PLEASE READ THE TERMS AND CONDITIONS OF THIS WEBSITE CAREFULLY (“Terms”). THESE TERMS FORM A LEGAL AGREEMENT BETWEEN SCREEN MAGIC MOBILE MEDIA INC. (“Company”) AND THE CUSTOMER AND/OR ITS ASSIGNEES (collectively “YOU”).
BY CLICKING ON THE “I ACCEPT” OR “I AGREE” BUTTON OR BY ACCESSING OR OTHERWISE USING THE SMS MAGIC APPLICATION, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS CONTAINED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK THE “I ACCEPT” OR “I AGREE” BUTTON OR DOWNLOAD, INSTALL OR USE THE APPLICATION.
Recitals
Screen Magic has developed and owns a proprietary application, called SMS Magic, that integrates with Customer Relationship Management (CRM) data and enables users to send messages from the CRM to the user’s contacts, leads and accounts and other object records.
Screen Magic’s proprietary application is published on different marketplaces run by the CRM Partners, under the brand name of SMS Magic.
User desires to subscribe to SMS Magic through these Marketplaces, or directly from Screen-Magic, to be able to access and use Screen Magic’s application and related services and Screen Magic desires to allow the same, each in accordance with the terms and conditions of this Agreement.
Now, Therefore, in consideration of the mutual promises and obligations set forth below, the receipt and sufficiency of which each Party hereby acknowledges, each Party agrees as follows.
Agreement
DEFINITIONS.
“Application” or “App” means Screen Magic’s proprietary SMS Magic application that Screen Magic makes available to User pursuant to this Agreement.
“Confidential Information” means (a) with respect to each Party, all nonpublic information disclosed or made available under this Agreement that relates to the provision or receipt of the Services or either Party’s financial condition, operations technology or business, and that is clearly identified as confidential at the time of disclosure or that, in light of the nature of the information itself or the circumstances surrounding its disclosure, ought in good faith to be deemed confidential, (b) with respect to Screen Magic, the App (including without limitation any updates / upgrades thereto), the Website and any documentation provided in connection with the Services.
“Dedicated Incoming Number” means the long code or short code assigned to User on an exclusive or shared basis, as the case may be, which enables easy two-way communication and allows User to send and receive mobile originating SMS messages for marketing and other communication purposes.
“Emergency Services” means services that allow a user of the Application to connect with the emergency services personnel or public safety answering points, such as 911 services.
“Intellectual Property Rights” means any and all intellectual property rights, both foreign and domestic, including without limitation any and all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and any and all other legal rights protecting intangible proprietary information.
“Order Form” means a binding, written document that is entered into by and between User and Screen Magic, which document is governed by this Agreement and sets forth, among other things, the Services that Screen Magic will provide to User for the fees set forth in the applicable Order Form.
“Services” means the following services that Screen Magic provides: a) making available Use of the Application to enable User to send and receive SMS messages and avail itself of other related features available through the Application; b) providing connectivity between the Application on CRM and the Screen Magic server, hosted in the United States and in Europe; and c) making available a portal to track delivery of the SMS messages, wherever applicable, for User.
“Subscription Fees” means the fees that User pays for the right to Use the Services, which fees are specified in an Order Form.
“Subscription Plan” means the specific Screen Magic subscription plan, among the various subscription plans Screen Magic makes available from time to time as listed on the Website, setting forth the Services to which User is subscribing.
“Use” or “Using” means to access, view and/or use the Services in accordance with the terms and conditions of this Agreement.
“User Data” means any user data including SMS records, SMS message content, and mobile numbers of User’s end-users, made available to Screen Magic through User’s Use of the Services under this Agreement.
“Website” means the Screen Magic website accessible at https://www.sms-magic.com/ as the case may be.
ACCESS AND USE.
Authorized Use. Subject to the terms and conditions of this Agreement (including User’s payment of all Subscription Fees), Screen Magic, during the Term, hereby grants to User a limited, non-exclusive, non-transferable, non-sublicensable and revocable right to Use the Services for User’s internal purposes only. Specifically, Screen Magic is providing a limited term subscription to access and use the Services during the Term. User acknowledges that access to, and use of, the Services is limited to the scope of the express provisions set forth in this Section 2 (Access and Use) and that there are no implied licenses; all rights not expressly granted under this Agreement are reserved by Screen Magic.
