TextMarks Terms of Service
(Last Updated September 20, 2012)


Before you use this site, please read these terms and condtions (“Terms of Service”) carefully as they govern your use of the services provided by TextMarks (the "Services"). By using the Services you agree to abide by and be bound to the Terms of Service set forth below as they may be updated from time to time by us, TextMarks, Inc. ("TextMarks").

Registering an account

In order to access and use the Services, you are required to register and create an account. By creating your account, you represent that you have the legal capacity to be bound by these Terms of Service, you are of legal age to form a binding contract and are not a person barred from receiving Services under the laws of the United States or other applicable jurisdiction. If you are acting on behalf of a company or entity, you also represent that you have the authority to accept these Terms of Service on its behalf and to bind such entity to these Terms of Service. Use of the Services is limited to one account per person and you may not create an account for multiple users.

When creating an account, you will be required to provide certain personal information about yourself and establish a username and password. You agree to provide accurate, current and complete information and it is your responsibility to keep this information up to date and accurate. We reserve the right to suspend or terminate your account if any of the information you provided turns out to be inaccurate, false or misleading. You are responsible for maintaining the confidentiality of your password which, together with your username and/or email address, allows access to the Services, and the activities or actions that occur under your account, whether or not you have authorized such activities or actions.

The registration information you provide is governed by our Privacy Policy. For information about our data collection and use policies and practices, please read our Privacy Policy.

Service.

TextMarks provides a notification and messaging service that allows users to contact and send information to their subscribers and groups through text messaging services and other mobile communication systems.

Through the Services, you can create textmarks for your various products and services. If you create a textmark you will be able to select a unique keyword for it. The use of such keyword in the Services does not grant you ownership of such keyword. TextMarks retains ownership of all keywords in its Services and reserves the right to change the keyword associated with your textmark at any time. In such an event, we will provide you with an alternative keyword. TextMarks reserves the right to reclaim textmarks and keywords that have minimal usage or have not been used within the past 30 days.

TextMarks may determine, in its sole discretion, to limit the use of the Services, add data storage limitations, charge or change fees for the Services or otherwise modify the Services in the future. You acknowledge and agree that these changes may take place and that TextMarks shall have no liability stemming from such changes.

Any additions or modifications to the Services shall be in the sole discretion of TextMarks and will be subject to these Terms of Service. You are solely responsible for any fees, charges and expenses incurred by you in accessing and using the Services, including, but not limited to, standard text messaging charges that will depend on the plan that you have with your wireless carrier and may appear on your wireless bill or deducted from prepaid balance.

Pro Service

TextMarks offers a free ad-supported service that allows for approximately 120 characters per message (the "Free Service") and a paid premium service with no ads that allows for 160 characters per message (the "Pro Service"). The Free Service is not intended for commercial users.

To enable and use the Pro Service, you are required to subscribe to and pay the fees associated with the Pro Service that you have selected. TextMarks will bill you for the use of the Pro Service through your account. The pricing and payment options for the Pro Service are described on the TextMarks website and are subject to change. TextMarks may modify the fees for the Pro Service at any time; however, we will provide you at least thirty (30) days notice prior to any changes to the fees taking effect. Unless otherwise stated, all fees are quoted in U.S. Dollars.

You agree to pay TextMarks the applicable fees for the use of the Pro Service and you authorize TextMarks to charge your chosen payment provider for the Pro Service. By purchasing the Pro Service, you agree that TextMarks may automatically charge you the applicable fee for the Pro Service to your account at the beginning of each subscription period until you terminate such Pro Service.

You agree to provide current, complete, and accurate billing and payment information regarding your account and the Pro Service, and to promptly update such billing and payment information with us in the event of any changes. If TextMarks does not receive payment from your payment provider, you agree to pay all amounts due on your account upon demand and TextMarks may temporarily suspend or terminate your access to the Pro Service for nonpayment. Your non-termination or continued use of the Pro Service reaffirms that TextMarks is authorized to charge your payment provider.

