These terms apply to individuals who access Bitesize’s Service by (1) messaging with a Bitesize customer who already has their contact information, or (2) texting a short code or long code as offered by a Bitesize customer.
The following terms and conditions governs use of the Bitesize Service by individuals (“Subscribers” or “you”) who send an SMS or MMS message to a short code, or who make a call or send an SMS or MMS message to a long code managed by a Bitesize customer. The Service is offered, subject to your acceptance, without modification of all of the terms and conditions contained herein, including the provisions calling for arbitration of disputes that may arise out of use of the Service, and all other operating rules, policies and procedures that may be published from time to time by Bitesize. Please read these Subscriber Terms carefully before accessing or using the Service. By accessing or using any part of the Service, you agree to be bound by these Subscriber Terms. If you do not agree to these Subscriber Terms, then you may not access or use the Service. Bitesize may amend the Subscriber Terms from time to time, and we will provide notice of any substantive changes on our website located at http://Bitesize.com/terms. You are responsible for periodically visiting our website and these Subscriber Terms to check for any changes.
The Service is available only to individuals who are at least thirteen (13) years old. By using the Service you represent that you are at least 13 years of age and otherwise able to enter into a valid and binding legal agreement and acknowledge that these Subscriber Terms constitute a valid, binding agreement between you and us.Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
MOBILE TERMS AND MESSAGING FEES
Bitesize does not charge a fee for you to use the Service, but any text messages sent and/or received are subject to standard text messaging rates. Additionally, text messages or voice calls sent and/or received from us may count towards a quota depending on your carrier’s plan. Text messaging, and voice rates, and quotas can normally be found by asking your carrier.
All subscribers, including you, have the ability to unsubscribe or opt out-of the Service at any time as described below: • Stop messages: To stop receiving text messages and calls from any Bitesize customer, text STOP to the Short Code or Long Code that you wish to cease receiving messages from in the future. In the event you use the Service with multiple Bitesize customers, we may send you an automated message to clarify which customer you want to cease receiving messages from. Bitesize may also send a single confirmation message in case of an accidental unsubscription. • Start messages: To restart receiving text messages and calls from any Bitesize customer, text START to the Short Code or Long Code. In the event you use the Service with multiple Bitesize customers, we may send an automated message to clarify which customer you want to restart receiving messages and calls from. • For our Peer-To-Peer Service, simply text or call the person via their ten digit number displayed on your device and request that you be unsubscribed. • Email Bitesize at [email protected], provide us your own phone number and number you received calls or messages from, and tell us that you want to unsubscribe. You may also email us at [email protected] in the event you believe that a Bitesize customer has added your information in error or without your permission. Please note that opt-outs are tracked separately for each Bitesize customer. So unsubscribing from one Bitesize customer would allow you to keep communicating with a different customer.
SMS/MMS USAGE POLICY
This SMS/MMS Usage Policy is designed to prevent fraud and abuse of our subscriptions by a small number of individuals. SMS/MMS usage is limited and any subscriber who sends more than ten (10) messages in a row without receiving a response from the Bitesize customer may lead to restricted use and possibly termination of the Services.
Bitesize collects your phone number in the following ways: • When you text a keyword to a Short Code managed by Bitesize, or call or text message a Long Code managed by a Bitesize customer, we collect your phone number when the message or call is routed through our system. • If you have previously provided your contact information to a Bitesize customer, we collect your phone number when our customer connects their database with Bitesize.
We may augment this data with: • Data submitted by you via our Short Code Service. For instance, after texting one of our customer’s keywords on our Short Code, the Short Code may respond automatically asking you for your zip code. If you provide a zip code, we will use it to connect you to our customer’s representative or agent located nearest you. • Data input manually by a Bitesize customer during the course of a peer-to-peer conversation. For instance, a person who is a Bitesize customer may ask you for your name during a text message conversation or a voice call, and then record your name alongside your phone number by typing your name into their contacts. • Data collected from 3rd parties by matching your email, phone number, or other information provided to us by you or a Bitesize customer. For instance, when a Bitesize customer uploads a list of phone numbers of their own contacts, we may use a 3rd party service to determine which phone numbers can be text messaged (i.e. which numbers belong to cell phones and which belong to landlines). • Metrics collected through normal usage of the Service. For instance, Bitesize may track and display to a customer the last time you sent or received a message. • From information provided to us automatically from the database of a Bitesize customer. For instance, if you signed up on a Bitesize customer’s website and provided your name and phone number, we would store your name and display it to our customer at various relevant times (e.g. in our text messaging app used by customers.)
Bitesize will not, with regards to the content of your peer-to-peer messages: • Automatically scan the content of your messages, use it for the purpose of targeted contextual advertising, or use it to profile you, unless such activity is disclosed to you or required by law or for SPAM prevention purposes.