Scope of Use.
The Services can be accessed or used by User through the Website from mobile phones, tablets or any other electronic devices (“Electronic Device”). In order to avail itself of the Services, User shall be required to register and create a User Account (“User Account”) on the Website. User agrees to provide Screen Magic with appropriate access to User’s CRM and appoint a qualified representative/CRM manager to facilitate the installation, set-up and configuration of the Application. At the time of registration, User shall be required to share User Data including but not limited to information regarding User’s e-mail ID, name and other relevant details. User agrees that any registration information provided by User shall always be accurate, correct and complete.
User shall be solely responsible for all the activities that occur under the User Account. Without limiting the foregoing, User acknowledges and agrees that: (a) Screen Magic shall be neither responsible nor liable for any claims, damages or disputes arising out of the subscription to, or Use or misuse of, the Services; (b) User is solely responsible for maintaining the confidentiality of the User Account and for all other activities that occur under said User Account; and (c) User shall use reasonable efforts to prevent unauthorized access to, or use of, the Services, and will notify Screen Magic promptly of any unauthorized use of any password or account or any other known or suspected breach of security related to the Services. Screen Magic reserves the right to accept or reject User’s application to register and create a User Account without obligation or any explanation.
User shall select a Subscription Plan in an order form. On the basis of the Subscription Plan selected, Screen Magic shall provide the Services to User on an annual subscription basis. User shall make payments through one or more methods set forth on the Website.
User acknowledges and agrees that it is the sole responsibility of User to check capability and internet connectivity of the Electronic Device in order to run the App and Use the Services.
User acknowledges and agrees that Screen Magic may retrieve and use User Data that User has shared with Screen Magic for authentication and updates regarding User credentials, provided however that Screen Magic will not view or make any use of the data of User’s end users except to improve the Services and the product or on customer’s request to troubleshoot or resolve a complaint.
Certain Restrictions. User represents, warrants and covenants to Screen Magic that it shall not, and shall not permit any third party to:
reproduce, distribute, alter, adapt, modify, sell, resell or exploit the App or any portion thereof;
decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the App or any internal data files generated by the App except as required by law;
sublicense access to or use of the App or operate a service bureau;
upload, transmit or otherwise make available in connection with the Services any content that is unlawful, harmful, threatening, abusive, harassing, torturous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
upload, transmit or otherwise make available in connection with the Services any content that User does not have a right to make available under all applicable laws, regulations, and contractual or fiduciary relationships (which, by way of illustration but not limitation, includes inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
upload, transmit or otherwise make available in connection with the Services any unsolicited or unauthorized advertising or promotional materials, which by way of illustration but not limitation includes “junk mail,” “spam”, “chain letters” and “pyramid schemes”;
upload, transmit or otherwise make available in connection with the Services any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, which by way of illustration but not limitation includes viruses, time bombs, trojan horses and other malware;
interfere with or disrupt the Website or servers or networks connected to the Use of the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Use of the Services;
violate (intentionally or unintentionally) any applicable local, state, national or international laws or regulations in connection with the Services, including but not limited to those related to intellectual property, privacy or security;
shall be responsible for all traffic sent to and received from User Account, including all traffic sent to and received from mobile recipients on the Dedicated Incoming Numbers assigned/dedicated to mobile recipients worldwide; and
use the Services to access or allow access to Emergency Services.
SERVICES.
Services Provided. Screen Magic shall use commercially reasonable efforts in providing the Services.
Support Services. Screen Magic shall provide support for the Services in accordance with Screen Magic’s then-current support policies. The details of the support applicable for the Services is specified in the order form.
Updates/Upgrades. Screen Magic may periodically release (at its sole discretion) any minor updates and/or upgrades to the Application. In the event that Screen Magic launches any such updates and/or upgrades to the App, User can subscribe to such upgrades and/or updates through the Website without any additional cost, provided that User is current on payment of the Subscription Fees. In the event of any major releases, User may be required to pay the additional charges as may be set forth by Screen Magic. In case User chooses not to opt for such major update and/or upgrade, User may continue to use any features or functionality on such non-updated and/or upgraded version, provided that User shall not be entitled to any Support Services provided by Screen Magic.
