mobileStorm Terms and Conditions

Email and Wireless Marketing Service License Agreement

anti-spam policy | privacy-policy | terms and conditions

All clients must agree to and abide by these Terms and Conditions:

READ THESE TERMS CAREFULLY BEFORE USING THIS SERVICE. BY USING THIS SERVICE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO BINDING AGREEMENTS EITHER INDIVIDUALLY OR ON BEHALF OF YOUR COMPANY AND ARE NOW COMPLETING SUCH A BINDING AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND ALL OTHER ADDITIONAL OR CONTRARY DOCUMENTS, OR REPRESENTATIONS, WRITTEN OR ORAL, ARE HEREBY REJECTED AND SHALL NOT BE BINDING.

YOU MUST BE AT LEAST 13 YEARS OF AGE OR OLDER TO USE THIS SITE, AND IF YOU ARE UNDER THE AGE OF 18, YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO USE THIS SERVICE AND HAVE THEM READ AND AGREE TO THESE TERMS. You represent, acknowledge and agree that you are at least 18 years of age or that you are the parent or legal guardian of a user that is over the age of 13, and you represent and warrant that: (a) all registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Service do not violate any applicable law or regulation. Your account may be terminated without warning if we believe that you are under the age of 18 or under the age of 13 and using the Service without the permission of your parent or legal guardian.

1. INTRODUCTION

1.1 Introduction.

The technology for this message delivery platform (“mobileStorm”) is provided by mobileStorm Inc. (“mobileStorm “) and is furnished “AS IS” under this License Agreement (“Agreement”) for the fees specified in our pricing plan. You must read this Agreement and agree to its terms before you may create an account with mobileStorm.

1.2 Modification of This License Agreement.

mobileStorm reserves the right to change this Agreement and any additional terms at anytime, and mobileStorm will post notice of the changes and the updated Agreement on the mobileStorm web site (www.mobilestorm.com). mobileStorm may also provide notice of the updated Agreement by sending e-mail notifications to registered users of the Service. You are responsible for regularly reviewing these terms and conditions. Continued use of mobileStorm after any such changes shall constitute your consent to such changes, including changes in fees.

2. LICENSE

2.1 License.

mobileStorm grants you (referred herein as “you” or “client”) a non-exclusive, nontransferable license to create an account for and use mobileStorm for your organization in accordance with the terms of this Agreement. The information provided on this web site regarding Features and Pricing, Privacy Policy, and Anti-Spam Policy is incorporated herein by reference. You specifically understand and agree that mobileStorm and any associated documentation are and shall remain the sole and exclusive property of mobileStorm, and is copyrighted and licensed, not sold.

2.2 Services Provided.

mobileStorm shall provide some or all of the following services, depending on services availability, and the service contract purchased: account management platform; e-mail messaging, including bounce reports, subscriber reports, campaign reports and others; voice messaging and call campaign (voice call), including Intelligent Answering and Filtering and detailed reports; text messaging to domestic customers, including 2-way premium campaigns (e.g., for contests or polls) and results reports; fax messaging with detailed delivery reports; video syndication and tracking services; other services as may be/become available; and reasonable technical and administrative support (collectively, “Service” or “Services”). You acknowledge and agree that parts of the Service may be provided by third party licensors of mobileStorm.

mobileStorm is accountable for providing the Services, but provides said Services “AS IS” and is only responsible for ensuring that the client’s messages leave the mobileStorm network. mobileStorm is not and cannot be responsible for the ultimate delivery of the client’s messages, and makes no such warranty or guarantee.

mobileStorm reserves the right to send, dispatch, remit, transmit and/or forward any type, category or form of communication to you including, but not limited to, e-mails, SMS/text messages, facsimiles and/or telephone calls to address or discuss any issue related to mobileStorm’s Services.

2.3 Copyright.

mobileStorm’s databases contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions. All rights not granted to you herein are expressly reserved by mobileStorm. You may not remove any material belonging to mobileStorm from any web site or any of mobileStorm’s databases. You are not authorized to use mobileStorm’s name, logos or any related product and service names, design marks and slogans in any advertising, publicity or any other commercial manner without the prior written consent of mobileStorm.

All worldwide right, title and interest in and to the Services, and all components thereof, including all intellectual property rights therein, shall be and remain the sole and exclusive property of mobileStorm or its third party licensors, as applicable.

