Registrant Sublicense Agreement
UPDATED AUGUST 2017
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT IS A LEGALLY BINDING AGREEMENT BETWEEN ICONECTIV, LLC, THE SHORT CODE REGISTRY SERVICE PROVIDER ("REGISTRY SERVICE PROVIDER"), AND "YOU," THE APPLICANT FOR A LICENSE TO USE SHORT CODE(S) IN ACCORDANCE WITH THE TERMS OF THIS SUBLICENSE AGREEMENT ("AGREEMENT"). BY CLICKING ON THE "SUBMIT" BUTTON AFTER COMPLETING THE SHORT CODE APPLICATION FORM OR BY RENEWING ANY SHORT CODE REGISTRATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT AND ALL TERMS, POLICIES, AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT SUBMIT AN APPLICATION FOR A SHORT CODE OR RENEW ANY SHORT CODE REGISTRATION.
Registry Service Provider and CTIA reserve the right to modify any of the terms and conditions contained in this Agreement or any terms, policies, or guidelines incorporated by reference at any time and in its sole discretion. Any modifications to this Agreement will be effective as to all Short Codes registered to You upon the earlier of (a) Your submission for a new Short Code, (b) Your renewal of a Short Code (including by Auto-renew), or (c) 30 days after the posting of notice of the modifications on the https://www.usshortcodes.com web site. Any modification to terms, policies, or guidelines incorporated by reference will be effective under the terms of each term, policy, or guideline. Your submission for a new Short Code, Your renewal of a Short Code, or Your continued use of this Short Code service 30 days after the posting of the modifications will constitute Your acceptance of such modifications to this Agreement. Such acceptance will apply to all Short Codes registered to You. Therefore, You should review this Agreement prior to submission for a new Short Code, prior to renewal of a Short Code, and at least once every 30 days to understand the terms and conditions that apply to Your use of Short Codes. Registry Service Provider may choose to notify You of some modifications by email, but is not obligated to do so. If You do not agree to the modified terms, You must not renew any Short Code or register any new Short Codes. If You have not registered new Short Codes or renewed any Short Codes after notice of the modifications, but will become subject to the modifications because of end of the 30-day notice period, You may avoid application of the modified terms only by terminating this Agreement and Your registered Short Codes by sending notice of termination to email@example.com prior to the expiration of the 30-day period. If You so terminate, You will not receive a refund for the time remaining in Your Short Code registration, and the modified terms will apply to any subsequent application for a Short Code by You.
PLEASE BE ADVISED THAT THE MERE APPLICATION FOR OR REGISTRATION OF A SHORT CODE WITH THE REGISTRY SERVICE PROVIDER DOES NOT GUARANTEE THAT A PARTICIPATING CARRIER WILL ACCEPT OR IMPLEMENT THE SHORT CODE OR THAT YOU WILL BE ABLE TO USE THE SHORT CODE AT ALL.
1. You are Bound to this Agreement.
You are bound by the terms of this Agreement. You are responsible for all content associated with any campaign conducted through an applicable Short Code regardless of whether or not you own or have the right to the content or the right to control the content associated with the Short Code. By accepting the terms of this Agreement, You represent and warrant (a) that You will provide any Short Code Content Provider whom You allow to use a Short Code held by You with a copy of this Agreement; and (b) that You will obtain the written agreement of any such Short Code Content Provider that it shall abide by all terms and conditions of this Agreement applicable to its use of the Short Code, and that the Short Code Content Provider is capable of performing the obligations in this Agreement. For purposes of this Agreement, a "Short Code Content Provider" is an entity that owns or has the right to the content transmitted or distributed through a Short Code to the end user. For the avoidance of doubt, You shall be responsible for all obligations under this Agreement with respect to any Short Code held by You regardless of whether You access and/or use the Short Code directly or make the Short Code available for access or use by others.
2. The Service.
Registry Service Provider administers a method for assignment of Short Codes. Short Codes are a string of numeric characters that are interoperable across communication service providers in the U.S.A. that are participating in Short Code services ("Participating Carriers"). The Participating Carriers and other participating members of the wireless telecommunications industry have appointed the CTIA to serve as their Short Code Registry Administrator, and CTIA, acting in that capacity, has granted Registry Service Provider a license to assign Short Codes in the manner described in this Agreement. Registry Service Provider makes this Service available to those seeking to sublicense for the term selected, a Short Code. Short Codes are intended for use only in the U.S.A. You may review frequently asked questions regarding the Service by reviewing the Short Code FAQs .
