> SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS, <AISMS> DOES NOT WARRANT THAT THE USE OF THE <AISMS> SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING, BUT NOT LIMITED, TO ANY INTERRUPTIONS TO THE SERVICES CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., HACKING), NOR SHALL <AISMS> BE RESPONSIBLE FOR ANY DATA LOSS OR LOSS OF ANY INFORMATION IN YOUR ACCOUNT, REGARDLESS OF THE CAUSE. <AISMS> ALSO MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE SERVICES OR THAT THE <AISMS> SERVICES WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS.
<AISMS> MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY, OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND WARRANTIES RELATED TO THIRDPARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
<AISMS> SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE <AISMS> SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING OF EQUIPMENT, SOFTWARE, OR DATA, <AISMS> IS NOT RESPONSIBLE FOR THOSE COSTS. <AISMS>'S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE <AISMS> SERVICES FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU TO <AISMS> HEREUNDER.
16. User Warranties; Indemnification
You warrant and represent to <aisms> that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder and that nothing contained in these Terms or in the performance of these obligations will place you in breach of any other contract or obligation. You further warrant and represent that you are and shall at all times remain in full compliance with all applicable laws, rules, and regulations with regard to your use of the <aisms> Services, including, without limitation, the TCPA, the Telemarketing Sales Rule, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing.
You agree to indemnify and hold harmless <aisms> and our affiliates, as well as each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers, and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs, and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements, and attorneys’ fees, including attorneys’ fees incurred from counsel selected by <aisms> in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, third-party discovery demand, governmental investigation, or enforcement action based upon or arising out of your activities under these Terms or your acts or omissions in connection with any use by you, an account belonging to you, or a computer under your control, of the <aisms> Services. You acknowledge and agree to be held liable for any and all damages caused to <aisms> by you as a direct result of any violation of local, state, national, or international laws or regulations, including, but not limited to, those damages arising from your fraudulent, intentional, or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing, and/or services provided by <aisms> to you.
You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, third-party discovery demand, governmental investigation, or enforcement action.
We reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and in which we would otherwise subject to indemnification by you. You will also be liable to us for any costs and attorneys’ fees we incur to successfully establish or enforce our right to indemnification under this Section.
17. Termination, Cancellation, and/or Suspension by <aisms>
If you breach these Terms at any time, we may elect to suspend, terminate, and/or cancel your use of the Services and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination, or cancellation. We reserve the right to suspend the Services at any time and for any reason we may deem necessary to continue to provide our Services in a way that may be hindered by your status as one of our clients, your financial status, or the content of the messages originating from you.
Upon any such termination, cancellation, and/or suspension, you are still responsible for any obligations then accrued. Your obligation to pay all amounts accrued and owed by you shall continue even after any suspension or cancellation of your access to the Services (in whole or in part). Upon termination, for any reason, you agree to immediately cease using the Services and <aisms> shall have no obligation to you after any termination or cancellation of these Terms. Should such a termination take place when you still have credits in your account, you shall receive back, at our discretion, a fair monetary value of such credits, save any expenses that may be incurred by <aisms>, including, without limitation, the payment of transfer duties, legal costs, third-party costs, and penalties.
The provisions regarding ownership, payments, warranties, and indemnifications will survive any suspension, termination, or cancellation of your use of our Services.
18. Termination by You
You are free to terminate or cancel your use of the Services at any time, and for any reason or otherwise details in your specific Contract Terms when available. If you are on a monthly plan you can cancel your use of the Services by notifying your representative in writing as well as by email to email@example.com. Notwithstanding the foregoing, unless due to a breach solely by <aisms> that it fails to cure within thirty (30) days of its receipt of your notice, in no event shall <aisms> be obligated to refund to you the reasonable value of any unused credits previously purchased by you.
19. Links to Other Websites
The <aisms> Sites may contain links to third-party websites. These links are provided solely as a convenience to you and not as an endorsement by <aisms> of the contents on such third-party websites. <aisms> is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.
<aisms> cannot ensure that you will be satisfied with any products or services that you purchase from a third-party website that links to or from the <aisms> Sites, since these websites are owned and operated by independent third parties. <aisms> does not endorse any of the products/services, and <aisms> has not taken any steps to confirm the accuracy or reliability of any of the information contained on such third party websites.
Furthermore, <aisms> does not make any representations or warranties as to the strength of the security practices for storing any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to such websites. <aisms> strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.
<aisms> consents to your use of links to the <aisms> Sites that conform to the following requirements. The appearance, position, and other aspects of any link to the <aisms> Sites may neither create the false appearance that an entity or its activities or products are associated with or sponsored by <aisms> nor be such as to damage or dilute the goodwill associated with the name and trademarks of <aisms> or its affiliates. Moreover, <aisms> reserves the right to revoke this consent to link at any time in its sole discretion, without notice.
20. Security Rules
You are prohibited from violating or attempting to violate the security of the <aisms> Services and from using them to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the <aisms> Services, host, or network, including, without limitation, by means of submitting a virus to, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing” the <aisms> Sites; (d) sending unsolicited e-mail, including promotions and/or advertisements of products or services; or (e) forging any <aisms> packet header or any part of the header information in any e-mail, instant message, text message, or newsgroup posting.
