SUPPLEMENTAL AGREEMENT TO REPCARD
TERMS AND CONDITIONS
Last modified: August 2022
This Supplemental Agreement to the RepCard Terms and Conditions (the “Supplemental Agreement”) is entered into by and between REPCARD, LLC, an Arizona limited liability company (“RepCard”), and RepCard Company Account Owner (“Customer”), as of the day they turn off the Automated Opt-In Pop Up Feature (“Effective Date”) and supplements the existing RepCard Platform Terms and Conditions to which Customer is a party (the “Terms”) as follows.
It is the parties’ intention for this Supplemental Agreement to supplement and clarify the parties’ rights and obligations, but not override or replace, any rights or obligations in the Terms themselves. However, in the event of any conflict or discrepancy between the language of this Agreement and that contained in the Terms, the language contained in this Supplemental Agreement shall control and supersede that of the Terms, with all other provisions of the Terms remaining in full force and effect. Unless otherwise defined herein, any capitalized terms in this Supplemental Agreement shall have the same meaning as used in the Terms.
1. Customer Responsibility for Consents and Legal Compliance for Calls and Messaging. Customer acknowledges that the Platform includes certain “opt-in” mechanisms through which end-users of Customer may give their affirmative consent to receiving automated SMS/text messages from Customer through the Platform. Customer has notified RepCard of its decision to not employ or to disable such mechanisms. Customer nonetheless acknowledges and agrees that the Platform may NOT be used for sending any unsolicited messages except with our prior written approval (which RepCard reserves the right to withhold in its sole and absolute discretion) and may NOT be used for sending any messages that violate applicable law, the Terms, any Additional Terms, or our Anti-Spam Policy.
RepCard’s Anti-Spam Policy applies to Customer’s use of the Services and Platform and is incorporated into the Terms. The general information outlined in the Terms is not an exhaustive list of or source for applicable laws, guidelines, and compliance responsibilities pertaining to Customer’s use of the Platform. The information is provided merely as a courtesy and is not intended to replace Customer’s responsibility to familiarize itself with, and abide by, any federal, state, and local legal requirements pertaining to its messaging practices prior to using the Services and Platform. This section is not intended to be and does not constitute legal advice. Customer should consult a lawyer for legal advice on its texting, e-mail, and other messaging practices.
Before downloading, accessing, and using the Services and Platform, Customer agrees to review and abide by all federal, state, and local laws, statutes, and regulations, as well as applicable text/SMS/MMS messaging/telecommunications industry guidelines, and check for any revisions or updates thereto, including, but not limited to, the following laws and guidelines, as may be amended:
- Telephone Consumer Protection Act (“TCPA“), 47 U.S.C. § 227, et seq., and related regulations, 47 C.F.R. Part 64.1200, et seq;
- Telemarketing Sales Rule (“TSR“), 16 C.F.R. Part 310, et seq.;
- Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM“) Act of 2003;
- Mobile Marketing Association (“MMA“) U.S. Consumer Best Practices Guidelines for Messaging;
- Cellular Telecommunications Industry Association (“CTIA“) Best Practices and Guidelines for Location-Based Services;
- CTIA Messaging Principles and Best Practices;
- CTIA SMS Interoperability Guidelines; and
- CTIA Short Code Monitoring Program Handbook.
For further information, Customer is encouraged to visit the following websites, including:
- Federal Communications Commission, http://www.fcc.gov
- Federal Trade Commission, http://www.ftc.gov
- Do-Not-Call Registry Info, http://www.donotcall.gov
- MMA, http://www.mmaglobal.com
- CTIA, http://www.ctia.org
By accessing and using the Services and Platform, Customer represents and warrants that the owners of the phone numbers to which it will transmit outbound text messages through the Platform have expressly consented to, or otherwise opted-in to, the receipt of such messages, in accordance with the TCPA, TSR, and all other applicable federal, state, local laws, statutes and regulations and industry guidelines. Customer acknowledges and agrees that it is solely responsible for all acts or omissions or violations of law that may occur in connection with its use of the Platform or Services.
The Services may allow Customer the ability, at our discretion, to upload previously opted-in mobile numbers to keywords on the Platform. Customer acknowledges and agrees that it shall have the sole and unconditional responsibility for obtaining any consents for uploaded mobile numbers and for complying with any terms and/or conditions that may govern these previously opted in mobile numbers, even if it should use any mobile alert terms and conditions we might make available through the Platform.
