TeleMessage Terms of Service
Welcome to TeleMessage – Secure Messaging for Enterprises!
YOU HEREBY WARRANT THAT YOU ARE OVER 18 AND ARE LEGALLY AUTHORISED TO ENTER THESE TERMS ON BEHALF OF THE COMPANY. YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A U.S. GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE U.S. GOVERNMENT AS A ”TERRORIST-SUPPORTING” COUNTRY, AND THAT YOU ARE NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.
IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS HEREIN, OR CANNOT COMPLY WITH THESE TERMS OR ANY PART THEREOF, YOU MAY NOT USE THE SERVICE.
RESTRICTIONS ON USE: SOME COUNTRIES MAY RESTRICT THE USE OF THE SERVICE. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOU ARE LEGALLY ALLOWED TO USE THE SERVICE WHERE YOU ARE LOCATED.
- The Service
Our Services consist of the TeleMessage website http://www.telemessage.com (the “Site“), the TeleMessage Moblie App, the TeleMessage web interface, Outlook Plug-In, automation APIs, administration tools and such other products and services provided on and via the Site (jointly and separately, the “Service“). You will be able to send and receive push notifications (messages transmitted via the Internet), SMS messages (messages transmitted via your mobile carrier), messages to phones (landline and mobile, pre-recorded voice and text-to-speech), faxes and email messages. You will be able to send and receive messages to anyone in your address book via any combination of media that you and your recipients prefer. Administrators can add, manage and delete other users within the organization via the web interface.
- License and Restrictions
Subject to these Terms, TeleMessage grants you an individual, personal, non-sublicensable, non-exclusive and non-transferable license (the “License“) to use the Service on any personal computer or mobile device that you own or control, in conjunction with these Terms. You will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Service; modify, translate, or create derivative works based on the Service; or copy (except for archival purposes), rent, lease, distribute, assign, or otherwise transfer rights to the Service or any part thereof; or otherwise for the benefit of a third party; or remove any proprietary notices or labels from the Service or any part thereof. As between the parties, you acknowledge that TeleMessage retains ownership of the Service, any portions or copies thereof, and all rights therein. Any commercial copying or distribution, publication or exploitation of the Service, or any content, software, code, data or materials on or from the Service, are strictly prohibited unless you have received express prior written permission from TeleMessage or the applicable rights holder. Unless explicitly stated otherwise, the terms of the License will govern any upgrades provided by TeleMessage that replace or supplement the Service.
Upon termination of these Terms for any reason, this License will terminate and you hereby agree to cease using the Service.
THE SERVICE IS PROVIDED “AS IS” AND SUBJECT TO THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY FOUND IN THESE TERMS.
- Ownership Rights
The Service, including the Site and any other part thereof and any content or information contained therein and all copies thereof are the sole property of TeleMessage. TeleMessage owns all title, copyright, and other intellectual property rights to the Service and to the Site, and to all copies, derivative works thereof and the underlying software (“TeleMessage IP“). your use of the Service does not grant you any ownership rights in the TeleMessage IP.
- Content of Communications
The content of the communication via the Service is beyond the control of TeleMessage and is the sole responsibility of the person from whom such content originated. You understand, therefore, that by using the Service you, may be exposed to content that is offensive, harmful to minors, indecent or otherwise objectionable, and that you use the Service at your own risk.
You hereby acknowledge and agree that you are solely responsible for any content that you and any of your usersupload, submit, post, transmit or display through the Service or the Site (“Use” or “Used”) and that TeleMessage is not responsible to you or any third party for any Content that is Used by you or any other user of the Service.
Third Party IP Rights. You agree not to Use (and to ensure that your administrators and users shall not Use) any Content that is subject to any third party IP Rights, unless you have a license or specific permission to Use such third party content, and to grant TeleMessage the license set out below.
License. You hereby grant to TeleMessage a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable and transferable license to distribute and/or display through the Service any content that you provide or make available using the Service for the sole purposes of making the Service available to you.
Notice and Takedown Procedures. TeleMessage reserves the right (but shall have no obligation) to decide whether any content that you Use complies with these Terms. If you believe that any materials posted via the Service violate your intellectual property rights or are offensive to you in any other manner, please contact us and provide a detailed description of the offending materials.
