WHEREAS, this Agreement sets forth the Standard Terms and Conditions that apply to the use of Mutual SMS Short Message System Services and this URL https://mutualsms.com
ARTICLE 1: USER ELIGIBILITY
1.01 You represent and warrant that you are the person legally responsible for all use of this account, and are at least 18 years of age. You agree to provide Mutual SMS with your full legal name, postal address and telephone number for our records, and you have a continued obligation to keep this information current. You also agree that you are an authorized user of any credit card or check that you supply to us, and you understand and agree that we have an obligation to fully investigate any possible fraudulent online check or credit card use. All charges related to this agreement will be paid monthly in advance via Electronic Funds Transfer (EFT) payments from your designated checking account.
1.02 TERMS: Operator fees may apply for receiving text messages. We do not reverse-bill the recipient of the text messages. Children 13 or under may not participate in any promotion without parental consent. Mutual SMS solely provides marketing services for participating companies and takes no legal or any other responsibility for services and promotions offered or messages sent to customers. Standard or other charges may apply. Reply with word STOP to any message received to be removed from any further marketing messages and end all messages.
ARTICLE 2: CONTENTS OF MESSAGES
2.01 You are responsible for the contents of your text messages and the consequences thereof. You further agree not to use this Short Message System (SMS) to send or allow any text messages to be sent that are not based upon customer opt-in or material that is unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or may otherwise constitute a criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, regulation or court order. Mutual SMS reserves the right to terminate your account without prior notice if Company becomes aware of and determines, in its sole discretion, that you are violating any of the foregoing guidelines.
ARTICLE 3: UNLAWFUL OR PROHIBITED USE
3.01 As a condition of your use of the Short Message System (SMS) Service you warrant to Mutual SMS that you will not use the Short Message System (SMS) Service for any unlawful purpose.
ARTICLE 4: PRICING
4.01 The service fees for Self-Managed accounts can be found here and payable monthly in advance by credit card after subscription.
4.02 The service fees for Mutual SMS Management, as shown on our pricing page, are payable monthly in advance via Electronic Funds Trasnfer (EFT) payments. A one time set-up fee of One Hundred Ninety Nine and 95/100 Dollars ($199.95) is due and payable per keyword upon execution of this Agreement. The price includes full management of your opt-in groups, key words, sub-key words and text message sending and scheduling, as well as monthly Statistics. You will use a long code ten (10) digit phone number and one (1) top-level keyword. Additional keywords are available at additional cost shown on our pricing page.
ARTICLE 5: TERM
5.01 The initial term of this Agreement is for a period of thirty days and month to month thereafter. You may cancel your account at anytime by giving Mutual SMS at least thirty (30) days written notice.
ARTICLE 6: TERMS OF PAYMENT
6.01 You agree to pay Mutual SMS the appropriate payment for the services received from Company in advance for the time period during which such services are provided. You agree to provide Mutual SMS with current billing and contact information and authorize Cash Flow Solutions to bill all account and related charges to the checking account information on file via EFT.
(A) Cancellation. You further agree that until and unless you notify Mutual SMS in writing only, with delivery confirmation, of your desire to cancel any or all services received, and once you complete the cancellation process, all services must be paid in full at the time of cancellation. You agree that prepayments will be billed and charged automatically, that Mutual SMS as authorized in 6.01 above, may charge any amount still due to your checking account via EFT at any time, and you further acknowledge and agree that Company will issue absolutely no refunds.
6.02 Pay by Credit Card. If your credit card is denied for any reason on the first attempt, we will automatically attempt to resubmit your card on or around the 7th, 14th, 25th and last day of the month. A credit card resubmission fee of $10.00 will be charged against the account for every time we attempt resubmission. Should the card be denied a second time, we may terminate the account, and the resubmission fees will need to be paid before the account can be reactivated. All files within the account may be deleted on termination. You may notify us in advance of your next billing cycle your desire to provide for alternative payment arrangements.
6.03 Pay by Checking Account EFT. If paying by Electronic Funds Transfer (EFT) and any draft is not paid by your bank, you agree that each dishonored draft will be subject to a Thirty and No/100 Dollar ($30.00) charge in addition to your bank’s NSF fees. If after the first monthly cycle, should payment continue to be dishonored, Mutual SMS may choose to terminate the account at any time and has the right to collect all accumulated fees. Mutual SMS reserves the right to change prices at any time. It is the responsibility of the customer to maintain accurate billing information with Mutual SMS which may include updated credit card information, updated checking account information, current email address and postal mailing address.
