TEXTING & SMART SERVICES REGISTRY

GENERAL TERMS AND CONDITIONS

 

Last Updated:  May 31, 2016

Please read these Texting & Smart Service Registry General Terms and Conditions (the "TSS Registry Terms") carefully before using any products or services offered by Toll-free Data Services, Inc., a Delaware corporation, having a principal place of business at 2411 Dulles Corner Park, Suite 250, Herndon, VA 20171 ("TDSI").  By using any products or services offered by TDSI, including without limitation the Texting & Smart Services Registry, you signify your agreement to be bound by these TSS Registry Terms.

IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT USE THE TEXTING & SMART SERVICES REGISTRY.

These TSS Registry Terms apply to any person or entity using or accessing the TSS Registry (as such term is defined below) ("Licensee").

WHEREAS

  1. TDSI has developed a Texting & Smart Services Registry supporting text (and, when such functionality is enabled by TDSI, other multimedia services) message enablement of TFNs (defined below) and including, without limitation, all TDSI Texting & Smart Services Registry software and systems delivered or provided by TDSI to Licensee (whether offered to Licensee by TDSI as hosted, packaged, software-as-a-service, cloud-based, on-premise or otherwise), data, APIs, scripts, modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material (collectively, the "TSS Registry"); and
  2. Licensee desires to use and access the TSS Registry for one or more of the purposes set forth herein.

NOW, THEREFORE, in consideration of the ability to use and access the TSS Registry, Licensee agrees as follows:

1               DEFINITIONS:  In addition to capitalized terms expressly defined elsewhere in these TSS Registry Terms, the following terms shall have the meanings set forth below:

1.1           "Beta Tester" means an entity that has been granted early access to and use of the TSS Registry when such TSS Registry (or features or functionality thereof) is in pre-release or "Beta" stage.

1.2           "Data Distributor" means an entity that transmits text and/or multimedia messages to or from a TFN.

1.3           "Routing Database Provider" means an entity that facilitates the routing of text and/or multimedia messages to and from TFNs.

1.4           "Responsible Organizations" or "Resp Orgs" means those entities that have established access to any Somos systems and platforms to search for and reserve TFNs and create Toll-free call processing records.

1.5           "Service Registrars" are those entities that are authorized to upload to the TSS Registry requests from Toll-free Customers to enable TFNs to send or receive text and/or multimedia messages.

1.6           "Somos" means TDSI's affiliate Somos, Inc., a not-for-profit corporation organized and existing under the laws of the District of Columbia with its principal place of business at 2411 Dulles Corner Park, Suite 250, Herndon, VA 20171, and any successor or assign such TDSI affiliate.

1.7           "SMS/800 Database" means the database maintained by Somos under the Federal Communication Commission's 800 Service Management System (SMS) Function Tariff No. 1 for the purpose of facilitating the administration, routing and management of the TFN system. 

1.8           "Toll-free Access Service" means any communications service, including voice and/or data communications, that utilizes a TFN.  This may include voice calls, texts (short message service), multimedia messages ("MMS") or other similar services.

1.9           "Toll-free Call" means a telephone call terminated using a TFN.

1.10        "Toll-free Customer" means any person to whom a TFN is assigned.

1.11        "Toll-free Number" or "TFN" means a number contained in the SMS/800 Database starting with area codes 800, 888, 877, 866, 855, 844, 833 (when available), 822 (when available), and any other Toll-free area code designated by the North American Numbering Plan Administrator.

2               LICENSE:  TDSI grants to Licensee a non-exclusive, non-transferable license to use and access the TSS Registry solely and exclusively for one or more of the purposes set forth below, as may be applicable based on Licensee's role(s), subject to the terms and conditions set forth in these TSS Registry Terms and any other signed, written agreement between the parties relating to the TSS Registry:

2.1           BETA TESTING:  Beta Testers may access and use the TSS Registry for Beta testing prior to full release of the TSS Registry (or may Beta test any portions, features or functionality of the TSS Registry that are in Beta after release of the TSS Registry more generally, such as improvements, enhancements or modifications of the TSS Registry).

2.2           SERVICE REGISTRAR REQUESTS:  Service Registrars may use the TSS Registry to forward to TDSI on behalf of Toll-free Customers of the Service Registrar requests for enablement of texts and multimedia messages on a TFN obtained from a Resp Org, which requests shall include at least the Toll-free Customer's business name, authorized contact, authorized contact job title, contact information (telephone number and email), and the name of the Resp Org that originally issued the TFN to the Toll-free Customer and such other information as may be required from time to time by TDSI.