Content on the Services

All materials displayed on the Services including, but not limited to, text, graphics, news articles, charts, presentations, user communications, photographs, images and illustrations, shall be referred to herein as "Content." You are responsible for the Content that you post, upload or otherwise submit through the Services and the consequences of posting or publishing it.

By submitting Content, you grant to TextMarks a perpetual, non exclusive worldwide, royalty-free, transferable right and license to use in any way such Content (including all related intellectual property rights) to use, copy, reproduce, process, publish, transmit, distribute, adapt, modify, prepare derivative works of, and display the Content in connection with the Services in any and all media or distribution methods (now known or later developed). By submitting Content, you also affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to use and to authorize TextMarks to make available and share your Content in the manner contemplated by the Services and these Terms of Service.

TextMarks reserves the right at all times to terminate your account, and delete any and all Content, in whole or in part, for any reason including, but not limited to, violations of these Terms of Service. If you do violate these Terms of Service, TextMarks reserves the right to share any information with any third party. In addition, TextMarks reserves the right at all times to disclose any Content as necessary to satisfy any law, regulation, governmental request or partner request, in its sole discretion.

You understand that by using TextMarks, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will TextMarks be liable in any way for any Content, including, but not limited to, the subject matter of any Content, 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 TextMarks.

Restrictions on the use of the Services.

By using the Services you agree that you will not:

  1. Use the Services for any illegal or improper purpose;
  2. Upload, email, text, or otherwise transmit any Content that is false, misleading, inaccurate, unlawful, obscene, harmful, threatening, defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, contains nudity or child erotica, or is otherwise objectionable;
  3. Upload, email, text, or otherwise transmit any Content that you do not have the lawful right to transmit (including any Content that would violate any confidentiality or fiduciary obligations that you might have with respect to the Content) or any Content that infringes the intellectual or proprietary rights of any third party;
  4. Take any actions, including but not limited to uploading, emailing, texting, or otherwise transmitting any Content, that would violate any law, including the federal Telephone Consumer Protection Act or any similar state statute or regulation;
  5. Create fictitious businesses or persons or impersonate others (or imply that you are affiliated with other businesses that are not affiliated with you);
  6. Gather and use information, such as other users’ names, email addresses, and telephone numbers available through the Services to transmit any unsolicited advertising, junk mail, spam or other form of solicitation;
  7. Upload, email, text, or otherwise transmit any Content to any user or person who has not expressly and affirmatively given permission (e.g., “opted in”) to receiving such messages from you;
  8. Interfere with or disrupt (or attempt to interfere with or disrupt) the Services or the servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
  9. Promote another text messaging service - or any other commercial venture - that is competitive with the Services.

Intellectual Property Rights

All trademarks, brands and service marks used in conjunction with the Services by TextMarks are the property of TextMarks. TextMarks is the owner of all copyright and database rights in the Services. You may not publish, distribute, extract or reproduce any such content in any form, except as it relates to the personal use of the Services. You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or the Textmarks website, except as expressly permitted in these Terms. Any feedback, comments and suggestions you may provide about improvements to the Services or the Site (“Feedback”) will be the sole and exclusive property of TextMarks and you hereby irrevocably assign to TextMarks all of your right, title, and interest in and to all Feedback.

Copyright Policy

TextMarks respects the intellectual property rights of others. If you believe that your intellectual property rights have been infringed by another party please contact TextMarks’ Copyright Agent via the email address below and we will remove any such content if we are properly notified that such content infringes on your intellectual property rights.

Please provide:

  1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
  3. a description of where the material that you claim is infringing is located on the site;
  4. your address, telephone number, and email address;
  5. 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;
  6. a statement by you, made under penalty of perjury, that the above information provided by you 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.

You can contact our Copyright Agent via email at tmsupport@textmarks.com or by mail at Copyright Agent, c/o TextMarks, 2235 Octavia Street, San Francisco, CA 94109.

Termination

You may terminate your account, or your use of any Pro Service at any time by deleting your account or by sending us notice. Upon any termination by you, the Pro Service and/or your account (whichever is applicable) will no longer be accessible. Cancellation requests will be handled within 30 days of receipt of such request. If you choose to terminate your use of the Pro Service, you may use the Pro Service until the end of your subscription term; however, you will not be eligible for a prorated refund of any portion of the fees paid.

