Effective: January 1, 2020
1. Acceptance. Please carefully read the representations, warranties, conditions, covenants and agreements set forth below in this end user license agreement (the “Agreement”) as they contain the legal terms that govern Your use of TextNow, Inc.'s (“TextNow”, “2ndline”, “We”, “Us” or “Our”) telecommunications service known as “Services” and the App (as defined below). This Agreement is a binding contract between you (“You”, “Your” or the “User”) and TextNow and it explains Your rights and obligations when You use the App and Services. In this Agreement “App” means the software applications (such the TextNow Application and the 2ndline Application) distributed by TextNow for use on Your Device (as defined below) in order to access the Services, as well as any future versions, improvements, developments, programming fixes, updates and upgrades thereof; and “Device” means a mobile phone, smartphone, handset, tablet, laptops, or other devices enabled for internet access and/or communication including web applications running under browsers and applications running under Android and iOS operation systems.
3. Modification. TextNow reserves the right to change the terms of this Agreement at any time by publishing the revised Agreement on the TextNow website. The revised Agreement shall become effective within thirty (30) days of such publication, unless You expressly accept the revised Agreement earlier by clicking on the accept button (if this option is made available). Your express acceptance or Your continued use of the Services after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at https://www.textnow.com/terms.
(a) Downloading of the App, use of the Services and registration for an account to use the Services (“Your Account”) is void where prohibited by law. You must not be under 13 years of age to use the Services (including, but not limited to, registering for an account). By registering for the Services, You represent and warrant that You are not a minor and that You have the capacity to enter, understand, agree to and comply with this Agreement. Your Account may be deleted and Your access to the Services may be terminated without warning if We believe that You or Your Account is not in compliance with this Section a or any other provision of this Agreement.
(b) You represent and warrant that You are not a resident of the European Economic Area or EU. If You are a resident of the European Economic Area or EU, please deactivate Your account with Us. We are currently focused on US and Canadian markets and have not yet implemented the EU’s General Data Protection Regulations.
(a) The Services do not feature all of the services of a mobile phone. You cannot make 9-1-1 emergency calls using the Services. However, if you have a mobile cellular device, you may be able to access 9-1-1 emergency services from the hardware of your cellular device.
(b) You acknowledge and understand that TextNow will not be liable for any inability to access 9-1-1 emergency services through the Services. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TEXTNOW, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS WILL NOT BE LIABLE FOR ANY INJURY, DEATH OR DAMAGE TO PERSONS OR PROPERTY, ARISING DIRECTLY OR INDIRECTLY OUT OF, OR RELATING IN ANY WAY TO THE NON-PROVISION OF 9-1-1 CALLING CAPABILITIES THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY INABILITY ON THE PART OF YOU OR OTHER USERS TO ACCESS 9-1-1 EMERGENCY SERVICES, AND YOU AGREE TO INDEMNIFY AND HOLD HARMLESS TEXTNOW, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND UNDERLYING CARRIERS FROM ANY LIABILITIES, CLAIMS, DAMAGES, LOSSES ARISING DIRECTLY FROM THE NON-PROVISION OF 9-1-1 CALLING CAPABILITIES THROUGH SERVICES.
7. You are responsible for all activities undertaken by You using the Services (including, without limitation, any social networking and personal update features made available through the Services). You should give due consideration before agreeing to have Your personal information disclosed to other persons. Personal information provided by You will be stored on servers operated by or on behalf of TextNow in the United States or other countries that may have less protective data protection laws than the region in which You are situated.
8. You agree to The Unlimited 2G Data Fair Use Policy/2G Fair Use Policy/Fair Use Policy (https://www.textnow.com/fairUse), as may be amended from time to time, which is incorporated into this Agreement by reference.
9. You agree to additional terms and conditions associated with the specific Services You may subscribe to or order from TextNow, which additional terms and conditions are incorporated into this Agreement by reference. Examples of specific Services, which may change from time to time, are “Free”, “Premium”, “Wireless Plans”, “Nationwide Talk & Text”, “2GB LTE”, “5GB LTE”, and “Unlimited LTE”.
10. Subject to the terms and conditions of this Agreement, TextNow hereby grants You a limited, personal, non-exclusive, non-sublicensable, non-assignable license to: (i) download, install and use the App on Your Device for the sole purpose of personally using the Services; and (ii) use the Services together with the App in accordance with this Agreement.
11. Unless TextNow has given You specific written permission to do so, You may not assign (or grant a sub-license of) Your rights to use the App or otherwise transfer any part of Your rights to use the App.
