SMS Terms and Conditions
DESCRIPTION OF SERVICE. Otter Technologies, Inc provides a web-based application (“Otter”) for managing mobile marketing campaigns, including mobile messaging capabilities (the “Service”). Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to this Agreement. You understand and agree that the Service is provided to you on an “AS-IS” basis and that Otter assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access and subsequent usage may involve third party fees (such as Internet access to use the Service).
YOUR REGISTRATION OBLIGATIONS. Considering your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Otter has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Otter has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). Children under the age of 13 may not sign up for an Otter account or use any Otter services.
PAYMENT AND FEES.
- Payment by Credit Card. You hereby authorize Otter to charge your credit card for text messages as outlined in the Payment Method section of the Registration Form to a monthly Services fee, and overage fees to Otter at the rates set forth on or agreed upon rate.
- Pass-Through Charges. If at any time after execution of this Agreement, a Network Operator or other Third-Party changes the Third-Party Charges on Provisioned Phone Numbers then Otter, at its discretion, may pass through such fees (“Pass Through Charges”) to you at cost.
MEMBER ACCOUNT, PASSWORD AND SECURITY.
You (the “MEMBER”) will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account designation and are fully responsible for all activities that occur under your password or account designation. You agree to (a) immediately notify Otter of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Otter cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
MEMBER CONDUCT, REPRESENTATIONS AND WARRANTIES
- You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, not Otter, are entirely responsible for all content you upload, post, email, transmit, or otherwise make available via the Service. Otter does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Otter be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
Otter is solely a facilitator of the message traffic and has no visibility into or control over individual Messages as they are transmitted through Otter and has no responsibility or liability concerning the content of any individual Message. Except that Otter may use programmatic means to filter (pre-screen) your messages and block your campaigns or account due to message keywords that Otter has determined, in it’s sole description, may violate an applicable, rule, regulation, or law.
You agree to not use the Service to:
- upload, post, text message, email, transmit or otherwise make available any illegal contests or gambling, unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- upload, post, text message, email, transmit or otherwise make available any adult Content or Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements, or which violates the intellectual property rights of a third party (“Rights”);
- forge headers or otherwise manipulate identifiers to disguise the origin of any Content transmitted through the Service;
- upload, post, text message, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any mobile telephone, mobile device, computer software or hardware or telecommunications equipment;
- “stalk” or otherwise harass another; and/or
- Using any equipment or software that can store or produce telephone numbers to be called, using a random or sequential number generator, in conjunction with your use of the Services;
- Using any equipment or software that can initiate messages without human intervention, in conjunction with your use of the Services;
- Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility- related telephone numbers;
- Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;
- Harvesting, or otherwise collecting information about others, without their consent;
- Misleading others as to the identity of the sender of your messages by creating a false identity, impersonating the identity of someone/something else or by providing contact details at do not belong to you;
- Transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;
- Transmitting any material that may infringe upon the intellectual property rights of third parties, including trademarks, copyrights or other rights of publicity;
- Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or y other harmful/deleterious programs;
- Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;
- Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
- Abusing the fair use policy with regard to unlimited keywords—that is, registering many keywords without using them for weeks or months, as is determined to be abuse in the sole discretion of Otter;
- Interfering with another’s use and enjoyment of the Services or Otter Sites; or
- Engaging in any other activity that Otter believes could subject it to criminal liability or civil penalty/judgment.
C. You acknowledge that Otter may or may not pre-screen Content, but that Otter and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, Otter and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
D. You acknowledge, consent and agree that Otter may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any subpoena or other legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Otter, its users and the public.
E. You understand and agree that all messages you send via the Otter service will be sent, and certify that any subscriber list you decide to import into Otter was collected, in compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing SMS messages, advertising, and telemarketing, including, without limitation,
Section 5 of the FTC Act (15 U.S.C. § 45)
CAN-SPAM Act (15 U.S.C. §§ 7701-7713)
Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108)
Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.)