3. Registration, Password and Security.
To use the Service and license a Short Code, You will be asked to first create an account and obtain a login name. In addition, You will be asked to create a password. If any information You provide is inaccurate, incomplete or not current, Registry Service Provider may suspend or terminate Your account and access to the Service or Participating Carriers may restrict your ability to use the Short Code. You may change such information at any time by logging into Your account. You are solely responsible for maintaining the confidentiality of Your login name and password. You must immediately notify Registry Service Provider of any unauthorized use of Your login name and You are responsible for any unauthorized activities, charges and/or liabilities made on or through Your login name until Registry Service Provider receives such notification. You may not transfer or lend login names to any other third party
5. Acceptable Use Policy.
You will at all times strictly comply with the CTIA Acceptable Use Policy ("AUP"), which is available here. Changes to the AUP will be posted at the top of the linked page and will become effective upon the date provided in the notice. You are responsible for compliance with the AUP for all Short Codes registered to You. Any violation of the AUP by You or by any party using Short Codes registered to You will result in penalties, that may include, but are not limited to, the inability to renew Short Codes or register new Short Codes. In addition, a violation of the AUP with respect to an individual Short Code may result in penalties being levied against other Short Codes registered to You and/or may result in Participating Carriers restricting your ability to use the Short Code. Your strict compliance with the AUP is a material term of this Agreement.
6. Disclosure of Certain Information.
Registry Service Provider may access, use and disclose transaction information about Your use of the Service and relationship with Registry Service Provider and CTIA, to the extent permitted by law, in order to comply with the law (e.g., a lawful subpoena); to enforce or apply this Agreement; to initiate, render, bill, and collect for the Services; to protect its rights or property; or to protect users of the Services from fraudulent, abusive, or unlawful use of, the Service.
7. The Application.
a. Short Code. In order to apply for a Short Code through the Service, You must complete the Registry Service Provider's application form for each Short Code that You would like to register and pay the requisite fees set forth in Section 9 below. For each application, the person/entity listed in the "Short Code Content Provider details" must be the actual Short Code Content Provider (as defined above). Once You have submitted a completed application, Registry Service Provider will send an email confirming it has received Your application. You must retain the confirmation e-mail for each application You submit. You also may review detailed instructions to complete and submit an application by reviewing Registry Service Provider's Instructions.
b. Application Information.i. You agree to: (1) provide true, current, complete and accurate information during the application process; and (2) maintain and update that information according to Registry Service Provider's modification procedures as needed to keep it true, current, complete and accurate (such information provided by you in this sentence, "Application Information"). Any failure to immediately update Application Information by You or by any party using Short Codes registered to You will result in penalties, that may include, but are not limited to, the inability to renew Short Codes or register new Short Codes. In addition, a violation of the AUP with respect to an individual Short Code may result in penalties being levied against other Short Codes registered to You and/or may result in Participating Carriers restricting your ability to use the Short Code. CTIA or its agents may attempt to notify You in the event of any of the above penalties being imposed. Your strict observation of Your obligation to constantly maintain accurate and current Application Information is a material term of this Agreement.
ii. Delegate Users. You may appoint one or more persons as Delegate Users and provide such entities with access to Your Short Code Applications, Renewal Applications or Registrations. A "Delegate User" is a person or entity to which you have granted the right to add, delete, edit or modify Campaign data associated with Your specific Short Code Applications or Registrations for a specific Short Code registered to, or applied for by, You. The Delegate User may view, but not update non- Campaign data for any Short Code for which it has been granted access. In addition, by designating a person or persons as a Delegate User, you hereby authorize such Delegate User to submit Campaigns for review by the Registry Service Provider. You are responsible for all information submitted by a Delegate User and must ensure that information submitted by the Delegate User is true, current, complete and accurate when submitted and such information is maintained and updated as needed to keep the information true, current, complete and accurate. At all times, You are responsible for all Application Information submitted by a Delegate User. Any failure to immediately update Application Information by You or by a Delegate User may result in penalties, that may include the suspension of Short Codes registered to You until the failure is cured, termination of the Short Codes registered to You, and the inability to renew Short Codes or register new Short Codes.