12. To subscribe for the Services and download the App, You must create Your Account. During the registration and set-up of Your Account, You will be required to provide Us with certain information about Yourself including, without limitation, Your email address and, depending on the Services that You use, Your telephone number. As part of the registration process for Your Account, You will choose a password (the “Password”) for Your authorized access and use of the Services. Your Password is unique to You alone. Without Your password, you cannot log-in to Your Account. You must carefully select Your Password so that it cannot be easily guessed by anyone else. You agree to keep Your Password absolutely confidential, and ensure it is never disclosed, accidentally or otherwise, to anyone else. You are fully responsible for all activities that occur under Your Account.
14. Any fees and charges for the Services subscribed for through Your Account, will be paid by You by credit card (Visa, MasterCard or American Express) or any other approved method of payment (such as PayPal, Google Pay, Apple Pay), which may change from time to time. You will be responsible for payment of all applicable taxes. For purchases that have monthly charges, You will be billed monthly, one (1) month in advance. All monthly Services require pre-authorized payment via credit card. When You provide payment by credit card, You agree to allow TextNow to bill Your card on each successive billing date. You shall notify TextNow of any changes in credit card number and expiration date. If the card is not honoured for any reason, and if alternative billing has not been established, Your Account and the applicable paid Services may be suspended until payment is received. Any fees and charges for the Services are non-refundable.
15. Currently TextNow provides certain “free” Services, subject to Our ability to place advertisements before you. If fees are to be charged on any such free services in the future, TextNow will provide You with thirty (30) days written notice to the email address submitted at registration (or current email address) and will confirm credit card details for the purposes of payment.
16. We require certain rights to the messages, information, data, text, images, graphics or other materials (collectively, the “Content”) that You transmit, post, make available, submit or otherwise communicate to or through the Services (“Your Content”) (expressly excluding Your Information (as defined above) in order to operate certain features of the Services. We do not claim any intellectual property rights in Your Content. As between TextNow and You, You own, or have the rights to, Your Content at all times. By submitting, transmitting, making available or posting Your Content through the Services, You grant Us a world-wide, royalty free, perpetual, irrevocable and non-exclusive right and license to use, sublicense, reproduce, modify, adapt, publish, translate, distribute, perform and display Your Content worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed for the purposes of operating and providing the Services.
17. By transmitting, posting, making available, submitting or otherwise communicating Your Content to or through the Services, You represent and warrant to TextNow that You own, have a license to or otherwise control all of the rights to Your Content, and that Our use of Your Content (in accordance with this Agreement) will not infringe or violate the rights of any third party including, but not limited to, any privacy or intellectual property rights, or constitute violation of any applicable law. You agree to pay for all royalties, fees, and any other monies owing to any person by reason of any of Your Content.
18. You shall not have any right to terminate the licenses to Your Content granted in this Agreement, nor to seek, obtain, or enforce any injunctive or other equitable relief against TextNow in connection with its use of Your Content in accordance with the this Agreement, all of which such rights are hereby expressly and irrevocably waived by You in favour of TextNow.
19. WE ARE NOT OBLIGATED TO BACK-UP ANY OF YOUR CONTENT AND YOU ACKNOWLEDGE AND AGREE THAT ANY OF YOUR CONTENT MAY BE DELETED AT ANYTIME. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACK-UP COPIES OF YOUR CONTENT IF YOU DESIRE.
20. The Services are a community-oriented service. Please remember that any Content that You post, submit or otherwise communicate to or through the Services are Your own responsibility and We expect You to take utmost care to ensure that it remains friendly, courteous, respectful of others and is compliance with this Agreement. You are required to comply with all applicable laws in connection with Your use of the Services and such further limitations as may be set forth in this Agreement and in any written or on-screen notice from TextNow. You may not use the Services for any purpose that is unlawful or prohibited by this Agreement or that otherwise harms TextNow, its affiliates, its App Providers or customers. “App Providers” shall mean, collectively, TextNow’s channel partners (including, without limitation, distributors or sales agents) and any service providers or suppliers (including, without limitation, connecting or underlying carriers, local exchange or access providers or any other providers of networks, connections or services (other than TextNow’s services), which are involved in the provision and use of the Services.