ARTICLE 7: ZERO TOLERANCE SPAM POLICY
7.01 Mutual SMS takes a zero tolerance stance against sending of unsolicited text messages, commonly known as spam. Any user who sends out spam will have their account terminated without notice, and will be billed at a rate of $100.00 for each recipient to whom the message was sent, regardless of whether the messages were sent from our server, or from another server advertising our short code. All commercial text messages must comply with all applicable federal, state or local laws. Mutual SMS reserves the right, at its sole discretion, to require changes or disable as necessary any website, account, database, or other component that does not comply with this policy. Company also reserves the right to make modifications in an emergency.
(A) Mutual SMS will not be liable for any damages incurred related to spam.
(B) In the event of litigation, it is the responsibility of each party to bear its own attorneys’ fees and costs throughout the entire process of any proceeding in accordance with Article 17.
7.02 Our definition of Spam – We consider any unsolicited, unexpected, or unwanted text message as Spam.
We do NOT allow use of 3rd party lists, whether consent has been gathered or not. We believe that any type of communication sent to a subscriber about an unrelated subject, that the subscriber did not request, to be Spam.
The Mutual SMS text messaging system allows only verified opt-in subscriptions. This ensures that all subscribers can opt-out quickly, easily, and permanently from unwanted SMS communications by simply replying to any message received with the word STOP.
7.03 Mutual SMS Anti-Spam Policy – Mutual SMS follows an ANTI-SPAM policy for all of its communications protocols. This means that we do not condone UNSOLICITED TEXT MESSAGES; NOTIFICATIONS; ALERTS; OR ANY MESSAGES THAT A CUSTOMER MAY RECEIVE FROM SOMEONE WHO SHOULD NOT HAVE THEIR MOBILE NUMBER. Please let us know about any abuse, including the sender ID, your Mobile Number (to be removed); the date and time you received it and the contents of the message. To report any abuse or violations of inappropriate use of our service, please contact us with your comments or complaints. Your report will be registered and the Client will be investigated for violations of our Anti-Spam Policy. The identity of any individual reporting abuse will be kept confidential.
ARTICLE 8: MONITORING OF SERVICE
8.01 You agree that Mutual SMS has the right to monitor the service electronically at any time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. Mutual SMS reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement. Mutual SMS also reserves the right to refuse refunds in cases where Mutual SMS believes abuse has taken place. Mutual SMS reserves the right to monitor any and all communications through or with our facilities. You agree that Mutual SMS is not considered a “secure communications medium” for the purposes of the Electronic Communications Privacy Act (ECPA), and that no expectation of privacy is afforded in the event that such service is monitored and/or disclosed.
ARTICLE 9: SHARING OF ACCOUNT SPACE & RESALE RESTRICTIONS
9.01 You represent and warrant that the account you purchase is purchased either for yourself or on behalf of a client if you are a reseller. You agree that as a client, you are the individual solely responsible for all use of the account.
ARTICLE 10: REFUND POLICY
10.01 All payments are mutually agreed to be non-refundable.
ARTICLE 11: TERMINATION
11.01 Mutual SMS may terminate this agreement and your access to any or all Mutual SMS related services at any time, with or without cause, with a 30-day notice. Mutual SMS shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. Anyone determined by Mutual SMS to have violated these Terms of Service may be barred from receiving any services from Mutual SMS without refund, as agreed in Article 10 and any outstanding amounts due on this account will still be payable as scheduled.
(A) You may terminate this Agreement by e-mailing the support department at Mutual SMS, who will then provide you with a form that must be completed and returned before your account can be cancelled.
(B) If you should choose to terminate your account before the end of the commitment period, you accept that you will be required to pay the plan setup fee and the value of the services until the end of the ongoing term in accordance with the equivalent rates.
ARTICLE 12: RELATIONSHIP OF THE PARTIES
12.01 Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever.
ARTICLE 13: DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
13.01 THE MUTUAL SMS SERVICE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. MUTUAL SMS EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE MUTUAL SMS SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY MUTUAL SMS, ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
13.02 UNDER NO CIRCUMSTANCES WILL MUTUAL SMS, OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE MUTUAL SMS SHORT MESSAGE SYSTEM SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE MUTUAL SMS SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MUTUAL SMS RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT MUTUAL SMS IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL SERVICES AVAILABLE FROM MUTUAL SMSAND ITS AFFILIATES.
