Mobile Messaging Terms and Conditions
Last updated: 11/03/2022
- Program Description: We may send promotional and transactional mobile messages in various formats through the Program. Promotional messages advertise and promote our products and services and may include [promotions, specials, other marketing offers, event reminders, updates, and other reminders]. Mobile messages may be sent using an automated technology, including an autodialer, automated system, or automatic telephone dialing system. Message frequency will vary [but will not exceed 40 messages per month]. You agree that we, our affiliates, and any third-party service providers may send you messages regarding the foregoing topics or any topic and that such messages and/or calls may be made or placed using different telephone numbers or short codes. We do not charge for mobile messages sent through the Program but you are responsible for any message and data rates imposed by your mobile provider, as standard data and message rates may apply for SMS and MMS alerts.
- User Opt-In: By providing your mobile phone number to us, you are voluntarily opting in to the Program and you agree to receive recurring mobile messages from us at the mobile phone number associated with your opt-in, even if such number is registered on any state or federal “Do Not Call” list. You agree that any mobile phone number you provide to us is a valid mobile phone number of which you are the owner or authorized user. If you change your mobile phone number or are no longer the owner or authorized user of the mobile phone number, you agree to promptly notify us at email@example.com. Your participation in the Program is not required to make any purchase from us and your participation in the Program is completely voluntary.
- User Opt-Out and Support: You may opt-out of the Program at any time. If you wish to opt- out of the Program and stop receiving mobile messages from us, or you no longer agree to these Mobile Messaging Terms, reply STOP, QUIT, CANCEL, OPT-OUT, and/or UNSUBSCRIBE to any mobile message from us. You may continue to receive text messages for a short period while we process your request and you may receive a one-time opt-out confirmation message. You understand and agree that the foregoing is the only reasonable method of opting out. For support, reply HELP to any mobile message from us. Our mobile messaging platform may not recognize requests that modify the foregoing commands, and you agree that we and our service providers will not be liable for failing to honor requests that do not comply with the requirements in these Mobile Messaging Terms. We may also change the telephone number or short code we use to operate the Program and we will notify you of any such change. You acknowledge that any requests sent to a telephone number or short code that has been changed may not be received by us and we will not be responsible for failing to honor a request sent to a telephone number or short code that has been changed.
- Disclaimer of Warranty and Liability: The Program is offered on an “as-is” basis and may not be available in all areas, at all times, or on all mobile providers. You agree that neither we nor our service providers will be liable for any failed, delayed, or misdirected delivery of any mobile message or information sent through the Program.
- Modifications: We may modify or cancel the Program or any of its features at any time, with or without notice. To the extent permitted by applicable law, we may also modify these Mobile Messaging Terms at any time. Any such modification will take effect when it is posted to our website. You agree to review these Mobile Messaging Terms periodically to ensure that you are aware of any modifications. Your continued participation in the Program will constitute your acceptance of those modifications.
The DuCAP Website (“Website”) is not intended to be a source for legal, accounting or professional advice. Visitors to this Website should always seek the advice of an appropriately qualified, licensed professional for those services. DuCAP assumes no responsibility for information contained on this Website and disclaims all civil or criminal liability in respect of such information. In addition, none of the content in this Website will form any part of any contract or agreement between DuCAP and any user, or constitute any type of offer by DuCAP to any person outside of this Agreement and the Services.
DuCAP accepts no responsibility for and excludes all civil or criminal liability in connection with any user browsing this Website and for the user using the information or downloading any materials from it, including, but not limited to, any liability for errors, inaccuracies, omissions or misleading or defamatory statements. The information at this Website might include opinions or views, which, unless expressly stated otherwise, are not necessarily those of DuCAP.
All content and information at this Website might be changed or updated without any notice. This Website might also make changes or improvements at any time, without any notice. This Website, and all materials, are provided to users “as is” and DuCAP expressly disclaims any and all representations or warranties, express or implied, to the extent permitted by law, including, but not limited to, warranties of satisfactory quality, merchantability, fitness for a particular purpose, non-infringement of third party rights or the presence or absence of any computer virus with respect to the Website service or any materials or content herein. Reference within this Website to any specific commercial or non-commercial product, process or service by trade name, trademark, manufacturer or otherwise does not constitute or imply any endorsement, recommendation, support or favoring by DuCAP.
Links to external or third-party Websites are provided solely for user convenience. Links taken to other sites are done so at the risk of the user and DuCAP accepts no liability for any linked sites or their content.