21. You agree that You will not use the Services to post, transmit, make available, submit or otherwise communicate any Content that: (i) is harmful or obscene; (ii) is defamatory, slanderous, libelous, harassing or abusive other otherwise harasses or advocates harassment of another person; (iii) contains nudity, pornography, excessive violence, or offensive subject matter or contains a link to an adult website; (iv) constitutes or promotes information that You know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, defamatory or libelous; (v) infringes the copyrights, patents, trade secrets, trademarks, trade names or other proprietary rights of any person or entity; (vi) constitutes “spam”, advertising or promotion of commercial services or products and or attempts to fundraise or solicit money from any other Services user; (vii) or contains, or contains links to, files that contain viruses, malware, corrupted files, or any other similar software, programs or files.
22. You shall not, directly or indirectly, to do any of the following acts in connection with Your use of the Services or the App: (i) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or the App; (ii) modify, translate, or create derivative works based on the Services or the App; (iii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit the Services or the App or make the Services or the App available to a third party other than as contemplated in this Agreement; (iv) use the Services or the App for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) transfer, publish or disclose to third parties any evaluation of the Services or the App without TextNow's prior written consent; (vi) create any link to the Services or the App or frame or mirror any content contained or accessible from, the Services or the App; (vii) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to You, which may include, but shall not be limited to, laws related to privacy, publicity, data protection, electronic communications and anti-spamming laws; (viii) commit any fraudulent or otherwise abusive activities; or (ix) intentionally avoid the payment of charges for Services that are not provided to You on a no-fee basis.
23. TextNow reserves the right to investigate and take appropriate action against anyone who, in TextNow's sole discretion, violates Sections 20, 21 or 22. Any use or misuse of the Services in a manner that violates Sections 20, 21 or 22 of this Agreement or that is otherwise disruptive, damaging, unlawful, offensive or intrusive as determined by TextNow, in its sole discretion, shall be a breach of the terms of this Agreement, which shall result in TextNow terminating this Agreement (and Your Account) in accordance with Section 40.b below.
26. To the extent the terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, App Providers Policies applicable to Your use of the App and the Services, the more restrictive or conflicting terms contained in the applicable App Providers Policies shall apply, but solely with as required to resolve such conflict.
27. You acknowledge and agree that the App and use of the Services uses network services and may incur additional network data charges (including additional charges when roaming).
30. You acknowledge and agree that Your communications sent over the Internet or Wi-Fi networks are only secure if You are using a specific communication protocol intended for securing such communications. Further, You acknowledge and agree that communications sent over third-party unsecured Wi-Fi networks are not private and may be seen and used by others. For these reasons, TextNow does not recommend that You disclose personal information over third-party unsecured Wi-Fi networks without ensuring that adequate security precautions are taken prior to transmittal.
31. TextNow may, from time to time and without notice to You, upgrade, maintain, or migrate the App and/or the Services. In the event TextNow determines that it is necessary to interrupt the App and/or the Services or that there is a potential for the App and/or the Services to be interrupted for the performance of system maintenance, TextNow will use reasonable commercial efforts to notify You prior to such interruption. TextNow will use reasonable commercial efforts to schedule system maintenance during non-peak hours (midnight to 6 a.m. local time). In no event shall interruption for system or emergency maintenance constitute a failure of performance by TextNow.
32. Despite Our safety and privacy controls, We cannot guarantee that You will not encounter inappropriate or illegal conduct from other users of the Services. Consequently, if You encounter such content and/or conduct, You can help TextNow by notifying us of any inappropriate or illegal conduct or content (such as, nudity or pornography, or harassing statements, unwelcome contact or fraud) by visiting https://www.textnow.com/support. The reporting of complaints will be confidential and once a complaint is received, We will first acknowledge the receipt of Your complaint and then take steps to address the complaint that may include, but is not limited to, removing the offending content or to warn or, as appropriate, to prevent from the Services those transmitting such content or engaging in such conduct. We will also promptly provide You with an explanation of the steps taken to address the complaint.
33. Notwithstanding anything to the contrary contained in this Agreement, You make use of the App and the Services at Your own risk. These risks include, among other things, credit card theft, identity theft, fraud, solicitation, stalking, invasion of privacy, unwanted receipt of offensive or obscene material, trespass to chattels or denial of service attacks. TextNow expressly disclaims any obligation to monitor its users with respect to violations of its acceptable use policies. TextNow accepts no responsibility, whether in contract, tort or otherwise for any damage sustained by You or any users in using the App and Services.
34. All copyright rights in the text, images, photographs, graphics, user interface, and other content provided on the App, and the selection, coordination, and arrangement of such content, are owned by TextNow, or its applicable third party licensors, to the full extent provided under applicable copyright laws.
