BETWEEN: TEXTR, INC., an incorporated company having its registered office located in the city of Markham (Province of Ontario) (the “Company”)
AND: The Brand as defined in this Agreement (the “Brand”)
BACKGROUND
WHEREAS, pursuant to the enactment of legislation regarding telecommunications and its intent to limit spam and robocalls, a number of mobile network operators collectively established the Campaign Registry;
WHEREAS, the Campaign Registry serves as an entity whose objective is to limit or eliminate spam messages, increase transparency and offer benefits to businesses such as improved text message delivery and security measures;
WHEREAS, businesses intending to communicate with clients via text messaging, and/or through bulk or mass messaging, and wishing to secure their business phone numbers are strongly encouraged to register with the Campaign Registry;
WHEREAS, the Company offers and provides a wide array of services relating to business texting and communications, including, without limitation, the provision of multiple business phone numbers, nationwide calling, texting, texting by way of landlines, contact management, group messaging, synching of customer information and other tools to facilitate business communications;
WHEREAS, to offer added value to its business clients, the Company provides a service whereby business clients may register with the Campaign Registry via the Company;
WHEREAS, the Brand wishes to avail of such service offered by the Company, the whole in accordance with the terms set forth in this Business Messaging and Campaign Registry Services Agreement.
THEREFORE, in consideration of the premises set forth herein, the mutual covenants and terms herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions
The following terms, when used in this Agreement and in the recitals, shall have the meanings set forth below, unless the context requires otherwise:
“10DLC” shall refer to a business’ ten (10) digit long code phone number.
“Agreement” shall refer to the present Business Messaging and Campaign Registry Services Agreement and includes any amendments and modifications made hereto.
“Brand” shall refer to the business entity executing the present Agreement and intending to be bound by the terms hereof in order to benefit from the services offered by the Company.
“Effective Date” shall refer to the date upon which the Brand accepts to be bound by the terms of this Agreement by checking the “I AGREE” box.
“Parties” shall refer to the Company and the Brand collectively, and “Party” shall refer to any one of them.
“TCR” or the “Campaign Registry” shall refer to the Campaign Registry, the entity acting as a reputation authority for business messaging, as further described in the recitals. Unless the context requires otherwise, terms importing the singular shall include the plural and vice versa.
2. Purpose and Objective
In an effort to reduce the amount of spam distributed and to ensure secure communications, the Campaign Registry requires businesses who engage in Application-to-Person (A2P) messaging to register their 10DLC. Once a business has registered with the Campaign Registry, the business’s 10DLC shall be recognized as a registered number, which shall allow for more efficient messaging and lower the chances of having messages flagged or otherwise undelivered.
Moreover, there are risks associated with failing to register a business with the Campaign Registry. Such risks shall include being banned by carriers with regard to voice calls and text messaging, flagged messages which are not delivered to the intended recipients and the imposition of fines.
In consideration of the above, the Brand wishes to register with the Campaign Registry by way of the Company. The Company invites the Brand to visit the Campaign Registry’s website for more information regarding the Campaign Registry’s role and operations.
3. Textr’s Role
By entering into this Agreement, the Brand hereby retains and mandates the Company to handle the transmission of information to the Campaign Registry in order to register the Brand, subject to the terms and conditions set forth in this Agreement. The Company undertakes to submit the Brand’s registration information to the Campaign Registry for approval in a timely manner as of the Company’s receipt of the completed forms and the payment by the Brand. Subject to the terms of this Agreement, the Company undertakes to notify and inform the Brand of any updates to the Campaign Registry’s fees and services.
The Brand recognizes and acknowledges that the Company’s role shall be limited to serving as an intermediary between the Campaign Registry and the Brand with respect to the Brand’s registration, thereby having no control over the outcome of the registration, the approval or rejection thereof and matters relating to effectiveness of the registration. As such, the Brand shall transact with the Company, who shall be responsible for submitting the Brand’s registration information and payment to the Campaign Registry, provided the following conditions and requirements are fulfilled by the Brand:
1. The Brand holds a valid and active business account with the Company.
2. The Brand submits all information required for purposes of the registration with the Campaign Registry on the Company’s platform.