Telephone Consumer Protection Act (47 U.S.C. §§ 227)
Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.)
and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations, and, as applicable for SMS to Canadian numbers, the CRTC’s Unsolicited Telecommunications Rules, including the CRTC Telemarketing Rules, National DNCL Rules, and Automatic Dialing and Announcing Device Rules, Telecom Decision CRTC 2007-48, as amended.; and all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices (collectively, “Applicable Message Requirements”). Otter provides the software and carrier-connectivity through which you send your messages; you are solely and exclusively responsible for complying with Applicable Message Requirements (and for defending and indemnifying Otter from any claims in which it is alleged that you failed to do so). Suppose for any reason Otter suspects that your use of its Services in any way is contrary to any Applicable Message Requirements. In that case, it reserves the right to request a written explanation from you, the client, including the method of collecting the subscriber’s phone numbers and a guarantee signed by you that all the people on your subscriber list provided you prior express written consent to receive text messages from you of the type that you had sent. You agree to provide all such information and documents reasonably requested by Otter. Otter reserves the right to take any action it thinks appropriate in the case of non-compliance, including but not limited to suspension and/or cancellation of the account, without any liability to you therefor.
F. You represent and warrant that you are aware that, among other requirements, the TCPA requires prior express written consent from a consumer before you can send them marketing text messages using an autodialer, with no purchase required as a condition of their consent, and such consent must be clear and conspicuous. Furthermore, damages for each message sent in violation of the TCPA is $500 and can be $1500 if the violation is proven to be “willful and knowing.”
G. You agree that you will include clear opt-out/unsubscribe information on your messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages, and that you will promptly process all such do-not-text or do-not-call requests and maintain those numbers on your internal do-not-call/text list.
H. You shall schedule your messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, pictures or videos for inclusion in any outbound messages. If you are unfamiliar or unclear on the legalities of any message that you intend to initiate through the Services, you must consult with your attorney prior to your use of the Otter Sites or Services.
I. You represent and warrant that you have all power and authority and have procured all rights and licenses necessary to use and text enable those Phone Numbers utilized for Otter services. In the case of shared use Phone Numbers, you expressly represent that you are the Phone Number Owner.
DOWNTIME & REFUND POLICY
- For purposes of this Agreement, a Unit of Downtime is one at least 1 day during which access to Otter is unavailable because of hardware or system software problems. Downtime does not include:
- problems caused by factors outside of our reasonable control
- problems resulting from any actions or inactions by you or any third party
- problems resulting from your equipment and/or third party equipment not within our sole control, or
- network unavailability during scheduled maintenance of our network and/or web servers.
B. In any calendar month, we guarantee that Downtime will not exceed 1 Unit of Downtime, excluding regularly scheduled maintenance. Any regularly scheduled maintenance will be performed between 6pm and 8am. We work to ensure the functioning of all web servers through continuous monitoring by our staff.
C. If Downtime exceeds 1 Units of Downtime in any calendar month, we will, upon your written request, credit your account (a “Downtime Credit”) in an amount equal to the pro-rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.
D. To receive Downtime Credit, you must request such credit by sending an email to support@Otterwaiver.com within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven
E. Downtime Credits will be applied upon issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the dollar value of the Downtime Credit will be mailed to you within thirty (30) days of the expiration of your service agreement.
If you are unhappy with any aspect of our service, please contact us and we will attempt to rectify the situation. Because we are providing a service, which starts when you create the account, we can not provide a refund except when the service has not been acceptable. This is at our discretion only. No refunds will be made if we terminate your account due to violation of our Acceptable Use Policy or any other violation of our Terms and Conditions, except as may be provided therein. This does not affect your statutory rights. No bill credit will be given for a period of suspension.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE. Otter does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant to Otter the following worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service and elsewhere for the purpose for which such Content was submitted or made available and also for the purpose of providing and promoting the Service to which such Content was submitted or made available.
INDEMNITY. You agree to defend, indemnify and hold Otter, and its affiliates, officers, agents, and employees harmless from any proceeding, suit, claim or demand, including reasonable attorneys’ fees, made by any third party relating to, alleging or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your alleged violation of this Agreement, your alleged violation of any rights of another, or your alleged violation of any law (“Indemnifiable Claims”), and to indemnify Otter from any damages, awards, attorneys’ fees, and costs awarded against or incurred by Otter in connection with any such Indemnifiable Claims. As a condition of the foregoing indemnification obligations, (a) Otter will provide you prompt notice of any such Indemnifiable Claim, provided, however, that the failure to give such prompt notice shall not relieve you of your obligations hereunder except to the extent that you were actually and materially prejudiced by such failure; (b) you will have the sole and exclusive authority to defend or settle any such Claim (provided that you will obtain our consent in connection with any act or forbearance required by Otter, which consent will not be unreasonably withheld); and (c) Otter will reasonably cooperate with you in connection with your activities hereunder, at your expense. Otter reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, you will not settle any Claims for which you have an obligation to indemnify pursuant to this Section admitting liability or fault on behalf Otter, nor create any obligation on behalf of Otter without its prior written consent.
GENERAL PRACTICES REGARDING USE AND STORAGE. You acknowledge that Otter may establish general practices and limits concerning use of the Service but that Otter has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service.
MODIFICATIONS TO SERVICE. Otter reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Otter shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
TERMINATION. You agree that Otter may, under certain circumstances and without prior notice, immediately terminate your Otter account, any associated text message address and/or email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (g) your engagement in fraudulent, illegal or improper activities, (h) third party operator requirement, and/or (i) nonpayment of any fees owed by you in connection with the Services. You may terminate your access and use of the Service upon prior written notice or by deleting an/or and canceling your account in your dashboard. In no event shall you be entitled to a refund of any fees paid to Otter hereunder.
Otter PROPRIETARY RIGHTS. Title, ownership rights and all intellectual property rights in and to the Services shall remain the sole and exclusive property of Otter. Otter retains all rights not expressly granted to you in this Agreement. You are prohibited from attempting, or knowingly permitting or encouraging others to attempt, to reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Services except and only to the extent permissible by applicable law despite such prohibition. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the Service (including your Otter I.D., account, account designation, password and other Otter information), use of the Service, or access to the Service.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Otter EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Otter MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED (VI) THAT THE INTERNET WILL BE AVAILABLE AND WILL PERFORM.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Otter OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY.
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT Otter SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Otter HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT Otter’s service providers disclaim all liability with regard Otter’s customers, whether direct, indirect, incidental, consequential, punitive or otherwise, arising out of or related to the use of the services provided under this Agreement. You hereby release Otter’s service providers from and against all claims, liability and damages arising out of or related to Company Customer’s use of the services provided under this Agreement. Company Customer will be solely responsible for any third party claims, damages and liability arising out of, resulting from or caused by Company Customer’s use of the Services provided under this Agreement including, without limitation, any claims, damages and liability arising out of, resulting from or caused by any Message or Content generated by Company Customer.
EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NOTICE. Otter may provide you with notices, including those regarding changes to the Agreement, by either text message, e-mail, regular mail, or postings on the Service.
TRADEMARK INFORMATION. The trademarks, service marks, logos and product and service names of Otter are trademarks of Otter Technologies, Inc (the “Otter Marks”). You agree not to display or use in any manner, the Otter Marks without Otter’ express prior written consent.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT. Otter respects the intellectual property of others, and we ask our users to do the same. Otter may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to Otter’ Copyright Agent:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Choice of Law and Forum. This Agreement and the relationship between you and Otter shall be governed by the laws of the State of Colorado without regard to its conflict of law provisions. You and Otter agree to submit to the personal and exclusive jurisdiction of the Boulder County, Colorado courts.
Waiver and Severability of Terms. The failure of Otter to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Suppose any provision of this Agreement is found by a court of competent jurisdiction to be invalid. In that case, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
Non-Transferability. You agree that your Otter account is non-transferable, and you may not assign this Agreement without Otter’s prior written consent.
Entire Agreement. This Agreement constitutes the entire agreement between you and Otter and governs your use of the Service, superseding any prior agreements between you and Otter with respect to the Service. You may also be subject to additional terms and conditions when you use or purchase certain other services from Otter.
“Network Operator” means any mobile network operator, wireless service provider, wireless carrier, cellular company, Third Party operator or user of a communications network to and from which SimpleTextng can directly transmit and receive Messages.
“Third Party” means any Person not a Party to this Agreement.
“Third Party Charges” means any fees or charges that any Third Party imposes on Otter in connection with any Services, including Service and Transit Fees without limitation.
“Transit Fees” means any fees imposed by a Network Operator or Third Party for the delivery of any Message
Contacting Otter Technologies.
Otter Technologies, Inc can be reached as follows:
4845 Pearl East Cir Ste 118
Boulder, Colorado 80301-6112