2. The Services
Services described on the NG Profile/NG User may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries. You agree to use the NG Profile/NG User Services in accordance with all applicable guidelines as well as all state and federal laws that the Services are subject to.NG Profile/NG User only provides that the Services are processed correctly and further transmitted by NG Profile/NG User to the applicable downstream network. NG Profile/NG User is not responsible for the final delivery of any communication initiated by you through the Services, as this is out of our control and is the responsibility of downstream communications carriers. The Services consist of one or more of the following: a web-based interface, access to incoming telephone number or keywords, voice broadcast applications, SMS and MMS gateway access, data encryption, data transmission, data access, data storage and, if applicable, synchronization software, as well as software maintenance and upgrades and customer support, that enable you to send SMS messages, MMS messages and/or voice broadcasts to recipients designated by you (collectively, the “Services”). We transmit messages initiated by you or sent to you by others through different routes, and the level of reliability and support for special features varies according to the route. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Services, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Services. NG Profile/NG User transmits and receives voice, SMS, and MMS messages via other major telecommunications companies and mobile network operators, and thus NG Profile/NG User’s influence over the timing of the transmission of your messages is within the technical constraints imposed upon NG Profile/NG User. While NG Profile/NG User shall use commercially reasonable efforts to transmit your messages and broadcasts to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of your messages across the public switched telephone network and/or Internet. You should know that communications carriers assign messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. NG Profile/NG User is not liable for any loss incurred by the failure of a message to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from NG Profile/NG User for any such non-deliveries. Furthermore, you agree that message contents are deemed to have zero value.
3. Policy of Usage
You represent and warrant that the owners of the phone numbers you initiate messages to through the NG Profile/NG User services have consented or otherwise opted-in to the receipt of such messages and broadcasts as required by any applicable law or regulation. You agree that you will include clear opt-out/unsubscribe information on your messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and you further agree that you will not initiate any subsequent messages to any individuals after they request DNC status.You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages that you create and initiate through the NG Profile/NG User Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages transmitted through the NG Profile/NG User Services by visiting websites of “do not call”. You are ultimately responsible to make your own informed decisions regarding your messages. You shall schedule your messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, pictures or videos for inclusion in any outbound messages. If you are unfamiliar or unclear on the legalities of any message that you intend to initiate through the Services, you must consult with your attorney prior to your use of the NG Profile/NG User or Services.
You accept that the Services are provided for professional use only, and you agree that your use of the NG Profile/NG User or Services shall not include:
4. Content Submission / Discussion AreasYou agree that any information or materials that you or individuals acting on your behalf provide to NG Profile/NG User (other than information required for your use of the Services as contemplated herein) will not be considered confidential or proprietary. By providing any such information or materials to NG Profile/NG User (other than information required for your use of the Services as contemplated herein), you grant to NG Profile/NG User an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of, and distribute such information and materials, and you further agree that NG Profile/NG User is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to NG Profile/NG User. In connection with such information and materials, you warrant and represent to NG Profile/NG User that you have all rights, title and interests necessary to provide such content to NG Profile/NG User, and that your provision of the content to NG Profile/NG User shall not infringe any third party’s proprietary or personal rights, including but not limited to any trademark, copyright, patent, or trade secret. NG Profile/NG User may at its option provide you with one or more areas within the NG Profile/NG User for online discussions (e.g. message boards, wikis, chat rooms, or blogs). Should you choose to participate in such a forum, you agree not to utilize the forum for illegal or inappropriate purposes. NG Profile/NG User reserves the right but will not be obligated to edit or delete postings to its forums at any time and for any reason. NG Profile/NG User shall also have no responsibility or liability for any content created or posted by you or other third parties within any online forum.
5. Username / PasswordAs part of the registration process you will need a username and/or password. You shall provide NG Profile/NG User with accurate, complete, and regularly updated member profile information. You agree to notify NG Profile/NG User of any known or suspected unauthorized use(s) of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. You shall be responsible for maintaining the confidentiality of your password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your user account, in NG Profile/NG User’s sole discretion, and you may be reported to appropriate law-enforcement agencies.
6. Newsletter and Communications Concerning the NG Profile/NG User ServicesWith the exception of Services obtained through NGProfile.com/NGUser.com, any email addresses submitted for a new account for use of the Services are automatically added to the NG Profile/NG User newsletter. Any email addresses submitted to NG Profile/NG User’s agent-login screen are automatically added to the NG Profile/NG User newsletter. To permanently unsubscribe to any NG Profile/NG User newsletter please email us via the Live Chat. To opt into the separate newsletter offered through NGProfile.com you must register at this site. To permanently unsubscribe to the NGProfile.com newsletter please email [email protected] By providing your telephone number to NG Profile/NG User, NG Profile/NG User reserves the right to contact you via calls or text messages to provide you information about your account and/or the NG Profile/NG User Services requested by you. To the extent you have separately agreed to receive periodic text or voice alerts on products, services, events, special offers or other promotional messages related to NG Profile/NG User and the NG Profile/NG User, NG Profile/NG User may contact you pursuant to the terms of any such separate agreement.
7. Intellectual PropertyYou are permitted to access the NG Profile/NG User, the Services, and any content provided by NG Profile/NG User (which may include text, images, hosted software, sound files, video or other content, and may be provided via the NG Profile/NG User or otherwise) solely for the purpose of receiving information about NG Profile/NG User’s business and products, purchasing and utilizing the Services, communicating with NG Profile/NG User, entering prize promotions offered by NG Profile/NG User, or otherwise as stated on the NG Profile/NG User. NG Profile/NG User hereby grants a worldwide, fully paid-up, perpetual, non-exclusive, non-transferable license to you to use the NG Profile/NG User and Services solely for the purpose of operating the NG Profile/NG User and using the Services. We may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Services, including the web pages that are part of the Services and the NG Profile/NG User. Except as expressly provided in these Terms, the availability of the Services and the NG Profile/NG User does not give you any license to these patents, trademarks, copyrights, or other intellectual property. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained in the NG Profile/NG User are the sole property of NG Profile/NG User or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the Services or NG Profile/NG User, including any proprietary communications protocol used by the Services or the NG Profile/NG User without the express written permission of NG Profile/NG User. All other trademarks or trade names are the property of their respective owners, and such material may not be copied, downloaded, redistributed, modified or otherwise exploited, in whole or in part, without the permission of the owner. NG Profile/NG User abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, we may remove or disable access to material residing on a site that is controlled or operated by NG Profile/NG User that is claimed to be infringing, in which case we will make a good-faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. NG Profile/NG User does not control content hosted on third party websites, and cannot remove content from sites it does not own or control. If you are the copyright owner of content hosted on a third party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed. Before serving either a Notice of Infringing Material or Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with NG Profile/NG User’s rights and obligations under the DMCA and, in particular, section 512(c), and do not constitute legal advice.
Notice of Infringing Material
To file a notice of infringing material on a site owned or controlled by NG Profile/NG User, please provide a notification containing the following details:
Then send this notice via out Live Chat.
8. Data Protection & Privacy
Your use of the Services is contingent on your paying for such use (whether paid in advance or through the purchase of credits on the NG Profile/NG User), in the amounts and using the methods indicated on the NG Profile/NG User. Your payment for the Services, Credits (as defined below in Section 10), keywords, DIDs, usage-sensitive fees and/or plans (a portion of which also includes software maintenance and upgrades, as well as customer support) shall be deemed completed when NG Profile/NG User receives the full amount of payment owed for such Services, Credits, keywords, DIDs and/or plans. You are responsible to pay for any message or broadcast you attempt to send to any number, regardless of whether the message is actually received by the intended recipient. As NG Profile/NG User is dependent on other entities for the delivery of your messages and broadcasts, our price per credit may require adjustment in order to account for costs that are not in our control. Accordingly, we may adjust our prices from time to time without prior notice.