Violations of system or network security may result in civil or criminal liability. We may investigate violations of these Terms, and may involve and cooperate with law enforcement authorities in prosecuting <aisms> Customers who are involved in such violations.
21. Force Majeure
<aisms> shall not be liable for any failure or delay in performing our obligations hereunder, if such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications or Internet facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, order of any governmental authority, or any other cause beyond the reasonable control of <aisms>. In addition, <aisms> shall be so excused in the event that it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material necessary for the performance of our Services.
22. Choice of Law
The enforceability and interpretation of Section 24 (Agreement to Arbitrate) will be determined in accordance with the Federal Arbitration Act, 9. U.S.C. §§ 1-16, as amended (the “Federal Arbitration Act”), including its procedural provisions. Apart from Section 24 (Agreement to Arbitrate), the Terms shall be governed by and construed in accordance with the substantive law of the State of Texas (subject to any applicable preemption or supersedence by U.S. federal substantive law) without regard to conflict of law principles that would cause laws of another jurisdiction to apply.
23. Agreement to Arbitrate
Most disputes can be resolved by contacting our Customer Support team. We strongly encourage you to reach out to them before you decide to bring a formal legal case.
23.1. We Both Agree to Arbitrate. If we are not able to successfully work together to resolve the dispute, you (and any of your affiliates) and <aisms> (and any of our affiliates) all agree to resolve any dispute arising under these Terms (including our privacy policies) or any dispute relating to our Services by binding arbitration in Austin, Texas.
This agreement to arbitrate applies to all claims under any legal theory, including any claim that requires the interpretation of this document, except for the exception below in subsection 24.2 (Exception to Agreement to Arbitrate). This agreement also continues to apply after you have stopped using our Services. If we have a dispute about whether this agreement to arbitrate can be enforced or whether it applies to the dispute, we all agree that the arbitrator will decide that as well.
In addition, if any of us brings a claim in court that should be arbitrated or if any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us can also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
23.2. Exception to Agreement to Arbitrate. Anything in the foregoing paragraphs to the contrary notwithstanding, <aisms> may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of these Terms. Moreover, you consent to the personal jurisdiction of these courts.
23.3. Arbitration Procedure. The Commercial Arbitration Rules of the American Arbitration Association (“Rules”) then in effect shall apply to the arbitration, except to the extent that they conflict with any express provisions in this Section 24 (Agreement to Arbitrate).
A single independent arbitrator shall conduct the arbitration. The parties shall endeavor to select the independent arbitrator by mutual agreement. The arbitrator shall be a member of a state bar engaged in the practice of law in the United States or a retired member of a state or the federal judiciary in the United States. If the dispute is one to be decided by arbitration and such agreement cannot be reached within thirty (30) days after the dispute first arose, the selection of the arbitrator shall be made in accordance with the Rules as then in effect.
Each party shall be entitled to inspect and obtain a copy of non-privileged relevant documents in the possession or control of the other party. All such discovery shall be in accordance with procedures approved by the arbitrator. Unless otherwise provided in the award, each party shall bear its own costs of discovery.
The award of the arbitrator shall be based on the evidence admitted and shall contain an award for each issue and counterclaim. The award shall be made within thirty (30) days following the close of the final hearing and the filing of any post-hearing briefs authorized by the arbitrator. It shall set forth in writing the factual findings and legal reasoning for the award. The arbitrator may, in his/her discretion, award to any party specific performance or injunctive relief (but the foregoing is not intended to limit <aisms>’s access to the courts to the extent provided in subsection 24.2). The arbitrator may not change, modify, or alter any express condition, term, or provision of these Terms.
Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding upon the parties, and no appeal of any kind may be taken. Judgment may be entered thereon in any court having jurisdiction thereof. The statute of limitations applicable under Texas law to the commencement of a lawsuit shall apply to the commencement of arbitration hereunder.
23.4. Recovery of Costs and Attorney’s Fees. In any action or proceeding to enforce rights under these Terms, <aisms> and any of its affiliates will be entitled to recover costs and attorneys' fees if we substantially prevail.
23.5. Class Action Waiver. Both you (and your affiliates) and <aisms> (and our affiliates) agree that any claims or controversies between us must be brought against each other only on an individual basis. Neither you (and your affiliates) nor <aisms> (and our affiliates) can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person or entity’s claims into a single case and cannot preside over any class, consolidated, or representative proceeding (unless we agree otherwise). Moreover, the arbitrator’s decision or award in one person or entity’s case can only impact the person or entity that brought the claim, not other <aisms> customers; it cannot be used to decide other disputes with other customers.
If a court decides that this subsection 24.5 (Class Action Waiver) is unenforceable or invalid, then the entire Section 24 (Agreement to Arbitrate) will be null and void. But the rest of the Terms will still apply.
24. Entire Agreement
The Terms are only those stated herein, and they shall constitute the complete agreement between the parties. These Terms supersede all prior and contemporaneous proposals, statements, sales materials, presentations, and agreements, whether oral or written. No terms or conditions stated in or attached to your communications with <aisms> are applicable to these Terms in any way, and they are not to be considered exceptions to the provisions of these Terms.
If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
26. No Waiver
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. Any waiver must be