- Accounts, Passwords and Security
5.1. To open an account to use the Service (an “Account“), you must complete the registration process by providing us with current, complete and accurate information as prompted by the registration form. You will also receive a password and a unique member identity. You are entirely responsible for maintaining the confidentiality of your password and Account. Furthermore, you are entirely responsible for any and all activities that occur under your Account. You agree to notify TeleMessage immediately of any unauthorized use of your Account or any other breach of security.
5.2. User Account
The Service allows you to create and manage administrator accounts, through which you can purchase and allocate various TeleMessage products and services to various end users (‘Users“). You will be responsible for the administration and management of all such User Accounts. The creation of a Service User Account, the purchase of and allocation to a User Account of any TeleMessage products by you, and the use of any TeleMessage products by your Users shall be governed by these Terms.
You may set up and use two types of Accounts: (i) an Account for the individual use of a specific designated User (“Individual Accounts“); and (ii) a Shared account for the use of several Users sharing the same credentials or other shared identifiers (“Shared Accounts”). You may purchase pre-paid message credit or monthly subscription services from TeleMessage to use with, and pay for, the Service (“TeleMessage Credit“). If you purchase TeleMessage Credit and allocate it to an Account, then any use of such TeleMessage Credit for messaging and/or subsequent purchases within the Service made by the User of such Account shall be governed by these Terms. A User may also purchase TeleMessage Credit on their own behalf in accordance with these Terms.
You may appoint Account administrators (“Administrators“) to your Service Account. You shall procure that all Administrators you appoint read, agree to and comply with these Terms, and you shall be responsible for any breach of the Terms by such Administrators. Such Administrators will also be liable for actions done in User account they manage.
5.4. Reallocation and Deletion of Accounts
After an Account has been allocated to a specific User, you may request that such Account be allocated to another User, or deleted entirely. The traffic data (including text message history and messaging history) in connection with any Account is only visible whilst that Account exists. If you choose to delete an Account, such traffic data will no longer be accessible to you once that Account has been deleted. It is therefore your responsibility to back up the traffic data records (if you so wish) before deleting the relevant Account. Any TeleMessage Numbers and TeleMessage Credit that you have allocated to a deleted Account may be reallocated beforethe Account is deleted. You may take the TeleMessage Numbers back by manually removing them from the Account. If You have purchased a Subscription for use with that Account, such Subscription may not be taken back to the TeleMessage Administrator but will no longer be available once the Account has been deleted.
5.5. Password & Email
You shall allocate a Password to each Account that you create, or you may invite a User to set up their own Password. You shall allocate an email address and/or mobile number to each Account that You create. The email address may only be changed by an Administrator.
It is prohibited for you and your Users to: (i) share Individual Accounts and (ii) share passwords that are being used either for Individual Accounts or Shared Accounts. You shall ensure that neither you, your Administrators or Users shall share an Individual Account, or share passwords.
You shall (and shall ensure that your Users shall) take all necessary steps to ensure the security of the User ID, password and email address of Accounts at all times. If You suspect that any password has been shared in breach of these Terms or has become known to anyone other than a User to whom the Password has been allocated, then you shall ensure that such password is immediately changed in order to protect your Accounts. It is your responsibility to ensure that your Users refrain from responding to any unsolicited requests for credit card details, passwords or other data. Neither TeleMessage nor its officers, employees or Affiliates may be held liable whether in contract, warranty, tort (including negligence), or any other form of liability for any claim, damage, or loss arising from or relating to any failure by You or your Users to comply with this paragraph5.5.
5.6. TeleMessage Numbers
TeleMessage can provide you with a unique phone number, which will be allocated to your Account and allow you to send or receive text messages and other data on that number (“TeleMessage Number“). Provision of TeleMessage Numbers is subject to applicable numbering rules and regulatory practices, which may change or be amended from time to time. TeleMessage reserves the right to change the terms related to TeleMessage Numbers accordingly, including without limitation to impose or amend local residency requirements and/or to require the provision of further user information for continued access to defined TeleMessage Numbers.
You may purchase and allocate TeleMessage Numbers to Accounts subject to compliance with the allocation requirements displayed upon subscription to receive a TeleMessage Number. In particular You are responsible for compliance with any requirements related to the residence and/or the location of the Company and the Users.
You are responsible for notifying any applicable Terms to Administrators and Users who are allocated a TeleMessage Number, and for ensuring that the Administrators and Users comply with such Terms. TeleMessage reserves the right to cancel the subscribed TeleMessage Numbers in case of breach by you, your Administrators or Users of the applicable Terms, including the allocation requirements, without compensation.