3. The Brand pays the fees for the registration with TCR. The Brand hereby allows the Company to deduct such fees from the Brand’s business account balance held with the Company.
While the Company shall employ all reasonable commercial efforts to register the Brand with TCR, considering the Company’s limited role as an intermediary, the Company cannot guarantee that the Brand’s registration shall be accepted by TCR. Moreover, the Company shall have no control over the amount of fees charged by TCR for the registration.
4. Registration
In accordance with the terms of this Agreement, the Brand agrees to submit information regarding its company, brand(s) and campaign(s) on the Company’s platform for purposes of the registration with TCR. In furtherance of the Brand’s registration, the Brand shall be required to provide information regarding the Brand’s activities, and operations. Such information may include, without limitation, the Brand’s legal and trade name(s), tax number, address, website and the jurisdiction in which the Brand was incorporated or registered. Such information shall be required by the Campaign Registry to ensure the Brand operates as a legitimate and recognized business.
As part of the registration process, the Brand shall be asked to indicate its intended campaign use. As such, the Brand shall specify how it intends to use its 10DLC for messaging purposes as well as the content of the intended messages. Intended campaign uses may include, without limitation, sending messages providing quotes and customized pricing to customers, confirming medical appointments and submitting satisfaction surveys.
Once the appropriate forms have been duly completed by the Brand and the fees have been paid, the Company shall transfer the registration to TCR, who shall have the full discretion to approve or refuse the Brand’s registration. The Campaign Registry may refuse a Brand’s registration if the registration contains erroneous or false information, or if the Brand is otherwise ineligible, as determined by TCR at its discretion. The Brand acknowledges that the Company shall not be responsible for verifying the Brand’s registration, information inputted and intended campaigns.
The Company’s role with respect to the Brand’s registration with TCR shall be limited to transferring the information submitted by the Brand to TCR for purposes of registration, acknowledging that the Company shall have no control over whether TCR approves the Brand’s registration. In light of the Company’s limited obligations, the Company declines all liability in the event that TCR does not approve the Brand’s registration. Nonetheless, as an intermediary between TCR and the Brand, the Company shall be responsible for notifying the Brand of updates, changes or modifications to its registration.
5. Fees
The Company shall charge the Brand the fees imposed by the Campaign Registry for the registration and the Company shall submit the payment to the Campaign Registry on behalf of the Brand. Such fees shall be in the amount set forth and specified by the Campaign Registry.
The Company shall nonetheless inform the Brand of any changes to the fees payable, payment terms or other matters relating to the fees owed to the Campaign Registry. The Brand authorizes the Company to debit the fees owed to the Campaign Registry from the Brand’s business account held on the Company’s platform. The Brand agrees to pay the fees to the Company by way of the Brand’s business account held on the Company’s platform on an as needed basis. The Brand shall be responsible for maintaining a positive account balance and ensuring it holds sufficient funds to cover the costs of the registration and any maintenance thereof, as applicable.
The Company shall have no control over the amount of such fees or any increases thereto as these are set by TCR, without the Company’s intervention. The Company shall not be responsible for any increases to the fees set by the Campaign Registry, changes to the amount of the fees, additional fees and/or disputes regarding the fees.
6. Duration
6.1 Duration
This Agreement shall come into effect on the Effective Date and shall remain in force until terminated in accordance with the terms thereof.
6.2 Termination
This Agreement shall automatically terminate upon the termination of the Brand’s business account on the Company’s platform. The Brand acknowledges and agrees that the Company may terminate this Agreement, without penalty or liability to the Brand: (i) if the Brand fails to comply with any of the provisions of this Agreement, (ii) if the Brand fails or neglects to pay the monthly fees due under this Agreement, (iii) in accordance with the Company’s Terms and Conditions, as published on the Company’s platform, (iv) if the Brand deletes or removes its registration or campaign with TCR (either independently or through the Company), or (v) if the Brand’s business account is flagged or problematic, as determined by the Company at its sole discretion.