2.4 Confidentiality.

You acknowledge that mobileStorm possesses valuable trade secrets and agrees to maintain the confidentiality of mobileStorm’s proprietary materials.

mobileStorm agrees to maintain as confidential your e-mail, phone, fax, physical mailing addresses, instant message handles and pager list(s). mobileStorm agrees not to compile, buy, sell, rent, rent or trade your e-mail, phone, fax, physical mailing addresses, instant message handles or pager list(s), or send unauthorized emails, instant messages, wireless text messages (SMS), direct mail, voice messages or faxes to any individual or entity on your list(s). mobileStorm further agrees not to use your customer list(s) or any other customer information for any other purposes than those intended with the Service. Your customer information shall not be shared with any other third parties unless required by law. mobileStorm will provide you with reasonable advance notice prior to disclosing confidential information on this basis and agrees to stipulate to any orders necessary to protect said information from public disclosure.

2.5 Restrictions.

mobileStorm maintains a Global Permanent Removal List which contains addresses and domains which it will not allow any customer to add to a database. You understand and agree that mobileStorm has full discretion to block the uploading of any e-mail address which it has placed on such a list, and will not be liable for the blocking of any such address from any customer database.

You shall not: (1) use or copy mobileStorm’s platform, network, marks or web site or its associated documentation except as provided in this License Agreement; (2) modify or merge mobileStorm’s platform, network, marks or web site or its associated documentation; (3) publish, display, disclose, sell, rent, lease, modify, loan, distribute, create or otherwise make available the derivative works based on mobileStorm’s platform, network, marks or web site or its associated documentation or any part thereof, in whole or in part, to any other person or entity; (4) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on mobileStorm’s platform, network, marks or web site or its associated documentation; (6) reverse engineer, decompile, translate, adapt, or dissemble mobileStorm’s platform, network, web site or its associated documentation, nor shall you attempt to create the source code from the object code for mobileStorm’s platform, network, or web site or its associated documentation; (7) sublicense or assign the license for mobileStorm’s platform, network, marks or web site or its associated documentation; and (8) copy these terms and conditions or this License Agreement for you and your customers’ own use. You shall have the right to copy specific sections as a means of complying with such section in your agreements with its independent contractors, e.g., your customers.

You must include the relevant subscribe/unsubscribe information (as well as a physical address for the CAN SPAM act and an abuse link to mobileStorm’s abuse system) provided by mobileStorm in each message you send using mobileStorm’s email platforms. You shall also honor in a timely manner all unsubscribe requests sent directly to you from those who elected not to use mobileStorm’s automated subscribe/unsubscribe features, regardless of how harsh or unpleasant the unsubscribe request may be.

You acknowledge that you are responsible for the text, files, images, photos, videos, sounds, musical works, works of authorship, or any other materials that you submit, transmit or otherwise make available through the Service (collectively, “Content”), and that you, and not mobileStorm, have full responsibility for all Content that you provide, including its legality, accuracy, appropriateness, and trademark and copyright ownership. YOU RETAIN OWNERSHIP OF ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO ANY INFORMATION YOU SUBMIT TO MOBILESTORM, SUCH AS YOUR CONTENT. You further agree that you will not upload, post or otherwise make available through the Service any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Content.

You represent and warrant that: (i) you own all Content provided by you through the Service or otherwise have the have the applicable licenses necessary to use such Content in accordance with the terms of this Agreement, and (ii) the transmission of your Content through the Service does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Content provided by you to or through the Service.

When providing Content to or otherwise using the Service, you agree not to, without limitation:

