PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF THE REALMSG PLATFORM. THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
These Terms of Service (the "Terms") govern the individual, company and/or organizational (collectively, "you", "your" or " Customer") purchase and use of any of RealMsg services, including your use of the various text MMS message marketing services (collectively, the "Services") available through our website (https://www.Realmsg.com) (including both mobile and online versions) (the "Site"), and the software, technical and communications platform(s) available on and through the Site (collectively, the "Platform"). The Platform and Services are made available by Realmessage, Inc., d/b/a Realmsg ("Realmsg", "we" " our" or "us").
Description of RealMsg
1. Terms Applicable to the Purchase of Subscriptions to the Platform and Services
A. Generally .
To purchase access and use of the Platform and gain access to our Services, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence and authorized to bind the specific entity on whose behalf you are accessing and using the Platform or obtaining Services (if applicable). Prior to the purchase of access to the Platform or our provision of the Services, unless we make alternative payment arrangement with you, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For the specific subscription to the Platform/Services which you order, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. Realmsg or our third party credit card/payment processor will automatically bill your credit card or other form of payment submitted as part of the order process for such price.
B. Multiple Message Tiers & Termination .
All users have initial access to a free tier and multiple paid tiers for message distribution. All subscribers have access to the platform services and thereby do not have a monthly billed account. Your access to the Platform (including all Services available through the Platform and otherwise) will commence as of the date your payment for a message tier and is received by Realmsg. Your access (as applicable) will continue in full force and will be on an ongoing basis until such time as the Customer deletes account as further explained below and will be limited by the number of messages/month and Keywords (defined below) identified on the Site when you purchase your subscription (the "Subscription Term"). In the event that a Customer deletes their account with credits within their account, the Customer will not be entitled to receive a refund for the unused portion of the remainder of that paid package of messages. Realmsg will have the right, upon written notice to Customer, to terminate these Terms, and suspend a Customer's access to the Platform and Services, if: (a) any Customer fails to pay Realmsg any amount due to Realmsg under these Terms; and/or (b) the Customer materially breaches any term or condition of these Terms. Realmsg shall have the right to terminate these Terms and immediately suspend a Customer's access to the Platform and Services and/or suspend the provision of Services for non-payment. To the extent that your credit card on file with Realmsg is declined for any reason, Realmsg reserves the right, without notice, to immediately close your account, delete any data stored in your account and re-assign Keyword(s) (defined below) to other users. Upon the expiration or termination of these Terms for any reason, Customer's access to, and use of, the Platform and Services will terminate and you will no longer be charged for continued access.
C. Free Trials/Promotional Offerings .
We may offer promotional trial subscriptions to access the Platform and Services for free for a limited time or at special discounted prices. If you sign up for a trial use, your right to use the Platform and Services are limited by the terms of such trial and will terminate or renew on the terms of your trial arrangement and/or any applicable Additional Terms.
D. Your subscription to the Platform and Services.
A Customer whose fee (as posted on the Platform at time of sign-up) has been paid is entitled to all privileges included in the membership until the membership is cancelled by the enrolled Customer as set forth in the paragraph below. By providing your payment method information for your subscription, you are agreeing to pay a membership fee, and any applicable taxes and service fees (collectively, "Fees"). The Fees will be charged to your original payment method automatically, and only when customers purchases another membership package. Realmsg reserves the right to change the pricing of subscription at any time. In the event of a price change, Realmsg will post the new pricing on the Platform and attempt to notify you in advance by sending an email/text to the address you have registered for your account. You agree that we may change the pricing we charge you for your subscription and any Services offered in your subscription package by providing you with notice through an electronic communication from us and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You consent to our ability to change our pricing and the details of our subscription packages through an electronic communication to you. If you do not wish to accept a price or subscription package change made by us, you may cancel your subscription as described below, otherwise you will be deemed to have consented to the price/subscription package change and authorize Realmsg to charge the new Fees to your payment method. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify Realmsg within sixty (60) days after they first appear on the account statement.
