By accessing or using the Services, You confirm Your agreement to be bound by these Terms. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. These Terms expressly supersede prior agreements or arrangements with You. Fluxtxt may immediately terminate these Terms or any Services with respect to You, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Fluxtxt may amend the Terms from time to time. Amendments will be effective upon Fluxtxt posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms Your consent to be bound by the Terms, as amended.
The Services. The Services include a marketing platform that allow Merchant's customers ("Customers") to subscribe to Your marketing materials ("Content"). The Services consist of one or more of the following: a web-based interface for managing your Content, assignment of unique phone numbers to be used for delivering Content and communicating with your Customers. Fluxtxt is not responsible for the final delivery of any communication initiated by you through the Services, as this is out of our control and is the responsibility of downstream communications carriers. Fluxtxt is not liable for any loss incurred by the failure of Content to be delivered, and you acknowledge that Fluxtxt is not responsible for any financial or other loss resulting from delivery failure.
Service Availability. The Services may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability to Fluxtxt.
Accounts. You must create an account and provide certain information in order to use some of the features that are offered through the Services. You are responsible for maintaining the confidentiality of Your account password. You are also responsible for all activities that occur in connection with Your account. You agree to notify us immediately of any unauthorized use of Your account. We reserve the right to close Your account at any time for any or no reason.
Responsibility for Your Content. You alone are responsible for Your Content, and once published, it cannot always be withdrawn. You assume all risks associated with Your Content, including anyone's reliance on its quality, accuracy, or reliability, or any disclosure by You of information in Your Content. You represent that You own, or have the necessary permissions to use and authorize the use of Your Content. You may not imply that Your Content is in any way sponsored or endorsed by Fluxtxt.
You may expose Yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
Customer Consent. You represent and warrant that your Customers have consented to receipt of communications from You. 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. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and you further agree that you will not initiate any subsequent messages to any individuals after they request DNC status.
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages that you create and initiate through Fluxtxt. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages transmitted through the Services by visiting the following websites:
The Telephone Consumer Protection Act ("TCPA"), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules various state laws, rules and regulations place restrictions on certain types of phone calls and SMS or MMS messages. Fluxtxt is in no way attempting to interpret any laws, rules, or regulations. This information 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 Services. You are ultimately responsible to make your own informed decisions regarding your Content.
You agree not to, and will not assist, encourage, or enable others to use the Services to:
Violate any third party's rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming;
Solicit personal information from minors, or submit or transmit pornography; or
Violate any applicable law or regulation;
Attempt to gain unauthorized access to the Services, user accounts, computer systems or networks connected to the Services through hacking, password mining or any other means;
Use the Services to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature (collectively, "Viruses"), or access any Customer device;
Use any device, software or routine that interferes with the proper working of the Services, or otherwise attempt to interfere with the proper working of the Services;
Create or transmit unwanted electronic communications such as "spam”;
Distribute any advertising or marketing that is false or unfair.
Some parts of the Service are billed on a subscription basis ("Subscription(s)"). You will be billed in advance on a recurring and periodic basis ("Billing Cycle"). Billing cycles are set either on a monthly or annual basis, depending on the type of subscription plan you select when purchasing a Subscription.
At the end of each Billing Cycle, your Subscription will automatically renew for the same time period as the original Subscription under the exact same terms and conditions unless you cancel it or we cancel it. You may cancel your Subscription renewal either through your online account management page or by contacting our customer support team.
A valid payment method, including credit card or PayPal, is required to process the payment for your Subscription. You shall provide Fluxtxt with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, you automatically authorize Fluxtxt to charge all Subscription fees incurred through your account to any such payment instruments.
Should automatic billing fail to occur for any reason, Fluxtxt will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
Fluxtxt may, at its sole discretion, offer a Subscription with a free trial for a limited period of time ("Free Trial")
You may be required to enter your billing information in order to sign up for the Free Trial.
If you do enter your billing information when signing up for the Free Trial, you will not be charged until the Free Trial has expired. On the last day of the Free Trial period, unless you cancelled your Subscription, you will be automatically charged the applicable Subscription fees for the type of Subscription you have selected.
