SMSBAT.COM Terms of Service

Trend Store 1995, Ltd (“SMSBAT.COM,” “we” or “our”) provides URL shortening, custom-branded link, and link management and analytics products and services to its users (collectively, the “SMSBAT.COM Services”). Please read these Terms of Service (the “Agreement”) carefully, as they govern your access to and use of the SMSBAT.COM Services and constitutes a binding legal agreement between you and SMSBAT.COM. If you accept this Agreement or use the SMSBAT.COM Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you”, “your” and “Customer” will refer and apply to that company or other legal entity. If you have been granted access to and use of the SMSBAT.COM Services by and on behalf of the primary account holder, whether directly or through an administrator, you also agree to abide by this Agreement. In addition to this Agreement, Customer’s use of the SMSBAT.COM Services is governed by the SMSBAT.COM Privacy Policy and SMSBAT.COM’s DMCA Copyright Policy.

YOU ACKNOWLEDGE AND AGREE THAT, BY CREATING A SMSBAT.COM ACCOUNT, PURCHASING A PAID ACCOUNT, OR ACCESSING OR USING THE SMSBAT.COM SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SMSBAT.COM SERVICES.

THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER AS DESCRIBED IN THE ARBITRATION SECTION BELOW. YOU AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

1. SCOPE & MODIFICATIONS
   1. Modifications. SMSBAT.COM reserves the right, in its sole discretion, to modify or replace this Agreement at any time. If we modify these Terms, we will post the modification on our site or provide you with notice of the modification on your SMSBAT.COM Account Details page. By continuing to access or use the SMSBAT.COM Services after the effective date of the modification, you are indicating that you agree to be bound by the modified Agreement. Customer agrees that it is Customer’s responsibility to check this Agreement periodically for changes and that its use of the SMSBAT.COM Services following the posting of any changes to this Agreement constitutes acceptance of those changes. If the modified Agreement is not acceptable to you, your only recourse is to cease using the SMSBAT.COM Services.
   2. Scope & Current Offerings. As of the Effective Date, SMSBAT.COM offers certain SMSBAT.COM Services to Customer. SMSBAT.COM may add, remove, suspend, discontinue, modify or update the SMSBAT.COM Services at any time, at its discretion. After the effective date of such update, SMSBAT.COM shall bear no obligation to run, provide or support legacy versions of the SMSBAT.COM Services.
   3. SMSBAT.COM Enterprise Customers. If you have purchased a SMSBAT.COM Enterprise Plan, these terms may be supplemented or modified by a supplemental enterprise agreement and one or more order forms, the terms of which will control to the extent they conflict with these Terms.
   4. Support, Uptime & Training. The training and level of customer support for the tier of SMSBAT.COM Services you purchase is set forth on the SMSBAT.COM Services pricing page.
2. PAID ACCOUNTS
   1. Fees. SMSBAT.COM offers fee-based SMSBAT.COM Services that provide additional features and functionality. Pricing and services for paid accounts are described on SMSBAT.COM’s Services pricing page and may be updated from time to time. If you sign up for a paid account, you agree to pay SMSBAT.COM all applicable fees for the tier of SMSBAT.COM Services according to your selection. Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement.
   2. Auto-renewals and Trials. If your account is set to auto-renew or is in a trial period and you have already provided a method of payment to SMSBAT.COM for the Services, SMSBAT.COM will charge your payment account automatically at the end of the trial or beginning of each renewal term for the renewal term, unless you notify us that you want to cancel or disable auto-renewal before the expiration of the then-current term. You may terminate the Agreement in your account’s Account Details page, or, if you purchased your Service through a SMSBAT.COM account representative by contacting your SMSBAT.COM account representative. If you are on a paid account plan lasting twelve (12) months or longer, we will notify you within 30 days before your account renews, including any changes in the Fees for the plan.
