Services described on the SMSGorilla Site may or may not be available in all countries or regions of the world and may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries. You agree to use the SMSGorilla Services in accordance with all applicable guidelines, as well as all state and federal laws that the Services are subject to. The Services consist of one or more of the following: a web-based interface, access to telephone number(s) for inbound and outbound SMS (Short Message Services), as well as software maintenance, upgrades and customer support, that enable you to send text messages to recipients designated by you (collectively, the “Services”). SMSGorilla transmits messages initiated by you or sent to you by others through different routes, and the level of reliability and support for special features varies according to the route. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Services and for paying all access charges. SMSGorilla only provides that the Services are processed correctly and further transmitted by SMSGorilla to the applicable network. SMSGorilla is not responsible for the final delivery of any communication initiated through SMSGorilla’s Services, as this is out of the control of SMSGorilla and is the responsibility of downstream communications carriers. SMSGorilla transmits and receives text messages via other major telecommunications companies and mobile network operators, and thus SMSGorilla’s influence over the timing of the transmission of your messages and broadcasts is within the technical constraints imposed upon SMSGorilla. While SMSGorilla shall use commercially reasonable efforts to transmit your messages and broadcasts to the applicable network for final delivery to your designated recipients as fast as possible, SMSGorilla cannot commit to, and does not guarantee, a specific maximum delivery time or the success of delivery to the intended recipient. Such times and success of delivery depend on various network and system related factors among the various entities involved in the transportation of your messages and broadcasts across the public switched telephone network and/or Internet. You should know that communications carriers assign text messages with a default lifetime and any message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice.
SMSGorilla is not liable for any loss incurred by the failure of a message or broadcast to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from SMSGorilla for any such non-deliveries. Furthermore, you agree that message and broadcast contents are deemed to have zero value.
You represent and warrant that the owners of the phone numbers to which you initiate messages through the SMSGorilla Services have consented or otherwise opted-in to the receipt of such messages and broadcasts as required by any applicable law or regulation. You agree that you will include clear optout/unsubscribe information on your messages or broadcasts when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages. You further agree that any individuals requesting “DoNotCall” (“DNC”) status shall immediately be placed on your DNC accounts list and you further agree that you will not initiate any subsequent messages or broadcasts to any individuals after they request DNC status. You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages and broadcasts that you create and initiate through the SMSGorilla Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the SMSGorilla Services by visiting the following websites:
- Federal Trade Commission, http://www.ftc.gov
- Federal Communications Commission, http://www.fcc.gov
- DoNotCall Registry Info, http://www.donotcall.gov
The Telephone Consumer Protection Act (“TCPA”), and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. SMSGorilla is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages, broadcasts and campaigns prior to using the SMSGorilla site or Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns. You shall schedule campaigns responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation, sound files, for inclusion in any outbound messages, broadcasts, and campaigns. If you are unfamiliar or unclear on the legalities of any message, broadcast or campaign, you must consult with your attorney prior to your use of the SMSGorilla site or Services.
You accept that the Services are provided for professional use only and you agree that your use of the SMSGorilla site or Services shall not include:
- Sending unsolicited marketing messages or broadcasts (i.e. spam)
- Sending any calls to lifeline services, such as hospitals, fire, police, 911 or utility related telephone numbers
- Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business
- Harvesting, or otherwise collecting information about others, without their consent
- Misleading others as to the identity of the sender of your messages or broadcasts, by creating a false identity, impersonating the identity of someone/something else or by providing contact details that do not belong to you
- Transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind
- Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity; Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancelbots or any other harmful/deleterious programs
- Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks
- Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means
- Interfering with another’s use and enjoyment of the Services or SMSGorilla site
- Engaging in any other activity that SMSGorilla believes could subject it to criminal liability or civil penalty/judgment
You agree to provide legal contact information in any outbound campaign within the initial greeting message. You further agree that SMSGorilla is, under no circumstances, responsible for the contents and/or accuracy of your messages and SMSGorilla will only transmit them on a basis of good faith that you use the Services in accordance with these Terms. SMSGorilla will not be liable for any misuse of the Services by you. SMSGorilla is not responsible for the views and opinions contained in any of your messages or broadcasts.
