The terms and conditions on this page apply to both users of CLOSEM’s web-based user interface and anyone using an application programming interface (API) in connection with the CLOSEM service.
CLOSEM provides businesses and organizations with a variety of tools to collect names, phone numbers, email addresses, and other information on an opt-in basis. CLOSEM also provides a tool to help you import subscriber data. However, contact information may be imported only if the subscribers gave full consent to receive a specified type of messaging from your organization. Proof of such specific consent is required as part of the certification process before the import of contact information.
CLOSEM’s service may NOT be used for sending any unsolicited messages (aka “spam”) except in cases such as health, financial or weather-related emergencies and public safety alerts. You agree to the privacy and anti-spam policies described in this document and agree to enforce the indicated permission-based marketing practices with anyone using your account as required by law. You agree to assume full responsibility and accept the legal consequences of any action by anyone using your account.
In addition, industry regulations prohibit text-to-win campaigns by shared short code or transmitting undesirable content such as violence, pornography, alcohol, illegal drugs, and other prohibited material described in this document.
CLOSEM reserves the right, at its sole discretion and without prior warning, to suspend or terminate your account at any time if your account activity is reasonably believed to violate any term in this agreement or applicable law. Violation of applicable anti-spam regulation may also cause third-party legal action against you. CLOSEM also reserves the right to refuse service if CLOSEM believes that your conduct is harmful to the interests of CLOSEM and its affiliates. CLOSEM reserves the sole discretion and right to permanently delete archived data after 90 days.
· CLOSEM may use or disclose information about you, including your personal information, under the following circumstances:
· Customer represents and warrants that it has full authority to enter into this Agreement and consummate the transactions contemplated, and that this Agreement is not in conflict with any other Agreement to which Customer is a party or by which it may be bound.
· CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL DAMAGES ARISING FROM ITS BREACH OF ANY OBLIGATION UNDER THIS AGREEMENT INCLUDING THOSE RELATED TO ANY APPLICABLE LAW, POLICY, REGULATION OR PRIVACY LAW. IN ADDITION, CUSTOMER’S LIABILITY WILL EXTEND TO THOSE IT CONTRACTS WITH AS PART OF THE PROVISION OF CUSTOMER’S SERVICE, INCLUDING BUT NOT LIMITED TO THIRD PARTY AFFILIATES OR ANY ENTITY OR PERSON WHOM CUSTOMER DIRECTS, INSTRUCTS OR MANAGES IN AN EFFORT TO SELL OR MARKET CUSTOMER’S SERVICES AND PRODUCTS. CUSTOMER AGREES THAT A BREACH OF THIS AGREEMENT BY ANY THIRD PARTY AFFILIATE SHALL CONSTITUTE A BREACH BY CUSTOMER. EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO CLOSEM’S FAILURE TO COMPLY WITH APPLICABLE FEDERAL OR STATE LAWS, POLICY, OR REGULATION, CLOSEM’S ACTS OR OMISSIONS, OR ITS WILLFUL MISCONDUCT OR NEGLIGENCE, CUSTOMER IS SOLELY LIABLE FOR ANY ACTS OR OMISSIONS CAUSING DAMAGE OR INJURY TO CLOSEM: (I) RESULTING FROM SENDING OR TRANSMITTING ANY MESSAGES TO A PHONE NUMBER, SOCIAL MEDIA ACCOUNT, OR EMAIL ADDRESS; (II) FOR ALL CUSTOMER CONTENT, CUSTOMER SERVICES OR INSTRUCTIONS SUPPLIED BY OR ON BEHALF OF CUSTOMER THAT ARE FALSE, INCORRECT, INCOMPLETE, ILLEGIBLE, OUT OF SEQUENCE, OR IN THE WRONG FORMAT OR ARISING FROM THEIR LATE ARRIVAL OR NON-ARRIVAL, OR ANY OTHER ACT OR OMISSION OF CUSTOMER OR ANY OF ITS AFFILIATES; AND (III) FOR THE ACTS OF ANY AFFILIATES CONTRACTED OR OTHERWISE RETAINED BY CUSTOMER FOR PURPOSES COVERED BY THIS AGREEMENT.
