TERMS OF SERVICE AGREEMENT - LASTMSGS
Last Modified: January 13, 2020
These Customer Terms and Conditions (this "Agreement"), effective as of the date on which you click a button or check a box acknowledging your acceptance of this Agreement (the "Effective Date"), is by and between Zensive, Inc., a New Hampshire corporation ("Zensive", "we", "our", or "us") and the entity or individual accepting this Agreement ("Customer", "you", or "your"). The individual accepting this Agreement hereby represents and warrants that they are duly authorized to accept this Agreement and bind any entity they represent. By using Zensive's services, you agree to these terms. Zensive and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."
1. DEFINITIONS
"Service" means LastMsgs' message delivery platform and all associated functionality provided by Zensive, including all software, systems, and services used to store, manage, and deliver messages.
"Messages" means any content stored for future delivery through the Service, including but not limited to text, documents, images, videos, audio files, and any other digital content format supported by the Service.
"Check-in" means the regular verification process whereby Customer confirms their active status through methods specified by the Service, including but not limited to application interaction, SMS confirmation, email response, or API calls.
"Delivery Event" means the automated transmission of Messages to Recipients following five consecutive missed Check-ins or other triggering conditions as specified in this Agreement.
"Recipients" means individuals or entities designated by Customer to receive Messages upon a Delivery Event.
2. SERVICE COMMITMENTS AND OPERATIONS
2.1 Core Service Commitments
Zensive commits to providing and maintaining the Service in accordance with industry standards and the specific terms of this Agreement. Our core commitments include:
The Service shall maintain secure message storage using industry-standard encryption protocols for all stored content. We implement multiple layers of security, including but not limited to encryption at rest, encryption in transit, access controls, and regular security audits.
We shall protect Customer privacy and data through strict internal controls, separation of sensitive data, and implementation of privacy-preserving architectures. No Customer data shall be used for purposes other than providing the Service.
The Service shall provide reliable Check-in mechanisms through multiple channels to ensure Customer ability to verify active status. Check-in systems shall be monitored 24/7 and maintain 99.9% uptime.
We shall maintain transparency in our operations through regular status updates, prompt incident notifications, and clear communication regarding any system changes or maintenance.
Message delivery shall occur only upon triggering conditions specified in this Agreement, and delivery attempts shall be logged and tracked for verification purposes.
2.2 Communication and Data Usage
Zensive shall contact Recipients solely for the purpose of Message delivery following missed Check-ins. Contact information shall not be used for marketing, promotional, or any other purpose.
Customer data and Recipient information shall remain strictly confidential. We shall not sell, share, lease, or otherwise make available any Customer or Recipient information to third parties.
Message content shall remain encrypted and unanalyzed. No automated or manual content analysis shall be performed for any purpose, including but not limited to artificial intelligence training, marketing research, or service improvement.
Upon account termination, all Customer data, including Messages and Recipient information, shall be securely deleted within thirty (30) days. Deletion shall include removal from primary storage, backups, and any redundant systems.
2.3 Technical Operations
The Service shall maintain high availability for Check-in systems, with scheduled maintenance performed during off-peak hours and with advance notice to Customers.
Each successful Check-in shall generate a confirmation notification through Customer's chosen notification method. Failed Check-ins shall trigger escalating alerts according to Customer's configured preferences.
Check-in reminders shall be sent according to Customer's configured schedule through specified communication channels.
The Service shall maintain detailed records of all Check-in attempts, status changes, and delivery events. These records shall be available to Customer through the Service interface.
Technical support shall be available through specified support channels during published support hours, with emergency support available 24/7 for critical issues.
3. LIABILITY LIMITATIONS AND DISCLAIMERS
3.1 Limitation of Liability
Notwithstanding any other provision of this Agreement, Zensive's total liability arising from or relating to this Agreement shall be limited to the amount paid by Customer for the Service during the twelve (12) months immediately preceding the incident giving rise to the claim, not to exceed the total lifetime subscription fees paid by Customer.
3.2 Specific Disclaimers
Zensive explicitly disclaims liability for:
Any direct, indirect, incidental, special, consequential, or exemplary damages arising from Message delivery or non-delivery, including but not limited to damages for lost profits, goodwill, use, data, or other intangible losses.
Any damage to personal or professional relationships, reputation, or standing resulting from Message delivery or content.
Unintended Message delivery resulting from Customer's failure to complete required Check-ins or from system malfunctions despite reasonable safeguards.
Messages delivered at times deemed inappropriate or inconvenient by Customer or Recipients.
Failure of Recipients to receive, access, or comprehend delivered Messages, regardless of delivery confirmation.
Security breaches or data loss occurring despite implementation of reasonable security measures, including but not limited to encryption, access controls, and security monitoring.
4. CONTENT RESTRICTIONS AND RESPONSIBILITIES
4.1 Prohibited Content
Customer agrees not to store or transmit Messages that:
Contain instructions for activities that violate local, state, federal, or international law.
Include credentials, passwords, keys, or other access mechanisms enabling unauthorized access to systems, accounts, or protected information.
Contain threats, harassment, hate speech, or content intended to cause harm or distress.
Violate any applicable laws, regulations, or rights of third parties, including but not limited to intellectual property rights, privacy rights, or publicity rights.
4.2 Customer Responsibilities
Customer shall:
Maintain accurate and current Recipient contact information, including backup contact methods.
Complete regular Check-ins according to their configured schedule if Message delivery is not desired.
Take full responsibility for Message content and any consequences of Message delivery.
Ensure all Messages comply with applicable laws and regulations in both originating and receiving jurisdictions.
Inform Recipients about potential future Message delivery and obtain any necessary consent.
Regularly review and update stored Messages to ensure continued accuracy and relevance.
5. SERVICE DESCRIPTION AND LIMITATIONS
5.1 Core Service Operation
The Service provides secure storage and conditional delivery of Messages based on Customer's Check-in status. Messages are delivered only after five consecutive missed Check-ins, unless otherwise specified in Customer's service configuration.
5.2 Delivery Limitations
Customer acknowledges and agrees that:
Message delivery cannot be guaranteed due to factors including but not limited to technical limitations, network conditions, and Recipient availability.
Technical issues, including but not limited to system outages, network problems, or security incidents, may prevent or delay Message delivery.
Recipients may not receive, access, or read delivered Messages due to factors beyond Zensive's control.
Messages may be delivered at unintended times if Customer fails to complete required Check-ins.
Zensive bears no responsibility for any consequences, intended or unintended, arising from Message delivery or non-delivery.
6. MODIFICATION AND AMENDMENT
Zensive reserves the right to modify this Agreement from time to time at its discretion. The modification date will be updated at the top of this Agreement. Zensive shall provide reasonable notice of modifications through email or other appropriate communication channels.
Customer's continued use of the Service following modification constitutes acceptance of the modified Agreement. If Customer does not agree to modifications, Customer must terminate their use of the Service before modifications take effect.
7. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire, without regard to its conflict of law provisions. Any dispute arising from or relating to this Agreement shall be brought exclusively in the federal or state courts located in New Hampshire, and the Parties consent to the personal jurisdiction of such courts.
8. WAIVER AND SEVERABILITY
No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
9. U.S. GOVERNMENT RIGHTS
If Customer is an agency or contractor of the U.S. Government, the Service and Documentation are "commercial items" as defined in 48 C.F.R. ยง2.101, consisting of "commercial computer software" and "commercial computer software documentation." Customer's rights are limited to those specifically granted to all end users pursuant to the terms and conditions of this Agreement.
10. Support.
During the Subscription Period, LastMsgs will use commercially reasonable efforts to provide Customer with basic customer support via LastMsgs's standard support channels during LastMsgs's normal business hours.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may only be modified as provided herein.