35. All rights in the product names, company names, trade names, logos and designs of TextNow or third party products or services that form part of the Services or the App, whether or not appearing in large print or with the trademark symbol, belong exclusively to TextNow or their respective owners, and are protected from reproduction, imitation, dilution or confusing or misleading uses under national and international trademark and copyright laws, as applicable. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited and nothing stated or implied on this Agreement confers on You any license or right under any patent, copyright or trademark of the TextNow or any third party.
36. The Services may be supported by advertising revenue and may display advertisements and promotions provided by third party partners or providers. The manner, mode and extent of advertising on the Services are subject to change without specific notice to You. In consideration for TextNow granting You access to and use of the Services, You agree that TextNow may place or allow the placement of such advertising on the Services.
37. Using the Services may result in the display of results, advertisements or other content that contain(s) hyper-links to or suggestions or results for websites, locations, products, services or activities. Such websites, advertisements, products, services or activities are not created or controlled by TextNow (collectively, “Third Party Services”), are wholly independent from TextNow and as such are intended for convenience only. TextNow shall not be responsible for the contents of, updates to, or privacy practices of these third parties, which may differ from those of TextNow. You acknowledge and agree that Third Party Services are not under the control of TextNow, are in no way endorsed by TextNow and TextNow is not responsible for the content, use, accuracy, completeness, usefulness, timeliness, copyright compliance, availability, legality or any other aspect of such Third Party Services. The personal data/Personal Information You may choose to give to the providers of such Third Party Services are not covered by TextNow’s policies. Third Party Services may not be available in all languages or in all countries. TextNow makes no representation that such Third Party Services are appropriate or available for use in any particular location. To the extent You choose to access such Third Party Services, You do so at Your own initiative and are responsible for compliance with any applicable laws, including, but not limited, to applicable local laws. TextNow, and its licensors, reserve the right to change, suspend, remove, or disable access to any Third Party Services at any time without notice. In no event will TextNow be liable for the removal of or disabling of access to any such Third Party Services. TextNow may also impose limits on the use of or access to certain Third Party Services, in any case and without notice or liability.
38. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the App or the Services (collectively, “Submissions”) provided by You to Us are solely Your Submissions and not that of a third party, are non-confidential to You and shall become the sole property of TextNow. TextNow shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You. You hereby waive to and in favour of TextNow, Your moral rights in and to Submissions made by You.
39. Term. The term of this Agreement (“Term”) will commence, and You may begin using the App and the Services, once You agree to this Agreement. The Agreement will remain in effect until terminated by You or Us in accordance with Section 40 below.
(a) You may terminate this Agreement with immediate effect at any time.
(b) Without limiting other remedies, TextNow may limit, suspend, or terminate this Agreement and Your use of the Services and the App, prohibit access to the Services and delete Your Account, with immediate effect, if We think that You are in breach of this Agreement (or will be in breach of this Agreement), creating problems, legal liabilities (actual or potential), infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. TextNow shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to Your User Account. We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
(c) TextNow reserves the right to terminate this Agreement and the Services with You for any reason which may injure the business of TextNow including using software from other parties to send messages using the Services or using the Services excessively, as determined in TextNow’s sole discretion.
(d) TextNow reserves the right to terminate this Agreement and the Services with You, without notice, for any reason or no reason.
41. Consequences of Termination. Upon termination of this Agreement: (a) all licenses and rights to use the App and the Services shall immediately terminate; (b) You will immediately cease any and all use of the App and the Services; and (c) You will immediately remove the App from Your Devices and all copies of the App in Your possession or under Your control.
42. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD TEXTNOW AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND APP PROVIDERS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE LEGAL FEES INCURRED BY TEXTNOW, IN CONNECTION WITH OR ARISING OUT OF YOUR: (I) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN; (II) VIOLATION OF ANY RIGHTS OF ANY THIRD-PARTY; (III) USE OR MISUSE OF THE APP AND/OR THE SERVICES; OR (IV) YOUR CONTENT.
43. No Warranties: TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES AND THE APP ARE PROVIDED “AS IS” WITH NO WARRANTIES OR CONDITIONS WHATSOEVER; TEXTNOW DOES NOT, MAKE ANY WARRANTIES, CLAIMS, CONDITIONS OR REPRESENTATIONS WITH RESPECT TO THE SERVICES INCLUDING, BUT NOT LIMITED TO THE APP, WHETHER EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. TEXTNOW FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE APP, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES TEXTNOW MAKE ANY WARRANTIES REGARDING ANY CONNECTION TO OR TRANSMISSION FROM ANY NETWORK OR CONNECTION INVOLVED IN THE PROVISION OR USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION THE INTERNET OR ANY CELLULAR NETWORK),, THE QUALITY OF COMMUNICATIONS MADE THROUGH THE SERVICES, OR THE SECURITY OF ANY TRANSACTION MADE THROUGH THE SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATION, WARRANTY, CONDITION OR GAURANTEE MADE BY TEXTNOW.
