Terms and Conditions


CTA (call to action) will appear on printed material with keywords and short code. Ex: “Text [KEYWORD] to short code to join the AvidMobile Mobile Offer Club and receive special offers on your phone. Get 30 msg/mo. Message & data rates may apply. Send or text STOP to opt-out. Send or text HELP for help or CALL 1-855-285-0895. Consent not required for purchase. We work with all major providers: AT&T, Verizon Wireless, Sprint, Nextel, T-Mobile®, Boost, Virgin, Midwest Wireless, Cincinnati Bell, U.S. Cellular®, Alltel, Virgin Mobile, MetroPCS, Cricket, Cincinnati Bell, Tier 2/3 Carrier Group, Rural Carrier Group and Associated Carrier Group.

Overview

This website is operated by AvidMobile. Throughout the site, the terms “we”, “us” and “our” refer to AvidMobile. AvidMobile offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated herein.

By visiting our site, purchasing something from us, registering an account, or using our services, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply  to all users of the site, including and without limitation to users who are browsers, vendors, customers, merchants, and/or contributors of content.

This Terms of Service (the “Agreement”) is entered into as of the effective date of enrollment with Service Provider.  To become eligible to use Service Provider’s services under this agreement, Customer must review and accept the terms of this agreement by clicking on the “I Accept” button or other mechanism provided.

 PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE ACCESSING OR USING OUR WEBSITE. BY ACCESSING OR USING ANY PART OF THE SITE, REGISTERING AN ACCOUNT, OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MAY NOT ACCESS THE WEBSITE OR USE ANY SERVICES. IF THESE TERMS OF SERVICE ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS OF SERVICE.

Customer may not access the Services if Customer is Service Provider’s direct competitor, except with Service Provider’s prior written consent. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Any new content, features, or tools which are added to the current website or services shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

This agreement was last updated on August 4th, 2016.

Changes to Terms of Service:

Service Provider reserves the right, from time to time, with or without notice to Customer, to change these Terms of Service in its sole and absolute discretion. The most current version of the Terms of Service will supersede all previous versions. The most current version of these Terms of Service can be accessed by clicking on the “Terms of Service” link located at the bottom of the Website. Customer should periodically visit the Terms of Service page on the Website so Customer is aware of the terms and conditions that apply to Customer use of the Service Provider’s Service and the Website. Customer continued use of the Service Provider’s Service and the Website will represent Customer acceptance of the most current Terms of Service.

1. Definitions

“Customer” means the individual accepting the terms of this Agreement or the entity such individual represents, as applicable.

“Customer Application” means a software application that interfaces with the Service Provider’s Services and include any services (web-based or other services) made available by Customer through that application.

“Customer Data” means data and other information made available to Service Provider through the use of the Service Provider’s Services under this Agreement, including but not limited to: SMS records, SMS message content, End-User information or responses, emails, email responses, or any data received, transmitted or stored in the Service Provider’s Service.

“Documentation” means all of the instructions, code samples, the SDK’s provided, on-line help files and technical documentation made available by Service Provider for the Service Provider’s Services.

“Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services.

“End User” means an individual who interacts with any of Service Provider’s services.

“Rate Schedule” means the schedule of fees client enrolled in at time of signing or has been modified through signed change orders.

“Services” means the products and services that are ordered by Customer under a free trial or a Rate Schedule and made available online by Service Provider, including associated offline components, as described in the Documentation.

“User” means an individual who is authorized by Customer to use a Service, for whom Customer has ordered the Service, and to whom Customer (or Service Provider at Customer’s request) have supplied a user identification and password. Users may include, for example, Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business.

“Service Provider’s Acceptable Use Policy” means certain terms and conditions relating to the use of the Service Provider’s Services, as such may be updated from time to time.

“Service Provider’s API” means an application programming interface for the Service Provider’s Services (or feature of the Service Provider’s Services) provided to Customer by Service Provider.

“Service Provider’s Properties” means the Service Provider’s website, Service Provider’s API, Documentation, and technical support made available by Service Provider to Customer in connection with the Service Provider’s Services.

“Service Provider’s Services” means the services provided by Service Provider to Customer under this Agreement, including all programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by Service Provider, including without limitation the Service Provider’s APIs and any software provided to Customer in connection with its use of the Service Provider’s Services.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Statement” means the monthly account of charges due to a customer based on the Rate Schedule and usage of services.