DuCAP grants to you a limited, non-exclusive, non-transferable license to use the videos, book and all materials (whether printed, downloaded or viewed online) (“Materials”) in whole or in part. Each Material transaction is governed by the terms of a single, specific license, which specifically identifies the Material and covers no other Materials. By licensing the Materials, you agree to use the Materials for your personal or business use and further agree not to re-sell, give away or otherwise make the Materials available to others.
Any purported re-sale, re-publication, distribution, assignment, loan, transfer or sub-license of the Materials without the express written consent of DuCAP is prohibited and void, and shall automatically terminate the license granted under this Agreement. You shall not represent that you own or have any proprietary interest in the Materials nor that you are an agent or employee of DuCAP. You agree not to modify, copy or adapt the Materials or to create derivative works therefrom, nor file, store or incorporate the Materials into any data or information system, nor permit any person to do any of the foregoing. DuCAP prohibits the use of the Materials for commercial or for-profit training. All Materials are protected by copyrights owned exclusively byDuCAP.
Neither party shall, by virtue of this Agreement, acquire any ownership licensed or any other rights in any pre-existing graphics, software, documentation, or intellectual or technological property of the other party. DuCAP shall retain all rights, title and interest in and to all previously existing or newly created intellectual property, whether in trademark, copyright, patent, trade secret or other similar rights that have not been expressly assigned to Client pursuant to this Agreement.
Photograph and Video Release:
DuCAP owns and Client grants permission to the rights of Client’s image, likeness, and sound of his or her voice as recorded on audio or videotape during the programs and services without payment or any other consideration. Client understands that his or her image may be edited, copied, exhibited, published, or distributed and waives the right to inspect or approve the finished products wherein his or her likeness appears. Additionally, Client waives any rights to royalties or other compensation arising out of or related to the use of his or her image or recording.
Right to Publish:
DuCAP shall retain the right to publish, or otherwise publicly present, information, know-how and knowledge DuCAP gained or generated during the course of its service under this Agreement.
Confidentiality & Materials
Each Party shall not directly or indirectly disclose to any person other than a representative of the other Party at any time either during the term of this Agreement or following the termination or expiration thereof, any confidential or proprietary information pertaining to the other Party, including but not limited to customer lists, contacts, financial data, sales data, supply sources, business opportunities for new or developing business, plans and models, or trade secrets. Confidential Information shall not include information that:
- (i) comes into the public domain through no breach of confidentiality;
- (ii) the receiving party can show that the Confidential Information was known to it prior to disclosure;
- (iii) the party that received the Confidential Information later receives the same information from a third party
- having no duty of confidentiality to the disclosing party; or
- (iv) was independently developed by the receiving party without the use of the Confidential Information.
Nothing in this provision will restrict DuCAP’s use of any knowledge, experience or know-how gained by DUCAP during the course of this Agreement, on similar engagements for other clients, irrespective to the similarity, if any, to any aspect of Services provided to Client.
Any attempt on the part of Client to induce others to leave DuCAP’s employ, or any effort by Client to interfere with DuCAP’s relationship with its other employees, independent contractors, subcontractors and consultants would be harmful and damaging to DuCAP. Therefore, Client agrees that during the term of this Agreement and for a period of 2 (two) years after termination of this Agreement, Client shall not in any way, directly or indirectly, either personally or by agent or letters, circular or advertisements and, whether for itself or on behalf of any other person, company or firm:
1) canvas or solicit business (for any business similar to those being provided by DuCAP at the time of the termination of this Agreement) from any person, company or firm who is at the time of such termination of this Agreement or has been at any time within 2 (two) years prior to such termination of this Agreement, a customer of DuCAP,
2) induce or attempt to induce any employee, independent contractor, subcontractor or consultant of DuCAP, to quit employment or retainer with DuCAP,
3) otherwise interfere with or disrupt DuCAP’s relationship with its employees, independent contractors, subcontractors and consultants,
4) discuss employment opportunities or provide information about competitive employment to any of DuCAP’s employees, independent contractors, subcontractors and consultants, or
5) solicit, entice, or hire away any employees, independent contractors, subcontractors or consultants of DuCAP.
The covenants made in this Article shall be construed as an agreement independent of any other provisions of this Agreement, and shall survive the termination of this Agreement.
Client agrees to defend, indemnify, reimburse and hold DuCAP and its parent, subsidiary and affiliated entities, and its and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses (including reasonable attorney’s fees, costs and expenses and court costs) arising out of or related to Client’s and/or Client’s affiliates, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns:
- breach of this Agreement,
- failure to discharge its duties and responsibilities set forth in this Agreement, or
- negligence, gross negligence or willful misconduct.