Data Security. Screen Magic shall use industry standard practices designed to maintain the data on its server securely.
FEES.
Subscription Fees. User will pay Screen Magic all Subscription Fees, as set forth in the applicable Order Form, in accordance with the payment terms set forth therein. For each Renewal Term, the subscription plan will auto renew at Screen Magic’s then-prevailing rates. The Currency Exchange rates for SMS Credit and Usage shall be set forth on the Website; Screen Magic may change such rates from time to time.
Taxes. All Subscription Fees and all other fees set forth in each Order Form are exclusive of, and User will be responsible for, all taxes (including without limitation sales taxes), duties and the like, other than taxes based upon or calculated by Screen Magic’s net income.
Refund. User may apply for a refund only within three (3) days of purchasing an initial subscription to the Services (i.e., User executes an Order Form and make the full payment of the Subscription Fee). This limited refund right applies only to the first purchase of a subscription plan and does not apply to renewal of such plan thereafter. The amount to be refunded will be reduced by the Messaging or usage charges for Messages sent.
PROPRIETARY RIGHTS; CONFIDENTIALITY.
Screen Magic Ownership.
As between Screen Magic and User, Screen Magic is and remains the sole and exclusive owner of all right, title and interest in and to the Application, Services, Services Marks and all related software, technologies and processes used to make the Services available, including without limitation all Intellectual Property Rights embodied therein.
As between Screen Magic and User, Screen Magic is and remains the sole and exclusive owner of all right, title and interest in and to the trademarks, service marks and/or logos on the App or Website (collectively, “Services Marks”). By displaying Services Marks on the App or Website, Screen Magic is not granting to User any license to utilize any Services Marks; any unauthorized use of the same may violate copyright laws, trademark laws, the laws of privacy and publicity, and civil and criminal statutes. Further, User shall not remove, modify or obscure any proprietary rights notice(s), including without limitation any copyright notice(s), included in any documentation, user interface, screen shot, web page, presentation or marketing materials made available by Screen Magic.
Confidentiality.
User shall disclose to Screen Magic only that Confidential Information of User that is reasonably necessary to enable Screen Magic to provide the Services, and Screen Magic shall disclose to User only that Confidential Information of Screen Magic that is reasonably necessary to enable User to receive the Services. The Party receiving Confidential Information (the “Receiving Party“) from the other Party (the “Disclosing Party“) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Services under this Agreement, respectively, in accordance with all terms and conditions of this Agreement. Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees, contractors, lawyers and other professional advisors of the Receiving Party who have a need to know such Confidential Information who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
The Receiving Party’s obligations under Section 5.3.1 with respect to any Confidential Information of the Disclosing Party will terminate (a) three (3) years after termination of this Agreement or (b) if and when the Receiving Party can document that such information: (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (ii) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (1) approved in writing by the Disclosing Party; (2) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (3) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
TERM AND TERMINATION.
Term. The initial term of this Agreement shall commence on the Effective Date and continue for a period of one (1) year (“Initial Term”), at which time the term of this Agreement shall automatically renew for additional periods of one (1) year each (each a “Renewal Term” and, together with the Initial Term, the “Term”) unless and until either Party gives the other Party written notice of intent not to renew at least thirty (30) days prior to the end of the then-current term. At least one (1) month prior to expiration of the Initial Term or any Renewal Term, Screen Magic shall inform User in writing of any changes in the pricing hereunder and the subsequent Renewal Term then shall be subject to revised pricing as communicated by Screen Magic.
Termination.
Upon a material breach of this Agreement, the non-breaching Party may provide written notice to the breaching Party setting forth both a reasonably detailed description of the material breach and the non-breaching Party’s intent to terminate this Agreement at the end of a 30-day period, and this Agreement shall terminate in the event that the breaching Party fails to cure such breach within such period.