c. Types of Short Codes. All applications for Short Codes are accepted by Registry Service Provider on a first-come, first-served basis. Unless You specify a specific Short Code in Your application, once Your application is deemed to be complete by the Registry Service Provider, You will be assigned a Short Code on a random basis from the pool of available Short Codes (a "Random Short Code"). A "Selected Short Code" shall mean any Short Code that You specifically request from Registry Service Provider. Selected Short Codes shall also be assigned on a first-come, first-served basis from the pool of available Short Codes. Registry Service Provider makes no representation that any specific Short Code will be available upon request. You acknowledge and agree that submission of a Short Code application or otherwise meeting the eligibility requirements for registration does not guarantee that Your application will be approved, that You will ultimately be the sublicensee of a particular Short Code, or that any Participating Carrier will accept, implement or maintain a sublicensed Short Code.
d. Right of Refusal. Registry Service Provider reserves the right, in its sole discretion, to refuse to register any Random or Selected Short Code. YOU AGREE THAT ANY AND ALL REGISTRATION FEES PAID TO REGISTRY SERVICE PROVIDER SHALL NOT BE REFUNDABLE. You agree that neither Registry Service Provider nor CTIA shall be liable for any losses or damages that may result from a refusal to register any Short Code. You acknowledge and agree that neither Registry Service Provider nor CTIA shall be liable to You or any other party in connection with claims, damages, losses, expenses or costs incurred or suffered by You as a result of actions taken or not taken by Participating Carriers.
e. Term of Short Codes. All Short Codes, whether Selected or Random, shall be available for terms of three (3), six (6) and twelve (12) months and may be renewed by You for additional three (3), six (6) and twelve (12) month periods.
f. Activating Your Short Code.REGISTERING A Short Code IN NO WAY GUARANTEES YOU THE RIGHT TO SEND OR RECEIVE COMMUNICATIONS USING YOUR Short Code OR THE RIGHT TO USE THE Short Code IN ANY OTHER MANNER. IN ORDER TO ACTIVATE YOUR Short Code, YOU MUST OBTAIN APPROVAL FROM EACH INDIVIDUAL PARTICIPATING CARRIER THROUGH WHICH YOU WOULD LIKE TO TRANSMIT CONTENT. THE TERMS AND CONDITIONS OF ALL SUCH ARRANGEMENTS WITH INDIVIDUAL PARTICIPATING CARRIERS ARE AT THE SOLE DISCRETION OF THAT PARTICIPATING CARRIER AND SHALL NOT IN ANY WAY INVOLVE REGISTRY SERVICE PROVIDER. IN ADDITION, REGISTRY SERVICE PROVIDER DOES NOT GUARANTY THAT YOU WILL BE ABLE TO RETAIN SUCH Short Code PAST THE CURRENT TERM OF YOUR REGISTRATION, EVEN IF SUCH Short Code WAS INITIALLY APPROVED OR HAS BEEN PREVIOUSLY RENEWED.
g. Expiration Grace Period. In the event that Your Short Code expires, and has not been renewed in accordance with this Agreement, You may be given an additional sixty (60) day grace period, at the discretion of the Registry Service Provider, in which to re-register such Short Code. If Registry Service Provider provides the additional grace period and you do not re-register such Short Code within that period, this Agreement shall be terminated. Upon termination or expiration of the Short Code, it may be made available to the general public after an appropriate aging period.
h. No Assignment or Transfer of the Short Code. You may not transfer or assign Your sublicense to any third party or any of Your rights or obligations under this Agreement absent the prior written approval of the Registry Service Provider. Notwithstanding the foregoing, You may assign Your sublicense to an affiliate controlled by You or an affiliate who is controlled by the same entity that controls You, or are a third party in connection with the sale of all or substantially all of Your assets to a third party successor in interest, so long as the party to which the sublicense was assigned agrees to be bound by the terms of this Agreement and you have provided Registry Service Provider with the documentation deemed necessary by Registry Service Provider to evidence the assignment.
i. Representations. You agree that You may access and use the Service for lawful purposes only and that You are solely responsible for the knowledge and adherence to this Agreement, any and all laws, statutes, rules and regulations pertaining to Your use of the Service and a Short Code, including without limitation laws related to intellectual property, defamation, publicity and privacy. You represent that (i) You intend to use and will use each sublicensed Short Code for the purpose set forth in the Application Information and not for the purpose of blocking another party from using a Short Code, (ii) neither Your registration nor use of the any sublicensed Short Code nor the manner in which You intend to use such Short Code will directly or indirectly infringe or violate the legal rights of a third party, and (iii) You have all requisite power and due authority to execute this Agreement and to perform Your obligations hereunder. You agree that You will not (i) use a Short Code in violation of this Agreement; (ii) use a Short Code to commit a criminal offense or to encourage conduct that would constitute a criminal offense or give rise to a civil liability, or otherwise violate any local, state, Federal or international law or regulation; (iii) use a Short Code to upload or otherwise transmit any content that You do not have a right to transmit under any law or contractual or fiduciary duty; (iv) interfere or infringe with any trademark or proprietary rights of any other party; (v) interfere with the ability of other users to access or use the Service; (vi) claim a relationship with or to speak for any individual, business, association, institution or other organization for which You are not authorized to claim such a relationship; (vii) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (viii) misrepresent the Service, your relationship to the Short CodeA, Registry Service Provider, or CTIA, or make false or misleading statements about the Service, including without limitation, false statements that you are the provider or administrator of Short Codes; or (viii) reproduce, duplicate, copy, use, distribute, sell, resell or otherwise exploit for any commercial purposes any portion of the Service.