   3. Payment. Customer will pay SMSBAT.COM invoices on the payment interval selected. If not otherwise specified, payments will be due immediately. Customer authorizes SMSBAT.COM to charge Customer for all applicable Fees using Customer’s selected payment method through SMSBAT.COM’s online payments platform. Customer will provide complete and accurate billing and contact information to SMSBAT.COM. SMSBAT.COM may suspend or terminate the Services if Fees are past due. Unpaid Fees are subject to a finance charge of one percent (1.5%) per month (18% per annum), or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
   4. Taxes. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”), and Customer is responsible for all Taxes resulting from this Agreement or Customer’s use of the SMSBAT.COM Services. SMSBAT.COM will invoice Customer for Taxes when required to do so by applicable law, and Customer agrees to provide payment under the terms of the invoice. In the event Customer is required by law to deduct and withhold any Taxes on amounts payable under this Agreement, any amounts required to be withheld will be promptly deducted and timely remitted by the Customer on behalf of SMSBAT.COM to the appropriate taxation authority and Customer agrees that it will provide SMSBAT.COM with copies of all necessary documents (including but not limited to tax receipts received from the applicable tax authority) in order for SMSBAT.COM to claim and receive a foreign tax credit in an amount corresponding to the amount withheld by the Customer.
   5. Downgrades. SMSBAT.COM reserves the right to downgrade, suspend or terminate Customer’s access to any or all SMSBAT.COM Services if Fees are past due.
3. LICENSE, METRICS AND COMPLIANCE;
   1. License to SMSBAT.COM Services. Subject to the terms and conditions of this Agreement and payment of all Fees due hereunder, SMSBAT.COM grants Customer, and any other party agreed in an Order Form, a limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to use the SMSBAT.COM Services solely to shorten uniform resource locators (“URL”), receive certain SMSBAT.COM Link Metrics (defined in SMSBAT.COM’s Privacy Policy) and, for Enterprise Plan Customers, to utilize the other products and services defined on the applicable Order Form during the Term.
   2. SMSBAT.COM Link Metrics. As part of the provision of SMSBAT.COM Services, SMSBAT.COM collects and generates SMSBAT.COM Link Metrics, which are described in SMSBAT.COM’s Privacy Policy. Certain, limited SMSBAT.COM Link Metrics are published on SMSBAT.COM’s website. Customer acknowledges and agrees that all SMSBAT.COM Link Metrics are owned by SMSBAT.COM, and that SMSBAT.COM has the right to use, license, sell or otherwise dispose of SMSBAT.COM Link Metrics as detailed in SMSBAT.COM’s Privacy Policy. SMSBAT.COM does not make all SMSBAT.COM Link Metrics available to Customer. Customer may access, use, and copy the limited SMSBAT.COM Link Metrics we make available to Customer according to the Customer’s service tier. Customer may not combine any SMSBAT.COM Link Metrics with any personally identifiable information and may not sublicense, sell, syndicate or otherwise share SMSBAT.COM Link Metrics with any third party.
   3. Access Credentials. SMSBAT.COM shall provide Customer with non-transferable access credentials for the SMSBAT.COM Services. Customer shall not (i) misrepresent or mask identities when using the SMSBAT.COM Services or seeking access credentials; (ii) select or use as a username or Branded Short Domain a name subject to any rights of a person or entity other than Customer without appropriate authorization; (iii) select or use, as Customer’s username or Branded Short Domain, a name that is otherwise offensive, vulgar or obscene; or (iv) exceed any access permitted by SMSBAT.COM. Customer shall safeguard all access credentials provided by SMSBAT.COM and shall ensure the confidentiality and security thereof. To the extent Customer is a corporate entity rather than an individual (1) only employees and contractors of Customer (“Personnel”) may use the SMSBAT.COM Services; (2) Customer shall require its Personnel to comply with all Laws and the use restrictions (including user seat restrictions) set out in the Agreement or otherwise prescribed by SMSBAT.COM and shall not share access credentials to exceed the user limitations of the service tier Customer has purchased; (3) Customer represents and warrants that its Personnel have the capacity and authority to enter into this Agreement; and (4) Customer acknowledges that it shall be fully responsible for any acts or omissions of its Personnel, whether authorized or unauthorized. SMSBAT.COM may update, refresh or change the manner of accessing the SMSBAT.COM Services in its discretion.