44. Data and Access Disclaimer: TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, THE FAILURE TO STORE, THE MISDELIVERY, OR THE UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL INCLUDING, WITHOUT LIMITATION, ANY OF YOUR CONTENT. WE DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY CONTENT THROUGH THE SERVICES OR THE APP. BY USING THE SERVICES OR THE APP, YOU ACKNOWLEDGE AND AGREE THAT TECHNICAL PROCESSING AND TRANSMISSION OF INFORMATION USING THE SERVICES MAY INVOLVE TRANSMISSIONS OVER VARIOUS NETWORKS AND CHANGES TO CONFORM AND ADAPT TO TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS OR DEVICES. TEXTNOW IS, AND SHALL, NOT BE RESPONSIBLE OR LIABLE FOR ANY: (A) INCORRECT OR INACCURATE TRANSCRIPTION OF INFORMATION; (B) HUMAN ERROR OR PRINTING ERROR; (C) INTERRUPTION, DELETION, OMISSION, DEFECT, OR LINE FAILURE OF ANY TELEPHONE NETWORK OR ELECTRONIC TRANSMISSION; (D) PROBLEMS RELATING TO YOUR DEVICE OR ANY OTHER COMPUTER EQUIPMENT, SOFTWARE, INABILITY TO ACCESS THE APP OR THE SERVICES; OR (E) OTHER TECHNICAL OR NON-TECHNICAL ERROR OR MALFUNCTION.
45. Specific Disclaimers.
(a) YOU ACKNOWLEDGE AND AGREE THAT: (I) THE SERVICES CANNOT TRANSMIT COMMUNICATIONS OR OTHER ELECTRONIC REQUESTS TO DEVICES THAT ARE UNREACHABLE (I.E. OUT OF CELLULAR COVERAGE, POWERED OFF, ETC.); AND (II) THAT THE SERVICES ARE NOT A SERVICE TO BE RELIED UPON AS THE SOLE MEANS OF RECEIVING CRITICAL INFORMATION.
(b) IN NO EVENT SHALL TEXTNOW'S APP PROVIDERS BE LIABLE FOR THE SALE, DISTRIBUTION OR YOUR USE OF THE APP OR THE PERFORMANCE OR NON-PERFORMANCE OF THE APP. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE APP PROVIDERS SHALL BE THIRD PARTY BENEFICIARIES TO THIS SECTION 45.b.
(c) YOU FURTHER ACKNOWLEDGE AND AGREE TO DISCHARGE, WAIVE AND RELEASE THE APP PROVIDERS FROM ANY CLAIMS, LIABILITIES AND DAMAGES, KNOWN OR UNKNOWN, ARISING OUT OF OR RELATING TO YOUR INTERACTIONS WITH SUCH PARTIES AND THEIR PRODUCTS AND SERVICES.
(d) NOTWITHSTANDING ANY OTHER SECTION, TEXTNOW DISCLAIMS ALL LIABILITY OF ANY KIND IN RELATION TO THE APP PROVIDERS AND THEIR PRODUCTS AND SERVICES.
46. No Liability: YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEXTNOW, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR APP PROVIDERS WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE SERVICES OR THE APP. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES OR THE APP IS TO IMMEDIATELY UNINSTALL AND CEASE USE OF THE APP AND THE SERVICES.
47. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING THE GENERALITY OF SECTION 46 ABOVE, IN NO EVENT SHALL TEXTNOW, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR APP PROVIDERS BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR:
(a) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR THE APP;
(b) ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR THE APP;
(c) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF: (I) ANY DISRUPTIONS OR DELAYS IN ANY COMMUNICATION WHEN USING THE SERVICES; (II) THE SUSPENSION OR TERMINATION OF THIS AGREEMENT BY YOU OR BY TEXTNOW FOR ANY REASON; OR (III) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE APP TO YOU; OR
(d) ANY ACT OR OMISSION OF ANY OF ITS APP PROVIDERS.