TextMarks may at any time, suspend, disable or terminate your access to or use of the Services (a) if you violate or breach any provision of these Terms off Service (or have acted in a manner which shows that you do not intend to, or are unable to comply with the provisions of these Terms of Service), (b) if TextMarks in its sole discretion believes it is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or (c) immediately upon notice, to the e-mail address provided by you as part of your account information. We also reserve the right to terminate any inactive account (that has 90 days or more of non-use).

TextMarks will not be liable to you or to any third party for the suspension or termination of your access or use of the Services (including the forfeiture of any pre-paid amounts for Paid Services). Upon any termination or suspension, you will no longer be able to access your account or the Services and TextMarks will have no obligation to maintain any information that was stored in our database related to your account or to forward any information to you (or to any third party). Any suspension or termination will not affect your obligations to TextMarks under these Terms of Service.

Disclaimer of Warranty and Limitations of Liability

Your access to and use of the Services is at your sole risk. TextMarks expressly disclaims any responsibility or liability for the use of the Services by you.

THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TextMarks makes no representations, warranties or guarantees, express or implied, regarding the accuracy, availability, reliability or completeness of the Services or any of the content therein. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that TextMarks, in its sole discretion, may elect to take.

UNDER NO CIRCUMSTANCES SHALL TEXTMARKS BE LIABLE TO YOU OR ANY OTHER USER ON ACCOUNT OF THE USE OR MISUSE OF AND RELIANCE ON THE SERVICES (OR ANY CONTENT THEREIN). SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF TEXTMARKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SITE OR SERVICES, FROM INABILITY TO USE THE SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES OR DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES. THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

FREE SERVICE USERS: YOU AGREE THAT THE AGGREGATE LIABILITY OF TEXTMARKS TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICES IS LIMITED TO TEN ($10) U.S. DOLLARS.

PRO SERVICE USERS: YOU AGREE THAT THE AGGREGATE LIABILITY OF TEXTMARKS TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICES IS LIMITED TO LOWER OF THE AMOUNTS YOU HAVE PAID TO TEXTMARKS DURING THE THREE MONTH PERIOD PRIOR TO SUCH CLAIM, FOR ACCESS TO AND USE OF THE SITE OR SERVICES, OR ONE-HUNDRED ($100) DOLLARS.

The limitations of damages set forth above are fundamental elements of the basis of the bargain between textmarks and you. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

Indemification

You agree to defend, indemnify, and hold harmless TextMarks and its subsidiaries and other affiliated companies, and their employees, officers, directors, contractors, agents, insurers, licensors and suppliers, from all liabilities, losses, damages, claims, costs and expenses, including reasonable attorney's fees, that arise from (i) use or misuse of the Services by you or by any person to whom you have granted access (either deliberately or as a result of your negligence) to the Services, (ii) your violation of any of these Terms of Service, (iii) any Content provided by you through the Services. or (iv) any other activity related to your account (including negligent or wrongful conduct). TextMarks reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you, in which event you will cooperate with TextMarks and its counsel in the conduct of such defense.

General

These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law rules. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms of Service or your use of the Service shall be filed only in the federal courts located in the State of California, or state courts located in the county of San Francisco and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.

These Terms of Service constitute the entire agreement between the you and TextMarks with respect to the Services and supersedes any other agreement, proposals and communications, written or oral, between TextMarks and you with respect to the subject matter hereof. If a court should find that one or more rights or provisions contained in these Terms of Service are invalid, you agree that the remainder of the Terms of Service shall be enforceable. TextMarks reserves the right, in its sole discretion, to modify, discontinue or terminate the Services at any time, or modify these Terms of Service without notice. Any changes to these Terms of Service will be posted on the website and/or through the Services, and we will try to provide at least 30 days notice prior to any new terms taking effect. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms of Service.

If you have any questions about these Terms, you can contact us at tmsupport@textmarks.com.

Want us to set up a demo for you? Call us at:

(800) 696-1393