6.3 Effects of Termination
Upon the termination of this Agreement, the Brand may continue to use its business account, however, the Company shall no longer benefit from the services and benefits offered by the Campaign Registry, unless otherwise stipulated by the Company. The Company shall cease to offer services, updates, communications and payment processing with respect to the Brand’s registration with the Campaign Registry. The Brand acknowledges that the Company shall not be responsible for maintaining, updating, reactivating or otherwise securing the Brand’s registration with TCR, unless otherwise provided.
7. Status of Parties
The Parties are independent entities. This Agreement shall not create any actual or apparent agency, employment, joint venture or business organization between them. Unless otherwise provided under this Agreement, neither Party shall be authorized to bind the other Party or enter into contractual obligations on its behalf.
8. Indemnification and Limited Liability
8.1 Indemnification
The Brand agrees to indemnify and hold harmless the Company and its affiliates, directors, officers and employees from and against all losses, damages, liabilities, costs and expenses arising directly or indirectly from or in connection with any claims, actions, proceedings, investigations or suits brought by a third party, arising out of (i) any negligent, reckless or intentionally wrongful act of the Brand or the Brand’s employees, contractors or agents, (ii) any failure of the Brand to perform its obligations in accordance with all applicable laws, rules and regulations, (iii) any third party claim with respect to the Brand’s 10DLC, registration with TCR, and/or business messaging, and/or (iv) the execution or non-performance by the Brand of its obligations under this Agreement.
8.2 Limitations of Liability
The Company’s role under this Agreement shall be limited to acting as an intermediary between the Brand and the Campaign Registry by submitting the Brand’s payment and registration information to TCR. As such, the Company disclaims any and all liability for any canceled, refused, rejected or otherwise disputed registration(s) and/or application for the same with the Campaign Registry.
The Brand expressly acknowledges that the effective registration of the Brand with TCR, the fees payable, the maintenance of such registration, and/or the refusal thereof shall be determined exclusively by TCR. As such, the Company shall not be responsible for any claims, damages, losses, injuries, or other adverse effects suffered by the Brand in connection with its registration with TCR, the fees payable or paid to TCR, and/or the effects of the registration or lack thereof, as applicable.
The Company shall not be liable for any damages or failure to perform its obligations during a Force Majeure event. The Company’s obligations shall resume upon the full completion of the Force Majeure event, as of the date specified by the Company. For interpretation purposes, Force Majeure events shall refer to unpredictable, irresistible and unforeseeable events that are beyond the Company’s control. Force majeure events shall include, without limitation, epidemics, pandemics, governmental acts, governmental orders, wars, acts of God, the passing of legislation, fires, hurricanes and other natural disasters.
In consideration of the Company’s limited role as an intermediary, the Brand agrees that the Company shall not be liable to the Brand for any indirect, incidental, special or consequential damages, or other damages of any kind, including, but not limited to lost profits, penalties, fines, chargebacks, third party claims, or claims of any nature in connection with the Company’s 10DLC, business messaging and/or the registration with TCR.
The Brand further agrees to waive any rights, resources or claims it may have against the Company arising out of the services provided by the Company under this Agreement, the Brand’s registration with TCR, inability or failure to register, the fees payable, business messaging or any matters affecting the Brand’s registration as contemplated under this Agreement.
9. No Warranties
The Company cannot guarantee a particular outcome following the provision of its services under this Agreement. The Company is unable to guarantee that the registration submitted by the Company to the Campaign Registry on behalf of the Brand shall be approved, complete or in line with the required standards.
