Terms and Conditions
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By using the OptMsg App (Apple or Android) or the OptMsg.com website and making use of a OptMsg Account (the “Account”), you agree to be bound by the following terms of service (the “Terms”). These Terms cover all present and future features provided by your Account. The Services are operated by OptMsg LLC (“We”, the “Company”), a United States company located in Bloomfield Hills, Michigan 48302.
Use of your Account or the Services includes registering an Account, keeping an Account open (not deleted by you or not deleted or deactivated by OptMsg), or accessing our website or mobile/desktop applications, or making use of our services. Please read these Terms carefully before you use your Account or the Services. By using your Account or the Services, you are agreeing to be bound by these Terms. You may not use your Account or the Services if you do not agree to these Terms. These Terms apply every time you use your Account or the Services.
If you agree to these Terms on behalf of a company or another legal entity, you represent that you have the authority to bind such entity, its affiliates, and all users who access the Services through your Account to these Terms. In the absence of such an authority, you are not authorized to use the Services.
Users of the Services
The Services are provided exclusively to persons or legal entities. Accounts registered by “bots” or automated methods are not authorized and will be terminated.
Each user is solely responsible for all actions performed through the Services.
Authorized use of the Services
You agree not to use your Account or the Services for any illegal or prohibited activities. Unauthorized activities include, but are not limited to:
1. Disrupting the Company’s networks and Servers in your use of the Services.
2. Accessing/sharing/downloading/uploading illegal content, including but not limited to Child Sexual Abuse Material (CSAM) or content related to CSAM.
3. Infringing upon or violating the intellectual property rights of the Company or a third party.
4. Harassing, abusing, insulting, harming, defaming, slandering, disparaging, intimidating or discriminating against someone based on gender, sexual orientation, religion, ethnicity, race, age, nationality or disability.
5. Trading, selling, or otherwise transferring the ownership of an Account to a third party (except Lifetime Accounts, which can be sold or traded exclusively through the Company).
6. Promoting illegal activities or providing instructional information to other parties to commit illegal activities.
7. Having a large number of Accounts (e.g. creating bulk signups, creating and/or operating a large number of Accounts for a single organization or individual).
8. Paying for your subscription with fraudulent payment means, such as a stolen credit card.
9. Engaging in spam activities, which are defined as the practice of sending irrelevant or unsolicited messages or content over the internet, typically to a large number of recipients, notably for the purposes of advertising, phishing, or spreading malware or viruses.
10. Sending junk mail, bulk emails, or mailing list emails that contain persons that have not specifically agreed to be included on that list. You agree not to use the Services to store or share content that violates the law or the rights of a third party.
11. Abusive registrations of email aliases for third-party services.
12. Attempting to access, probe, or connect to computing devices without proper authorization (i.e. any form of unauthorized “hacking”).
13. Referring yourself or another one of your accounts to unduly benefit from our referral program’s advantages.
Any Account found to be committing the listed unauthorized activities will be immediately suspended.
The Company may also terminate Accounts which are being used for illegal activities that are not listed above, particularly in response to orders from the competent authorities informing of such illegal activity.
If you would like to contest the suspension of your account, please submit an appeal to support@optmessage.com
Limited warranties and liability
The Company does not make any warranty about the reliability of the Services or the security of user data, despite best efforts. The Service is provided “as is” and “as available,” without warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, accuracy, non-infringement, or warranties that may arise from course of dealing or course of performance or usage of trade.
The Company has no obligation to store or forward the contents of terminated Accounts. We also have no obligation to store messages or contents for accounts that exceed their storage quotas. Furthermore, you will not hold the Company liable or seek indemnification if confidential material is unintentionally released as the result of a security failure or vulnerability in the performance of the Services. You acknowledge that the Company has no ability or obligation to recover your data if you misplace your device or passkey.
To the extent not prohibited by law, you acknowledge and agree that in no event will the Company be responsible or liable to you or any third party, under any theory of responsibility or liability, for any indirect, special, exemplary, incidental, consequential, or punitive damages (including, but not limited to, procurement of substitute goods or services; loss of data, use, or profits; business interruptions; or any other damages or losses), for any multiplier on or increase to damages, or for any costs or fees (including attorneys’ fees), whether under these Terms or otherwise, arising in any way in connection with your Account, the Services, or these Terms, whether arising at law, in equity, or otherwise, and whether based in contract, strict liability, tort (including negligence or otherwise), common law, statute, equity, or otherwise, even if we have been advised of the possibility of such damage, or for any other claim, demand, or damages whatsoever, arising out of or related to your use or inability to use your Account or the Services.
Without limitation of the foregoing, and to the extent not prohibited by law, the total liability of the Company’s parties for any reason whatsoever arising out of or related to the use of, or inability to use, your Account or the Services, or these Terms, shall not exceed $100, or the amount you paid us for use of your Account. This liability, if any, shall be complete and exclusive. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Applicable law in some locations, such as the State of New Jersey, does not allow the waiver of implied warranties, the limitation of liability of certain damages set forth above, including the provisions of this section that limit or exclude special, exemplary, consequential, or punitive damages, or limit or exclude the use of any multiplier on or increase to damages, and limit the liability of the Company or any of the Company’s parties, to the greater of either $100 or the amount paid by you for use of your Account. These limitations or exclusions may not apply to you. The provisions of this section do not apply to the extent, and only to the extent, not permitted by applicable law.
IF OU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Service level agreement (SLA)
The Company aims to provide Service availability of 99.95% or better. If downtime in any month exceeds 0.05% of that month, the Company will credit the user’s Account. Service credits are applied at the user’s request and will apply toward the balance due at the end of the next billing cycle (either monthly or yearly).
