Terms and Conditions

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will appear on printed material with keywords and short code. Ex: “Text
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help or CALL 1-970-417-2930. 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 WithItPayments. Throughout the site, the terms “we”, “us” and “our”
refer to WithItPayments 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 November 20th, 2017.

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. If any part of a month is included in
the Term, then payment is due for the full month. Payments are due for any
month on the same or closest date to the day you made your first monthly
payment. If your payment fails on the due date, we will try to attempt to bill
your card on file subsequent times. 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.

As long as you’re a
Customer or have an outstanding balance with us, you’ll provide us with valid
credit card information and authorize us to deduct the monthly charges against
that credit card. You’ll replace the information for any credit card that
expires with information for a valid one. Anyone using a credit card represents
and warrants that they are authorized to use that credit card, and that any and
all charges may be billed to that credit card and won’t be rejected. If we’re
unable to process your credit card order, we’ll try to contact you by email and
suspend your account until your payment can be processed.

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 by signing a contract or signing up for services
online and continues until all subscriptions hereunder have expired or have
been terminated. Entering your information and clicking the button to sign up
means that you’ve officially “signed” the Terms. If you signup on behalf of a
company or other entity, you represent and warrant that you have the authority
to accept these terms on their behalf.

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”