j. BY REGISTERING A SHORT CODE YOU HEREBY ACKNOWLEDGE THAT YOUR USE OF SUCH SHORT CODE IS AND SHALL REMAIN IN COMPLIANCE WITH THE ABOVE. AS SUCH, YOUR SHORT CODE MAY BE SUBJECT TO FUTURE CANCELLATION, DELETION AND/OR REMOVAL IN THE EVENT THAT YOUR USE OF THE SHORT CODE IS DETERMINED TO BE IN VIOLATION OF THIS AGREEMENT.
k. Short Code Auto-renew Feature.
1. When you register a Short Code, you shall have the option of electing that the Short Code be automatically renewed ("Auto-renew") upon reaching the expiration date in accordance with the instructions (and subject to Your agreement to the terms and conditions pertaining to that process) on our Web site. The default is that the Auto-renew feature is disabled. In the event You want Your Short Code to Auto-renew, You must check the appropriate box in the Auto-renew section of the Short Code Application. Any Auto-renewal of the Short Code is subject to the Registry Service Provider's then-current terms and conditions. Once enrolled, upon expiration, and subject to any new or modified terms and conditions, Your Short Code shall Auto-renew for a period equivalent to the length of the then-expiring registration and Your credit card on file with the Registry Service Provider shall be debited the then-current rate for the renewing Short Code. Thus, if you have chosen to register your Short Code for one year, Registry Service Provider will automatically renew it for one year. If you have chosen to register your Short Code for three months, Registry Service Provider will automatically renew it for three months, and so on. Short Code renewals will be non-refundable.
2. You acknowledge and agree that the renewal price may be higher or lower than the price you paid for the then-current term of the service, and that we are authorized to charge your credit card on file for the renewal of the service(s). In any event, you are solely responsible for the credit card information you provide to the Registry Service Provider and must promptly inform Registry Service Provider of any changes thereto (e.g., change of expiration date or account number or Credit Card billing address). Registry Service Provider shall have no liability to you or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the services. In order to process the Auto-renew service, we may use third-party vendors for the purpose of updating the expiration date and account number of your credit card on file. Such third-party vendors maintain relationships with various credit card issuers and may be able to provide us with the updated expiration date and account number for your credit card by comparing the information we have on file with the information the third-party has on file. By selecting the Auto-renew service, you acknowledge and agree that we may share your credit card information with such a third-party vendor for the purpose of obtaining any update to your credit card expiration date and account number.
3. If for any reason Registry Service Provider is not able to take the payment from the credit card You have on file, Your Short Code will expire. It is Your responsibility to keep Your credit card information current, which includes the expiration date and current credit card billing address.
4. If You do not elect that the Short Code be automatically renewed, You have the responsibility of logging into Your account for that Short Code and manually implementing the renewal by the expiration date (should You in fact want the Short Code to be renewed).
5. Once enrolled in the Auto-renew service, You may opt-out of such service at any time prior to seven (7) days before the expiration of the Short Code. In such an event, You shall be solely responsible for manually renewing the Short Code in the event You wish to keep sublicensing the Short Code. Neither the Registry Service Provider nor the CTIA shall be responsible for the loss of any Short Code caused by Your failure to manually renew a Short Code if You have opted-out of the Auto-renew.
8. Registry Service Provider Reservation.
Registry Service Provider, CTIA and their agents/subcontractors reserve the right, but does not assume the obligation, to strictly enforce this Agreement by, without limitation, issuing warnings, suspending or terminating Service prior to actively investigating violations and prosecuting them in any court or appropriate venue. In addition, Registry Service Provider reserves the right to deny, cancel, transfer or otherwise make unavailable any Short Code that it deems necessary, in its sole discretion, (1) to protect the integrity and stability of the Service; (2) to comply with any applicable laws, government rules, policies or requirements, requests of law enforcement, in compliance with any dispute resolution process; (3) to avoid any liability, civil or criminal, on the part of Registry Service Provider, as well as its affiliates, subsidiaries, officers, directors, representatives, employees, and stockholders; (4) for violations of any agreement between Registry Service Provider and any third party related to the Service; (5) to correct mistakes made by Registry Service Provider, in connection with a Short Code registration.