13.03 UNDER NO CIRCUMSTANCES, UNDER THE TERMS OF THIS AGREEMENT, SHALL DAMAGES INCLUDE LOSS OF BUSINESS, OR LOSS OF PROFITS, WHETHER BASED ON BREACH OF AGREEMENT, BREACH OF WARRANTY, PRODUCT LIABILITY, OR OTHERWISE, TO ANY PARTY IN PRIVY TO THIS AGREEMENT, OR ANY THIRD PARTY NOT SO SITUATED.
13.04 THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.
ARTICLE 14: COPYRIGHT AND TRADEMARKS
14.01 All contents of the Mutual SMS and this Short Message System (SMS) are proprietary to Mutual SMS, and/or its suppliers and are protected under Copyright. All rights are reserved. Mutual SMS reserves any rights not expressly granted herein. The Customer acknowledges that he/she/it does not presently know the special skills, techniques or business policies, nor does the Customer have business forms or access to the Company’s body or knowledge, and as such, such information is deemed confidential and a trade secret, as such term is defined within the meaning of Mississippi Statutes, entitling Company to all protection available under both Mississippi and Federal law.
ARTICLE 15: FORCE MAJEURE
15.01 If by reason of failures of telecommunications or internet service providers, labor disputes, riots, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions or other causes beyond the control of Company, should Mutual SMS be unable to perform in whole or in part its obligations as set forth in this Agreement, then Company shall be relieved of those obligations to the extent it is so unable to perform and shall relieve Mutual SMS of any liability to the Customer or other third parties.
ARTICLE 16: GOVERNING LAW
16.01 Mississippi law shall govern this Agreement, and any dispute arising from the relationship between the parties to this Agreement, excluding any laws that direct the application of another jurisdiction’s laws. In any litigation, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both), or seeks a declaration of any rights or obligations under this Agreement, each party shall be responsible for their respective attorneys’ fees and costs, as stated in Article 17. The parties consent to the exclusive jurisdiction and venue of the courts of the State of Mississippi or to any Federal Court located within the State of Mississippi.
ARTICLE 17: ATTORNEYS’ FEES AND COSTS
17.01 Any legal controversy or legal claim arising out of or relating to this Agreement or our services, which results in litigation, shall result in each party being solely responsible for its respective attorneys’ fees and costs throughout the entire process of any and all proceedings.
ARTICLE 18: SEVERABILITY AND SURVIVABILITY
18.01 Severability. If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
18.02 Survivability. The terms of this Agreement apply to those obligations that survive any cancellation, termination, or rescission, namely – warranty, indemnification, liability and limits thereon, rights and obligations upon and following termination and assignment.
ARTICLE 19: INDEMNIFICATION
19.01 You agree to defend, indemnify and hold harmless Mutual SMS against any and all claims, losses, penalties, causes of action, damages, liability, costs, expenses (including but not limited to attorneys’ fees and costs) or claims caused by or resulting indirectly from your use of the service, without limitation or exception, including your violation of any third-party’s rights, (including, without limitation, infringement of any copy right trademark, service mark, trade secrets, right of privacy or publicity or any other third party right). The terms of this section shall survive the termination of your relationship with Mutual SMS
ARTICLE 20: REMEDY
20.01 Customer agrees that his/her/its sole and exclusive remedy to any issues relating to the Mutual SMS Service is to discontinue using the Service.
ARTICLE 21: ASSIGNMENT
21.01 In the event of a merger or consolidation of Mutual SMS, the surviving or new corporation and any subsidiaries are similarly subject to the rights and obligations of this Agreement.
ARTICLE 22: ENTIRE AGREEMENT
22.01 This Agreement constitutes the complete and exclusive statement of the Agreement between the parties regarding the products and services provided hereunder.
ARTICLE 23: WAIVER
23.01 The failure of Mutual SMS to enforce a provision of this Agreement shall not be construed as a waiver or limitation of Mutual SMS’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
ARTICLE 24: MODIFICATION OF TERMS
24.01 Mutual SMS reserves the right to modify this policy at any time and without advance notice, effective upon making the modified provisions available on the Mutual SMS Website (www.mutualsms.com). You are responsible for regularly reviewing these documents. Continued use of the Mutual SMS Service after any such changes shall constitute your consent to such changes. Mutual SMS does not and will not assume any obligation to notify you of any changes to the Terms of Service.