   4. Compliance Monitoring. SMSBAT.COM may monitor Customer’s use of the SMSBAT.COM Services for compliance with the Agreement. If SMSBAT.COM observes usage of the SMSBAT.COM Services that it believes are not in compliance with the Agreement, SMSBAT.COM will notify the Customer and give the Customer five (5) business days to remedy its non-compliance. If Customer does not remedy its non-compliance within five (5) business days, SMSBAT.COM reserves the right to suspend or terminate Customer’s use of the SMSBAT.COM Services. SMSBAT.COM reserves the right to suspend Customer’s use of the SMSBAT.COM Services without notice in the event that it believes, in good faith, the security of Customer’s SMSBAT.COM account has been compromised, or the Customer’s SMSBAT.COM account is being used for an unlawful purpose. And may suspend or terminate Customer’s access to the Services without notice for violation of the Agreement.
4. INTELLECTUAL PROPERTY & LICENSE RESTRICTIONS
   1. Ownership. Except for any Customer Content or Customer Services, Customer acknowledges and agrees that SMSBAT.COM is the sole and exclusive owner of all right, title and interest in and to the SMSBAT.COM Services and SMSBAT.COM Link Metrics and all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof (“SMSBAT.COM Materials”). Nothing in this Agreement or any other document shall be deemed to transfer ownership of the SMSBAT.COM Materials. Except for the limited license rights expressly granted herein, no rights to SMSBAT.COM Materials are granted hereunder and all rights in such SMSBAT.COM Materials are reserved.
   2. Feedback. Customer is not required to provide any suggestions, enhancement requests, recommendations or other feedback regarding the SMSBAT.COM Services or SMSBAT.COM Link Metrics (“Feedback”). However, if Customer does so, all right, title and interest in and to such Feedback shall be assigned to, and shall become the sole and exclusive property of, SMSBAT.COM upon its creation.
   3. License Restrictions. Customer shall not share access credentials to exceed the user limitations of the service tier Customer has purchased. Customer and its Personnel shall not, and shall not permit any third party to: (i) access the Services or export data from the Services to create a service, software, documentation or data for a URL shortening service other than SMSBAT.COM or create shortened links or a service that is competitive with, substantially similar or confusingly similar to any aspect of the SMSBAT.COM Services or SMSBAT.COM Link Metrics; (ii) use, modify, display, perform, copy, disclose or create derivative works of the SMSBAT.COM Services except as expressly permitted herein; (iii) reverse engineer, decompile, disassemble, mimic, screen-scrape, frame or mirror the SMSBAT.COM Services or SMSBAT.COM Link Metrics, or use any other means to attempt to discover their source code except as expressly permitted herein; (iv) benchmark, encumber, distribute, sublicense, assign, share, sell, rent, lease, pledge or otherwise transfer the SMSBAT.COM Services or SMSBAT.COM Link Metrics to any third party; (v) transmit harmful, disabling or malicious code or devices, or infringing, defamatory, unlawful, tortious, deceptive, misleading, fraudulent, abusive, indecent or otherwise offensive content, or content that contains someone’s personal information or violates a third party’s intellectual property, privacy or publicity rights (“Prohibited Content”) through the SMSBAT.COM Services; (vi) access via automated or unauthorized means, interfere with, disrupt or attempt to monitor, override access or circumvent security measures for, the SMSBAT.COM Services or SMSBAT.COM Link Metrics or related systems, including via robots, spiders and other electronic methods; and (vii) obscure, remove or alter any proprietary rights or other notices on the SMSBAT.COM Services or SMSBAT.COM Link Metrics. Notwithstanding anything to the contrary herein, SMSBAT.COM may, in its sole discretion, immediately revoke the grant of rights set forth in Section 3 if Customer breaches or threatens to breach the restrictions in this Section or creates other security or legal concerns. Customer hereby agrees that SMSBAT.COM will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of Customer’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.
