DESCRIPTION OF SERVICE. Bonsai Messaging (the “Service”) provides a web-based application for managing mobile marketing campaigns including mobile messaging capabilities. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to this Agreement. You understand and agree that the Service is provided to you on an “AS-IS” basis and that Bonsai Messaging assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access and subsequent usage may involve third party fees (such as Internet access to use the Service).
YOUR REGISTRATION OBLIGATIONS. In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Service 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 Service’s registration form (such information being 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 Bonsai Messaging has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Bonsai Messaging 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). Children under the age of 18 may not sign up for a Bonsai Messaging account or use any Bonsai Messaging services.
PAYMENT AND FEES
Payment by Credit Card. You hereby authorize Bonsai Messaging to charge your credit card as set forth in the Payment Method section of the Registration Form to a monthly Services fee, and overage fees to Bonsai Messaging at the rates set forth on the pricing webpage or agreed upon rate.
Bonsai Messaging PRIVACY POLICY. Registration Data and certain other information about you are subject to our Privacy Policy. For more information, please review our full privacy policy on our Privacy Policy webpage. You understand that through your use of the Service you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing, and use by Bonsai Messaging and its affiliates. Bonsai Messaging may reasonably use your name and logo for its investor relations and marketing purposes.
MEMBER ACCOUNT, PASSWORD AND SECURITY. You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account designation and are fully responsible for all activities that occur under your password or account designation. You agree to (a) immediately notify Bonsai Messaging of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Bonsai Messaging cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 6.
MEMBER CONDUCT
a. You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Bonsai Messaging, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. Bonsai Messaging does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Bonsai Messaging be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
b. You agree to not use the Service to:
c. You acknowledge that Bonsai Messaging may or may not pre-screen Content, but that Bonsai Messaging and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, Bonsai Messaging and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
d. You acknowledge, consent and agree that Bonsai Messaging may access, preserve, and disclose your account information and 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 any subpoena or other legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Bonsai Messaging, its users and the public.
e. You guarantee that the subscribers in your account have granted you express consent to send them messages of the type that you intend to send them. If for any reason Bonsai Messaging suspects that the subscribers have not given you express consent, it reserves the right to request a written explanation from you, the client, including the method of collecting the subscriber’s phone numbers and a guarantee signed by you that all the people on your subscriber list agreed to receive text messages from you of the type that you had sent. Bonsai Messaging reserves the right to take any action it thinks appropriate in the case of non-compliance, including but not limited to cancellation of the account.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE. Bonsai Messaging does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant to Bonsai Messaging the following worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service and elsewhere for the purpose for which such Content was submitted or made available and also for the purpose of providing and promoting the Service to which such Content was submitted or made available.
INDEMNITY. You agree to indemnify and hold Bonsai Messaging, and its subsidiaries, affiliates, officers, agents, attorneys, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of this Agreement, your violation of any rights of another, or your violation of any law.
GENERAL PRACTICES REGARDING USE AND STORAGE. You acknowledge that Bonsai Messaging may establish general practices and limits concerning use of the Service but that Bonsai Messaging has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service.
MODIFICATIONS TO SERVICE. Bonsai Messaging 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 Bonsai Messaging shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
TERMINATION. You agree that Bonsai Messaging may, under certain circumstances and without prior notice, immediately terminate your Bonsai Messaging account, any associated text message address and/or email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (g) your engagement in fraudulent, illegal or improper activities, (h) third party operator requirement, and/or (i) nonpayment of any fees owed by you in connection with the Services. You may terminate your access and use of the Service upon prior written notice to Bonsai Messaging. In no event shall you be entitled to a refund of any fees paid to Bonsai Messaging hereunder.
BONSAI MESSAGING'S PROPRIETARY RIGHTS. Title, ownership rights and all intellectual property rights in and to the Services shall remain the sole and exclusive property of Bonsai Messaging. Bonsai Messaging retains all rights not expressly granted to you in this Agreement. You are prohibited from attempting, or knowingly permitting or encouraging others to attempt, to reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Services except and only to the extent permissible by applicable law despite such prohibition. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the Service (including your Bonsai Messaging I.D., account, account designation, password and other Bonsai Messaging information), use of the Service, or access to the Service.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Bonsai Messaging EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. Bonsai Messaging MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED (VI) THAT THE INTERNET WILL BE AVAILABLE AND WILL PERFORM.
c. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Bonsai Messaging OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT Bonsai Messaging SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Bonsai Messaging HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 18 AND 19 MAY NOT APPLY TO YOU.
NOTICE. Bonsai Messaging may provide you with notices, including those regarding changes to the Agreement, by either text message, e-mail, regular mail, or postings on the Service.
TRADEMARK INFORMATION. The trademarks, service marks, logos and product and service names of Bonsai Messaging are trademarks of Kode, LLC (the “Bonsai Messaging Marks”). You agree not to display or use in any manner, the Bonsai Messaging Marks without Bonsai Messaging's express prior written consent.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT. Bonsai Messaging respects the intellectual property of others, and we ask our users to do the same. Bonsai Messaging may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to Bonsai Messaging's Copyright Agent:
Notice of claims of copyright or other intellectual property infringement should be addressed to: Matthew Hoelter, via email: hello@matthewhoelter.com.
GENERAL INFORMATION
Choice of Law and Forum. This Agreement and the relationship between you and Bonsai Messaging shall be governed by the laws of the State of Illinois without regard to its conflict of law provisions. You and Bonsai Messaging agree to submit to the personal and exclusive jurisdiction of the courts located within Cook County, Illinois.
Waiver and Severability of Terms. The failure of Bonsai Messaging 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.
Non-Transferability. You agree that your Bonsai Messaging account is non-transferable, and this Agreement may not be assigned by you without Bonsai Messaging's prior written consent.
Entire Agreement. This Agreement constitutes the entire agreement between you and Bonsai Messaging and governs your use of the Service, superseding any prior agreements between you and Bonsai Messaging with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services from Bonsai Messaging.
The following Privacy Statement sets forth the policies for, the collection and use of personally identifiable information (“Information”) by Kode LLC ("Bonsai Messaging"). This Statement covers the operation of its Web Site http://www.bonsaimessaging.com (the “Site”) and its private label message services, operated on behalf of third parties (its “Clients”) and supersedes any previous statement of such policies. (The Site and private label service, are referred to collectively as the “Business” in this Statement.) Bonsai Messaging takes its obligations regarding privacy very seriously, and it wants to ensure Clients’ are fully informed about the Information they are providing. “Personally identifiable Information” refers to information that can identify an individual such as a name, or email address. Please address your questions about this Site, or Privacy Statement to hello@matthewhoelter.com.
We collect personal information on the Site to facilitate the services offered to you during your use of the business. Clients’ must register an account on the Site prior to having access to any of the services. To register an account on the Site, we require name, email and physical address information, as well as sensitive financial information including credit card numbers to process the registration. Where applicable, we also collect third party personal information if the registered administrator is different from the initiator of the registration for the service. By registering for the service, the platform exists for Clients’ to enter third party personal information as described above into their account user list. None of this personal information is used for any promotional purposes, or shared with third parties for their promotional purposes. Bonsai Messaging may also collect non-personally identifiable information from Clients’ via “cookies” (small text files placed by Bonsai Messaging on user computers), single-pixel GIF image files (also called “Web beacons”), Web server log analysis and other similar technological means. We also receive website navigational information such as IP address and referring URL when our Site is visited. Such information may be used to track site trends and enhance the user experience, and may be shared with third parties in aggregated, non personally identifiable form. To the extent third parties may place advertising on the Site, such third parties may use cookies, or other technological means within the advertising to collect and use non-personally identifiable information. Bonsai Messaging is not responsible for information collected by third parties in this manner, nor for the collection or use of Information by other sites to which the Site is linked.
This Site is not intended for users under the age of 18, nor does Bonsai Messaging knowingly collect, or retain Information from children under the age of 18.
Bonsai Messaging uses Information collected in connection with the Site in the following ways:
Bonsai Messaging uses industry accepted electronic and physical standards of security to reduce the risk of improper access to or manipulation of Information during transmission and storage. We employ the use of SSL [Secure Socket Layer] technology to protect your sensitive information during transmission. While we take every precaution to guarantee safety, no method of security is 100% effective and we encourage you to employ discretion while submitting your information.
Bonsai Messaging may be legally obligated to disclose information to the government or to third parties under certain circumstances, such as illegal activity on our Site. Bonsai Messaging reserves the right to release personal information to its service providers, law enforcement, or other government officials, or in response to a formal request in a civil action, Court order or judicial proceeding as we, in our sole and absolute discretion, deems necessary or appropriate. Moreover, in the event of a merger, sale, or acquisition of some, or all of Bonsai Messaging's assets, your personal information could be part of the transferred assets. In such an event, we shall notify you by a notice on the home page. Any changes to the information practices governing your information & your choices would be noted. The Site employs the use of a third party payment processor to process payments made to us. This third party is not authorized to use this information for any purposes beyond facilitating this service on our behalf. We post customer testimonials on our Site that may include a user’s name and email [not displayed]. We obtain permission of our Clients’ prior to posting their testimonials on our Site. When you select to comment on a blog post, please be aware that any personal information you submit therein shall be available publicly to other users of the Site & can be used to send unsolicited messages. Bonsai Messaging is not responsible for the personal information a user selects to disclose in a public forum.
You will be added to Bonsai Messaging email newsletter list only if you register to receive newsletters via a form on the Bonsai Messaging website. You may opt-out of receiving our newsletters by clicking on the opt-out link included in every email newsletter we send, or by contacting hello@matthewhoelter.com. Bonsai Messaging service offerings include acting as a service provider for our clients’ in providing an “opt-out” platform for their recipients [end users]. At any time, recipients [end users] may discontinue receiving SMS offers by sending the SMS message “STOP” to the applicable shortcode. Additionally, end users’ may discontinue receiving offers from a particular client by sending the SMS message STOP to that Client’s particular shortcode, or by following other instructions provided by that Client. Opting out from a particular Client’s offers will not apply to any communications from other Clients. All information provided to Bonsai Messaging's clients is owned by said client and subject to their privacy statement. We are not responsible for their privacy practices during our role as the clients’ service provider.
All Clients’ who provide their Information to Bonsai Messaging may modify and correct such Information by e-mailing us at support@bonsaimessaging.com and registered Clients’ can modify their personal information and accounts by logging into their accounts on our home page and modifying their preferences.
Beginning on January 1, 2005, California Civil Code Section 1798.83 permits customers of Bonsai Messaging who are California residents to request certain information regarding Bonsai Messaging's disclosure of personal information to third parties for such third parties’ direct marketing purposes. To make such a request, please write to: support@bonsaimessaging.com.
Changes to this Privacy Policy Bonsai Messaging reserves the right to revise and update this Privacy Policy at any time. Any such revisions will be effective on the date of posting to the Site, and will apply to all information collected by Bonsai Messaging both prior to, and following the effective date. Your use of the Site following any such revisions will be deemed your acceptance of such revisions. Users should periodically visit this page to review the current policies with regard to Information. Should we make a material change to the manner in which we collect, use or store information collected on our Site, we shall notify you via system notification upon login.
You can contact Bonsai Messaging with your questions and concerns at: support@bonsaimessaging.com.
Effective July 1, 2016