“Originating Number” means the number that the SMS originates from when sending an SMS to an end user. Originating Number is often used synonymously with the term Sender Address. Short Codes, Long Codes, Fixed Originators, and Alphanumeric Originators are all examples of Originating Numbers.

2. Service Provider’s Customer Program and Services

2.1 Online Service Terms. By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.

You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

You must not transmit any worms or viruses or any code of a destructive nature.

A breach or violation of any of the Terms will result in an immediate termination of your Services.

2.1 Provision of Services. Service Provider will make the Service Provider’s Services available to Customer and, as applicable subject to the terms and conditions of this Agreement, Service Provider grants Customer a non-exclusive, revocable right to:

(a) Use the Documentation and Service Provider’s APIs as needed to develop Customer Applications;

(b) Offer and make the Service Provider’s Services available to Users in connection with the use of each Customer Application, in accordance with the Documentation;

(c) Utilize the Service Provider’s User-Interface to access any of the Service Provider’s Services.

(d) Resell the service if applicable according to Rate Schedule.

(e) Otherwise use the Service Provider’s Properties solely in connection with and as necessary for Customer’s activities hereunder.

2.2 Data Storage. Customer acknowledges that data storage is not guaranteed by Service Provider and agrees that Service Provider does not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to the loss or deletion of Customer Data.

2.3 Use of Service Provider’s Services. Customer will be solely responsible for all use (whether authorized or not authorized) of the Service Provider’s Services and Documentation under its account, including for the quality and integrity of Customer Data and each Customer Application. Customer will ensure that it has a written agreement with each User (“User Agreement”) that protects Service Provider’s rights to the same extent as the terms of this Agreement. The User Agreement must include terms concerning restrictions on use, protection of proprietary rights, disclaimer of warranties, limitations of liability, and acceptance of Acceptable Use Policy (“AUP”). Service Provider agrees that, subject to the foregoing requirements, the User Agreement need not specifically refer to Service Provider. Customer will promptly notify Service Provider if it becomes aware of any breach of the terms of the User Agreement that may affect Service Provider. Customer will take all reasonable precautions to prevent unauthorized access to or use of the Service Provider’s Services and notify Service Provider promptly of any such unauthorized access or use.

2.4 Restrictions. Except as expressly provided in Section 2.1 (Provision of Services),

(a)Customer will not transfer, resell, lease, license or otherwise make available the Service Provider’s Services to third parties. In any event, Customer will not offer the Service Provider’s Services on a standalone basis.

(b) Customer will not use the Service Provider’s Services to access or allow access to Emergency Services.

(c) Customer will ensure that the Service Provider’s Services provided hereunder are used in accordance with all applicable laws, regulations and third party rights, as well as the terms of this agreement, including Service Provider’s Acceptable Use Policy, which is hereby incorporated into this Agreement.

(d) Specifically and without limitation, Customer will ensure that Service Provider is entitled to use the Customer Data as needed to provide the Service Provider’s Services

(e) Customer will not use the Service Provider’s Services in any manner that violates any data protection statute, regulation, order or similar law.

(f) Except as allowed by applicable law, with respect to any software provided to Customer hereunder, Customer will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of such software.

(g) Customer will only use shared short codes for the approved program types and not for any content described on Service Provider’s Acceptable Use Policy

(h) Customer will only use a dedicated short code for the program approved by the carriers. Customer will gain approval from carriers prior to changing the program by amending the existing program or re-applying.

2.5 Changes to Service. Customer acknowledges that the features and functions of the Service Provider’s Services, including, the Service Provider’s APIs, and the SLA may change over time. It is Customer’s responsibility to ensure that calls or requests Customer makes to the Service Provider’s Services are compatible with then-current Service Provider’s APIs. Although Service Provider endeavors to avoid changes to the Service Provider’s APIs that are not backwards compatible, if any such changes become necessary Service Provider will use reasonable efforts to notify Customer at least 60 days prior to implementation.

3. Accuracy, Completeness And Timeliness Of Information

We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.

This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

4. Modifications To The Service And Prices

Prices for our products are subject to change without notice.

We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

5. Accuracy Of Billing And Account Information

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

6. Ownership And Confidentiality

6.1 Ownership Rights. As between the parties, Service Provider exclusively owns and reserves all right, title and interest in and to the Service Provider’s Services, Service Provider’s Properties and Service Provider’s Confidential Information. As between the parties, Customer exclusively owns and reserves all right, title and interest in and to the Customer Data, Customer Applications and Customer’s Confidential Information.

6.2 Use of Licensor Marks. Subject to the terms of this Agreement, each party (the “Licensor”) grants to the other party (the “Licensee”) the right to use and display Licensor’s name and marks (the “Licensor Marks”) on its website and in other promotional materials solely in connection with its activities under this Agreement. All such use of the Licensor Marks will be in accordance with the Licensor’s usage guidelines and will inure to the benefit of Licensor. Licensee will not use, register or take other action with respect to any of the Licensor Marks, except to the extent authorized in advance writing by Licensor. In its efforts, Licensee will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. Licensee will not, at any time, misrepresent its relationship with Licensor. Licensee will not present itself as an affiliate or other legal agent of Licensor. The license described in this Section will terminate automatically in the event of any termination of this Agreement.

6.3 Confidentiality.

(a) Definition. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party’s rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

(b) Use and Disclosure. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.

6.4 Injunctive Relief. The Parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.

7. Fees, Payment Terms, Taxes

7.1 Fees. You agree to pay the licensing fees, usage fees, service fees, support service fees, and other fees as set forth in your Rate Schedule, Service Orders, or Change Orders.

7.2 Taxes. Unless otherwise stated in your Rate Schedule, you are responsible for and shall pay all applicable taxes. This includes all federal, state and local taxes, fees, charges, surcharges or other similar exactions, imposed on or with respect to our Services whether these taxes are imposed directly on you or on us.

7.3 Payment Terms. All amounts are due on the statement billing date or at the time of purchase. Subject to certain credit requirements as determined by us, we may let you pay amounts due under these Terms in arrears. If we let you to do that, you will make all of the payments due hereunder within thirty (30) days of the billing date of the statement.

Unless you and us agree otherwise in writing, all fees due under these Terms are payable in United States dollars. Payment obligations can’t be canceled and fees paid are non-refundable. Subject to Section 7.4 (Fee Disputes), if you are overdue on any payment and fail to pay within fifteen (15) business days of a written notice of your overdue payment, then we may assess and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is less. Subject to Section 7.4 (Fee Disputes) and following the overdue notice, we may also suspend our Services to your account until you pay the amount you are overdue plus the late fee.

7.4 Fee Disputes. You must notify us in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to us within sixty (60) days of the applicable charge and we will work together with you to resolve the applicable dispute promptly. If you do not provide us with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you.

7.5 Suspension. If your use of our Services exceeds the amounts prepaid by you or of if you fail to pay any amounts due by you under Section 10 of the Agreement, we may suspend our Services associated with your account without prior notice to you. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of our services pursuant to this section.

7.6 Termination. If you fail to pay any amounts due by you under Section 10 of the Agreement within thirty (30) days of the billing date of the unpaid statement, we may cancel our Services associated with your account without prior notice to you. If we cancel your account, all data in the account will be deleted. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of our services pursuant to this section. If your account has to be recovered, you may have to pay additional fees for the recovery of your data or account.

8. Disclaimer

SERVICE PROVIDER HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. SERVICE PROVIDER’S SERVICES AND PROPERTIES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

9. Exclusion of Damages; Limitation Of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SERVICE PROVIDER BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SERVICE PROVIDER BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.

THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

THE SERVICE PROVIDER’S SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER SERVICE PROVIDER NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD SERVICE PROVIDER HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SERVICE PROVIDER’S SERVICES TO CONTACT EMERGENCY SERVICES.

10. Termination

10.1 Term. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

10.2 Customer Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Service Provider will make the Customer’s Data available to Customer for export or download as provided in the Documentation. After that 30-day period, Service Provider will have no obligation to maintain or provide Customer Data, and Service Provider may thereafter delete or destroy all copies of Customer Data in Service Provider’s systems or otherwise in Service Provider’s possession or control as provided in the Documentation, unless legally prohibited.