2. PERMISSION-BASED SUBSCRIPTION REQUIREMENTS
CLOSEM has a no-tolerance policy toward spam. Although CLOSEM does not assume the duty or obligation to monitor messages, CLOSEM reserves the right, in its sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to guidelines and policies pertaining to our Website and services.
· Every outgoing email via the CLOSEM service must contain a link that allows the recipient to unsubscribe from your distribution list(s).
· All mobile messages including every SMS message must include “STOP” instructions.
· Voice broadcasts also must include verbal instructions for opting out of your calling list.
Ultimately, as the sender of messages, you are legally responsible to follow regulations such as TCPA and CTIA. This includes providing: (a) unsubscribe options and instructions (b) message frequency (c) campaign description and (d) “message and data rates may apply” disclosures on marketing materials, company website, sign up forms and any other collateral promoting your messaging campaign.
3. PRIVACY AND ANTI-SPAM POLICIES
The following terms and information (ending at “Warranty Disclaimer”) constitute an introduction to the concept of spam and the general contours of a responsible, permission-based campaign. This general information is not an exclusive source for applicable laws, guidelines, and compliance responsibilities pertaining to your use of CLOSEM’s service. In the event of any conflict between the information below and any law or industry regulation, you are to observe the applicable law or regulation.
· What is spam? Spam is any type of unsolicited message. You should not assume that an existing relationship with any message recipient constitutes permission to send messages. For example, if a customer disclosed a mobile number in the course of business but did not give you specific permission to send messages, you cannot send messages to that number. Before using CLOSEM’s service, you agree to review and abide by the following linked resources and to check for any revisions, as they may be amended over time.
· CAN-SPAM Act
· Telephone Consumer Protection Act – “TCPA”
· Cellular Telecommunications Industry Association – “CTIA”
· Mobile Marketing Association’s Best Practices
· Canadian Radio-television and Telecommunications Commission (for sending messages to Canada)
· What constitutes consent? As required by law, all message recipients must be clearly and fully notified of (1) the collection of their contact information, (2) the purpose of its collection, and (3) the use of their contact information, and they must give explicit consent prior to receiving your call or message. The required record of consent differs depending on the nature of your message. Solicitation messages require prior WRITTEN consent. You must obtain consent even if you have had prior business relations with the recipients. Purchasing a product or service from you, participating in an event with you, or “liking” or “following” your business on Facebook or Twitter does not constitute consent to receiving messages from you. If you require confirmations of opt-ins to your service but do not receive a response from a given contact, you do not have sufficient consent and may not send messages to that contact.
· What constitutes prior express written consent? If you are sending text or voice solicitations, your campaign must meet the “prior express written consent” standard. The revised TCPA rule defines prior express written consent as a signed written agreement that clearly and conspicuously discloses the following to the consumer.
o Signing the agreement authorizes the seller to deliver telemarketing messages to a designated phone number by use of an automatic telephone dialing system.
o The consumer is not required to sign the agreement or agree to enter into it as a condition of purchasing any property, goods, or services.
· As indicated in the ESIGN Act, the required signature may be obtained via email, online form, text message, telephone keypad, or voice recording. For more details on the revised TCPA regulation, click here.
· You agree that you will not access or otherwise use any third-party list of email addresses or phone numbers or otherwise engage in unsolicited messaging in connection with our service.
· You agree that you will import, add, edit, access and otherwise use in connection with CLOSEM’s service only contact information with proof, which you shall retain, of each subscriber’s’ prior express written consent to receive solicitation from you. CLOSEM reserves the right, at its sole and absolute discretion, to deny access to import functions, to impose a stringent qualification process, to require proof of consent or opt-in method, or to require documentation of your or your organization’s legal identity.
· You agree to represent truthfully your identity, the identity of your organization, your product or service, availability, pricing, benefits, and any other offering aspects to your subscribers in all messages.
· You agree to comply with all local, state, and federal regulations as well as general practices governing your content or promotion type.
