SMS Service Agreement – Terms and Conditions

1. License

1.1. MessageMedia, USA, Inc. (“MessageMedia”, “us,” or “we” ) grants the Customer identified on the MessageMedia Application Form (“Customer,” or “you”) a non-exclusive, non-sublicensable, non-transferable right and license during the Term to access and use the SMS Messaging Service solely for Customer’s provision of content to recipients, subject to these Terms and Conditions and MessageMedia’s Acceptable Use and Anti-Spam Policy, which may be amended by MessageMedia from time to time (“AUP”) and which is incorporated into and made part of these Terms and Conditions.

2. Fees and Charges

2.1. Fees:

2.1.1. The Monthly Access Fee and any other monthly fees set out in the Application Form are payable monthly in advance on the first day of each month.

2.1.2. Message Fees for any Messages sent by Customer shall be invoiced to Customer at the end of the month during which they were sent.

2.1.3. Fees and all other amounts mentioned in this Agreement do not include any taxes based upon this Agreement or the SMS Messaging Service (“Taxes”), all of which will be paid by Customer (except for MessageMedia’s income taxes). In the event that MessageMedia is required by applicable law to pay or remit such Taxes, Customer will reimburse MessageMedia for such amounts.

2.2. Payments:

2.2.1. MessageMedia will invoice Customer on a calendar month basis for Fees not paid in advance, such as Message Fees, and Customer shall pay Fees within fourteen (14) days of invoice date.

2.2.2. Customer shall pay Fees by automatic direct debit or credit of Customer’s debit or credit card. MessageMedia may agree to alternate payment methods in its sole discretion. MessageMedia’s records are conclusive evidence of Customer’s order for, and use of, the SMS Messaging Service.

2.2.3. Customer shall pay for every Message sent through MessageMedia’s SMS Messaging Service under Customer’s Account irrespective of receipt by the intended recipient. On written request received within 30 days of the Message being sent, MessageMedia will provide documentary evidence to Customer that the Message in question was successfully delivered to the relevant Carrier.

2.2.4. MessageMedia may terminate or suspend access to the SMS Messaging Service without notice if any payment due from Customer remains unpaid for a period of seven (7) days after the due date. However, Customer shall continue to remain responsible for all Fees due hereunder.

3. Confidentiality

3.1. In connection with this Agreement, each party may disclose Confidential Information (“Disclosing Party”) to the other party (“Recipient”).

3.2. Confidential Information shall include all information relating to or used by the Disclosing Party or its affiliates, including know-how, trade secrets, ideas, marketing strategies and operational information, all information concerning the business affairs (including products, services, customers and suppliers) or property of the Disclosing Party or its affiliates, including any business, property or transaction in which the Disclosing Party or its affiliates may be or may have been concerned or interested; any other information disclosed by or on behalf of the Disclosing Party or its affiliates which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential; and the terms of this Agreement.

3.3. The Recipient shall keep, and cause any of its employees, agents and/or representatives to keep, the Disclosing Party’s Confidential Information confidential and shall refrain from disclosing such information to third parties or otherwise utilizing such Confidential Information without Disclosing Party’s prior written consent.

3.4. The confidentiality obligations set forth in this Section 3 do not apply to Confidential Information that: (i) the Recipient is legally required to disclose; (ii) is already known by the Recipient prior to the date hereof; (iii) is legally obtained from other sources not in violation of an agreement of confidentiality; or (iv) is or becomes part of the public domain through no fault of the Recipient.

3.5. Each party acknowledges that compliance with this Section 3 is necessary to protect the business, good will, and Confidential Information of the other, and that a breach of the same will cause irreparable and continual damage for which money damages may not be adequate. If the Recipient breaches, or threatens to breach this section, the Disclosing Party may seek and Recipient shall not object to: (a) a temporary, preliminary, or permanent injunctive relief, or other equitable relief, in order to prevent such damage; and (b) money damages insofar as they can be determined.

3.6. Notwithstanding anything else contained in this Agreement to the contrary, the parties agree that MessageMedia shall have the unconditional and irrevocable right to disclose the identity and address of Customer and, to the extent permitted by applicable law, any recipient in the event of any complaint, request or other notice received from any regulatory or governmental body or licensed Carrier, in connection with Customer’s use of the SMS Messaging Service.

3.7. Customer agrees to MessageMedia disclosing the existence of this Agreement and Customer’s identity for the purpose of marketing MessageMedia to current and future clients.

