Terms of Service

 

Effective: July 1, 2017

These Terms of Service (“Agreement”) describe the terms and conditions under which you (“Advertiser,” “you,” or “your”) may access and use Textual’s Services.

BY CLICKING THE “I ACCEPT” BUTTON, OR SIGNING THIS DOCUMENT, OR USING TEXTUAL’S SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A THIRD PARTY(IES) (FOR INSTANCE, AS AN ADVERTISING AGENCY ON BEHALF OF AN ADVERTISER OR AS A RESELLER), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND ANY SUCH THIRD PARTY(IES), AND THE TERMS “Advertiser,” “YOU,” OR “YOUR” WILL ALSO REFER TO SUCH THIRD PARTY(IES).

TEXTUAL MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE 30 DAYS AFTER NOTIFICATION WILL CONSTITUTE ACCEPTANCE.

IMPORTANT: BY AGREEING TO THIS AGREEMENT, YOU AGREE TO RESOLVE DISPUTES WITH TEXTUAL THROUGH BINDING ARBITRATION .

1. DEFINITIONS
  • “Account” means an Advertiser or Publisher account for access to the Platform, or an account that is operational on the platform.
  • “SMS Subscriber” means any cell phone number shared with you.
  • “Textual API” means Textual’s application programming interfaces and the accompanying Documentation, code, and related materials.
  • “Textual Materials” means the Platform, Textual API, Technology, Documentation, visual interfaces, graphics, design, compilation, computer code, and all other elements of the Service, including related modifications and derivative works.
  • “Applicable Law” means any applicable federal, state or foreign laws or regulations or any industry self-regulatory rules or guidelines
  • “Campaign Data” means performance and measurement data made available through the Platform that relates to Advertiser’s SMS Subscriber campaigns launched through the Services.
  • “Advertiser Content” means all logos, trademarks, images, graphics, text, and other materials included by Advertiser in the Ads provided to Textual for use with the Services.
  • “Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology that are provided by Textual to Advertiser.
  • “Feedback” means information regarding the features and performance of the Services and Materials, including (without limitation) reports of failures, errors, or other malfunctions that Advertiser encounters through its use of the Services.
  • “Insertion Order” means a document executed by both parties that specifies the type of Services to be provided to Advertiser by Textual for campaigns, the duration of the Services, a budget, fees, and other details.
  • “Publisher Agreement” means a document executed by both parties that specifies the Revenue Share percentage, and length of the contract.
  • “Network” means a group of Publishers, ad networks, ad exchanges, and Advertisers.
  • “Platform” means the Textual website, dashboard, and tools that Advertiser has access to through the Services to create, launch, monitor, pause, and stop an SMS Subscriber campaign.
  • “Services” means any Textual offering that Advertiser agrees to receive, subject to this Agreement and mutually agreed upon addendums, and, if applicable, in an Insertion Order.
  • “Service Data” means data (and each component of such data) that is collected by Textual from end users using the SMS Share tool (or other script or code) installed on Publisher’s website.
  • “Technology” means the Textual proprietary technology that allows Textual to provide the Services, including the Textual pixel (or other script or code), the Textual API, the SDK, or other mutually agreed upon means.
2. THE TEXTUAL SERVICE

2.1 The Services. Advertiser may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in an Insertion Order.

2.2 Textual License Grant to Advertisers. Subject to Advertiser’s payment and the terms set forth in this Agreement, Textual grants the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense to Advertiser during the Term: (i) for applicable Services, to access and use the Platform and Documentation solely for Advertiser’s internal business purposes, and solely on Advertiser’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the pixel (or other script or code) into Advertiser’s website for web-related Services; (iii) for mobile related Services, to integrate the SDK (in object code form) into Advertiser’s mobile and tablet applications for mobile-related Services, or (iv) to integrate through other mutually agreed upon means (e.g., integration using the Textual API).

2.3 Textual License Grant to Publishers. Subject to Publishers’s payment and the terms set forth in this Agreement, Textual grants the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense to Publisher during the Term: (i) for applicable Services, to access and use the Platform and Documentation solely for Publisher’s internal business purposes, and solely on Publisher’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the pixel (or other script or code) into Publisher’s website for web-related Services; (iii) for mobile related Services, to integrate the SDK (in object code form) into Publisher’s mobile and tablet applications for mobile-related Services, or (iv) to integrate through other mutually agreed upon means (e.g., integration using the Textual API).