   4. Technical Restrictions. Customer shall not exceed the number and/or frequency of API calls, concurrent URL shortens or other access to or use of SMSBAT.COM Services in the relevant documentation or as otherwise provided by SMSBAT.COM in an Order Form. If SMSBAT.COM believes that Customer has attempted to exceed or circumvent these limitations, SMSBAT.COM may suspend or block Customer’s access to the SMSBAT.COM Services. SMSBAT.COM may monitor Customer’s use of the SMSBAT.COM Services, including to ensure Customer’s compliance with this Agreement.
   5. Open Source Software. SMSBAT.COM Services may incorporate software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge (“Open Source Software”). To the extent any Open Source Software license terms are inconsistent with this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights granted in this Agreement, but solely with respect to such Open Source Software. Any applicable Open Source Software license is solely between Customer and the applicable licensor of the Open Source Software and Customer shall comply with the applicable Open Source Software license.
   6. Third Party Materials. SMSBAT.COM Services may utilize third party software or source code, including without limitation Open Source Software (“Third Party Materials”). SMSBAT.COM has no control over Third Party Materials. Accordingly, SMSBAT.COM is not responsible or liable for any Third Party Materials. While SMSBAT.COM has no obligation to monitor Third Party Materials, SMSBAT.COM may remove or modify such Third Party Materials in its discretion, including without limitation to comply with Law. Customer agrees to comply with all terms and conditions and privacy policies related to any Third Party Materials.
   7. Trademarks. SMSBAT.COM grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use SMSBAT.COM’s names, logos, designs, and other trademarks incorporated into the SMSBAT.COM Services (“SMSBAT.COM Marks”) during the Term and solely for the purposes of displaying such notice as part of the SMSBAT.COM Services. Customer recognizes the validity of the SMSBAT.COM Marks and SMSBAT.COM’s ownership and title thereto. Any goodwill derived from the use of the SMSBAT.COM Marks by Customer shall inure to the benefit SMSBAT.COM. Customer will not challenge the SMSBAT.COM Marks, or SMSBAT.COM’s ownership and title thereto, or the USPTO application or registration thereof, either during or subsequent to the term of this Agreement. Customer shall execute such documents as may be reasonably requested by SMSBAT.COM, or required by law, to establish SMSBAT.COM’s sole and exclusive ownership and rights in the SMSBAT.COM Marks, or to obtain registration thereof. Customer agrees to use the SMSBAT.COM Marks consistent with SMSBAT.COM’s Brand Assets it makes available at https://smsbat.com/press.html, so as to protect and maintain the SMSBAT.COM Marks and SMSBAT.COM’s rights therein. To this end, SMSBAT.COM shall have the right to revoke the license granted in this Section and/or to review and approve the manner of use of the SMSBAT.COM Marks, and Customer agrees to modify the use of any SMSBAT.COM Marks which do not meet SMSBAT.COM’s standards. Notwithstanding the foregoing, Customer may not use any SMSBAT.COM Marks in any manner implying any partnership with, sponsorship by, or endorsement by SMSBAT.COM.
5. CUSTOMER SERVICES, CONTENT AND INFORMATION
   1. Customer Services. SMSBAT.COM shall have no liability for any Customer product or service accessed through or making use of the SMSBAT.COM Services or any end user, customer or Personnel’s use thereof (“Customer Service”). Customer shall not use the SMSBAT.COM Services in any manner implying any partnership with, sponsorship by, or endorsement of the Customer Service by SMSBAT.COM. Customer shall not suggest or imply that SMSBAT.COM is the author of or otherwise responsible for the views or content of the Customer Service. The SMSBAT.COM Services shall not be used in connection with any Prohibited Content, or any activities where the use or failure of the SMSBAT.COM Services could lead to death, personal injury or property or environmental damage or adversely impact or impose liability on SMSBAT.COM in any manner.