10.3 Survival. Upon termination or expiration of this Agreement, Customer’s payment obligations, the terms of this Section 6.3 and the terms of the following Sections will survive: Section 2.2 (Data Storage), Section 2.3 (Use of Service Provider’s Services), Section 2.4 (Restrictions), Section 3 (Ownership and Confidentiality), Section 4 (Disclaimer), Section 5 (Exclusion of Damages; Limitation of Liability), Section 7 (Indemnification; Disputes) and Section 8 (General).

11. Indemnification; Disputes

11.1 Indemnification by Customer. Customer will defend, indemnify and hold Service Provider harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action (“Claim”) arising out of or relating to Customer’s activities under this Agreement or Customer’s acts or omissions in connection with the provision of the Customer Application, including without limitation, any intellectual property claims relating to the Customer Application and any violation by Customer or its End Users of the terms of Section 2.4 (Restrictions). Service Provider will cooperate as fully as reasonably required in the defense of any Claim, at Customer’s expense. Service Provider reserves the right, at Customer’s expense, to retain separate counsel for Service Provider or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any matter in which Customer is a named party and that is otherwise subject to indemnification under this Section. Customer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Service Provider in connection with any Claim. Customer will also be liable to Service Provider for any costs and attorneys’ fees Service Provider incurs to successfully establish or enforce its right to indemnification under this Section.

11.2 Governing Law. Except as provided in Section 8.3, this Agreement will be governed by the laws of the State of Missouri, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

11.3 Arbitration. Except as provided in this Section, any dispute arising under this Agreement will be determined by binding arbitration in Kansas City, Missouri in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended (the “Federal Arbitration Act”).

(a) Details. The arbitration will be governed by the then-current terms of the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules. The award of the arbitrator will be based on the evidence admitted and the substantive law of the State of Missouri and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify the terms of this Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction. Each party will be entitled to obtain a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 8.3 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.

(b) Injunctive Relief. Notwithstanding any provision in this Section to the contrary, Service Provider may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action Customer take or threaten to take in violation of the terms of this Agreement.

(c) Individual Basis Only. It is the intent of the parties to require any claims or controversies between them to be submitted to arbitration on an individual basis only. CLAIMS SUBJECT TO THIS ARBITRATION PROVISION MAY NOT BE JOINED OR CONSOLIDATED IN ARBITRATION WITH ANY CLAIM OF ANY OTHER PERSON OR BE ARBITRATED ON A CLASS BASIS, IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ON BEHALF OF ANY OTHER PERSON, UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.

12. General

12.1 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, without Service Provider’s prior written consent. Any attempted assignment, delegation, or transfer in violation hereof will be null and void.

12.2 Amendment; Waiver. No modification to this Agreement, nor any waiver of any rights, will be effective unless consented to in a writing signed by both parties. Any waiver of any breach or default by either party will not constitute a waiver of any other right or any subsequent breach or default. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

12.3 Relationship. Each party is an independent contractor in the performance of each and every part of this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of this Agreement. Customer does not have the authority to commit Service Provider in any way and will not attempt to do so or imply that it has the right to do so.

12.4 Unenforceability. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.

12.5 Notices. Any notice required or permitted to be given hereunder will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, or by overnight delivery. Service Provider may use Customer’s current address, as provided by Customer in connection with billing and payment activities. Service Provider’s current address may be found on its website.

12.6 Other Terms. This Agreement supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Service Provider, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

12.7 Force Majeure. A party is not liable under this Agreement for non-performance caused by events or conditions beyond that party’s control (each, a “Force Majeure Event”) if the party makes reasonable efforts to perform. Either party may terminate this Agreement on written notice to the other party if the Force Majeure Event continues more than 30 days.

12.8 Government Terms. Service Provider provides the Service Provider’s Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service Provider’s Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Service Provider’s Services were developed fully at private expense.

12.9 Customer Submissions. If Customer send Service Provider any submissions (e.g., e-mails, letters, postings to chat rooms, boards or contests), feedback, creative suggestions, ideas, notes, drawings, concepts or other information through the SERVICE PROVIDER’S Service, Customer Account or any social media account SERVICE PROVIDER may maintain from time to time (e.g., Twitter, Facebook, etc.) (collectively, “Submissions”), they will be deemed to be Service Provider property and Service Provider will not be liable for any use or disclosure of such Submissions. Without limitation of the foregoing, Service Provider shall exclusively own all now-known or hereafter existing rights to any and all Submissions of every kind and nature throughout the universe and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions. The content of any Submissions must not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights or otherwise injurious to third parties or objectionable and may not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of “spam.” Customer may not use a false e-mail address, impersonate any person or entity or otherwise mislead as to the origin of the Submissions. Service Provider reserve the right (but not the obligation) to remove or edit any Submissions, but Service Provider does not regularly review posted Submissions.

12.10 SMS Messaging. By creating a new account with a phone number or adding a phone number to an existing account, Customer consents to receiving SMS communications from SERVICE PROVIDER regarding Customer account (“SMS Communications”). Customer agrees that Customer is the primary owner of such phone number and that the information provided is accurate. Standard message and data rates may apply. Messages will be sent from an automated system. Consent is not required for purchase. Customer may opt out of receiving SMS Communications by texting the word ‘STOP’ to the short code and SERVICE PROVIDER will send Customer a single SMS text message indicating that Customer will no longer receive any SMS communication from SERVICE PROVIDER. For additional help, Customer can text ‘HELP’ to the short code. Current Supported carriers include: ACS Wireless, AIO Wireless, AT&T, Bluegrass Cellular, Boost, Carolina West Wireless, Cellcom, Cellular One, Cellular One of East Central Illinois, Cellular South, Chat Mobility, Cincinnati Bell, Cricket, ECIT, Element Wireless, GCI, Golden State Cellular, Illinois Valley, Immix Wireless, Inland Cellular, iWireless, LongLines Wireless, MetroPCS, Nex-Tech, Northwest Missouri Cellular, NTelos, Plateau Wireless, PTCI, Sprint, T-Mobile, Thumb Cellular, U.S. Cellular, Verizon Wireless, Virgin Mobile USA, West Central Wireless and other carriers that may be added from time to time. SMS Communications may not be compatible with all handsets.

13. SITE LEGITIMACY AND LEGAL USE

Customer agrees that Customer is aware and will follow any legislation from any level of government that pertains to the Services being used. This includes complying with legislation based on where Customer is located, where recipients of any messages sent from the Service are located and where Service Provider is located. For further clarity, this includes the United States CAN-SPAM Act and Canada’s Anti-Spam Legislation (“CASL”). Service Provider will NOT be held responsible for any breach of CASL, CAN-SPAM or any other spam legislation whatsoever whether enforced by a governing agency or any other agent or party. Customer agrees that any penalty, fine or any other discipline for breach of CASL, CAN-SPAM or any other legislation will be Customer’s sole responsibility. Customer further agrees to indemnify Service Provider from any penalty of any kind whatsoever that arise from Customer breach of CASL, CAN-SPAM or any other spam legislation.

United States

CAN-SPAM Act: http://www.business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business

Canada

Canada’s Anti-Spam Legisation: http://fightspam.gc.ca/eic/site/030.nsf/eng/home

Customer further agrees that section 10, including the indemnity, includes all reciprocating legislation. Please make sure Customer is aware and abiding by all Anti-Spam legislation from any jurisdiction in which emails may be sent or received.

Customer further agrees not to use the Services to deliver unsolicited bulk email or SMS (“spam”). If, in Service Provider’s opinion and at Service Provider’s sole discretion Customer has used the Services for this purpose or plan on using the Services for this purpose, Service Provider reserves the right to immediately terminate Services.

Customer further agrees every email message sent with the Services must contain an “unsubscribe” link that allows subscribers to remove themselves from Customer mailing list and a link to the Email Marketing Privacy Policy. Each aforementioned link must remain operational for a period of thirty (30) days after the date on which Customer sends the message, and must be in form and substance satisfactory to Service Provider. Customer acknowledges and agrees that Customer will not alter, remove, hide, disable or attempt to remove/disable either link. These links are automatically added for Customer and no special action must be taken to ensure their existence.

Customer further agrees to only import, access or otherwise use permission-based email or SMS lists. Any purchased lists no matter of quality are expressly forbidden for use in the Service Provider application.

Customer further agrees that occasionally, emails that Customer sends through the Service may generate abuse complaints from recipients. Service Provider has no obligation to disclose the specific individual(s) who report these complaints. Customer is responsible for ensuring that Customer marketing campaigns and use of the Services do not generate a number of abuse complaints in excess of industry standards. Service Provider, in its sole discretion, shall determine whether Customer’s level of abuse complaints is within industry standards, and its determination shall be final, binding and conclusive for all purposes under this Agreement.

Customer further agrees Service Provider may, at its own discretion, immediately disable Customer access without refund to the Services if Service Provider believes in its sole discretion that Customer has violated any part of this Agreement, or are partaking in any other conduct deemed inappropriate by Service Provider.

Acceptable Use Policy

Scope. Customer and all persons and entities accessing the Services must comply with this Acceptable Use Policy (“AUP”). By using the Services, Customer acknowledges, and agrees to ensure compliance with, this AUP. SERVICE PROVIDER in its discretion may modify this AUP at any time.

Restrictions on Use. Customer agrees to ensure that the Services will not be used in or for any illegal, fraudulent, unauthorized or improper manner or purpose and will only be used in compliance with all applicable laws, rules and regulations, including all applicable state, federal, and international Internet, data, telecommunications, telemarketing, “spam,” and import/export laws and regulations, including the U.S. Export Administration Regulations. Without limiting the foregoing, Customer agrees to not permit the Services to be used to transmit or disseminate any:

(i) junk mail, spam, or unsolicited material to persons or entities that have not agreed to receive such material or to whom Customer or its End-Users do not otherwise have a legal right to send such material;

(ii) material that infringes or violates any third party’s intellectual property rights, rights of publicity, privacy, or confidentiality, or the rights or legal obligations of any wireless service provider or any of its customers or subscribers;

(iii) material or data, that is illegal, or material or data, as determined by SERVICE PROVIDER (in SERVICE PROVIDER’s sole discretion), that is harassing, coercive, defamatory, libelous, abusive, threatening, obscene, or otherwise objectionable, materials that are harmful to minors or excessive in quantity, or materials the transmission of which could diminish or harm the reputation of SERVICE PROVIDER or any third-party service provider involved in the provision of the Services;

(iv) material or data that is alcoholic beverage-related (e.g., beer, wine, or liquor), tobacco-related (e.g., cigarettes, cigars, pipes, chewing tobacco), guns or weapons-related (e.g., firearms, bullets), illegal drugs-related (e.g., marijuana, cocaine), pornographic-related (e.g., adult themes, sexual content), crime-related (e.g., organized crime, notorious characters), violence-related (e.g., violent games), death-related (e.g., funeral homes, mortuaries), hate-related (e.g. racist organizations), gambling-related (e.g., casinos, lotteries), specifically mentions any wireless carrier or copies or parodies the products or Services of any wireless carrier;

(v) viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information;

(vi) material or information that is false, misleading, or inaccurate;

(vii) material that would expose SERVICE PROVIDER, any third-party service provider involved in providing the Services, or any other third party to liability; and/or

(viii) any signal or impulse that could cause electrical, magnetic, optical, or other technical harm to the equipment or facilities of SERVICE PROVIDER or any third party.

(ix) high-risk financial offers on shared short codes including but not limited to: loan origination and matching for payday loans, short-term loans, auto loans, mortgage loans, student loans, cash advance, and title loans; debt consolidation; investment opportunities; credit repair programs; tax relief programs; and work from home programs

(x) material or data that is intended to impersonate a federal agency or program

(xi) material or data that is intended to SPAM, scam, or PHISH

Customer shall not access any Carrier services that Customer has not ordered or for which Customer has not paid applicable fees. Customer will not use or attempt to use a third party’s account with SERVICE PROVIDER, or interfere with the security of, or otherwise abuse, the Services or other SERVICE PROVIDER customers. Customer shall not interfere in any manner with SERVICE PROVIDER’s provision of the Services.

Furthermore, you agree to the following minimum usage and compliance levels that will be measured at the account level on a calendar month basis. Notice for Violation to these minimum usage and compliance requirements will be sent to the email address of the master account user and you will have 15 days from notice to comply. Violation of the minimum usage and compliance levels can result in further action on your account in accordance with the Terms of Service.

(i) Each originating number must have at least two SMS messages

(ii) Each keyword on a shared short code must have at least one opt in or outgoing campaign associated with the opt ins

(iii) Each keyword response must include brand information, offer information, stop instructions, customer care instructions, and include the disclaimer “Msg&Data rates may apply”