The remedies set forth in this Article are in addition to, and not in lieu of, all other remedies that may be available to Indemnified Party, including the indemnification rights under this Article.
The provisions of this Agreement will be enforceable notwithstanding the existence of any claim or cause of action of Client against DuCAP whether predicated on this Agreement or otherwise. Nothing in this Agreement will be construed as prohibiting DuCAP from pursuing any other remedies available to it for such unauthorized use or disclosure or from pursuing any remedies for any other breach or threatened breach of the Agreement, including the recovery of damages from the other party.
Reimbursement for Costs and Fees:
In the event DuCAP shall be forced to bring any legal action to protector defend its rights hereunder and prevails, then DuCAP shall be entitled to be reimbursed from Client of all fees, costs and other expenses (including, without limitation, the reasonable expenses of its or their attorneys) in bringing or defending against such action. If DuCAP is successful in bringing such action and receiving a settlement or judgment and Client delays in paying such settlement or judgment then DuCAP shall be entitled to an annual interest rate of 9% on the late payment or, if lower, the highest rate allowed by law.
This Agreement constitutes the entire understanding of the parties and supersedes all prior discussions, negotiations, agreements and understandings, whether oral or written, with respect to its subject matter.
The remedies under this Agreement are cumulative and shall not exclude any other remedies to which any person may be lawfully entitled.
Force majeure as mentioned herein refers to war, fire, earthquake, flood, epidemic, pandemic, power outages, internet service interruptions and other manmade or natural disasters, acts of terrorism or any event which is unforeseeable and unavoidable when both parties sign this Agreement. Should either party be prevented from or delayed in performing all or part of its obligations under this Agreement owing to force majeure, it shall be exempt from the Liability for Breach of Contract arising there from, but it shall continue to perform this Agreement after the influence of force majeure is removed. If the influence of force majeure makes it impossible to perform this Agreement, both parties may terminate this Agreement and negotiate for a resolution.
No change or modification of this Agreement shall be valid unless it is in writing and accepted by all the parties who are bound by the terms of this Agreement.
The parties may not assign the rights, or delegate duties under this Agreement without advance written approval of the other Party except that DuCAP may assign its rights to an affiliate company.
The parties agree that each of the covenants contained herein shall be construed as independent of any other covenant or provision of this Agreement. If all or any portion of a covenant in this Agreement is held to be unreasonable or unenforceable by a court or agency having valid jurisdiction in a final decision to which DuCAP is a party, the Client expressly agrees to be bound by any lesser covenant subsumed within the terms of such covenant that imposes the maximum duty permitted by law, as if the resulting covenant was separately stated in and made a part thereof.
If any provision of this Agreement or the application of any such provision to any person or circumstance shall be held invalid, the remainder of this Agreement or the application of such provision to persons or circumstances other than those to which it is held invalid shall not be affected thereby.
No failure or delay by DuCAP in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement
Heirs and Assigns:
This Agreement will inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns, as the case may be, of DuCAP and Client.
This Agreement shall be governed by, and construed under, the laws of the State of Illinois, without regard to any conflicts or laws or choice of laws principles that would require the application of the laws of any jurisdiction other than the State of Illinois, all rights and remedies being governed by said laws.
Venue and Jurisdiction:
Should a lawsuit be necessary to enforce this Agreement the parties agree that jurisdiction and venue are waived and suit shall be brought in the county of the principal office of DuCAP.
All notices, requests, consents and other communications hereunder shall be in writing and shall be deemed sufficient if personally delivered, or sent by nationally-recognized overnight courier, by telecopy, or by registered or certified mail, return receipt requested and postage prepaid, addressed to each Party as listed in the first paragraph herein or to such other address as the party to whom notice is to be given may have furnished to each other party in writing in accordance herewith. Any such notice or communication shall be deemed to have been received
- (A) in the case of personal delivery, on the date of such delivery,
- (B) in the case of email, 24 hours after the email was sent,
- (C) in the case of nationally-recognized overnight courier, on the next business day after the date when sent,
- (D) in the case of telecopy transmission, when received, and in the case of mailing, on the third business day following that on which the piece of mail containing such communication is posted.
Client agrees that his/her assent to this Agreement shall be legally binding, whether by: written signature, electronic signature, digital signature, clicking an online check box, or similar means of assent to these terms.
Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.
Facsimile & Electronic Copy:
This Agreement may be executed in several counterparts, each of which shall be deemed an original, all of which shall constitute one and the same document. A facsimile copy, or an electronic scanned copy, and any signatures affixed hereto shall be considered for all purposes as originals.
This Agreement may be executed in any number of counterparts and by different parties to this Agreement in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement.