1. Your acceptance of this user agreement
Please read the User Agreement carefully before using or registering for the Text-Em-All Service. By using or registering for the Text-Em-All Service, you agree to be bound by the terms and conditions set forth in this User Agreement. If you do not wish to be bound by the terms and conditions in this User Agreement, you may not access or use the Text-Em-All Service.
2. Modification of terms
We reserve the right to modify and restate the terms and conditions of the User Agreement, and modification(s) shall be effective immediately upon being posted on the Text-Em-All.com web site.
Unless explicitly stated otherwise, any new features that augment or enhance the current Text-Em-All Service, including the release of new Text-Em-All properties, shall be subject to the User Agreement. You understand and agree that the Text-Em-All Service is provided "AS-IS" and that Text-Em-All assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store or deliver any User communications or personalized information.
You are responsible for reviewing these terms and conditions regularly. Any updates to this User Agreement will be posted on this website. By continuing to use any Text-Em-All Service after we post any such changes, you accept the User Agreement, as modified.
4. Remove phone number
If members of your group do not wish to receive messages, they may visit our website and click ‘Opt-Out’ on the bottom of the home page of the Text-Em-All.com web site or go to https://www.text-em-all.com/optout. Alternatively, you may notify Text-Em-All of your request for the removal of a telephone number from a calling list by sending an e-mail to email@example.com or by writing to Text-Em-All, 3803 Parkwood Blvd., Suite 900, Frisco, TX, 75034. When you send a request you need to include your first name, last name, and telephone number that you want to be removed. You are ultimately responsible for ensuring that anyone requesting do-not-call status is removed from your calling lists.
5. Registration information
You agree, as a condition of your use of the Text-Em-All Service, to provide Text-Em-All with accurate and complete information when registering for or using the Text-Em-All Service, and to update and maintain such information. Text-Em-All has the right to suspend, restrict or terminate your use of the Text-Em-All Service and to refuse any future use of all or portions of the Text-Em-All Service if Text-Em-All at any time and for any reason, including but not limited too if Text-Em-All has reason to believe that you have failed to comply with the requirements in this section.
6. Minimum age
If you are under the age of eighteen, you are prohibited from using or registering for the Text-Em-All Service. By using or registering for the Text-Em-All Service, you warrant to Text-Em-All that you are above the age of eighteen.
7. Telephone transmission and charges
Text-Em-All transmits and receives voice and text messages via other major telecommunications carriers and mobile network operators, and thus Text-Em-All’s influence over the timing of the receipt or transmission of your messages is within the technical constraints imposed upon Text-Em-All. While we will use commercially reasonable efforts to further transmit your messages to the applicable network for final delivery to your designated recipients as fast as possible, 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 and broadcasts across the telephone network and/or the Internet. You may contact Text-Em-All for a current list of covered downstream carriers and international destinations. Text-Em-All 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 Text-Em-All for any such non-deliveries.
Text-Em-All is not responsible for any charges that you may incur from another carrier to access the Text-Em-All Services, nor is Text-Em-All responsible for any charges the recipients of your messages may incur from their carriers.
8. Account security
When you are registered, you will establish a Username and a Password. You are responsible for protecting the confidentiality of your Username and Password, and you are fully responsible for all activities that occur under your account.
You agree: (a) to exit from your account when you conclude each session, and (b) to immediately notify Text-Em-All of any loss, compromise or unauthorized use of your Username and Password or any other breach of security. You may notify Text-Em-All by sending an e-mail to firstname.lastname@example.org or by writing to: Text-Em-All, 3803 Parkwood Blvd., Suite 900, Frisco, TX, 75034. Text-Em-All will not be liable for any loss or damage of any kind resulting from either the authorized or unauthorized use of your account.
9. Consent to record your voice inputs
You agree and consent that Text-Em-All may record oral or voice communications, utterances, conversations or commands, made by you during the use of the Text-Em-All Service. By using the Text-Em-All Service, you expressly consent and grant to Text-Em-All the right to record and use these recordings. If you do not authorize Text-Em-All to make or use these recordings, you may not use the Text-Em-All Service.
Text-Em-All is under no obligation to monitor any recordings for accuracy, completeness, or quality. User understands that recordings may or may not resemble that which User intends to record and that Text-Em-All is under no obligation to ensure that recordings will successfully represent that which User intends to record. The user agrees that all recordings become part of the Content (defined below in Section 15) of the Text-Em-All Service.
