SMS MARKETING TERMS AND CONDITIONS - EVENT ORGANIZERS
Updated: December 27th, 2018
IMPORTANT: This Terms of Service Agreement (the “Agreement”) are binding and enforceable between you (“Event Organizer”) and Gafana Enterprises Inc., d/b/a Purplepass (“Purplepass”).
“You” refers to the entity or organization using the Services described in this Agreement. By using the Purplepass Platform and Purplepass’ Services, you, the Event Organizer, are accepting and agreeing to be bound by this Agreement in full. Your use of the Services of Purplepass is an express acknowledgement that you have read and are bound by this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE SERVICES.
- “Event Organizer Data” means the data created or inputted by Event Organizer for the purpose of using the Services of Purplepass or facilitating Event Organizer’s use of the Services.
- “Purplepass Platform” means the software program supplied by Purplepass to Event Organizer.
- “Services” means the online event management services presently being offered by Purplepass. These event management services include using Purplepass’ marketing platform to send messages to End Users through SMS and MMS messages.
- “Submissions” means any type of communication that might be sent by Event Organizer.
- “End User” means an individual who interacts with Event Organizer, its Affiliates, and/or its Agents through the Services.
- “End User Communications” mean the End User emails, SMS and MMS messages, and information submitted through the Services.
- “SMS Credits” are the fees that Event Orgaznier pays to utilize the Services. The SMS Credits applicable to this Agreement are pre-purchased credits that allow SMS & MMS messages to be sent through the Services.
B. GENERAL RULES FOR PURPLEPASS PLATFORM & SERVICES
Acceptable Use Policy – Purplepass Platform & Services.
- Generally. Event Organizer may not, and may not permit any third party to, use the Purplepass Platform or Services in violation of (a) the CTIA Messaging Principles and Best Practices Guidelines; (b) the CTIA Short Code Monitoring Handbook; or (c) any other applicable laws, rules, and regulations, including, but not limited to, the Telephone Consumer Protection Act and those laws, rules, and regulations applicable to data privacy and use and consumer protection.
- Programs. Event Organizer shall be responsible for ensuring that all programs used in conjunction with the Purplepass Platform or Services (including advertising or promotional campaigns, contests, drawing, raffles, lotteries, etc.) (“Programs”), including the administration thereof, comply with all applicable laws, rules, and regulations.
Prohibited Content. Event Organizer agrees to not use the Purplepass Platform or Services in connection with any of the following prohibited content:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act;
- Any content related to any form of alcohol, including but not limited to, beer, wine, liquor, spirits, or any other form of alcoholic beverage;
- Content related to any form of gambling;
- Any form of sexual or adult related content intended; And,
- Content related to any form of illegal drugs or illicit drug use.
- Telephone Consumer Protection Act (“TCPA”). Event Organizer is solely responsible and liable for ensuring that its use of the Purplepass Platform or its Services comply with the TCPA, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310.
- Controlling the Assault of Non-Solicited Pornography and Marketing Acts (“CAN-SPAM”). Event Organizer is solely responsible and liable for ensuring that its use of the Purplepass Platform or its Services comply with the CAN-SPAM Act, 15 U.S.C. §§7701-7713.
- Age Restriction. In order to use the Purplepass Platform and/or its Services, Event Organizer must be eighteen (18) years of age or older. Event Organizer acknowledges and agrees that Event Organizer is not under the age of eighteen (18) years and is of adult age in Event Organizer’s jurisdiction and is permitted by that jurisdiction’s Applicable Law to use the Purplepass Platform and its Services. Event Organizer also agrees that it will not knowingly permit an End User under the age of eighteen (18) years to use the Purplepass Platform without parental consent.
- Restricted Hours. Event Organizer acknowledges and agrees to only send End User Communications during the normal business hours of 9:00am and 5:00pm based on the local time zone of the End User.
- Interruption. Delivery of information and content to the End User may fail due to a variety of circumnutates or conditions. The Purplepass Platform and/or its Services are subject to transmission limitations or interruptions. Event Organizer understand and acknowledges that mobile network services are outside of Purplepass’ control, and Purplepass is not responsible or liable for issues arising therefrom, or the failure thereof, including, without limitation, technical, hardware, software, electronic, network, telephone or other communications malfunctions, errors or failures of any kind, errors in transmission, traffic congestion, lost or unavailable network connections, telephone connections, wireless phone connections, website, Internet, or ISP availability, unauthorized human intervention, traffic congestion, incomplete or inaccurate capture of entry information (regardless of cause) or failed, incomplete, garbled, jumbled or delayed transmissions which may limit or restrict your ability to receive or send a message, including any injury or damage to your or any other person's equipment/wireless device relating to or resulting from participating in or using the Purplepass Platform or Service.
Indemnification by Event Organizer.
- Event Organizer shall indemnify, hold harmless, and defend Purplepass and any of its officers, directors, employees, or affiliates against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party, including all judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including expenses of litigation or arbitration, court or arbitration costs and attorneys' fees and other professional fees that Purplepass may incur as a result of such third-party claims, demands, or causes of action (collectively, “Losses”) that relate to or arise out of (a) Event Organizer’s use of the Purplepass Platform or Services in alleged violation of this Agreement or applicable law; (b) any of Event Organizer’s acts or omissions related to this Agreement, or (c) any claim that Event Organizer’s Data infringes or misappropriates the intellectual property rights of a third party.
- Subject to the allocation provisions of Section 3.2, Event Organizer’s indemnification obligations in this Section 3.1 shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including but not limited to claims relating to the Telephone Consumer Protection Act, the Children’s Online Privacy Protection Act, or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of Purplepass or a defect in the Purplepass Platform or its Services.
- Purplepass’s Notice of Third-Party Claims. Purplepass shall give Event Organizer prompt written notice (a “Claim Notice”) of any Losses or discovery of facts on which Purplepass intends to base a request for indemnification under Section 3.1. Purplepass’s failure to provide a Claim Notice to Event Organizer under this Section 3.1.2 does not relieve Event Organizer of any liability that Event Organizer may have to Purplepass, but in no event shall Event Organizer be liable for any Losses that result directly from a delay in providing a Claim Notice, which delay materially prejudices the defense of the related third-party claim. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). Purplepass shall furnish promptly to Event Organizer copies of all papers and official documents received in respect of any Losses. Event Organizer’s duty to defend applies immediately, regardless of whether Purplepass has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.
- Event Organizer Control of Defense. Event Organizer may assume control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under Section 3.1 (an “Indemnified Claim”) by sending written notice of the assumption to Purplepass on or before seven (7) business days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Indemnified Claim and undertake, conduct, and control, through reputable independent counsel of its own choosing (which Purplepass shall find reasonably satisfactory) and at Event Organizer’s sole cost and expense, the settlement or defense thereof.
- Purplepass’s Obligations Regarding Event Organizer’s Control of Defense. If Event Organizer assumes control of the defense under Section 3.1.3, Purplepass shall fully cooperate with Event Organizer in connection therewith; and may employ, at any time, separate counsel to represent it, provided that Purplepass is solely responsible for the costs and expenses of any such separate counsel.
Purplepass’s Control of Defense. Notwithstanding anything to the contrary in Section 3.1, upon giving written notice to Event Organizer, Purplepass may take control of its defense to an Indemnified Claim with counsel of its choosing if:
- the Indemnified Claim is one for which Purplepass properly gave Event Organizer a Claim Notice under Section 3.1.2, and Event Organizer fails to timely assume the defense or refuses to defend the Indemnified Claim under Section 3.1.3;
- the Indemnified Claim seeks an injunction or other equitable relief against Purplepass that has a reasonable potential of impacting, directly or indirectly, Event Organizers of Purplepass other than Event Organizer; or
- Purplepass reasonably determines that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to Event Organizer and that counsel for Event Organizer may not fully or adequately represent the interests of Purplepass.
- Event Organizer’s Obligations Regarding Purplepass’s Control of Defense. If Purplepass assumes control of the defense under Section 3.1.5, Event Organizer shall reimburse Purplepass promptly and periodically for the costs properly incurred in defending against the Indemnified Claim (including its attorneys’ fees and expenses) and remain responsible to Purplepass for any Losses indemnified under Section 3.1.
Settlement of Indemnified Claims by Event Organizer. Event Organizer shall give prompt written notice to Purplepass of any proposed settlement of an Indemnified Claim. Event Organizer may not, without Purplepass’ prior written consent, settle or compromise any indemnification-related claim or consent to the entry of any indemnification-related judgment unless such settlement, compromise, or consent:
- includes an unconditional release of Purplepass from all liability arising out of such claim;
- does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Purplepass; and
- does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Purplepass.
Settlement of Indemnified Claims by Purplepass. Purplepass may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of Event Organizer, which Event Organizer shall not unreasonably withhold, condition, or delay, unless:
- the Indemnified Claim is one for which Purplepass properly gave Event Organizer a Claim Notice under Section 3.1.2, and Event Organizer failed to assume the defense or refused to defend the Indemnified Claim under Section 3.1.3; or
such settlement, compromise or consent:
- includes an unconditional release of Event Organizer from all liability arising out of such claim;
- does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Event Organizer; and
- does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Event Organizer.
Allocation of Liability for Certain Judgments or Awards. In the event a final judgment or award is entered against both Event Organizer and Purplepass and such judgment or award includes a finding that Purplepass is liable in whole or in part for any enhanced, exemplary, or punitive damages because of reckless, wanton, or willful misconduct, then the parties’ respective liability shall be as follows:
- In the event that only Purplepass is found to have engaged in conduct that is determined to be reckless, wanton, or willful, Event Organizer shall have no obligation to indemnify Purplepass for any such judgments or awards.
- In the event that both Purplepass and Event Organizer are found to have engaged in conduct that is determined to be reckless, wanton, or willful, Purplepass’s sole obligation shall be to contribute to the payment of any enhanced, exemplary, or punitive damages in an amount proportional to its fault. Event Organizer’s duty under Section 3.1 to defend and indemnify Purplepass for all liability that would have resulted from acts deemed to be negligent shall not be affected by this Section 3.2.
D. LIMITATION OF LIABILITY
- Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, PURPLEPASS WILL NOT HAVE ANY LIABILITY TOWARDS EVENT ORGANIZER FOR ANY DAMAGES ARISING FROM EVENT ORGANIZER’S USE OF THE PURPLEPASS PLATFORM AND/OR SERVICES THAT PURPLEPASS PROVIDES TO EVENT ORGANIZER, WHETHER THE CAUSE OF ACTION BE BASED ON TORT, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, PUNITIVE, ACTUAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR DUE TO ANY CAUSE OF ANY NATURE. BY ENTERING INTO THIS AGREEMENT, EVENT ORGANIZER ACKNOWLEDGES AND AGREES TO HOLD PURPLEPASS HARMLESS FROM ANY LOSS OR HARM OF ANY NATURE DUE TO EVENT ORGANIZER’S USAGE OF THE PURPLEPASS PLATFORM AND/OR SERVICES THAT PURPLEPASS PROVIDES TO EVENT ORGANIZER, WHETHER DIRECTLY OR INDIRECTLY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
E. DISPUTE RESOLUTION
- Exclusive Dispute Resolution Mechanism. The parties shall resolve any and all disputes, controversies, or claims arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), under the provisions of Sections 5.1 through 5.3. The procedures set forth in Sections 5.1 through 5.3 shall be the exclusive mechanism for resolving any Dispute that may arise from time to time, and Sections 5.1 through 5.3 are express conditions precedent to binding arbitration of the Dispute.
- Negotiations. A party shall send written notice to the other party of any Dispute (“Dispute Notice”). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves, including at least one negotiation session attended by the party’s Chief Operations Officer, his/her designee, or a party’s representative with sufficient authority to negotiate and settle the Dispute on behalf of the corresponding party.
If the Parties cannot resolve any Dispute via the negotiation process for any reason, including, but not limited to, the failure of either party to agree to any settlement, within thirty (30) calendar days after the negotiations under this Section started, either Party may commence binding arbitration in accordance with the provisions of the following Section 5.3.
- Arbitration. If the negotiations mentioned in the previous Section 5.2 do not resolve the Dispute, the parties agree to submit the Dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of California, without regard to its conflict of laws rules. The venue of any such arbitration shall be within San Diego County, California. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the Dispute. If the parties do not agree on an arbitrator within thirty (30) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in Section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration, or the papers, documents, or evidence related thereto, without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a Dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial.
- Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default that is caused by conditions beyond its control, including, but not limited to, acts of God, earthquakes, fire, flood, epidemics, labor disputes, changes in law, regulations or government policy, government restrictions (including the denial or cancellation of any export or other necessary license), riots, wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected (including transportation difficulties, acts or omissions of vendors or suppliers, or mechanical, electronic, internet service provider, or communications failure). Purplepass is not responsible for server downtimes under any circumstances. If the force majeure continues for more than thirty (30) calendar days, either party may terminate this Agreement for convenience upon written notice to the other party.
- Assignment. Event Organizer may not assign its rights or delegate any obligations pursuant to this Agreement without the express prior written consent of Purplepass. Any assignment by Event Organizer without the prior written consent of Purplepass shall be null and void. Purplepass may assign its rights or obligations pursuant to this Agreement without providing notice to Event Organizer and without Event Organizer’s prior consent, provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s successors and assigns.
- Independent Contractor Relationship. Neither Event Organizer nor Purplepass shall be deemed to be an agent of the other and the relationship of Event Organizer and Purplepass shall be that of independent contractors. Neither Event Organizer nor Purplepass shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
- Notices. Any notice or report required or permitted to be given or made under this Agreement by either party will be in English, in writing, and be deemed to have been fully given and received (a) when delivered personally; (b) when sent by confirmed facsimile; (c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (d) one (1) business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (e) to the extent expressly permitted in this Agreement, one (1) business day after being sent via email. Notices will be sent to the parties at the addresses set forth in this Agreement or such other address as a party may specify in writing to the other. All notices to Gafana Enterprises Inc. d/b/a Purplepass must be made to the address listed below and all notices to Event Organizer must be made to the mailing or email address of Event Organizer’s primary contact with Purplepass.
Purplepass Notice Address:
ATTN: Legal Department
10981 San Diego Mission Rd.
San Diego, CA 92108
Purplepass may broadcast notices or messages through the Purplepass Platform or by posting notices or messages on the Purplepass Website to inform Event Organizer of changes to the Purplepass Platform and/or its Services or other matters of importance; Purplepass may also inform Event Organizer of such broadcast by e-mail or surface mail.
- Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
- Severability. Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.
- Survival. Section 3 (Indemnification), Section 4 (Limitation of Liability), Section 5 (Dispute Resolution), and Section 6 (General) shall survive the termination or expiration of this Agreement.