   2. Customer Content. Customer hereby grants to SMSBAT.COM an irrevocable, perpetual, non-exclusive, sublicensable, transferable, royalty-free, worldwide license, to use, copy, import, display, reproduce, perform, distribute, create derivative works, alter or modify all URLs and other information provided by Customer to SMSBAT.COM (“Customer Content”) in connection with the provision, operation and promotion of the SMSBAT.COM Services, creation of SMSBAT.COM Link Metrics and for other business purposes. SMSBAT.COM’s collection, use and sharing of personal information SMSBAT.COM receives from Customer or third parties (including social media networks) is described SMSBAT.COM’s Privacy Policy. As stated in our Privacy Policy, where permitted by law, if you register a SMSBAT.COM Account with an email address on a domain owned by an organization, such as your employer, we may share your email address and information about your Account with our sales team and the business to explore the business’ interest in creating or managing an enterprise account or for related purposes.
6. REPRESENTATIONS AND WARRANTIES
   1. Customer Content Warranties. Customer represents and warrants that Customer Content and all information on which the SMSBAT.COM Link Metrics are based, and the receipt, collection, use and provision thereof, shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (ii) the Customer Content, and any information on which the SMSBAT.COM Link Metrics are based, was received, collected, used and provided to SMSBAT.COM in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions (“Laws”); (iii) it has obtained all necessary consents, approvals or other authorizations or permissions for, and has complied with its posted privacy policies and all third-party terms and conditions or privacy policies in connection with, its receipt, use and/or provision of the Customer Content and all information on which the SMSBAT.COM Link Metrics are based; and (v) that none of the Customer Content or information or data on which the SMSBAT.COM Link Metrics are based contains any personally identifiable information or persistent identifiers from individuals under the age of 13.
   2. Further Customer Warranties. Customer further represents and warrants that (i) it has implemented or contractually required industry-standard security measures to help protect the security and integrity of, and prevent, unauthorized access to the SMSBAT.COM Services or SMSBAT.COM Link Metrics, Customer Content and Customer Services; (ii) it will not do anything that will make the SMSBAT.COM Services subject to any open source or similar license which creates an obligation to grant any rights in the SMSBAT.COM Services; (iii) it will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the SMSBAT.COM Services or SMSBAT.COM Link Metrics; (iv) in the event of any security breach or unauthorized access to any SMSBAT.COM Services, SMSBAT.COM Link Metrics, Customer Content and Customer Services, Customer will immediately investigate such breach and notify SMSBAT.COM in writing, and, unless otherwise notified by SMSBAT.COM, take all corrective action necessary to remedy such breach and/or comply with applicable Law and the requirements of SMSBAT.COM, all at Customer’s cost; and (v) Customer, Customer’s use of the SMSBAT.COM Services, the Customer Content and Customer Services will comply with all Laws and not violate or infringe upon any third party intellectual property, privacy or publicity rights.
