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Terms of Service

Terms of service

Your use of Textellent service is based on the following terms and agreement. This Services Agreement (“Agreement”) is entered into between Textellent, Inc. (“Provider” or “Textellent”) and the party identified as the Company or the individual in the information provided during the account signup step (“Client” or “You” or “Your”). The Agreement shall be effective on the date it has been accepted by You when you create/created an online account through the online interface of the Service (the “Effective Date”).

1. DEFINITIONS

“Client Data” means all electronic data or information submitted by Client to or through Textellent, including, without limitation, all data submitted to
or through the Texting Platform Services.

“Texting Platform Services” means Textellent’s web-based text-messaging platform, to which Client subscribes under this Agreement.

2. TEXTING PLATFORM SERVICES

  1. Provision of Texting Platform Services. Textellent provides its Texting Platform Services, which provides Client with the ability to transmit text
    messages customized by Client to recipients of Client’s choosing at times directed by Client.
  2. No Reliance on Future Functionality or Features.Client agrees that Client’s enrollment to use the Texting Platform Services is neither contingent
    on the delivery of any future functionality or features nor dependent on any oral or written public comments or other representations made by Textellent
    regarding future functionality or features.

3. FEES AND PAYMENT FOR SUBSCRIPTION SERVICES

  1. Client agrees to pay a one-time, non-cancellable, non-refundable Activation Fee as well as periodic Subscription Fee and other charges as described on the Pricing page.Except as otherwise specified herein, (1) all Subscription Fees are quoted and payable in United States dollars; (b) Subscription Fees are based on
    services purchased and not actual usage; and (c) payment obligations are non-cancellable and Subscription Fees paid are non-refundable. All subscriptions
    shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal in
    writing at least 15 days before the end of the relevant subscription term.
  2. Invoicing and Payment.Client represents that it has provided or will provide at the end of a free trial period accurate credit card information for payment of Subscription Fees and that it has
    full authorization to submit such information to Textellent for the payments described in this Agreement. Service fee is subject to change automatically as
    return count or office count increases or if return count is found to be higher than initially quoted by the
    client. If Client is on a monthly plan, the Subscription Fee is due and charged on or shortly after the Effective Date and then on the 1st of each month in
    advance. If Client is on a yearly plan, the Subscription Fee is due and charged on or shortly after the Effective Date and then every year on the
    anniversary date of the Effective Date of this Agreement. Client grants Textellent consent to charge Client’s credit card for all Subscription Fees, and for
    any additional amounts (including any taxes and late fees, as applicable) owed to Textellent. Client is responsible for maintaining complete and accurate
    billing and contact information with Textellent.
  3. Overdue Charges. If Client’s credit card changes or expires, or is revoked, disputed or not valid for any other reason, Textellent may, at its
    election, immediately suspend, terminate, or both (without liability) Client’s access to the Texting Platform Services. If any Subscription Fees are not
    received by Textellent within five business days of the date on which the Subscription Feesare due, then at Textellent’s discretion, Textellent may impose
    a late fee of $25 to cover the expenses incurred by Textellent for overdue accounts.
  4. Taxes. Unless otherwise stated, Textellent’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature,
    including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction
    (collectively, “Taxes”). Client is responsible for paying all Taxes associated with Client’s subscriptions hereunder. If Textellent has the legal
    obligation to pay or collect Taxes for which Client is responsible under this Section 3(e), the appropriate amount maybe invoiced to and must be paid by
    Client, unless Client provides Textellent with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Textellent is
    solely responsible for taxes assessable against it based on its income, property, and employees.