4. Customer Obligations

4.1. Customer shall use the SMS Messaging Service solely for the provision of content to recipients in compliance with all (i) laws and regulations applicable to the use of the MessageMedia Service, and (ii) of MessageMedia’s instructions concerning access to and/or use of the SMS Messaging Service, including, but not limited to MessageMedia’s AUP. Customer shall not transmit any material that is Restricted Content or in contravention of any privacy or copyright rules or any other Intellectual Property Right.

4.2. Any transaction and all Messages submitted under Customer’s Account will be deemed to have been performed or submitted by Customer. Customer accepts full responsibility for all aspects of their Account, including the Content and distribution of its Messages, and actions of all persons in possession of Customer’s username and password.

4.3. Common Carriers and MessageMedia may audit Message Content from time to time and breach of this clause shall result in a breach of Customer’s obligations under this Agreement and potentially the termination of this Agreement. Further, MessageMedia may monitor Customer’s compliance with the terms of this Agreement and request explicit confirmation of compliance from Customer from time to time. Failure to comply may result in suspension of Customer’s access to the SMS Messaging Service and/or termination of this Agreement. MessageMedia may cease the conveyance of any Message it believes to be in violation of this Agreement or the AUP.

4.4. Customer shall not (i) license or otherwise commercially exploit or make available the SMS Messaging Service to any third party; (ii) modify, copy, or create derivative works based on the SMS Messaging Service; (iii) link to, “frame” or “mirror” any portions of the SMS Messaging Service, (iv) reverse engineer, or otherwise attempt to discover the source code or underlying structure of the SMS Messaging Service, (v) do anything that may jeopardize or compromise the security or integrity of any part of MessageMedia’s systems or that poses a security or service risk to MessageMedia or to any customer of MessageMedia, (vi) otherwise access or use the SMS Messaging Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions, or graphics of the SMS Messaging Service, or (vii) otherwise use the SMS Messaging Service in any manner that exceeds the scope of use permitted under this Agreement or in violation of any law or regulation.

4.5. Customer shall ensure that recipients have consented to receive Messages and shall cease sending Messages to any recipient who indicates in any way a desire not to receive any further Messages.

5. Property Rights

5.1. MessageMedia (and its licensors, where applicable) own all right, title and interest in and to MessageMedia’s software, MessageMedia Facilities and the SMS Messaging Service and all intellectual property rights that are part of or otherwise associated therewith, and no part thereof may be copied without prior consent in writing from MessageMedia (or its licensors, where applicable). No rights are granted to Customer hereunder other than as expressly set forth herein and MessageMedia retains all rights not so expressly granted.

5.2. MessageMedia shall own all rights, title and interest, including all Intellectual Property Rights, in and to any improvements to the SMS Messaging Service or any modifications developed by MessageMedia in connection with rendering the SMS Messaging Service to Customer, even if resulting from Customer’s request, or the custom development work performed by MessageMedia on behalf of Customer.

6. Indemnities and Limitation of Liability

6.1. Customer shall indemnify and hold MessageMedia, its affiliates, and their respective officers, directors and employees harmless from and against any and all costs (including reasonable attorneys’ fees), expenses, loss, liabilities, suits, actions, damages or claims or proceedings arising or in any other way connected with (a) any willful or negligent act or omission by Customer, its employees, agents or contractors; (b) any Messages sent by Customer whether or not the claim is brought or made by a MessageMedia customer, a recipient, or another party; (c) Customer’s non-compliance with any terms of this Agreement; or (d) Customer’s use of its Account or the SMS Messaging Service, or any other person using Customer’s username and password.

6.2. MessageMedia shall indemnify and hold Customer, its affiliates, and their respective officers, directors and employees harmless from and against any and all costs (including reasonable attorneys’ fees), expenses, loss, liabilities, suits, actions, damages or claims or proceedings arising or in any other way connected with (a) any willful or negligent act or omission by the MessageMedia, its employees, agents or contractors; or (b) any knowing infringement of any other party’s patent or trademark.

6.3. An Indemnified Party shall promptly provide the Indemnifying Party with written notice upon learning of any Claims or complaints that may reasonably result in the indemnification of the Indemnified Party, provided, however, that failure by the Indemnified Party to provide prompt notice to the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Section 6, unless the Indemnifying Party’s ability to defend the Claim has been materially disadvantaged or compromised

6.4. Any indemnity in this Agreement is a continuing obligation, independent of other obligations under this Agreement and continues after this Agreement ends.