E. Termination/Cancellation of Subscription .
A Customer has the right and ability to cancel or otherwise upgrade/downgrade their subscription to the Platform at any time upon using the functionality available in their account settings. If you are unable to log-in to your account, you may contact Realmsg by email at email@example.com Unless in the instance we offer a thirty (30) day money back guarantee, cancellation of your subscription to access the Platform and Services any time after purchase will result in forfeiture of the remainder of your subscription fee. To avoid a late cancellation fee or forfeiture of the subscription renewal fee, your subscription should be cancelled prior to the end of the then current Subscription Term. Upon cancellation or non-payment by you, the Customer will immediately lose access to their account, including areas of the Platform and utilization of our Services designated for subscribers only, any data stored in your account is immediately deleted and any of your assigned Keyword(s) (defined below) may be reassigned by us to other users. These Terms may be terminated by either party: (i) if the other party is in material breach of these Terms and the breach is not cured within thirty (30) days after written notice of the breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. We reserve the right to immediately suspend your access to the Platform or provision of our Services if your credit card is declined or you have undisputed amounts more than ten (10) business days past due. We also reserve the right to suspend your access to the Platform or provision of the Services if we reasonably determine that you or any Authorized Users (defined below): (i) use of the Platform disrupts or poses a security risk to the Platform, may harm our systems or may subject us or any third-party to liability; (ii) are using the Platform (including our Services) for fraudulent or illegal activities; or (iii) are using the Platform (including our Services) in breach of these Terms. Upon expiration or receipt of notice of termination of these Terms, you will cease using and accessing the Platform, the Services and any licenses granted under these Terms will immediately terminate.
F. Methods of Payment, Credit Card Terms and Taxes .
All payments must be made through a credit or debit card or other payment mechanism we accept at the time you sign up.We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not these Terms to determine your rights and liabilities as a cardholder. You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. YOU, AND NOT REALMSG, ARE RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Realmsg of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Realmsg does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Realmsg or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. Realmsg shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
G. Refund Policy .
All purchase transactions made through the Platform are subject to Realmsg’s refund policy in effect at the time of purchase. Currently, Realmsg’s refund policy is to not offer any refunds for any subscriptions purchased through the Platform, except in its sole and absolute discretion.
H. No Responsibility to Sell Mispriced Services .
We do our best to describe every product or service offered on this Platform as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Platform is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, product or service, Realmsg shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to cancellation, we will issue a credit to your account in the amount of the charge.
2. Opening and Terminating Accounts
3. Content, Ownership and Limited License
A. Content .
Platform contains a variety of: (i) materials and other items relating to Realmsg, Realmsg’s Platform, and similar items from our licensors and other third parties, including all software, layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the "look and feel" of the Platform, and the compilation, assembly, and arrangement of the materials of the Platform and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Realmsg (collectively, " Trademarks"); and (iii) other forms of intellectual property (all of the foregoing, collectively "Content").
B. Ownership .
The Platform (including past, present and future versions), the Content is owned or controlled by Realmsg and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Platform is the property of Realmsg or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, or other intellectual property and unfair competition rights and laws to the fullest extent possible. Realmsg owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Platform.
C. Limited License .
During the Subscription Term (defined below), Realmsg will make the Platform and Services (including your designated Keywords) available to you on a non-exclusive basis for your use in accordance with the terms of these Terms. Subject to your strict compliance with these Terms and the Additional Terms and your payment of the Fees, Realmsg grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view and use the Platform (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a "Device ") for your internal business use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any of the Platform, Services, Content or Keywords, and (ii) may be immediately suspended or terminated for any reason, in Realmsg’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Platform, Services, Content and Keywords, subject to certain Additional Terms. You acknowledge Realmsg may use a third party hosting providers to host any portion(s) of the Platform and/or Services.