 

2.4 Advertiser License Grant. During the Term, Advertiser grants Textual a worldwide, royalty-free, non-transferable (except as necessary for Textual to provide the Services) license to use, distribute, reproduce, adapt (with respect to sizing or as specifically requested by Advertiser), publicly perform, and publicly display, the Advertiser Content in Ads on the Publisher Network or otherwise in connection with the Services and in promotional materials related to the Services.

2.5 Requirements. Advertiser will comply with all requirements for use of the Services communicated by Textual to Advertiser via Documentation, and acknowledges that absent such compliance, Textual may be unable to provide the Services to Advertiser. Depending on the Services Advertiser chooses to receive, technical requirements may include: (i) providing API documentation to allow Textual to send SMS Subscribers directly to the Advertiser’s SMS marketing platform; (ii) providing Textual with relevant SMS Subscription offers (iii) supplying appropriate Advertiser Content necessary for Textual to provide the Service

2.6 Modifications. Textual will host the Services and may update the Services from time to time in accordance with this Agreement. If Textual provides Services updates to Advertiser that require action on Advertiser’s part, Advertiser will integrate the updates within 30 days. Textual may make changes to the Services (including discontinuation of all or part of the Services) at any time. Textual will provide notice to Advertiser of material changes in accordance with this Agreement. If Advertiser does not wish to continue to use the modified Services, Advertiser’s sole remedy is to terminate the Agreement by providing written notice to Textual.

2.7 Display of SMS Subscriber offers. Advertiser can request to work with Textual (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available to Textual. Advertiser acknowledges that Textual cannot control where and how often SMS Subscriber offers will be displayed within the Publisher Network. For instance, SMS Subscriber offers may be displayed next to ads of Advertiser’s competitors, or on websites or applications that are undesirable to Advertiser. Textual will use commercially reasonable efforts not to display SMS Subscriber offers on websites or applications that it determines to be pornographic, defamatory, obscene, or illegal in nature. If Advertiser notifies Textual in writing that SMS Subscriber offers are being displayed in this manner, Textual will use commercially reasonable efforts to prevent SMS Subscriber offers from continuing to display in this manner. Advertiser Content must comply with Documentation requirements or Textual may be unable to provide the Services with respect to such Advertiser Content.

2.8 Third Party Terms. Certain parts of the Services require the creation of a user account with third parties to provide their products or services on the Textual Platform. Advertiser is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. Advertiser agrees that Textual may accept certain third party terms and conditions as agent on Advertiser’s behalf where necessary for Textual to perform Services requested by Advertiser, for example, terms related to running campaigns on Facebook Website Custom Audiences. Links to or copies of any such terms will be provided upon request.

2.9 Promotions. Textual may offer promotions, subject to any terms set out in the applicable Documentation. After the promotion, the campaign will automatically continue as a paid campaign, unless Advertiser stops the campaign as described in the applicable Documentation. Advertiser is responsible for all costs that occur beyond the parameters of the promotion described in the applicable Documentation.

3. AGENCY ADVERTISERS

3.1 Authority, Liability, and Direct Relationship. Agencies and Authorized Resellers entering into Services on behalf of their Advertisers represent that they have the authority to act on behalf of such Advertisers with respect to all obligations and representations set forth in this Agreement. Agency and Authorized Reseller accepts responsibility for the actions of its Advertiser Accounts and liability for all expenses incurred through the provision of Services to its Advertisers, and assumes responsibility for ensuring compliance with and breach of this Agreement by its Advertisers. Except as otherwise set forth hereunder, Agencies and Authorized Resellers will ensure the performance of their respective customer’s obligations under this Agreement. Agency and Authorized Reseller Advertisers may request at any time that their Account be migrated to another agency or to a direct Advertiser Account with Textual and nothing in this Agreement will prevent Textual and a customer from entering into a direct relationship. Textual reserves the right to reasonably object to any Advertisers at Textual’s sole discretion.

3.2 Support and Marketing. Textual will provide commercially reasonable support during Textual’s normal business hours, but Agency and Authorized Reseller acknowledge that they will be solely responsible for providing support to their Advertisers in connection with such Advertisers’ use of the Services, and are solely responsible for marketing efforts related to the “go to market” lifecycle for Services; provided that any marketing materials prepared and/or used by Agency or Authorized Reseller are in compliance with Textual marketing requirements and other Documentation. Textual reserves the right to request changes or removal of any Agency or Authorized Reseller materials used to market the Services.

4. ACCOUNT AND CAMPAIGN SETUP

4.1 Account Set Up. Setting up an Account with Textual is free of charge. Advertiser will choose login credentials, including a password, for its Account and is responsible for all activities that occur through its Account or with its credentials. Advertiser will use reasonable measures to secure its Account credentials and will promptly notify Textual of any breach of security, misuse, or unauthorized use of its Account or credentials.

4.2 Campaign Set Up and Management. Campaigns will be managed by Textual according to Advertiser’s Insertion Order.

4.3 Campaign Measurement and Tracking. Textual will store the following data for Advertisers SMS Subscriber campaigns: SMS Shares with Advertiser’s SMS offer, Opt Ins, Time of Opt In, Telephone number of Sender.

4.4 Publisher Set up and management.  Textual will set up a unique tracking ID for each Publisher.  The SMS Share tool will be styled according to the Publisher’s site, or the Publisher can choose to style the SMS Share icon in their own fashion.  Textual will provide a SDK with the Textual Services embedded.  

4.5 Publisher SMS Share Tool Measurement and Tracking. Textual will store the following data for Publisher’s SMS Share Tool: SMS Share tool Opens, SMS Shares with Opt Ins, Time of Opt In, URL of Share, Revenue share of SMS Subscriber lead for Publisher.

5. PAYMENT TERMS

5.1 Auto-Postpay Accounts. For recurring payment accounts, you agree to keep valid payment method information (for example, credit card or PayPal account information) on file in your Account at all times. You authorize Textual to charge recurring amounts due weekly using the valid payment details provided by You. Textual reserves the right to discontinue the recurring payment services at any time for any reason upon notice. Claims relating to Account charges must be raised by you within 30 days of receipt or will be barred.

5.2 Insertion Order Advertiser Accounts. Textual may, in its sole discretion, allow Advertiser to submit an Insertion Order requesting Services. Textual reserves the right to request a prepayment from Advertiser at any time. Textual will send Advertiser a monthly invoice via email reflecting the amount owed by Advertiser to Textual. Advertiser will pay the amount set out in each invoice, without set-off, within 30 days of its receipt of such invoice. Textual may charge interest on overdue amounts, from the due date up to the date of actual payment, whether before or after any judgment, at a monthly rate of 1.5%, or the highest rate permitted by Applicable Law, whichever is less. Advertiser will reimburse Textual for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorney’s fees. Claims relating to invoices or Account charges must be raised by Advertiser within 30 days of receipt or will be barred.

5.3 Publisher’s Payments. Textual will pay Publishers monthly based on accrued Revenue Share of SMS Subscriber campaigns that run on the Publisher’s site, web property or mobile property.  Textual will not pay Publisher’s revenue share if the moneys have not been received from Advertisers.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Ownership. Textual Materials are the sole and exclusive property of Textual or its third-party licensors as applicable, and are protected by Applicable Law. Advertiser’s rights to the Textual Materials are limited to those rights expressly granted in this Agreement and do not include any other licenses. Advertiser Content is the sole and exclusive property of Advertiser or its third-party licensors as applicable and is protected by Applicable Law. Textual’s rights to the Advertiser Content is limited to those rights expressly granted in this Agreement and do not include any other licenses.

6.2 Advertiser Restrictions. Advertiser will not (i) modify the Textual Materials or any related proprietary notices; (ii) reverse engineer, decompile, disassemble or interfere with any Textual Materials (except where and to the extent such prohibition is not permitted by law); (iii) sublicense, rent, sell, or lease access to the Textual Materials, or use the Textual Materials to create any other product, service or dataset; (iv) except with respect to Campaign Data, log, capture, or otherwise create any record of any data transmitted to or from the Textual Materials; (v) deliver any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Textual Materials; (vi) use the Platform for any purpose other than using the Services for its intended purpose, which does not include creating or supplementing user profiles with targetable interests, user movement profiles, site-specific retargeting, and product-interest information outside of the Services; (vii) make or publish any representations or warranties on behalf of Textual concerning the Services or Textual Materials without Textual’s prior written approval. When reproducing Textual Materials, Advertiser will include proprietary rights notices contained on the Textual Materials.