Content Submission / Discussion Areas
You agree that any information or materials that you or individuals acting on your behalf provide to SMSGorilla (other than information required for your use of the Services as contemplated herein) will not be considered confidential or proprietary. By providing any such information or materials to SMSGorilla (other than information required for your use of the Services as contemplated herein), you grant to SMSGorilla an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of, and distribute such information and materials, and you further agree that SMSGorilla is free to use any ideas, concepts or knowhow that you or individuals acting on your behalf provide to SMSGorilla. In connection with such information and materials, you warrant and represent to SMSGorilla that you have all rights, title and interests necessary to provide such content to SMSGorilla, and that your provision of the content to SMSGorilla shall not infringe any third party’s proprietary or personal rights, including but not limited to any trademark, copyright, patent, or trade secret.
Username / Password
As part of the registration process, you will be required to create an account with a username password. As a part of the account creation process, you shall provide SMSGorilla with accurate, complete, and regularly updated member profile information. You agree to notify SMSGorilla of any known or suspected unauthorized use(s) of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. You shall be responsible for maintaining the confidentiality of your password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your user account, in SMSGorilla’s sole discretion, and you may be reported to appropriate law enforcement agencies.
You are permitted to access the SMSGorilla site, the Services, and any content provided by SMSGorilla (which may include text, images, hosted software, sound files, video or other content, and may be provided via the SMSGorilla site or otherwise) solely for the purpose of receiving information about SMSGorilla’s business and products, purchasing and utilizing the Services, communicating with SMSGorilla, or otherwise as stated on the SMSGorilla site. We may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Services, including the web pages that are part of the Services and the SMSGorilla site. Except as expressly provided in these Terms, the availability of the Services and the SMSGorilla site does not give you any license to these patents, trademarks, copyrights, or other intellectual property. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained in the SMSGorilla site are the sole property of SMSGorilla or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the Services or SMSGorilla site, including any proprietary communications protocol used by the Services or the SMSGorilla site without the express written permission of SMSGorilla. All other trademarks or trade names are the property of their respective owners, and such material may not be copied, downloaded, redistributed, modified or otherwise exploited, in whole or in part, without the permission of the owner. SMSGorilla abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, SMSGorilla may remove or disable access to material residing on a site that is controlled or operated by SMSGorilla that is claimed to be infringing, in which case SMSGorilla will make a good faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA.
SMSGorilla does not control content hosted on third party websites and cannot remove content from sites it does not own or control. If you are the copyright owner of content hosted on a third-party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed. Before serving either a Notice of Infringing Material or Counter Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with SMSGorilla’s rights and obligations under the DMCA and, in particular, section 512(c), and do not constitute legal advice.
Notice of Infringing Material
To file a notice of infringing material on a site owned or controlled by SMSGorilla, please provide a notification containing the following details:
- Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL)
- Reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material)
- Your contact information so that we can contact you (for example, your address, telephone number, email address)
- A statement that you have a good faith belief that the use of the material identified in (2) is not authorized by the copyright owner, its agent, or the law
- A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed
- Your physical or electronic signature. Then send this notice via email to: support@SMSGorilla.com
Data Protection & Privacy
Your use of the Services is contingent on your paying for such use (whether paid in advance or through the purchase of a balance on the SMSGorilla site), in the amounts and using the methods indicated on the SMSGorilla site. Your payment for the Services, a balance (as defined below in Section 10), DIDs, usage-sensitive fees and/or plans (a portion of which also includes software maintenance and upgrades, as well as customer support) shall be deemed completed when SMSGorilla receives the full amount of payment owed for such Services and/or DIDs. You are responsible to pay for any message you attempt to send to any number, regardless of whether the message is actually received by the intended recipient. As SMSGorilla is dependent on other entities for the delivery of your messages, our price per usage may require adjustment in order to account for costs that are not in our control. Accordingly, we may adjust our prices from time to time without prior notice. SMSGorilla will charge your indicated method of payment for the Services and/or DIDs immediately upon your confirming the payment method and amount. Amounts to be charged may include sales and other taxes where applicable and any other amounts indicated on the Site. SMSGorilla will assess an additional charge based on the costs SMSGorilla incurs for porting each DID number assigned to you that you request to be ported within six months of the original assignment by SMSGorilla and SMSGorilla may further restrict the ability to port telephone numbers assigned to you by SMSGorilla consistent with FCC regulations. Your account will be credited within 24 hours of SMSGorilla verifying receipt of your payment. If you have elected to make a payment by a credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by SMSGorilla. SMSGorilla cannot readily or accurately ascertain your location when you request to use the Services. You therefore agree that your use of the Services occurs in Arizona and is subject to any applicable Arizona taxes. To the extent that you are responsible for any additional taxes or fees beyond those collected by SMSGorilla, you agree that you will pay them when due to any applicable taxing authority, including any interest or penalties assessed. SMSGorilla shall not be responsible for any errors or transmission failures with regard to the charging and collection of funds from your indicated payment method, nor for any actions taken by the provider of the payment method you choose (which could include refusal to authorize the charge). In addition to these Terms, any payments made by you may be subject to the agreement between you and the provider of the payment method. As between you and SMSGorilla, you are responsible for all charges related to purchases made using your account and payment method, whether or not you authorized such purchases. In the event of accidental under billing in favor of a customer or a nonpayment by customer under these Terms, SMSGorilla shall be entitled to immediately proceed with collection remedies and shall be entitled to recover any and all costs, fees, and expenses of such collection efforts, including but not limited to: collection agencies, court costs, filing and service of process fees, attorneys’ fees incurred from counsel of SMSGorilla’s choosing, or any other costs, fees, and expenses incurred in the pursuit of collection on all customer accounts and receivables due and payable under these Terms.
Digital Wallet Balance
A balance is a paperless amount that is added to your digital wallet that you purchase, which facilitate the transmission of the SMSGorilla Services selected by you. The chosen route as well as the destination of a message causes the amount of a balance required to either increase or decrease but, in either case, will always be made known beforehand through the Pricing Page of our SMSGorilla site. The submission of a seemingly valid message will cause an associated quantity to be debited from your account and you can obtain the real-time status of your account at any time through the online interface. Individual balances purchased through your account will no longer be eligible for a refund after 12 months from the date of purchase. You may request a full refund of any unused balance within 12 months of purchase. After the listed period, refunds will no longer be offered, but the balance will remain in your digital wallet. An annual fee of $29.99 will be applied to maintain the balance in the digital wallet and this value will be automatically deducted from the balance. All prices and billing increments are subject to change at any time due to fluctuations in market conditions. Notwithstanding the above, SMSGorilla may, in its sole discretion, offer customized plans that provide for individualized terms concerning a balance expiration, billing cycles, account maintenance fees and/or other agreed upon terms. The terms of such customized plans will be made known and governed by the Pricing Page of our SMSGorilla site (https://smsgorilla.com/pricing/index.html).
No Warranty; Limitation of Liability
SMSGorilla reserves the right to modify, suspend, or discontinue the offering of the SMSGorilla site or Services at any time for any reason without prior notice. Further, while SMSGorilla utilizes electronic and physical security to reduce the risk of improper access to or manipulation of data during transmission and storage, it cannot guarantee the security or integrity of the data and shall have no liability for breaches of security or integrity or third-party interception in transit, nor for any damage which may result to your computer or other property by your use of the SMSGorilla site or Services. You acknowledge that text messages are transmitted unencrypted and that eavesdropping of communications by third parties is possible. SMSGorilla recommends that you ensure sensitive and valuable information is communicated by a protected and/or encrypted method. SMSGorilla shall use commercially reasonable efforts to make access to the Services available through the required access protocols, but makes no warranty or guarantee that (i) the Services will be available at any particular time; or (ii) you will be able to access the Services at any particular time or from any particular location. SMSGorilla will not be liable for any act or omission of any other company or companies furnishing a portion of the Services (including, without limitation communications carriers or ISPs), or from any act or omission of a third party, including those vendors participating in SMSGorilla offerings made to you, or for equipment that it does not furnish, or for damages that result from the operation of customer provided systems, equipment, facilities or services that are interconnected with the Service. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE SMSGorilla SITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS, SMSGorilla DOES NOT WARRANT THAT THE USE OF THE SMSGorilla SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING, BUT NOT LIMITED TO ANY INTERRUPTIONS TO THE SERVICES CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., “HACKING”) NOR SHALL SMSGorilla BE RESPONSIBLE FOR ANY DATA LOSS OR LOSS OF ANY INFORMATION IN YOUR ACCOUNT, REGARDLESS OF THE CAUSE. FURTHERMORE, SMSGorilla MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE SMSGorilla SITE OR SERVICES WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS. SMSGorilla MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. SMSGorilla SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE SMSGorilla SITE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA, SMSGorilla IS NOT RESPONSIBLE FOR THOSE COSTS. SMSGorilla’s TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE SMSGorilla SITE OR SERVICES FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU TO SMSGorilla HEREUNDER.
User Warranties; Indemnification
You warrant and represent to SMSGorilla that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation. You further warrant and represent that you are and shall at all times remain in full compliance with all applicable laws, rules and regulations with regard to your use of the SMSGorilla site and Services, including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CANSPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing. You agree to indemnify and hold harmless SMSGorilla and its affiliates and each of their respective officers, directors, shareholders, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by SMSGorilla in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (i) your breach of the above warranties; or (ii) any use by you, or an account or computer owned by you, of the SMSGorilla site or Services. You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but SMSGorilla reserves the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. You acknowledge and agree to be held liable for any and all damages caused to SMSGorilla by you as a direct result of a violation of local, state, national or international laws and regulations, including but are not limited to those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by SMSGorilla to you.
Termination, Cancellation and/or Suspension by SMSGorilla
If at any time you breach these Terms, we may elect to suspend, terminate, and/or cancel your use of the Services and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination, or cancellation. SMSGorilla reserves the right to suspend the Services at any stage for any reason SMSGorilla may deem necessary to continue to provide Services in a way that may be hindered by your status as being client, your financial status or the content of the messages or broadcasts originating from you. Upon any such termination, cancellation, and/or suspension, you are still responsible for any obligations then accrued. Your obligation to pay all amounts accrued and owed by you shall continue even after any suspension or cancellation of your access to the Services (in whole or in part). Upon termination, for any reason, you agree to immediately cease using the Services and SMSGorilla shall have no obligation to you after any termination or cancellation of these Terms. Should such a termination take place when you still have a balance in your account, you shall receive back, at our discretion, a fair monetary value of such a balance, save any expenses that may be incurred by SMSGorilla, including, without limitation, for payment of transfer duties, legal costs, third-party costs, or penalties. The provisions regarding ownership, payments, warranties, and indemnifications will survive any suspension, termination, or cancellation of your use of the Services or SMSGorilla site.
Termination by the User
You are free to terminate or cancel your use of the Services at any time, and for any reason, unless otherwise stated in your contract. Please contact support for assistance in cancellation. Notwithstanding the foregoing, unless due to a breach solely by SMSGorilla that it fails to cure within thirty (30) days of its receipt of your notice, in no event shall SMSGorilla be obligated to refund to you the reasonable value of any unused balance previously purchased by you.
Links to Other Websites
The SMSGorilla site may contain links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by SMSGorilla of the contents on such third-party websites. SMSGorilla is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk. SMSGorilla cannot ensure that you will be satisfied with any products or services that you purchase from a third-party website that links to or from the SMSGorilla site, since these websites are owned and operated by independent third parties. SMSGorilla does not endorse any of the products/services, nor has SMSGorilla taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party websites. SMSGorilla does not make any representations or warranties as to the security of any information (including, without limitation, a credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to such website. SMSGorilla strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. SMSGorilla consents to links to the SMSGorilla site which conform to the following: the appearance, position, and other aspects of any link to the SMSGorilla site may neither create the false appearance that an entity or its activities or products are associated with or sponsored by SMSGorilla nor be such as to damage or dilute the goodwill associated with the name and trademarks of SMSGorilla or its affiliates. SMSGorilla reserves the right to revoke this consent to link at any time in its sole discretion, without notice.
You are prohibited from violating or attempting to violate the security of the SMSGorilla site and Services and from using the SMSGorilla site and Services to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user of the SMSGorilla site or Services, host or network, including, without limitation, via means of submitting a virus to the SMSGorilla site, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”; (d) sending unsolicited email, including promotions and/or advertising of products or services; or (e) forging any SMSGorilla packet header or any part of the header information in any email, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability. SMSGorilla may investigate violations of these Terms and may involve and cooperate with law enforcement authorities in prosecuting users of the SMSGorilla site who are involved in such violations.
SMSGorilla shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications or Internet facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of SMSGorilla. In addition, SMSGorilla shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material necessary for the performance of the Services.
Choice of Law and Jurisdiction
These Terms shall be governed by and construed in accordance with the laws of the State of Arizona, notwithstanding its laws governing conflicts of laws. Except as hereinafter provided, any dispute arising under these Terms shall be settled and determined by binding arbitration in Phoenix, Arizona in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§116, as amended (the “Federal Arbitration Act”), to the exclusion of state laws inconsistent therewith. The terms of the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) then in effect shall apply except to the extent they conflict with the express provisions of this paragraph. A single independent arbitrator shall conduct the arbitration. The parties shall endeavor to select the independent arbitrator by mutual agreement. If such agreement cannot be reached within thirty (30) days after a dispute has arisen which is to be decided by arbitration, the selection of the arbitrator shall be made in accordance with the Rules as then in effect. The arbitrator shall be a member of a state bar engaged in the practice of law in the United States or a retired member of a state or the federal judiciary in the United States. The award of the arbitrator shall be based on the evidence admitted and the substantive law (subject to any applicable preemption or supersedence by U.S. federal substantive law) and shall contain an award for each issue and counterclaim. The award shall be made within thirty (30) days following the close of the final hearing and the filing of any post-hearing briefs authorized by the arbitrator, and such award shall set forth in writing the factual findings and legal reasoning for such award. The arbitrator may, in his/her discretion, award to any party specific performance or injunctive relief (the foregoing is not intended to limit SMSGorilla’s access to the courts to the extent provided below). The arbitrator may not change, modify, or alter any express condition, term, or provision of these Terms or the extent the scope of their authority is expressly limited. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding upon the parties and no appeal of any kind may be taken. Judgment may be entered thereon in any court having jurisdiction thereof. Each party shall be entitled to inspect and obtain a copy of nonprivileged relevant documents in the possession or control of the other party. All such discovery shall be in accordance with procedures approved by the arbitrator. Unless otherwise provided in the award, each party shall bear its own costs of discovery. The statute of limitations applicable under Arizona law to the commencement of a lawsuit shall apply to the commencement of arbitration hereunder. Anything in the foregoing paragraph to the contrary notwithstanding, SMSGorilla may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of these Terms. These Terms are only those stated herein, which shall constitute the complete agreement between the parties. No terms and conditions stated in or attached to your communications to SMSGorilla are applicable to these Terms in any way and are not to be considered your exceptions to the provisions of these Terms.
The failure of either party to exercise, in any respect, any right provided for, herein, will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind SMSGorilla in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, SMSGorilla will be entitled to recover costs and attorneys’ fees if it substantially prevails. All notices required hereunder shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. SMSGorilla may give notice to you by means of a general notice on the SMSGorilla site or Services, electronic mail to your email address on record in SMSGorilla’s account information, or by written communication sent by personal delivery, fax, overnight courier, or certified or registered mail to your address on record in SMSGorilla’s account information.