DESCRIPTION OF SERVICE. Appointible LLC provides a web-based application (“Appointible”) for managing mobile and email marketing campaigns including mobile and email messaging capabilities (the “Service”). Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to this Agreement. You understand and agree that the Service is provided to you on an “AS-IS” basis and that Appointible assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access and subsequent usage may involve third party fees (such as Internet access to use the Service).
YOUR REGISTRATION OBLIGATIONS. In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Appointible has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Appointible has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). Children under the age of 13 may not sign up for an Appointible account or use any Appointible services.
PAYMENT AND FEES.
A. Payment by Credit Card / Paypal. You hereby authorize Appointible to charge your credit card as set forth in the Payment Method section of the Registration Form to a monthly Services fee, and overage fees to Appointible at the rates set forth on https://appointible.com/pricing or agreed upon rate.
B. Pass Through Charges. If at any time after execution of this Agreement, a Network Operator or other Third-Party changes the Third-Party Charges on Provisioned Phone Numbers then Appointible, at its discretion, may pass through such fees (“Pass Through Charges”) to you at cost.
MEMBER ACCOUNT, PASSWORD AND SECURITY. You (the “MEMBER”) will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account designation and are fully responsible for all activities that occur under your password or account designation. You agree to (a) immediately notify Appointible of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Appointible cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
MEMBER CONDUCT, REPRESENTATIONS, AND WARRANTIES
A. You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages, emails or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Appointible, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. Appointible does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Appointible be liable in any way for any Content, including, but not limited to, for 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 the Service.
Appointible is solely a facilitator of the message traffic and has no visibility into or control over individual messages as they are transmitted through Appointible and has no responsibility or liability with respect to the content of any individual message. Except that Appointible may use programmatic means to filter your messages and block your campaigns or account due to message keywords that Appointible has determined, in its sole description, may violate an applicable rule, regulation, or law.
B. You agree to not use the Service to:
1. Upload, post, text message, email, transmit or otherwise make available any illegal contests or gambling, unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
2. Upload, post, text message, email, transmit or otherwise make available any adult Content or Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements, or which violates the intellectual property rights of a third party (“Rights”);
3. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
4. Upload, post, text message, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any mobile telephone, mobile device, computer software or hardware or telecommunications equipment;
5. “Stalk” or otherwise harass another; and/or
6. Using any equipment or software that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, in conjunction with your use of the Services;
7. Using any equipment or software that has the capacity to initiate messages without human intervention, in conjunction with your use of the Services;
8. Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility- related telephone numbers;
9. Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;
10. Harvesting, or otherwise collecting information about others, without their consent;
11. Misleading others as to the identity of the sender of your messages, by creating a false identity, impersonating the identity of someone/something else or by providing contact details at do not belong to you;
12. Transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;
13. Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity;
14. Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or y other harmful/deleterious programs;
15. Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;
16. Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
17. Interfering with another’s use and enjoyment of the Services or Appointible Sites; or
18. Engaging in any other activity that Appointible believes could subject it to criminal liability or civil penalty/judgment.
C. You acknowledge that Appointible may or may not pre-screen Content, but that Appointible and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, Appointible and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
D. You acknowledge, consent and agree that Appointible may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any subpoena or other legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Appointible, its users and the public.
E. You understand and agree that all messages you send via the Appointible service will be sent, and certify that any subscriber list you decide to import into Appointible was collected, in compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing SMS messages, advertising, and telemarketing, including, without limitation, Section 5 of the FTC Act (15 U.S.C. § 45), the CAN-SPAM Act (15 U.S.C. §§ 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227), the Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.) and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations, and, as applicable for SMS to Canadian numbers, the CRTC’s Unsolicited Telecommunications Rules, including the CRTC Telemarketing Rules, National DNCL Rules, and Automatic Dialing and Announcing Device Rules, Telecom Decision CRTC 2007-48, as amended.; and all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices (collectively, “Applicable Message Requirements”). Appointible provides the software and carrier-connectivity through which you send your messages; you are solely and exclusively responsible for complying with Applicable Message Requirements (and for defending and indemnifying Appointible from any claims in which it is alleged that you failed to do so). If for any reason Appointible suspects that your use of its Services in any way is contrary to any Applicable Message Requirements, it reserves the right to request a written explanation from you, the client, including the method of collecting the subscriber’s phone numbers and a guarantee signed by you that all the people on your subscriber list provided you prior express written consent to receive text messages from you of the type that you had sent. You agree to provide all such information and documents reasonably requested by Appointible. Appointible reserves the right to take any action it thinks appropriate in the case of non-compliance, including but not limited to suspension and/or cancellation of the account, without any liability to you therefor.
F. You represent and warrant that you are aware that, among other requirements, the TCPA requires prior express written consent from a consumer before you can send them marketing text messages using an autodialer, with no purchase required as a condition of their consent, and such consent must be clear and conspicuous. Furthermore, damages for each message sent in violation of the TCPA is $500 and can be $1500 if the violation is proven to be “willful and knowing.”
G. You agree that you will include clear opt-out/unsubscribe information on your messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages, and that you will promptly process all such do-not-text or do-not-call requests and maintain those numbers on your internal do-not-call/text list.
H. You shall schedule your messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, pictures or videos for inclusion in any outbound messages. If you are unfamiliar or unclear on the legalities of any message that you intend to initiate through the Services, you must consult with your attorney prior to your use of the Appointible Sites or Services.
I. You represent and warrant that you have all power and authority and have procured all rights and licenses necessary to use and text enable those Phone Numbers utilized for Appointible services. In the case of shared use Phone Numbers, you expressly represent that you are the Phone Number Owner.
DOWNTIME & REFUND POLICY
A. For purposes of this Agreement, a Unit of Downtime is one period of at least 1 day during which access to Service is unavailable because of problems with hardware or system software. Downtime does not include:
problems caused by factors outside of our reasonable control
problems resulting from any actions or inactions by you or any third party
problems resulting from your equipment and/or third party equipment not within our sole control, or
network unavailability during scheduled maintenance of our network and/or web servers.
B. In any calendar month, we guarantee that Downtime will not exceed 1 Unit of Downtime excluding, however, regularly scheduled maintenance.
C. If Downtime exceeds 1 Units of Downtime in any calendar month, we will, upon your written request, credit your account (a “Downtime Credit”) in an amount equal to the pro-rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.
D. To receive Downtime Credit, you must request such credit by sending an email to firstname.lastname@example.org within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven (7). Downtime Credits will be applied upon the issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the US dollar value of the Downtime Credit will be credited to your credit card within thirty (30) days of the expiration of your service agreement.
E. If you are unhappy with any aspect of our service, please contact us and we will attempt to rectify the situation. Because we are providing a service, which starts when you create the account, we can not provide a refund except when the service has not been acceptable. This is at our discretion only. No refunds will be made if we terminate your account due to violation of our Acceptable Use Policy or any other violation of our Terms and Conditions, except as may be provided therein. This does not affect your statutory rights. No bill credit will be given for a period of suspension.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE. Appointible does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant to Appointible the following worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service and elsewhere for the purpose for which such Content was submitted or made available and also for the purpose of providing and promoting the Service to which such Content was submitted or made available.
INDEMNITY. You agree to defend, indemnify and hold Appointible, and its affiliates, officers, agents, and employees harmless from any proceeding, suit, claim or demand, including reasonable attorneys’ fees, made by any third party relating to, alleging or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your alleged violation of this Agreement, your alleged violation of any rights of another, or your alleged violation of any law (“Indemnifiable Claims”), and to indemnify Appointible from any damages, awards, attorneys’ fees, and costs awarded against or incurred by Appointible in connection with any such Indemnifiable Claims. As a condition of the foregoing indemnification obligations, (a) Appointible will provide you prompt notice of any such Indemnifiable Claim, provided, however, that the failure to give such prompt notice shall not relieve you of your obligations hereunder except to the extent that you were actually and materially prejudiced by such failure; (b) you will have the sole and exclusive authority to defend or settle any such Claim (provided that you will obtain our consent in connection with any act or forbearance required by Appointible, which consent will not be unreasonably withheld); and (c) Appointible will reasonably cooperate with you in connection with your activities hereunder, at your expense. Appointible reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, you will not settle any Claims for which you have an obligation to indemnify pursuant to this Section admitting liability or fault on behalf Appointible, nor create any obligation on behalf of Appointible without its prior written consent.
GENERAL PRACTICES REGARDING USE AND STORAGE. You acknowledge that Appointible may establish general practices and limits concerning use of the Service but that Appointible has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service.
MODIFICATIONS TO SERVICE. Appointible reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Appointible shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
TERMINATION. You agree that Appointible may, under certain circumstances and without prior notice, immediately terminate your Appointible account, any associated text message address and/or email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (g) your engagement in fraudulent, illegal or improper activities, (h) third party operator requirement, and/or (i) nonpayment of any fees owed by you in connection with the Services. You may terminate your access and use of the Service upon prior written notice to Appointible. In no event shall you be entitled to a refund of any fees paid to Appointible hereunder.
APPOINTIBLE PROPRIETARY RIGHTS. Title, ownership rights and all intellectual property rights in and to the Services shall remain the sole and exclusive property of Appointible. Appointible retains all rights not expressly granted to you in this Agreement. You are prohibited from attempting, or knowingly permitting or encouraging others to attempt, to reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Services except and only to the extent permissible by applicable law despite such prohibition. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the Service, use of the Service, or access to the Service.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
A. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. APPOINTIBLE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B. APPOINTIBLE MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED (VI) THAT THE INTERNET WILL BE AVAILABLE AND WILL PERFORM.
C. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM APPOINTIBLE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY.
A. YOU EXPRESSLY UNDERSTAND AND AGREE THAT APPOINTIBLE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF APPOINTIBLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
B. YOU EXPRESSLY UNDERSTAND AND AGREE THAT Appointible service providers disclaim all liability with regard to Appointible customers, whether direct, indirect, incidental, consequential, punitive or otherwise, arising out of or related to the use of the services provided under this Agreement. You hereby release Appointible service providers from and against all claims, liability and damages arising out of or related to Company Customer’s use of the services provided under this Agreement. Company Customer will be solely responsible for any third party claims, damages and liability arising out of, resulting from or caused by Company Customer’s use of the Services provided under this Agreement including, without limitation, any claims, damages and liability arising out of, resulting from or caused by any Message or Content generated by Company Customer.
EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NOTICE. Appointible may provide you with notices, including those regarding changes to the Agreement, by either text message, e-mail, regular mail, or postings on the Service.
TRADEMARK INFORMATION. The trademarks, service marks, logos and product and service names of Appointible are trademarks of Appointible LLC (the “Appointible Marks”). You agree not to display or use in any manner, the Appointible Marks without Appointible express prior written consent.
Choice of Law and Forum. The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties agree that any action brought by either party to interpret or enforce any provision of this Agreement shall be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or federal court for the district encompassing the Company’s principal place of business.
Waiver and Severability of Terms. The failure of Appointible to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
Non-Transferability. You agree that your Appointible account is non-transferable, and this Agreement may not be assigned by you without Appointible’s prior written consent.
Entire Agreement. This Agreement constitutes the entire agreement between you and Appointible and governs your use of the Service, superseding any prior agreements between you and Appointible with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services from Appointible.
“Network Operator” means any mobile network operator, wireless service provider, wireless carrier, cellular company, Third Party operator or user of a communications network to and from which Appointible can directly transmit and receive Messages.
“Third Party” means any Person not a Party to this Agreement.
Effective April 6, 2021