Text Terms and Conditions
The terms of the Platform Agreement (together with any Order Forms, exhibits, schedules or addenda thereto, the “Platform Agreement”), by and between Wunderkind and your employer or the entity for which you are acting as an agent or representative of (the “Company”), remain in effect. Text is a Platform, as defined in the Platform Agreement, and the Content constitutes Services, as defined in the Platform Agreement. In the event of any conflict or inconsistencies between the Platform Agreement and these Terms, the Platform Agreement shall control unless expressly stated otherwise in these Terms. All capitalized terms used herein but not otherwise defined will have the meanings ascribed to them in the Platform Agreement.
Wunderkind reserves the right, in its sole discretion, to change, modify, add or remove portions of these Terms and/or the Policies. It is your responsibility to check these Terms and the Policies periodically for changes. Wunderkind will post a current copy of these Terms at www.wunderkind.co/terms/Text/. Your continued use of Text following the posting of any changes will mean that you accept and agree to such changes. As long as you comply with these Terms, Wunderkind grants you a personal, non-exclusive, non-transferable, limited license to access and use Text and the Content, subject to the terms and conditions below and in the Platform Agreement.
- Company represents, covenants and warrants that Company will use the Text Platform only in compliance with the Acceptable Use Policy, located at www.wunderkind.co/terms/Text-aup/ (the “Acceptable Use Policy”), which is referenced and fully incorporated herein, and all applicable laws and regulations. Company hereby agrees to indemnify and hold Wunderkind harmless against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Wunderkind reserves the right to, in its sole discretion, modify or amend the Acceptable Use Policy as required.
- Company is responsible for (i) all actions taken by Company or its employees, contractors, agents or other individuals authorized by Company to access the Text Platform (collectively, the “Users”) on the Text Platform, including, without limitation, the Message content the Company and/or its Users provide, upload or deliver to the Text Platform, and (ii) the Users’ compliance with this Order Form, including, without limitation, the Acceptable Use Policy, such that a User’s breach of this Order Form constitutes a breach by the Company. Wunderkind has no obligation to review Message content the Company and/or its Users provide, upload or deliver to the Text Platform. Company shall (x) ensure that the user IDs, passwords and other access credentials for the Text Platform are kept in strict confidence, and (y) implement and maintain all such administrative, physical and technical safeguards as may be necessary to prevent unauthorized users from gaining entry or access to the Text Platform.
- Company will, immediately before the Text Platform Date, maintain and make available on each Company website (i) a statement of Company’s terms and conditions of use for the website and the Company’s text messages and (ii) a statement of the privacy practices of Company. Company will ensure the following are present on all instore campaign materials and webpages containing calls-to-action (i.e., opt-in forms or instructions for texting to opt-in): (i) legally sufficient disclosures and processes for consent, (ii) a URL to Company’s statement of the terms and conditions of use for the Site(s), and (iii) a URL to the Company’s statement of the privacy practices of Company.
- Each statement of the terms and conditions required by these Terms must disclose that Company will send the Messages if any end user elects to receive marketing or promotional text messages, including such end user’s right to revoke her or his consent to receive such marketing or promotional text messages. For Company’s convenience, Wunderkind provides the following sample terms and conditions disclosure, but strongly encourages Company to work with its own counsel to ensure these disclosures accurately represent Company’s practices:
- Each statement of terms and conditions required by these Terms must also include (i) clauses requiring any disputes between Company and an end user to be resolved through arbitration and (ii) a class-action waiver by each end user of the Company.
- Each privacy statement required by these Terms must describe that Company and third-party partners may use information collected via the Site(s) to send marketing and support messages including, with the end user’s consent, marketing and support text messages. For Company’s convenience, Wunderkind provides the following sample privacy statement disclosure, but strongly encourages Company to work with its own counsel to ensure these disclosures accurately represent Company’s practices:
- You may elect to receive text messages from us. When you sign up to receive text messages, we will send you information about promotional offers and more These messages may use information automatically collected based on your actions while on our sites and may prompt messaging such as cart abandon messages (IE Cookies). To the extent you voluntarily opt to have Text notifications sent directly to your mobile phone, we receive and store the information you provide, including your telephone number or when you read a text message. You may opt out of receiving text messages at any time by texting “STOP” to our text messages. For more information about text messages, see our Terms and Conditions.
- Without limiting Company’s obligations above, Company shall ensure that at all times it has legally sufficient consent from every Text Message recipient for for every Text Message sent through the Text Platform, and that such consent has not been revoked. With respect to any consents that it received outside the Platform, Company will ensure that it has maintained a written record clearly proving that each relevant recipient provided such legally sufficient consent, and that such consent has not been revoked, and Company will promptly provide such evidence to Wunderkind on demand. Company will not use the Text Platform to send Text Messages for which Company lacks convincing written evidence that the messages are being sent with legally sufficient consent. When considering the sufficiency of any consent required under these Terms, Company must assume that the Text Platform uses an automatic telephone dialing system or autodialer to send the Text Messages, although Wunderkind is under no obligation to use any particular type of technology to send the Text Messages. The consent must clearly and conspicuously disclose that Text Messages will include marketing or advertising content and (if applicable) will include support or transactional content, and any other content that the Text Messages will contain.
- Liability. The provision of the Text Platform is experimental and shall not create any obligation for Wunderkind to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop the Text Platform either to Company or to any other party. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN EITHER THE AGREEMENT OR ANY ORDER FORMS (AS DEFINED IN THE AGREEMENT), Wunderkind’S CUMULATIVE LIABILITY FOR DAMAGES, IF ANY, FOR ALL CLAIMS OF ANY KIND ARISING IN CONNECTION WITH COMPLAINTS OF PERFORMANCE, BREACH OF THIS ORDER FORM, COMPANY’S USE OF THE Text PLATFORM OR THE DELIVERY OF THE MESSAGES IS LIMITED TO $1,000. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL Wunderkind OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER IN TORT, CONTRACT, OR OTHERWISE. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL REMAIN FULLY EFFECTIVE EVEN IF THE REMEDIES AVAILABLE TO A PARTY FAIL OF THEIR ESSENTIAL PURPOSE OR ARE OTHERWISE HELD TO BE UNENFORCEABLE.