   3. SMSBAT.COM DISCLAIMERS. SMSBAT.COM SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SMSBAT.COM DOES NOT WARRANT THAT: (I) THE SMSBAT.COM SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) SHORTENED URLS, THE SMSBAT.COM SERVICES AND SMSBAT.COM LINK METRICS WILL BE ACCURATE, ERROR-FREE OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) THE SMSBAT.COM SERVICES ARE SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE RESULTS OF USING THE SMSBAT.COM SERVICES OR SMSBAT.COM LINK METRICS WILL MEET CUSTOMER’S REQUIREMENTS OR ANY OF ITS OR ITS USERS’, PERSONNEL’S OR CUSTOMERS’ BUSINESS NEEDS; OR (V) THE SMSBAT.COM SERVICES WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. CUSTOMERS USE OF THE SMSBAT.COM SERVICES AND SMSBAT.COM LINK METRICS IS SOLELY AT ITS OWN RISK. FURTHER, SMSBAT.COM MAKES NO REPRESENTATIONS OR WARRANTIES AND SHALL ASSUME NO LIABILITY AMOUNTS OR INDEMNITY OBLIGATIONS WITH RESPECT TO ENSURING THAT CUSTOMER’S USE OF THE SMSBAT.COM SERVICES AND SMSBAT.COM LINK METRICS COMPLY WITH ANY LAWS OR REGULATIONS OUTSIDE THE UNITED STATES AND CUSTOMER SHALL BE SOLELY LIABLE FOR SUCH COMPLIANCE. SMSBAT.COM SHALL BEAR NO RESPONSIBILITY FOR THIRD PARTY PRODUCTS OR SERVICES (E.G., OPEN SOURCE SOFTWARE, SOCIAL MEDIA PLATFORMS, THIRD PARTY MATERIALS OR FOR HOST OR APP STORE PROVIDERS). CUSTOMER RECOGNIZES THAT THE FIGURES CONTAINED IN THE SMSBAT.COM LINK METRICS PRODUCED HEREUNDER ARE ESTIMATES AND MAY BE SUBJECT TO STATISTICAL ERROR. SMSBAT.COM DOES NOT WARRANT THAT THE SMSBAT.COM LINK METRICS WILL BE COMPLETELY CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE. SMSBAT.COM HEREBY DISCLAIMS ANY LIABILITY FOR ANY USE OR RELIANCE ON THE SMSBAT.COM LINK METRICS BY CUSTOMER AND THIRD PARTIES.
7. INDEMNIFICATION AND RESPONSIBILITY
   1. Customer Indemnification. Customer will defend, indemnify and hold harmless SMSBAT.COM, its parents, subsidiaries, affiliates and their employees, officers, directors, representatives, contractors, customers, business partners, successors and assigns (“SMSBAT.COM Indemnitees”) from and against any third party claims and actions, and resulting damages, liabilities and costs (including reasonable attorneys’ fees and expenses) incurred by SMSBAT.COM Indemnitees arising out of or directly or indirectly related to (a) the Customer Content, Customer Services or any other Customer products and services; (b) Customer’s acts and omissions hereunder, breach of this Agreement, or violation of Laws; and/or (c) any allegation of intellectual property, privacy or publicity infringement concerning Customer Content or Customer Services. SMSBAT.COM shall promptly notify Customer of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not vitiate Customer’s indemnification obligations unless Customer is materially prejudiced thereby. Customer shall have sole control over the defense of any claim under this Section, except that SMSBAT.COM may approve any counsel used by Customer and that SMSBAT.COM may participate in the defense, at Customer’s cost. All settlements of indemnification claims require the consent of SMSBAT.COM.
8. LIMITATION OF LIABILITY
   1. LIABILITY LIMITATION. IN NO EVENT SHALL SMSBAT.COM BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SMSBAT.COM SERVICES, SMSBAT.COM LINK METRICS OR OTHERWISE HEREUNDER FOR ANY CLAIM RELATED TO (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (III) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SMSBAT.COM SERVICES; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CUSTOMER CONTENT AND OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH CUSTOMER’S USE OF THE SMSBAT.COM SERVICES; (V) CUSTOMER’S FAILURE TO PROVIDE SMSBAT.COM WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (VI) ANY LIABILITY RESULTING FROM CUSTOMER’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (VII) CUSTOMER’S FAILURE TO ACCESS THE SMSBAT.COM SERVICES DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY CUSTOMER; OR (VIII) AMOUNTS FOR ALL CLAIMS HEREUNDER IN THE AGGREGATE IN EXCESS OF $100.00.
9. TERM AND TERMINATION
   1. Agreement Term. This Agreement shall commence on the date the Customer accepts this Agreement by creating an account or purchasing a paid service tier (“Effective Date”) and remain in effect for the duration of the term selected by Customer, unless otherwise terminated as permitted herein (“Initial Term”). If your paid account is set to automatically renew, please see section 2(B) above for the auto-renewal terms.