4. Platform, Services and Content Use Restrictions
A. Platform/Services Use Restrictions .
You agree that you will not: (i) engage in any activities through or in connection with the Platform that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Realmsg; (ii) reverse engineer, decompile, disassemble, reverse assemble, or modify any Platform source or object code or any software or other products, Services, or processes accessible through any portion of the Platform; (iii) engage in any activity that interferes with a user's access to the Platform or the proper operation of the Platform, or otherwise causes harm to the Platform, Realmsg, or other users of the Platform; (iv) interfere with or circumvent any security feature of the Platform or any feature that restricts or enforces limitations on use of or access to the Platform or the Content; (v) attempt to gain unauthorized access to the Platform, other computer systems or networks connected to the Platform, through password mining or any other means; (vi) make the Platform and Services available to anyone other than your employees and Authorized Users (as defined below); (vi) sell, resell, sublicense, share, rent or lease the Platform or Services to any third party; (vii) knowingly use the Platform or Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights; (viii) use the Platform to store or transmit malicious code; (ix) interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein; (x) access the Platform for purposes of monitoring its availability, performance, reliability or functionality, or for any other benchmarking or competitive purposes; (xi) violating our Anti-Spam Policy; or (x) otherwise violate these Terms or any Additional Terms. You shall be responsible for any breach of these Terms by your employees or any other users that have been authorized by you (each, an "Authorized User"). Further, you shall: (a) be responsible for compliance with these Terms by your employees and any other users accessing the Platform and Services using username(s) and password(s) furnished to you; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Services, and notify us promptly of any such unauthorized access or use; and (c) use the Platform and Services only in accordance with applicable laws and government regulations.
B. Content Use Restrictions .
You also agree that, in using the Platform and Services: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Platform by using any robot, rover, "bot", spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors' products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Realmsg or, in the case of Content from a licensor, the owner of the Content; and (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
C. Availability of Platform, Services and Content .
Realmsg may immediately suspend or terminate the availability of the Platform, the Services and Content (and any elements and features of them), in whole or in part, for any reason, in Realmsg’s sole discretion, and without advance notice or liability.
D. Reservation of All Rights Not Granted as to Content, the Platform and Services .
These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Platform and Services. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Realmsg and its licensors and other third parties. Any unauthorized use of any Content, the Platform or the Services for any purpose is prohibited .
5. Customer Content
You (on behalf of yourself and your Authorized Users) hereby grant Realmsg a limited, non-exclusive, non-transferable, worldwide, royalty-free license, during the Subscription Term to: (i) use and distribute any and all messages, data, text, video, photos, audio and all other materials and information (including personal information of your users) which is submitted to us or the Platform by you (or on your behalf), including, but not limited to, your trademarks, trade names and service marks (collectively, "Customer Content") as necessary for our operation of Platform and provision of the Services; (ii) sublicense the foregoing rights to third parties; and (iii) sublicense the foregoing rights to our subcontractors as necessary to provide the Platform and Services. In addition to and without limitation to terms under the use restrictions set forth in Section 4 above, Realmsg prohibits any use of the Platform in connection with any of the following types of content, products, and services:
· Pornography, sexual products, otherwise sexually explicit material, and escort services;
· Illegal drugs and drug contraband;
· Alcoholic beverages, especially any promotion of alcohol to persons under twenty-one (21) years of age;
· Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
· Instructions or materials for the assembly of bombs or other weapons;
· Disclosure of anyone's private or personally identifying information without such party's prior express written consent (or parents' prior express written consent in the case of a minor);
· Material that displays any person under eighteen (18) years of age in an illicit or otherwise exploitative manner;
· On the basis of the practices and standards of your industry and community, any illegal or improper promotion to persons under eighteen (18) years of age;
· Products, services, or content commonly associated with unsolicited commercial messages (a.k.a. spam), including, but not limited to, online and direct pharmaceutical sales (e.g., health and sexual well-being products), work-at-home businesses, credit or finance management (e.g., credit repair, debt relief, stock and trading tips), mortgage finance, claims of lost bank accounts or inheritances, and odds-making, sweepstakes, contests and gambling services (e.g., poker, casino games, horse and dog racing, college and professional sporting events);
· Pyramid schemes or multi level-marketing (a.k.a. MLM or network marketing) businesses, including, but not limited to, "get rich quick," "build your wealth," and "financial independence" offerings;
· Any libelous, defamatory, scandalous, threatening, or harassing activity;
· Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and any discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
· Advocation, promotion, or other encouragement of violence against any government, organization, group, or individual or any instruction, information, or assistance in causing or carrying out such violence;
· Any product or service related to death (e.g., mortuaries and cemeteries);
· Any product or service that is unlawful where such product or service or promotion thereof is received;
· Images of authors, artists, photographers, or others without prior express written consent form the content owner; and
· Any mention of any wireless carrier or any representation that copies or parodies any product or service of any wireless carrier.
