THIS MEMBER TERMS OF SERVICE (“TOS”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU,” “MEMBER,” OR “USER,” OR “TexTango MEMBERS(S)”) AND TexTango (“WE” OR “TexTango”). IF YOU DO NOT AGREE WITH THIS TOS, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE TexTango SERVICES. YOU MUST BE AT LEAST AGE 18 TO ENROLL IN THE TexTango SERVICES.
The terms and conditions (“Terms”) stated in this TOS govern your use of TexTango products, services, programs, software, and websites (collectively, “Services”). Before downloading, accessing, or using any part of the Services, you should carefully read the following Terms. TexTango is willing to provide the Services to you only on the condition that you accept and agree to all of the Terms stated in this TOS. This TOS will take effect at the moment you click “I ACCEPT” or any similar action indicating agreement, register for the Services, respond to a request for information, and/or begin downloading, accessing, or using the Services, whichever is earliest. All references herein to TexTango means Goombart Tech Inc., whose principal place of business is 5755 Oberlin Circle, Suite 301, San Diego, CA 92121, United States.
1. MOBILE AND E-MAIL ADVERTISING SERVICE
1. TexTango’s advertising service (“Program,” which shall be included in the Services) consists of the following: (a) a patent-pending process of mobile marketing that embeds advertising messages (“Ads”) of third parties (“Advertisers”) with whom TexTango has a business relationship at the end of phone-to-phone text messages (“Text Messages”) sent by a Member to family, friends, and other contacts personally known to the Member (“Recipients”). To use the Program for Text Message advertising, you must download the TexTango Program application (“Application”) to your wireless device by following the download instructions on www.TexTango.com. As used in this Agreement, the term “Message” include both Text (SMS) Messages and MMS Messages.
2. Once the TexTango Text Message Application is successfully installed on your wireless device, TexTango will incentivize (“Member Compensation”) for each Ad embedded by TexTango in a Text Message sent by you. Even if you have installed the Application on your wireless device or obtained an Email Platform account, TexTango is not obligated to embed an Ad in any or every Message sent by you. Accordingly, you may not receive Member Compensation for each Message you send. TexTango, in conjunction with criteria set by its Advertisers, solely determines whether to embed an Ad in your Message and the content of each Ad. By way of example and not limitation, such criteria may include your geographic location, limits on the number of Ads that an Advertiser wishes to disseminate through the Program, and limits on the number of transmissions that TexTango generally allows any Member to send through the Program during a given time period.
3. Member Compensation is calculated based on the volume of Messages sent by you and also by the incentive an Advertiser is willing to compensate for each Ad. You acknowledge that Member Compensation may depend, in part, on certain criteria set by TexTango’s Advertisers and therefore is non-negotiable by you. TexTango reserves the right to audit and adjust your transaction report at any time, resulting in compensation less than originally calculated.
4. You acknowledge and agree that TexTango may embed certain non-commercial messages (“Unpaid Ads”) at the end of your Messages as an added benefit for our members for which you will not earn Member Compensation. By way of example and not limitation, such Unpaid Ads may include emergency alerts, government notices, and other messages from non-profit organizations, governmental, and law enforcement agencies that use TexTango’s Program to distribute such messages. TexTango, in conjunction with those organizations and agencies, is solely responsible for determining when to embed Unpaid Ads and the content of those Unpaid Ads.
2. ACCOUNT SET-UP
1. You must be at least 18 years of age to set up a TexTango account. It is your responsibility to keep your Member information on file with us accurate and current. We have no responsibility or obligation to pay Member Compensation to Members whose Member information is not accurate or current. If you provide any false, inaccurate, untrue, or incomplete information at any point during your relationship with us, we reserve the right to terminate immediately your access to and use of this Services.
3. It is your responsibility to keep the confidentiality of any username(s) and password(s) associated with any account you use to access the Services. You are solely responsible for all activities that occur under any of your accounts. If you become aware of any unauthorized use of your password(s) or account(s), you agree to notify TexTango immediately by writing to tango@TexTango.com.
3. USER OBLIGATIONS
1. You may not use the Services in any way that violates any applicable federal, state, international, or local law, regulation, or legal guidelines (“Laws”). You are solely responsible for informing yourself about such Laws and ensuring compliance with such Laws.
2. Without limiting the generality of Section 1.8 of these Terms, in conjunction with your participation in the Program, you may not (a) use any automated dialing system or “autodialer” to send Messages to Recipients, (b) use scripts or other programming to send mass volumes of Messages or “text spam” or “email spam” to Recipients, (c) send Email Messages that are “commercial electronic mail messages,” as that term is defined by the CAN-SPAM Act of 2003, (d) send Messages that constitute “Mobile Service Commercial Messages,” as that term is defined by the CAN-SPAM Act of 2003 and implementing Federal Communications Commission regulations, or (e) send messages to any Recipient who is not a family member, friend, or other contact with whom you have an existing personal relationship.
3. You may not access or attempt to access any of the Services by any means other than through the direct interface provided by TexTango, unless you have been specifically allowed to do so in a separate written agreement with TexTango.
4. You will not engage in any activity that interferes with or disrupts the Services (or the servers and networks that are connected to the Services).
5. Unless you have been specifically permitted to do so in a separate written agreement with TexTango, you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
6. You agree that you are solely responsible for (and that TexTango has no responsibility to you or to any third party for) any breach of your obligations under these Terms and for the consequences (including any loss or damage which TexTango or any third party may suffer) arising out of or resulting from any such breach.
7. TexTango retains the right to audit Messages sent by any Member if TexTango believes, in its reasonable discretion, that the Member has breached its obligations under this TOS. TexTango reserves the right to obtain a court order or pursue other legal processes with respect to your wireless carrier or any other third party to obtain information about the content of any Messages sent by you if TexTango determines, in its sole discretion, that such information is necessary to enforce this TOS, to protect its rights or property or the rights or property of any third party, to prevent illegal activity, or for any other lawful purpose.
1 All Ad and Unpaid Ad content (including, without limitation, text, graphics, software, music, audio files or other sounds, photographs, videos or other images) (“Content”) may be protected by intellectual property rights which are owned by the Advertisers or other organizations or agencies that provide the Content to TexTango (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically authorized in writing by TexTango or by the owners of that Content.
2. You agree that you are solely responsible for (and that TexTango and any third party has no responsibility to you or to any other third party for) any Message that you create, transmit or display while using the Services and for the consequences of your transmission or display of such Message (including any loss or damage which TexTango or any third party may suffer).
5. PROPRIETARY RIGHTS
1. You acknowledge and agree that TexTango (or TexTango’s Advertisers, licensors, or other business partners) own all legal right, title and interest in and to the Services, Ads, and Unpaid Ads, including any intellectual property rights which subsist in the Services, Ads, and Unpaid Ads (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
2. You further acknowledge that the Services may contain information which is designated confidential by TexTango and that you shall not disclose such information without TexTango’s prior written consent.
3. Unless you have agreed otherwise in writing with TexTango, nothing in these Terms gives you a right to use any of TexTango’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features (collectively, “TexTango IP Rights”) in any manner or for any purpose.
4. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services or any Ad or Unpaid Ad.
5. Unless you have been expressly authorized to do so in writing by TexTango, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization (including, without limitation, any Advertiser or other party with whom TexTango has a business relationship) in a way that violates such other party’s intellectual property rights or is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
6. LICENSE FROM TexTango
1. The Services are provided by TexTango, and this TOS provides to you a personal, revocable, limited, non-exclusive, royalty-free, non-transferable license to use the Services and any software contained within the Services (“Software”) conditioned on your continued compliance with the terms and conditions of this TOS. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by TexTango, in the manner permitted by the Terms.
2. Notwithstanding the foregoing, you may not (and you may not permit anyone else to) copy, modify, translate, distribute, dissemble, broadcast, transmit, publish, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of, remove, or alter the Services or Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically authorized in writing by TexTango.
3. Unless TexTango has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Services or Software, grant a security interest in or over your rights to use the Services or Software, or otherwise transfer any part of your rights to use the Services or Software.
7. SOFTWARE UPDATES
1. The Software which you use may automatically download and install updates from time to time from TexTango. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit TexTango to deliver these to you) as part of your use of the Services.
8 TERMINATION OF SERVICES
1. TexTango may temporarily or permanently stop providing the Services (or any features within the Services) to you at TexTango’s sole discretion and without prior notice to you, including without limitation if (a) you have breached any provision of these TOS, (b) TexTango is required to do so by law, (c) TexTango believes, in its sole discretion, that you have committed fraud with respect to your access to and use of the Services, (d) the Advertiser or other partner with whom TexTango offers the Services to you have terminated its relationship with TexTango, (e) the provision of the Services to you by TexTango is, in TexTango’s sole opinion, no longer commercially viable, or (f) Texteran is no longer providing the Services to users in the jurisdiction in which you reside or from which you use the Services. Termination is effective without notice. TexTango may disable access to your member account or otherwise prevent you from accessing the Program or your account details.
2. You may stop using the Program at any time by un-installing the Application from your wireless device or providing written notice to us to disable your Member account, but all applicable provisions of this TOS will survive termination, as identified below.
3. The provisions concerning TexTango’s proprietary rights, indemnity, disclaimers of warranty and liability, admissibility of this TOS, waiver and severability, integration, and governing law will survive the termination of this TOS for any reason.
9. DISCLAIMER OF WARRANTIES
1. THE INFORMATION, SERVICES, PROGRAMS, PRODUCTS, SOFTWARE, AND MATERIALS PROVIDED BY TexTango ARE PROVIDED ON AN "AS-IS" AND “AS AVAILABLE" BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. MOREOVER, TexTango MAY MAKE MODIFICATIONS AND/OR CHANGES IN THE INFORMATION, SERVICES, PROGRAMS, PRODUCTS, SOFTWARE, AND MATERIALS AT ANY TIME AND FOR ANY REASON. YOU ASSUME THE SOLE RISK OF MAKING USE OF AND/OR RELYING ON THE INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS AVAILABLE FROM TexTango. TexTango AND ITS LICENSORS, SUBSIDIARIES, ADVERTISERS, AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE INFORMATION, SERVICES, PROGRAMS, ADS, PRODUCTS, AND MATERIALS FOR ANY PURPOSE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY. TexTango MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION OR THAT ANY FILES OR INFORMATION THAT YOU DOWNLOAD FROM THE SERVICES WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES.
2. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. RELEASE AND LIMITATION OF LIABILITY
1. You expressly absolve and release TexTango from any claim of harm resulting from a cause beyond TexTango’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions.
2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TexTango, ITS SUBSIDIARIES AND AFFILIATES, ADVERTISERS, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR: (A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS LIMITATION OF LIABILITY SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: (I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF THE SERVICES; (II) ANY CHANGES WHICH TexTango MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; (III) YOUR FAILURE TO PROVIDE TexTango WITH ACCURATE ACCOUNT INFORMATION; OR (IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. THE LIMITATIONS ON TexTango’S LIABILITY TO YOU IN THIS SUBSECTION SHALL APPLY WHETHER OR NOT TexTango HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSS.
3. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. NOTWITHSTANDING THE FOREGOING, TOTAL LIABILITY OF TexTango FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY TO YOU BY TexTango IN CONNECTION WITH THE SUBJECT MATTER OF THE PARTICULAR DISPUTE.
1. You agree to defend, indemnify, and hold harmless TexTango and all of its respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from any breach by you of this TOS.
12. COPYRIGHT; DESIGNATED AGENT FOR NOTIFICATION OF CLAIMS INFRINGEMENT.
1. TexTango has no responsibility to create or review Ads provided by Advertisers (including Member who create and upload Ads) to its Program or to assess intellectual property rights in relation to any such Ads. TexTango respects the intellectual property of others, and it asks its Members and other users of its Services to do the same. Accordingly, it is TexTango’s policy to respond to a notice of alleged infringement that complies with U.S. Copyright Law, and in particular, the Digital Millennium Copyright Act. Responses may include removing or disabling access to Ads or other content or material claimed to be the subject of infringing activity and/or terminating a Member’s or other party’s right to access and use the Services. But, you acknowledge that you may be liable for damages, including attorneys’ fees and costs, if you materially misrepresent that a work or activity is infringing your rights. If we terminate or suspend a Member’s or other party’s access to or use of the Services, TexTango will make a good-faith attempt (as warranted) to contact the person who posted the Ad or other content so that they may make counter notification pursuant to applicable laws. It is TexTango’s policy to document all notices of alleged infringement upon which TexTango decides to take action. As with all legal notices, a copy of the notice may be sent to one or more third parties who may make such notice available to the public.
2. If you believe that one or more of your works have been copied in a way that constitutes copyright infringement, please provide a written notice of your claim of copyright infringement that is directed to TexTango’s designated agent as specified below along with the following information:
* A signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed;
* A description, in reasonable detail, of the copyrighted work that you claim has been infringed;
* A description, in reasonable detail, of where the material that you claim is infringing is located;
* Your address, telephone number, and e-mail 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; and* A statement by you, made under penalty of perjury, that the above information in your written notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. * Venable LLP 750 E. Pratt Street Suite 900 Baltimore, MD 21202 4102447400 http://www.venable.com
13. THIRD PARTY CONTENT
1. Certain aspects of the Services may include hyperlinks to other web sites or content or resources operated by third parties. TexTango may have no control over any web sites or resources which are provided by companies or persons other than TexTango.
2. You acknowledge and agree that TexTango is not responsible for the availability of any such external sites or content or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
3. You acknowledge and agree that TexTango is not liable for any loss or damage which may be incurred by you as a result of the availability or unavailability of those external sites or content or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or content or resources.
4. If you use a service or download a piece of software, or purchase goods, which are provided by another person or company, your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the TOS do not affect your legal relationship with these other companies or individuals.
14. CHANGES TO THE TOS
1. TexTango may make changes to the TOS from time to time with or without notice to you. When these changes are made, TexTango will make a new copy of the TOS available at www.TexTango.com. You understand and agree that if you use the Services after the date on which the TOS have changed, TexTango will treat your use as acceptance of the updated TOS.
15.GENERAL LEGAL TERMS
1.This TOS constitutes the whole legal agreement between you and TexTango and governs your use of the Services and completely replaces any prior agreements between you and TexTango in relation to the Services.
2. You agree that TexTango may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Services.
3. You agree that if TexTango does not exercise or enforce any legal right or remedy which is contained in these Terms (or which TexTango has the benefit of under any applicable law), this failure to act will not be taken to be a formal waiver of TexTango’s rights and that those rights or remedies will still be available to TexTango.
4. If any court of law, having the jurisdiction to decide on matters related to this TOS rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
5. You acknowledge and agree that each member of any group of companies of which TexTango is the parent, now or in the future, shall be third party beneficiaries to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms.
6. These Terms, and your relationship with TexTango under these Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and TexTango agree to submit to the exclusive jurisdiction of the courts located within the county of San Diego, California to resolve any legal matter arising from these Terms. TexTango reserves the right to take any and all appropriate legal action to enforce its rights and your obligations under this TOS and to obtain damages at law as may be recovered by TexTango, with attorneys fees to be awarded to TexTango. Notwithstanding anything else in this TOS to the contrary, you agree that TexTango shall be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.