10. Restriction and modification of service
You agree that Text-Em-All may limit your use of the Text-Em-All Service, including without limitation the frequency and duration for which you may access the Text-Em-All Service, and that Text-Em-All has no responsibility or liability for any unavailability or limitation on use of the Text-Em-All Service. In addition, Text-Em-All reserves the right at any time to limit: access to, modify, change or discontinue the Text-Em-All Service, or any part thereof, with or without notice. You agree that Text-Em-All shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Text-Em-All Service. You acknowledge and agree that Text-Em-All may establish general practices and limits, which may not be published, concerning the use of the Text-Em-All Service, including without limitation the maximum time that messages will be retained, the maximum number of messages that may be sent from or received by an account on the Text-Em-All Service, the length of message sent and the maximum number of times, and the maximum duration for which you may access the Service, in a given period of time. You agree that Text-Em-All has no responsibility or liability for the deletion or failure to store any messages and other communications maintained or transmitted by the Text-Em-All Service. You acknowledge that Text-Em-All reserves the right to terminate any inactive or dormant account(s). You agree and Text-Em-All reserves the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
11. Your conduct
As a condition of your use of the Text-Em-All Service, you agree and warrant to Text-Em-All that you will not use the Text-Em-All Service, or allow others to use the Text-Em-All Service under your account, for any purpose that is unlawful or prohibited by the User Agreement and our Responsible Use Policy. You may not use, or allow others to use, the Text-Em-All Service in any manner that could damage, impair, disable or overburden the Text-Em-All Service, interfere in any way with Text-Em-All’s rights, interfere in any way with any other user's use and enjoyment of the Text-Em-All Service, or otherwise infringe on any person's rights.
Specifically, you agree and warrant to Text-Em-All that:
- You will not use or attempt to use, the Text-Em-All Service to convey any information that may be considered unlawful, harassing, libelous, abusive, threatening, obscene, hateful, offensive, harmful, vulgar, distasteful, defamatory, indecent, objectionable, or invasive of another person's privacy or proprietary rights;
- You will not use, or attempt to use, the Text-Em-All Service in connection with any junk messages, spamming or messages that are duplicative or unsolicited in nature;
- You will not send, or attempt to send, messages to emergency lines, to any health care facility or similar establishment, to numbers assigned to radio common carrier services or to any service for which the called party is charged for the call;
- You will not transmit, or attempt to transmit, any material that may infringe the contractual, fiduciary, intellectual property rights, or other rights of third parties, including trademark, copyright or the right of publicity;
- You will not initiate marketing text messages or prerecorded telemarketing calls, or any message that is part of a plan, program or campaign to induce the purchase of goods or services or a charitable contribution when using the Text-Em-All Service;
- You will not initiate political text messages or prerecorded political calls using the Text-Em-All Service. This includes any message designed to support or oppose a political campaign or issue, or that solicits a contribution to any non-profit organization;
- You will not use the Text-Em-All Service to initiate any calls or text messages to recipients if you have obtained their contact information from a third-party list provider;
- You will not use the Text-Em-All Service to initiate any text message or phone call to recipients unless you have received the necessary consent and provided any necessary disclosures related to any message you initiate using Text-Em-All’s messaging service;
- You will not impersonate, or attempt to impersonate, any other person, falsify contact information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with Text-Em-All, or otherwise attempt to mislead others as to the identity of the sender or the origin of a message;
- You will not resell, or attempt to resell, the use of the Text-Em-All Service without the express, prior written consent/permission from Text-Em-All;
- You will not collect, or attempt to collect, or store information about the Text-Em-All Service or other users, including contact information, without their consent;
- You will not interfere, or attempt to interfere, with or disrupt connections to the Text-Em-All Service or violate the regulations, policies or procedures of such connections;
- You will not attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password/PIN mining or any other means, and;
- You agree and Text-Em-All retains the right, at its sole discretion, to determine whether or not User’s conduct is consistent with the letter and spirit of the User Agreement. Text-Em-All may immediately terminate User’s Text-Em-All account if User’s conduct is found to be inconsistent with this User Agreement.
