1. The Service
The “Service” includes a) the site b) the on demand application related to your account c) your account specific support portal and contact widget d) Textpop API to integrate with third party applications d) related content for the plan purchased, including all software data, sounds, images, PDFs, videos, and any other content made available to the end by Textpop. Any new features added to or augmenting the Service are also subject to the Terms and conditions (hereinafter also referred to as: “the Terms”).
2 Acceptance of Terms
2.1 Textpop provides its service to you through its website, www.textpop.io, and individual Textpop accounts created for you, the customer, as outlined above.
2.2 By accepting these Terms or accessing Textpop provided URLs, you acknowledge that you have read, understood and agreed to be bound by the following terms, and that representations made by you on http://www.textpop.io are accurate, complete and within your rights to make. If you are entering into these Terms on behalf of an employer or third party, you represent that you have authority to bind that entity to these Terms. If you do not have such authority or do not agree to the Terms, you are not allowed to use the Textpop service.
2.3 The Textpop service is only available for business customers. If you are not a business entity but a private individual, you are not allowed to use the Textpop service.
2.4 You acknowledge that these Terms constitute an agreement between Textpop and yourself and that your electronic signup acts as a legally binding agreement.
3.1 Textpop reserves the right to terminate or modify the service at any time, without prior notification.
3.2 The Service is provided on an “as is” and “as available” basis without any warranty or condition, either express, implied or statutory.
3.3 Textpop makes no claims that the service will be uninterrupted or error-free and customers use the application at their own risk. However, if the application will be unavailable due to planned maintenance we will endeavour to notify all users at least 24 hours in advance.
3.4 You agree, as a customer, not to license, resell, lease, transfer or distribute the service to any third party.
3.5 You agree, as a customer, not to use Textpop for unlawful purposes, such as infringing privacy, data ownership or intellectual property rights.
3.6 You agree to act within anti-spam policy guidelines for your country and shall not use Textpop to transmit unsolicited mail.
3.7 As a customer of Textpop you acknowledge that Textpop is the proprietor of the software and you do not have the right to adapt, hack, or reverse engineer the source code of the software.
3.8 You are responsible for the data stored in your Textpop account, and for all data, be it email, chat or social media messages, sent from your Textpop account. Textpop does not take responsibility for any racist, libel or defamatory messages (chat, email or social media) sent from the Textpop application, and you indemnify Textpop from any damages relating to such an occurrence.
3.9 You agree to keep your login information confidential, and to restrict each login to one person. A single user account cannot be shared by multiple people.
3.10 Textpop reserves the right to cancel the account of a customer immediately, and without warning, if the customer infringes the above Terms. If, at Textpop’s sole discretion, we determine the customer has abused their access rights to the Textpop application termination without warning will take effect immediately.
4 Our responsibility to you, the customer. Data privacy & security
4.1 In providing you the service we shall maintain all reasonable administrative and technical safeguards to protect the security, confidentiality and integrity of your data.
4.2 Textpop will only access your account upon your request for technical assistance. You will be asked to provide explicit consent each time an employee of Textpop needs to access your account. No employee of Textpop will access your account without prior permission, unless required to do so by law.
5 Intellectual property rights
Textpop shall maintain all rights, title and interest in our respective patents, inventions, copyrights, trademarks, domain names, and any other intellectual or property and/or proprietary rights . The rights granted to you to use the Service do not convey, by extension, any title to patents, inventions, copyrights, trademarks, domains name or any other intellectual property owned by Textpop.
Any feedback, enhancement suggestions or recommendations received from you can be incorporated into the Textpop service: worldwide; royalty-free; in perpetuity; and to any other Textpop product(s) by transfer. You cannot claim any rights to these incorporations, either now or in the future.
6 Third party services
6.1 To deliver our service to you, Textpop may utilize third party services.
Your acceptance of these services confirms your compliance with the Terms and conditions of these third party services. Textpop is not responsible for, nor does it endorse, the governance of your rights by third party companies. Textpop is not liable for any damage or loss attributed to, or connected to, your access of a third party’s services.