Bitesize’s Peer-to-Peer Service fully complies with the requirements of a “Peer-to-Peer Text Messaging Service” as specified by the CTIA’s SMS Interoperability Guidelines Version 3.2.2, effective January 1, 2015. Bitesize’s Short Code Service fully complies with the Short Code Compliance Framework specified by the CTIA’s Short Code Monitoring Handbook Version 1.4.1., effective November 1, 2014. For more information on these requirements and the CTIA, please visit http://ctia.org. For more information on Common Short Codes, please visit http://www.usshortcodes.com.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. You agree to indemnify and hold harmless Bitesize, its contractors, agents and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including reasonable attorneys’ fees, arising out of your use of the Service, including but not limited to your violation of these Subscriber Terms, or your breach of any representation or warranty contained in these Subscriber Terms. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
If you submit material or information or otherwise make (or allow any third party to make) material available by means of the Service (any such material, “Content”), you are entirely responsible for the content of, and any harm resulting from, that Content. By using the Service, you assume responsibility for your use of the Service and agree not to use it in ways not authorized by Bitesize as described in these Subscriber Terms. You represent and warrant that you own and control all of the rights to the Content that you submit using the Service, or you otherwise have the right to post the Content on the Service. You represent and warrant that the posting of the Content you supply does not violate these Subscriber Terms, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for us or for third parties.
Using the Service means that you will: • comply with all applicable laws and regulations; • not use the Services to infringe the intellectual property rights of others; • not use the Services to submit Content that is pornographic, libelous or defamatory, or contains threats or incites violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party; • ensure that your Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive Content; • ensure that your Content is not being sent in connection with any unlawful acts (such as phishing) or misleads recipients as to the source of the material (such as spoofing); • strictly comply with any carrier terms and terms associated with your mobile device; and • not attempt to disrupt the Service.
CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Company consents to all publication of results, logo, name, details and responses with regards to text message campaigns that do not divulge private personal consumer information on Bitesize website, case studies, marketing materials or any forms of media deemed appropriate for public consumption in all future communication usage.
PAYMENT OF FEES
Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. Once made, any payment shall not be refunded or refundable for any reason except as may be required pursuant to Section 10 of the Agreement. Notwithstanding the foregoing, in case of clerical error with respect to any payment made under the Agreement the Parties agree to remedy any such error through proper payment adjustments.
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received at the time the order is placed. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Bitesize AND ITS OFFICERS, DIRECTORS AND AGENTS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Bitesize DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE, AND YOU RELY ON THE SERVICE AT YOUR OWN RISK. ANY MATERIAL TRANSMITTED OR STORED THROUGH USE OF THE SERVICE IS DONE AT YOUR DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE TRANSMISSION OF ANY MATERIAL THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Bitesize OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE SUBSCRIBER TERMS. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
NEITHER BITESIZE NOR OUR DIRECTORS, OFFICERS OR AGENTS WILL 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 BITESIZE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES) RESULTING FROM YOUR USE OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL BITESIZE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE SUBSCRIBER TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF THE TOTAL AMOUNT PAID BY YOU TO BITESIZE FOR THE SERVICE OR $500. THE LIMITATIONS SET FORTH IN THESE SUBSCRIBER TERMS APPLY EVEN IF ANY LIMITED REMEDY UNDER THESE SUBSCRIBER TERMS FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION ON CONSEQUENTIAL OR INCIDENTAL DAMAGES MAY NOT APPLY TO YOU.
DISPUTE RESOLUTION AND ARBITRATION
NO CLASS ACTIONS
YOU AGREE THAT DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in the Dispute Resolution and Arbitration Section will be null and void. This arbitration agreement described herein, however, will survive the termination of your relationship with us.
These Subscriber Terms constitute the entire terms between Bitesize and you concerning your use and access of our Service, and may only be modified by a written amendment signed by an authorized executive of Bitesize, or by the posting by Bitesize of a revised version on our website. You agree that any notice, terms, disclosure, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing or otherwise be authorized. There are no third party beneficiaries to these Subscriber Terms. Our failure to act in a particular circumstance does not waive our ability to act with respect to that circumstance or similar circumstances. If any provision of these Subscriber Terms 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 other provisions of the Subscriber Terms that shall remain in full force and effect. You authorize us to send you notices relating to these Subscriber Terms (e.g. notices of modifications, breach and/or suspension and regarding our Service) via a text message to the mobile number used by you when accessing the Service. Notices that we send to you will be deemed effective upon our sending of the message. Notices sent to us under these Subscriber Terms shall be sent to the attention of our legal counsel with respect to any legal matters at: Bitesize, Inc. 2 Embarcadero Center, 8th Floor, San Francisco, CA 94111 or [email protected].