The Company calculates service credits in the following way:
- If the monthly uptime is less than 99.95% but equal to or greater than 99.0%, the service credit is equal to 10% of the Service’s monthly cost.
- If the monthly uptime is less than 99.0%, the service credit is equal to 30% of the Service’s cost.
Some performance issues are excluded from downtime calculations, such as:
- Issues caused by factors outside of the Company’s reasonable control.
- Issues that resulted from any actions or inaction by a user or a third party.
- Issues that resulted from the user’s equipment and/or third-party equipment (not within the primary control of the Company). For the avoidance of any doubt, the Company does not provide any internet or network services and any performance issues related to that type of services shall be deemed not in the primary control of the Company.
- Issues that arise from the Company’s suspension or termination of rights to use the Service in accordance with the Terms.
- Downtime caused by reasonable scheduled maintenance that is announced in advance.
Indemnification
You agree that the Company, and any parents, subsidiaries, officers, directors, employees, agents, or third-party contractors (the “Indemnified Parties”) cannot be held responsible for any third-party claim, demand, or damages, including reasonable attorneys’ fees, arising out of your use of your Account or the Services. You agree that the Indemnified Parties will have no liability in connection with any such third-party claim, demand, or damages, and you agree to indemnify any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees and litigation expenses of the Indemnified Parties in connection therewith. You will also indemnify and hold the Indemnified Parties harmless from and against any third-party claims, demands, or damages arising out of your use of your Account or the Services.
Privacy
Our Privacy Policy and its sub-policies explain the way we handle and protect your personal data and privacy in relation to your Account. By agreeing to the present Terms and to be able to use the Services, you also agree to our Privacy Policy and its sub-policie
Intellectual property
All trademarks, service marks, logos, trade names, and other proprietary designations of OPTMSG (the “OPTMSG Trademarks”) displayed on this website are trademarks or registered trademarks of the Company. Nothing in these Terms and Conditions should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the OptMsg Trademarks without our prior written permission in each instance. All goodwill generated from the use of the OptMsg Trademarks will inure to the Company’s exclusive benefit.
Terms of payment
Subscriptions for the Services are charged on a monthly or yearly billing cycle, depending on your selection. After the initial term, the subscription is renewed automatically for the same selected duration unless canceled or modified by you. Credit balances are automatically deducted accordingly. You are responsible for keeping payment information in relation to your Account up to date.
The Services provided by the Company are nonrefundable and there are no refunds or credits for partially used membership periods. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our customers. The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance. Accounts which are terminated due to a violation of these Terms will incur the loss of all payments and credits and are not eligible for refund.
If the Company chooses to issue a refund for any reason, The Company will only refund in the original currency of payment and to the original payment method. If you request a credit balance to be converted between different currencies which the Company supports, the Company has discretion over the exchange rate applied.
If you fail to fulfill your obligation of payment as a user of a paid Account, we may suspend your Account or delete it after an extended period of default.
If you rely on dispute or chargeback mechanisms of third-party payment processors, you waive your right to the above-mentioned refund from the Company and consent to rely upon the dispute resolution procedure of the third-party payment processor. Furthermore, if the result of the dispute or chargeback mechanisms causes the Company to be liable for additional costs (e.g. dispute fee), you authorize the Company to charge that amount on your account.
Modification of billing cycle
If you select a new billing cycle, your subscription will be immediately updated, and you will receive a prorated credit for the unused portion of your previous plan that will be automatically applied to your account.
Modification to the terms of service
Within the limits of applicable law, the Company reserves the right to review and change these Terms at any time. As long as you are using your Account, you are responsible for regularly reviewing these Terms. Continued use of your Account, including non-deletion of your Account after such changes are performed shall constitute your consent to them. The latest Terms will apply going forward and to any dispute or issue arising after the Terms have been updated.
Severability
If any of the provisions of these Terms are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions, unless they materially affect the entire intent and purpose of these Terms or unless otherwise provided herein, shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms shall remain in full force and effect.
Applicable law and language
Michigan law will govern all disputes arising out of or relating to these terms, service-specific additional terms, or any related services, regardless of conflict of laws rules. These disputes will be resolved exclusively in the federal or state courts of Oakland County, Michigan, USA, and you and OptMsg consent to personal jurisdiction in those courts.
About these terms
By law, you have certain rights that can’t be limited by a contract like these terms of service. These terms are in no way intended to restrict those rights.
These terms describe the relationship between you and OptMsg. They don’t create any legal rights for other people or organizations, even if others benefit from that relationship under these terms.
If it turns out that a particular term is not valid or enforceable, this will not affect any other terms.
If you don’t follow these terms and we don’t take action right away, that doesn’t mean we’re giving up any rights that we may have, such as taking action in the future.
We may update these terms (1) to reflect changes in our services or how we do business — for example, when we add new services, features, technologies, pricing, or benefits (or remove old ones), (2) for legal, regulatory, or security reasons, or (3) to prevent abuse or harm.
If we materially change these terms, we’ll provide you with reasonable advance notice and the opportunity to review the changes, except (1) when we launch a new service or feature, or (2) in urgent situations, such as preventing ongoing abuse or responding to legal requirements. If you don’t agree to the new terms, you should remove account and stop using the services. You can also end your relationship with us at any time by closing your OptMsg Account.
Miscellaneous
These Terms do not affect your statutory rights or your legal rights, if any, as a consumer.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope of such section.
Our failure to enforce any provision of these Terms shall not constitute a waiver of that or any other provision.
We may assign these Terms in whole or in part. Moreover, we may delegate our rights and responsibilities or use contractors or agents to fulfill its obligations under these Terms.
These Terms represent the entire agreement between you and us in connection with your use of your Account or the Services, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and the Company with respect to your Account or the Services.
In case of discrepancy between the English version of these Terms and any translated version, the English version shall prevail.