2.3           RESP ORG REVIEW:  Resp Orgs may query the TSS Registry periodically to check whether any of their TFNs have been provided to the TSS Registry for text and/or multimedia message activation, including when they receive a notice from TDSI or a Service Registrar identifying a TFN from the Resp Org that has been requested for enablement for texting and/or multimedia messaging.  The Resp Org will attempt to validate the TFN and the Toll-free Customer's identity. 

2.4           ROUTING DATABASE PROVIDER USE:  Routing Database Providers may download certain data from the TSS Registry, such as Toll-free Service Provider IDs ("TSPIDs") and routing information, as is necessary to facilitate the routing of text messages and/or other multimedia messages to and from TFNs that have been requested by Service Registrars and validated by Resp Orgs for text and/or multimedia message enablement.

To the extent that TDSI requires any compensation or other payments from Licensee for use of the TSS Registry, the terms of such payments will be as set forth by or on behalf of TDSI upon Licensee's registration or sign up for use or access to the TSS Registry, as posted by or on behalf of TDSI on the TSS Registry or such other location as may be specified by TDSI, by separate agreement, Service Order or Statement of Work between the parties, or which shall otherwise be provided by or on behalf of TDSI, any and all of which shall also be governed by these TSS Registry Terms. TDSI reserves the right to change its fees and payment requirements at any time in its sole discretion. TDSI may further require additional materials or information from potential Licensees who wish to use or access the TSS Registry, including without limitation a satisfactory credit check report, in addition to compliance with these TSS Registry Terms.

3               SERVICE REGISTRAR AUTHORIZATION:  If Licensee is a Service Registrar, Licensee represents and warrants that it has obtained a full written and legally binding authorization from each Toll-free Customer for whom Licensee requests text and/or multimedia message enablement for a TFN by which such Toll-free Customer authorizes Licensee to act on behalf of such Toll-free Customer for all purposes relevant to the text and/or multimedia message enablement of such Toll-free Customer's TFNs.  Licensee agrees to provide a copy of such written authorization to TDSI upon request.  Licensee agrees to use TDSI's preferred format for such authorization if requested by TDSI.  Licensee agrees to indemnify, defend and hold harmless TDSI and its directors, officers, employees, contractors, agents, affiliates, TSS Registry partners, and it and their successors, and assigns, (collectively, the "TDSI Indemnified Parties") from and against any and all liability (including, without limitation, attorneys' fees and costs) incurred by the TDSI Indemnified Parties in connection with any actual or alleged claim arising from Licensee's breach of this representation and warranty.

4               ADDITIONAL TERMS AND CONDITIONS:  In addition to the terms and conditions set forth herein, Licensee acknowledges and agrees to be bound by the terms and conditions and privacy, security and data protection policies required by TDSI, by TDSI's affiliate Somos and by any third-party TDSI partners or providers of services, systems, software, or other platforms for the TSS Registry, including without limitation the following terms, conditions and policies (which may be updated from time to time), including, but not limited to:

 

https://www.somos.com/privacy-policy

https://www.somos.com/terms-use

5               BETA TESTING COOPERATION:  In consideration for being granted early use of and access to the TSS Registry by TDSI, each Licensee serving as a Beta Tester will notify TDSI of all problems, suggestions, ideas for enhancements and other information which come to Licensee's attention while using the TSS Registry (collectively, the "Reports").  Licensee agrees to and does hereby assign to TDSI all right, title and interest to the Reports, and all suggestions and other information contained in the Reports, and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights.  TDSI does not have any obligation to implement anything contained in Licensee's Reports, and will not owe Licensee anything if TDSI chooses to implement any of the content contained in the Reports.  Any Licensee participating in any Beta Testing agrees that, upon completion of such Beta Testing, Licensee will provide material, statistics, or information that is not deemed confidential to Licensee's business for use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by TDSI.  Licensee will provide a quote to TDSI that may be used in a press release.

6               CONFIDENTIALITY:  Licensee agrees to treat the TSS Registry as a highly confidential and proprietary asset of TDSI and will not without the express written authorization of TDSI:

6.1           Demonstrate, copy, sell or market TSS Registry or any portion thereof to any third party; or

6.2           Publish or otherwise disclose information relating to performance or quality of the TSS Registry to any third party without TDSI's prior written consent; or

6.3           Use the TSS Registry for any purpose other than for as expressly permitted in Sec. 2 above; or

6.4           Modify, reuse, disassemble, decompile, reverse engineer or otherwise translate TSS Registry or any portion thereof.

7               CONFLICTS:  During the period of time Licensee is permitted to use and access the TSS Registry as set forth herein and for a period of one (1) year thereafter, Licensee agrees that it will not, directly or indirectly, own, operate, engage in, consult with, or have an interest in any business that is a competitor of the TSS Registry.

8               ROUTING DATABASE PROVIDER OBLIGATIONS:  In consideration for being given access to the TSS Registry, any Licensee who is acting as a Routing Database Provider agrees, represents and warrants that it will promptly facilitate the routing of texts and/or multimedia messages to and from TFNs. Additionally, any Licensee who is acting as a Routing Database Provider agrees, represents and warrants that it will not cease such facilitation without providing at least six (6) months' advanced written notice to TDSI.

9               DISCLAIMER OF WARRANTIES

9.1           BETA TESTING:  Each Licensee acting as a Beta Tester acknowledges and agrees that during the Beta test period for the TSS Registry itself or for any portions or functionality thereof, as applicable, the TSS Registry is prerelease code and is not at the level of performance or compatibility of a final, generally available product offering. The TSS Registry may not operate correctly and may be substantially modified prior to or after the first commercial shipment, or withdrawn. The TSS Registry is provided "AS IS" without warranty of any kind. The entire risk arising out of the use or performance of TSS Registry remains with Licensee. In no event shall TDSI be liable for any damage whatsoever arising out of the use of or inability to use TSS Registry, even if TDSI has been advised of the possibility of such damages.

9.2           GENERAL: TDSI, BY DELIVERING THE TSS REGISTRY OR MAKING IT AVAILABLE FOR LICENSEE'S USE OR ACCESS, DOES NOT WARRANT THE PERFORMANCE THEREOF, OR THE SECURITY OF CLIENT'S NETWORK OR COMPUTER SYSTEM FROM INVASION, ATTACK, OR DAMAGE FROM ACTS OF ANY PERSON, ENTITY, OR ORGANIZATION.  TDSI DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.  LICENSEE'S SOLE AND EXCLUSIVE REMEDY SHALL BE TO CEASE ALL USE OF THE TSS REGISTRY.

10               TERMINATION/MODIFICATION:  Licensee agrees that TDSI may terminate or modify these TSS Registry Terms, and terminate, modify, or revoke Licensee's access to the TSS Registry and the license granted hereunder immediately, at any time, in TDSI's sole discretion.

11            OWNERSHIP:  Licensee agrees that the TSS Registry is the sole property of TDSI and includes confidential, proprietary and trade secret information of TDSI and the unauthorized use or disclosure of the TSS Registry could cause irreparable harm and significant injury to TDSI for which TDSI would have no adequate remedy at law (including compensation by the award of damages). Therefore, TDSI will have the right, in addition to any other rights TDSI may have at law or in equity, to seek immediate injunctive relief enjoining any breach or potential breach of these TSS Registry Terms without the necessity of posting a bond or other security.

12            GOVERNING LAWS:  This License Agreement shall be governed, construed and enforced in accordance with the laws of the United States of America and of the State of Delaware without regard to its principles of conflicts of laws. Any legal suit, action or proceeding arising out of or related to this License Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Virginia in each case located in the County of Fairfax, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

13            NOTICE:  Any notice required by these TSS Registry Terms shall be given by electronic mail or by prepaid, first class, certified mail, return receipt requested to above address or such other address as may be given from time to time under the terms of this notice provision. 

14            INTEGRATION CLAUSE:  These TSS Registry Terms, together with the additional terms and conditions and policies incorporated herein in Section 4 above, and any fully executed agreements such as Service Orders or Statements of Work between the parties, constitutes the entire and only agreement between the parties respecting access to the TSS Registry and all other prior negotiations, representations, agreements, and understandings pertinent to the TSS Registry are superseded hereby. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties.

15            COMPLIANCE WITH LAWS:  Licensee shall comply with all applicable federal, state and local laws, regulations, and ordinances in connection with its activities pursuant to these TSS Registry Terms.

16            NO WAIVER:  Failure of TDSI to enforce a right under these TSS Registry Terms shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.

17            SEVERABILITY:  If any provision of these TSS Registry Terms shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of these TSS Registry Terms.

TDSI reserves the right to modify and update these TSS Registry Terms from time to time at its sole discretion.