5.7. Personal and Traffic Data
You shall inform each User that you and your Administrators may obtain and use their personal and traffic data. You acknowledge and agree that you shall process (and shall ensure that your Administrators shall process) such personal data in accordance with all applicable data protection laws. You represent and warrant to keep all such personal and traffic data confidential and use and protect it strictly in compliance with applicable data protection laws.
5.8. No Unsolicited Communications
Under no circumstances shall you send (or allow your Administrators and/or Users to send) unsolicited commercial communications with respect to your Service Account. You shall not (and you shall ensure that your Administrators and/or Users shall not) send or procure the sending of any communications, including email messages on behalf of, or purporting to originate on behalf of, TeleMessage.
- Users Privacy
- Message and Address Book Storage, Outbound Messages and Other Limitations
TeleMessage assumes no responsibility for the deletion or failure to store information. TeleMessage may set upper limit on the number of messages a user may store or send through the Service. TeleMessage may automatically delete messages from accounts that reached their storage quota. However, TeleMessage retains the right to determine, in its sole discretion, whether or not a user’s conduct is consistent with the letter and spirit of these Terms and may terminate the Service if a user’s conduct is found to be inconsistent with these Terms. TeleMessage may, in the future, change its pricing, usage limitations and the limit and amount of storage space available to each user. From time to time, TeleMessage may require users to update the Service software, and may send service updates, planned disruptions or other information related to the Service to some or all of its users.
- Users Conduct
Any unauthorized commercial use of the Service, or the resale of the Service, is expressly prohibited. You agree to abide by all applicable local, state, national and international laws and regulations and shall be solely responsible for all acts or omissions that occur under any and all of your accounts or passwords, including the content of any of your transmissions via the Service. TeleMessage may disconnect a user immediately, without warning, if, in its sole discretion, there is reasonable suspicion of any violation of these Terms. By way of example, and not as a limitation, you agree not to:
a) Use the Service in connection with chain letters, junk email, junk phone messages, junk text messages, junk faxes, spamming or any duplicative or unsolicited messages (commercial or otherwise).
b) Harvest or otherwise collect information about others, including email addresses, without their consent.
c) Create a false identity or forged email, SMS text message, phone or fax address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message.
d) Transmit through the Service unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature.
e) Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity.
f) Libel, defame or slander any person, or infringe upon any person’s privacy rights.
g) Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs.
h) Violate any applicable law regarding the transmission of technical data or software through the Service.
i) Violate any applicable law with respect to child pornography or solicitation of minors for sex via the Internet.
j) Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks.
k) Attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means.
l) Interfere with another user’s use and enjoyment of the Service or another entity’s use and enjoyment of similar services.
m) Telephone solicit funds utilizing computer automated voice.
n) Engage in any other activity that TeleMessage believes, in its sole discretion, could subject it to criminal liability or civil penalty or judgment.
a) In consideration for the use of the Service, you shall pay to TeleMessage a subscription for various subscription packages, and/or usage fees for messages delivered or partially delivered using any available delivery method and additional user accounts at the applicable rate then in effect. The current fees are posted on the pricing page on the Site. TeleMessage may from time to time offer a limited time free trial or similar promotions during which no transaction fees or reduced transaction fees shall apply. Such promotions are intended for users to test the capabilities of the Service and/or for casual, personal use only. During such promotions, all provisions of these Terms shall remain in full force and effect.
b) Payment. Transaction fees are due and payable at the time of or before TeleMessage delivers a message to your recipients via every method of delivery, based upon the billing plan you select. The various payment plans are described in the pricing page or as otherwise agreed between TeleMessage and you.
c) Credit Card Payment. If you have elected to pay for the Service by credit card, and TeleMessage does not receive payment from the credit card issuer, you agree to pay all amounts due TeleMessage immediately upon demand by TeleMessage. Each time you use the Service, you agree that TeleMessage is authorized to charge your designated credit card account (or other means of payment) for the applicable rate for the Service then in effect. Please note that your agreement with your credit card issuer or bank governs your use of your credit card, and you must refer to that agreement to ascertain your rights and liabilities as a cardholder.
d) Other Payment Plans (if available). If TeleMessage does not receive full payment of your TeleMessage messaging account balance within thirty (30) days of the date your account statement is made available to you, an additional 1.5% (or the highest amount permitted by law, whichever is lower) per month late charge may be added to your bill and will be immediately due and payable. You also agree to be liable for all attorneys’ fees, costs and/or disbursements incurred by TeleMessage relating to the collection of your unpaid account. The charges contained on your account statement will be deemed acceptable by you unless you notify TeleMessage of any billing discrepancy within thirty (30) days after they first appear on your account statement. You also agree to timely pay for any purchases made or facilitated through the Service.
e) Additional Service Plans. Special service plan levels may require you to have a minimal paid usage per month or may incur additional costs to be entitled to receive higher levels of service.
f) Termination or Cancellation. You are free to terminate or cancel your engagement with TeleMessage at any time, and for any reason; provided, however, for such termination or cancellation to be effective you must carry out such termination in accordance with the policies and procedures established by TeleMessage, which are posted in the pricing page on the Site. If you have any questions concerning the appropriate method by which to cancel your engagement with TeleMessage, you should contact a TeleMessage Customer Support representative at the telephone number provided at www.TeleMessage.com.
- Modification of Terms; Termination, Cancellation, and Suspension
a) Modification of Terms. TeleMessage requently updates, modifies, and otherwise continually seeks to improve the Service. Such changes often dictate that we simultaneously modify the terms of these Terms. As such, TeleMessage shall have the right to modify the Terms and to change or discontinue any aspect or feature of the Service, in either case as it deems reasonably necessary. Such changes shall be effective immediately upon posting of such addition, change, or deletion. Any use by you of the Service after any such change has been posted shall constitute your acceptance of any such changes. If you do not agree with any such changes, you may cancel the Service in accordance with the procedures for cancellation set forth in these Terms. You acknowledge and agree that it is your responsibility to review these Terms from time to time and to be aware of any such changes.
b) Termination, Cancellation and/or Suspension by TeleMessage; Disclosure of Information. These Terms and the License granted hereunder may be terminated, canceled and/or suspended by TeleMessage at any time if, in TeleMessage’s determination, you breach any of these Terms. Such termination, cancellation and/or suspension by TeleMessage shall be effective immediately upon notification by TeleMessage to you in any reasonable manner, including but not limited to, notification by e-mail. Upon, during, and/or after any such breach, TeleMessage may elect to suspend, terminate and/or cancel its engagement with you and/or recover any and all damages from you arising from or relating to the event(s) giving rise to the suspension, termination or cancellation.
c) Obligations Upon Termination and/or Cancellation. Upon any termination, cancellation and/or suspension of TeleMessage’s engagement with you, you are responsible for any obligations then accrued including, but not limited to, payment of any costs or charges that may arise in connection with such termination, cancellation and/or suspension, and payment of all outstanding transaction fees for use prior to said termination, cancellation and/or suspension occurs. your payment and other obligations under these Terms are not suspended, stayed, or otherwise affected by a suspension of your access to or use of Service (in whole or in part) where said suspension arises from your failure to comply with, or your violation of, these Terms or of any law or legal obligation. Upon termination and/or cancellation, for any reason, you agree to immediately cease using the Service and remove all TeleMessage messaging software installed on any computer in your possession or under your control. TeleMessage shall have no obligation to you after any termination or cancellation of your engagement with TeleMessage.
- No Warranties or Liabilities
a) GENERAL. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE AND THE INTERNET GENERALLY IS AT YOUR OWN RISK AND THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. TELEMESSAGE WILL USE COMMERICIALLY REASONABLE EFFORTS TO MAKE ACCESS TO THE SERVICE AVAILABLE TO YOU THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRANTY OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS THE THE SERVICE OR ANY PART THEREOF AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
b) ADDITIONAL LIMITATIONS. WITHOUT LIMITING THE GENERALITY OF THE TERMS SET FORTH IN SECTION 11(a), TELEMESSAGE AND ITS AFFILIATES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS, AND LICENSORS:
(I) HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, NONINFRINGEMENT, MERCHANTABLIITY OR FITNESS FOR PARTICULAR PURPOSE OF THE SERVICE GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF THE SERVICE GENERALLY AND ANY CONTENT OR SERVICES CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE;
(II) SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS IN THE SERVICE, OR INSTALLATION AND COMPUTER , MOBILE PHONE OR TABLET DISRUPTIONS RELATED TO THE SERVICE, AND ANY CONTENT OR SERVICES CONTAINED THEREIN; YOU HEREBY AGREE TO INDEMNIFY TELEMESSAGE PURSUANT TO THIS SECTION 11 FOR ANY AND ALL THIRD PARTY CLAIMS ARISING FROM SUCH FAILURES, DELAYS OR INTERRUPTIONS IN CONNECTION WITH YOUR USE OF THE SERVICE);
(III) SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES ARISING OUT OF, RESULTING FROM, OR RELATING IN ANY MANNER TO THE USE OR INABILITY TO USE THE SERVICE ENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN. WITHOUT IN ANY WAY LIMITING THE FOREGOING, TELEMESSAGE SHALL IN NO EVENT HAVE (IN THE AGGREGATE) ANY LIABILITY WHATSOEVER IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF AN AMOUNT EQUAL TO TWO TIMES THE LOWEST MONTHLY TRANSACTION FEES FOR YOUR THE SERVICE ACCOUNT IN EFFECT FOR THE MONTHLY PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST CLAIM MADE BY YOU ALLEGING LIABILITY.
(IV) DELIVERY METHODS OF MESSAGES TO VARIOUS COMMUNICATION DEVICES IS SUBJECT TO A COMBINATION OF NETWORK PROVIDERS AND SERVICE PROVIDERS TERMS AND CONDITIONS AND NETWORK STATUS OVER WHICH TELEMESSAGE HAS NO CONTROL. TELEMESSAGE SHALL IN NO EVENT BE LIABLE TO REIMBURSE MESSAGE CREDITS, REIMBURSE PAYMENTS OR HAVE ANY OTHER LIABILITY FOR MESSAGES THAT WHERE SENT VIA THE SERVICE BUT NOT DELIVERED, NOT RECEIVED OR NOT ACCURATELY DISPLAYED, HEARD OR REPRESENTED ON ANY SUCH COMMUNICATION DEVICE.
c) HIGH RISK ACTIVITIES. THE SERVICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF SERVICE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES“). IN ADDITION TO THE OTHER DISCLAIMERS AND LIMITATIONS CONTAINED WITHIN THESE TERMS, TELEMESSAGE AND ITS AFFILIATES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS AND LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES INCLUDING EMERGENCY NOTIFICATION SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, TELEMESSAGE’S LIABILITY (AND THE LIABILITY OF ITS AFFILIATES, AGENTS, CONTENT PROVIDERS AND SERVICE PROVIDERS) SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
d) THE SITE MAY CONTAIN, AND USERS MAY POST VIA THE SERVICE, LINKS TO THIRD PARTY WEBSITES, WHICH ARE NOT UNDER TELEMESSAGE’S CONTROL. TELEMMESAGE SHALL NOT BE RESPONSIBLE FOR THE CONTENT OF ANY SUCH THIRD PARTY WEBSITES, AND THE USE OF WHICH IS AT YOUR JUDGMENT AND RESPONSIBILITY.
- Third Party Beneficiaries
Notwithstanding anything to the contrary contained herein, the provisions for “No Warranties and Liabilities” set forth in Section 11 herein are for the benefit of TeleMessage and its affiliates, agents, content providers and service providers and each shall have the right to assert and enforce such provisions directly on its own behalf.
You agree to indemnify, hold harmless, and defend TeleMessage, and its affiliates, agents, content providers and service providers, against any and all claims, liabilities, damages, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, attorneys’ fees and disbursements) arising from or relating to (i) the use of the Service in any manner which violates these Terms or otherwise violates any law, rule, or regulation and (ii) any claims made by third parties arising from your use of the Service, including without limitation any and regulation all third party claims arising from or related to any failure, delay or interruption to the Service. You agree to cooperate as fully as reasonably required in the defense of any claim. TeleMessage reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Term will otherwise remain in full force and effect and enforceable. These Terms are not assignable, transferable or sub-licensable by you except with TeleMessage’s prior written consent. These Terms will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and the United States of America without regard to the conflict of laws provisions thereof. You and TeleMessage agree to submit to the exclusive jurisdiction of the courts located in the county of Middlesex in the Commonwealth of Massachusetts. The Service shall be deemed a passive server that does not give rise to personal jurisdiction over TeleMessage, whether specific or general, in jurisdictions other than Massachusetts, USA. Both parties agree that these Terms are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind TeleMessage in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. You and TeleMessage agree that any cause of action arising out of or relating to the the Service must commence within 1 year after the cause of action occurs, Otherwise, such cause of action is permanently barred.