6. Consents and Legal Compliance for Messaging
The following terms and information constitute an introduction to the concept of spam and the general contours of a responsible, permission-based text marketing campaign. In addition, our Anti-Spam Policy applies to your use of the Platform and is incorporated into these Terms by this reference. This general information is not an exclusive source for applicable laws, guidelines, and compliance responsibilities pertaining to your use of the Platform. This Section is not intended to nor shall it be deemed to constitute legal advice. You should consult a lawyer for legal advice on your texting practices. The information herein is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages prior to using the Platform.
● What is spam? Spam is any type of unsolicited non-real estate message. You should not assume that an existing relationship with any message recipient constitutes permission to send text messages. For example, if a customer disclosed a mobile number to you in the course of business but did not give you specific permission to send marketing messages, you may not have permission to send text messages to that mobile number. Also, some federal and state laws restrict the hours and days when marketing calls can be made. Before using the Platform, you agree to review and abide by all federal, state, and local laws, including, but not limited to, the following laws, and to check for any revisions, as they may be amended over time.
○ Telephone Consumer Protection Act ("TCPA")
○ Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003
○ Mobile Marketing Association ("MMA") U.S. Consumer Best Practices Guidelines for Messaging
○ CTIA - The Wireless Association - Best Practices and Guidelines for Location-Based Services
For further information, please visit websites, including:
o Federal Trade Commission, http://www.ftc.gov
o Federal Communications Commission, http://www.fcc.gov
o DoNotCall Registry Info, http://www.donotcall.gov
● You represent and warrant that the owners of the phone numbers to which you transmit outbound text messages through Realmsg have consented or otherwise opted-in to the receipt of such messages, in accordance with the TCPA and other applicable laws and regulations. You acknowledge that you are solely responsible for all acts or omissions or violations of law that may occur in connection with your use of Realmsg’s Platform or Services.
● The Platform may allow you the ability, at our discretion, to upload previously opted in mobile numbers to Keywords on the Platform. You acknowledge and agree that you shall have sole responsibility for obtaining any consents for uploaded mobile numbers and for complying with any terms and/or conditions that may govern these previously opted in mobile numbers, even if you should use any mobile alert terms and conditions we make available through the Platform.
● You agree that you will not access or otherwise use any third-party list of phone numbers or otherwise engage in unsolicited messaging in connection with the Platform. Additionally, you agree not to send messages to your users beyond the frequency represented in any disclosures or terms.
● You agree that you will import, add, edit, access and otherwise use in connection with the Platform only contact information with proof, which you shall retain, of each user's consent to receive communications from you. We reserve the right, at our sole and absolute discretion, to suspend or deny access to import functions, to impose a stringent qualification process, to require proof of consent or opt-in method, or to require documentation of your or your organization's legal identity.
● You agree to represent truthfully your identity, the identity of your organization, your product or service, availability of goods or services, pricing, benefits, and any other offering aspects in your messaging.
● You agree to comply with all local, state, and federal laws and regulations as well as general industry best practices governing your content or promotion type.
