User Access and License Agreement
FireTEXT User Access and License Agreement
Last updated and effective as of August 1, 2024
This User Access and License Agreement (the “Agreement”) is a legal document governing the use of FireTEXT Dispatch Solutions, Inc. (“FireTEXT”)’s dispatching notification software (the “Service”). The terms “FireTEXT”, “we”, “us” or “our” refers collectively to the licensor FireTEXT and our website FireTEXT.net (the “Site”). The term “you” or “your” refers to you as the user and licensee of our Service under this Agreement. You warrant and represent that you are at least eighteen (18) years of age and if you are accepting this Agreement on behalf of any entity, you represent and warrant that you are authorized to accept this Agreement on such entity’s behalf.
ACCEPTANCE OF TERMS. By clicking “I Agree” during your initial registration for the Service and accessing and using our Service, you agree to be bound by the terms of this Agreement. We reserve the right to change this Agreement at any time and in our sole discretion. We will provide notice of any such changes to you by posting such notice on the Site or Service and notifying you through the Service. Your continued use of this Service following the date of the notification of the changes to the Agreement will constitute your acceptance of such changes.
DESCRIPTION OF SERVICE. The Service is designed to provide communication by, not limited to, push notification, SMS, and or email. The Service is hosted by us or on our behalf.
LICENSE. Subject to the terms and conditions of this Agreement, FireTEXT grants to you a limited, non-transferable, non-exclusive, non-sublicensable, revocable right and license to access and use our Service during the Term (as defined herein) unless sooner terminated. FireTEXT retains all right, title and interest in and to the Service, all Service applications, and any other content or materials supplied to you by us.
FREE TRIAL. If you register for a free trial of the Service (“Free Trial”), FireTEXT will make the Service available to you during the period for the Free Trial specified when you elect to receive the Free Trial at no cost to you. Your use of the Services during the Free Trial period shall be subject to this Agreement. Once the Free Trial ends, your access to the Service and any and all data input into the Service by you or on your behalf shall be terminated or you may continue to use the Services by purchasing a plan for the Services, which shall be subject to all the payment terms required for the plan you elect and the PAYMENT section below. Additional terms and conditions for any Free Trial may appear on the Free Trial registration page, in which case, such terms shall control with respect to your use of the Free Trial Service.
RESTRICTIONS. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way except as permitted under this Agreement; (ii) modify or make derivative works based upon the Service; (iii) except to the extent provided as a feature or part of the Service, create Internet “links” to the Service or “frame” or “mirror” any portion of the Service on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build or offer a competitive product or service, (b) build or offer a product or service using similar ideas, features, functions or graphics represented by or incorporated in the Service, or (c) copy any ideas, features, functions or graphics represented by or incorporated in the Service.
AVAILABILITY OF SERVICE. Subject to the terms and conditions of this Agreement, FireTEXT will use commercially reasonable efforts to provide the Service twenty-four (24) hours a day, seven (7) days a week during the Term. You acknowledge and agree that from time to time the Service may be inaccessible or impossible to use for various reasons, including periodic maintenance procedures or upgrades, service malfunctions and causes beyond our control or which are not reasonably foreseeable by us, including the interruption or failure of telecommunications or digital transmission links, hostile network attacks or network congestion or other failures (collectively, “Downtime”). FireTEXT will use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Service in connection with Downtime, whether scheduled or not. FireTEXT will not be responsible for any damages or costs incurred by you, if any, in connection with Downtime.
PAYMENT. You will pay FireTEXT the fees specified in the plan corresponding to the service level for which you have subscribed, and FireTEXT reserves the right to change the fees at any time upon notice to you. Payments are due upon receipt of invoice. Late payments are subject to an interest charge, which is the lower of one and one-half percent (1.5%) per month or the maximum legal rate. You are responsible for the payment of all taxes associated with this Agreement or your use of the Service (other than the taxes based on FireTEXT’s net income). If FireTEXT is required to pay any such taxes, you will, upon receipt of our invoice, reimburse us for any taxes paid by FireTEXT. Your Service will automatically renew at the end of the Service period unless you cancel the Service before the end of the then-current Service period. You hereby authorize FireTEXT to charge the then-current renewal fees to the credit card associated with your account. If you cancel your FireTEXT Service, FireTEXT is not obligated to refund any portion of the Service charges already paid. For avoidance of doubt, no refunds are available to you under any circumstances or for any reason. Cancellation will take effect at the end of the then-current Service period.
YOUR REGISTRATION OBLIGATIONS. In consideration of your use of the FireTEXT Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current, and complete information about yourself as prompted by the FireTEXT Service’s registration form (the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or FireTEXT has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, FireTEXT has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You are responsible for all activity occurring under your account.