4. ACCEPTABLE USE POLICY
CLOSEM reserves the right to determine any violation of this Acceptable Use Policy at its sole discretion. CLOSEM’s services may be used for only lawful purposes. Using the services in an illegal or abusive manner or any other manner that interferes with or diminishes others’ use or enjoyment of the services is prohibited.
The following list gives examples of illegal, abusive, interfering, or otherwise illicit use of the services. This list is provided by way of example and shall not be considered exhaustive.
· Adversely affecting the availability, reliability, or stability of CLOSEM’s services
· Launching or facilitating, whether intentionally or unintentionally, a denial-of-service attack on any of CLOSEM’s services
· Attempting to bypass, disable, or impair any security measure or otherwise using the services in any manner posing a security or service risk to CLOSEM, any CLOSEM client, or any of their subscribers
· Testing or reverse-engineering the services in order to evade filtering capabilities or to find limitations or vulnerabilities
· Using the services in any manner that may subject CLOSEM or any third party to liability, damages, or danger
· Using the services in any manner that violates any applicable third-party policy or requirement
· Using the services in any manner that violates the Mobile Marketing Association’s guidelines or best practices, carrier guidelines, or any other industry standard
· Promoting or engaging in any illegal activity, including but not limited to fraud, in any connection with your account
· In message transmission or any other manner violating, infringing, or misappropriating the rights of any third party, including but not limited to trademarks, copyrights, and rights of publicity
· Harvesting or otherwise collecting without consent information including but not limited to email addresses and phone numbers
· Engaging in spamming or any other activity that violates anti-spamming laws and regulations, including but not limited to the CAN-SPAM Act, the Telephone Consumer Protection Act, and the Do-Not-Call Act
· Using the services in connection with any unsolicited or unwanted transmissions (commercial or otherwise), including but not limited to phone call, text message, and voicemail
· Offering any emergency services (“emergency services” meaning any communications connection to emergency personnel or to public-safety answering points such as 911 and E911)
· Using your account to mislead others as to the identity of the sender or the origin of a message or phone call by any means including but not limited to a false identity, a misleading email address or phone number, and a forged header
· Violating or facilitating the violation of any U.S. or foreign law governing the transmission of technical data or software
· Interfering with or disrupting any network connected to CLOSEM services or violating the regulations, policies, or procedures of any such network
· Using the CLOSEM services or any component thereof in a manner not authorized by CLOSEM
5. PROHIBITED CONTENT
In addition to and without limitation to terms under the Acceptable Use Policy, CLOSEM prohibits any use of the service in connection with any of the following types of content, products, and services.
· Pornography, sexual products, otherwise sexually explicit material, and escort services
· Illegal drugs and drug contraband
· Alcoholic beverages, especially any promotion of alcohol to persons under 21 years of age
· Pirated computer programs, viruses, worms, Trojan horses, or other harmful code
· Instructions or materials for the assembly of bombs or other weapons
· Disclosure of anyone’s private or personally identifying information without such party’s prior express written consent (or parents’ prior express written consent in the case of a minor)
· Material that displays any person under 18 years of age in an illicit or otherwise exploitative manner
· On the basis of the practices and standards of your industry and community, any illegal or improper promotion to persons under 18 years of age
· Products, services, or content commonly associated with unsolicited commercial messages (a.k.a. spam), including but not limited to online and direct pharmaceutical sales (e.g., health and sexual well-being products), work-at-home businesses, credit or finance management (e.g., credit repair, debt relief, stock and trading tips), mortgage finance, claims of lost bank accounts or inheritances, and odds-making and gambling services (e.g., poker, casino games, horse and dog racing, college and professional sporting events)
· Pyramid schemes or multilevel-marketing (a.k.a. MLM or network marketing) businesses, including but not limited to “get rich quick,” “build your wealth,” and “financial independence” offerings
· Any libelous, defamatory, scandalous, threatening, or harassing activity
· Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and any discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age
· Advocation, promotion, or other encouragement of violence against any government, organization, group, or individual or any instruction, information, or assistance in causing or carrying out such violence
· Any product or service related to death (e.g., mortuaries and cemeteries)
· Any product or service that is unlawful where such product or service or promotion thereof is received
· Images of authors, artists, photographers, or others without prior express written consent form the content owner
· Any mention of any wireless carrier or any representation that copies or parodies any product or service of any wireless carrier
6. “NO REFUND” POLICY AND COLLECTIONS
Customer acknowledges and agrees that all payments made including setup fees, subscription fees, plan fees, service fees, and prepaid text message credits are non-refundable regardless of Customer’s service usage or account activity. It is the sole responsibility of Customer to utilize the CLOSEM software. By making a payment, Customer is accepting the CLOSEM software as provided at CLOSEM.ai or app.closem.ai.