Credits are paperless vouchers that you purchase and which facilitate the transmission of the NG Profile/NG User Services selected by you. The chosen route as well as the destination of a message or broadcast causes the amount of credits required to either increase or decrease but, in either case, will always be made known beforehand through the Pricing Page of our NG Profile/NG User. The submission of a seemingly-valid message or broadcast will cause an associated quantity of credits to be debited from your account and you can obtain the real-time status of your account at any time through the online interface.
11. No Warranty; Limitation of Liability
NG Profile/NG User reserves the right to modify, suspend, or discontinue the offering of any of the NG Profile/NG User or Services at any time for any reason without prior notice. Further, while NG Profile/NG User utilizes electronic and physical security to reduce the risk of improper access to or manipulation of data during transmission and storage, it cannot guarantee the security or integrity of the data and shall have no liability for breaches of security or integrity or third-party interception in transit, nor for any damage which may result to your computer or other property by your use of the NG Profile/NG User or Services.
12. User Warranties; Indemnification
You warrant and represent to NG Profile/NG User that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation. You further warrant and represent that you are and shall at all times remain in full compliance with all applicable laws, rules and regulations with regard to your use of the NG Profile/NG User and Services, including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing.
13. Termination, Cancellation and/or Suspension by NG Profile/NG User
If at any time you breach these Terms, we may elect to suspend, terminate, and/or cancel your use of the Services and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination, or cancellation. We reserve the right to suspend the Services at any stage for any reason we may deem necessary to continue to provide our Services in a way that may be hindered by your status as being our client, your financial status or the content of the messages or broadcasts originating from you.
14. Termination by the User
You are free to terminate or cancel your use of the Services at any time, and for any reason. If you are on a monthly plan or pay for monthly Keywords or DIDs, login to your account, downgrade to Pay & Go and cancel any Keyword or DID subscriptions you may have. Notwithstanding the foregoing, unless due to a breach solely by NG Profile/NG User that it fails to cure within thirty (30) days of its receipt of your notice, in no event shall NG Profile/NG User be obligated to refund to you the reasonable value of any unused credits previously purchased by you.
15. Links to other Websites
The NG Profile/NG User may contain links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by NG Profile/NG User of the contents on such third-party websites. NG Profile/NG User is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.
16. Security Rules
You are prohibited from violating or attempting to violate the security of the NG Profile/NG User and Services and from using the NG Profile/NG User and Services to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user of the NG Profile/NG User or Services, host or network, including, without limitation, via means of submitting a virus to the NG Profile/NG User, overloading, “flooding,” “spamming,” “mail-bombing,” or “crashing”; (d) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (e) forging any NG Profile/NG User packet header or any part of the header information in any e-mail, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability. NG Profile/NG User may investigate violations of these Terms, and may involve and cooperate with law enforcement authorities in prosecuting users of the NG Profile/NG User who are involved in such violations.
17. Force Majeure
NG Profile/NG User shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications or Internet facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of NG Profile/NG User. In addition, NG Profile/NG User shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material necessary for the performance of the Services.
18. Choice of Law and Jurisdiction
These Terms shall be governed by and construed in accordance with the laws of the State of California notwithstanding its laws governing conflicts of laws. Except as hereinafter provided, any dispute arising under these Terms shall be settled and determined by binding arbitration in Stockholm, Sweden. A single independent judge at the Magistrate Court of Stockholm, arbitrator, shall conduct the arbitration. The parties shall endeavor to select the independent arbitrator by mutual agreement. If such agreement cannot be reached within thirty (30) days after a dispute has arisen which is to be decided by arbitration, the selection of the arbitrator shall be made by the Swedish Bar Association. The arbitration award will be final and binding upon the parties and no appeal of any kind may be taken. Judgment may be entered thereon in any court having jurisdiction thereof. Each party shall be entitled to inspect and obtain a copy of non-privileged relevant documents in the possession or control of the other party. All such discovery shall be in accordance with procedures approved by the arbitrator. Unless otherwise provided in the award, each party shall bear its own costs of discovery.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind NG Profile/NG User in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, NG Profile/NG User will be entitled to recover costs and attorneys' fees if it substantially prevails.