The following terms and conditions govern all use of the spotlightmessaging.com website and all content, services and products available at or through the website. The Website is owned and operated by Ninth Wave Software, LLC. (“Ninth Wave”, “Our”, “We”). The Website is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Ninth Wave’s Privacy Policy) and procedures that may be published from time to time on this Site by Spotlight Messaging (collectively, the “Agreement”).
Please read this Agreement carefully before accessing or using the Website. By accessing or using any part of the web site or service, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website or use any services. If these terms and conditions are considered an offer by Ninth Wave, acceptance is expressly limited to these terms. The Website is available only to individuals who are at least 16 years old.
Your SpotlightMessaging.com Account and Site. You must immediately notify Ninth Wave of any unauthorized uses of your account or any other breaches of security. Ninth Wave will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.
Without limiting any of those representations or warranties, Ninth Wave has the right (though not the obligation) to, in our sole discretion (i) refuse or remove any content that, in our reasonable opinion, violates any Spotlight Messaging policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in our sole discretion. Spotlight Messaging will have no obligation to provide a refund of any amounts previously paid.
By selecting a service plan you agree to allow Spotlight Messaging to send SMS messages to you and your customers and to communicate with you or any user you assign supply contact information for using email, phone and text messaging as appropriate. During the plan selection process you are asked to confirm that your customers are opted-in to text messaging. By confirming your customers are also opted-in, you assign Spotlight Messaging the right to communicate with your customers using text messaging services on your behalf, however, all messages sent are either scheduled expressly by you, or are unscheduled messages sent by you using the site. We will not send unsanctioned messages to your customers, but should such as unforeseen event occur to to a defect or system issue, Ninth Wave will not be liable for any damages of any kind incurred as a result.
General Terms. Paid services available on the Website. By selecting a service plan you agree to pay Spotlight Messaging the monthly or annual subscription fees indicated for that service. Payments will be charged on a pre-pay basis on the day you sign up for a plan and will cover the use of that service for a monthly or annual subscription period as indicated. Fees are not refundable.
Automatic Renewal. Unless you notify Spotlight Messaging before the end of the applicable subscription period that you want to cancel a plan, your plan subscription will automatically renew and you authorize us to collect the then-applicable annual or monthly subscription fee for such service (as well as any taxes) using any credit card or other payment mechanism we have on record for you. Services without contracts or required commitment terms can be canceled at any time in the billing section of your account dashboard.
Non-Payment. If your recurring charges fail and and we are unable to resolve the issue, your service will be automatically cancelled after 7 days. As with any other kind of cancellation, you may still view your data for 30 days after cancellation.
Post-Cancellation Access. When you cancel service, all of your schedules will be disabled and you not be able to create new schedules, nor will you be able to send and receive non-scheduled messages. Your cancellation withdraws your agreement to opt-in your customers to text message communications. Your existing data is preserved for a minimum of 30 days and you will be able to login and view messages and responses for that period. Ninth Wave will remove your existing message content and any cached customer information at some point after your cancellation, but we retain the option to remove your data at our convenience unless you expressly request immediate removal.
Termination. Ninth Wave may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your SpotlightMessaging.com account (if you have one), you must inform the Spotlight Messaging support team so that we may terminate your account and billing agreement. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Disclaimer of Warranties. The Website is provided “as is”. Spotlight Messaging and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Spotlight messaging nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Website at your own discretion and risk.
Limitation of Liability. In no event will Spotlight Messaging, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Spotlight Messaging under this agreement during the twelve (12) month period prior to the cause of action. Spotlight Messaging shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
General Representation and Warranty. You represent and warrant that (i) your use of the Website will be in strict accordance with the Spotlight Messaging Privacy Policy, with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Website will not infringe or misappropriate the intellectual property rights of any third party.
Indemnification. You agree to indemnify and hold harmless Spotlight Messaging, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.
Miscellaneous. This Agreement constitutes the entire agreement between Spotlight Messaging and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Ninth Wave, or by the posting by Ninth Wave of a revised version. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website will be governed by the laws of the state of Texas, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Bastrop County, Texas. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Austin, Texas, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Spotlight Messaging may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
If you have any questions about these Terms or our information practices, please email us at privacy@spotlightmessaging.com or write to us at:
Ninth Wave Software, LLC119 Brazos DriveCedar Creek, TX 78612