6.2 In the delivery of the Textpop WA-Connector service, Textpop depends on the possibilities that WhatsApp Inc. offers to make a successful connection to the WhatsApp Messenger platform. WhatsApp Inc. can take technical or legal actions that may result in a non-functioning or defective functioning of the Textpop WA-Connector service. Textpop can therefore not guarantee the (uninterrupted or error-free) availability of the Textpop WA-Connector service and customers use this service at their own risk. Textpop accepts no responsibility at all for a possible unavailability or interrupted availability of the Textpop WA-Connector service.
7 Trial, Billing and Payments
7.1 Each individual representing a business, as identified by a unique email address, is allowed one free trial of Textpop Premium for a 7-day period, unless agreed otherwise.
7.2 At the end of the 7-day trial period the Premium account will be blocked, unless the customer expressly chooses one of the other service plans, which in case of paid plans requires them to enter their billing information. Textpop does not take any responsibility for any loss of access to functionality and data when the Textpop application is downgraded from ‘Premium’ to ‘Basic’ or ‘Free’.
7.3 The Textpop paid service plans are billed on a monthly (this constituents the billing month and can be 28 days to 31 days depending on the calendar month) or annual basis and in advance.
7.4 When choosing for a monthly subscription, the customer receives a month’s (28 to 31 days as determined by the calendar month) access to the determined subscription once payment has been made. The customer will be automatically charged on the same day each month for continuous access to paid subscription. For example, a customer purchases a monthly ‘Enterprise‘ subscription on the 4rd of January, which entitles access to the 3rd of February. On the 4rd of February the customer’s paid account will auto-renew for the term of a month, and the customer will be charged via the billing information provided for the next month’s access. The Textpop application allows for the customer to update billing information.
7.5 When choosing for annual subscription, the customer receives a year’s access to the determined subscription once payment has been made. The customer will be automatically charged on the same date each year for continuous access to paid subscription. For example, a customer purchases an annual ‘Enterprise‘ subscription on the 6th of April, which entitles access to the 5th of April of the next year. On the 6th of April of the next year the customer’s paid account will auto-renew for the term of one year, and the customer will be charged via the billing information provided for the next year’s access. The Textpop application allows for the customer to update billing information.
7.6 If payment is not received by Textpop in the subscription activation or renewal process, the customer will be notified of this via email. Textpop will the try to bill the customer again. There are a total of four retries, over the course of eight days: after the first declined attempt, Textpop will retry every two days for eight days. The same email notification as the initial declined payment event is sent upon each failed attempt. After the fifth failed attempt, the subscription is auto-canceled (at which time a cancelation email is sent) and the account will be blocked. Textpop reserves the right to delete blocked accounts, including its content.
7.7 Customers can upgrade their subscription to another plan at any time. There are no refunds for downgrades or cancellations of accounts before the pre-paid month or pre-paid year has expired. If the customer upgrades during their pre-paid month or pre-paid year, the difference for the remaining days of their billing month or billing year will be charged pro-rata at time of upgrade. Thereafter the customer will be charged the new price for each subsequent billing month or billing year.
8 Termination / cancellation of service
8.1 Cancellation can be made within the Textpop application or by emailing a written request to email@example.com.
8.2 A cancellation becomes effective as of the ending of the applicable subscription period. When having chosen for a monthly subscription, the subscription terminates by the end the then applicable billing month period. When having chosen for an annual subscription, the subscription terminates by the end of the then applicable billing year period.
8.3 As soon as the cancellation becomes effective, the customer will no longer have access to the application or its content. Textpop reserves the right to delete cancelled accounts including all of its content.
9 Modifications to service or prices
9.1 Textpop reserves the right at any time to modify, or discontinue, the Service (or any part thereof) with or without notice.
9.2 Textpop shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
9.3 Textpop reserves the right to implement price changes with a 7 days’ notice to the customer. Customers on monthly subscriptions will be charged the new price the next billing month that falls after the 7 days’ notice. Customers on annual accounts will be charged the agreed amount for the full 12 months of their contract; thereafter the new price will take effect.
10 Disclaimer of warranties.
The service, including the website and content, and all server and network components are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and Textpop expressly disclaims any and all warranties, whether express or implied, including, but not limited to, the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. You acknowledge that Textpop does not warrant that the service will be uninterrupted, timely, secure, error-free or virus-free, and no information or advice obtained by you from Textpop or through the service shall create any warranty not expressly stated in these Terms.
11 Limitation of liability
11.1 No consequential damages.
Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to these Terms, or such party’s affiliates or their respective officers, directors, employees, agents, suppliers or licensors be liable to the other party or any third party for any indirect, incidental, special, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales or business, lost data, business interruption or any other loss incurred by such party in connection with these Terms or the service, regardless of whether such party has been advised of the possibility of or could have foreseen such damages.
11.2 Limits on monetary damages.
Notwithstanding anything to the contrary in these Terms, Textpop’s (including any of its affiliates) aggregate liability, for damages (monetary or otherwise) under these Terms claimed by you or any third party arising from our service, shall be limited to the lesser of (i) actual damages incurred, or (ii) payments made by you for the service during the twelve (12) months preceding the claim. the parties acknowledge and agree that the essential purpose of this section 11.2 is to allocate the risks under these Terms between the parties and limit their potential liability given the fees charged under this agreement, which would have been substantially higher if Textpop were to assume any further liability other than as set forth herein. The parties have relied on these limitations in determining whether to enter into these Terms.
12.1 Indemnification by Textpop.
Textpop will indemnify and hold you harmless, from and against any claim against you by reason of your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes a valid patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). Textpop shall, at its expense, defend such Claim and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Textpop for such defense, provided that (i) you promptly notify Textpop of the threat or notice of such Claim, (ii) Textpop will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) you fully cooperate with Textpop in connection therewith. If your use of the Service has become, or in Textpop’s opinion is likely to become, the subject of any such Claim, Textpop may at its option and expense (a) procure for you the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate these Terms and repay you any unused Service fees. Textpop will have no liability or obligation under this Section 12.1 with respect to any Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by you; (ii) modification of the Service by anyone other than Textpop; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing.
The provisions of this Section 12.1 state the sole, exclusive and entire liability of Textpop to you and constitute your sole remedy with respect to a Claim brought by reason of your permitted use of the Service.
12.2 Indemnification by you.
You agree to defend, indemnify, and hold harmless Textpop from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from your breach of these Terms, or your and your end users’ access to, use, misuse or illegal use of the Service. Textpop will provide you notice of any such claim, suit, or proceeding. Textpop reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case you agree to cooperate with any reasonable requests to assist Textpop’s defense of such matter.
13 Assignment; entire agreement; revisions
Either party may assign or transfer these Terms, in whole or in part, without restriction, provided the assignee agree to be fully bound by these Terms and conditions. These Terms supersede prior versions of these Terms, or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties). We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of such changes and direct You to the latest version.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
15 Relationship of the parties
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 5 (Intellectual Property Rights), 7 (Trial, Billing and Payments), 8 (Termination / cancellation of service), 10 (Disclaimer of warranties), 11 (Limitation of Liability), 12 (Indemnification), 13 (Assignment; Entire Agreement; Revisions), 14 (Severability), 15 (Relationship of the Parties) and 17 (Governing Law) will survive any termination of these Terms.
17 Governing law and dispute resolution
This Agreement shall be governed by and construed in accordance with the laws of The Netherlands. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof shall be finally settled by the competent court in Amsterdam, The Netherlands.
18 No Other Rights.
No other rights or licenses are granted under this Agreement, by implication, estoppel, statute or otherwise, except as expressly provided herein.
Textpop B.V., Minervalaan 106, 1077 PM, Amsterdam, Netherlands, firstname.lastname@example.org, +31 (0)88 548 32 32