Customer agrees to pay any outstanding amount for the CLOSEM software whether the CLOSEM software was or will be used. Customer may cancel service at any time, but any commitments under this Agreement, including but not limited to paying all fees herein, will remain until all obligations are met with valid payments. Customer acknowledges and agrees that any unused text message credits are also non-refundable.
This Agreement will be binding upon the Parties’ respective successor and permitted assigns. Customer may not assign this Agreement and/or any of its rights, obligations, accounts, or text message credits without the prior written consent of CLOSEM. Any attempted assignment without consent will be void and of no effect. Subject to the foregoing, all of the terms, conditions, covenants, and agreements contained under this Agreement will take effect to the benefit of, and be binding upon, any such successor corporation and any permitted assignees of the respective parties to this Agreement. It is further understood and agreed that consent by CLOSEM to such assignment in one instance will not constitute consent by CLOSEM to any other assignment. CLOSEM reserves the right to assign its rights to any of its affiliates or to any successor in interest of any business associated with CLOSEM so long as such assignee agrees to assume this Agreement and perform all of the obligations of CLOSEM set forth herein.
All disputes, claims, or controversies arising from or relating to this Agreement or the relationships which result therefrom shall be resolved by binding arbitration in California in accordance with the Rules of the American Arbitration Association. Any controversy or claim subject to this arbitration provision shall be decided by one arbitrator selected by the parties, and judgment on the award may be entered in any court having jurisdiction thereof. Each party shall bear its costs of arbitration.
No modification, amendment, delay, omission, supplement to, or waiver of this Agreement or any of its provisions, including those by custom, usage of trade, or course of dealing, will be binding on the Parties unless made in writing and duly signed by the Parties.
A failure or delay of CLOSEM to enforce at any time any of the provisions of this Agreement, or to exercise any option provided in this Agreement, or to require at any time performance of any of the provisions in this Agreement, will not be construed to be a waiver of such provision of this Agreement, nor will it excuse the other Party’s performance of such, nor affect any rights at a later time to enforce the provision.
If any provision of this Agreement is found invalid, illegal, or unenforceable by a tribunal or court of competent jurisdiction, the remaining provisions of this Agreement will remain valid and enforceable according to its terms. The invalid, illegal, or unenforceable provision will be replaced by a mutually acceptable provision which, being valid, legal, and enforceable, comes closest to the intention of the Parties. If any provision of this Agreement is held to be excessively broad as to duration, geographical scope, activity, or subject, it is to be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law.
12. WARRANTY DISCLAIMER
CLOSEM PROVIDES ITS SERVICE AND ALL RELATED CONTENT ON AN “AS IS” BASIS. CLOSEM AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, OR STATUTORY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, CLOSEM DISCLAIMS ALL WARRANTIES, INCLUDING AND WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, AND QUIET ENJOYMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WITH THE EXCEPTION OF TERMS INDICATED IN ANY SEPARATE SERVICE LEVEL AGREEMENT, CLOSEM DOES NOT WARRANT THAT ITS SERVICES OR WEBSITE WILL FUNCTION AS DESCRIBED OR WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS OR THAT ANY STORED DATA WILL BE SECURE OR SAFE FROM LOSS OR DAMAGE. ALTHOUGH CLOSEM SHALL NOT BE RESPONSIBLE FOR ANY SERVICE OR WEBSITE INTERRUPTION, CLOSEM WILL ATTEMPT TO REROUTE TRAFFIC THROUGH ANOTHER SHARED SHORT CODE IF THE PRIMARY SHORT CODE IS IMPAIRED. NO VERBAL ADVICE OR WRITTEN INFORMATION GIVEN BY CLOSEM, ITS EMPLOYEES, LICENSORS, LICENSEES, AFFILIATES, OR AGENTS OR BY ANY OTHER THIRD PARTY SHALL CREATE ANY WARRANTY. NOR MAY YOU OR YOUR SUBSCRIBERS INTERPRET ANY SUCH INFORMATION OR ADVICE AS SUCH REPRESENTATION.