Screen Magic may terminate this Agreement upon thirty (30) days’ written notice to User in the event that: User has breached any provision of this Agreement; or Screen Magic is required to do so by law (where the provision of the Services is, or becomes, unlawful); or Screen Magic chooses to discontinue the Services; or the license granted to Use the Services expires; or for convenience (in which case Screen Magic shall refund the Subscription Fee paid by User on a pro-rata basis).
Upon expiration or the earlier termination of this Agreement, the rights and licenses granted to User hereunder shall immediately and automatically cease to be in effect, and User must immediately stop Using the Services, and (if needed) delete User Account.
Within two (2) months following expiration or the earlier termination of this Agreement or of the applicable Order Form, Screen Magic shall use industry standard practices to delete or destroy all User Data in its possession.
INDEMNIFICATION; DISCLAIMER; LIMITATIONS ON LIABILITY.
Indemnification.
User shall defend, indemnify and hold Screen Magic, and its subsidiaries, affiliates, officers, directors, agents and employees, harmless from and against any claim, demand, action, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expert’s fees), made by any third party due to or arising out of: (a) User’s violation of this Agreement; (b) User’s wrongful Use or misuse of the App; and/or (c) User’s violation of any applicable laws or regulations.
Screen Magic shall defend, indemnify and hold User harmless from and against any third party claim arising out of actual infringement of such third party’s Intellectual Property Rights, solely to the extent such claims are directly attributable to User’s Use of the Application pursuant to the terms of this Agreement. If such a claim is made, Screen Magic shall, at its own expense and option, exercise one of the following remedies: (a) procure for User the right to continue using the Application and/or Services; or (b) replace or modify such Application and/or Services so that they become non-infringing; or (c) terminate the Agreement and refund any moneys prepaid by User to Screen Magic for Services not yet rendered to User. This Section 7.1.2 states Screen Magic’s entire liability and User’s exclusive remedy for infringement or misappropriation claims relating to the Application and/or Services. Screen Magic shall have no obligation to indemnify User to the extent that such claims arise as a result of: User’s combination of Services with other products or services not reasonably foreseeable by Screen Magic and such infringement or claim could have been avoided in the absence of such combination; User’s modification and misuse of the Services, not in compliance with this Agreement, where such infringement or claim could have been avoided in the absence of such modification or misuse.
The indemnifying Party’s indemnification obligations under Section 7.1 are conditioned upon the indemnified Party: (a) giving prompt notice of the claim to the indemnifying Party; (b) granting sole control of the defense or settlement of the claim or action to the indemnifying Party (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of or, result in any ongoing material liability to the indemnified Party); and (c) providing reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the claim. In any event, the indemnified Party will have the option of participating in the defense at its own expense.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SCREEN MAGIC MAKES NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT OR TIMELY DELIVERY OF SHORT MESSAGE SERVICES (SMS). THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SCREEN MAGIC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Limitations on Liability.
User expressly understand and agree that Screen Magic shall not be liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Screen Magic has been advised of the possibility of such damages), resulting from the Use or the inability to Use the Services, due to downtime, server failure or otherwise or in any way relating to the Services.
Notwithstanding anything contained in this Agreement or otherwise, the total aggregate liability of Screen Magic to User in all events under any applicable laws for loss or damage arising out of this Agreement shall be limited to the Subscription Fees paid in the three (3) month period preceding the event giving rise to the claim. The forgoing limitations of liability will apply notwithstanding the failure of essential purpose of any limited warranty or remedy herein.
The Services are not intended to support or carry emergency calls to any Emergency Services. Neither Screen Magic nor its representatives will be liable under any legal or equitable theory for any claim, damage, or loss arising from or relating to the inability to Use the Services to contact Emergency Services.
In case of any act or omission of User that constitutes breach of this Agreement, including without limitation Section 2 (Access and Use), User shall be solely liable for the payment of any penalties or expenses arising out of such breach. In addition, any penalties or expenses incurred by Screen Magic, SMS aggregators or operators are the liability of User. Upon receipt of such complaints, Screen Magic reserves the right to disable User’s account. User agrees that Screen Magic merely provides User a platform of communication via its Application and does not verify or validate the intent of the messages, its recipient or the content of those messages. User is solely responsible for the intent and content of the messages that it sends, and any violation with respect to or arising out of the same.