send any unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation.
send unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes to email addresses, phone/pager numbers, landline phones or fax machines, obtained from any purchased or harvested lists in which the recipient did not expressly request to receive your message (or your customers’ messages);
send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that harass, embarrass, defame, abuse, threaten, libel, slander or otherwise violate the legal rights of any individual, group, or organization;
send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by mobileStorm;
send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contains material that infringes, misappropriates or violates any patent, trademark, trade secret, copyright, rights of privacy or publicity or any other proprietary rights of any party;
send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain a computer virus or any other code, program or file that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group or organization;
perform or promote illegal activities or promote physical harm or injury against any individual, group or organization, or promote any act of cruelty to animals;
impersonate, use the name of (without express permission) or misrepresent any individual, group or organization;
violate any applicable local, state, federal or international laws or regulations or perform any activity that would cause mobileStorm to violate any law, statute or regulation.
Transmit or otherwise make available any content that is false, harmful, threatening, abusive, tortious, defamatory, libelous, disparaging (including disparaging of mobileStorm), vulgar, obscene, pornographic, or that promotes, furthers or incites violence, terrorism or illegal acts, or is otherwise objectionable (as determined by mobileStorm in its sole discretion).
Submit any copyrighted or trademarked materials without the express permission from the owner.
Solicit personal information from anyone under 18 years of age.
Upload or transmit viruses, Trojan horses or other harmful, disruptive or destructive files or post material that interferes with any third party’s uninterrupted use and enjoyment of the Service.

This list of prohibitions provides examples and is not complete or exclusive. mobileStorm reserves the right to (a) terminate your access to your account, your ability to use the Service and (b) refuse, delete or remove, move or edit the Content, in whole or in part, with or without cause and with or without notice, for any reason or no reason, or for any action that mobileStorm determines is inappropriate or disruptive to the Service to any other user of this Service. mobileStorm may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at mobileStorm’s discretion, mobileStorm will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Service.

mobileStorm does not and cannot review all Content submitted to and/or transmitted through the Service. These prohibitions do not require mobileStorm to monitor, police or remove any Content or other information submitted by you or any other user of the Service.

2.6. “No Spam” and Privacy Policies

You represent, covenant and warrant that you shall use the Services only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity or defamation).

In the event you use the Service to conduct telemarketing activities, you shall warrant to mobileStorm that you will take all required actions necessary to comply with applicable state and federal “DO NOT CALL” and telemarketing registration statutes and regulations, and you shall not use the Service in a manner which will result in a violation of any laws or regulation respecting such Service, including but not limited to the Federal Telephone Consumer Protection Act, 27 U.S.C. § 227, et seq..

You shall use mobileStorm only for “opt-in” lists, lists in which the recipient has voluntarily signed up to be on your list and has not requested to be unsubscribed. Any messages sent to users who did not request to be on your or your customers’ lists, whether purchased or otherwise obtained without the recipients’ consent, shall be deemed as “Spam” and may result in termination of your account without refund and legal action, including the pursuit of damages, against you for violating our “No Spam” policy.

You shall also agree to abide by and display a Privacy Policy or link to a Privacy Policy on your signup page. You shall either (1) use the Privacy Policy provided by mobileStorm (attached as Exhibit D) or (2) use a Privacy Policy that contains the same provisions, or their equivalent, as the Privacy Policy that is provided by mobileStorm. Any violation of this Privacy Policy may result in termination of your account without refund and the commencement of legal action against you. You agree to indemnify and hold mobileStorm harmless from any damages and claims arising from any violation of this policy.

mobileStorm is compliant with the CAN-SPAM laws and enforces such practices for all of its customers. mobileStorm also works closely with the major anti-spam organizations such as Mail Abuse Prevention System (MAPS), SpamCop, Spamhaus, and Spam Prevention Early Warning System (SPEWS) to ensure that all of its customers are not in violation of spamming policies.

You understand that e-mails that are sent through mobileStorm’s Services may generate abuse complaints from recipients. As a matter of privacy, mobileStorm does not have to share with you the e-mail addresses, instant message handles, phone numbers, pager numbers or fax numbers of those who complain about your campaigns.

2.7. Addressing Spam Complaints

You are responsible for ensuring that your campaigns do not generate a number of abuse complaints in excess of industry standards. An excessive number of such complaints may result in the termination of your account. mobileStorm, in conjunction with you, shall mutually determine whether your level of abuse complaints is within industry norms. In the event that your use of mobileStorm’s Services results in you being listed on SpamCop or any other anti-spam organization, mobileStorm reserves the right to require that you utilize a “double opt in” feature which will require newly added users to verify their assent to receiving your communications after they have been added to your database(s).

