The terms "American Marketing & Publishing, L.L.C." or "AMP" or "us" or "our" or "Publisher" or "we" refer to the owner of the website and provider of the Services, a limited liability company whose registered office is 915 East Lincoln Hwy., DeKalb, IL 60115. The terms "you" and "your" refer to the viewer of the website, or the user of the Service, including agents or employees of commercial entities utilizing the Service.
Messages sent by companies utilizing our messaging platform are intended for recipients over the age of 13 and are delivered via US short code 36000. While most individuals who opt in to join a merchant's commercial text marketing list will receive significantly fewer messages, depending on the list you opt-in to, you may receive as many as 30 text messages per month for each keyword list that you opt-in to receive messages from, or even more messages if you explicitly agree to receive more and do not opt-out of the program. Messaging & Data rates may apply. Messages are sent from an automated system. Your consent to receive messages is not required for the purchase of goods or services. This service is available for subscribers on AT&T, Verizon Wireless, Alltel, T-Mobile®, Sprint and Nextel, Virgin Mobile USA, Cellular One Dobson, Cincinnati Bell, Centennial Wireless, U.S. Cellular®, Boost, and others in the US. Many international carriers are also supported. For help, text HELP to 36000, whichever one applies, email us at email@example.com, or call 1-800-807-6870, option 5. You may stop mobile subscription at any time by sending a text message STOP to short code 36000. Your phone must have text messaging capability.
Your use of the Service is expressly conditioned upon your assent to these Terms and your full acceptance and consent to be bound by these Terms. Please read these Terms carefully. As noted below, American Marketing & Publishing LLC reserves the right to modify and update these Terms, from time to time, by posting any such new or modified Terms to the relevant Website or Websites.
The Text Service
For entities such as businesses, units of government, civic groups, or other organizations, the Services include a web-based text marketing platform for creating and sending text messages to a group of Subscribers (the consumers or other members of the public who join your opt in list) by capturing and storing mobile numbers that have opted into your list via the use of your keyword, providing automatic removal of mobile numbers that have asked to be removed from your list, and access to an SMS gateway for distribution of messages to the appropriate mobile operators. We provide MT (Mobile Terminated) outbound messages through various downstream providers and routes, and the level of service and support for some special features varies according to the specific route.
For individuals accessing our text marketing platform, the Services allow them to become Subscribers by opting to join the text marketing distribution list of third parties such as businesses they patronize or organizations or entities they want to be in regular communication with. The Services allow them to opt-out of a particular text distribution list by sending STOP to 36000.
AMP provides Third Parties (most typically business entities but also civic organizations, units of government, or individuals) with access to AMP's commercial text marketing platform ("Platform"). As a consumer, you may opt to subscribe to the regular or periodic text messages sent by such entities by sending a text message in the form of that merchant's opt-in code or keyword from your mobile phone or mobile device to 36000 and assenting in writing or by replying yes via text or e-mail. The Third Party that you have opted-in to receive messages from will then be able to use our Services to send you their messages at the times and with the frequency that they choose. The Platform also facilitates efficient communication from Third Parties to consumers via email and social messaging.
AMP is not responsible for the content of messages sent by Third Parties, and does not verify, validate, endorse offers, or guarantee that an offer sent by such an entity will be honored by them. You agree that AMP expressly disclaims any warranty related to the accuracy of information sent to you by Third Parties or to the validity of any offers you receive from a Third Party or Third Parties.
Third Parties are solely responsible for redeeming offers sent via the Services and for information contained in their messages. The Third Party is the issuer of the message and is fully responsible for all goods and services it offers or provides to you and for any and all injuries, illnesses, damages, claims, liabilities and costs ("Liabilities") it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of an offer or not.
As a condition of receiving text messages via the Services, you waive and release AMP and its subsidiaries, suppliers, vendors, affiliates, partners, officers, directors, employees and agents from any Liabilities arising from or related to your use of the Services, AMP's acts or omissions in providing the Services, or for any act or omission of a Third Party in connection with your use or reliance on a text message received from a Third Party or the information or services or goods it provides in connection with it.
Your sole and exclusive right and remedy in case of dissatisfaction with the Services or any other grievance shall be your termination and discontinuation of access to, or use of the site, or to opt out (in the case of text, by texting STOP in reply to any unwanted text message) unsubscribe (in the case of email, by replying UNSUBSCRIBE in the subject line) or otherwise canceling the Services by contacting the Third Party that has been sending you messages. If you provide us notice in writing at our mailing address of 915 East Lincoln Hwy, DeKalb, IL 60115 or via firstname.lastname@example.org we will take commercially reasonable steps to prohibit the Third Party from sending messages to you that are facilitated by the Platform.
If you are a representative of a business that has purchased advertising, text marketing or other services from American Marketing & Publishing, L.L.C. and entered into a separate agreement in connection with such a transaction, then the General Terms & Conditions of that agreement will prevail in the event of a conflict between the terms of this agreement and that agreement. AMP only provides that the text messages you send through the Service are processed correctly and delivered to the applicable mobile telecommunications network. AMP is not responsible for the final delivery of the message, as this is the responsibility of the mobile operators.
AMP sends and receives text messages via mobile network operators, and the timing of the broadcast of those messages is subject to the constraints imposed by those operators. While AMP shall use commercially reasonable efforts to deliver your messages as quickly as possible, we cannot guarantee, nor commit to, a specific maximum delivery time. Actual delivery times will depend on the specific policies and constraints of the various entities involved in the transmission of your messages across the mobile network. AMP is not liable for any loss incurred by the failure of a message to be delivered in a timely manner, or to be delivered at all, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from AMP for any such failure. You further agree that message contents are considered to have zero value.
Your text list will contain only mobile numbers from individuals that have opted into your text marketing program. You may request AMP to add additional mobile numbers in your possession to your list, but such request must be accompanied with detailed documentation clearly demonstrating that the individuals owning these numbers assented in writing to receiving text messages from you. Furthermore, this documentation must comply with the rules and regulations published by the MMA and other accepted industry guidelines for opting into a text marketing program and must be in compliance with all applicable laws and regulations including the Telephone Consumer Protection Act and others. Such requests, at the sole discretion of AMP, may be denied. You acknowledge and agree that, should any individual directly contact you to request they be removed from your list, that you shall instruct them to text the reply STOP or STOP and your keyword on short code 36000 and remove their number through the Service, and that they will receive no further messages from you.
You agree to abide by all the applicable local, state and national laws and regulations regarding text marketing and are solely responsible for all acts or omissions that occur through your use of the Service, including without limitation the content of your messages transmitted through the Service. Without limiting the foregoing, you promise to acquaint yourself with the rules and regulations governing text messaging by reviewing the following laws and visiting the following websites:
- Telephone Consumer Protection Act (TCPA)
- Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM)
- Mobile Marketing Association: http://mmaglobal.com/education/bestpractice
- Federal Trade Commission: http://www.ftc.gov
You promise to utilize the Service only in conformance with these standards and you agree, to the fullest extent permissible by law, that with respect to the Telephone Consumer Protection Act of 1991, 47 U.S.C 227, and its Regulations, 47 C.F.R. 64.1200, (TCPA) that you, and not AMP, initiates or causes to be initiated any "telephone call" that results in the delivery of a mobile message to any cellular telephone service, when such mobile phone number was used to send a message on your behalf. You furthermore agree, to the fullest extent permissible by law, that with respect to the Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM) and any regulations promulgated thereunder, that you, and not AMP, is the "sender" of any electronic mail delivered to a message recipient when such message was sent on your behalf. In addition:
- You agree to use the email messaging functionality of the Platform only in compliance with the CAN-SPAM Act and all other applicable federal, state, and local laws and regulations, including those relating to advertising, sales or promotional practices, redemptions, refunds and provision of your products or services, laws that govern false, unfair and deceptive practices, coupons, alcohol or tobacco, health or safety, laws that govern lotteries, sweepstakes, contests and promotions, and laws that govern the collection of donations and charitable giving. You promise to enable all message recipients to withdraw consent, unsubscribe, or opt-out of receiving messages and to immediately programmatically or manually remove such message recipients from the Platform and Advertiser's lists after receipt of a request to withdraw consent, unsubscribe, or opt-out.
- You agree to utilize the Platform only for lawful purposes, and to refrain from sending messages that are not appropriate for children under 18 years of age. You agree that you shall not use the Platform to send message content that is libelous, scandalous, threatening, harmful, or offensive, or that otherwise violates or infringes the rights of any third party.
When you subscribe to the Service, you will be assigned a unique username and password that will be used to access the Service. It is your responsibility to maintain the confidentiality of those login credentials, and you agree to notify AMP if you suspect that there has been unauthorized access to your account, since any messaging activity that is deemed abusive, fraudulent or illegal may be grounds for the termination of your user account and the recovery of damages at the sole discretion of AMP.
You accept that the Service is provided for professional use only, and you agree that your use of the Service shall not include:
- Misrepresenting your identity in your text messages;
- Sending any message content that is unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable;
- Sending any message content that may infringe upon the intellectual property rights of third parties;
- Attempting to gain unauthorized access to other accounts using the Service, or networks connected to the Service, using password hacking or any other method; or
- Engaging in any other activity that AMP believes could subject it to criminal liability or civil penalty;
You agree that AMP is, under no circumstances, responsible for the contents and/or accuracy of your messages, or your failure to properly secure the explicit written permission to send messages to consumers, and AMP will only transmit your messages on a basis of good faith that you use the Service in accordance with these Terms. AMP is not responsible for the views and opinions contained in any of your messages or broadcasts. AMP will not be liable for any misuse of the Service by you, or by your reliance on the Service.
We may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Service, including the web pages that are part of the Service. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained as part of the Service are the sole property of AMP or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not modify, alter, create any derivative works, reverse engineer, decompile or disassemble any portion of the Service.
AMP may require that you periodically send new Subscribers and the existing Subscribers who have opted in to your text marketing list clear opt-out instructions in a manner compliant with and conforming to the rules and guidelines of the MMA. Any individual choosing to opt out of your messages by replying STOP to a received message will automatically be removed from your list. You may not condition consumer consent to receive messages from you on the sale of goods or services. If any individual contacts you directly to request that they be removed from your text marketing list, it is your sole responsibility to honor those requests and to remove them from your list, using the Service.
Data Compilation, Sharing, Dissemination & Privacy
In order to ensure your compliance with these Terms, to ensure that AMP complies with local, state, and national laws and industry best practice guidelines, and to develop and share text marketing subject matter expertise, best practices, and success stories among and with similarly situated businesses, we will regularly monitor the messages that you send. We believe that the broad-based collection and dissemination of specific messages and their effectiveness as reported by you or determined by us stands to make the commercial investment in our text marketing platform a richer one via sharing, learning, contribution, and collaboration. Any such compilation, analysis, sharing or dissemination shall be done in the sole discretion of AMP. Nonetheless, we recognize that some of our customers may be uncomfortable with the sharing of their message content, feedback, list size or results and in such a case we ask that the authorized Third Party representative notify us consistently with the notice provisions of the contract for text marketing services and we will take all reasonable steps to keep such data and information private and confidential.
Your payment for services provided by AMP shall be deemed completed when you are charged the full contract amount by AMP. If for any reason AMP is not able to collect payment from the credit card, debit card, or via ACH from the banking institution and account on file for your account, an attempt will be made to contact you, during which time the account will be suspended. If Publisher is not able to elicit payment from you, your access to the Service will terminate effective immediately.
Marketing Assistance, Materials and Guidance
In connection with the purchase of access to our Services, AMP may provide its customers with marketing materials or collateral to increase awareness of your text marketing program. All such materials, their content, accuracy, and their use, posting, and distribution are your sole responsibility, and you explicitly agree to any and all liability relating to them.
AMP may provide technical support or may assist you with the actual creation and sending of messages on your behalf, or may provide message suggestions or marketing ideas for your use of the text marketing service. You agree to indemnify and hold AMP and its agents harmless, free and clear of any and all liabilities that may arise in connection with AMP's work in this regard, including without limitation the creation or sending of text messages in error, or that contain an error, or the rendering advice or giving marketing suggestions that prove to be ineffective or disadvantageous.
No Warranty; Limitation of Liability
You acknowledge that text messages are not encrypted and that the electronic intercept of text messages by third parties is possible.
AMP shall use commercially reasonable efforts to make access to the Service available through the required access protocols, but makes no warranty or guarantee that (i) the Service will be available at any particular time; or (ii) you will be able to access the Service at any particular time or from any particular location. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE WEBSITE AND TEXT MARKETING SERVICES, ADVICE, COACHING, AND GUIDANCE OFFERED BY AMP TO YOU ON THE UTILIZATION OF TEXT MARKETING, ALL MARKETING MATERIALS PRODUCED FOR YOU OR DISTRIBUTED ON YOUR BEHALF BY AMP, AND ANY OTHER PRODUCTS OR 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, AMP DOES NOT WARRANT THAT THE USE OF THE WEBSITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE OR THAT THE WEBSITE OR SERVICE WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS, OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS. AMP 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 SERVICE, 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.
AMP 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, 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 WEBSITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE OR DATA, AMP IS NOT RESPONSIBLE FOR THOSE COSTS.
AMP'S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE WEBSITE OR SERVICE FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE AMOUNT OR AMOUNTS ACTUALLY PAID BY YOU TO AMP FOR SERVICES GIVING RISE TO THE CLAIM MADE DURING THE SIX (6) MONTHS PRIOR TO THE FIRST SUCH CLAIM BEING MADE.
User Warranties; Indemnification
You warrant and represent to AMP that you are and shall at all times remain in full compliance with these Terms all applicable laws, rules and regulations with regard to your use of the Websites and Service, including without limitation the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, the guidelines published by the Mobile Marketing Association at http://mmaglobal.com/education/bestpractice and all other local, state, and national laws and regulations concerning privacy and text messaging.
Modification of Terms
We periodically make updates and modifications to improve the Service and some changes may require an update or revision to these Terms. We reserve the right to change or discontinue any aspect or feature of the Service, as well as modify, change and/or update these Terms, from time to time, as we deem appropriate. Any updates to these Terms shall be posted on this Website, from time to time. If you do not agree with any such changes, your use of the Service may be cancelled in accordance with the procedures for cancellation set forth herein.
Termination, Cancellation and/or Suspension by AMP
We also reserve the right to suspend, terminate or cancel your access to or utilization of Service at any time for any reason in our sole discretion. In such a situation, your access to the Service will be disabled, and AMP shall have no obligation to you after any termination or cancellation of these Terms, except that if and to the extent you still have ratable portions of your term reflected in the accrued prepayment in your account, AMP shall within thirty days refund the amount of such pre-paid credits.
The provisions regarding ownership, payments, warranties and indemnifications will survive any suspension, termination or cancellation of your use of the Services or Website.
Termination by the User
You are free to terminate or cancel your use of the Service at any time, and for any reason, provided that you notify us, in writing, of any such termination or cancellation not later than thirty (30) days prior to the auto-renewal date. Such notification shall be sent to American Marketing & Publishing, L.L.C., 915 E. Lincoln Hwy, DeKalb, IL 60115, Attn: Text Marketing Director or via e-mail to email@example.com and shall state clearly the Advertiser's intention not to be automatically renewed and stating the name of the business and the name of the person authorized to cancel the automatic renewal. Notwithstanding the foregoing, unless due to a breach solely by AMP that it fails to cure within thirty (30) days of its receipt of your written notice, in no event shall AMP be obligated to refund to you the reasonable value of any ratable portions of your term reflected in the accrued prepayment in your account.
If you are a representative of a business that has purchased advertising, text marketing or other services from American Marketing & Publishing, L.L.C. and entered into a separate agreement in connection with such a transaction, then the General Terms & Conditions of that agreement will prevail in the event of a conflict between the terms of this agreement and that agreement.
Failures or Delays
Without limitation, AMP shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications facilities, power failure, failure of heating air conditioning equipment, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of AMP. In addition, AMP shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material, services, or assistance necessary for the performance of the Service.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind AMP in any respect whatsoever. All notices required hereunder shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. AMP may give notice to you by means of a general notice on the Website or Service, electronic mail to your e-mail address on record in AMP' account information, or by written communication sent by personal delivery, fax, overnight courier, or certified or registered mail to your address on record in AMP's account information.
These Terms shall be governed by and construed in accordance with the laws of the State of Illinois notwithstanding its laws governing conflicts of laws. The parties agree that any action or proceeding brought to defend the rights or enforce the obligations of a party hereto shall be brought in the 16th Judicial Circuit Court in DeKalb County, Illinois. In any action or proceeding to enforce rights or recover damages under these Terms, AMP, if the prevailing party, will be entitled to recover from you all legal costs, including reasonable attorneys' fees.
The terms and conditions of Service are only those stated herein, which shall constitute the complete agreement between the parties.