Text Groove Communications Inc. and its affiliates (“Text Groove” or “we”) offer cloud-based software services that enable Toll Free, landline and VOIP telephone numbers to send and receive text messages, as well as application program interfaces, downloadable web software applications and related products and services (altogether, our “Services”). Text Groove provides its Services subject to these Terms of Service (“Terms”).
BY SIGNING AN ORDER FORM OR BY CLICKING “CONFIRM” OR OTHERWISE ELECTRONICALLY AGREEING TO THESE TERMS, YOU AFFIRM TO TEXT GROOVE THAT:
IF YOU USE THE SERVICES OR AGREE TO THESE TERMS ON BEHALF OF A LEGAL ENTITY, THEN YOU REPRESENT TO TEXT GROOVE THAT YOU HAVE THE AUTHORITY TO BIND THAT LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT HAVE THE AUTHORITY TO AGREE TO THESE TERMS, THEN YOU ARE NOT AUTHORIZED TO USE THE SERVICES.
10. Free Trials and Beta Services.
10.1 Free Trials. If indicated as part of the Order Form or web-based electronic submission application process, a Customer may have trial access to the Service for a specified Free Trial period. You may cancel your use of the Services at any time during the Free Trial period. At the end of the Free Trial period, your subscription will automatically continue on a paid subscription basis for the Initial Subscription Term, subject to Fees, unless you take action to cancel the subscription prior to the expiration of the Free Trial period.
Text Groove may require Customer to provide a valid credit card prior to the beginning of the Free Trial. At the end of the Free Trial, if Customer did not previously cancel, Customer’s credit card is charged the Fees as stated in the Order Form.
If you have used Text Groove’s web-based electronic submission application process for signing up for your Free Trial you may cancel at any time prior to the expiration of the Free Trial period within the application. Please login to the Text Groove Admin console and cancel using the in-app cancellation process.
For Customers that have signed an Order Form that wish to cancel during the Free Trial period, please send an email before your Free Trial expires to email@example.com. Please use the subject line “Free Trial Cancellation” and add your telephone number (in xxx-xxx-xxxx format) in the body of email.
10.2 Beta Services. Customer may access and use Beta Services solely for testing, demonstration, trial and other evaluative (but not any developmental or productive) purposes, including to assess the Beta Services’ compatibility with the Customer System, Customer Application or business needs. Customer agrees to provide Feedback about the Beta Services as reasonably requested by Text Groove. Text Groove reserves the right to modify Beta Services without notice until Beta Services are deemed part of the Services and to decide not to make Beta Services part of the Services. These Terms govern Free Trials and Beta Services unless otherwise stated.
10.3 WAIVERS AND DISCLAIMERS RELATED TO FREE TRIALS AND BETA SERVICES. NOTWITHSTANDING THE WARRANTIES AND DISCLAIMERS, INDEMNIFICATION AND LIMITATIONS OF LIABILITY SECTIONS IN THESE TERMS, SERVICES MADE AVAILABLE DURING A FREE TRIAL OR WITH RESPECT TO BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND AND TEXT GROOVE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY OF ANY KIND ARISING FROM USE OF A FREE TRIAL OR BETA SERVICES. IF ANY EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, TEXT GROOVE’S LIABILITY WITH RESPECT TO THE FREE TRIAL OR BETA SERVICES SHALL NOT EXCEED $1,000.
WITHOUT LIMITING THE FOREGOING, TEXT GROOVE DOES NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S FREE TRIAL OR USE OF BETA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR (B) CUSTOMER’S FREE TRIAL OR USE OF BETA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, CUSTOMER IS FULLY LIABLE TO TEXT GROOVE UNDER THESE TERMS FOR DAMAGES ARISING OUT OF USE OF THE SERVICES BY CUSTOMER AND ITS AUTHORIZED USERS AND END USERS DURING THE FREE TRIAL OR WITH RESPECT TO BETA SERVICES AND ANY BREACH BY CUSTOMER OF THESE TERMS AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
11. Privacy and Data Protection.
11.2 Security. Text Groove uses administrative, physical and technical safeguards intended to protect Customer Data. Our safeguards are designed to provide a level of security appropriate to the risk of processing Customer Data and include (as applicable) measures to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and a procedure for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of Customer Data.
12. Customer Confidentiality.
The parties agree that Customer Data are Confidential Information of Customer and that the Documentation, Order Forms, Services and Usage Data are Text Groove’s Confidential Information.
In these Terms, Confidential Information does not include any information that: (i) is publicly available through no fault of the receiving party; (ii) was known or disclosed to the receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Customer expressly acknowledges and agrees that use and disclosure of Customer Data to an Integration Partner or telecommunication provider in order to provide the Services to Customer or in connection with fraud detection or spam prevention is not a breach of this Section 13.
Text Groove and you each expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 13 and that, in the event of an actual or threatened breach of the provisions of confidentiality, the non-breaching party is entitled to seek immediate injunctive and other equitable relief, without the requirement to post bond and without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violation of these confidentiality obligations.
13. Subscription Term and Termination.
13.1 Subscription Term. The term of Customer’s subscription for the Services begins on the date specified in the Order Form or, if no Order Form is in effect, the date on which Customer’s first Authorized User creates Account Credentials or, with respect to the web-based electronic submission application process, upon clicking “Confirm”, and ends in accordance with the Service Plan (“Initial Subscription Term”). Customer’s subscription automatically renews for successive periods equal in length to the Initial Subscription Term (each, a “Renewal Term”), unless otherwise specified in the Service Plan, Order Form or Master Services Agreement or Customer cancels Customer’s subscription at the end of the Free Trial or in accordance with the procedures set forth in Section 14.3 of these Terms. Notwithstanding the preceding sentence, for any annual or multi-term Order Form that renews on or after December 1, 2021, the Renewal Term will be amended to a month-to-month Subscription Term, unless cancelled earlier in accordance with Sections 14.2 or 14.3 of these Terms. No Customer Subscription Term will be renewed after November 1, 2022 and all Subscription Terms subject to these Terms terminate on December 31, 2022 unless expressly agreed otherwise between a Customer and Text Groove. The Initial Subscription Term and all Renewal Terms (if any) are together the “Subscription Term.”
13.2 Termination or Suspension by Text Groove. Text Groove may terminate Customer’s subscription by providing Customer with at least thirty (30) days’ prior written notice, with termination to take effect at the end of the Subscription Term in which the notice period concludes. Text Groove may terminate or suspend access to the Services immediately if Text Groove determines in its sole discretion that: (a) Customer or any of Customer’s Authorized Users violated (or give Text Groove reason to believe you have violated) these Terms or the Acceptable Use Policy; (b) the traffic created from Customer’s use of the Services or Customer’s use of the Services is fraudulent or adversely affecting the operating capability of the Services; (c) providing the Services is prohibited by law or has become impractical or unfeasible for any legal or regulatory reason; (d) Customer has experienced a liquidation, commencement of dissolution proceedings, disposal of assets or change of control, a failure to continue business, assignment for the benefit of creditors, or Customer became the subject of bankruptcy or similar proceeding; (e) use of the Services by Customer or its Authorized Users or End Users threatens the availability, integrity, resilience or security of the Services; or (f) Customer has not paid the applicable Fees due as described in Section 15. Text Groove also may be required to suspend the Services generally as a result of changes in telecommunications provider requirements, some of which may occur without notice to Text Groove. Text Groove shall not be liable to you or any third party for any suspension associated with changes in telecommunications provider requirements.
13.3 Termination by Customer. Customer may cancel or terminate Customer’s subscription by providing Text Groove with at least thirty (30) days’ prior written notice, with termination to take effect at the end of the Subscription Term in which the notice period concludes. To be effective, a cancellation notice must be sent to firstname.lastname@example.org. Cancellation of a Free Trial is governed by Section 11.
13.4 Notice of Suspension or Termination. If Text Groove suspends access to the Services, Text Groove will make a reasonable attempt to notify Customer and, once the violation is remedied, restore access to the Services. If Text Groove terminates Customer’s access to the Services, Text Groove will send a notice using the contact information provided by Customer. Text Groove shall not be liable to Customer (including, for clarification, any Authorized User or End User) or any third party for any suspension or termination that complies with these Terms.
13.5 Effect of Termination. Upon expiration of any earlier termination of the Subscription Term, your right to use the Services automatically terminates and all Customer Data associated with your account may be deleted. Text Groove will not have any liability whatsoever to you for any suspension or termination, including for deletion of Customer Data. Text Groove may retain Customer’s Confidential Information (including Customer Data) in standard archival or computer back-up systems, or for litigation and regulatory purposes or to the extent required by law. All retained information is treated as Confidential Information for as long as Text Groove retains it.
You are solely responsible for ensuring you export any Customer Data prior to any termination of your access to the Services. Upon a Customer’s request, and provided such Customer is not in breach of any of its obligations under these Terms, including Customer’s payment obligation, Text Groove may, in its sole discretion, export Messages in a format determined by Text Groove to Customer. Customer will be responsible for any costs associated with such export.
If your ability to access the Services is discontinued by Text Groove due to your violation of these Terms or the Acceptable Use Policy, then you agree that you will not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated.
The terms of this Section 13 and the terms of the following Sections will survive: Section 11 (for as long as Text Groove holds your personal information) and Sections 9, 12, 13, 14, 17, 18.
14. Fees and Payment Terms.
14.1. Fees. Customer agrees to pay Fees when due and using the payment method set forth in the Order Form or as agreed in writing. Fees may include an activation fee and/or recurring minimum payments, per message charges and/or charges for each text-enabled telephone number as set forth in the Order Form. Except as set forth in these Terms or an Order Form, all Fees are non-refundable. Unless expressly agreed otherwise in writing with Text Groove, Text Groove reserves the right to increase Fees applicable to any Renewal Term upon at least forty-five (45) days’ prior written notice to Customer.
14.2 Credit Card Payment. If Customer elects to pay via credit card, then Customer agrees that Text Groove will charge Customer’s credit card as set forth in the Order Form. If the credit card provided is declined for any reason, then Text Groove reserves the right to suspend the Services. By providing Text Groove with your credit card number account and associated payment information, you agree that Text Groove is authorized to immediately charge your account for all Fees due and payable to Text Groove hereunder and that no additional notice or consent is required. You agree to immediately notify Text Groove in writing of any change in your billing address or the credit card or billing information, used for payment hereunder. If you elect to pay via credit card, then you are responsible for either (a) enabling auto-recharge on your account or (b) ensuring that your account has a sufficient positive balance to cover all Fees due. If, for any reason, you have a negative balance on your account, then we reserve the right to suspend the Services.
14.3 Invoicing. If Text Groove agrees in writing to send invoices to Customer and Customer pays in arrears, then Text Groove will send monthly invoices (as PDF) to Customer via email associated with the Customer account. Customer will pay Fees hereunder upon receipt of the invoice, or as may otherwise be provided under Customer’s Order Form, in United States dollars. If Customer is overdue on any payment of Fees and fails to pay within thirty (30) days of Text Groove’s of the due date, then Text Groove may assess and Customer must pay a late charge of 1.5% per month or the maximum amount allowable by applicable law, whichever is less. Following the notice of non-payment, Text Groove also may suspend the Services until Customer pays the unpaid Fees plus late fees. Text Groove will have no liability for any damage, liability, loss (including any loss of data or profits) or any other consequence that Customer may incur if Text Groove suspends Customer’s access to the Services pursuant to this Section 15.3.
14.4 Fee Disputes. If Customer has a good-faith dispute about any of the Fees, Text Groove and Customer agree to cooperate diligently to resolve the dispute. Customer must notify Text Groove at email@example.com in writing within sixty (60) days of the date on which Customer is charged.
14.5 Cancellation/Reduction in Services. Customer is entering into a contract with Text Groove for Services for the Subscription Term designated in the Order Form. Unless otherwise agreed in writing, Text Groove charges Fees for the entire Subscription Term in advance. Cancellation or reduction in the number of text-enabled telephone numbers does not relieve the Customer’s obligation to pay all Fees due for the entire Subscription Term. If Text Groove agree to payment arrangements other than payment in advance for any Subscription Term, and Customer elects to cancel or reduce their subscription during the Subscription Term, the remaining balance of the Fees is immediately due and owing; if payment is made via a payment provider or ACH payment method, the remaining outstanding Fees will be charged upon cancellation. If Customer is paying based on invoices, the remaining balance of the Fees will be billed upon cancellation. Payment is due upon receipt of the invoice. If you cancel your subscription, your ability to use the Services will terminate at the end of the then-current Subscription Term unless expressly otherwise agreed with Text Groove and Customer is not eligible for a prorated refund of any portion of the Fees paid for the then-current Subscription Term.
Text Groove’s Fees are exclusive of any applicable Sales Tax, VAT taxes, use taxes, utility user’s fees, excise taxes, any other business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes and carrier surcharges imposed on or with respect to our Services, whether these taxes are imposed directly on you or on Text Groove (collectively, the “Taxes”). If any Services, or payments for any Services, under the Terms are subject to Taxes, or in any country/jurisdiction and you have not remitted the applicable Taxes to Text Groove, you will be responsible for the payment of such Taxes and any related penalties or interest to the relevant tax authority, and you will indemnify Text Groove for any liability or expense we may incur in connection with such Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable Taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Text Groove is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. For purposes of this section, Taxes do not include any taxes that are imposed on or measured by the net income, property tax or payroll taxes of Text Groove.
16. Warranties; Disclaimers; Release.
16.1 Customer Warranties. Customer represents and warrants to Text Groove that (i) Customer has all necessary rights and consents to use Customer Data and grants Text Groove the right to use Customer Data as required or permitted in these Terms; and (ii) Customer will comply with these Terms and all applicable laws related to Customer’s use of the Services, including without limitation obtaining all necessary consent and honoring all opt-out requests from End Users with respect to sending and receiving Messages
YOU REPRESENT AND WARRANT THAT (I) YOU HAVE OR HAVE PROCURED ALL POWER AND AUTHORITY NECESSARY TO USE THE SERVICES AND THE DEVICES AND TELEPHONE NUMBERS THAT YOU REGISTER OR ASSOCIATE WITH YOUR ACCOUNT AND NO CONSENT OF ANY THIRD PARTY IS REQUIRED, (II) YOU WILL NOT USE THE SERVICES ON A TELEPHONE NUMBER THAT WAS EXCHANGED, RENTED OR PURCHASED FROM A THIRD PARTY UNLES YOU HAVE PERMISSION OF THE TELEPHONE NUMBER’S OWNER, (III) THE TELEPHONE NUMBER IS NOT A WIRELESS MOBILE TELEPHONE NUMBER, AND (IV) YOU AGREE TO EXECUTE ANY ADDITIONAL DOCUMENTS NECESSARY TO ENSURE YOUR AUTHORITY TO USE AND TEXT ENABLE THOSE TELEPHONE NUMBERS.
16.2 Text Groove Warranties. Text Groove represents and warrants to Customer that the Services will perform materially in accordance with the applicable Documentation. Customer’s sole and exclusive remedy if Text Groove breaches the foregoing warranty is, at Text Groove’s option, to re-perform the affected Services or refund to Customer the Fees actually paid for the affected Services.
16.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES (INCLUDING BETA OFFERINGS AND FREE TRIALS) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TEXT GROOVE DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, AVAILABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 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.
TEXT GROOVE MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; OR (5) TEXT GROOVE WILL CONTINUE TO OFFER THE SERVICES IN WHOLE OR IN PART.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT TEXT GROOVE IS NOT LIABLE AND CUSTOMER EXPRESSLY AGREES NOT TO SEEK TO HOLD TEXT GROOVE LIABLE FOR (i) THE CONDUCT OF OPERATORS OF TELECOMMUNICATIONS NETWORKS AND MOBILE CARRIERS, AND THAT THE RISK OF INJURY FROM THESE THIRD PARTIES RESTS ENTIRELY WITH CUSTOMER AND (II) MALICIOUS CODE OR INAPPROPRIATE CONTENT SUBMITTED TO OR THROUGH THE SERVICES BY AN UNAUTHORIZED THIRD PARTY.
16.4 Release. Customer and each Authorized User hereby release Text Groove and its affiliates and each of their respective officers, directors, investors, shareholders, employees, agents and permitted successors and assigns from claims, demands, losses, damages, rights and actions of any kind (including personal injury, death and property damage) (each, a “Claim”) that directly or indirectly relates to or arises from use of the Services, including any interactions with or conduct of other Authorized Users, End Users or third-party websites of any kind arising in connection with or as a result of these Terms or use of the Services.
If you are a California resident, you hereby expressly waive any rights you may have under California Civil Code Section 1542, which states “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Customer will defend, indemnify and hold Text Groove and its officers, directors, employees and agents harmless from and against any actual or threatened claim, third-party discovery demand, governmental investigation or enforcement action (each, a “Indemnified Claim”) arising out of or relating to breach of Customer’s warranties in Section 17.1 or the Acceptable Use Policy. Text Groove will cooperate as fully as reasonably required in the defense of any Indemnified Claim, at Customer’s expense. Text Groove reserves the right, at Customer’s expense, to retain separate counsel in connection with an Indemnified Claim or, if Customer has not responded reasonably to the Indemnified Claim, to assume the exclusive defense and control of the Indemnified Claim in which Customer is a named party and that is otherwise subject to indemnification under this Section 18. Customer will pay all costs, expenses, reasonable attorneys’ fees, government fines and penalties, settlement amounts and other damages incurred by Text Groove in connection with an Indemnified Claim. Customer also is liable to Text Groove for all costs and reasonable attorneys’ fees Text Groove incurs to establish or enforce Text Groove’s right to indemnification under this Section 18. Customer agrees that this Section 18 survives termination of any account associated with Customer and the expiration or any earlier termination of these Terms.
18. Exclusion of Damages; Limitations of Liability.
EXCEPT FOR LIABILITY ARISING FROM VIOLATIONS OF SECTIONS 7, 8 OR 17.1, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS DESCRIBED IN THIS SECTION 19, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL TEXT GROOVE BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM OR $500, WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TEXT GROOVE AND YOU. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
19. Export Controls.