48. THE LIMITATIONS ON TEXTNOW'S LIABILITY TO YOU IN PARAGRAPHS 43 to 47 ABOVE SHALL APPLY WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
49. NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT AND WITHOUT LIMITING THE GENERALITY OF SECTION 46 ABOVE, IN NO EVENT SHALL TEXTNOW'S MAXIMUM AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT OF ONE-HUNDRED DOLLARS ($100.00) CANADIAN. THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM.
50. Jurisdiction’s Limitations: As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event TextNow’s liability will be limited to the maximum extent permissible under the applicable laws of such jurisdiction.
51. App Merchants: You acknowledge and agree that the availability of the App is dependent on the third party from which You downloaded or received the App (the “App Merchant”). You acknowledge that this Agreement is between You and TextNow and not with the App Merchant. TextNow, not the App Merchant, is solely responsible for the App and the Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto. You agree to pay all fees charged by the App Merchant in connection with Your download of the App (if any). You agree to comply with, and Your license to use the App and the Services are conditioned upon Your compliance with, all applicable third party terms of agreement when using the App. You acknowledge that to the maximum extent permissible by law, the App Merchant (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
52. Apple Devices: If You download the App from the Apple app store (the “App Store”) or use the App to run on the Apple Inc. (“Apple”) operating system (“iOS”), such as with the iPhone, iPod, iPad or other related device using such iOS, the following terms will also apply and You acknowledge and agree to the following terms:
(a) Acknowledgement: TextNow and You acknowledge that this Agreement is concluded between TextNow and You only, and not with Apple, and TextNow, not Apple, is solely responsible for the Services and the App and the content thereof. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 50, the more restrictive or conflicting terms and conditions in this Section 50 apply, but solely with respect to the use of the Services and the App when used on iOS.
(b) Scope of License: The license granted to You for the App is limited to a non-transferable license to use the App on any iOS Device that You own or control and as permitted by the Usage Rules set forth in the App Store terms of service (https://www.apple.com/legal/itunes/appstore/dev/stdeula/).
(c) Maintenance and Support: TextNow is solely responsible for providing any maintenance and support services with respect to the Services and the App, as specified in this Agreement (if at all), or as required under applicable law. TextNow and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
(d) Warranty: TextNow is solely responsible for any product warranties with respect to the Services and the App, whether express or implied by law, to the extent not otherwise disclaimed. In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App to You; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be TextNow's sole responsibility.
(e) Product Claims: TextNow and You acknowledge that TextNow, not Apple, is responsible for addressing any claims of You or any third party relating to TextNow and the App or Your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit TextNow's liability to You beyond what is permitted by applicable law.
(f) Intellectual Property Rights: TextNow and You acknowledge that, in the event of any third party claim that the Services or the App or Your possession and use of that App infringes that third party’s intellectual property rights, TextNow and/or You, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(g) Third Party Beneficiary: TextNow and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against You as a third party beneficiary thereof.
54. Survival: Any terms and conditions of this Agreement which by their nature extend beyond the termination or expiry of this Agreement shall survive the termination or expiry of this Agreement including, without limitation, Sections 5.b (9-1-1), 16 – 19 (License from You for Your Content), 34 - 35 (Intellectual Property Rights), 38 (Feedback/Suggestions), 41 (Consequences of Termination), 42 - 50 (Indemnification; Disclaimer of Warranties and Limitation on Liability), 53 – 61 (Miscellaneous) shall survive any termination of this Agreement.
55. Governing Law: This Agreement is governed, construed and interpreted by the law of the Province Ontario and the federal laws of Canada applicable in that Province without regards to conflict of laws principles. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario, Canada and the venue of the courts of Ontario sitting in the City of Kitchener, Ontario, Canada in respect of any disputes relating to or arising out of this Agreement. The parties specifically disclaim the United Nations Convention on Contracts for the International Sale of Goods.
56. Language. The Parties have expressly required that this Agreement, any communication and all other contracts, documents and notices relating to this Agreement be drafted in the English language. Les parties ont expressément exigé que la présente convention, la communication et tous les autres contrats, documents et avis qui y sont afférents soient rédigés dans la langue anglaise.
57. Severability: If any of the provisions (or parts thereof) contained in this Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) of this Agreement.
58. Headings: The use headings are for convenience only and are not part of this Agreement.
59. Relationship: Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other party.
60. Waiver: Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
61. Assignment: You may not assign any rights or obligations under the Agreement and any assignment shall be ineffective. TextNow may assign or delegate all rights and obligations under this Agreement without notice to You.
Should You have any questions concerning this Agreement, contact the TextNow at:
420 Wes Graham Way
Email: [email protected]
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