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.
Customer further agrees to our Privacy
Policy and Anti-Spam policies described and hyperlinked in the Terms and agrees
to enforce the permission-based marketing practices described below with anyone
using its account as required by law. Customer
agrees to assume full responsibility and accept the legal consequences of any
action by anyone using Customer’s RepCard account. We reserve the right to suspend or terminate Customer’s
account at any time, at our sole discretion, and without prior warning or
refund if Customer’s account activity is reasonably believed to violate any
term in the Terms, Additional Terms, the Anti-Spam Policy or applicable law. Customer acknowledges and agrees that violation
of applicable anti-spam laws and regulations, regardless of whether
specifically described below, may also result in third-party legal actions
against it. RepCard also reserves the
right to terminate Customer’s access to the Platform and Services at any time
and immediately if we believe that Customer’s conduct is harmful to the
interests of RepCard. We reserve the
sole discretion and right to permanently delete any data stored in Customer’s
account immediately after account termination and any of Customer’s assigned
SMS/MMS codes or keywords may be reassigned by us to other customers.
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.
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