Terms of Service
NOVEMBER 20, 2019
- That you will utilize the services only in a lawful manner;
- That you are of legal age to form a binding contract; and,
- Note that MessagePro may restrict utilization of MessagePro services without notice;
- Note that MessagePro provides no warranty relative to its MessagePro services;
- Note that MessagePro’s liability in association with its MessagePro services is limited;
- Note that Customer is responsible for all authorized and unauthorized activity (including fraudulent activity) generated in association with their MessagePro account;
- Note that MessagePro service may not be utilized in any manner to provide access to emergency services including but not limited to 911 or E911 service;
- f)Note that MessagePro services offered on a flat rate basis are subject to fair use limitations; and,
- Incorporate a Customer waiver of any-and-all class action claims as well as waiver of any- and-all rights to trial by jury;
MessagePro services enables for a fee the delivery of SMS (Short Message Service) and MMS (Multimedia Messaging Service) messaging via a variety of interfaces. The MessagePro services may provide multiple mechanisms to collect and store names, phone numbers, e-mail addresses and other information (“subscriber data”). However, utilization of MessagePro services(s) are dependent on the express consent of party to whom messages are to be delivered. Proof of consent is generally required in connection with the utilization of MessagePro services(s). Prior consent may be required even in instances where you have an existing business relationship with the recipient.
MessagePro service is offered and controlled by MessagePro from its facilities and hosted platforms in the United States of America. MessagePro services, including any software we may provide in connection with that services, may be subject to applicable U.S. export control laws and economic sanctions regulations. The Company makes no representations that MessagePro services is appropriate or available for use in other locations. Those who access or use the MessagePro service from other jurisdictions do so at their own volition.
Issuance of invoices shall be at MessagePro’s sole discretion. Any applicable setup and/or installation charge(s) will be invoiced in advance. Recurring charges, including but not limited to subscription and maintenance fees, will be billed in advance. Usage charges and termination charges, if applicable will be billed in arrears. In regard to MessagePro service, usage may be billed on a metered, block or flat rate/unlimited basis. Customer may also be billed for overages where they exceed specified usage limits. Service involving toll free numbers may also incur separate charges.
Where offered on an unlimited or flat-rate basis, MessagePro services are subject to fair use limitations. Customer acknowledges and accepts the following limitations on usage in association with unlimited and flat-rate pricing:
- Usage is limited to normal day-to-day purposes directly related to the business;
- Services may not be used for call centers, excessive call forwarding, autodialing, fax blasting, telemarketing, robocalling, junk texting, spamming and/or continuous use calling or messaging.
- Services may not be used for data transmissions, transmissions of broadcasts or transmission of recorded material;
- Customer will not employ methods, devices or procedures to excessively utilize services; and,
- MessagePro shall have sole authority to review and determine abuse in regard to the fair use limitations and take action without notice in abuse situations to suspend or terminate services or in the alternative to convert any unlimited or flat-rate plan to a metered usage plan.
Charges to Customer for MessagePro service will include MessagePro specified fees and applicable taxes. If Customer is exempt from any taxes for any reason, you must provide dated valid exemption certificates to our tax department at legal@MessagePro.com. Once our tax department has received and approved your exemption certificate, MessagePro will exempt you from those taxes on a going forward basis. Exemption from taxes will not automatically exempt a Customer from certain regulatory fees such as universal service charges.
MessagePro services may require storage and retrieval of Customer data. Customer will provide current, accurate and complete information relative to their subscription both during the signup process and on an interactive basis as required by the MessagePro service. Person or employee establishing service with MessagePro represents and warrants that they are duly authorized to bind Customer. Customer will update information relative to their account in a timely manner in the event of change(s). By submitting content in conjunction with the MessagePro service(s), Customer hereby grants MessagePro a worldwide, non-exclusive, perpetual, royalty- free, fully paid license to use, modify, distribute and display submitted content in conjunction with providing the MessagePro service. Customer represents and warrants that they have all rights necessary to grant such license to MessagePro without infringement or violation of any third-party rights.
Where Customer provides a telephone number during the signup process, the Customer shall represent and warrant that: (i) they have procured all rights and licenses and have all power and authority necessary to use and text enable the specified phone number(s) without the consent of any third party, (ii) they will not use the services on a phone number that has been exchanged, rented, or purchased from a third party without the permission of the phone number owner, and (iii) the phone number is not a mobile subscriber phone number. In association with MessagePro service, Customer shall provide internet connectivity and compatible equipment as required to utilize the service. No relationship will exist between Customer and MessagePro until MessagePro accepts your order by confirmatory e-mail, call, message, or other appropriate means of communication.
Unless authorized in writing by MessagePro, all fees and charges for the MessagePro service(s) shall be by credit card or ACH transaction and shall be due and payable in US dollars. If Customer has authorized payment by credit card or ACH transaction, no further notice or consent will be required, and Customer authorizes MessagePro to process payments up to thirty (30) days after Customer withdraws the authorization. MessagePro reserves the right to continue processing credit card transaction for all outstanding invoices as of that date. If paying by credit card or ACH transaction, Customer will advise MessagePro of any change in account information (e.g. account number, expiration date, verification code) that is necessary to process Customer’s payment. Customer acknowledges and accepts that MessagePro will charge and Customer will pay a processing charge of the lesser of thirty-five dollars ($35.00) or the maximum allowed by law for any Customer payment returned for non-payment or chargeback. In instances denial of payment and/or chargeback, MessagePro shall make reasonable effort to contact Customer and advise them of failed payment and outstanding balance due. Notwithstanding the above, MessagePro reserves the right to suspend or disconnect Customer services and terminate the Customer’s account if Customer’s payment method is not received in a timely manner, returned, declined or fails for any reason. Customers with a past due balance on previous or multiple accounts will be charged the full balance due upon opening a new account or providing updated payment information. Until all prior due balances are brought current, MessagePro may limit or suspend access to new services. In the process of verifying and validating credit card transactions, MessagePro may place a temporary $1.00 hold on Customer’s credit card. Release of this hold should occur within 3 – 4 business days but subject to the terms and conditions of Customer’s financial institution. Amounts paid for service are not refundable. Payments for partial service periods will not be prorated.
The term of service will be as established at the time of service initiation. Subscriptions shall automatically renew for the same period of time at MessagePro’s then current price for such subscription unless either party gives 30 day notice of termination to the other party. Customer notices for non-renewal and/or termination of services shall be sent to termination@MessagePro.com. Lack of use without notice of termination shall not terminate an account. Customer authorizes MessagePro to charge credit cards on file relative to service renewal.
Either party may terminate service at any time upon thirty (30) days prior written notice if the other party commits a material breach that remains uncured after thirty (30) days written notice specifying the nature of the breach and identifying the measures required to correct the breach. Upon termination, other than for uncured breach on the part of MessagePro, all unpaid fees related to the initial term or any renewal term shall be due and payable in full immediately.
Utilization of MessagePro services(s) are subject to applicable law and regulation. MessagePro services may not be utilized for sending unsolicited text messages except in regard to specific healthcare and financial alerts. In utilizing our service(s), you agree to review and fully comply with all aspects of the TCPA and CAN-SPAM Act and to adhere to the best practices principles of the Mobile Marketing Association and the Cellular Telecommunications Industry Association. You agree that you will not access, upload or otherwise utilize or upload any third-party marketing list in association with the MessagePro services(s). You agree that you will not utilize the services to engage in any illegal activity including but not limited to the production and delivery of SPAM. Furthermore, you agree that that your account transmissions will in no manner violate, infringe or misappropriate the intellectual property rights of any third party including but not limited to trademarks, copyrights and rights of publicity. You will not utilize the MessagePro service to mislead others to the identity of the sender of origin of a message by any mechanism.
You agree to assume full responsibility for all action undertaken by all users in regard to your MessagePro services subscription. You are solely responsible for maintaining the confidentiality of your password, account and files. MessagePro will deem any communication, data transfer or use of MessagePro services received under your account name(s) and passwords to be for your benefit and use. Customer acknowledges and accepts that all parties with access to MessagePro systems and components shall utilize, at a minimum, a reasonable degree of care and diligence relative to the protection of Customer’s account information and MessagePro’s intellectual property. Customer further agrees to ensure that all MessagePro services settings are effectively managed to prevent any unauthorized access/utilization and that Customer and its end users will not defeat, disable or circumvent any security mechanism of the MessagePro service(s).
You agree that you will not utilize our services in manner that would result in the transmission of undesirable or illegal content such as violence, physical threats, harassment, pornography, alcohol, illegal drugs, viruses or harmful code or other material prohibited by law or regulation. In use of the MessagePro services(s), you agree to represent yourself, your organization, your product and your service(s) accurately. Furthermore, all messages originated via the MessagePro services(s) must contain mechanisms by which the receiver of the message may unsubscribe from your message list. You must promptly notify MessagePro of any unauthorized use of your account or any other breach of security relative to your MessagePro service. Customer is responsible for all unauthorized activity and/or fraud associated with use of their MessagePro account.
In the provision of MessagePro services(s), in our sole discretion we may limit without notice the number of messages generated by a subscriber, the maximum message size, the type and size of content that may be attached to messages and anything else that is accessed or delivered by the MessagePro service(s). We may impose and/or modify these limitations without prior notice. Furthermore, message length may be technically limited with specific capacities subject to rules implemented by intermediary and terminating carriers.
You acknowledge and accept that MessagePro’s text service(s) may in no manner be utilized for access to emergency personnel and 911 and E911 based public safety answering points (PSAPs). Subscriber relieves MessagePro of any and all liability associated with the blocking of SMS and MMS origination to 911 destinations in association with the provision of MessagePro services. Customer further acknowledges and accepts that MessagePro service is not authorized for use in critical safety applications or situations that require continuous uninterrupted service. Utilization in any application where failure of service could reasonably be expected to result in bodily injury, loss of life or catastrophic damage to property or person is prohibited.
MessagePro agrees that It will not utilize any subscriber data stored in association with your services for any purpose other than the provision of subscribed services or to comply with legal requirements.
IN GENERAL, MESSAGEPRO OPERATES ITS NETWORK AND PROVIDES SUPPORT IN A MANNER THAT MEETS THE REQUIREMENTS FOR COMMUNICATIONS SERVICES UNDER HIPAA AND HITECH LAW AND REGULATION. FOR SAKE OF CLARITY HOWEVER, MESSAGEPRO OFFICE UTILIZES PUBLIC SMS AND MMS TEXT MESSAGING THAT ARE NOT INTENDED FOR USE IN TRANSMITTING PROTECTED HEALTH INFORMATION (PHI). SMS AND MMS MESSAGING SHOULD NOT BE USED TO TRANSMIT PHI AS THOSE COMMUNICATIONS METHODS ARE GENERALLY NOT COMPLIANT WITH US GOVERNMENT HIPAA AND HITECH LAW AND REGULATION. MESSAGEPRO APPOINTMENTS SERVICE GENERALLY MEETS ALL LEGAL REQUIREMENTS AS LONG AS PHI IS NOT TRANSMITTED IN ANY APPOINTMENT REMINDER. MESSAGEPRO SECURE IS DESIGNED TO PROVIDE AN APPLICATION-TO-APPLICATION INTERFACE INSTEAD OF PUBLIC SMS AND MMS MESSAGING AND IS SPECIFICALLY DESIGNED TO BE HIPAA AND HITECH COMPLIANCE IF UTILIZED IN THE INTENDED MANNER. SEPARATE TERMS OF SERVICE APPLY IN REGARD TO MESSAGEPRO CARE MANAGER SERVICE AND MAY BE PROVIDED UPON REQUEST.
To the extent that you are subscribing to MessagePro Appointment and/or MessagePro Secure and are utilizing the services in a manner that requires compliance with HIPAA and HITECH requirements in support of providing medical services, MessagePro stands ready to support you with the execution of our standard Business Associate Agreement (BAA) which can be found at https://www.messagepro.com/baa/
Provided that MessagePro implements appropriate de-identification criteria in accordance with the Standards for Privacy of Individually Identifiable Health Information set forth in 45 C.F.R. §164.514(b), Customer acknowledges and agrees that de-identified information is not PHI as defined in the applicable regulations and that MessagePro may use such de-identified information for any lawful purpose.
Customer acknowledges and consents to the monitoring and recording of calls involving MessagePro service personnel relative to the provision and support of the MessagePro service. Customer consents to the placement of outbound calls, texting and e-mails to Customer relative to the provision and support of MessagePro service. In the event that during communications between the Customer and MessagePro, the Customer provides any feedback, answers, ideas, input, survey response, suggestions, comments or other information, Customer hereby grants MessagePro a perpetual, non-revocable, royalty free, fully paid up, worldwide right and license to utilize the provided information.
Customer acknowledges and agrees that MessagePro may initiate changes to its applications, services, network infrastructure and underlying software without notice and that continued utilization of MessagePro services may require modification of subscriber systems, equipment and/or software. Customer further accepts that services may be limited due to other operational issues including but not limited to network capacity limitations, network maintenance and modification, vendor restrictions and fraud control. MessagePro shall not be responsible in any manner for any service issues, delays or interruptions associated with Customer’s internet and broadband connectivity.
MessagePro will defend and indemnify Customer against claims that the services infringe a copyright or patent, provided that: (a) Customer notifies MessagePro in writing within 30 days of the claim; (b) MessagePro has sole control of the defense and all related settlement negotiations; and (c) Customer provides MessagePro with the assistance, information and authority necessary to perform MessagePro's obligations under this Section.
In the event the services are held or are believed by MessagePro to infringe, MessagePro shall have the option, at its expense, to (a) modify the services to be non-infringing; (b) obtain for Customer a subscription to continue using the services; or (c) terminate the subscription for the infringing services. This paragraph states MessagePro's entire liability and Customer's exclusive remedy for infringement.
EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SERVICES ARE PROVIDED OR MADE ACCESSIBLE “AS IS” AND “AS AVAILABLE”, WITHOUT CONDITION, ENDORSEMENT, GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, BY MESSAGEPRO. MESSAGEPRO DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF ANY SERVICES, CONTINUED AVAILABILITY OF ANY SERVICES, OR THAT ANY MESSAGES, CONTENT OR INFORMATION SENT BY OR TO CUSTOMER WILL BE ACCURATE, TRANSMITTED IN UNCORRUPTED FORM, UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WITHIN A REASONABLE PERIOD OF TIME.
CUSTOMER ACKNOWLEDGES AND ACCEPTS THAT ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE HEREBY EXCLUDED. THE LIMITED WARRANTIES SET OUT IN THIS AGREEMENT GIVES THE CUSTOMER SPECIFIC LEGAL RIGHTS. THE CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE OR PROVINCE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES AND CONDITIONS. TO THE EXTENT PERMITTED BY LAW, ANY IMPLIED WARRANTIES OR CONDITIONS RELATING TO THE SERVICES, TO THE EXTENT THEY CANNOT BE EXCLUDED AS SET OUT ABOVE, BUT CAN BE LIMITED, ARE HEREBY LIMITED TO NINETY (90) DAYS FROM THE DATE YOU UTILIZED MESSAGEPRO SERVICES.
TO THE EXTENT ALLOWED BY LAW, MESSAGEPRO’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIM, LOSS, EXPENSE OR DAMAGE WILL IN NO EVENT EXCEED THE LESSER OF (a) SUMS ACTUALLY PAID BY CUSTOMER TO MESSAGEPRO FOR THE SERVICES WHICH GIVE RISE TO THE CLAIM DURING THE NINETY (90) DAYS IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY OR (B) US $500.00.
MessagePro and Customer will use reasonable efforts to resolve any dispute, claim, question or disagreement through negotiated settlement. As part of the settlement negotiation process, the initiating party will provide the other party with written notice, in a timely manner and in reasonable detail, outlining the basis of such dispute, claim, question or disagreement. Neither party shall pursue any legal filing with any court, arbitrator or other adjudicative body prior to engaging in good faith negotiation and consultation toward resolution of all outstanding matters. Except in regard to bankruptcy, MessagePro and Customer expressly waive any right to bring, undertake, enter or join any class or collective action lawsuit or proceeding. The costs of any litigation or arbitration, whether incurred at the trial or appellate level (including attorneys' fees, court or arbitration costs and the costs of experts and of paralegal, accounting, financial and other legal and investigative support personnel), will be borne by the ultimate non-prevailing party. A party awarded less than 60% of its claimed damages will be deemed a non-prevailing party.
Notwithstanding the above, as it relates to billing, all Customer disputes must be raised in writing within sixty (60) days of the date of billing. Billing disputes not raised within this period shall be automatically waived. Bill credits shall be the sole and exclusive remedy with respect to any billing errors by MessagePro.
Neither party will be in default or otherwise liable for any delay in or failure of its performance hereunder, except for a failure to pay, due to any act of God, adverse weather condition, fire, flood, lightning, earthquake, riot, strike, accident, war, power failure, act of terrorism, governmental requirement, inability to secure materials, labor or transportation, cable cut or other cause beyond the reasonable control of the affected party. Neither party will be liable for any delay or failure to the extent it results from the requirements of law or the acts, delays or failures to act of any regulatory authority, or any provider with which MessagePro has an interconnection agreement. Any such delay or failure may suspend the service until the delay or failure ceases.