As consideration for the Service, You agree to pay Registry Service Provider a non-refundable fee of $1,000 per month for each "Selected Short Code" and $500 per month for each "Random Short Code." Such fees are subject to change at any time by Registry Service Provider, in its sole discretion; provided, however, that the fees in effect at the time of submission of Your application for a Short Code, or at the time of renewal of Your Short Code registration, will remain in effect with respect to such Short Code registration for the period of such initial term or renewal term, as applicable. Except as set forth below, all fees for the entirety of the term shall be due and payable before assignment or renewal of the Short Code. In the event that you are eligible to participate in a separate monthly billing promotion, the payment of such fees, and only the terms and conditions surrounding the payment of such fees, shall be subject to the terms and conditions as outlined in a separate monthly billing promotion addendum entered into between You and Registry Service Provider. Participants in the monthly billing promotion remain subject to all other terms and conditions contained in this Agreement. Registry Service Provider may take all remedies to collect fees owed. In the event that You dispute any fee, or take any action to initiate a credit card chargeback for any of the fees described above, such action may result in Your sublicense of a Short Code being terminated or suspended until such time as the dispute is resolved, at which time, depending on the outcome of the dispute, the sublicense of the Short Code may be reinstated or cancelled, whichever applicable. In addition to the foregoing fees, You are responsible for all taxes associated with such fees.
You acknowledge that all right, title and interest in and to the database of Short Codes, each of the Short Codes themselves, the underlying technology used in connection with the Service, the Short Code directory, and all software, material, information, communications, text, graphics, links, electronic art, animations, audio, video, photos, and other data (collectively, the "Intellectual Property") available within the Service are the exclusive property of either the Registry or, in some instances, of licensors and/or third-party providers from whom Registry has obtained a license to use their Intellectual Property. You acknowledge that although you have a sublicense to use Short Codes for the duration of the term, you have no proprietary ownership interest in the Short Codes. You agree that You will not take any action that would cause You to acquire any trademark, trade name or trade dress rights in the Short Code. You acknowledge and agree that the registration of a Short Code does not confer immunity from objection to either the registration or use of the Short Code by a third party. Neither Registry, nor CTIA, nor any Participating Carrier is responsible in any way for any conflict or dispute with or any actual or threatened claim against You relating to a Short Code, including without limitation a claim that any use of a Short Code interferes with or infringes a registered or unregistered trademark, trade name, service mark or rights relating to a name or other identifying indicia of a third party or any other intellectual property rights or proprietary rights (including without limitation rights of publicity) of a third party or relating to the defamation or interference with the right of privacy of any third party. Except as expressly authorized by Registry or as may be posted on the Service, You may not copy, reproduce, publish, distribute, modify, create derivative works of, rent, lease, sell, transfer, display, transmit, compile or collect in a database, or in any manner commercially exploit any part of the Intellectual Property or the Service, in whole or in part. You may not store any significant portion of any Intellectual Property or the Service owned by, or licensed to Registry in any form, whether archival files, computer-readable files, or any other medium. You also may not "mirror" any Intellectual Property or the Service on any other server.
Registry Service Provider's Website may include links that lead to sites posted by independent site owners. Because Registry Service Provider does not have control over these sites, it is not responsible for such sites' accessibility via the Internet. Registry Service Provider does not endorse products, services, or information provided by such sites. As such, Registry Service Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with, use or reliance on any content, goods or services available on or through any other site. Further, the inclusion of these links does not imply that the other sites have given permission for inclusion of these links, or that there is any relationship between Registry Service Provider and the linked sites.
12. Trademark Notice; Use of Name and Logos.
CTIA@, CTIA logos, iconectiv logos, their taglines and the look, feel and trade dress of the Service are the exclusive trademarks, service marks, trade dress and logos of CTIA and iconectiv respectively. All other trademarks, service marks, trade dress, and logos used on the Service are the trademarks, service marks, trade dress, and logos of their respective owners. You authorize the Registry Service Provider and CTIA to use your name and logo to identify you as a customer in its press releases and other materials, so long as the Registry Service Provider and CTIA follow your trademark use guidelines.
13. Designated Agent.
The Digital Millennium Copyright Act, signed into law on October 28, 1998, amended the copyright law to provide limitations for service provider liability relating to material online. In compliance with such Act, Registry Service Provider has a Designated Agent to receive notice of alleged copyright infringements contained on the Service. All inquiries into alleged copyright infringement on the Service should be sent to Registry Service Provider, Attention: General Counsel
14. Local Laws; Export Control.
Registry Service Provider controls and operates the Service from its headquarters in the U.S.A. and makes no representation that the Service is appropriate or available for use in other locations. If You use the Service from other locations, You are responsible for compliance with applicable local laws, including, but not limited to, export and import regulations of other countries. Unless otherwise explicitly stated, all marketing or promotional materials found on the Service are solely directed to individuals, companies, or other entities located in the U.S.A.
15. Disclaimer of Warranty, Limitation of Liability.
YOU AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICE AND A SHORT CODE ARE AT YOUR OWN RISK. NEITHER REGISTRY SERVICE PROVIDER, CTIA, NOR EACH OF THEIR RESPECTIVE PARENTS, SUBSIDIARIES, SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBCONTRACTORS OR AGENTS WARRANT THAT THE SERVICE OR A SHORT CODEWILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR A SHORT CODE OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT WITHIN THE SERVICE. THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TESTING AND APPROVAL OF A SHORT CODE APPLICATION DOES NOT ENSURE THAT IT WILL RUN WITHOUT ERROR OR THAT IT WILL NOT OTHERWISE CAUSE HARM TO YOU, YOUR CUSTOMERS OR END USERS OR PARTICIPATING CARRIERS. IN NO EVENT WILL REGISTRY SERVICE PROVIDER, CTIA, NOR EACH OF THEIR RESPECTIVE PARENTS, SUBSIDIARIES, SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBCONTRACTORS AND AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT YOUR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE OR A SHORT CODE, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOST BUSINESS, LOST DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES THAT RESULT FROM MISTAKES, INACCURATELY ENTERED DATA, UNAUTHORIZED USE, OMISSIONS, INTERRUPTIONS, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO INSTITUTIONS RECORDS, PROGRAMS OR SERVICES. YOU AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. IN NO EVENT, SHALL REGISTRY SERVICE PROVIDER, CTIA, AND EACH OF THEIR RESPECTIVE PARENTS, SUBSIDIARIES, SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBCONTRACTORS AND AGENTS BE LIABLE TO YOU FOR ANY AMOUNT EXCEEDING THE AMOUNT OF FEES PAID BY YOU FOR A SHORT CODE REGISTRATION. THIS PROVISION SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
You agree to indemnify, defend and hold harmless Registry Service Provider, CTIA, the "Participating Carriers", and each of their respective parents, subsidiaries, shareholders, members, officers, directors, employees, affiliates and agents (each an "Indemnified Party") from any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of or relating to (a) this Agreement or the breach of Your warranties, representations and obligations under this Agreement, (b) the Service, Short Code or Your, including any Short Code Content Provider, use or nonuse of such Service or Short Code, (c) any intellectual property or other proprietary right (including without limitation right of publicity) or right of privacy of any person or entity, (d) any content transmitted or received through the Short Code, (e) a failure or inability of any end user to send or receive communications through Your Short Code, (f) a violation of any of our operating rules or policies relating to the service(s) provided, or (g) any information or data You supplied to Registry Service Provider, including, without limitation, any misrepresentation in Your application or the Short Code directory, if applicable. When an Indemnified Party is threatened with suit or sued by a third party, the Indemnified Party may seek written assurances from You concerning Your promise to indemnify the Indemnified Party; Your failure to provide those assurances may be considered by the Indemnified Party to be a material breach of this Agreement. The Indemnified Party shall have the right to participate in any defense by You of a third-party claim related to Your use of any Short Code or this Service, with counsel of its choice at its own expense. The Indemnified Party shall reasonably cooperate in the defense at Your request and expense. You shall have sole responsibility to defend the Indemnified Party against any claim, but You must receive the Indemnified Party's prior written consent regarding any related settlement. The terms of this paragraph will survive any termination or cancellation of this Agreement.