4. USE OF THE TEXTING PLATFORM SERVICES

  1. Textellent’s Responsibilities.Except as described in this Agreement, Textellent shalluse commercially reasonable efforts to make the Texting
    Platform Services available 24 hours a day, 7 days a week, except for downtime for maintenance, updates or security-related activities.Textellent reserves the right to modify, suspend, or discontinue the offering of the Texting Platform Services at any time for any reason without prior
    notice. If Textellent terminates the offering of the Texting Platform Services, Client may recover a refund equivalent to the prorated Subscription Fees
    paid by Client for the period of time in which Client’s subscription remains active, but the Texting Platform Services are no longer offered.
  2. General Client Obligations.
    1. Client shall: (1) use commercially reasonable efforts to prevent unauthorized access to or use of the Texting Platform Services and notify Textellent
      promptly of any such unauthorized access or use; and (2) use the Texting Platform Services only in accordance with this Agreement and applicable laws and
      government regulations, including as described further in Section 4(c).
    2. Client shall not (1) make the Texting Platform Services available to any third party (unless Textellent expressly agrees in advance in writing), (2)
      sell, resell, license, sublicense, relicense, rent, or lease the Texting Platform Services (unless Textellent expressly agrees in advance in writing), (3)
      act or purport to act as an agent or employee for Textellent, (4) provide access to the Texting Platform Services on a shared basis with any third party,
      (5) interfere with or disrupt the integrity or performance of the Texting Platform Services or third-party data contained therein, or (6) attempt to gain
      unauthorized access to the Texting Platform Services or their related systems or networks.
  3. Client’s Duty to Obtain Adequate Consent.Client warrants and represents that it is and will at all times remain in full compliance with all
    applicable laws, rules and regulations with regard to text messaging and Client’s use of the Texting Platform Services, including without limitation the
    Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and
    Marketing Act) of 2003, and all other laws and regulations concerning text messaging, privacy, telemarketing, and Internet marketing.For purposes of this
    Agreement,Client agrees to assume that the Texting Platform Services constitute an “automatic telephone dialing system”or “autodialer” under the TCPA, and
    that the Texting Platform Services send text messages using the sort of technology for which message recipients’ consent is required under the TCPA and
    other laws and regulations that specify the form of consent and the standards for obtaining such consent (e.g., Client will assume that federal and state
    laws that would require consent for text messages, or for any other communications sent or initiated using specified technology, apply). Client is solely
    responsible ensuring that each recipient of a text message it sends using the Texting Platform Services has provided requisite consent and has not revoked
    it. By way of example, Client is responsible for obtaining “prior express written consent”to the extent the TCPA and its implementing regulations would
    require such consent for the messages Client sends through the Texting Platform Services. Client acknowledges, and covenants not to assert anything to the
    contrary, that (i) the Texting Platform Services are merely a platform through which Client, and not Textellent, sends text messages to recipients of
    Client’s choosing, (ii) Client, and not Textellent,is the sole initiator and sender of the text messages, (iii) Client,and not Textellent, controls the
    recipients of any text messages, the content of text messages, and the timing of when text messages will be transmitted, (iv) Textellent provides only text
    message transmission services, and has no control over the recipients of any text messages or the content or timing of those messages. Although Textellent
    may provide guidelines, recommendations, best practices or other information to Client regarding consent, Client’s implementation of such materials is not
    a substitute for compliance with law and this Agreement.Client agrees to consult its own qualified legal counsel regarding Client’s consent obligations
    prior to use of the Texting Platform Services.
  4. Acceptable Use. Client acknowledges and agrees that Textellent has no obligation to monitor the content of communications or data uploaded or
    transmitted through the Texting Platform Services (though Textellent reserves the right to do so) and that Textellent shall not be responsible for the
    content of any such communications or transmissions. Client shall use the Texting Platform Services exclusively for authorized and legal purposes,
    consistent with all applicable laws and regulations. Client will not upload or transmit any Client Data that (1) is libelous, defamatory, obscene,
    pornographic, abusive, harassing, or threatening; (2) contains viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files,
    scripts, agents, or programs(“Malicious Code”); (3) violates the rights of others, such as data which infringes on, or misappropriates, any intellectual
    property rights or violates any right of privacy or publicity; or (4) otherwise violates any applicable law (including, without limitation, the laws and
    regulations governing privacy, and unfair competition). Textellent reserves the right, but has no obligation, to delete, move, or edit any of Client Data
    that Textellent may determine, in its sole but reasonable discretion, violates this Section or is otherwise inappropriate; provided, however, that
    Textellent shall have no right to edit the content of a text message that Client wishes to send through the Texting Platform Services, but Textellent shall
    have the right to refuse to allow its Text Platform Services to be used to transmit any text message if Textellent believes Client’s transmission of the
    message would violate this Agreement. In addition, Client will not attempt to avoid or defeat any security measures associated with the Texting Platform
    Services, including without limitation sharing login and/or password information, attempting to compromise authentication protocols, and launching
    malicious attacks against the Texting Platform Services (such as SQL injections, port scans, denials of service, and the like). Textellent reserves the
    right to deny access to the Texting Platform Services to any Client that Textellent may determine, in its sole but reasonable discretion, has violated
    Section 4 of this Agreement or otherwise misused the Texting Platform Services.
  5. Data Retention and Retrieval.Client understands that Textellent retains sole discretion, but is under no obligation, to retain records of any
    Client Data. Accordingly, it is Client’s responsibility to retain records of its transmissions using the Texting Platform Services. The Texting Platform
    Services are not backup services.Backup archives may not be available, and Client should retain its own copy of any important information.
  6. Work Product Ownership. Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work
    Product”) developed in whole or in part by Textellent in connection with the Texting Platform Services will be the exclusive property of Textellent. Upon
    request, Client will execute all documents necessary to confirm or perfect the exclusive ownership of Textellent to the Work Product.

5. TERMINATION

  1. Definition.“Material Default” shall mean any of the following: (1) failure of Client to make a required payment when due (such as if the payment
    information previously submitted is invalid at the time payment is due); (2) the insolvency or bankruptcy of either Client or Textellent; (3) the
    subjection of Client’s property to any levy, seizure, general assignment for the benefit of creditors, or sale for or by any creditor or government agency;
    or
    (4) Client’s continued use of the Texting Platform Services after affirmatively informing Textellent orally or in writing that (i) Client has not
    obtained proper consent pursuant to Section 4(c) of this Agreement and (ii) Client is continuing to use the Texting Platform Services without the
    consent required by Section 4(c) of this Agreement.
  2. Termination Upon Written Notice. Except where there is a Material Default, this Agreement may be terminated by either party upon no less than
    fifteen (15) days prior written notice to the other party. An email notice of termination will suffice.
  3. Termination for Material Default. Where there is a Material Default, the non-defaulting party may elect to terminate this Agreement immediately
    upon written notice. An email notice of termination will suffice.Upon termination for Client’s Material Default, Client shall pay any unpaid fees covering
    the remainder of Client’s subscription term.
  4. No Refund Upon Termination. Except where Textellent commits a Material Default, Textellent is under no obligation to refund any prepaid fees
    covering the remainder of the term of all subscriptions after the effective date of termination.

6. PROPRIETARY RIGHTS

  1. Reservation of Rights.Subject to the limited rights expressly granted hereunder, Textellent reserves all rights, title, and interest in and to
    the Texting Platform Services, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set
    forth herein.
  2. Restrictions. Client shall not, and shall not permit any third party, to (1) access the Texting Platform Services except as expressly permitted
    herein or in writing from Textellent, (2) create derivative works based on the Texting Platform Services, (3) copy, frame, or mirror any part or content of
    the Texting Platform Services, (4) decompile, disassemble, change merge, enhance, reverse engineer or attempt to reconstruct, identify or discover any
    source code, underlying ideas, underlying user interface techniques, or algorithms of the Texting Platform Services, (5) remove, alter, modify, destroy, or
    obfuscate any content or notices provided as part of the Texting Platform Services, including without limitation trademarks, service marks, trade dress,
    click-through agreements, URLs, or patent, copyright, trademark, and/or confidentiality markings or legends, or (6) access the Texting Platform Services in
    order to (i) build a competitive product or service or (ii) copy any features, functions, or graphics of the Texting Platform Services.
  3. Ownership of Client Data. As between Textellent and Client, Client exclusively owns all rights, title, and interest in and to all Client Data. No
    rights are granted to Textellent hereunder other than as expressly set forth herein.

7. CONFIDENTIALITY& NON-DISCLOSURE

  1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party
    (“Disclosing Party”) to the other party (“Receiving Party”), whether orally, electronically, or in writing, that is designated as confidential or that
    reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.Client’s Confidential Information shall include Client Data; Textellent’s Confidential Information shall include the Texting Platform Services; and
    Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology
    and technical information, product plans and designs, pricing information, financials, marketing plans, business strategies, customer information,
    data, research and development, software and hardware, and business processes disclosed by such party. However, Confidential Information shall not
    include any information that (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party hereunder,
    (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (3)
    is received from a third party without breach of any obligation owed to the Disclosing Party, or (4) was independently developed by the Receiving Party
    without breach of this Agreement.
  2. Protection of Confidential Information.Except as otherwise provided in this Agreement or permitted in writing by the Disclosing Party, (1) the
    Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no
    event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this
    Agreement; (2) the Receiving Party shall use Confidential Information of the Disclosing Party only for the purposes for which the information was
    disclosed; and (3) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and
    agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing
    protections no less stringent than those herein.
  3. Disclosure to Service Providers. Notwithstanding Section 7(b), Textellent, and its employees, agents, or representatives may disclose Client’s
    Confidential Information to service providers, such as cloud storage providers, provided those service providers have commercially reasonable data security
    provisions in place.
  4. Compelled Disclosure.Notwithstanding Section 7(b), the Receiving Party may disclose Confidential Information of the Disclosing Party if it is
    compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally
    permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is
    compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and
    the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and
    providing secure access to such Confidential Information.
  5. Destruction of Confidential Information. The Disclosing Party may request that the Receiving Party return or destroy all Confidential Information
    of the Disclosing Party in the possession of the Receiving Party, its employees, or agents. Such request must be in writing, and the return or destruction
    of such Confidential Information shall be completed within 10 business days of the Receiving Party’s receipt of a written request in accordance with this
    Section.
  6. Survival.This Section 7 shall survive any termination of this Agreement.

8. WARRANTIES AND DISCLAIMERS

  1. Mutual Warranties.Each party represents and warrants that it has the legal power to enter into this Agreement.
  2. Client-Specific Warranties. Client represents and warrants that it will not transmit to Textellent any Malicious Code.
  3. Security.
  4. While Textellent utilizes electronic and physical security to reduce the risk of improper access to or manipulation of Client Data during transmission and
    storage, it cannot guarantee the security or integrity of Client Data and shall have no liability for breaches of security or integrity or third-party
    interception in transit, nor for any damage which may result to you, your computer or other property by your use of the Texting Platform Services.
  5. You acknowledge that text messages may be transmitted unencrypted and that eavesdropping of communications by third parties is possible. Textellent
    recommends that you ensure sensitive and valuable information is communicated by a protected and/or encrypted method.
  6. Disclaimer. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE PROVIDER SITES AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,”
    WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE
    TERMS, PROVIDER DOES NOT WARRANT THAT THE USE OF THE PROVIDER SITES OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING, BUT NOT LIMITED TO ANY
    INTERRUPTIONS TO THE SERVICES CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., “HACKING”) NOR SHALL PROVIDER BE RESPONSIBLE FOR ANY
    DATA LOSS OR LOSS OF ANY INFORMATION IN YOUR ACCOUNT, REGARDLESS OF THE CAUSE. FURTHERMORE, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE
    RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE PROVIDER SITES OR SERVICES WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS OTHER THAN AS MAY
    BE EXPRESSLY SET FORTH IN THESE TERMS. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY
    KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF
    MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS
    OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

9. INDEMNIFICATION

  1. Indemnification by Client.Client shall defend, hold harmless,and indemnify Textellent and its affiliates and subsidiaries, and their respective
    officers, directors, owners, agents and attorneys(“Textellent Indemnified Parties”) against any claim made or brought against Textellent Indemnified
    Partiesby a third party (including without limitation any recipient of Client’s text messages sent through the Texting Platform Services) related to
    Client’s use of the Texting Platform Services. Such claims include, but are not limited to: (1) claims that Client Data, or Client’s acquisition, use,
    and/or disclosure of Client Data, including without limitation, Client’s disclosure of Client Data to Textellent and/or Client’s disclosure of Client Data
    to any person or the public, violates Client’s privacy policy and/or applicable law; (2) the transmission of messages violated any legal requirement,
    including the Telephone Consumer Protection Act, or federal or statelaws on telemarketing; or (3)Client’s use of the Texting Platform Services in violation
    of this Agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law. Pursuant to this provision,
    Client shall indemnify Textellent Indemnified Partiesfor any and all damages, costs, or fees (including attorney’s fees) incurred in connection with such
    third-party claims. For clarity, this Section 9(a) is not subject to any limitation of liability.
  2. Client will not settle, compromise or otherwise enter into any agreement regarding the disposition of any claim or action against Textellent Indemnified
    Parties without the prior written consent and approval of Textellent unless such settlement (i) is solely for a cash payment, (ii) requires no admission of
    liability or wrongdoing on the part of Textellent Indemnified Parties, (iii) imposes no affirmative obligation on Textellent Indemnified Parties, (iv)
    imposes no restriction on the business of Textellent Indemnified Parties, (v) provides that the parties to such settlement shall keep the terms of the
    settlement confidential, and (vi) provides for a full and complete release of Textellent Indemnified Parties.

10. LIMITATION OF LIABILITY

  1. TEXTELLENT SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
    LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF
    DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS OR THE
    TEXTING PLATFORM SERVICES, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF
    SUCH DAMAGES. IF YOUR USE OF THE TEXTING PLATFORM SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA, PROVIDER IS NOT
    RESPONSIBLE FOR THOSE OR RELATED COSTS. EXCEPT FOR ANY REFUND TEXTELLENT MAY OWE YOU, TEXTELLENT’S TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE PRORATED
    AMOUNT YOU PAID TO TEXTELLENT FOR THE MONTH ENDING ON THE DATE THE CLAIM ACCRUED, AND TEXTELLENT’S AGGREGATE LIABILITY TO YOU FOR MULTIPLE CLAIMS SHALL NOT
    EXCEED THE AMOUNT YOU PAID TO TEXTELLENT DURING THE FIRST THREE MONTHS OF THIS AGREEMENT.THE PROVISIONS OF THIS AGREEMENT, INCLUDING THIS
    SECTION,ALLOCATE THE RISKS BETWEEN THE PARTIES.THE FEES REFLECT THIS ALLOCATION OF RISK AND LIMITATIONS OF LIABILITY HEREIN.

11. ARBITRATION

  1. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current
    Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues
    relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, the parties agree that the American
    Arbitration Association shall select an arbitrator who will preside over the matter. The arbitration shall take place within the geographic jurisdiction of
    the Northern District of Texas federal courts. The arbitrator shall manage the scope and timing of discovery, provided all discovery is subject to
    privilege and without prejudice to the parties’ ability to seek an appropriate protective order. The arbitrator(s) shall not have the authority to modify
    any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in
    connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in
    conformity with the decision in any Texas court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the
    prevailing arbitration law. The commencement of arbitration shall not itself terminate this Agreement or the parties’ obligations hereunder.

12. GENERAL PROVISIONS

  1. Force Majeure. If performance of this Agreement or any obligation under this Agreement(other than Client’s payment obligations and Client’s
    obligation to obtain requisite consent prior to sending messages through the Texting Platform Services) is prevented, restricted, or interfered with by
    causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt
    written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term
    Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or
    civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable
    efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such
    causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party,
    or its employees, officers, agents, or affiliates.
  2. Subcontractors. Textellent mayuse third party contractors to perform any of its obligations in providing the Texting Platform Services to Client.
  3. Entire Agreement. This Agreementcontains the entire agreement of the parties, and there are no other promises or conditions in any other
    agreement whether oral or written concerning the subject matter of this Agreement. This Agreementsupersedes any prior written or oral agreements between
    the parties. The only exception to this clause is the Non Disclosure Agreement, which if, executed prior to this Agreementremains in effect.
  4. Severability. If any provision of this Agreementwill be held to be invalid or unenforceable for any reason, the remaining provisions will
    continue to be valid and enforceable. If an arbitrator finds that any provision of this Agreementis invalid or unenforceable, but that by limiting such
    provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
  5. Amendment. This Agreement may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party
    obligated under the amendment.
  6. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Texas without regard to its principles of
    conflicts of law.
  7. Notices.Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be
    deemed to have been given upon: (1) personal delivery, (2) the fifth business day after mailing, (3) the second business day after sending by confirmed
    facsimile, or (4) the first business day after sending by email. Notices to Client shall be addressed to Client contact as provided by the client during
    signup.
  8. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture,
    agency, fiduciary, or employment relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s
    behalf without the other’s prior written consent, except as otherwise expressly provided herein.
  9. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement except as specified in Section 9.
  10. Assignment. Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without
    the prior written consent of the other party (not to be unreasonably withheld).Notwithstanding the foregoing, either party may assign this Agreement in its
    entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or
    substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party
    in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In
    the event of such a termination, Textellent shall refund to Client any prepaid fees covering the remainder of the term of all subscriptions after the
    effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors
    and permitted assigns.
  11. Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or
    limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.