6.3 Publisher Restrictions.  Publisher will not (i) modify the Textual Materials, except to make the style of the SMS Share tool match their web properties; (ii) reverse engineer, decompile, disassemble or interfere with any Textual Materials (except where and to the extent such prohibition is not permitted by law); (iii) sublicense, rent, sell, or lease access to the Textual Materials, or use the Textual Materials to create any other product, service or dataset; (iv) except with respect to Campaign Data, log, capture, or otherwise create any record of any data transmitted to or from the Textual Materials; (v) deliver any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Textual Materials; (vi) use the Platform for any purpose other than using the Services for its intended purpose, which does not include creating or supplementing user profiles with targetable interests, user movement profiles, site-specific retargeting, and product-interest information outside of the Services; (vii) make or publish any representations or warranties on behalf of Textual concerning the Services or Textual Materials without Textual’s prior written approval. When reproducing Textual Materials, Advertiser will include proprietary rights notices contained on the Textual Materials.

6.4 Feedback. Feedback provided to Textual may be used to develop and improve the Service, Textual Materials and new products and services. To the maximum extent permitted by law, Advertiser grants Textual a nonexclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit Feedback without restriction.

7. DATA RIGHTS, RESTRICTIONS AND PRIVACY

7.1 Service Data and Campaign Data. Textual is the sole owner of the Service Data and the Campaign Data and may use either for any purpose allowed by Applicable Law. Textual grants Advertiser a nonexclusive, perpetual, irrevocable, royalty-free, fully paid, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit the Campaign Data in any manner allowed under Applicable Law.

7.2 Advertiser Data Privacy Responsibilities. Advertiser will comply with all Applicable Laws that relate to individual third party privacy and publicity rights, and will be solely responsible for the operation of all websites and applications owned or operated by Advertiser when Advertiser uses the Services. Advertiser will include clear and conspicuous notice to SMS Subscribers related to Opt out rights and procedures.  Advertisers must follow the CTIA guidelines published in this document. http://bit.ly/2tWL5yk

7.4 TEXTUAL WILL HAVE NO LIABILITY IN CONNECTION WITH, AND ADVERTISER SHALL INDEMNIFY, DEFEND AND HOLD TEXTUAL HARMLESS WITH RESPECT TO: (A) ADVERTISER’S FAILURE TO PROVIDE NOTICES REQUIRED BY APPLICABLE LAW TO ITS END USERS REGARDING ITS PRIVACY PRACTICES, (B) FOR THE COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT, OR (C) DATA SECURITY OR DATA USE IF TEXTUAL ACTS AT CUSTOMER’S EXPLICIT DIRECTION.

8. WARRANTIES

8.1 By Advertiser. Advertiser represents and warrants to Textual that: (i) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (ii) the Advertiser Content and the Advertiser websites, mobile or tablet applications do not include materials that are obscene, defamatory or contrary to any Applicable Law; (iii) the Advertiser Content does not infringe or misappropriate the rights of any third party; and (iv) the collection, transfer, use and disclosure of Service Data in accordance with this Agreement will not violate the rights of any third party (including any customer of Advertiser) or any statements in its own posted Privacy Notice or similar privacy statement.

8.2 By Publisher. Publisher represents and warrants to Textual that: (i) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (ii) the Publisher Content and the Publisher websites, mobile or tablet applications do not include materials that are obscene, defamatory or contrary to any Applicable Law; (iii) the Publisher Content does not infringe or misappropriate the rights of any third party; and (iv) the collection, transfer, use and disclosure of Service Data in accordance with this Agreement will not violate the rights of any third party (including any customer of Advertiser) or any statements in its own posted Privacy Notice or similar privacy statement.

8.2 By Textual. Textual represents and warrants that: (i) it has the right to enter this Agreement, to grant all rights granted, and perform its obligations; and (ii) the Technology will perform substantially in accordance with the Documentation. For any breach of this Section 8.3(ii), Textual’s sole liability and Advertiser’s sole remedy will be re-performance of the Services by Textual or Advertiser’s termination rights under Section 11.

8.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, (I) TEXTUAL EXPRESSLY DISCLAIMS AND MAKES NO ADDITIONAL REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND (II) THE SERVICES AND MATERIALS MADE AVAILABLE BY TEXTUAL UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY PROMISE WHATSOEVER. EXCEPT WHERE AND TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY LAW: (A) TEXTUAL EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, (B) Textual DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED, AND (C) TEXTUAL MAKES NO PROMISE REGARDING THE RESULTS ADVERTISER WILL OBTAIN THROUGH USE OF THE SERVICES.

9. INDEMNIFICATION

9.1 Advertiser Indemnification. Advertiser will defend, indemnify, and hold harmless Textual and its officers, directors, employees and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding (i) Advertiser’s breach of this Agreement; and (ii) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Advertiser or the Advertiser Content.

9.2 Publisher Indemnification. Publisher will defend, indemnify, and hold harmless Textual and its officers, directors, employees and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding (i) Publisher’s breach of this Agreement; and (ii) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Publisher or the Publisher Content.

9.3 Textual Indemnification of Advertisers and Publishers. Textual will defend, indemnify and hold harmless Advertiser and Publishers and its officers, directors, employees, and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding any violation, infringement or misappropriation of any copyright, trade secret, U.S. patent or trademark by the Textual Materials, but excluding any software incorporated into our software under an open source license. In no event, will Textual have any liability under this Section 9.2 arising from (a) unauthorized modifications made to the Technology; (b) the Advertiser Content; or (c) the combination of the Textual Materials with any third-party software, process, or service not provided by Textual. Textual’s indemnification obligations in this Section 9.2 will be Textual’s sole liability and Advertiser’s sole remedy for any claims that the Services or Materials violate, infringe or misappropriate any intellectual property right.

9.4 Indemnification Process. The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the indemnified party to admit liability requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed, and (ii) the indemnified party may join in the defense with its own counsel at its own expense.

10. LIMITATIONS ON LIABILITY.

10.1 Disclaimer of Indirect Damages. TEXTUAL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO ADVERTISER OR PUBLISHER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF TEXTUAL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL TEXTUAL’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY ADVERTISER TO TEXTUAL UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

10.3 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO ADVERTISER, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. TERM AND TERMINATION

11.1 Term and Termination. Unless otherwise terminated, this Agreement will remain in full force and effect while you use the Services and will terminate upon written notice of cancellation of Advertiser’s Account by Textual or Advertiser (“Term”), or upon written notice of cancellation of Publisher Agreement, such termination to take effect 48 hours from receipt of such termination notice (or at such other designated time, at least 48 hours in advance).

11.2 Post-Termination Obligations to Advertisers. Upon termination of the Insertion Order (i) Textual will cease providing the Services and permitting access to the Platform to Advertiser; (ii) Advertiser will within thirty (30) days’ pay to Textual any fees that have accrued prior to the effective date of termination; and (iii) Advertiser will remove the Textual pixel from its website and Textual will not be liable for any damages (or any benefit to Textual) resulting from Advertiser’s failure to remove the pixel. Provided Advertiser is not in breach of the Agreement, subject to section 5, Textual may refund Advertiser for any amounts prepaid for Services that were not performed prior to termination.

11.3 Post-Termination Obligations to Publishers. Upon termination of the Publisher Agreement (i) Textual will cease providing the Services and permitting access to the Platform to Publisher; (ii) Publisher will receive within thirty (30) days’ any payment owed by Textual that have accrued prior to the effective date of termination; and (iii) Publisher will remove the Textual SMS Share tool from its website and Textual will not be liable for any damages (or any benefit to Textual) resulting from

11.4 Insolvency. Textual may immediately terminate this Agreement and move Advertiser to prepay pursuant to Section 5 in the event that (a) Advertiser (i) fails to satisfy any enforceable, final and material judgment against it, (ii) fails to pay its fees as they become due or (iii) enters into or is the subject of an insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Advertiser’s debts or (b) a court appoints, or Advertiser makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code) for Advertiser or all or substantially all of its assets. Advertiser acknowledges that Textual may set off any liability owed to Advertiser against any liability for which Textual determines Advertiser is liable to Textual related to Services under this Agreement.

12. TRADEMARKS

Textual will seek prior authorization from Advertiser for any press release naming Advertiser. Each party retains all right, title and interest to its own logos and trademarks. The Textual logos and names are trademarks of Textual, Inc. All other trademarks and product or company names mentioned in the Services or Textual Materials are the property of their respective owners and may not be used without the prior written permission of the owner. Reference to any products or services by name or otherwise does not imply endorsement by Textual. Notwithstanding the foregoing, Textual may use Advertiser’s logos and name to indicate in promotional materials that Advertiser is a Advertiser of the Textual Services. All goodwill derived from the use of any trademarks will inure to the benefit of the respective trademark owner.

13. CONFIDENTIALITY

Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that (i) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (a) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 13; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 13 will survive termination of this Agreement until the expiration of 3 years from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.

14. ASSIGNMENT

You may assign this Agreement upon ten (10) days written notice to Textual about a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Any other attempt to transfer or assign is void. Textual retains the right to assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

15. RESOLVING DISPUTES – FORUM, ARBITRATION, CLASS ACTION WAIVER, GOVERNING LAW

PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.

15.1 Please contact Textual first! Textual wants to address your concerns without resorting to formal legal proceedings. Before filing a claim, you agree to try to resolve the dispute informally by contacting Textual first through admin@textual.com.

U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:

15.2 ARBITRATION

Both Parties Agree to Arbitrate. You and Textual agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

Arbitration Procedures. The American Arbitration Association (AAA) (https://www.adr.org) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, or any other location we agree to.

Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. Textual will pay all arbitration fees for all customers on a pre-pay plan. Textual will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

15.3 CLASS ACTION WAIVER. Both parties agree to resolve any disputes, claims or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), the Textual Materials, or any services provided by Textual will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.

15.4 Controlling Law. This Agreement is governed by the law of the state of Idaho except for its conflicts of laws principles, unless otherwise required by a mandatory law of any other jurisdiction.

16. MISCELLANEOUS

16.1 Amendments. Textual reserves the right to revise this Agreement, and Advertiser’s rights and obligations are at all times subject to the Agreement then posted at Textual.com. Advertiser’s continued use of the Service constitutes acceptance. We will also endeavor to notify and give Advertiser an opportunity to review and accept the revisions to the Agreement, which acceptance may be manifested in electronic form (such as through a click-through agreement). However, subject to applicable law, the inability to contact Advertisers through a valid email address regarding the revised Agreement and obtain express acceptance in no way limits the revised Agreement’s effectiveness and application.

16.2 Independent Parties. Textual is an independent contractor and not an agent of Advertiser in the performance of this Agreement. This Agreement is not to be interpreted as evidence of an association, joint venture, partnership, or franchise between the parties. Nothing in this Agreement will be deemed to confer any third-party rights or benefits; there are no third-party beneficiaries (except the indemnitees referenced in Section 9).

16.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding use of the Services and will supersede all prior agreements between the parties whether, written or oral. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.

16.4 Force Majeure. Textual will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond Textual’s reasonable control.

16.5 Use of Third Parties. Subject to Section 13 Textual may use third parties to perform its duties under this Agreement, including to serve advertisements on its behalf.

16.6 Severability. If any portion of this Agreement is held invalid or unenforceable, such invalidity or enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect, and the invalid or unenforceable portion will be given effect to the greatest extent possible.

16.7 Waiver. The failure of a party to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

16.8 Third-Party Website Disclaimer. Any links to third-party websites from Textual Services does not imply endorsement by Textual of any products, services or information presented therein, nor do we guarantee the accuracy of the information contained on them. In addition, since we have no control over the terms of use or privacy practices of third-party websites, you should read and understand those policies carefully.

16.9 Notice. All notices to Textual must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), electronic mail, or as otherwise specified by Textual. Legal notices to Textual must be sent to admin@Textual.com with a copy to Textual, Inc., Attn: Legal, 179 N Al Fresco Pl, Boise, ID 83712.   

Textual, Inc.

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