User further acknowledges and agrees that Screen Magic has contractual relationships with various SMS aggregators and network operators in order to facilitate the relaying/transmission of messages from the application to the authorized recipient and User understands and acknowledges the significant role of the aggregators and operators in the performance of the Services and that Screen Magic shall not be liable for any claims arising out of any such dependency on the SMS aggregators and or network operators.
STATISTICAL INFORMATION.
Notwithstanding anything else in the Agreement or otherwise, Screen Magic may monitor User’s use of the Services and use User Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate identifiable User Data and/or identify User’s Confidential Information and provided further that Screen Magic may not view or make any use of the data of User’s end users. Screen Magic is and shall remain sole owner of all Intellectual Property Rights in and to such information.
PRIVACY POLICY.
The collection of User Data through the Services has been covered in Screen Magic’s Privacy Policy, available at https://www.sms-magic.com/privacy-policy/. Further, User may be required to provide its credit card information to purchase products and services from the Website. Screen Magic uses third party billing services and HAS NO CONTROL over these services. Information related to the credit card is submitted directly to the third party payment gateway provider and is not accessible by Screen Magic. Screen Magic will use its best efforts to ensure that User’s credit card number is kept STRICTLY CONFIDENTIAL by using only third party billing services that use the industry appropriate security encryption technology designed to protect User’s credit card number from unauthorized use. However, User understands and agrees that Screen Magic shall not be held responsible for any misuse of User’s credit card number.
FORCE MAJEURE.
Notwithstanding anything in this Agreement to the contrary, Screen Magic will be excused from performance hereunder for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by User or third parties not managed by Screen Magic or a Force Majeure Event, and such non-performance will not be a default hereunder or a ground for termination hereof provided that Screen Magic uses commercially reasonable efforts to mitigate the effects of the Force Majeure Event. User acknowledges that website operations are affected by numerous factors outside of Screen Magic’s control. For purposes of this Agreement, “Force Majeure Event” means an act of God, war (whether or not actually declared), armed conflict or the serious threat of the same, hostility, blockade, military embargo, sabotage, insurrection, rebellion, act of a public enemy, riot or other act of civil disobedience, governmental act, judicial action, explosion, act of terrorism or threat thereof (including cyberterrorism), natural disaster (including without limitation asteroid strikes or volcanic activity), violent storm (including without limitation hurricanes, tornados or blizzards), atmospheric disturbance (including without limitation geomagnetic storm, solar flare or sun outage with respect to electricity grids, transformers and satellite transmissions), destruction by lightning, fire, earthquake, tsunami, flood, plague, epidemic, pan-epidemic, quarantine, civil commotion, strike or lockout or labor dispute (excluding for the avoidance of doubt strikes of Screen Magic’s staff), satellite malfunction, prolonged internet outage, communications line failure or power failure.
GENERAL.
This Agreement constitutes the entire understanding between User and Screen Magic with respect to the subject matter hereof. This Agreement may not be extended, amended or superseded except by agreement in writing between the Parties. Neither Party may assign this Agreement without the other Party’s prior written consent (not to be unreasonably delayed, conditioned or withheld), and any purported attempt to do so is null and void, provided, however, that either Party may, without requiring the consent of the other Party, assign this Agreement and all of its rights under this Agreement to an assignee in the event of a merger, sale of assets of the business to which this Agreement is related, or consolidation. And, notwithstanding anything in this Agreement to the contrary, User agrees that Screen Magic may without requiring any consent of User (a) assign this Agreement to an affiliate of Screen Magic and/or (b) subcontract portions of the Services, provided that any such subcontracting arrangement will not relieve Screen Magic of any of its obligations hereunder. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, United States, without regard to principles of conflict of laws. Each Party hereby agrees that the state and federal courts in California shall have exclusive jurisdiction over any dispute arising out of this Agreement. The failure of Screen Magic to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. User agrees that regardless of any statute or law to the contrary, any claim or cause of action made by User arising out of or related to Use of the Services hereunder or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of the Agreement shall remain in full force and effect. The relationship between the Parties is that of independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile, pdf or any other reliable means shall be effective for all purposes as delivery of a manually executed original counterpart.
