SmartMsg Terms of Service

Provider: Always Curious LLC, a Virginia limited liability company, doing business as SmartMsg (“SmartMsg,” “we,” “us,” or “our”) Website: https://smartmsg.io Version: 3.0 Effective date: 11/24/2021 Last updated: 9/11/2026

PLEASE READ THESE TERMS CAREFULLY. THEY CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER (SECTION 18), A LIMITATION OF LIABILITY (SECTION 16), AND OBLIGATIONS THAT MAKE YOU RESPONSIBLE FOR COMPLIANCE WITH TELEMARKETING, TEXT MESSAGING, AND PRIVACY LAWS WHEN YOU USE THE SERVICES (SECTIONS 6 AND 7).

1. Agreement and acceptance

1.1 The agreement. These Terms of Service (the “Terms“), together with the SmartMsg Acceptable Use & Messaging Policy (the “AUP“), the SmartMsg Privacy Policy, any Order Form, and any other policies we reference here (collectively, the “Agreement“), form a legally binding contract between Always Curious LLC d/b/a SmartMsg and the individual or entity that creates an account or uses the Services (“Customer,” “you,” or “your“).

1.2 Acceptance. You accept the Agreement by clicking “I agree” (or similar), creating an account, signing an Order Form, using the Services, or making an API call. If you do not agree, do not use the Services.

1.3 Authority; business use only. The Services are offered only to businesses, organizations, and government entities, and only for business purposes. You represent that (a) you are at least 18 years old; (b) you have the authority to bind the entity on whose behalf you accept the Agreement; and (c) you are not a consumer using the Services for personal, family, or household purposes. Consumer-protection laws that apply only to consumer contracts do not apply to the Agreement.

1.4 Order of precedence. If documents conflict, the following order controls, from highest to lowest: (a) a signed Order Form or enterprise agreement; (b) a Business Associate Agreement or Data Processing Addendum signed by both parties; (c) these Terms; (d) the AUP; (e) the Privacy Policy; (f) the Documentation.

1.5 Definitions. Capitalized terms are defined in Section 22 or where first used.

2. The Services

2.1 Description. SmartMsg provides a cloud communications platform through which Customers can send and receive SMS and MMS messages, place and receive voice calls, send and receive email, operate web chat, and manage related campaigns, templates, contacts, preferences, analytics, and integrations, through a web dashboard and APIs (the “Services“), as described in the Documentation.

2.2 Account and Authorized Users. You must register an account with accurate, current, and complete information and keep it updated. You may allow your employees and contractors to use the Services under your account (“Authorized Users“). You are responsible for all activity under your account and by your Authorized Users, for maintaining the confidentiality of credentials and API keys, and for promptly notifying us at [email protected] of any unauthorized use. We may require multi-factor authentication and may suspend credentials we reasonably believe are compromised.

2.3 Business verification and registration. Wireless carriers, messaging registries, and mailbox providers require sending businesses to be identified and verified. You must provide accurate business information (including legal entity name, EIN, address, website, and use-case descriptions) for brand registration, campaign registration (including 10DLC through The Campaign Registry), toll-free verification, short code applications, and sending-domain authentication, and you must update that information when it changes. We may submit that information to carriers, registries, and their vendors on your behalf. Registration decisions are made by carriers and registries, not by us; we do not guarantee approval, throughput, or timing.

2.4 Phone numbers, short codes, and sending identities. Phone numbers, short codes, sender IDs, and similar identifiers (“Numbers“) that we provision to you remain the property of the applicable carrier or numbering authority and are licensed for your use during the Term. You acquire no ownership in Numbers. We may reclaim, reassign, or change a Number if it is unused for 90 days, if a carrier or regulator requires it, if your account is suspended or terminated, or if the Number is associated with abuse. Where porting is supported, you may port Numbers in or out in accordance with the Documentation and applicable rules; porting may require verification and payment of amounts owed.

2.5 Changes to the Services. We continually improve the Services and may add, modify, or discontinue features. We will give reasonable notice (usually at least 30 days) of changes that materially reduce core functionality, except where a change is required by carriers, law, or security needs. We may impose or adjust rate limits, sending volumes, and technical requirements to protect the platform and comply with carrier rules.

2.6 Beta and preview features. We may offer features identified as alpha, beta, preview, early access, or similar (“Beta Features“). Beta Features are provided “as is,” may be changed or withdrawn at any time, may be subject to additional terms, and are excluded from any service level commitment and from our indemnification obligations.

2.7 Service level commitment. We target 99.95% monthly availability for the core Services as described in Section 23 (Service Level Commitment). Service credits under Section 23 are your sole and exclusive remedy for any failure to meet the availability target.

2.8 Support. We provide support in your Order Form. White-glove onboarding, dedicated support, or professional services, if offered, are provided under an Order Form or statement of work.

2.9 No emergency services. THE SERVICES ARE NOT A REPLACEMENT FOR TRADITIONAL TELEPHONE SERVICE AND DO NOT SUPPORT OR CARRY EMERGENCY CALLS OR MESSAGES TO 911, 988, OR ANY OTHER EMERGENCY SERVICE, UNLESS EXPRESSLY STATED IN THE DOCUMENTATION FOR A SPECIFIC PRODUCT. You must not rely on the Services for emergency communications and must inform your users accordingly.

