WHAMmobile Terms and Conditions
Terms and Conditions
WHAMtext is a federally registered trademark of WHAMmobile, Inc. WHAMmobile, Inc. reserves all rights and uses thereof.
WHAMtext is a service primarily designed to deliver savings on merchant goods and services to users of mobile telecommunications devices, namely cellular phones. WHAMtext uses patent pending technology to process user requests, delivered via SMS messages to a dedicated shortcode, and to match them with appropriate coupons for designated products or merchants. These coupons shall then be text messaged back to the end user for immediate redemption. Thus these coupons are collectively known as “Text Coupons” or, also, “SMS coupons”.
For the purposes of these Terms and Conditions "End User" is defined as any person or persons utilizing the WHAMcard and/or WHAMtext services through any medium for any purpose, whether intended or otherwise.
For the purposes of these Terms and Conditions "Buyer" is defined as any person, persons or entity who participates in WHAMmobile or WHAMtext premium or standard services to disseminate any coupon or advertising message(s)and/or participate in text message sweepstakes, alerts, trivia, votes/polls.
These Terms and Conditions contain information intended for both Buyers and End Users of the WHAMtext service. Some clauses contained herein may or may not be relevant or applicable to all parties.
For the purposes of these Terms and Conditions it shall be understood that any SMS coupon that is posted to WHAMtext.com shall be entered into a system for transmitting SMS coupons by text message or other suitable transmission type to mobile communications device(s). These transmissions are billable to the Buyer according to rates as stated in the contract for services between Buyer and WHAMcard, Inc.
WHAMtext is a merchant-supported service, that is, the costs of individual delivery of the text coupons are generally but not always passed on to the buyers. End users are not billed specifically for the use of the WHAMtext standard rate services, though regular text messaging fees may apply as per each end user’s agreement with his/her cellular service provider or other service provider. End users are billed by their service provider for the use of WHAMtext premium rate services. This rate is but not limited to $0.99 per text message and regular text message rates may apply as per each end user’s agreement with his/her cellular service provider or other service provider. Each end user is encouraged to consult with his/her service provider regarding any such charges.
The WHAMtext standard rate service is by its nature an opt-in service, as the unique “DealsOnDemand” feature allows users to request text coupons when they want such coupons. There is no need to specifically “opt-in” or “opt-out” of the DealsOnDemand service. Sending a request to the dedicated shortcode is understood as a one-time opt-in to receive the associated text coupon.
The WHAMtext premium rate service is by its nature a double opt-in service. Buyers that opt-in agree to pay any and all fees associated with the WHAMtext premium rate service.
To opt-out of any WHAMtext premium rate service an end user may send a text message containing the word "STOP" to short code (555999 or444888)
The following indented passages constitute the terms of the service agreement between Buyer and WHAMmobile, Inc.
By submitting an order for one or more SMS Coupon(s) to be placed on the WHAMtext.com website and/or one or more Discount Card Ad(s) placed on WHAMcard(s) OR by participating an any/all WHAMtext premium rate services at $0.99 or any other price, Buyer agrees to the following terms and conditions:
1. The term of this Agreement shall be listed on the front of this contract subject to the terms hereof. Subsequent renewals shall be priced at the WHAMmobile, Inc. rate then in effect. WHAMmobile, Inc. shall notify Buyer of said renewal rate with at least 30 days notice prior to expiration of this term.
2. Upon receipt of Buyer's payment, WHAMmobile, Inc.'s sole responsibility under this Agreement is to place Buyer's SMS Coupon(s) on the WHAMtext.com website and/or place Buyer's discount card advertisement on specified WHAMcards in accordance with the information provided by Buyer. Upon written notice by Buyer of any discrepancies or desired changes, WHAMmobile, Inc. shall use due diligence to make such changes. Buyer acknowledges that WHAMmobile, Inc. shall retain total discretion not to place Buyer's SMS Coupon(s) on WHAMtext.com and/or Discount Card Ad(s) on WHAMcard(s) if WHAMmobile, Inc. deems the content to be sexually explicit or suggestive, violent, illegal, immoral or otherwise not in accordance with the values, standards and policies WHAMmobile, Inc. sets forth from time to time. Should WHAMmobile, Inc. find itself unable to approve Buyer's SMS Coupon(s) and/or Discount Card Ad(s), WHAMmobile, Inc. shall notify Buyer and advise of any and all necessary changes. In the event Buyer is unable or unwilling to modify Buyer's SMS Coupon(s) and/or Discount Card Ad(s) on WHAMcard(s) as required by WHAMmobile, Inc., WHAMmobile, Inc. shall refund any payment submitted to WHAMmobile, Inc. by Buyer in good faith unless Buyer's purpose, as deemed by WHAMmobile, Inc. in WHAMmobile, Inc.'s sole discretion, was to submit copy knowingly in direct violation of this clause. Should Buyer elect to modify, alter or change Buyer's SMS Coupon(s) and/or Discount Card Ad(s) on WHAMcard(s), in any way following initial approval, WHAMmobile, Inc. shall have the right once again to approve / disapprove Buyer's modified, altered or changed copy; however, in the event that the new copy is not approved, Buyer's prior copy shall be retained and Buyer shall not be entitled to a refund. Additionally, to protect the integrity of the WHAMtext.com website, Buyer agrees that it's SMS Coupon offer shall not be offered under more favorable terms and conditions on any other website than Buyer is offering on the WHAMtext.com website.
3. WHAMmobile, Inc. has no obligation to provide any creative, design, technical or production services to Buyer and the nature and extent of any such services which WHAMmobile, Inc. may provide to Buyer shall be determined by WHAMmobile, Inc. in its sole discretion. All of Buyer's discount card advertisement ad copy provided by Buyer must be submitted to WHAMmobile, Inc. in either jpeg or gif format containing a file size not to exceed 15k.
4. Buyer and/or End User is solely responsible for and agrees to indemnify and hold WHAMmobile, Inc. and/or any third party harmless from any legal liability arising out of or relating to Buyer's respective goods and services and any content accessible to its customers which Buyer places on the WHAMtext.com website and/or WHAMcard(s). Buyer represents and warrants that it holds the necessary rights to permit the use of its goods and services and that the sale and use thereof will not violate any criminal or common law, any statutory rights or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright , patent, trademark, trade secret, music, image or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or right of celebrity, violation of any anti-discrimination law or regulation, violation of any state or federal decency or obscenity law or regulation or any right of any person or entity. Buyer agrees to defend, indemnify and hold harmless WHAMcard, Inc., its successors, assigns, subsidiaries, agents, officers, directors, employees, attorneys, accountants, affiliates, distributors, and franchisees ("Releasees") from and against any and all liability, loss, damages, claims, or causes of action, lawsuits and expenses of any kind, including reasonable legal fees and expenses that may be incurred by WHAMmobile, Inc. (including in-house attorneys' fees) in defending any such action , arising out of or related to Buyer's breach of any of the foregoing representations and warranties or any other terms and conditions in this Agreement.
5. All copyrights to templates, artwork, and graphics used to create Buyer's SMS Coupon(s) and/or Discount Card Ad(s) which are created by WHAMcard, Inc. and other templates or other original content located on the WHAMtext.com website shall remain the sole property of WHAMmobile, Inc. or its licensors. Accordingly, except for any intellectual property rights Buyer may already have, Buyer acknowledges that it retains no exclusive copyright or intellectual property rights in the components used by WHAMmobile, Inc. to create Buyer's SMS Coupon(s) and/or Discount Card Ad(s) or in Buyer's completed SMS Coupon(s) and/or Discount Card Ad(s). Should Buyer own any such trademark or other rights in its trade name, Buyer hereby grants WHAMmobile, Inc. a non-exclusive worldwide license to market, display, license, distribute, reproduce, transmit, perform and promote Buyer's goods and services contained therein through the use of any of it's trademarks, trade names and service marks in connection with the WHAMtext.com website and/or WHAMcard(s).
6. WHAMmobile, INC. MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AND WHAMmobile, INC. HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING BUYER'S SMS COUPON(S) AND/OR DISCOUNT CARD AD(S) PLACED ON THE WHAMtext.com WEBSITE AND/OR ON WHAMcard(s), INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. BUYER ACKNOWLEDGES THAT WHAMmobile, INC. SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) THE NUMBER OF PERSONS THAT WILL ACCESS BUYER'S SMS COUPON(S) AND/OR DISCOUNT CARD AD(S) ON WHAMcard(s) (II) ANY BENEFIT THAT BUYER MIGHT OBTAIN FROM INCLUDING BUYER'S SMS COUPON(S) AND/OR DISOUNT CARD ADVERTISEMENT(S) ON THE WHAMtext.com WEBSITE AND/OR ON WHAMcard(s) (III) OR THE FUNCTIONALITY OF THE WHAMtext.com WEBSITE.
7. UNDER NO CIRCUMSTANCES SHALL WHAMmobile, INC. BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING FROM THE USE OR INABILITY TO USE THE WHAMtext.com WEBSITE OR THE USE OR INABILITY TO USE ANY WHAMtext STANDARD RATE OR PREMIUM RATE SERVICES OR FROM ANY OTHER ASPECT OF THE RELATIONSHIP PROVIDED FOR BY THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. WHAMmobile, INC. SHALL NOT BE LIABLE TO BUYER UNDER THE AGREEMENT FOR MORE THAN THE AMOUNTS PAID TO WHAMmobile, INC. BY BUYER HEREUNDER.
8. The parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties in any way. Neither party nor its employees has the authority to bind or commit the other party in any way, or to incur any obligation on its behalf.
9. This Agreement, coupled with the Payment terms and conditions, sets forth the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes all prior oral and written understandings, communications or agreements not specifically incorporated herein. This Agreement may not be modified except in writing duly signed by Buyer and WHAMmobile, Inc.
10. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Texas, without regard to its conflict of law provisions. Buyer hereby irrevocably consents to the exclusive jurisdiction of the courts of Harris County, Texas and the federal courts for the Southern District of Texas in connection with any action arising under this Agreement.
11. In the event any provision of this Agreement is held invalid by a court with jurisdiction over the parties to the Agreement, the remaining provisions of this Agreement shall remain in full force and effect.
12. WHAMmobile, Inc. shall not be liable for delay or default in performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, floods, accidents, earthquakes, telecommunication line failure, storms, acts of war, riots, government interference, strikes and/or walk-outs.
13. Each party represents and warrants that (i) such party has the necessary right, power and authority to enter into this Agreement; and (ii) nothing contained in this Agreement or in such party's performance hereunder will place such party in breach of any other contract or agreement to which it is a party. If Buyer fails to abide by any of the above terms and conditions after initial approval of Buyer's SMS Coupon(s) and/or Discount Card Ad(s), WHAMmobile, Inc. shall terminate this Agreement immediately and immediately remove Buyer's SMS Coupon(s) from the WHAMtext.com website. In that event, WHAMmobile, Inc. shall not be obligated to provide any refund whatsoever of any monies buyer has paid following the initial approval of Buyer's copy.
14. UNDER NO CIRCUMSTANCES SHALL WHAMmobile, INC. BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE TO THE END USER OF THE WHAMcard AND/OR WHAMtext STANDARD RATE OR PREMIUM RATE SERVICES. WHAMmobile, INC. ASSUMES NO RESPOSIBILITY AND SHALL BE HELD HARMLESS WITH REGARD TO ANY COST, LIABILITY, OR DAMAGES INCURRED BY ANY END USER OF THE WHAMcard AND/OR WHAMtext STANDARD RATE OR PREMIUM RATE SERVICES.