12. No spam and consent to damages
Text-Em-All will immediately terminate or suspend any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam, other unsolicited messaging activities, or any calling in violation of our Responsible Use Policy or this User Agreement. Activities such as sending spam or other unsolicited messages can cause harm to Text-Em-All (and our customer base) in numerous ways including, but not limited to, damaging the Text-Em-All brand name, damaging our reputation for delivering relevant messages, damaging our reputation for privacy, damaging our ability to attract and retain customers, and damaging other consumers, customer and business goals, activities, or relationships. Text-Em-All retains sole responsibility and discretion for calculating losses; because these and other damages are often difficult to quantify if actual damages cannot be reasonably calculated by Text-Em-All; then you agree to pay Text-Em-All liquidated damages of $5.00 for each piece of spam or unsolicited message transmitted from or otherwise connected with your Text-Em-All account; otherwise, you agree to pay Text-Em-All's actual damages, to the extent such actual damages can be reasonably calculated by Text-Em-All.
13. Compliance with federal and state regulations
Without limiting your obligations under the User Agreement and our Responsible Use Policy, the user agrees to comply with all provisions of the Federal Telephone Consumer Protection Act of 1991, and any amendments thereto, at 47 U.S.C. § 227, the Federal Communications Commission's implementing regulations, at 47 CFR § 64.1200 et seq., the Federal Trade Commission’s Telemarketing Sales Rule, including the August 2008 Amendment at 16 CFR Part 310, and any other similar Federal or State laws. The user agrees not to violate these or any other applicable anti-solicitation laws and represents and warrants that its use of the Text-Em-All Service will not violate these or other similar laws.
User agrees that it is the sole responsibility of User to abide by any laws defined by the State or Federal Government in which Text-Em-All Services will be applicable. User understands and agrees that Text-Em-All will not be held responsible for damages to the User or any third party incurred due to User's failure to abide by State and/or Federal laws. You may visit the Federal Communications Commission Web site at http://www.fcc.gov and the Federal Trade Commission Web site at http://www.ftc.gov. Please refer to the appropriate State Attorney Generals office or other applicable offices for telemarketing rules and or regulations pertaining to your intended application and use of the Text-Em-All Service.
Without limiting your obligations under the above-referenced laws, you agree and warrant to Text-Em-All that:
- The owners of the phone numbers you initiate messages to through the Text-Em-All Services have consented or otherwise opted into the receipt of such messages as required by any applicable law or regulation;
- You will follow any calling time restrictions under Federal or State law that would be applicable to your use of the Services; and
- You will provide required contact information in all prerecorded messages by stating your organization’s name at the beginning of your message, and a phone number at which your organization can be reached at the end of your message.
14. No responsibility for content
As part of the Text-Em-All Service, Text-Em-All may offer User access to communications, media, and commerce services. Text-Em-All does not guarantee the accuracy, integrity, quality or appropriateness of any messages, communications, information, data, text, music, sound, or other materials ("Content"), whether publicly posted or privately transmitted through the Text-Em-All Service. You acknowledge that the Text-Em-All Service simply acts as a passive conduit for the distribution and transmission of information. You acknowledge that Text-Em-All has no obligation to screen, preview, or monitor such Content. By using the Text-Em-All Service, you agree that it is solely YOUR RESPONSIBILITY to evaluate the accuracy, usefulness, completeness, or appropriateness of any Content that you initiate, receive, access, post, or otherwise transmit through the Text-Em-All Service, including Content that may be offensive, indecent or objectionable. Under no circumstances will Text-Em-All be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content sent, accessed, posted or otherwise transmitted via the Text-Em-All Service.
Text-Em-All may make identifiable information available to our employees and third parties with whom we contract in order to provide you the Text-Em-All Service. While Text-Em-All is committed to protecting your privacy, Text-Em-All does not guarantee that your communications, contact information, and other identifiable information will never be disclosed. You acknowledge and agree that Text-Em-All may disclose any information or Content as described herein, or if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (a) comply with any legal process; (b) respond to claims of a violation of the rights of third parties; or (c) protect the rights, property, or safety of Text-Em-All, its users or the public. Text-Em-All does not accept any responsibility for accidental or inadvertent disclosure, unauthorized access, or other disclosure as required by law or described herein.
16. Service fees and charges
The basic account fees ("Service Fees") shall be provided at the rates set out in the Text-Em-All pricing plan at the time of subscription, plus applicable taxes, fees, and surcharges. Text-Em-All may modify subscription Service Fees at renewal periods.