At any time and without notice, Fluxtxt reserves the right to (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel such Free Trial offer.
Fluxtxt, in its sole discretion and at any time, may modify the Subscription fees for the Subscriptions. Any Subscription fee change will become effective at the end of the then-current Billing Cycle
Fluxtxt will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective.
Your continued use of the Service after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.
Subscription fees are non-refundable.
By sending us any ideas, suggestions, documents or proposals ("Feedback"), You agree that (i) Your Feedback does not contain the confidential or proprietary information of Yours or any third party, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) You grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and You irrevocably waive, and cause to be waived, against Fluxtxt and its users any claims and assertions of any moral rights contained in such Feedback.
The Services may include links to other websites or applications (each, a "Third Party Service"). We do not control or endorse any Third Party Services. You agree that we are not responsible for the availability or contents of such Third Party Services. Your use of Third Party Services is at Your own risk. Some of the services made available through the Services may be subject to additional third party or open source licensing terms and disclosures.
Policy. We respect the intellectual property rights of others. It is our policy to respond to any claim that Content posted on the Service infringes on the copyright or other intellectual property rights ("Infringement") of any person or entity.
If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement, please submit your claim via email to email@example.com, with the subject line: "Copyright Infringement" and include in your claim a detailed description of the alleged Infringement as detailed below, under "DMCA Notice and Procedure for Copyright Infringement Claims"
You may be held accountable for damages (including costs and attorneys' fees) for misrepresentation or bad-faith claims on the infringement of any Content found on and/or through the Service on your copyright.
You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
You can contact our Copyright Agent via email at firstname.lastname@example.org
You agree to indemnify, defend, and hold Fluxtxt, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them (collectively, the "Fluxtxt Entities") harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) Your access to or use of the Services, (ii) Your violation of the Terms, (iii) any products or services purchased or obtained by You in connection with the Services, or (iv) the infringement by You, or any third party using Your account, of any intellectual property or other right of any person or entity. Fluxtxt reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify us and You agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of Fluxtxt. Fluxtxt will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.
Fluxtxt reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify us and You agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of Fluxtxt. Fluxtxt will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE FLUXTXT ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE SITE. BY ACCESSING OR USING THE SITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
THE SITE IS MADE AVAILABLE TO YOU ON AN "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE FLUXTXT ENTITIES MAY NOT REVIEW, MONITOR, CONTROL, OR VET USER CONTENT. YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK. THE FLUXTXT ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SITE, ITS SAFETY OR SECURITY, OR THE SITE CONTENT. ACCORDINGLY, THE FLUXTXT ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SITE'S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES.
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICES.
THE FLUXTXT ENTITIES' MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SITE OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE FLUXTXT ENTITIES IN CONNECTION WITH THE SERVICES IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100.
THE FLUXTXT ENTITIES DISCLAIM LIABILITY FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, OR (v) LOSS OF INFORMATION OR DATA.
California law will govern these Terms, as well as any claim, cause of action or dispute that might arise between You and Fluxtxt (a "Claim"), without regard to conflict of law provisions. For any claim brought by either party, you agree to submit and consent to the personal and exclusive jurisdiction in, and the exclusive venue of, the state and federal courts located within San Francisco County, California.
These Terms will remain in full force and effect while You use the Services.
We may close Your account, suspend Your ability to use certain portions of the Services, and/or ban You altogether from the Services for any or no reason, and without notice or liability of any kind. Any such action could prevent You from accessing Your account, the Services, Your Content, or any other related information.
In the event of any termination of these Terms, whether by You or us, Sections 3-12 will continue in full force and effect.
We reserve the right to modify, update, or discontinue the Services at our sole discretion, at any time, for any or no reason, and without notice or liability.
We may provide You with notices, including those regarding changes to the Terms by email, regular mail or communications through the Services.
Except as otherwise stated above, nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
The Terms contain the entire agreement between You and us regarding the use of the Services, and supersede any prior agreement between You and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
Any failure on Fluxtxt's part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of Fluxtxt to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
If any provision of the Terms is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties' intention or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by You except with Fluxtxt's prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by You shall violate these Terms and be void.