Terms of Use Agreement for Clients

The Parties, Textual.com, Inc, known hereafter as “Textual”, or the “Textual Platform”, or “Textual Services” and, FlowerFix/FiftyFlowers, known hereafter as “FlowerFix”, or the “Client”, enter this Agreement as of September 1st, 2019.

Ⅰ. Introduction.

This Agreement covers the Clients use of the Textual Platform for Text message marketing and the Shop by Text platform access.

Ⅱ. Outline.

Please review this agreement carefully. By accessing or using one of textual’s services, you accept the terms of this agreement and it becomes a legally binding commitment between you and Textual. If you do not agree with any portion of the agreement or if you do not intend to use the services in accordance with these terms, you may not access or use any Textual platform.

Ⅲ. Definitions.

Textual:  A Text Message Marketing Platform, and a Subscriber Payment Platform.

Client: Any Merchant, Ecommerce Store, Retailer or Brand that uses the Textual Platform.

Subscriber:  Any User who signs up to receive Text Message marketing and product offers from Textual Clients.

Subscriber Account: An Account is created when a Subscriber completes the full registration process including Shipping and Billing information.

Customer: Any Subscriber that purchases a product through Text Message.

Ⅳ. Mobile Messaging – Mobile Terms of Service Announcement for FlowerFix/FiftyFlowers.

By using the Textual Platform, you agree that:

  • Mobile Phones uploaded to the Textual Platform have opted in via your own forms or previous marketing efforts.
  • You are in compliance with CTIA and TCPA Guidelines for Text Message Marketing

For your convenience, find included below a summary of text message marketing guidelines.

Written Consent – It is required to have a Checkbox at the point of the Call to Action where a Subscriber enters their Mobile Phone number.  It must announce the program details, including frequency and data rates disclosure. Textual includes the Opt In checkbox automatically in our embedded HTML forms and in Textual controlled website pop up modals.

Opt In Confirmation Message – For recurring programs, Subscribers should receive an Opt In Confirmation.  Textual automatically sends out an Opt In confirmation. Client is responsible for informing Textual on the frequency of text messages that will be sent to Subscribers.

Frequency – All Subscribers should receive notification about the frequency of messages they should expect to receive.

Disclosures – Standard disclosure for Text message marketing is that Msg&Data Rates May Apply.  Subscribers must receive this.

Honoring Opt Out – Subscribers should receive clear Opt Out instructions in the confirmation notifications.  STOP, END, CANCEL, UNSUBSCRIBE, and QUIT are interpreted that the Subscribers wants to Opt Out.  Client may send one more confirmation text confirming the Opt Out.

All Clients using the Textual Platform have agreed to follow Text Message marketing guidelines.  These guidelines can be found here: https://www.twilio.com/learn/call-and-text-marketing/guide-to-us-sms-compliance

Ⅴ. Description of Services:

Textual provides a Text Message Marketing Platform as a service, and a Payment Platform as a service, described in this Agreement.  The Textual Platform enables Clients to send Text Messages to Subscribers who have opted into a Marketing Program. The Textual platform also maintains a payment profile for all the Client’s Subscribers, and collectively as a whole these Subscriber Accounts are maintained for the Textual Platform.  Client’s Subscribers are never shared with any other Client across the platform without the former consent of the sharing Client. Textual maintains these Subscriber Accounts on behalf of the Clients, whereas the Payment Profiles for the Subscribers are maintained for the benefit of all Clients, and for the Textual / Subscriber relationship.  The Textual platform allows Clients to send Text Message Marketing Campaigns that contain Product offers which can be purchased immediately through Text Message by the Subscribers when they reply Yes.

The Textual Platform has certain controls to help Clients be in compliance with Text Message Marketing guidelines; however the Clients are responsible for being compliant, i.e. Clients can not abuse the platform.

Textual creates the charges to Subscriber’s credit cards using the Stripe Connect platform.  These charges are created on behalf of the Clients and their own Stripe Account. Any claims, refunds and disputes are not managed by Textual but rather these matters are between the Textual Client (any merchant, ecommerce store or retailer) and their Customer.

Ⅵ. Use of the Platform

  1. Textual Services, Textual provides:
    1. Text Message Marketing Services
      1. The Textual Marketing Service allows Clients to send text message marketing campaigns.  While the Client is ultimately responsible for maintaining SMS Compliance Guidelines, the Textual Platform does provide several system wide controls to assist Clients with maintaining compliance.
        1. For Clients who use a Textual hosted form (either embedded HTML or Textual hosted page) to generate Subscribers, Textual provides the following Text Message Marketing compliance tools.
          1. Opt In Checkbox
          2. Opt In Confirmation Message
          4. START
          5. HELP
        2. For Clients who bring their own Contact list and upload them to the Textual Platform.
      2. Recall Marketing Campaigns and Automated Marketing Campaigns
      3. Opt In Website Modals and Embedded HTML Forms
      4. Subscriber Account Registration
      5. Subscriber Analytics, Profiles and Website Behavior
      6. Text Message Agent Chat – Textual may provide an agent Chat console allowing Subscribers and Clients to chat via SMS.
    2. Text Message Payment Platform Services
      1. Textual provides and maintains Subscriber Accounts which includes Shipping and Billing information.
      2. Textual provides connectivity to the Stripe Connect platform.
      3. Textual provides Order management including Cancellations, Refunds and Partial Refunds.
    3. Textual Client Dashboards
      1. Order Management
      2. Subscriber Management
      3. Product Management
      4. Campaign Management
      5. Dashboards
  2. Client Responsibilities, Client will:
    • Business Representation: To register a Textual Client Account, you must provide us with your business or trade name, physical address, email, phone number, tax identification number, URL, and the nature of your business or activities. You affirm to Textual that you or your representative is authorized to provide the information described in this Section on your behalf and to bind you to this Agreement and you or your representative is an executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business.  You or your representative also agree to keep the business information current with Textual.
    • Maintain Compliance with TCPA and CTIA Text Message Marketing guidelines.
    • Prohibited Use of our Services: You represent that your Text Message Marketing program complies with all applicable laws and guidelines.  You may not sell fraudulent products, goods or services. The Textual Platform is not to be used for illicit substances, including pornography, drugs, firearms, or any other dangerous items.  You warrant and agree that all of your activities on the Textual Platform are in accordance with local, state and federal laws that govern your business. The Textual Platform can not be used to send SPAM or mass text message marketing to randomly generated mobile phone numbers.  You warrant that all Subscribers or Contacts have opted into your program with a clear Opt In. You warrant and agree to honor opt out request.
    • Your Products and Your Customers: You may only use the Services for legitimate Transactions with your Customers. You own your Customers, and you are responsible for your relationship with them. Textual is not responsible for the products or services you market or sell, or products that your Customers purchase using the Textual Platform.
    • Claims, Erroneous Orders, Refunds: Textual provides the Platform to you but we can not know if any purchase, sale, donation, order, or other transaction is accurate or complete, or typical for your business. You are responsible for knowing whether a Transaction initiated by your Customer is erroneous or suspicious. You are solely responsible for any losses you incur due to erroneous or fraudulent Transactions in connection with your use of the Services.  You must handle any dispute related to a Customer Complaint. You own and manage your own Customers. Customer Claims as a result of a complaint about a product they purchase from you through the Textual Platform are soley your responsibility to manage. If any fraudulent orders using stolen credit cards incurs a loss for your company, Textual is not liable for this loss. It is solely your loss. Stolen Credit Cards and/or fraudulent orders should be managed directly with the credit card company.

VII. Fees and Payments

The Fee Services are as follows:

  • Platform Access
  • Text Message Charges.  Every plan includes some text messages free of charge.
  • Transaction Fees

Platform Access Fees – FlowerFix is not being charged a Platform Access Fee.

Text Message Charges – Textual includes text messages with every Plan, except for the Pay As You Go plan.  If your text message volume exceeds the the level provided by your Plan, Textual charges overage rates of $0.025 per text.  This is a blended rate for MMS and SMS. FlowerFix current plan allows for 3,000 text messages per month, after which Textual will charge FlowerFix for any Txt Msg sent or received that goes over 3,000 in a one month period.

Transaction Fees – Textual is charging FlowerFix as Transaction Fee of 1.25% (known as Application Fee with Stripe, see here – https://Textual.com/docs/connect/direct-charges#collecting-fees),

It is important for Clients to understand that they own their own Standard Account on the Stripe Connect Platform, and Textual has no control over the credit card processing fee charged by Stripe.  The standard rates for Stripe are published here – https://Textual.com/pricing.  They are 2.9% plus $.30 per successful transaction.

VIII. Subscription Term and Termination

This Agreement is effective upon the date you first access or use the Platform and continues until terminated by you or Textual.

Every Plan and Subscription Fee is considered month to month with a 60 day cancellation policy.  Textual bills every Clients credit card at the beginning of the month for the following 30 day period. In the case of invoices, they will be sent to you on the first of every month for the following 30 day period.  Invoices are Net 15 days. Please contact support@textual.com to request Cancellation.  We will provide a downloadable file of your Contacts.

We may suspend your Textual Account or terminate this Agreement, if we determine at our sole discretion that you are ineligible for the Platform Services because of significant fraud or credit risk, or any other risks associated with your Textual Account; you use the Platform Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; we are otherwise entitled to do so under this Agreement.

Ⅸ. Confidentiality and Intellectual Property

You agree that by using any Textual Service, or by accessing the Platform, and/or any of the Services to keep all Intellectual Property private and confidential.  You agree to not copy, share or distribute the specific feature set contained by the Textual Platform. You also agree to not copy and use any marketing, designs or User Experiences unique to the Textual Platform

In turn, we agree to mutual confidentiality about your business, marketing and products.  Your use of the Textual Platform will held confidential and private.

X. No Warranties – Marketing Performance and SMS Deliverability

SMS Deliverability is not guaranteed.  While Textual uses the best cloud communication platform available to deliver SMS and MMS messages, the final delivery to the Subscriber is dependent on many factors including cellular service, cellular carrier, carrier blocking, quantity of SMS being delivered, Subscriber errors and/or Phone problems.

However, Textual does guarantee that all SMS and MMS communications will be processed by the Textual Platform and sent to the Twilio cloud communication servers for an attempt at final delivery to the Subscriber through the Subscribers cellular network.

We provide the Textual Platform “as is” and without any express, implied, or statutory warranties of marketing performance, features, product sales, readiness for a particular purpose, noninfringement, or any other type of warranty or guarantee. No data, documentation or any other information provided by Textual or obtained by you from or through the services – whether from Textual or another Textual entity, and whether oral or written – creates or implies any warranty from a Textual entity to you on the performance of the Platform, Features or your own Product Campaigns that run on the Textual Platform.

Ⅺ. Service Level Agreement – Uptime of Platform

Textual will use commercially reasonable efforts to make the Platform Services available for each Client with a Monthly Uptime Percentage of at least 99%.  In the event that any of the Platform Services do not meet this SLA, Textual will make every reasonable corrective action to restore services in the shortest amount of time possible.

In the event that Stripe Connect Payment services are experiencing considerable down time, Textual will make commercial reasonable efforts to report the issue and resolve the issue with Stripe directly.

In the event that Twilio’s SMS services are experiencing considerable down time, Textual will make commercial reasonable efforts to report the issue and resolve the issue with Twilio directly.

SMS Send rates are limited to one text message per second.

XII. Force Majeure

Neither party will be liable for any delays in processing or other nonperformance caused by internet outages, telecommunications problems, utility failures, or equipment failures; or any labor disputes, riots, war, or terrorist attacks; or nonperformance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. Nothing in this section will affect or excuse your liabilities or your obligation to pay Fees, Fines, Disputes, Refunds, Claims, or make Returns to your customers under this Agreement.

XIII. Representations and Warranties

By accepting the terms of this Agreement, you represent and agree that: you are eligible to register and use the Platform and have the authority to execute and perform the obligations required by this Agreement; any information you provide us about your business, products, or services is accurate and complete; any Charges represent a Transaction for permitted products, services, or donations, and any related information accurately describes the Transaction; you will fulfill all of your obligations to Subscribers and Customers and will resolve all Disputes with them; you will comply with all Laws applicable to your business and use of the Services; your employees, contractors and agents will at all times act consistently with the terms of this Agreement; you will not use Payment Platform for personal purposes, or (except in the normal course of business) inside company Transactions; and you will not use the Platform, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.

XIV. Agreement to Arbitrate

In the event that there is a dispute, claim or controversy coming out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, will be determined by arbitration in Boise, Idaho before a single arbitrator. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules.

XV. Entire Agreement and Survival of Agreement

You agree that this document represents our entire agreement, and that it will survive any change in control, management or executive departure or strategy at your business.

Marina Strongs

Marketing Director / FlowerFix

“We like the direct and immediate results using Textual. We've generated Shop by Text subscribers quickly, and the conversion rate is unbeatable. The majority of orders come in right away with just a few tricklers!”

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