Thank you for selecting the Services offered by MessageSender(referred to as “we,” “our,” or “us”) on this website. Please review these Terms of Service (“Agreement”) thoroughly. This Agreement is a legal agreement between you and MessageSender. By clicking “I AGREE,” indicating acceptance electronically, accessing or using the Services, you agree to these terms. If you do not agree to this Agreement, then do not indicate acceptance of the Agreement, and do not use the Services.
This Agreement describes the terms governing your use of the MessageSender services provided to you on this website, including content, updates and new releases, (collectively, the “Services”).
2. YOUR RIGHT TO USE THE SERVICES AND RESTRICTIONS
2.1 The Services are protected by copyright, trade secret, and other intellectual property laws. You are only granted the right to use the Services, and MessageSender all rights of ownership in the Services not granted to you in writing here. As long as you meet any applicable payment obligations and comply with this Agreement, MessageSender grants to you a personal, limited, nonexclusive, nontransferable right (except as expressly stated herein) to use the Services that is valid only for the period of use provided in the ordering and activation terms, and only for the purposes described by MessageSender on the website for the Services.
2.2 You agree not to use the Services or content on this website in a manner that violates any applicable law, regulation or this Agreement. For example, unless authorized by MessageSender in writing, you agree you will not:
- Provide access to or give any part of the Services to any third party.
- Modify, disrupt or interfere with the Services, supporting servers, or networks either manually or through the use of scripts, viruses, or worms.
- Reproduce, duplicate, copy, deconstruct, sell, trade or resell the Services.
- Attempt to access any other MessageSender systems that are not part of these Services.
- Excessively overload the MessageSender systems used to provide the Services.
If you violate any of these terms, this Agreement and your right to use the Services may be terminated by MessageSender in its sole discretion.
3. PAYMENT. For Services offered on a payment or subscription basis, the following terms apply, unless MessageSender notifies you otherwise in writing. This Agreement also incorporates by reference and includes program ordering and payment terms provided to you on the website for the Services:
a. Payments will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the website for the Services.
b. You must pay with one of the following:
(1) A valid credit card acceptable to MessageSender;
(2) A valid debit card acceptable to MessageSender;
(3) Sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or
(4) By another payment option MessageSender provides to you in writing.
c. If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your account and refuse any use of the Services.
d. MessageSender will automatically renew your annual Services at the current rates, unless the Services are cancelled or terminated under this Agreement.
e. Additional cancellation or renewal terms may be provided to you on the website for the Services.
4.YOUR PRIVACY AND PERSONAL INFORMATION. You can view MessageSender’s Privacy Statement on the website, or via a link on the website for the Services you have selected. You agree to be bound by the applicable MessageSender Privacy Statement, subject to change in accordance with its terms. Most importantly, you agree:
- To MessageSender maintaining your data according to the MessageSender Privacy Statement, as part of the Services.
- To give MessageSender Permission to aggregate your uploaded, non-personally identifiable account data with that of other users of the Service. By way of example, this means that MessageSender may use that aggregated data to improve services, design promotions, or provide ways for you to compare business practices with other users.
5.1 You are responsible for your content. You are legally responsible for all information, data, text, photographs, graphics, messages or other materials ("Content") uploaded, posted or stored through your use of the Services. You grant MessageSender a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you with the Services. You agree not use the Services for any illegal purpose or in violation of any applicable local, state, federal or international law.You are encouraged to archive your Content regularly and frequently. You are responsible for any Content that may be lost or unrecoverable through your use of the Services. You must provide all required and appropriate warnings, information and disclosure. You agree that you will not use the Services to share, store, or in any way distribute financial data that is not in accordance with the law. Any users suspected of having information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law may have their accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions. MessageSender is not responsible for the Content or data you submit on the website.
You agree not to use the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
a. Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing , offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or "flaming" others, or criminal or civil liability under any local, state, federal or foreign law;
b. Content or data that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent's consent in the case of a minor);
c. Except as otherwise permitted by MessageSender in writing, advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
d. Virus, trojan horse, worm or other disruptive or harmful software or data; and
e. Any information, software or Content which is not legally yours and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.
5.2 Community forums. The Services may include a community forum to exchange information with other users of the Services and the public. Please use respect when you interact with other users. MessageSender does not support and is not responsible for the accuracy of others’ content in these community forums. Do not reveal information in the community forum that you do not want to make public. Users may post hypertext links to content hosted and maintained by third parties for which MessageSender is not responsible.
5.3 MessageSender may freely use feedback you provide. You agree that MessageSender may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant MessageSender a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to MessageSender in any way.
5.4 MessageSender may monitor your content from time to time. MessageSender may, but has no obligation to, monitor content on the Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect MessageSender or its customers, or operate the Services properly. MessageSender, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
6. ADDITIONAL TERMS YOU AGREE TO
6.1 MessageSender does not give professional advice. MessageSender is not in the business of providing legal, financial, accounting, or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
6.2 We may tell you about other MessageSender services. You may be offered other services, features, products, applications, online communities, or promotions provided by MessageSender ("MessageSender Services"). If you decide to use any of these MessageSender Services, additional terms and conditions and separate fees may apply. You acknowledge that in accessing some MessageSender Services you may upload or enter data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You grant MessageSender permission to use information about your business and experience to help us to provide the MessageSender Services to you, including updating and maintaining your data, addressing errors or service interruptions, and enhancing the types of data and services MessageSender may provide to you in the future. You grant MessageSender permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally. We may use this data to improve services and to compare business practices with other company standards. We may use your data to create, market or promote new MessageSender offerings to you and others. You also grant MessageSender permission to share or publish summary results relating to research data and to distribute or license such data to third parties.
6.3 We may tell you about third party products or services. Subject to the MessageSender Privacy Statement, you may be offered products or services by third parties who are not affiliated with MessageSender (“Third Party Products”) or the Services may contain links to third party websites (“Third Party Sites”) and you agree that MessageSender can use your contact information, including name and address, for the purpose of offering these products to you. If you decide to use any Third Party Products or access any Third Party Sites, you are responsible for reviewing the third party’s separate product terms, website terms and privacy policies. You agree that the third parties, and not MessageSender, are responsible for their product’s performance and the content on their websites. MessageSender is not affiliated with these Third Party Products or Third Party Sites and has no liability for them.
6.4 Communications choices. MessageSender may be required by law to send you communications about the Services or Third Party Products. You agree that MessageSender may send these communications to you via email or by posting them on one of our sponsored websites, such as smallbusiness.wmpos.com. If you later decide that you do not want to receive future Communications electronically, please review the Privacy statement provided on the on the Services website to review your communications choices.
6.5 You will track your passwords and accept updates. You are responsible for securely managing your password(s) for access to the Services. If you become aware of any unauthorized access to your Services account, theft or loss of your password, you agree to contact MessageSender as soon as possible. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Services. You agree to receive these updates automatically as part of the Services.
7.DISCLAIMER OF WARRANTIES
7.1 YOUR USE OF THE SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MESSAGESENDER, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, “SUPPLIERS”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. MESSAGESENDERAND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.
7.2 MESSAGESENDER AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 ("HIPAA"), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW.
8.LIMITATION OF LIABILITY AND INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF MESSAGESENDER, AND ITS AFFILIATES AND SUPPLIERS FOR ALL MATTERS OR CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, MESSAGESENDER AND ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET MESSAGESENDER SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF MESSAGESENDER AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF MESSAGESENDER, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND ITS USE.
You agree to indemnify and hold MessageSender and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Services or breach of this Agreement (collectively referred to as “Claims”). MessageSender reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by MessageSender in the defense of any Claims.