Customer further agrees that it will not access or otherwise use any third-party list of phone numbers or otherwise engage in unsolicited messaging in connection with its use of the Services or the Platform. Additionally, Customer agrees not to send messages to its users through the Platform beyond the frequency represented in any of its disclosures or terms.
Customer further agrees that, in connection with its use of the Services, it will at all times import, add, edit, access, and otherwise use only contact information with proof (which it shall retain in accordance with the TCPA, and other applicable federal, state, local laws, statutes and regulations and industry guidelines) of each of its users’ consent to receive communications from Customer. We reserve the right, at our sole and absolute discretion, to suspend or deny access to import functions, to impose a stringent qualification process, to require proof of consent or opt-in method, or to require documentation of Customer’s or its organization’s legal identity.
Customer agrees to represent truthfully its identity, the identity of its organization, product or service, availability of goods or services, pricing, benefits, and any other offering aspects in Customer’s messaging through the Platform.
Customer agrees to comply with all local, state, and federal laws and regulations, as well as general industry best practices, governing its content or promotion type.
RepCard maintains a zero-tolerance policy toward spam in all forms. Although we do not assume any duty or obligation to monitor customer messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by Customer or any third-party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Services and Platform.
To this end, all Customer mobile marketing messages sent must conform to the latest available best-practice guidelines drafted and published by the MMA (currently available at http://www.mmaglobal.com/policies/consumer-best-practices) and the CTIA (currently available at https://api.ctia.org/wp-content/uploads/2019/07/190719-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf), which Customer agrees to review, train or direct its staff on, and strictly abide by before using the Services and Platform. Customer agrees that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on its company DNC or suppression list. Customer further agrees that it will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or “STOP” request.
Customer hereby acknowledges and confirms that RepCard merely provides a platform for facilitating the sending of Customer’s SMS/text messages, and that Customer shall have sole responsibility and liability for its messages and communications. Customer is solely responsible for the content of its messaging sent through the Platform. Customer will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages.
Customer further agrees to defend, indemnify, and hold harmless RepCard from and against any and all claims or damages which may be related to or result from Customer’s use of the Platform and Services, including, but not limited to, claims, damages, or lawsuits threatened or filed by third parties as well as inquiries and investigations by local, state and federal regulators. We reserve the right to hold, suspend or terminate Customer’s account or access to the Platform or Services for any alleged or actual violation of this Section and/or any unusual or suspicious activity related to Customer’s account.
2. Defense and Indemnity. By accessing and using the Platform and Services, Customer hereby agrees to defend, indemnify, and hold RepCard Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any RepCard Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) the Platform or Services, or any use thereof, including but not limited to any alleged or actual violation of the TCPA or other applicable laws, statutes, or regulations; (ii) Customer’s use of the Platform or Services, and Customer’s activities in connection with the Platform or Services, including, without limitation, any message sent by Customer through its use of the Platform or use of SMS/MMS codes; (iii) Customer’s breach or alleged breach of the Terms, the Anti-Spam Policy, or any Additional Terms; (iv) Customer’s violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with its use of the Platform, Services, or its activities in connection therewith; (v) information or material transmitted through Customer or its staff’s devices, even if not submitted by Customer, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by Customer; (vii) any other party’s access and/or use of the Platform or Services with Customer’s account; (viii) any failure to obtain consents required by applicable law or regulations prior to sending communications using the Platform or Services; (ix) any privacy or spam policy violation alleged to have been committed through any use of Customer’s account; and (x) RepCard Parties’ storage, use and distribution of the information and data (including mobile numbers) that Customer provides (all of the foregoing, “Claims and Losses“).
Customer agrees to cooperate as fully as required by the RepCard Parties in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action involving Claims and Losses, but we reserve the right, at Customer’s expense, to assume the exclusive defense and control of any matter in which it is a named party and that is otherwise subject to indemnification by Customer. Customer shall not settle any Claims and Losses without, in each instance, the prior written consent of an authorized officer of a RepCard Party. Customer acknowledges and agrees to be held liable for any and all damages caused to the RepCard Parties by Customer as a direct result of a violation of local, state, national or international laws and regulations, including, but not limited to, those damages that may arise from its fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by the RepCard Parties to Customer.
3. General Provisions.
a) Counterparts. This Supplemental
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. This Supplemental Agreement may be executed and delivered by
facsimile or electronic mail and the parties agree that such execution and
delivery shall have the same force and effect as delivery of an original
document with original signatures, and that each party may use such facsimile
signatures as evidence of the execution and delivery of this Supplemental Agreement
by all parties to the same extent that an original signature could be used.