   2. Right to Terminate. SMSBAT.COM may terminate this Agreement immediately in its discretion. Upon expiration or termination of this Agreement, all applicable rights and access granted to Customer shall automatically terminate and Customer and its Personnel shall cease any further use of the SMSBAT.COM Services and return, or, if directed by SMSBAT.COM, destroy, all Confidential Information of SMSBAT.COM. Any Section of this Agreement which by its nature would survive such expiration or termination shall so survive.
10. GOVERNING LAW & DISPUTES
    1. Governing Law. This Agreement and the transactions contemplated hereby shall be governed by and construed under the Federal Arbitration Act and the laws of the State of New York without regard to the conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
    2. Limitation for Bringing Claims. To the fullest extent permitted by law, Customer agrees any Customer claim or cause of action arising out of, related to or connected with the use of the SMSBAT.COM Services, SMSBAT.COM Link Metrics or this Agreement must be filed within one (1) year after such claim of action arose or be forever banned.
    3. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and SMSBAT.COM agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms of Service, and that you and SMSBAT.COM are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Service.
       1. Exceptions and Opt-out. As limited exceptions to this Dispute Resolution section (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. This Arbitration Agreement does not apply to individuals located in the European Economic Area.
       2. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”). If you are an individual, the arbitration will be conducted under the AAA’s Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms of Service. If you enter these Terms of Service on behalf of an organization, the arbitration will be conducted under the AAA’s Commercial Arbitration Rules. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
       3. If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
       4. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the applicable AAA Rules. If you are an individual, we’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
       5. Class Action Waiver. YOU AND SMSBAT.COM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
       6. If SMSBAT.COM changes any of the terms of this “Dispute Resolution” Section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by sending us written notice (including by email to support@smsbat.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of SMSBAT.COM’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and SMSBAT.COM in accordance with the terms of this “Dispute Resolution” section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
       7. Severability. With the exception of any of the provisions in Section 20(e) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms of Service is invalid or unenforceable, the other parts of these Terms of Service will still apply.
11. MISCELLANEOUS
    1. Relationship of the Parties. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
    2. Entire Agreement and Severability. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between the parties with respect thereto, including any non-disclosure agreements signed by the parties. Except as may be modified in writing by the parties, including by a SMSBAT.COM Enterprise Supplemental Agreement, no additional or conflicting terms set out on Customer order, invoice, statement or other document, or contained in any “shrinkwrap” or “clickwrap” agreements, are binding. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    3. Force Majeure. Except for any Fees due hereunder, neither party shall not be liable for any delay in performing or failure to perform its obligations hereunder where such delay or failure results from any cause beyond its reasonable control, including, without limitation, cyber-attacks, mechanical, electronic or communications failures, acts of God, terrorism, war, natural disasters, failure of any telecommunications or transportation or of any third party provider or supplier (e.g., host or app store providers) or labor disputes.
    4. Assignment. Except to an affiliate or in the event of a merger, acquisition or other change of control, neither party may assign this Agreement without the prior written permission of the other party, and any attempt to do so is void. This Agreement shall be binding on any permitted successors and assigns.
    5. Notices. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing to the addresses listed above and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
    6. Headings; Interpretation. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation.”
    7. Export. The parties shall comply with all applicable export and import control laws and regulations, and, in particular, shall not export or re-export the SMSBAT.COM Services without all required United States and foreign government licenses.
    8. General. The failure of SMSBAT.COM to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of SMSBAT.COM. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

Publicity

Customer grants SMSBAT.COM the right to use Customer’s logos or trademarks in marketing or publicity materials and on its website to identify Customer as a customer that uses the SMSBAT.COM Services.

Effective Date: May 10, 2022

If you have any questions about these Terms, please contact us at support@smsbat.com