17. Subscription billing
Service Fees for subscription users of the Text-Em-All Service will be automatically charged monthly to the credit or debit card on file for User. If the Subscriber signs up on the 10th for a monthly payment to Text-Em-All will be due on the 10th of each subsequent month. If the Subscriber increases its plan in the middle of a month it is responsible for all additional costs at the time of increase.
If for any reason payment is not effected through User's credit or debit card and payment becomes past due, Text-Em-All will assess a late payment charge of 1.5% per month, or 18% annually (or the highest amount allowed by law, whichever is lower) on the amount due. The total amount of the late payment, and the late charge, shall be due and payable immediately. User is responsible for any fees, including attorney and collection fees that Text-Em-All may incur in its efforts to collect any Service Fees, surcharges and late payment charges owing from the User. Additionally, Text-Em-All reserves the right to immediately and without notice terminate the account of any User with a past due balance. Text-Em-All reserves the right to change the billing process at any time upon providing notice in writing or via email.
Unlimited Usage on Subscription Accounts: You agree and Text-Em-All retains the right, at its sole discretion, to determine whether or not User is abusing the unlimited usage privilege on a subscription account. If TextEm-All determines that an account is abusing the unlimited usage privilege, Text-Em-All may restrict or terminate that account. As a guideline only, a user that creates broadcasts that result in more calls per day than the maximum number of recipients in their subscription plan will be considered in abuse of the unlimited usage privilege. Abuse may be addressed by contacting the group leader to warn of excessive usage. Text-Em-All reserves the right to charge an additional 9 cents ($.09) per call for any excessive calls, as determined at the sole discretion of Text-Em-All.
18. Free trials
Text-Em-All may permit Users to use the Text-Em-All Service on a free trial basis. During this time, the User will not incur any charges or fees for use of the service. After the expiration of your free trial, you will have the option to purchase a Text-Em-All messaging package or subscription as described on the Text-Em-All web-site. Text-Em-All reserves the right to terminate the account of any free trial User at any time.
19. Term and termination
Text-Em-All Service subscriptions shall automatically renew on a monthly basis at the rate indicated on the pricing plans page of the Text-Em-All.com website. Users may discontinue their subscription at any time by the instructions on the website. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH SUBSCRIPTION PERIODS. Users that have no past-due balance and have paid for the current month will be able to complete broadcasts on their canceled account until their paid subscription ends.
At Text-Em-All’s sole discretion, Text-Em-All per-call service plans may expire after one hundred eighty (180) days of inactivity or upon exhaustion of the messages. Inactivity is defined to mean that User has neither purchased an additional per-call plan nor initiated a broadcast. Text-Em-All per-credit service plans are non-refundable.
20. Liability disclaimer
You agree that:
a. If you use the Text-Em-All service, you do so at your own and sole risk. The Text-Em-All service is provided on an "as is" and "as available" basis. Text-Em-All expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
In the event of a critical emergency, regular call-em-all.com messaging services may temporarily be pre-empted to provide service to clients with emergency-related needs.
B. Text-Em-All does not warrant that (i) the Text-Em-All service will meet your requirements, (ii) the Text-Em-All service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Text-Em-All service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the Text-Em-All service will meet your expectations, (v) any information you provide or call-em-all collects will not be disclosed, or (vi) any errors in any data or software will be corrected. You are especially advised not to use or rely on the Text-Em-All service and information or any other program, information or service whatsoever related thereto for "content-sensitive" or "mission-critical" applications and use. "content-sensitive" shall mean any information or data you do not wish to be accessible to other users. "mission-critical" applications and use shall mean applications and use that may result in damage.
C. If you access or transmit any content through the use of the Text-Em-All service, you do so at your own discretion and your sole risk. You are solely responsible for any loss or damage to you in connection with such actions.
D. No data, information, or advice obtained by you in oral or written form from Text-Em-All or through or from the Text-Em-All service shall create any warranty not expressly stated herein.
21. Limitation of liability
You expressly agree that Text-Em-All shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages (even if call-em-all has been advised of the possibility of such damages), resulting from (i) the use or inability to use the call-em-all service; (ii) the cost of any substitute goods and services purchased to replace any goods or services purchased or obtained as a result of any information obtained from or transactions entered into through or from the Text-Em-All service; (iii) disclosure of, unauthorized access to or alteration of your information or messages; (iv) statements or conduct of any service providers or other third party on the Text-Em-All service; or (v) any other matter relating to the Text-Em-All service.