Realmsg maintains a no-tolerance policy toward spam. Although Realmsg does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Site and Services. All mobile marketing messages must conform to the latest available best-practice guidelines published by the Mobile Marketing Association (currently available at http://www.mmaglobal.com/policies/consumer-best-practices ), which you agree to review before using the Platform. For example, and without limitation, these guidelines may recommend "STOP"instructions. The Platform provides mandatory STOP instructions on your first welcome message and pre-populates STOP instructions for subsequent messages. You are solely responsible for any claims or incidents that may result from your removal of these STOP instructions. If a user replies to a text message you send through the Platform with messages other than STOP instructions, they will appear in your inbox. You are solely responsible for monitoring messages received in your inbox. You agree that any individuals requesting "Do-Not-Call" ("DNC ") status shall immediately be placed on your company DNC list and except as otherwise noted above, Realmsg shall have no other responsibility for notifying you of such opt-outs. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or stop request.
You hereby acknowledge and confirm that you are solely responsible for the content of your messaging. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages. You hereby acknowledge that Realmsg merely provides a platform for facilitating the sending of your text messages, and that you shall have sole responsibility and liability for your messages and communications. You also agree to defend, indemnify and hold harmless Realmsg from and against any claims or damages which may result from your use of the Platform and Services, including, but not limited to, claims, damages, or lawsuits threatened or filed by third parties as well as inquiries and investigations by local, state and federal regulators (see Indemnity provision for a complete list of your indemnities to Realmsg). We reserve the right to hold, suspend or terminate your account or access to the Platform and/or Services for any alleged violation of this Section 6 and/or any unusual or suspicious activity related to your account.
7. Support and Customer Service
Except as otherwise provided herein, Realmsg will: (i) use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond our reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks. If you have a question regarding using the Platform or Services, you may contact us via email at firstname.lastname@example.org. You acknowledge that the provision of customer support is at Realmsg’s sole discretion and that we have no obligation to provide you with customer support of any kind.
8. Linked Services; Dealings with Third Parties
A. Linked Services; Advertisements .
The Platform may contain links or utilize the services of third party service providers, such as payment processors, etc. (" Linked Services"), including websites operated by service providers, licensors, licensees, and certain other third parties who may have business relationships with Realmsg. Realmsg may have no control over the content, operations, policies, terms, or other elements of Linked Services, and Realmsg does not assume any obligation to review any Linked Services. Realmsg does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Realmsg is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Linked Services. Realmsg will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. Realmsg disclaims all liability in connection therewith. The Platform may contain features designed to interoperate with Linked Services. To use such features, you may be required to obtain access to such Linked Services from their providers. If the provider of any such Linked Services ceases to make the Linked Services available for interoperation with the Platform on reasonable terms, we may cease providing such features without entitling you to any refund, credit or other compensation.
B. Dealings with Third Parties .
Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Platform (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Realmsg disclaims all liability in connection therewith.
C. Services Provided by Linked Services .
The Platform may contain features designed to interoperate with Linked Services (e.g., Facebook or Twitter). To use such features, we may be required to obtain access to such Linked Services from their providers. If the provider of any such Linked Service ceases to make the Linked Service available for interoperation with the Platform on reasonable terms, we may cease providing such features without entitling you to any refund, credit or other compensation.
A. Wireless Features . The Platform may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Platform's features and upload content to the Platform, receive messages from the Platform, and download applications to your wireless Device (collectively, "Wireless Features"). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features . You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Platform for Wireless Features, then you agree to notify Realmsg of any changes to your wireless contact information (including phone number).
10. Dispute Resolution
Certain portions of this Section 10 are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and Realmsg agree that we intend that this Section 10 satisfies the "writing" requirement of the Federal Arbitration Act. This Section 10 can only be amended by mutual agreement.
A. First - Try to Resolve Disputes and Excluded Disputes . If any controversy, allegation, or claim arises out of or relates to the Platform, the Services, the Content, your Customer Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, "Dispute"), or to any of Realmsg’s actual or alleged intellectual property rights (an " Excluded Dispute", which includes those actions set forth in Section 10(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Section 10(A). For a period of sixty (60) days from the date of receipt of notice from the other party, TRealmsg and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Realmsg to resolve the Dispute or Excluded Dispute on terms with respect to which you and Realmsg, in each of our sole discretions, are not comfortable.