ISP FBL Complaints. mobileStorm is enrolled in feedback loops (“FBL”) which are offered by internet service providers to send back complaints when an end user designates the message as “spam.” The internet service provider tabulates the amount of complaints per campaign and assesses penalties when a campaign exceeds a particular threshold amount which is a percentage of the campaign’s volume. If your campaign exceeds FBL complaint thresholds, you shall be responsible for the following charges:

FBL Complaint Threshold Amount	Penalty Charge
0-0.3%	No charge
0.31-0.7%	$10 per complaint
0.71-1%	$25 per complaint
1.01%-5%	$50 per complaint
5.01%-100%	$100 per complaint (calls for immediate hold and consultation regarding possible termination)

These charges shall be payable by you within 30 days of receipt of invoice from mobileStorm.

Abuse E-Mail Complaints. Abuse complaints are also transmitted via e-mail to abuse@mobilestorm.com or via the mobileStorm corporate web site when a message recipient follows the “Complain” link located at the footer of each client e-mail message (http://www.mobilestorm.com/abuse.) For each such complaint, you shall be responsible for the following charges: $10 per each complaint; or $100 per complaint if you cannot show proof of an opt-in for the complainant (also calls for immediate hold and consultation with possible termination). These charges shall be payable by you within 30 days of receipt of invoice from mobileStorm.

Spamcop. SpamCop (located at www.spamcop.org) is one of the largest Blacklists on the Internet. An excessive number of complaints to SpamCop may result in a blockage of a mailing IP address and a disruption of mobileStorm’s Services to other customers. For any complaint submitted to SpamCop, mobileStorm, mobileStorm’s hosting company or received from SpamCop relating to any messages transmitted by you shall be responsible for the following charges:

Number of Complaints	Penalty Charge
1-5	$100 per complaint
6-10	$250 per complaint
11-15	$500 per complaint
15+	Immediate hold and consultation with possible termination

These charges shall be payable by you within 30 days of receipt of invoice from mobileStorm.

2.8 Enforcement.

You acknowledge that if you breach Sections 2.3, 2.4, 2.5 or 2.6 mobileStorm shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief and you further agree to waive any right or claim to which you may be entitled to immunity or exemption from liability. mobileStorm may also seek damages as a result of such breach.

2.9 Term and Termination.

The length of your agreement with mobileStorm will be set by separate written agreement. You understand that this Agreement is effective from the date you create an account with mobileStorm and shall continue until the contract is complete or the account is terminated either by you or by mobileStorm. MOBILESTORM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OF THIS LICENSE. YOU WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED. mobileStorm may terminate this Agreement immediately if: i) you fail to comply with the terms of this Agreement; ii) your account is dormant for a period of 60 consecutive days; iii) the mobileStorm Service is discontinued; or iv) you have an overdue balance for any Services or products purchased on or through www.mobileStorm.com. If mobileStorm terminates your account, you must immediately stop using mobileStorm and associated documentation, including sample documents provided within mobileStorm, and all copies you made of them.

Agreements may only be terminated by providing written notice to mobileStorm’s billing department (billing@mobilestorm.com). Cancellation must be completed prior to the next billing period which occurs on the first (1st) of the month. If account is not cancelled by the first (1st), all Service fees will continue to be charged. You will not be entitled to any refund of fees paid. In the event that you are on a contract and terminate said contract before it has completed, you agree to pay an early termination fee equal to the higher of a) the amount remaining on the contract, or b) the difference between the highest equivalent non-contract monthly rate charged and the amount you actually paid for each month of Service under the agreement. mobileStorm may terminate this Agreement or the Services, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. mobileStorm shall have no liability to you or any third party because of such termination or action. Should mobileStorm take any such action, it will delete any of your archived data within 30 days after the date of termination. After termination, mobileStorm will provide upon request the list of unsubscribe requests from within 30 days of your last email campaign, but will not process said requests. If your account is classified (at mobileStorm’s sole discretion) as inactive for over 60 days, mobileStorm has the right to permanently remove your subscriber data. mobileStorm will attempt to contact you via email prior to taking any permanent removal actions.

2.10. Risks.

mobileStorm and its platforms may have errors and may produce unexpected results. Except as otherwise expressly provided herein, you agree that any use of mobileStorm’s platforms will be entirely at its own risk. You agree to backup you information and take other appropriate measures to protect programs and data. You may not allow a third party to use mobileStorm’s account and agree to indemnify and hold mobileStorm harmless from any damages or claims arising from such use by any third party. You specifically understand that you assume the risk of your messages actually reaching their destination, and that mobileStorm does not and cannot guarantee the ultimate delivery of your messages.

3. DISCLAIMER OF WARRANTIES AND REMEDIES

3.1 Disclaimer of Warranty.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MOBILESTORM OTHERAND ITS THIRD PARTY LICENSORS MAKE NO WARRANTIES, AND EXPRESSLY DISCLAIM ALL WARRANTIES, OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. MOBILESTORM AND ITS THIRD PARTY LICENSORS DO NOT WARRANT THAT THE SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SERVICES WILL BE ERROR FREE, OR OPERATE IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED. MOBILESTORM DOES NOT WARRANT THAT MOBILESTORM’S PLATFORM IS COMPATIBLE WITH ANY OTHER PARTICULAR PLATFORM.

YOU SPECIFICALLY UNDERSTAND THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF MOBILESTORM, THAT E-MAILS, INSTANT MESSAGES, TEXT MESSAGES, PHONE MESSAGES AND FAX MESSAGES MAY NOT REACH THEIR INTENDED RECIPIENTS, AND UNDERSTAND THAT MOBILESTORM CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF YOUR MESSAGES.

If you receive a claim that the use of the Services infringes a patent, copyright or other intellectual property right, you must promptly notify mobileStorm in writing. MobileStorm, at its own expense and option, may (i) defend and settle such claim, (ii) procure you the right to use the platform, (iii) modify or replace the platform to avoid infringement; or (iv) refund the license fees you paid, if applicable. Subject to Section 3.3 below, these are your sole and exclusive remedies for any and all claims you may have against mobileStorm arising out of or in connection with the use of mobileStorm’s platform, whether made or suffered by you and whether based in contract or in tort.

3.2 Limitations of Liability.

TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL MOBILESTORM OR ITS THIRD PARTY LICENSORS BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF MOBILESTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MOBILESTORM OR ITS THIRD PARTY LICENSOR’S TOTAL, AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU TO MOBILESTORM FOR THE SERVICES.

3.3 Indemnification.

You (the “Indemnitor”), at your own expense, shall indemnify, defend and hold harmless mobileStorm, its affiliates and their employees, representatives, agents and affiliates (the Indemnitee”), against any claim, suit, action, or other proceeding brought against the Indemnitee or any affiliate based on or arising from your use of the Services, including but not limited to a claim that any action violates any of the restrictions or terms and conditions, such as violation of the Privacy Policy or using mobileStorm platforms to send Spam, as set forth in this Agreement, infringes in any manner any intellectual property right of any third party or contains any material or information that is obscene, defamatory, libelous, slanderous, that violates any person’s right of publicity, privacy or personality or has otherwise resulted in any tort, injury, damage or harm to any person; provided, however, that in any such case: (i) the Indemnitees provides the Indemnitor with prompt notice of any such claim; (ii) the Indemnitee permits the Indemnitor to assume and control the defense of such action, with counsel chosen by Indemnitor (who shall be reasonably acceptable to the Indemnitee); and (iii) Indemnitor does not enter into any settlement or compromise of any such claim without the Indemnitee’s prior written consent, which consent shall not be unreasonably withheld. The Indemnitor agrees to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the Indemnitee or any affiliate in connection with or arising from any such claim, suit, action or proceeding. It is understood and agreed that mobileStorm does not intend and will not be required to edit or review for accuracy or appropriateness any content or material that client or its organization distributes using the your platforms, networks or databases.

3.4 Damages.

You understand that the sending of unsolicited messages may result in fines, penalties, and the blocking of servers by spam filters and other spam preventing measures, and you shall reimburse mobileStorm for any fines or penalties assessed against, and shall be liable for damages caused to mobileStorm’s server which is blocked as a result of your use of mobileStorm’s Services covered herein. In addition to penalties which mobileStorm may impose if your campaign results in a server being blocked, mobileStorm shall have the right to charge your account for any time spent by mobileStorm agents or employees addressing issues arising out of the unlawful use (or use in any manner inconsistent with the terms of this Agreement) of mobileStorm’s Services, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.

4. PAYMENT AND PLANS

4.1 Authorization

By using mobileStorm’s Services, you expressly agree that mobileStorm is permitted to bill you the applicable fees and any other charges for the Services provided by mobileStorm. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. mobileStorm may change the fees and charges in effect, or add new fees and charges from time to time.

By using the Service, you consent to receiving electronic communications from mobileStorm and its third party partners and affiliates. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to our Service. These electronic communications are part of your relationship with mobileStorm and you receive them as part of your subscription to the Service. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

4.2 Payment Terms

Payment is due in full upon receipt of the invoice. If the invoice is thirty (30) days past due, mobileStorm may, to the extent permitted by the law of the State of California, charge you a late fee of up to 1.5 percent per month (18 percent annually). mobileStorm may also charge you for any collection agency fees that mobileStorm uses to collect from you. mobileStorm may charge you $25 for any returned check.

4.3 Automated Credit Card Payments

mobileStorm permits you to set up an automated payment system by establishing a credit card account from which payments are debited. You agree that mobileStorm shall automatically bill your credit card account on the 1st day of each month after the commencement of your Services contract with mobileStorm. If your credit card is declined on the 1st day of the month when payment is due, you may log onto your account, but will be unable to send any messages via mobileStorm’s platform. If your credit card is also declined on the 10th day of the month when payment is due, mobileStorm will assess a $10 late fee. If your credit card is then declined on the 25th day of the month when payment is due, mobileStorm will assess an additional $15 late fee. mobileStorm reserves the right to terminate your account if the your credit card is declined in the next billing cycle. You shall remain responsible for any uncollected amounts.

4.4 Plan Downgrading

Only a client that subscribes to a month-to-month Service plan may downgrade to a lower cost plan. If you subscribe to a 3, 6 or 12-month plan or any prepaid agreement, you may not downgrade to a lower cost plan.

4.5 Mobile-Terminated/ Mobile-Originated Messages

A mobile-terminated (“MT”) message is any SMS message sent by mobileStorm to an end-user using mobileStorm’s platform. A mobile-originated (“MO”) message is any SMS message sent by an end-user back to mobileStorm. For any campaign, your monthly allotted plan includes only MT messages. Each MT message transmitted to an end-user constitutes a separate message regardless of the timing of the transmission or identity of a recipient. You will not be charged for MO messages.

4.6 Plan Overages

If your use of mobileStorm’s Services exceeds your monthly allotted plan, mobileStorm shall charge the following for any overage you incur:

Type of Services	Amount of Overage
E-mail	$.005 per each transmitted e-mail that exceeds your monthly allotted plan
SMS/Text Messaging	$.10 per each mobile-terminated message that exceeds your monthly allotted plan
Voice Messaging	$.10 per every 30-second time interval in excess of your monthly allotted plan
Facsimile	$.10 per each page transmitted in excess of your monthly allotted plan

Any overage charges not paid within 30 days shall be subject to a late fee of 1.5 percent per month (18 percent annually).

5. PREMIUM SMS TERMS

5.1 Premium SMS Services.

If you have selected the option to receive the premium SMS service, either on a non-recurring or subscription premium messaging model (“Premium SMS Service”), through the client control panel, the terms stated in this Section 5 will apply to you and your use of the Premium SMS Service in connection with the Service. Pursuant to the terms of this Section, you have the right to use the Premium SMS Service to provide content and material (“Premium SMS Content”) to subscribers who purchase the Premium SMS Content from you (“Subscribers”). You agree that: (a) all of your Subscribers will have to double opt-in to use the Premium SMS Service, meaning that, in addition to the Subscriber registration process, when a premium SMS message is sent to a Subscriber’s phone, the Subscriber will be asked to respond with the word “yes” to opt in to use the Premium SMS Service, and such opt-in message will also include the applicable service charge (e.g., $0.99 per message), (b) you will follow the then-current Mobile Marketing Association (MMA) best practices in connection with your use of the Premium SMS Service, which can be accessed at the following URL: http://mmaglobal.com/bestpractices.pdf.

If you select the non-recurring premium messaging model, then you will have the option to designate specific messages, on an individual basis, as premium messages. If you designate a message as a premium message, any Subscriber that is subscribed to that Premium SMS Service will be charged the applicable service charge that the Subscriber has accepted through the opt-in process as soon as the premium message is received by the Subscriber. Any messages that are not designated as premium messages (e.g., autoresponder messages) will be charged at the standard rate, and the Subscriber will not be charged the applicable premium message service charge.