You agree to indemnify and hold harmless Text-Em-All and its affiliates and 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 Text-Em-All 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: (i) your breach of the above warranties; or (ii) any use by you, or an account or computer owned by you, of the Text-Em-All Services. You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but 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 that is otherwise subject to indemnification by you if you have not responded reasonably to the applicable matter. You acknowledge and agree to be held liable for any and all damages caused to Text-Em-All by you as a direct result of a violation of local, state, national or international laws and regulations, including but not limited to those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by Text-Em-All to you.
23. Proprietary rights
You acknowledge and agree that the Text-Em-All Service and any necessary software used in connection with the Text-Em-All Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Text-Em-All Service or other users is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You may not, and agree not to, modify, reformat, copy, display, distribute, transmit, publish, license, create derivative works from, transfer or sell any information, products or services obtained from the Text-Em-All Service, except as set forth herein. Text-Em-All, the Text-Em-All logo, and other Text-Em-All logos, product, and service names may be trademarks, service marks, or other intellectual property of Text-Em-All (the "Text-Em-All Marks"). You agree not to display or use the Text-Em-All Marks in any manner without the prior, express written permission of Text-Em-All.
You agree that Text-Em-All may communicate any notices to you, including notices of changes to the User Agreement, through email, regular mail, or by posting of those notices on the Text-Em-All.com web site or through the Text-Em-All Service. If applicable, Text-Em-All will use the contact details provided with registration.
25. Entire agreement
The User Agreement governs your use of the Text-Em-All Service. This User Agreement, your pricing plan, and your payment agreement constitute the entire agreement between you and Text-Em-All. They supersede any prior agreements between you and Text-Em-All. Additional terms and conditions may apply when you use the services of other carriers and service providers. These additional terms will not reduce, diminish, or eliminate any rights Text-Em-All possesses with respect to this User Agreement.
26. Governing law and arbitration
The User Agreement and the relationship between you and Text-Em-All shall be governed by the laws of the State of Texas without regard to its conflict of law provisions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Text-Em-All Service or to the terms of this User Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. You agree to submit any dispute with Text-Em-All exclusively to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The location of any arbitration shall be in the city of Frisco, Texas. You agree any arbitrator shall not have the authority to award punitive damages. You agree to be bound by any ruling in such arbitration proceeding and that such ruling shall be enforceable in any court of competent jurisdiction.
Any failure by Text-Em-All to exercise any rights or enforce any of the terms of this User Agreement shall not constitute a waiver of such rights or terms. If any portion of the User Agreement is found by an arbitrator or a court of competent jurisdiction to be invalid, the arbitrator or court should nevertheless give effect to the parties' intentions expressed herein. All other provisions of the User Agreement remain in full force and effect.
28. HIPAA and MRPA
Both Text-Em-All, if under an executed Business Associate Agreement with User, and User, a designated Covered Entity (“CE”) under the Health Insurance Portability and Accountability Act and its associated amendments (“HIPAA”), agree, pursuant to their respective obligations under HIPAA and the Texas Medical Records Privacy Act (“MRPA”), not to access or disclose Individually Identifiable Health Information, Protected Health Information, or electronic Protected Health Information (all together as “PHI”) obtained, received, shared or stored while utilizing the services, in violation of HIPAA or MRPA.
You agree not to utilize the Text-Em-All services to send or transmit PHI (via messages being sent or data included in the notes field) under any circumstances unless you have first explained to the individual participant whose PHI is in question, any and all risks associated with sending PHI via SMS or Voice messaging systems. By utilizing the services, you acknowledge advising individual participants of said risks and you have obtained the requisite authorization, in writing, from their individual participants to utilize our SMS Text and Voice services to send informational messages only (ie. appointment reminders, appointment confirmation messages, vaccine reminders, wellness checkups, pre/post-op healthcare instructions, or prescription notifications).
You acknowledge and agree that it is your responsibility to conduct a HIPAA risk analysis and maintain a comprehensive HIPAA risk management program that includes appropriate physical, technical and administrative safeguards (including training of authorized users on its policies and procedures) with regard to PHI (as defined by HIPAA).