17. Modifications to the Service.
Registry Service Provider reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Registry Service Provider will not be liable to You or to any third party for any modification, suspension, or discontinuation of the Services.
a. By You. You may discontinue Your participation in and access to the Service upon at least thirty (30) days written notice to Registry Service Provider for any reason or as otherwise provided in this Agreement. This Agreement will continue to apply to all past use of the Service by You, even if You are no longer using the Service. You acknowledge and agree that Registry Service Provider may terminate or block Your use of all or part of the Service without prior notice for any reason, including, without limitation, if Registry Service Provider believes You have engaged in conduct prohibited by this Agreement.
b. By Registry Service Provider. Registry Service Provider may terminate this Agreement or any part of the Service or Your Short Code at any time (i) in the event you breach any obligation hereunder, (ii) fail to respond within ten (10) calendar days to an inquiry from Registry Service Provider concerning the accuracy or completeness of the information You submitted in Your Short Code application, (iii) if you have violated the AUP or any policy of Registry Service Provider, (iv) pending a dispute regarding Your registered Short Code or to resolve a dispute with a third party regarding Your registered Short Code, (v) if Registry Service Provider receives a court order or arbitration award requiring Registry Service Provider to delete, transfer or modify a Short Code, (vi) if you fail to keep your Application Information true, current, complete, and accurate, or (vii) if any Participating Carrier terminates Your use of a Short Code for any reason. Registry Service Provider, in its sole discretion, will determine whether or not Your conduct is consistent with this Agreement and any operating rules or policies.
c. Effect of Termination. Unless otherwise specified in writing by Registry Service Provider, You will not receive any refund for payments already made by You as of the date of termination. If termination of this Agreement is due to Your default hereunder, You shall bear all costs of such termination, including any reasonable costs Registry Service Provider incurs in closing Your account. You agree to pay any and all costs incurred by Registry Service Provider in enforcing Your compliance with this Section. You agree that upon termination or discontinuance for any reason, Registry Service Provider may delete all information related to You on the Service, if applicable.
Other than proceedings resulting from an indemnification obligation, any dispute, controversy or claim between You and Registry Service Provider, CTIA, and/or the Participating Carriers (and any of their respective parents, subsidiaries, shareholders, members, officers, directors, employees, affiliates, subcontractors or agents) arising out of or relating to this Agreement or the breach, termination, non-renewal of this Agreement or any Short Code, refusal to grant new Short Codes, or the validity of this Agreement, shall be finally settled by binding arbitration on an individual basis. The arbitration shall be conducted in accordance with the American Arbitration Association's (the "AAA") Commercial Arbitration Rules. Judgment upon the award of the arbitrator may be entered by any court of competent jurisdiction over the parties on the subject matter of this Agreement. The place of arbitration shall be the County of Loudoun, Virginia, U.S.A. The language of the arbitration shall be in English. Except as precluded by the United Nations Convention on the Recognition and Enforcements of Foreign Arbitral Awards, the internal procedural and substantive laws of Virginia and the United States Federal Arbitration Act shall govern all questions of arbitral procedure, arbitral review, scope of arbitral authority, and arbitral enforcement. The parties agree that the award of the arbitrator shall be the sole and exclusive remedy between them regarding any claims, counterclaims, issues or accountings presented or pled to the arbitrator, that the award shall be made and shall be promptly payable in U.S. dollars, free of any tax, deduction or offset, and that any costs, fees or taxes instant to enforcing the award shall, to the maximum extent permitted by law, be charged against the party resisting such enforcement.
THE PARTIES AGREE THAT ANY DISPUTE WILL BE ARBITRATED ON AN INDIVIDUAL BASIS; CLASS, REPRESENTATIVE, AND PRIVATE ATTORNEY GENERAL ARBITRATIONS AND ACTIONS ARE NOT PERMITTED. A party may bring claims against another party only in that party's individual capacity and may not participate as a class member or serve as a named plaintiff in any purported class, representative, or private attorney general proceeding. This Arbitration Provision does not permit and explicitly prohibits the arbitration of consolidated, class, or representative disputes of any form. In addition, although the arbitrator may award any relief that a court could award that is individualized to the claimant and would not affect other parties, no party may seek, nor may the arbitrator award, non-individualized relief that would affect other parties. Further, the arbitrator may not consolidate or join more than one person's claims unless all parties affirmatively agree in writing.
If any of the prohibitions in the preceding paragraph is held to be unenforceable as to a particular claim, then that claim (and only that claim) must be severed from the arbitration and brought in court.
