This Attachment is expressly incorporated into the IntelePeer Master Services Agreement entered into by IntelePeer and Customer (the “Agreement”).
1. Service Description.
1.1 IntelePeer will provide Customer a Service that allows Customer to send and receive short message service (“SMS”) text messages on any telephone number the Customer enables (“Atmosphere Messaging”), pursuant to the terms and conditions set forth in this Agreement. IntelePeer will use commercially reasonable efforts to process the message in its platform and promptly route messages with downstream communications carriers for delivery to the final destination.
1.2 Enablement. IntelePeer will grant Customer access to its IntelePeer Customer Portal, or the supporting application protocol interface (“API”), for Customer to enable its telephone numbers obtained from its Atmosphere Inbound Services or its Atmosphere Toll Free Services (“Messaging Enabled Numbers”), to send and receive any messages delivered via Atmosphere Messaging, and to track delivery analytics provided therein.
1.3 Intellectual Property Rights. IntelePeer grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use AtmosphereMessaging and associated proprietary software (in object code form only), APIs and supporting documentation, for the sole purpose of using the Services in accordance with this Attachment.
1.4 Message Retention Schedule. For messages transmitted via Atmosphere Messaging, IntelePeer will retain: (i) the messages in their entirety (message detail record and content) for no longer than fifteen (15) days from successful processing to assist with addressing any support or technical issues; and (i) the message detail record for no longer than three (3) years (“Message Retention Schedule”). Notwithstanding the Message Retention Schedule, Customer will be solely responsible for retaining any messages or message detail records necessary to ensure its compliance with all applicable laws.
1.5 Restrictions. To protect our network and connections with underlying providers for this Service, IntelePeer will employ throttling on outbound SMS Messages consistent with industry standards and guidelines. IntelePeer reserves the right to employ any other throttling measures, including without limitation restricting the number of messages per number per day, as IntelePeer deems necessary in its sole and reasonable discretion. IntelePeer also reserves the right, but is under no obligation, to: (i) monitor the Customer’s use of the Atmosphere Messaging under this Attachment, including without limitation messages sent using the Service, in the normal course of provisioning its Services; and (ii) block the transmission of any data or content, which might be in violation of this Agreement or any applicable law, without notice.
1.6 Analytics. Although IntelePeer strives to ensure the accuracy, completeness and reliability of the information in the reports and analytics generated on Atmosphere Messaging as a courtesy to its Customers, IntelePeer makes no warranty or guarantee for the accuracy, completeness, reliability, efficacy or timeliness of any information provided, and expressly excludes from any Service Level Agreement terms provided in the Agreement. In using the information provided, Customer agrees that: (i) the information is subject to change without notice and acknowledges that IntelePeer assumes no responsibility for the consequences of use of such information; and (ii) IntelePeer may use and share aggregated data, not specific for any particular customer, to track the performance of Atmosphere Messaging.
1.7 Warranty Disclaimer. IntelePeer will only transmit such messages, expressly conditioned on a basis of good faith that Customer uses the Services in accordance with this Agreement, including without limitation Section 3 below. Due to the conditions set forth in Section 3, IntelePeer cannot guarantee the delivery, accuracy, content, reliability, security, performance, or timeliness or success of delivery of messages using the Atmosphere Under no circumstances will IntelePeer be responsible for the messages Customer transmits via Atmosphere Messaging, including without limitation for the accuracy, message corruption, inappropriate, fraudulent, or inaccurate content, breach of privacy, or breach of data security associated with such messages.
2.1 IntelePeer will calculate all Rates for Atmosphere Messaging on a per-message basis for any message received into the IntelePeer platform, regardless of the successful delivery of the message. For SMS messages that can be encoded as single byte characters, the message length maximum for US Destinations is one hundred and sixty (160) characters, and for Canada destinations is one hundred and forty (140) characters. If an SMS message requires the use of double byte characters or characters outside of GSM 03.38, then the message length maximum is seventy (70) characters. The delivery provider will break messages longer than those character limits into fragments using the aforementioned lengths after allocating seven (7) bytes for each message fragment needed. A fragment is considered a single message for billing purposes.
2.2 IntelePeer will provide Rates for Atmosphere Messaging as outlined in Customer’s IntelePeer Solution Summary.
3. Customer Responsibilities.
3.1 Customer will order Atmosphere Messaging by expressly authorizing and enabling the Service in the IntelePeer Customer Portal, or the supporting API, to enable the Messaging Enabled Number, which will result in the registration of such Messaging Enabled Numbers for messaging. Such authorization will require Customer to ensure that the Messaging Enabled Numbers used in Atmosphere Messaging are provisioned on behalf of legitimate owners of the telephone numbers.
3.2 Customer acknowledges that delivery time for messages using Atmosphere Messaging depend on various factors associated with the third-party networks used to deliver messages, including without limitation their default practices on discarding undelivered messages.
3.3 Though IntelePeer utilizes electronic and physical security to reduce the risk of improper access to or manipulation of data during transmission and storage, Customer acknowledges that text messages are transmitted unencrypted when traversing the Public Switched Telephone Network. IntelePeer does not guarantee the security or integrity of the personal information in transmission or storage with Atmosphere Customer agrees to communicate all such sensitive information by a different protected or encrypted method.
3.4 Customer warrants that: (i) Customer will be solely responsible for complying with all regulations and restrictions of (a) the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, (b) the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act, 18 U.S.C. §1037, (c) Health Insurance Portability & Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009 and accompanying regulations (collectively “HIPAA”), and (d) any similar federal, state or local laws or regulations prohibiting or regulating messages transmitted via Atmosphere Messaging in each jurisdiction where messages are transmitted, distributed or received (“Applicable Consumer Protection Laws”); (ii) the owners of the telephone numbers Customer uses to initiate unsolicited text messages through Atmosphere Messaging have expressly consented, or otherwise opted-in, in writing to receive such messages for commercial purposes as required by any applicable law or regulation; and (iii) Customer will provide clear opt-out or unsubscribe information on text messages as required by any applicable law or regulation.
3.5 Customer agrees to be solely responsible for: (i) scrubbing and maintaining the list of recipients of their messaging; (ii) obtaining and retaining all documentation sufficient to demonstrate the compliance set forth in this Section, and providing such to IntelePeer upon written request; (iii) setting and securing any endpoints used in conjunction with Atmosphere Messaging; and (iv) all acts or omissions that otherwise occur under the Customer account.
3.6 For Atmosphere Messaging, Customer covenants and agrees to indemnify IntelePeer, its affiliated companies, owners, officers, directors, employees, and agents (the “Indemnified Parties”) and to defend and hold the Indemnified Parties harmless from and against any and all liabilities, damages, costs and expenses (including all legal and professional fees) arising out of or relating to any claim, action, suit, complaint or other proceeding brought by a third party based, in whole or in part, upon any failure of Customer or its users in any way to adhere to the terms of this Attachment.