You agree that CLOSEM has the right to seek and recover all of its damages caused by you through any use of the service in an unlawful manner, in a manner that violates CLOSEM’s privacy, acceptable use, import, or anti-spam policies, or in a manner inconsistent with the terms of this agreement. You acknowledge that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance, and consequential damages. You acknowledge and agree that this provision will apply to all services from CLOSEM and its affiliates whether or not CLOSEM is notified of any possibility of such damages. The terms of this section shall survive the termination of this agreement regardless of the cause or nature of such termination.
You may terminate this agreement at any time by submitting a support ticket through CLOSEM’s user interface. Service may not be cancelled by any other method such as phone, email, or letter.
Lack of activity alone does not automatically terminate your account, and you are responsible for service fees until you expressly cancel your account or until your data has been purged (whichever occurs first). CLOSEM may delete any of your account data and reserves the right to deactivate any short codes, long codes and/or toll free numbers that you have obtained/leased through or from CLOSEM. In the absence of an explicit cancellation request by support ticket, you agree to pay any and all applicable fees through the date of CLOSEM’s purging of your data. You understand and agree that CLOSEM will make no refund of any fees whether or not the service has been used.
At any time, with or without notice, CLOSEM may terminate this agreement or the service or disable your account in whole or in part at CLOSEM’s sole discretion. CLOSEM shall bear no liability to you or any third party because of any such action.
You hereby acknowledge and agree to the following terms, subject in each case to the terms indicated elsewhere in this agreement.
· The service will be subject to monthly or yearly software license fees
· Some features may not be permissible under the laws of certain jurisdictions. You agree that you bear sole control and responsibility over compliance with any such laws and assume sole liability for any noncompliance.
· CLOSEM is not required to provide data outside the system that are already available through the user interface, including but not limited to exported files containing specific messages, subscriber phone numbers, and opt-out lists.
· You are not allowed to import or incorporate (into any contact list, message, social campaign) or upload (to CLOSEM servers) any of the following information: social security numbers, national insurance numbers, credit card numbers, passwords, security credentials, or sensitive personal or medical information of any kind.
· If any provision of this agreement is found to be unenforceable or invalid, such provision shall be limited or annulled to the minimum necessary extent to leave the remainder of this agreement fully enforceable and valid.
· You and CLOSEM agree that this agreement is a factual and necessary statement of the mutual understanding and working relationship of the parties and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No verbal exception or agreement with any CLOSEM representative will be honored. No delay or omission by CLOSEM in exercising any right or remedy under this agreement or existing at law or equity shall be considered a waiver of such right or remedy.
· No agency, partnership, joint venture, or employment is created as a result of this agreement, and you have no authority of any kind to bind CLOSEM in any respect whatsoever.
· In any action or proceeding with you to enforce CLOSEM’s rights under the Agreement, you agree that CLOSEM will be entitled to recover its costs and attorneys’ fees.
· The agreement shall be governed by the laws of the State of California, without regard to its choice of law or conflict of law’s provisions. All legal actions in connection with the agreement shall be brought in the state or federal court located nearest Los Angeles, California.
· CLOSEM reserves the right to refuse, suspend, disable, or terminate any party’s service, in whole or in part, at any time, for any reason, and without notice. CLOSEM shall bear no liability to you or any third party for any direct, indirect, incidental, special, or consequential damages due to any manner of use or inability to use service elements including but not limited to short codes, mobile keywords, online signup pages, API keys, login access, the control panel, and email servers.
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