Unless applicable law would preclude enforcement of this limitations period, no claim may be submitted by a party to arbitration in accordance with this Section 19 unless notified by the other party within one (1) year of the date on which the submitting party first knew or should have known of the existence of the facts indicating the existence of such dispute. In any dispute relating to the suspension, termination, non-renewal, or denial of an application for a Short Code due to an allegation that there has been a violation of the AUP or failure to keep Application Information true, current, complete, and accurate, the Applicant must, prior to bringing an arbitration under this section, complete the dispute resolution process offered by the CTIA and its partners, as set forth in the AUP.
20. Force Majeure.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Registry Service Provider may immediately terminate this Agreement.
21. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its principles of conflicts of law. Any matters in dispute will be determined in accordance with the internal law of the Commonwealth of Virginia, without reference to the Convention on Contracts for the International Sale of Goods. The venue for any lawsuits shall be located in the County of Fairfax in the Commonwealth of Virginia.
22. Assignment of Agreement.
Except as otherwise set forth herein, Your rights under this Agreement are not assignable or transferable. Any attempt by Your creditors to obtain an interest in Your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Registry Service Provider's option. This Agreement shall inure to the benefit of and be binding upon Registry Service Provider's successors and assigns.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decision.
No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Registry Service Provider. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach
25. Entire Agreement.
Except as otherwise set forth in this Agreement, this Agreement completely and exclusively states the agreement of the parties regarding the subject matter, and supersedes all prior agreements and understandings, whether written or oral, with respect to the subject matter of this Agreement.
ADDENDUM TO THE REGISTRANT SUBLICENSE AGREEMENT MONTHLY BILLING PROGRAM TERMS
1. Provided that Registrant complies with the terms of the Registrant Sublicense Agreement (the "Agreement") and the additional terms and conditions below, Registrant may participate in Short Code monthly billing in which Registrant shall pay the Fees described in Section 9 of the Agreement in monthly installments ("Monthly Billing Program"). The Monthly Billing Program shall only be available to Registrant for leases of new Short Codes, or renewals of currently registered Short Codes.
2. In order to participate in the Monthly Billing Program, Registrant must be registered for a minimum of five (5) Short Codes.
3. All monthly billing payments shall be paid by credit card, debit card, checks (drawn on a US bank), or by wire transfer/ACH. Should Registrant elect to pay by wire transfer/ACH, Registry Service Provider shall provide the wire transfer/ACH details upon request.
4. All payments are made monthly in advance on the first of the month.
5. In the event that there are insufficient funds or the card is refused, the Registrant will be notified and will have 72 hours to provide a replacement card number or cure the refused card; if this occurs more than once, Registry Service Provider reserves the right to cancel the Registrant's eligibility in the Monthly Billing Program immediately. In the event that payment is not received (if payment intended to be made via check or wire transfer/ACH), then Registry Service Provider reserves the right to cancel the Registrant's eligibility in the Monthly Billing Program immediately.
If Registrant defaults on credit/debit card payments, and payment to Registry Service Provider is refused by the applicable financial institutions, Registry Service Provider shall have the right to immediately terminate Registrant from this Monthly Billing Program. Upon such termination, payments of all amounts owed to Registry Service Provider shall be accelerated and become immediately due and payable to Registry Service Provider.
6. Provided Registrant is otherwise in compliance with this Agreement and this Addendum, Registrant may add additional Short Codes under the Monthly Billing Program by applying for new Short Codes or renewing existing Short Codes online through the Short Code Registry and following the procedures set forth by the Registry Service Provider to participate in the program. Registrant may add an unlimited number of Short Codes to its base, however Registrant must maintain at least five active Short Codes at any given time in order to retain the benefits of the Monthly Billing Program.
7. Registry Service Provider reserves the right to extend, modify or discontinue this Monthly Billing Program at any time at its sole discretion. Any removal, modification or termination of the Monthly Billing Program shall not affect any Short Codes already enrolled in the Monthly Billing Program, but shall apply to the renewal of existing Short Codes in the program or the addition of new Short Codes.
8. In the event that Registrant is not in compliance with any of the terms and conditions in the Monthly Billing Program, Registrant's payment obligations shall revert back to those set forth in Section 9 of the Agreement.
9. By signing up for the Monthly Billing Program, Registrant agrees to participate in the Monthly Billing Program for a minimum term of twelve (12) consecutive months (the "Initial Program Term"). At the end of the Initial Program Term, the Monthly Billing Program shall automatically renew for an additional twelve (12) months, unless Registrant provides written notice to the Registry Service Provider within thirty (30) days of its intent to cease participating in the Monthly Billing Program, in which case all Short Codes then under management by Registrant shall revert to the terms of Section 9 of the Agreement.