CONDUCT. You agree to comply with our acceptable use policies made available to you in connection with your use of the Service. You understand that all information, data, text, software, graphics, or other materials (“User Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such User Content originated. This means that you, and not FireTEXT, are entirely responsible for all User Content that you upload, post, e-mail, transmit, or otherwise make available via the Service. By posting User Content, you grant FireTEXT and its affiliates the worldwide, nonexclusive, royalty free, right and license, for the Term, to copy and display such information on the Site as reasonably necessary to perform our obligations under this Agreement. You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content and to grant the rights granted herein; (b) the User Content is accurate and not misleading; and (c) online publication of the User Content you supply to those authorized by you does not violate this Agreement or applicable law and will not violate any rights of or cause injury to any person or entity. You hereby waive any moral rights you may have in such User Content under the laws of any jurisdiction. FireTEXT does not control the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity, security, or quality of such User Content. Under no circumstances will FireTEXT be liable in any way for any User Content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any User Content posted, e-mailed, transmitted, accessed or otherwise made available via the Service. You agree to not use the Service to: (i) upload, post, e-mail, transmit, or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable, or harm minors; (ii) impersonate any person or entity or falsely state or otherwise misrepresent your identity or affiliation with a person or entity; (iii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Service; (iv) upload, post, e-mail, transmit, or otherwise make available any User Content that you do not have a right to make available under any law or under contractual or other relationships; (v) upload, post, e-mail, transmit, or otherwise make available any User Content that infringes any patent, trademark, trade secret, copyright, or other property rights of any party; (vi) upload, post, e-mail, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” or any other form of solicitation; (vii) upload, post, e-mail, transmit, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) disrupt the normal flow of dialogue, or otherwise act in a manner that negatively affects other users’ ability to engage in discussions or exchanges; (ix) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service; (x) violate any applicable local, state, national, or international law; (xi)“stalk” or otherwise harass another; and/or (xii) collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs above. You acknowledge that FireTEXT may or may not pre-screen User Content, but that FireTEXT and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move, or remove any User Content that is available via the Service, and which violates the terms of this Agreement. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. You acknowledge, consent, and agree that FireTEXT may access, preserve, and disclose your account information and User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of this Agreement; (c) respond to claims that any User Content violates the rights of third parties; (d) respond to your requests for subscriber service; and/or (e) protect the rights, property, interests, or personal safety of FireTEXT, its users, and the public.
UNAUTHORIZED USE. You will notify us immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
USAGE INFORMATION. The term “Usage Information” shall mean all information collected by us reflecting access and usage of the Site and for our Service, including traffic information and, subject to FireTEXT’s privacy policy then in effect, all information directly obtained from an individual visitor accessing the Site. The parties agree all Usage Information shall be our exclusive property.
INTELLECTUAL PROPERTY OWNERSHIP. The term “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship throughout the universe, including, but not limited to, copyrights and moral rights, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual property and industrial property rights of every kind and nature throughout the universe and however designated, whether arising by operation of law, contract or license, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). You agree that FireTEXT shall retain all right, title and ownership in and to the Service, the Site, and all Content (collectively referred to as “FireTEXT Content”) we make available to you in connection with the Service, including, without limitation, all related Intellectual Property Rights represented by or embodied in the FireTEXT Content. You shall have no rights in such FireTEXT Content other than the limited right to use such FireTEXT Content as provided herein. You acknowledge and agree that we shall own all suggestions, ideas, enhancements, requests, feedback, recommendations, and other information you provide us relating to the Service (the “Feedback”), and you hereby irrevocably assign all right, title and interest in and to such Feedback to us.
YOUR PRIVACY. We collect, process, and store your data in accordance with our Privacy Policy.
SCRAPERS, BOTS, CRAWLERS AND SPIDERS. Use of any robot, spider, site search, retrieval application or other manual or automatic device to retrieve, index, scrape, data mine or in any way gather or extract content on or available through the Site or our Service or reproduce or circumvent the navigational structure or presentation of the Site, or our Service without FireTEXT’s express written consent is prohibited.
INDEMNITY. You agree to defend, indemnify and hold FireTEXT and its subsidiaries, affiliates, officers, agents, employees, partners, and licensors harmless from any claim, demand, loss or expense, including but not limited to reasonable attorneys’ fees, arising out of or related to (i) User Content you submit, post, transmit, or otherwise make available through the Service, (ii) your use of the Service and any Third Party Services, (iii) your connection to the Service, including without limitation through any Third Party Services (iv) your violation of the terms of this Agreement or applicable law, or (v) your violation of any rights of another.
MODIFICATIONS TO SERVICE. You acknowledge that FireTEXT may establish general practices and limits concerning use of the Service. You further acknowledge that FireTEXT reserves the right to modify these general practices and limits from time to time. FireTEXT reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that FireTEXT shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, in whole or in part.
TERM AND TERMINATION. This Agreement shall commence upon acceptance of your Registration Data and initial payment and shall continue thereafter for the term of the Service plan selected by you when entering into the Agreement unless terminated in accordance with the terms of this Agreement (the “Initial Term”). The Initial Term shall automatically renew for additional successive renewal periods (for the same term length of the plan initially purchased by you), unless prohibited by state law. Either party may immediately terminate this Agreement for material breach of its terms. You agree that FireTEXT may terminate or suspend your access to the Service for violations of this Agreement, if we discontinue or withdraw the Service, and pursuant to requests by authorized law enforcement or other government agencies. We may also terminate or suspend your access to any Third-Party Service (defined below) in the event our agreement with the applicable third party is terminated or expires, or if the agreement otherwise requires our termination or suspension of your access to the Third-Party Service. Any breach of your payment obligations or unauthorized use of the Service will be deemed a material breach of this Agreement and may result in the termination of your access to the Services and this Agreement in our discretion. You may cancel your access to the Services at any time upon written notice to us. If you cancel your FireTEXT Service, or if we terminate your access for your breach of this Agreement, we are not obligated to refund Service charges already paid. If we terminate or suspend your access to the Service, you agree that we shall have no liability or responsibility to you and we will not refund amounts that you have already paid to the fullest extent permitted under applicable law.
LINKS AND THIRD-PARTY SERVICES. The Service may provide, or third parties may provide via products that are integrated with the Services, links to other World Wide Web sites, resources, content, services, or products of third parties (collectively “Third Party Services”). Because FireTEXT has no control over Third Party Services, you acknowledge and agree that FireTEXT is not responsible for the availability of such Third-Party Services, the use of such Third-Party Services, the protection of data by such Third-Party Services, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such Third-Party Services. You further acknowledge and agree that FireTEXT makes no representations or warranties with respect to the Third-Party Services, and FireTEXT shall not be responsible or liable, directly or indirectly, for any damages or losses (including any loss of data, business interruption, loss of use, loss of service, connectivity or latency issues) caused or alleged to be caused by or in connection with use of or reliance of any such Third-Party Services. You acknowledge and agree that your use of Third-Party Services is at your own risk and may be subject to separate terms of use, privacy policies, and other rules, and you should refer to such separate terms of use, privacy policies, and rules prior to using such Third-Party Services.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE FIRETEXT SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. IN THE EVENT OF SYSTEM OR COMPONENT FAILURE, IT IS POSSIBLE THAT YOU MAY NOT BE ABLE TO ENTER NEW TRANSACTIONS, EXECUTE EXISTING TRANSACTIONS, OR MODIFY OR CANCEL TRANSACTIONS THAT WERE PREVIOUSLY ENTERED. SYSTEM OR COMPONENT FAILURE MAY ALSO RESULT IN LOST DATA, LOSS OF ORDERS OR PRIORITY. FIRETEXT AND ITS AFFILIATES, OFFICERS, EMPLOYEES, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AVAILABILITY, NON-INTERFERENCE WITH YOUR ENJOYMENT OF THE SITE OR SERVICE AND NON-INFRINGEMENT. FIRETEXT AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AND LICENSORS MAKE NO WARRANTY THAT: (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, COMPLETELY SECURE, WITHOUT DELAY, FREE FROM SERVICE DEGRADATION OR ERROR-FREE; AND/OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FIRETEXT OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT FIRETEXT AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, BUSINESS, BUSINESS INTERRUPTION, COSTS OR COVER OR OTHER INTANGIBLE LOSSES (EVEN IF FIRETEXT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR THE INABILITY TO USE OUR SITE OR SERVICE. IN ANY EVENT, OUR TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE SHALL BE LIMITED TO YOUR DIRECT DAMAGES NOT TO EXCEED THE FEES ACTUALLY PAID BY YOU TO US DURING THE MOST RECENT SIX (6) MONTH PERIOD FOR THE SERVICE GIVING RISE TO THE CLAIM IMMEDIATELY PRECEDING THE EARLIEST EVENT GIVING RISE TO OUR LIABILITY UNDER THIS AGREEMENT.
DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND FIRETEXT SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE FIRETEXT’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00.
IF YOU ARE A RESIDENT OF NEW JERSEY, TO THE EXTENT NEW JERSEY LAW PROHIBITS THE LIMITATIONS AND/OR EXCLUSIONS OF LIABILITY SET FORTH IN THESE TERMS, SUCH LIMITATIONS AND/OR EXCLUSIONS SHALL NOT APPLY TO YOU.
EXPORT CONTROL. The Service may be subject to U.S. export and re-export control laws and regulations and similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that you are (1) not located in any country to which the United States has embargoed goods or has otherwise applied any economic sanctions; and (2) not a denied party as specified in any applicable export or re-export laws or regulations or similar laws applicable in other jurisdictions. You agree to comply with all applicable export and re-export control laws and regulations.
DISPUTES. Except for the right of a party to apply to a court for a temporary restraining order, preliminary injunction or other equitable relief, any controversy or claim arising out of or relating to this Agreement that cannot be resolved through negotiation will be resolved by binding arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. If the parties cannot agree on a single arbitrator, the arbitrator will be selected by the American Arbitration Association. All arbitration proceedings will occur in English and will be held in Trumann, Arkansas, USA. The parties agree that any dispute resolution proceeding will be conducted on an individual basis and not as a class or representation action. Neither you nor FireTEXT shall be a member of a class, consolidated or representative action or proceeding. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. The cost of the arbitration shall be borne equally by the parties. Neither party nor the arbitrator may disclose the existence or results of any arbitration hereunder. The authority of the arbitrator to award damages in any event is and shall be limited by this Agreement.
Damage to Equipment. You are responsible for all cost of repair or replacement of any equipment damaged as a direct result of their misuse, neglect, or negligence. All risks of loss or damage to the Equipment, accidental or otherwise shall be the responsibility of the client. The Client responsible for any cost(s) as a result of loss or damage to the equipment during the whole loan period. These costs shall not exceed the Unit Cost(s) of the equipment. All risk of loss with respect to the equipment is the responsibility of Customer. Customer's liability for lost, damaged, destroyed or missing equipment shall apply whether the loss, damage or destruction is caused by or results from the active or passive fault of Customer or through no fault of Customer. Any equipment which is lost, damaged or destroyed by Customer or its agents or employees after delivery to Customer and while away from Company's premises shall be deemed to have been lost, damaged or destroyed while in Customer's possession.
GENERAL INFORMATION.
Entire Agreement. This Agreement, the Site Terms, the Data Processing Terms (if applicable) and any applicable Registration Form constitute the entire agreement between you and FireTEXT and govern your use of the Service, superseding any prior agreements between you and FireTEXT with respect to the Service.
Choice of Law and Forum. This Agreement and the relationship between you and FireTEXT shall be governed by the laws of the State of Arkansas without regard to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Poinsett, Arkansas.
Waiver and Severability of Terms. The failure of FireTEXT to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
Force Majeure. No party shall be liable to any other party for any failure or delay caused by force majeure and similar events beyond any party’s reasonable control, including, without limitation, acts of nature, terrorist acts, sabotage, or accidents.
Independent Contractors. FireTEXT and you are independent contractors. None of the provisions of this Agreement or the provision of the Service hereunder shall be deemed to constitute a partnership, joint venture, franchisor-franchisee, employer-employee, or any other such relationship between the parties hereto, and neither party shall have any authority to bind the other in any manner except as expressly provided in this Agreement. Neither party shall have or hold itself out as having any right, authority, or agency to act on behalf of the other party in any capacity or in any manner, except as may be specifically authorized in this Agreement. You assume full responsibility for the acts of your personnel and shall be solely responsible for their supervision, direction and control, compensation, benefits, and taxes.
Assignment. FireTEXT may freely transfer or assign this Agreement. This Agreement may not be assigned or transferred by you without our prior written approval. Any purported assignment or transfer in violation of this section shall be null and void. Any permitted assignment shall inure to the benefit of and be binding on the assigning party’s successor and assigns.
No Third-Party Beneficiaries. The Agreement does not create any unintended third-party beneficiary rights.
Notice. Any notices required or permitted hereunder shall be given to the appropriate party at such address as the party shall specify in writing. For FireTEXT the address will be specified on the Site. For you the address will be specified in your registration application. Either party may change its address by notifying the other party in writing. Such notice shall be deemed given upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.
Consent to Receive Emails. As long as you maintain an account, you may not “opt out” of receiving account-related emails from FireTEXT. You also agree, unless you opt out, to receive marketing emails related to the Services.
Contact Us. If you have any questions concerning the Service or this Agreement, please contact us by Email to support@firetext.net