3. Fees and payment

3.1 Pricing models. We offer (a) Pay As You Go pricing, billed on usage at the rates published in your account, and (b) Committed-use plans with volume discounts, as set out in an Order Form. Rates for messaging, voice, email, Numbers, registration, and add-ons are described in the pricing page, the Documentation, and your account.

3.2 Usage-based charges. Usage charges accrue per message segment, per MMS, per minute (rounded as stated in the pricing page), per email, per Number per month, per registration, per lookup, and per other metered unit, as applicable. Charges apply to messages and calls that are sent, attempted, or received through the Services, whether or not they are delivered, unless the pricing page states otherwise. Our records of usage are conclusive absent manifest error.

3.3 Carrier fees, surcharges, and pass-through costs. You are responsible for carrier pass-through fees and surcharges (for example, per-message carrier fees, 10DLC brand and campaign registration and vetting fees, toll-free verification fees, short code lease fees, and carrier-imposed penalties), which we pass through at cost or as stated on the pricing page. Carriers and registries may change these fees on short notice, and such changes take effect when the carrier’s change takes effect.

3.4 Taxes and regulatory fees. Fees exclude taxes. You are responsible for all sales, use, excise, value-added, telecommunications, and similar taxes, levies, and regulatory fees and surcharges (including any federal or state universal service or similar contributions we are required to collect) other than taxes on our net income. If you are tax-exempt, provide a valid exemption certificate before billing.

3.5 Payment method; Stripe. You must keep a valid payment method on file. Payments are processed by Stripe under Stripe’s terms; we do not store full card numbers. By providing a payment method, you authorize us and Stripe to charge it for all amounts due, including automatic top-ups and recurring charges. You must keep your billing information current.

3.6 Prepaid balances and automatic top-ups. Pay As You Go accounts may operate on a prepaid balance. When your balance falls below the threshold you set (or our default of $100), we will automatically charge your payment method to top up by the amount you set (or our default of $500) unless you disable auto-recharge, in which case Services may stop when the balance is exhausted. Prepaid balances are non-refundable except as required by law or as expressly provided in the Agreement (including Sections 3.10, 11.2, 14.2, 15.2, and 21.1), do not accrue interest, and expire 12 months after the last account activity.

3.7 Committed-use plans. Committed-use plans are billed as stated in the Order Form (in advance, monthly, or annually). Committed amounts are non-cancelable and non-refundable except as expressly provided in Sections 3.10, 11.2, 14.2, 15.2, and 21.1, and usage beyond the commitment is billed at the overage rates in the Order Form. Unused commitment does not roll over unless the Order Form says so.

3.8 Invoiced accounts. Where we agree to invoice you, invoices are due within 30 days of the invoice date. Late amounts accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law, plus reasonable collection costs and attorneys’ fees. We may suspend the Services for accounts more than 10 days past due after notice.

3.9 Billing disputes. You must notify us in writing at [email protected] of any disputed charge within 30 days of the invoice or charge date, with reasonable detail; undisputed amounts remain due. Charges not disputed within that period are deemed accepted.

3.10 Refunds. Except as expressly provided in the Agreement, all fees are non-refundable. If we terminate the Agreement without cause under Section 11.2, or you terminate for our uncured material breach under Section 11.3, we will refund any prepaid, unused fees for the remainder of the then-current period.

3.11 Price changes. We may change Pay As You Go rates and fees on at least 30 days’ notice by email or in-product notice, except for carrier pass-through fees and taxes, which change when the underlying charge changes. Committed-use pricing is fixed for the committed term unless the Order Form says otherwise. Your continued use after a price change takes effect constitutes acceptance.

3.12 Free trials and credits. Promotional credits and free trials are subject to the conditions we specify, may be limited, have no cash value, are non-transferable, and may be revoked if we determine they are being misused.

4. Term, renewal, and cancellation

4.1 Term. The Agreement begins when you accept it and continues until terminated under Section 11.

4.2 Pay As You Go. Pay As You Go accounts have no minimum term. You may close your account at any time from the dashboard or by emailing [email protected]. Usage charges accrue until the account is closed, and monthly Number and subscription fees are not prorated.

4.3 Committed-use plans. Committed-use plans run for the term stated in the Order Form and renew automatically for successive terms of the same length unless either party gives written notice of non-renewal at least 30 days before the end of the current term. We will send a renewal reminder to your billing contact at least 45 days before each renewal and will notify you of any renewal price increase at least 45 days in advance. You may cancel renewal from the dashboard or by emailing [email protected].

5. Customer Content and data

5.1 Ownership. As between the parties, you own all Customer Content. “Customer Content” means all data, content, and materials you or your Authorized Users, Recipients, or integrations submit to or generate through the Services, including message and call content, recordings, transcriptions, contact lists, templates, media, and consent records.