7. Recipient Information and Disclaimers

7.1. Customer, on behalf of itself and recipients, hereby grants to MessageMedia the nonexclusive right to access and use certain recipient information as is necessary for MessageMedia to provide the SMS Messaging Service. Customer represents and warrants that it possesses all rights, consents and permissions necessary to use and disclose recipient information in connection with the SMS Messaging Service and this Agreement and that it has authority to grant MessageMedia the rights set forth in this clause 7.1.

7.2. Customer acknowledges that MessageMedia exercises no control over, and will have no liability for, any recipient information. Customer will be responsible at all times for maintaining the accuracy, timeliness and security of its and its recipient’s information, and MessageMedia bears no liability for the accuracy, loss or damage in part or whole, of such information or failure to store any such information.

7.3. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, MESSAGEMEDIA DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTIES WITH RESPECT TO THIS AGREEMENT OR THE SMS MESSAGING SERVICE, INCLUDING WITH RESPECT TO THE RESULTS THAT MAY BE OBTAINED FROM CUSTOMER’S USE OF THE SMS MESSAGING SERVICE OR THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SMS MESSAGING SERVICE. MESSAGEMEDIA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THIS AGREEMENT AND THE SMS MESSAGING SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. THE SMS MESSAGING SERVICE IS PROVIDED ON AN “AS-IS” BASIS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SMS MESSAGING SERVICES, WHETHER OR NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY MESSAGEMEDIA.

7.4. IN NO EVENT SHALL MESSAGEMEDIA HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT MESSAGEMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL MESSAGEMEDIA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY EXCEED THE MESSAGING FEES ACTUALLY PAID BY CUSTOMER TO MESSAGEMEDIA IN THE SIX (6) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

8. Term and Termination

8.1. This Agreement commences on the Effective Date and will continue until terminated in accordance with this clause 8 (“Term”). In addition to its other rights as provided herein, either party may terminate this Agreement by providing at least 30 days prior written notice to the other party.

8.2. MessageMedia may terminate this Agreement immediately upon notice to Customer if:

(a) Customer files for bankruptcy, a receiver, liquidator, provisional liquidator or administrator is appointed over any of Customer’s undertakings or assets, or if Customer enters into any arrangement with any creditors or any class creditors;

(b) it becomes unlawful for Customer to perform its obligations under this Agreement or the performance by a party of its obligations under this Agreement is in breach of a law;

(c) Customer violates any provision of this Agreement or the AUP; or

(d) MessageMedia notifies Customer in writing of any other breach of this Agreement not otherwise identified above and Customer fails to remedy the breach to the satisfaction of MessageMedia within 7 Business Days of notification.

8.3. Upon any termination or expiration of this Agreement:

(a) Customer shall promptly pay all Fees due hereunder to MessageMedia, including any Early Termination Fee.

(b) MessageMedia will immediately terminate Customer’s access to the SMS Messaging Service and the license granted to Customer pursuant to clause 1 shall cease; and clauses 2, 3, 4.1, 4.2, 5, 6, 7, 8.3, and 9 shall continue to apply.

8.4. Any termination is without prejudice to any rights, liabilities or obligations accruing as at such termination.

9. General

9.1. MessageMedia has the right to change, modify, and otherwise convert the software, hardware and/or technology used to provide the SMS Messaging Service without notice.

9.2. This Agreement shall be governed and interpreted according to the laws of the State of California, except for its conflict of laws principles and any dispute arising out of or relating to this Agreement shall be brought and heard in a state or federal court located in the City and County of San Francisco, California. To the extent permitted by law, each party also waives any right to jury trial in connection with any action or litigation related to this Agreement.

9.3. In the event that any provision of this Agreement proves to be illegal or unenforceable, that provision is deemed to be omitted from this Agreement without affecting the legality of the remaining provisions. The remaining provisions of this Agreement shall continue in full force and effect.

9.4. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement due to any event beyond its reasonable control including without limitation, an act of god, inclement weather, flood, lightning, fire, Carrier break down, black-out or brown-out, industrial action the act or omission of any government, terrorism, war, military operations or riot.

9.5. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

9.6. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of MessageMedia. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this clause shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

9.7. No claim may be brought by Customer under this Agreement more than one (1) year after the accrual of the claim.

9.8. This Agreement, including all documents referenced herein shall constitute the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Application Form or Service Level Agreement, the terms of this Agreement shall prevail.

9.9. Notices under this Agreement may be delivered by hand, by mail or by facsimile to the following, and be considered delivered upon delivery:

To MessageMedia:

Attention: Chief Executive Officer

US Address and US facsimile provided from time to time at: http://us.mmtestoa.com/contact-us or by email at contractnotices@messagemedia.com

To Customer: At the address for Customer as set forth on the Application Form.