If you select the subscription messaging model, then your Subscribers will be charged a monthly recurring fee for the Premium SMS Service. mobileStorm will automatically send a message to the Subscriber on each monthly anniversary date of the date on which the Subscriber signed up for the Premium SMS Service. The message sent through mobileStorm shall state that the Subscriber has been charged the applicable monthly recurring fee and provide the Subscriber with the ability to opt out of subscribing to the Premium SMS Service at any time by sending a “Stop” reply to mobileStorm.

5.2 Premium SMS Service Fees

Unless otherwise specified, the fee for the Premium SMS Service is three hundred dollars (US$300) per month if your use of the Premium SMS Service generates Net Revenues (as defined herein) less than five thousand dollars (US$5,000) per month. Unless otherwise specified, if your use of the Premium SMS Service generates Net Revenues (as defined herein) that exceed five thousand dollars (US$5,000) per month, then mobileStorm will take a flat ten percent (10%) share of your monthly [Net Revenues] (as defined herein). “Net Revenues” means the gross amount of compensation received by you, directly or indirectly, as a result of the Premium SMS Service, less: (i) any refunds or credits issued by such party or (ii) any applicable taxes or other governmental fees attributable to the transactions generating such revenue.

5.3 Payments to Customers.

You will receive a check from mobileStorm for any payments due to you for the revenue generated by your Subscribers’ use of the Premium SMS Service during a given calendar month approximately ninety (90) days after the calendar month in which such fees were accrued. You acknowledge that mobileStorm reserves the right to change its payment structures from time to time in its discretion, and mobileStorm shall post notice of such changes on its web site.

mobileStorm shall use commercially reasonable efforts to ensure that payments made are processed in a timely manner, however, a number of factors will contribute to how and when payments are made, such as the timing of receipt of payments by mobileStorm from wireless carriers and/or other third party vendors. mobileStorm makes no representations or warranties regarding the amount of time needed to complete processing, nor shall mobileStorm be liable for any actual of consequential damages arising out of or related to any claim of delay.

6. MISCELLANEOUS

6.1 Miscellaneous.

This license and the rights granted under this License Agreement may not be transferred or assigned by you. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, United States of America without regard to its principles of conflict of laws. The parties consent to the jurisdiction of the courts of the State of California and the federal courts located within the State of California, County of Los Angeles, and any disputes shall be litigated solely in those courts. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees. If any clause, sentence or other provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining clause, sentence, or other provisions shall remain in full force and effect. Neither of the parties shall be liable for failures due to causes beyond their control, including, but not limited to, acts of God, acts of government, fire, flood, strikes, or acts or omissions of carriers. You warrant that you shall comply with all applicable laws and regulations that relate to the performance of this Agreement. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. This Agreement constitutes the entire Agreement, supersedes all prior agreements, and changes are only effective when in writing and signed by both parties.

6.2 No Agency.

No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind mobileStorm in any respect whatsoever.

6.3 Local Laws; Export Control.

mobileStorm controls and operates this web site from its headquarters in the United States of America and the Services may not be appropriate or available for use in other locations. If you use this web site outside the United States of America, you are responsible for following applicable local laws.

THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF MOBILESTORM OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA . YOU SHALL NOT EXPORT MOBILESTORM, THE DOCUMENTATION, OR INFORMATION ABOUT MOBILESTORM, AND THE DOCUMENTATION WITHOUT CONSENT OF MOBILESTORM AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.

6.4 Records.

You will ensure that anyone in your organization or affiliated entities who uses mobileStorm (accessed either locally or remotely) does so only for your authorized use and complies with the terms of this Agreement.

6.5 Assignment of Accounts

mobileStorm reserves the right to assign its IP and/or client’s accounts and data to another company of equal or greater capabilities and capacity to handle client’s account. In the event that mobileStorm merges with or is acquired by another company or companies, all of its client accounts shall be automatically transferred to said new company or companies.

6.6 Non-Solicitation

During the term of this Agreement and for a period of two (2) years thereafter, neither you nor any employee, officer, director, representative, lawyer, agent, or affiliate of yours will solicit, encourage, or cause others to solicit or encourage any employees of mobileStorm to terminate their employment with Company.

This agreement was last updated on 03/25/2008

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