9.CHANGES TO THIS AGREEMENT OR THE SERVICES. We may change this Agreement from time to time, and the changes will be effective when posted on our website for the Services or when we notify you by other means. Please review the Agreement periodically on this website for changes. We have the right to change any of the terms of this Agreement upon reasonable notice to you. We may also change or discontinue the Services, in whole or in part, including but not limited to, the Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Services after MessageSender posts or otherwise notifies you of any changes, indicates your agreement to the changes.
10.TERMINATION. MessageSender may immediately and without notice terminate this Agreement or suspend the Services provided to you, if you fail to comply with these terms or if you no longer agree to receive electronic communications (see Section 6.4). Upon termination you must immediately stop using the Services and any outstanding payments will become due. Any termination of this Agreement shall not affect MessageSender’s rights to any payments due to it. MessageSender may terminate a free account at any time. Other requirements regarding termination or cancellation of the Services may apply based on the specific ordering terms for the Services provided to you. Sections 1.2, 5, 8 through 15 will survive and remain in effect even if the Agreement is terminated, cancelled or rescinded.
11.EXPORT RESTRICTIONS. You acknowledge that this website, the Services, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export the Services, or any part of the Services, in violation of these laws and regulations, directly or indirectly. You also agree not to provide access to any part of the Services to anyone who you have reason to know may use the Services in the development of nuclear, chemical, or biological weapons.
12. GOVERNING LAW AND JURISDICTION. New York state law governs this Agreement without regard to its conflicts of laws provisions. To resolve any legal dispute arising from this Agreement, you and MessageSender agree to the exclusive jurisdiction of state courts in New York County, New York U.S.A. MessageSender does not represent that information on the website for the Services is appropriate or available for use in all countries. MessageSender prohibits accessing materials from countries or states where contents are illegal. You are accessing this website on your own initiative and you are responsible for compliance with all applicable laws.
13. LANGUAGE. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern. The parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.
14.GENERAL. This Agreement is the entire agreement between you and MessageSender and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as provided in this Agreement in Section 9 above. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable.
15. SUBSCRIPTION. The Software is licensed on a monthly or yearly subscription basis, as selected by User or its agent.
15.1 Termination by User. User may notify MessageSender to cancel the subscription prior to the beginning of each Renewal Term. Your rights to use the Software may be terminated by MessageSender immediately and without notice if MessageSender is unable to debit your or its agent’s Card in accordance with this Agreement.
15.2 Transfer of Agreement. The agreement can be transferred to another person or entity only if such license has not been activated. Once validated, and a company is created, the Software will not work by another entity. Even if you stop using the Software, MessageSender has fulfilled your subscription term.
16. PERMITTED DISCLOSURES AND USE OF DATA. You acknowledge and agree that in order to provide you with access to and use of the Software and Services, MessageSender may provide your Access Information and Account Data to (i) your employee or agent who is identified in the Registration Data as the current system administrator for the your account (the “Current Administrator”), (ii) such other employee or agent who may be designated by you as a replacement administrator for the your account by following the procedures required by MessageSender to effectuate such replacement, and (iii) any other person identified as an authorized user of the Software in the set-up interview form or in any subsequent communication to MessageSender(collectively, “Information Recipients”).
17. SOFTWARE USE, STORAGE AND ACCESS. MessageSender shall have the right, in its sole discretion and with reasonable notice posted on the web-site and/or sent to you at the Current Administrator’s email address provided in the Registration Data, to revise, update, or otherwise modify the Services and establish or change limits concerning use of the Software and Services, temporarily or permanently, including but not limited to (i) the amount of storage space you has on the Software at any time, and (ii) the number of times (and the maximum duration for which) you may access the Software in a given period of time. MessageSender reserves the right to make any such changes effective immediately to maintain the security of the system or User Access Information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Software and Services to which such changes relate. Your continued use of the Software or Services will constitute your acceptance of and agreement to such changes. MessageSender may, from time to time, perform maintenance upon the Software or Services resulting in interrupted service, delays or errors in the Software or Services. MessageSender will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided.