SMS Reminder HQ Terms of Service
Acceptance of Terms
SMSRHQ reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of these Terms of Service at any time, including without limitation access policies, the availability of any feature of the SMSRHQ Services, hours of availability, content, data, software or equipment needed to access SMSRHQ Services, effective with or without prior notice. Although we may attempt to notify you when material changes are made to these Terms of Service, you should periodically review the most up-to-date version here. IF YOU CANNOT COMPLY WITH CHANGES TO THESE TERMS OF SERVICE, OR SUCH CHANGES ARE UNACCEPTABLE TO YOU, YOU MUST TERMINATE, AND IMMEDIATELY STOP USING THE SMSRHQ SERVICES. Your continued use of any aspect of the SMSRHQ Services following any revision to this Terms of Service constitutes your complete and irrevocable acceptance of any and all such changes.
Software and Authorized Use
SMSRHQ will provide the Subscriber with voice, Short Message Service (“SMS”) and email reminders as a service, which will be accessible to the Subscriber’s authorized agent via SMSRHQ cloud interface. SMSRHQ will host the service on SMSRHQ servers or commercial servers. Outbound calls will be charged vs available voice credits “if successful”, which means that an outbound call was answered by a person or answering machine. Disconnected numbers that pick up will be charged one credit as a reporting fee. “Unsuccessful calls” are defined as “no answer” or “busy signals”. Unsuccessful calls will not be billed and will be retried at reasonable intervals, subject to constraints of then current callback volume.
Usage by Subscriber
Subscriber and their authorized agent(s) or staff may use this service during the Term of this agreement to assist in appointment reminders, bill payment due reminders, payment overdue reminders, appointment confirmations, and similar activities, which have been expressly consented to orally or in writing with the recipient as per applicable law. The Subscriber is solely responsible for the decision of whether to make the calls or text messages, to whom to send them, and the content of those messages. SMSRHQ does not, and will not, under any circumstances, decide whether to make the calls or text messages, to whom to send them, and the content of those messages.
Subscriber agrees that SMSRHQ Services will not be relied upon for critical reminders, emergencies, alarms and the like where a system failure could cause costly, fatal or otherwise serious damage or injury. The Parties recognize that computer systems and internet/data networks may fail for reasons out of the control of SMSRHQ, including, but not limited to, Internet traffic, condition of telephone or cable lines, and condition of Subscriber’s equipment. Accordingly Subscriber agrees that it will back up the data it enters into or is generated by the system and that SMSRHQ is not and will not be liable for any loss thereof.
You agree, as a condition of your use of the SMSRHQ Services, to provide SMSRHQ with accurate and complete information when registering for or using the SMSRHQ Services, and to update and maintain such information.
SMSRHQ has the right, in its sole and absolute discretion and without providing notice to you, to suspend, restrict or terminate your use of SMSRHQ Services and/or your account, and to refuse any future use of all or any portion or portions of SMSRHQ Services at any time for any reason. Any advance payment that may have been made will not be refunded if you violate these Terms of Service.
Downtime and Service Suspensions
Subscriber acknowledges that Subscriber’s use of this service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the service for any reason, including as a result of power outages, system failures or other interruptions; and SMSRHQ shall also be entitled, without any liability to subscriber, to suspend access to any portion or all of the service at any time, on a service-wide basis:
- (a) for scheduled downtime to permit us to conduct maintenance or make modifications to service;
- (b) in the event of a denial of service attack or other attack on the service or other event that SMSRHQ determines, in its sole discretion, may create a risk to the applicable service, to Subscriber or to any of our other customers if the service were not suspended; or
- (c) in the event that SMSRHQ determines that service is prohibited by applicable law or SMSRHQ otherwise determines that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”).
SMSRHQ shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Subscriber may incur as a result of any Service Suspension. To the extent SMSRHQ is able, SMSRHQ will endeavor to provide Subscriber notice of any Service Suspension and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which SMSRHQ may do so or fail to do so.
Termination and Renewal
Term. This Agreement will automatically renew at the end of each month unless one Party gives the other thirty (30) days written notice of non-renewal. Should Subscriber fail to pay when due, SMSRHQ may give Subscriber notice of termination, effective five (5) days after such notice.
Termination. Either party may terminate this Agreement for any reason. Either party may also terminate this Agreement in the event the other party commits any material breach of this Agreement and fails to remedy such breach within five (5) days after written notice of such breach. SMSRHQ may also suspend SMSRHQ Services immediately upon notice for cause if: (a) Subscriber violates (or gives SMSRHQ reason to believe it has violated) any provision of the SMS Reminder HQ Acceptable Use Policy; (b) there is an unusual spike or increase in Subscriber’s use of SMSRHQ Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the SMSRHQ Services; (c) SMSRHQ determines, in its sole discretion, that its provision of any of the SMSRHQ Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (d) subject to applicable law, upon Subscriber’s liquidation, commencement of dissolution proceedings, disposal of Subscriber assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Subscriber become the subject of bankruptcy or similar proceeding.
Neither party to this agreement will reveal confidential information to any third party or to any employees who do not have a “need-to-know” by virtue of their job function. Confidential information shall include, for example, and without limitation, the information entered by the Subscriber for this service, SMSRHQ technical, financial, and marketing information, including system use information provided to the Subscriber.
In this regard, SMSRHQ’s utilization of personal information is limited to that which is necessary to fulfill its mission of assisting physicians in their practice, while providing the minimum amount of identifiable client data required to perform the specified communication.
- SMSRHQ will not disclose, rent, or sell any personally identifiable client information to third parties (although SMSRHQ reserves the right to share non-personal, compiled or condensed client information which does not allow a client to be identified or contacted).
- SMSRHQ employs advanced multi-layered encryption and security firewalls to protect confidential information from unauthorized disclosure, misuse, loss, errors, or alteration. All information is received and sent under the physician’s or other duly licensed healthcare or professional service provider’s direction and order via secured encrypted Internet transmission, directly from the provider’s office.
SMSRHQ HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. SMSRHQ’s SERVICES AND PROPERTIES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Subscriber acknowledges and understands that the service software is property of SMSRHQ whose rights are subject to copyrights, trade secrets, and other laws, and that the use of service will give the Subscriber no rights in or to them. This means that Subscriber also agrees that it will not reverse engineer the software, nor will it attempt to do so.
SMSRHQ, the SMSRHQ logo and other SMS Reminder HQ logos, product and service names may be trademarks, service marks or other intellectual property of SMSRHQ (the “SMSRHQ Marks”). You agree not to display or use the SMSRHQ Marks in any manner without the prior, express written permission of SMSRHQ.
SMSRHQ reserves the right to make modifications, enhancements, customizations, improvements and/or changes to SMSRHQ’s system and services at any time without advance notice.
SMSRHQ will immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited messaging activities, such as illegally engaging in any unsolicited advertising, marketing, surveying, polling, collections or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
As a part of your use of SMSRHQ Services, you agree to comply with the rules and regulations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. and its regulations at 47 C.F.R. § 64.1200 including, but not limited to, the national “Do-Not-Call” list rules and regulations. Specifically, you agree that you will not make automatic telephone dialing system calls (“ATDS”) or prerecorded advertisement or telemarketing calls or texts to cell phones or other numbers for which the called party is charged in violation of the TCPA. You agree that you will not make prerecorded calls to residential lines in violation of the TCPA.
You further agree to comply with the rules and regulations of the Telemarketing Sales Rule (“TSR”), 16 C.F.R. § 310 et seq., and all additional state telemarketing and “Do-Not-Call” list rules and regulations.
You represent and warrant that your use of the SMSRHQ Services will not cause SMSRHQ to violate these or other similar laws.
You agree that it is your responsibility to abide by any federal and state laws applicable to your use of SMSRHQ Services. You understand and agree that SMSRHQ will not be held responsible for damages to you or any third party incurred due to your failure to abide by state or federal laws.
If you are using SMSRHQ Services in Canada, you agree to comply with all Canadian telecommunications or privacy laws and rules including rules and orders issued by the Canadian Radio-television and Telecommunications Commission, any National Do Not Call Registry or Unsolicited Telecommunications Rules, the federal Personal Information Protection and Electronic Documents Act or any substantially similar provincial law which may be applicable.
Voice Recording and Monitoring Consent
SMSRHQ is under no obligation to monitor or record its services for accuracy, completeness, or quality. You understand that recordings may or may not resemble that which you intend to record and that SMSRHQ is under no obligation to ensure that recordings will successfully represent that which you intend to record. You agree that all recordings or monitoring become part of the Content (hereinafter defined) of SMSRHQ.
As part of SMSRHQ Services, SMSRHQ may offer you access to communications, media and other services. SMSRHQ does not guarantee the accuracy, integrity, quality or appropriateness of any messages, communications, information, data, text, music, sound, or other materials (“Content”) through SMSRHQ Services.
You acknowledge that SMSRHQ simply acts as a passive conduit for the distribution and transmission of your information and that SMSRHQ has no obligation to screen, preview, or monitor any Content.
By using SMSRHQ, you agree that it is solely YOUR RESPONSIBILITY to evaluate the accuracy, usefulness, completeness, or appropriateness of any Content that you send, receive, access, post, or otherwise transmit through SMSRHQ, including Content that may be offensive, indecent or objectionable.
Under no circumstances will SMSRHQ be liable in any way for any Content, including but not limited to, for any errors or omissions in any Content; loss, destruction or degradation of any Content; or for any loss or damage of any kind incurred as a result of the use of any Content stored, sent, accessed, posted or otherwise transmitted via SMSRHQ.
Each party shall comply in all material respects with all applicable governmental laws, rules and regulations.
Exclusion of Damages; Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SMSRHQ BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF SMSRHQ HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SMSRHQ BE LIABLE TO SUBSCRIBER FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY SUBSCRIBER DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
SMSRHQ SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER SMSRHQ NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND SUBSCRIBER WILL HOLD SMSRHQ HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SMSRHQ SERVICES TO CONTACT EMERGENCY SERVICES.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS SMSRHQ FROM AND AGAINST ALL LOSSES, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES RESULTING FROM OR ARISING OUT OF ANY CONTENT YOU TRANSMIT THROUGH SMSRHQ SERVICES, YOUR USE OF SMSRHQ SERVICES, YOUR VIOLATION OF THE TERMS OF SERVICE OR AGREEMENT OR ANY HARM YOU MAY CAUSE TO ANYONE IN CONNECTION WITH SAME. YOU AGREE THAT SMSRHQ RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
By using SMSRHQ Services, Subscriber agrees that the laws of the State of Florida will govern this Agreement and any dispute of any sort that might arise between Subscriber and SMSRHQ. Subscriber also agrees to resolve disputes only by arbitration. There is no judge or jury in arbitration, but an arbitrator can award the same damages and relief and must honor the same terms in this agreement as a court would. Subscriber and SMSRHQ also agree that:
- The Federal Arbitration Act applies to this agreement. Any dispute that in any way relates to or arises out of this agreement or from any services received from SMSRHQ will be resolved by one or more neutral arbitrators before the American Arbitration Association (“AAA”).
- Unless Subscriber and SMSRHQ agree otherwise, the arbitration will take place in St Johns County, Florida.
- This agreement does not allow class or collective arbitrations even if the AAA procedures or rules would. No class or representative or private attorney general theories of liability or prayers for relief may be maintained in any arbitration held under this agreement.
- If either Subscriber or SMSRHQ intends to seek arbitration under this agreement, the party seeking arbitration must first notify the other party of the dispute in writing at least thirty (30) days in advance of initiating the arbitration. Notice to SMSRHQ should be sent as required by this Agreement. The notice must describe the nature of the claim and the relief being sought. If Subscriber and SMSRHQ are unable to resolve the dispute within thirty (30) days, either party may then proceed to file a claim for arbitration.
- An arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself.
Payment is due upon monthly charge in advance by the SMSRHQ payment processor. Any payment which is not able to be charged successfully will incur a $15 late fee and will be attempted one additional time. If the monthly charge attempt fails for a second time inclusive of the late fee, the service will be suspended until the account is brought up to date. If all SMS or voice credits are utilized during the month, the subscriber will have the opportunity to purchase subscription of additional credits. If they do not purchase additional needed credits, services will be suspended until the begin of the new month, when the monthly fee will be charged and new credits assigned upon successful payment.
Last revised Oct 1 2017