5.2 License to SmartMsg. You grant us a non-exclusive, worldwide, royalty-free license to host, copy, transmit, display, process, analyze, and otherwise use Customer Content solely (a) to provide, maintain, secure, and improve the Services; (b) to comply with carrier, registry, and legal requirements; (c) to enforce the Agreement; and (d) as otherwise instructed by you. This license ends when Customer Content is deleted from the Services, except for retained copies described in Section 5.8 and backups that age out in the ordinary course.

5.3 Your responsibility for Customer Content. You are solely responsible for Customer Content, including its accuracy, legality, and appropriateness, and for obtaining all rights, consents, and authorizations needed for us to process it as contemplated by the Agreement. You represent and warrant that Customer Content and your use of the Services will not violate any law, the AUP, or any third party’s rights.

5.4 Privacy roles. For personal information contained in Customer Content, you are the business/controller and we act as your service provider/processor. We will process that personal information only on your documented instructions (the Agreement, the Documentation, and your configuration of the Services constitute your instructions), will not sell or share it, will not retain, use, or disclose it outside the direct business relationship except as permitted by law, will not combine it with personal information from other sources except as permitted for service providers, will assist you with consumer requests to the extent reasonably practicable, and will notify you if we determine we can no longer meet these obligations. You may take reasonable and appropriate steps to ensure we use personal information consistently with your obligations, and to stop and remediate unauthorized use, as provided in the Agreement. We will provide the same level of privacy protection as required of businesses under applicable privacy law; ensure that personnel who process such personal information are bound by duties of confidentiality; engage subcontractors only under written contracts that impose obligations at least as protective as this Section; make available to you, on reasonable request, the information reasonably necessary to demonstrate our compliance and allow reasonable assessments of our compliance no more than once per year (or more often if required by law); and, at the end of the provision of Services, delete or return such personal information as provided in Section 5.8 unless retention is required by law. A Data Processing Addendum containing these and related terms is available on request for Customers that require one.

5.5 Security. We will maintain the administrative, technical, and physical safeguards described in the Privacy Policy and Documentation and will notify you without undue delay, and in any event within 72 hours, after confirming a security incident that results in unauthorized access to Customer Content, providing information reasonably needed for your own notification obligations. You are responsible for securing your own systems, credentials, API keys, endpoints, and integrations, and for the security configuration choices you make in the Services.

5.6 Protected health information and other regulated data. You must not submit protected health information (as defined under HIPAA), payment card primary account numbers, government identification numbers, passwords or other authentication credentials (other than one-time verification codes you send to your own users), or other data subject to special regulatory regimes through the Services unless (a) the Documentation expressly permits it, and (b) any required agreement, such as a HIPAA Business Associate Agreement, has been signed by both parties.

5.7 Aggregated and de-identified data. We may generate and use data derived from your use of the Services in aggregated or de-identified form that does not identify you, any Authorized User, or any Recipient, for analytics, benchmarking, security, and Service improvement. We will not attempt to re-identify such data.

5.8 Data retention, export, and deletion. During the Term you may configure retention periods for message content and recordings within the limits described in the Documentation, and you may export Customer Content through the dashboard or API. After termination or account closure, you will have 30 days to export Customer Content, after which we will delete it from production systems within 30 days and from backups within 60 days thereafter, except for (a) consent, opt-out, and suppression records, communications metadata, and billing records that we retain to comply with law, carrier requirements, and our own legal obligations, and (b) data subject to a legal hold. We may charge reasonable fees for export assistance beyond self-service tools.

5.9 Legal process. If we receive a subpoena, court order, or other legal demand for Customer Content, we will, where legally permitted and practicable, notify you before disclosure so you may seek protection, and we will disclose only what we are legally required to disclose.

6. Compliance with communications and privacy laws

6.1 You are the sender. You, not SmartMsg, initiate every message, call, and email sent through the Services and decide who receives it. You are solely responsible for complying with all laws, regulations, industry standards, and carrier requirements that apply to your communications, including without limitation:

the Telephone Consumer Protection Act (47 U.S.C. § 227) and the FCC’s implementing rules (47 C.F.R. § 64.1200), including rules on prior express consent, prior express written consent, artificial or prerecorded voice (including AI-generated voice), autodialed calls and texts, calling hours, caller identification, the National Do Not Call Registry, and the FCC’s consent-revocation rules;
the Telemarketing Sales Rule (16 C.F.R. Part 310);
the CAN-SPAM Act (15 U.S.C. § 7701 et seq.) and the FTC’s implementing rules;
the Truth in Caller ID Act and the TRACED Act;
state telemarketing, text messaging, and “mini-TCPA” laws, including the Virginia Telephone Privacy Protection Act (Va. Code § 59.1-510 et seq.), the Florida Telephone Solicitation Act, and similar laws in other states, including their calling-hour, frequency, identification, and opt-out requirements;
state and federal privacy and data security laws, including the Virginia Consumer Data Protection Act, the California Consumer Privacy Act, and the breach notification laws of every applicable state;
the Children’s Online Privacy Protection Act;
state call-recording and wiretap laws, including all-party-consent requirements;
the Fair Debt Collection Practices Act and Regulation F, if you engage in debt collection;
industry standards and carrier requirements, including the CTIA Messaging Principles and Best Practices, The Campaign Registry requirements, carrier codes of conduct, and mailbox-provider sender requirements.

6.2 Consent. Before sending any message or placing any call through the Services, you must obtain and document all legally required consent from each Recipient for the type of communication you are sending, in the form required by law (including prior express written consent for marketing messages sent using automated technology or artificial or prerecorded voice), and must not send communications to any Recipient who has not consented or who has opted out. You must maintain records of consent, including the date, time, method, and content of the consent disclosure, for at least 5 years after the last communication sent under that consent, or longer if required by law, and must provide those records to us within 5 business days of our request so we can respond to carrier, registry, or regulator inquiries.

6.3 Opt-outs. You must honor opt-out requests made by any reasonable means, including replies containing STOP, QUIT, END, REVOKE, OPT OUT, CANCEL, or UNSUBSCRIBE, and must honor them within the time required by law (no later than ten business days under FCC rules, and immediately where carriers require). The Services automatically process standard opt-out keywords for messaging traffic and maintain a suppression list that applies across your entire account (all Numbers and campaigns), unless the Recipient clarifies in response to the single confirmation message that the opt-out is limited to certain message types. You must not circumvent, disable, or reset suppression lists, and you must not re-contact an opted-out Recipient unless the Recipient gives new consent. You must not designate an exclusive method of opting out.

6.4 Registration accuracy. You represent that all information you provide for brand, campaign, toll-free, short code, and domain registration is accurate and complete, that your actual messaging matches the registered use case and sample messages, and that you will re-register before changing use cases.

6.5 Records and audits. We and our carriers may request, and you must provide within 5 business days, evidence of consent, opt-in flows, message logs, and other records reasonably necessary to investigate a complaint or verify compliance. We may audit your use of the Services for compliance with the Agreement, and may share relevant records with carriers, registries, and regulators when required.

6.6 No legal advice. Compliance tools we provide (such as keyword handling, quiet-hours settings, suppression lists, or templates) are aids, not guarantees of compliance, and nothing in the Services or Documentation is legal advice. You are responsible for obtaining your own legal advice.

6.7 Carrier penalties and fines. If a carrier, registry, regulator, or mailbox provider imposes a fine, penalty, fee, or other charge on us because of your traffic, content, registration information, or conduct, you will reimburse us within 30 days of our invoice, and we may charge your payment method for that amount after notice.

7. Acceptable use

7.1 AUP. Your use of the Services must comply with the AUP, which is incorporated into these Terms. The AUP describes prohibited and restricted content and uses, consent and opt-out requirements, sender identification, timing rules, and registration requirements for SMS/MMS, voice, email, and chat.

7.2 General restrictions. You must not, and must not permit anyone to: (a) use the Services in violation of law or to send unsolicited, unlawful, deceptive, fraudulent, harassing, or harmful communications; (b) impersonate any person or entity or falsify sender identifiers, headers, or caller ID; (c) attempt to gain unauthorized access to the Services, other accounts, or connected systems; (d) probe, scan, or test the vulnerability of the Services without our written authorization; (e) interfere with the integrity or performance of the Services or circumvent rate limits, filtering, or security controls; (f) reverse engineer, decompile, or attempt to derive the source code of the Services except as permitted by law; (g) copy, modify, resell, sublicense, rent, lease, or provide the Services to third parties as a service bureau or white-label offering without our written agreement; (h) use the Services to build a competing product; (i) remove proprietary notices; (j) use the Services for “snowshoeing,” spam, phishing, malware distribution, or evasion of carrier filtering; or (k) use the Services to send messages to Recipients outside the United States unless we have enabled international routes for your account and you comply with the destination country’s laws.

7.3 Monitoring and filtering. We may, but are not obligated to, monitor and filter traffic and content, using automated tools and human review, to comply with law, carrier requirements, and the AUP; to detect fraud, spam, and abuse; and to protect the Services, Recipients, and other Customers. We may block, delay, or reject any message, call, or email we reasonably believe violates the Agreement or carrier rules.

8. Third-party services and integrations

8.1 Carriers and providers. The Services depend on wireless carriers, telecommunications providers, messaging aggregators, email delivery providers, mailbox providers, and cloud infrastructure providers that we do not control. Carriers and mailbox providers may filter, block, delay, or throttle traffic; change their rules and fees; or suspend routes at any time. We do not guarantee delivery of any message, call, or email.

8.2 Integrations. If you connect third-party applications (for example, CRM systems) to the Services, you authorize us to exchange data with those applications as needed to provide the integration, and you are responsible for the third party’s terms and privacy practices. We are not responsible for third-party applications or for any loss caused by them.

8.3 AI providers. AI-assisted features may be powered by third-party model providers. We select providers that contractually commit not to train on Customer Content, and we do not send Customer Content to AI providers unless you enable an AI-assisted feature.

9. AI-assisted features

9.1 Nature of outputs. AI-assisted features (including sentiment analysis, intent classification, intelligent routing, summarization, template suggestions, transcription, and bots or virtual agents) generate outputs using probabilistic models. Outputs may be inaccurate, incomplete, biased, or unsuitable for your purposes. You are responsible for reviewing outputs before relying on them and for all decisions and communications made using them.

9.2 Your obligations. You must not use AI-assisted features (a) to make eligibility decisions about credit, insurance, housing, employment, education, healthcare, or access to essential services without human review and compliance with applicable law; (b) in a manner that deceives Recipients about whether they are interacting with a bot, where disclosure is required by law (for example, California’s Bot Disclosure Law, Cal. Bus. & Prof. Code § 17940 et seq., and the TCPA rules on artificial or prerecorded voice); or (c) to generate content that violates the AUP.

9.3 Ownership of outputs. As between the parties, outputs generated from your Customer Content are Customer Content. We make no claim of copyright in outputs and do not warrant that outputs are unique or non-infringing.

10. Suspension

10.1 Grounds. We may suspend your account, an Authorized User, a Number, a campaign, or specific traffic, in whole or in part, immediately and without prior notice if we reasonably believe that: (a) you have violated the AUP or Section 6 or 7; (b) your traffic is generating carrier complaints, spam reports, block rates, or bounce or complaint rates above the thresholds in the AUP; (c) a carrier, registry, regulator, or law enforcement authority requires or requests suspension; (d) your account has been compromised or is being used fraudulently; (e) your use threatens the security, integrity, or availability of the Services or other Customers; (f) your payment is overdue beyond the period in Section 3.8, or a payment has been declined, reversed, or charged back; or (g) suspension is necessary to comply with law.

10.2 Process. We will notify you of a suspension and its reason, before the suspension where practicable and otherwise promptly after, and will work with you in good faith to resolve the issue. We will lift the suspension when the issue is resolved to our reasonable satisfaction. Fees continue to accrue during a suspension caused by your acts or omissions. We are not liable for any loss resulting from a suspension under this Section.

11. Termination

11.1 By you. You may terminate the Agreement at any time by closing your account, subject to payment of all amounts owed and to Section 4.3 for committed-use plans.

11.2 By us for convenience. We may terminate the Agreement for convenience on at least 30 days’ written notice. If we do, we will refund prepaid, unused fees as described in Section 3.10.

11.3 For cause. Either party may terminate the Agreement on written notice if the other party materially breaches it and fails to cure within 30 days of notice (or 10 days for non-payment). We may terminate immediately on notice if (a) you breach the AUP or Section 6 in a manner that we reasonably determine cannot be cured or that exposes us to carrier penalties, regulatory action, or legal liability; (b) a carrier or regulator requires termination; (c) you become insolvent, make an assignment for the benefit of creditors, or become subject to bankruptcy proceedings; or (d) your account is inactive with a zero balance for 12 months.

11.4 Effect of termination. On termination: (a) your right to use the Services ends and Numbers are released after any applicable porting window; (b) all amounts owed become immediately due; (c) Section 5.8 governs export and deletion of Customer Content; and (d) Section 3 (as to amounts accrued before termination) and Sections 5.4–5.9, 6.2, 6.5, 6.7, 9.1, 11.4, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22, and any other provision that by its nature should survive, survive.

12. Intellectual property

12.1 Our ownership. The Services, Documentation, and all related software, algorithms, models, interfaces, designs, content, trademarks, and data (other than Customer Content), including all improvements and derivative works, are owned by SmartMsg and its licensors and are protected by intellectual property laws. Except for the limited right to use the Services under the Agreement, no rights are granted to you, by implication or otherwise.

12.2 Feedback. If you provide suggestions, ideas, or feedback about the Services, you grant us a perpetual, irrevocable, worldwide, royalty-free license to use them without restriction or obligation to you.

12.3 Trademarks. “SmartMsg,” the SmartMsg logo, and other marks are trademarks of Always Curious LLC. You may not use them without our prior written consent, except to accurately identify that you use the Services.

12.4 Publicity. We may identify you as a customer by name and logo on our website and in marketing materials, in accordance with any trademark guidelines you provide, unless you opt out by emailing [email protected].

13. Confidentiality

13.1 Definition. “Confidential Information” means non-public information disclosed by one party to the other in connection with the Agreement that is marked confidential or would reasonably be understood to be confidential, including Customer Content, pricing, security information, product roadmaps, and business plans. Confidential Information excludes information that is or becomes public through no fault of the recipient, was known to the recipient without restriction before disclosure, is independently developed without use of the discloser’s information, or is rightfully received from a third party without restriction.

13.2 Obligations. The receiving party will use Confidential Information only to perform under the Agreement, protect it with at least reasonable care, and disclose it only to employees, contractors, advisors, and service providers who need to know it and are bound by obligations at least as protective. The receiving party may disclose Confidential Information to the extent required by law or legal process, provided it gives prompt notice (where legally permitted) and cooperates with efforts to limit the disclosure. These obligations survive for 3 years after termination, and indefinitely for trade secrets and Customer Content.

14. Warranties and disclaimers

14.1 Mutual warranties. Each party represents and warrants that it has the legal power to enter into the Agreement and that doing so does not violate any other agreement or applicable law.

14.2 Our warranty. We warrant that the Services will perform materially in accordance with the Documentation. Your exclusive remedy, and our sole obligation, for breach of this warranty is for us to use commercially reasonable efforts to correct the non-conformity and, if we cannot do so within a reasonable time, for you to terminate the affected Services and receive a refund of prepaid, unused fees for those Services.

14.3 Your warranties. You represent and warrant that (a) you will comply with Sections 6 and 7 and the AUP; (b) you have obtained all consents and authorizations required to send your communications and to have us process Customer Content; (c) all registration and business information you provide is accurate; and (d) your Customer Content and communications do not infringe or misappropriate any third party’s rights or violate any law.

14.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 14.2, THE SERVICES, DOCUMENTATION, BETA FEATURES, AI-ASSISTED FEATURES, AND ALL RELATED MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT (A) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE; (B) ANY MESSAGE, CALL, OR EMAIL WILL BE DELIVERED, DELIVERED ON TIME, OR NOT FILTERED, BLOCKED, OR THROTTLED BY CARRIERS OR MAILBOX PROVIDERS; (C) CARRIERS OR REGISTRIES WILL APPROVE ANY REGISTRATION; (D) AI-ASSISTED OUTPUTS WILL BE ACCURATE OR RELIABLE; OR (E) USE OF THE SERVICES OR OUR COMPLIANCE TOOLS WILL ENSURE YOUR COMPLIANCE WITH ANY LAW.

15. Indemnification

15.1 By you. You will defend, indemnify, and hold harmless SmartMsg, Always Curious LLC, and their affiliates, officers, members, managers, employees, contractors, and agents from and against all claims, demands, suits, proceedings, investigations, fines, penalties, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Customer Content or any communication sent, placed, or received through your account; (b) your actual or alleged violation of the TCPA, the Telemarketing Sales Rule, the CAN-SPAM Act, any state telemarketing, text messaging, privacy, call-recording, or consumer-protection law, or any carrier or industry requirement, including any class action brought by Recipients; (c) your breach of Sections 5.3, 5.6, 6, 7, or 14.3 or of the AUP; (d) your relationship with, or communications to, Recipients, including any dispute between you and a Recipient; (e) inaccurate registration or business information; (f) your integrations or third-party applications; or (g) fines, penalties, or charges imposed on us by carriers, registries, or regulators because of your traffic or conduct.

15.2 By us. We will defend you against any third-party claim alleging that the Services, as provided by us and used in accordance with the Agreement, infringe a United States patent, copyright, or trademark or misappropriate a trade secret, and will pay damages and costs finally awarded against you or agreed in a settlement we approve. We have no obligation for claims arising from (a) Customer Content or your communications; (b) combination of the Services with products, data, or processes not provided by us; (c) modifications not made by us; (d) use in breach of the Agreement or after we notified you to stop; (e) Beta Features; or (f) third-party services. If the Services become, or we believe they may become, subject to an infringement claim, we may procure the right for you to continue using them, modify or replace them so they are non-infringing, or, if neither is commercially reasonable, terminate the affected Services and refund prepaid, unused fees. This Section states our entire liability and your exclusive remedy for infringement claims.

15.3 Procedure. The indemnified party must (a) promptly notify the indemnifying party of the claim (delay relieves the indemnifying party only to the extent it is prejudiced); (b) give the indemnifying party sole control of the defense and settlement, provided that no settlement may impose non-monetary obligations or admit fault on behalf of the indemnified party without its consent, not to be unreasonably withheld; and (c) provide reasonable cooperation at the indemnifying party’s expense. The indemnified party may participate with its own counsel at its own expense.

16. Limitation of liability

16.1 Exclusion of certain damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL, DATA, OR USE, OR COST OF SUBSTITUTE SERVICES, ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16.2 Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE SERVICES WILL NOT EXCEED THE GREATER OF (A) THE AMOUNTS YOU PAID US FOR THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY BEFORE THE EVENT GIVING RISE TO THE CLAIM, AND (B) ONE HUNDRED U.S. DOLLARS (US$100). THIS CAP APPLIES IN THE AGGREGATE TO ALL CLAIMS AND IS NOT INCREASED BY MULTIPLE CLAIMS.

16.3 Exceptions. The exclusions and cap in Sections 16.1 and 16.2 do not apply to (a) your payment obligations; (b) your indemnification obligations under Section 15.1; (c) your breach of Sections 6, 7, or the AUP; (d) either party’s gross negligence, fraud, or willful misconduct; or (e) liability that cannot be limited under applicable law. Our liability for our indemnification obligations under Section 15.2 and for breach of Section 13 (Confidentiality) is capped at two (2) times the cap in Section 16.2.

16.4 Basis of the bargain. The parties agree that the limitations in this Section are an essential basis of the bargain, that the fees reflect this allocation of risk, and that the limitations apply even if a limited remedy fails of its essential purpose.

17. Governing law

The Agreement and any dispute arising out of or relating to it or the Services are governed by the laws of the Commonwealth of Virginia and the federal laws of the United States, without regard to conflict-of-laws principles that would require application of another jurisdiction’s law. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted in Virginia or elsewhere) do not apply. Subject to Section 18, the state and federal courts located in Goochland, Virginia have exclusive jurisdiction, and each party consents to personal jurisdiction and venue there.

18. Dispute resolution; binding arbitration; class action waiver

PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES THE PARTIES TO RESOLVE DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION AND WAIVES THE RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN CLASS ACTIONS.

18.1 Informal resolution first. Before starting arbitration or litigation, the party raising a dispute must send a written notice describing the dispute and the relief sought to the other party (to us: [email protected] and the notice address in Section 20; to you: your account email). The parties will attempt in good faith to resolve the dispute for 60 days after the notice is received. If they cannot, either party may proceed under this Section.

18.2 Agreement to arbitrate. Except as provided in Section 18.5, any dispute, claim, or controversy arising out of or relating to the Agreement or the Services, including its formation, interpretation, breach, termination, enforceability, or scope (a “Dispute“), will be resolved by final and binding arbitration administered by the American Arbitration Association (“AAA“) under its Commercial Arbitration Rules then in effect (the “Rules“), as modified by this Section. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs the interpretation and enforcement of this Section. The arbitrator, and not any court, has exclusive authority to resolve any dispute about the interpretation, applicability, enforceability, or formation of this Section, except that a court decides any dispute about the enforceability of the class action waiver in Section 18.4.

18.3 Procedure. The arbitration will be conducted by a single arbitrator who is a retired judge or an attorney with at least ten years of experience in commercial or technology disputes. The seat of arbitration is Goochland, Virginia; hearings may be conducted by videoconference, and for claims under US$25,000 the arbitration will be conducted on documents only unless the arbitrator decides a hearing is necessary. The arbitrator may award any relief that a court of competent jurisdiction could award to an individual party, and must follow the Agreement and applicable law. The arbitrator will issue a reasoned written decision. Judgment on the award may be entered in any court with jurisdiction. Each party bears its own attorneys’ fees and costs and one-half of the AAA and arbitrator fees, except that the arbitrator may award fees and costs to the prevailing party where authorized by law or the Agreement. The arbitration and all related filings and awards are confidential except as needed to enforce an award or as required by law.

18.4 Class action and jury trial waiver. ALL DISPUTES MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS OR PRESIDE OVER ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A JURY TRIAL. If the class action waiver is found unenforceable as to a particular claim or request for relief, that claim or request (and only that claim or request) will be severed and litigated in the courts identified in Section 17, and the remaining claims will be arbitrated.

18.5 Exceptions. Either party may (a) bring an individual action in small claims court for Disputes within that court’s jurisdiction; (b) seek injunctive or other equitable relief in the courts identified in Section 17 to protect its intellectual property rights, Confidential Information, or the security or integrity of the Services, pending arbitration; and (c) we may bring an action in those courts to collect undisputed fees.

18.6 Coordinated filings. If 25 or more similar arbitration demands are filed against us by the same or coordinated counsel within 90 days, the parties agree that the AAA’s Mass Arbitration Supplementary Rules (or, if not applicable, a bellwether process directed by a single process arbitrator) will apply, and that filing fees will be assessed in stages as the demands proceed, so that neither party bears the fees for all demands at once.

18.7 Changes to this Section. If we change this Section after you accept the Agreement, the change will not apply to a Dispute for which you had already given notice under Section 18.1 before the change took effect.

18.8 Limitation period. To the extent permitted by law, any Dispute must be filed within one (1) year after the claim arose, or it is permanently barred.

19. Export controls, sanctions, and government use

You represent that you and your Authorized Users are not located in, organized under the laws of, or ordinarily resident in any country or territory subject to comprehensive U.S. sanctions, and are not listed on any U.S. government restricted-party list. You will comply with all applicable export control and sanctions laws. If you are a U.S. government entity, the Services are “commercial computer software” and “commercial computer software documentation” provided with only those rights specified in the Agreement, consistent with FAR 12.212 and DFARS 227.7202.

20. Notices

Notices to SmartMsg must be sent by email to [email protected] with a copy by courier or certified mail to: Always Curious LLC d/b/a SmartMsg, Attn: Legal, 2130 Alldever Dr Maidens VA 23102. Notices to you may be sent to the email address associated with your account, posted in the dashboard, or sent to your billing address. Email notices are deemed received when sent, unless the sender receives a bounce message; courier or mail notices are deemed received on delivery. Notices of breach, indemnification claims, or disputes must be sent by both email and mail.

21. General terms

21.1 Changes to the Terms. We may update the Agreement from time to time. For material changes we will give at least 30 days’ notice by email to the account owner and by posting the updated Terms with a new effective date; changes required by law, carriers, or security needs may take effect sooner. Your continued use of the Services after the effective date constitutes acceptance. If you do not agree, you must stop using the Services and may close your account before the effective date, in which case we will refund prepaid, unused fees. Changes do not apply retroactively.

21.2 Entire agreement. The Agreement is the entire agreement between the parties regarding the Services and supersedes all prior or contemporaneous proposals, agreements, and communications. Terms in your purchase orders or vendor forms are rejected and have no effect, even if we acknowledge or process the document.

21.3 Assignment. You may not assign or transfer the Agreement without our prior written consent, except to a successor in a merger, acquisition, or sale of substantially all of your assets that is not a competitor of ours and assumes the Agreement in writing. We may assign the Agreement to an affiliate or to a successor in a merger, acquisition, or sale of substantially all of our assets. Any other attempted assignment is void.

21.4 Force majeure. Neither party is liable for delay or failure to perform (other than payment obligations) caused by events beyond its reasonable control, including acts of God, natural disasters, epidemics, war, terrorism, civil unrest, labor disputes, government action, failures or changes of carriers, telecommunications networks, registries, mailbox providers, internet or cloud infrastructure, denial-of-service attacks, and utility failures.

21.5 Independent contractors. The parties are independent contractors. The Agreement creates no partnership, joint venture, agency, franchise, or employment relationship. There are no third-party beneficiaries of the Agreement, except that the indemnified persons in Section 15.1 may enforce that Section.

21.6 Severability; waiver. If any provision is held unenforceable, it will be enforced to the maximum extent permitted and the remaining provisions remain in effect. A waiver is effective only in writing and only for the instance given.

21.7 Electronic contracting. You agree to receive the Agreement, notices, and disclosures electronically, and that electronic acceptance and signatures have the same effect as handwritten signatures.

21.8 Interpretation. Headings are for convenience only. “Including” means “including without limitation.” The Agreement will not be construed against the drafter. The English-language version controls.

21.9 Equitable relief. You acknowledge that a breach of Sections 7, 12, or 13 may cause irreparable harm for which monetary damages are inadequate, and that we may seek injunctive relief without posting a bond.

22. Definitions

“AUP” means the SmartMsg Acceptable Use & Messaging Policy, as updated from time to time.
“Authorized User” is defined in Section 2.2.
“Beta Features” is defined in Section 2.6.
“Confidential Information” is defined in Section 13.1.
“Customer Content” is defined in Section 5.1.
“Dispute” is defined in Section 18.2.
“Documentation” means the technical documentation, guides, and specifications for the Services that we publish as updated from time to time.
“Numbers” is defined in Section 2.4.
“Order Form” means an ordering document, quote, or online order that references these Terms and is accepted by both parties.
“Recipient” means any person or entity that receives, or is intended to receive, a message, call, email, or chat sent through the Services on your behalf, or who sends one to you through the Services.
“Services” is defined in Section 2.1.
“Term” means the period during which the Agreement is in effect.

23. Service Level Commitment

23.1 Availability target. We will use commercially reasonable efforts to make the core Services — the API endpoints for sending and receiving messages, placing and receiving calls, and sending email, and the web dashboard — available at least 99.95% of the minutes in each calendar month (“Monthly Uptime“), excluding Excluded Downtime.

23.2 Excluded Downtime. The following do not count against Monthly Uptime: (a) scheduled maintenance announced at least 48 hours in advance and performed during announced windows, not to exceed 4 hours per month; (b) emergency maintenance needed to address security vulnerabilities; (c) unavailability caused by carriers, registries, mailbox providers, internet or cloud infrastructure providers, or other third parties outside our reasonable control; (d) unavailability caused by your acts or omissions, your integrations, or your networks; (e) force majeure events; (f) suspensions under Section 10; and (g) Beta Features.

23.3 Service credits. If Monthly Uptime falls below the target, you may request a credit against future usage equal to the following percentage of the fees you paid for the affected Services for that month (excluding carrier pass-through fees and taxes):

Monthly Uptime	Service credit
99.0% or more, but less than 99.95%	10%
95.0% or more, but less than 99.0%	25%
Less than 95.0%	50%

23.4 How to claim. To receive a credit you must email [email protected] within 30 days after the end of the month in which the shortfall occurred, with the dates, times, and details of the unavailability. Our monitoring records are the basis for determining Monthly Uptime. Credits are applied to future invoices or usage, have no cash value, do not accrue during suspension or non-payment, and may not exceed 50% of the month’s fees. Credits are your sole and exclusive remedy for any failure to meet the availability target.

24. SMS notifications from SmartMsg to Customers

If you provide a mobile number for account notifications (for example, security codes, low-balance alerts, delivery incident alerts, or support updates), you consent to receive those automated messages from SmartMsg at that number. Message frequency varies by account activity. Message and data rates may apply. Reply STOP to stop receiving messages (you may still receive security codes if you have enabled SMS-based authentication) and HELP for help, or contact [email protected]. Carriers are not liable for delayed or undelivered messages. Your mobile information will not be shared with third parties or affiliates for marketing purposes. See the Privacy Policy for how we handle your information.

Questions about these Terms? Contact [email protected] or write to Always Curious LLC d/b/a SmartMsg, Attn: Legal, 2130 Alldever Dr Maidens VA 23102