As an intermediary, the Company cannot control the quality or the effectiveness of the Brand’s registration with the Campaign Registry. Despite the Company’s best efforts, the Company cannot guarantee that the outcome of the registration process and the effects of the registration shall fulfill the Brand’s needs or expectations. The success of the registration with TCR shall depend, in part, on the Brand’s actions and submission of information. The Company shall have no control over the Brand’s execution of its obligations towards the Campaign Registry and adherence to the recommendations provided by the Campaign Registry.
Any guarantees and warranties with respect to registering with the Campaign Registry, its effects and benefits are to be provided exclusively and solely by the Campaign Registry. The Brand acknowledges that the Company is in no position to provide warranties with respect to the same. In consideration thereof, the Brand agrees to proceed with the execution of this Agreement and the retainment of the Company’s services at the Brand’s sole risk and expense.
10. Governing Law and Dispute Resolution
10.1 Applicable Law
This Agreement shall be governed by and construed in accordance with the laws in force in the province of Ontario and all applicable Canadian laws.
10.2 Dispute Resolution
In the event of any dispute arising out of or relating to this Agreement, the Parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a satisfactory solution.
If the dispute is not settled within thirty (30) days, the Company may submit the unresolved dispute to the competent court located in the province of Ontario or to binding arbitration, at the Company’s choice. Should the Company elect to proceed by arbitration, the Company shall notify the Brand in accordance with the terms of this Agreement. The arbitration proceedings shall be strictly confidential. The arbitration award shall be binding.
11. General Provisions
11.1 Severability
Any section, subsection or other provision of this Agreement which is, or becomes, illegal, invalid or unenforceable shall be severed from this Agreement, and shall be ineffective to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions hereof. The remaining provisions shall (i) be severed from any illegal, invalid or unenforceable section, subsection or other provision of this Agreement, and (ii) shall remain in full force and effect.
11.2 Entire Agreement
This Agreement, together with any documents referenced herein, constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and supersedes all prior written and oral agreements, discussions, or representations between the Parties.
11.3 Amendments
The Company reserves the right to modify or otherwise amend this Agreement to comply with changes in legislation and changes introduced by the Campaign Registry. Any such modifications or amendments to this Agreement shall be provided to the Brand for reference purposes. This Agreement may also be amended upon mutual written consent of the Parties.
11.4 Successors
This Agreement and the provisions hereof shall be binding upon the Parties and their respective successors and assigns. More specifically, this Agreement shall be binding upon the Company’s successor should the Company change ownership or otherwise be acquired or transferred, whether by sale, merger or otherwise.
11.5 Statutory Instruments and Legislation
Unless otherwise provided, any reference in this Agreement to any law, legislation, rule, regulation, order, act or statute of any government, governmental body or other regulatory body shall be construed as a reference to those as amended or re-enacted or as a reference to any successor to those.
11.6 Assignment
The Brand may not, without the Company’s prior written consent, transfer or assign this Agreement or any part thereof. Any attempt to do so shall be null and void. The Company may assign this Agreement, in whole or in part, without requiring the Brand’s consent.
11.7 Notices
All notices, consents, waivers, and other communications under this Agreement shall be in writing or provided on the Company’s platform, as applicable, and shall be deemed to have been effective if sent by registered mail, overnight express mail, or by email, with acknowledgement of receipt option. Unless otherwise indicated in the proof of receipt, such notices shall be deemed received three (3) business days after they are sent.
11.8 Binding Effect
The Brand acknowledges and confirms that the checking of the “I AGREE” box by any representative of the Brand shall constitute the Brand’s legal signature, thereby confirming the Brand’s acknowledgment and agreeance with the entirety of the terms set forth in this Agreement and intention to be bound by the terms thereof.
IN WITNESS WHEREOF, the Brand has checked the “I AGREE” box below this Business Messaging and Campaign Registry Services Agreement.
By checking the “I AGREE” box below, the Brand confirms its acknowledgement and acceptance of the terms and conditions of this Agreement in such electronic format.
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