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 10(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND Realmsg MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICES OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE PLATFORM (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT - INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD, ANY OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY - AND WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS. The Federal Arbitration Act (" FAA") shall govern the arbitrability of all disputes between Realmsg and you regarding these Terms (and any Additional Terms) and the Platform and Services, including the No Class Action Matters section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.
A Dispute will be resolved solely by binding arbitration administered by the Judicial Arbitration and Mediation Services Inc. (" JAMS"), in accordance with the then-current streamlined Arbitration Rules and Procedures ("Rules") of, or by any other arbitration administration service that you and an officer or legal representative of Realmsg consent in writing. If an in-person arbitration hearing is required, then it will be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator's fees and other costs in accordance with the applicable Rules; but if applicable Rules or laws require Realmsg to pay a greater portion or all of such fees and costs in order for this Section 10 to be enforceable, then Realmsg will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party's individual claim. Issues relating to the enforceability of the arbitration and class action waiver provisions contained herein are for the court to decide.
C. Limited Time to File Claims . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT an EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 10(A); (b) filing for arbitration with JAMS as set forth in Section 10(B); or (c) filing an action in state or Federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
D. Injunctive Relief . The foregoing provisions of this Section 10 will not apply to any legal action taken by Realmsg to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Platform, the Services, any Content, your Customer Content and/or Realmsg’s intellectual property rights (including such Realmsg may claim that may be in dispute), Realmsg’s operations, and/or Realmsg’s products or services.
E. No Class Action Matters . YOU AND Realmsg AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 10(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 10(F). Notwithstanding any other provision of this Section 10, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this "No Class Action Matters" section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
F. Federal and State Courts. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in a state or Federal court. Accordingly, you and Realmsg consent to the exclusive personal jurisdiction and venue of such courts for such matters.
G. Small Claims Matters Are Excluded from Arbitration Requirement . Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
11. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES IS AT YOUR SOLE RISK. THE PLATFORM AND SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. Therefore, to the fullest extent permissible by law, Realmsg and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the "Realmsg Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
(a) the Site and Platform (including the Content);
(b) the Services;
(c) whether the Services or Platform constitute an automatic telephone dialing system ("ATDS"), as such term is used in the TCPA;
(d) the functions, features, terms, or any other elements on, or made accessible through, the Site and Platform;
(e) any products, services (including, without limitation, the Services), or instructions offered or referenced at or linked through the Site and Platform;
(f) security associated with the transmission of your materials and data transmitted to Realmsg via the Site and Platform;
(g) whether the Site, the Platform or the servers that make the Site and/or Platform available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(h) whether the information (including any instructions) on the Site and Platform is accurate, complete, correct, adequate, useful, timely, or reliable;
(i) whether any defects or errors on the Site and Platform will be repaired or corrected;
(j) whether your access to the Site, Platform and Services will be uninterrupted;
(k) whether the Site, the Platform and Services will be available at any particular time or location; and
(l) whether your use of the Site, Platform and Services is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A REALMSG PARTY, REALMSG PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions' laws are applicable.
12. LIMITATIONS OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY REALMSG PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
(a) the Site and Platform (including the Content);
(b) the Services (including Services available through the Platform or Services provided by employees of the Realmsg Parties outside of the Platform environment), including, without limitation, lost communications, errors, mistakes, typos, communication failures, etc.;
(c) your use of or inability to use the Platform or Services or the performance of the Platform and Services;
(d) your use of any mobile alert terms and conditions we make available through the Platform;
(e) any action taken in connection with an investigation by Realmsg Parties or law enforcement authorities regarding your access to or use of the Platform;
(f) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(g) any errors or omissions in the Platform's technical operation; or
(h) any damage to any user's computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the Realmsg Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Platform).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL REALMSG PARTIES' TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE PLATFORM, YOUR UTILIZATION OF OUR SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID REALMSG IN THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
13. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE PLATFORM AND OUR PROVISION OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION.