TERMS OF USE FOR TEXT SMS MARKETING, INC.
ALL IN ONE MARKETING AND MASS COMMUNICATION SOFTWARE

This Terms of Use [hereinafter referred to as the “Agreement”] contains the terms and conditions that apply to Client’s use of the Text SMS Marketing Software ALL IN ONE MARKETING AND MASS COMMUNICATION SOFTWARE internet marketing and software package [hereinafter referred to as “Services”].  As used in this Agreement the term “Provider” refers to Text SMS Marketing Incorporated (a lawfully licensed reseller of the ASP application Text SMS Software ALL IN ONE MARKETING AND MASS COMMUNICATION SOFTWARE), and the term “Client” refers to the person and/or entity who creates one or more cell phone number lists [hereinafter referred to as the “Lists”] and corresponding accounts using the Services, and performs the administrative functions of the Lists.  The Services are offered to Client conditioned on Client’s acceptance without modification of this Agreement and Provider’s Acceptable Use Policy (hereinafter referred to as “AUP”).  Client’s use of the Services constitutes Client’s acceptance to this Agreement and Provider’s AUP.

Client’s Core Representations & Warranties:

Client represents and warrants the following:

• Client has the full power, authority and right to enter into this Agreement and affirms that Client is at least 18 years of age;
• Client’s execution, delivery and performance of this Agreement will not violate any applicable law, statute or governmental regulation; and
• Client is responsible for the security of the data, software and/or applications received from Provider.  Client’s responsibility also includes the security of the data, software and/or applications provided to any third party SMS service providers that Client employs and/or uses.

Client has read and agrees to be bound by this entire Agreement and Provider’s AUP.

COSTS; TERM OF AGREEMENT; PAYMENT; DEFAULT OR  BREACH:

Costs of Services:

• Client agrees to pay Provider a set monthly fee for the right to broadcast up to a specific maximum number of SMS messages per month using the Services.  The maximum number of SMS messages Client is allowed to send as well as the monthly cost for the Services was disclosed to Client on the pricing page of Provider’s website, and then selected by Client when Client registered for the Services.  Client’s monthly fee will be automatically charged to Client’s account and paid in advance until this Agreement is terminated and Client’s account is canceled, regardless of List or account activity and/or use of the Services.  Client understands that an electronic record of Client’s signup, including Client’s acknowledgement of having read and agreed to be bound by this Agreement, was generated at the time of Client’s signup.

• Client acknowledges and agrees that if Client exceeds the maximum number of SMS messages Client is allowed per month, then Client shall pay Provider an additional $0.15 USD for each SMS message sent above the maximum number allowed, e.g., if Client’s maximum number of SMS messages is 1,000,000 and Client broadcasts 1,000,500, then Client will pay an additional $75.00 USD for the 500 additional SMS messages).  Alternatively, Client may choose to simply upgrade the Services to the next message volume tier that covers the excess messages.

• In addition to the monthly fee for the Services, Client also agrees to pay a one-time initial set up fee of $100.00 USD, e.g., if Client’s monthly use fee is $200.00 USD, Client’s first payment will be $300.00 USD.)

• Client hereby authorizes Provider to charge Client’s credit card or debit Client’s bank account in advance for the Services, including all fees, costs and/or charges provided for in this Agreement.

Term of this Agreement
:

The initial term of this Agreement shall be for a minimum of two (2) months, unless otherwise provided herein.  The term shall begin upon Client’s payment of the setup fee & first month’s usage fee and will end when terminated by either Client or Provider as described herein, under the heading “Termination of this Agreement”, below.  Each month’s usage period shall run from the anniversary date of your signup, until 11:59:59 P.M. CT of the day prior to the anniversary date of Client’s signup in the next month, i.e., if Client originally signed up on the 15th day of the month, then each month’s usage period will run from the 15th day of the month until the 14th day of the next month at 11:59:59 P.M. CT., e.g., if Client opens an account on October 15th, then Client’s first month’s usage period shall expire on November 14th at 11:59:59 P.M. CT.)  If Client’s anniversary date does not occur in a particular month, then that month’s usage period shall end 11:59:59 P.M. CT of the last day of the month and the next month’s usage period shall begin the next day, e.g., if Client’s anniversary date is the 31st day of the month, then Client’s usage period starting on January 31st would end on February 28th, in normal years, and on February 29th, in leap year.  The next usage period would then start on March 1st and end on March 30th at 11:59:59 P.M. CT.)  Client also agrees that any contract signed prior to the date on this contract for Provider’s services is now null and void.

Payment, Financial Agreement, Refund Policy

Client acknowledges and agrees that all financial information given to Provider (e.g., credit card, electronic debit information, etc.) is true and lawfully theirs and that Provider is reasonably relying on said representations in entering into this Agreement and providing its products and/or services.  Client acknowledges that all payments are due in advance of any marketing campaign or the setup of a software account and that Provider maintains a “NO REFUND POLICY” for any marketing campaigns, once the software account has been set up by Provider.  Client expressly acknowledges that Provider performs a substantial and significant portion of the work required of it to be performed, prior to the actual broadcast, and that Client is not entitled to a refund if Client elects not to proceed with the broadcast.  In addition, once a software account is set up, there will be no refund.  All SMS marketing software accounts will be charged on the first day of sign up and subsequently for each individual month for the full term of the contract.  The monthly renewal or usage fee will be automatically charged to Client’s account and paid by Client, in advance, until this Agreement is terminated and Client’s account is canceled, regardless of List or account activity and/or use of the Services.  All account cancellations and/or terminations must be made in writing, as set forth below in Section 5.  Client understands that Provider prides itself on protecting consumer’s financial privacy and safety.  Provider will prosecute to the full extent of the law for any fraudulent financial information given to it.

Customer Chargebacks, Payment Reversals, Payment Dishonors, Theft, Credit Reporting Agencies, and Collection Agency: 

Provider regards fraud and theft of services as very serious crimes.  Because of the nature of online services, any chargeback, reversal, or any attempt to stop a payment initiated by Client after using Provider’s services will be considered theft and treated as fraud.  Client agrees that all payments initiated by Client in which charges are made to Client’s credit card, debit card, or bank account are final and irreversible.  Client agrees to not file a credit card or debit card chargeback against Provider with regard to any purchase made by Client.  In the event Client breaches this Agreement by filing a chargeback, upon a resolution in Provider’s favor of such chargeback by the credit card issuing bank, the credit card processor, or by VISA, MASTERCARD, AMERICAN EXPRESS, DISCOVER, or any other credit card service, Client agrees to reimburse Provider for any and all costs incurred in connection with such chargeback, including without limitation, Provider’s actual costs paid to the credit card processor or banks, as well as any other third-parties.  Client agrees to authorize Provider to charge these amounts to Client’s credit card, debit card, or bank account.  In the event Client’s chargeback is upheld by the credit card issuing bank, the credit card processor, or by VISA, MASTERCARD, AMERICAN EXPRESS, DISCOVER, or any other credit card service, Client agrees that such resolution is not dispositive on the issue of the amounts owed by Client to Provider.  If such chargeback is upheld, Client agrees to pay all of the same costs, in addition to the original purchase price, and that Provider will use the dispute resolution procedures below to collect such amounts.

Client agrees that any amounts owed by Client to Provider for 30 calendar days or more after charges are successfully reversed due to a chargeback may be reported to credit reporting agencies as a delinquent collection amount and may be referred to a third-party debt collection agency for full pursuit of collection without further notice.  The costs of such collection and any related costs, including without limitation, collection agency fees, attorneys’ fees, court costs, and the like, shall be added to the amount owed by Client to Provider, and shall bear interest at the rate of 9% per annum until satisfied.  The credit reporting agencies will report against the credit of the cardholder.  Once the account is turned over to the collection agency and the local authorities, the matter is out of Provider’s hands.  This will result in cardholder’s credit history being marked as a “Collection Account” by the collection agency.  CLIENT UNDERSTANDS THAT PROVIDER’S COLLECTION EFFORTS MAY ADVERSELY AFFECT CLIENT’S CREDIT RATING.

Furthermore, Client agrees that in the event Client files a chargeback against provider regarding any purchase, Provider reserves the right to report the incident for inclusion in any chargeback abuser databases of Provider’s choosing and in Provider’s sole discretion.  The information reported will include Client’s name, email address, order date, order amount, IP address, full address, and phone number.  CLIENT UNDERSTANDS THAT BEING LISTED ON SUCH DATABASES MAY MAKE IT MORE DIFFICULT FOR CLIENT TO SUE ANY OF CLIENT’S CREDIT CARD(S) COMPANIES ON FUTURE PURCHASES WITH PROVIDER OR OTHER ONLINE MERCHANTS.

To avoid any of the foregoing in this section, Provider encourages Client to contact Provider first for any problems with Client’s purchase.  Provider has an excellent track record in resolving any problems in order to ensure that Provider’s clients are fully satisfied with their purchase(s).

Default or Breach by Client; Fees & Costs:

If Client defaults on or otherwise breaches any of the terms, conditions, covenants and/or warranties contained in this Agreement, Client agrees to compensate Provider for any and all damages arising thereof, including but not limited to actual damages, consequential  damages and economic losses.  Furthermore, Client agrees Provider shall be entitled to recover all reasonable fees, expenses and/or costs (including attorney’s fees, in-house counsel costs, court costs, expenses and other costs) incurred in attempting to collect payment from Client or in enforcing this Agreement against Client, to the extent not prohibited by applicable law.

ADDITIONAL TERMS AND CONDITIONS:

Assignment:

Client shall not sell, transfer, or assign this Agreement or the rights or obligations hereunder, other than to a parent or wholly-owned subsidiary, without the prior written consent of Provider.  Notwithstanding the foregoing, without securing such prior consent, either party shall have the right to assign or transfer the Agreement and its obligations hereunder to any successor-in-interest of such party by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of substantially all of the business and assets of the assigning party of more than seventy-five percent (75%) of the outstanding stock of the assigning party.  Subject to the foregoing, the Agreement will be fully binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns.

Broadcast Servers; Software and Technical Support:

Provider reserves the right to take down and/or remove from its network any Client that threatens the stability of other hosted clients on a server due to illegal, immoral or unethical marketing practices or unapproved content, in Provider’s sole discretion.  Provider may provide training assistance at no charge; however any technical support beyond training is billed at the hourly rate of $100.00 USD per hour, in quarter of an hour increments.  All marketing campaigns must be in full compliance with all state and federal laws.  

Disclosure of Information
:

Provider and Client [hereinafter referred to jointly as “the parties” or individually as “party”] shall not disclose personally identifiable information, private communications (i.e., content transmitted on private, non-public lists) of the other party, to third parties, without that party’s permission, unless it believe such disclosure is reasonably necessary to: (1) comply with the law or legal process; (2) protect or defend its rights or property or that of others; (3) enforce this Agreement; or (4) respond to claims that the contents of any communications violate the rights of others.

Client understands and agrees that Provider has disclosed or may disclose information that has commercial and other value in Provider’s business and is confidential in nature including, but not limited to, email addresses, cellular telephone numbers, formulas, computer programs, databases, mask works, technical drawings, algorithms, trade secrets, patents, patent applications, technology, circuits, layouts, names and expertise of employees and consultants, know-how, designs, interfaces, materials, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer, supplier and product development plans, forecasts, strategies and information, which to the extent previously, presently, or subsequently disclosed to Client is hereinafter referred to as “Proprietary Information” of Provider. 

In consideration of the parties' discussions and any access Client may have to Proprietary Information of the Provider, Client hereby agrees as follows: 1) Client agrees (i) to hold Provider’s Proprietary Information in strict confidence as a fiduciary and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Client employs with respect to its most confidential materials), (ii) not to divulge any such Proprietary Information or any information derived there from to any third person, (iii) not to make any use whatsoever at any time of such Proprietary Information except for the sole limited business purposes of evaluating the Proprietary Information internally to determine whether to enter into the currently contemplated agreement with the Provider, (iv) not to remove or export from the United States or re-export any such Proprietary Information or any direct product thereof to Afghanistan, The Peoples’ Republic of China or any Group Q, S, W, Y or Z country (as specified in Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations, or a successor thereto) or otherwise except in compliance with and with all licenses and approvals required under applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce, and (v) not to copy or reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of any Proprietary Information.  Any employee given access to any such Proprietary Information must have a legitimate "need to know" and shall be similarly bound in writing; 2) Without granting any right or license, the Provider agrees that the foregoing clauses (i), (ii), (iii) and (v) shall not apply with respect to any information that the Client can document (i) is (through no improper action or inaction by the Client or any affiliate, agent, consultant or employee) generally known to the public, or (ii) was rightfully in its possession or rightfully known by it prior to receipt from the Provider, or (iii) was rightfully disclosed to it by a third party without restriction.  The Client may make disclosures required by court order provided the Client uses its best efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Provider to participate in the proceeding; and 3) Immediately upon a request by the Provider at any time (which will be effective if actually received or three days after mailed first class postage prepaid to the Receiving Party's address herein), the Client will turn over to the Provider all Proprietary Information of the Provider and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof.  The Client understands that nothing herein (i) requires the disclosure of any Proprietary Information of the Provider, which shall be disclosed if at all solely at the option of the Provider, or (ii) requires the Provider to proceed with any proposed transaction or relationship in connection with which Proprietary Information may be disclosed.

SMS Marketing Campaigns:

Client acknowledges and agrees that there are no guarantees of success for any SMS marketing campaigns.  Like any form of traditional advertisement, SMS marketing has its successes and failures due to marketing conditions and other factors.  CLIENT AGREES THAT PROVIDER SHALL NOT BE LIABLE FOR ANY UNSUCCESSFUL SMS MARKETING CAMPAIGNS.  FURTHERMORE, CLIENT AGREES THAT PROVIDER DOES NOT GUARANTEE ANY SMS MARKETING SUCCESS, AND CLIENT SHALL NOT BE ENTITLED TO A REFUND OR ANY OTHER DAMAGES IF CLIENT’S EMAIL MARKETING CAMPAIGN(S) FAILS TO GENERATE THE RESULTS CLIENT DESIRES OR ANY RESULTS THEREOF.

Text SMS Marketing Communication:

Client agrees that Provider has the right to communicate with Client via email, receipt of which by Client is considered essential to Provider’s provision of the Services.  Client may unsubscribe from such communication at any time.

Force Majeure
:

Neither party shall be liable for, or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to your payment obligations to us) as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence; provided that the non-performing party gives reasonably prompt notice under the circumstances of such condition(s) to the other party.

Limitations on the Use of Products, Software and/or Services
:

Client agrees that it will not use Provider’s products or services to transmit, disseminate or upload any: (1) unlawful, harassing, libelous, tortuous, abusive, threatening, or obscene communications of any kind; (2) materials that infringe or violate any third party's copyright, trademark, trade secret, privacy or other proprietary or property right; (3) materials that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation; (4) objectionable materials, including but not limited to, content that contains blatant bigotry, racism, or hatred or that promotes illegal activities or physical harm against anyone; (5) spam, or any other type of unsolicited SMS messages to people or entities who have not agreed to be part of such broadcast; (6) any viruses or other harmful, disruptive or destructive files; and (7) in violation of this Agreement or Provider’s AUP.  Adult or pornographic content is absolutely prohibited for SMS marketing.

List Management:

Provider shall arrange for the maintenance of an opt-out option for Client’s campaign(s).  Client understands all opt-out requests from consumers for all campaigns by Client will be honored and additional messages to these mobile numbers, pursuant to the United States CAN-SPAM Act and carrier/MMA Guidelines, shall not be sent.  Client agrees that Provider may charge, in Provider’s sole discretion, and Client shall pay $300.00 for each and every SMS message Client sends: (1) in violation of the CAN-SPAM Act or carrier/MMA Guidelines; (3) in violation of Provider’s Acceptable Use Policy governing SMS marketing hereinafter referred to as “AUP”]; (4) in violation of Provider’s Terms of Use for SMS marketing [hereinafter referred to as “TU”]; (5) in violation of any laws, statutes or regulations which may apply to the message; and/or (6) otherwise in violation of this contract. 

Proprietary Rights:

As provided above (i.e., in the subsection labeled “Disclosure of Information”), above, Provider will not sell, trade, rent, lend or disseminate email addresses and/or cell phone numbers that Client supplies for any purpose.  However, it is understood that if some of the addresses and/or cell phone numbers Client supplies are in the Provider’s database(s) and/or list(s) of recipients that Provider otherwise has or owns, that Provider has proprietary rights to such addresses and/or cell phone numbers.

Right to Refuse:

Provider reserves the right to refuse any or all services based on its company policy of respectable marketing practices at anytime.  Provider holds strict rules and regulations for its SMS marketing and hosting services.  Provider will not broadcast SMS messages that contain illegal sexual content, illegal pirated software, hate, discrimination, or that are in violation of any known federal, state or international law.  In addition, Provider reserves the right to determine what is in the best public interest and may elect not to broadcast any message it finds not to be in the best public interest.

 NO OTHER REPRESENTATIONS AND WARRANTIES:

CLIENT UNDERSTANDS AND AGREES THAT NO ADVICE, INFORMATION OR OPINIONS, WHETHER WRITTEN OR ORAL, OBTAINED BY CLIENT FROM PROVIDER SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.  CLIENT UNDERSTANDS AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF CONDUCT, OR COURSE OF PERFORMANCE.  CLIENT UNDERSTANDS AND AGREES THAT ALL PRODUCTS AND/OR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT PROVIDER DOES NOT MAKE ANY WARRANTIES THAT PROVIDER’S PRODUCTS OR SERVICES WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE.  CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED OR STORED THROUGH THE USE OF PROVIDER’S PRODUCTS AND SERVICES IS AT CLIENT’S OWN DISCRETION, CLIENT’S OWN RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS.  CLIENT UNDERSTANDS AND AGREES THAT THE USE OF ANY OF PROVIDER’S PRODUCTS AND/OR SERVICES IS AT CLIENT’S SOLE RISK.

WITHOUT LIMITING THE FOREGOING, PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTIES REGARDING (A) THE NUMBER OF PERSONS WHO VIEW ANY SMS BROADCAST PURSUANT TO THIS AGREEMENT, AND (B) ANY BENEFIT CLIENT MIGHT OBTAIN FROM HAVING ITS MESSAGES, PRODUCTS AND/OR SERVICES ADVERTISED PURSUANT TO THIS AGREEMENT.

Waiver:

The failure of either Provider or Client to insist upon or enforce performance by the other party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.


Modifications of Terms and Conditions:

Provider reserves the right to modify any of the terms and conditions contained in this Agreement, at any time and in Provider’s sole discretion, by posting a new agreement on Provider’s website located at officialemailmarketing.com or any such successor Website.  Client is responsible for regularly reviewing these terms and conditions.  Client’s continued use of the Services after any modification shall constitute Client’s consent to such modification.  Provider does not and will not assume any obligation to notify Client of any modification to the Agreement.  If Client finds any modification to be unacceptable, Client’s only recourse is to terminate this Agreement and cease using the Services.

Governing Law; Jurisdiction and Venue, Service of Process
:

This Agreement shall be governed by the laws of the State of Illinois without respect to choice of law rules and the parties hereby consent to the exclusive jurisdiction and venue in the state courts of Kane County, Illinois and/or the federal court for the Northern District of Illinois, for such purpose.  Client waives the personal service of any process upon them and agrees that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement.

Conflict of Terms
:

If Client has entered into a separate written “TEXT SMS MARKETING AND SOFTWARE CONTRACT” [hereinafter referred to as “Contract”] for the Services, which incorporates this Agreement, and there exists an express conflict between the terms of said Contract and this Agreement, then in regard to the conflicting terms only, the terms set forth in said Contract prevail and shall be binding upon the parties; provided, however, that if the conflicting terms may be construed in a manner in which they both may apply or that the terms and conditions herein may supplement the terms of the Contract, then such a construction shall be used.

Construction; Severability
:

Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary, allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder.  Furthermore, all provisions are inserted conditionally on their being valid in law.  In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.

Headings
:

The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement.

Survival
:

Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening, including, but not limited to, the subparagraph captioned “Entire Agreement; Acceptance”, below.

Indemnification and Liability
:

Client agrees and acknowledges that it shall hold Provider (including, but not limited to, all its employees, officers, shareholders, directors, agents, attorneys, vendors, affiliates, subcontractors, its parents, subsidiaries, suppliers or contract employees) harmless from any liability, loss, claims, and/or expenses related to any or all SMS marketing campaigns or hosting services.

 Remedies:

Except as otherwise specified, the rights and remedies granted to a party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity.

LIMITATIONS OF LIABILITY:

EXCLUDING THE CLIENT’S OBLIGATIONS UNDER THE ABOVE SUBSECTION ENTITLED “INDEMNIFICATION AND LIABLITY,” UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL PROVIDER (INCLUDING BUT NOT LIMITED TO ALL IT EMPLOYEES, OFFICERS, SHAREHOLDERS, DIRECTORS, AGENTS, ATTORNEYS, VENDORS, AFFILIATES, SUBCONTRACTORS, ITS PARENTS, SUBSIDIARIES, SUPPLIERS OR CONTRACT EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR INABILITY TO USE PROVIDER’S SERVICES AND/OR PRODUCTS OR FOR THE PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH THE PROVIDER’S PRODUCTS OR SERVICES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, OR STORED OR NOT STORED, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  CLIENT AGREES THAT PROVIDER SHALL NOT BE LIABLE FOR ANY FAILURE TO DELIVER, HOLD OR STORE DATA TRANSMITED, STORED OR USED BY PROVIDER’S PRODUCTS OR SERVICES.  CLIENT AGREES THAT CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY DISSATISFACTION WITH PROVIDER’S PRODUCTS OR SERVICES IS TO DISCONTINUE THE USE OF PROVIDER’S PRODUCTS AND SERVICES.  WITHOUT LIMITING ANY OF THE FOREGOING, CLIENT AGREES THAT PROVIDER IS NOT RESPONSIBLE FOR ANY OF CLIENT’S MATERIALS (INCLUDING BUT NOT LIMITED TO CLIENT’S MESSAGES, DATA OR OTHER INFORMATION) RESIDING IN PROVIDER’S NETWORK HARDWARE OR SYSTEMS.  CLIENT IS RESPONSIBLE FOR BACKING-UP CLIENT’S OWN MATERIALS, REGARDLESS OF WHETHER SAID MATERIALS ARE PRODUCED THROUGH THE USE OF PROVIDER’S PRODUCTS AND/OR SERVICES.  CLIENT AGREES THAT IT IS CLIENT’S SOLE AND EXCLUSIVE RESPONSIBILITY TO TAKE THE NECESSARY STEPS TO ENSURE CLIENT’S MATERIALS AND/OR PRIMARY MEANS OF BUSINESS IS MAINTAINED.  IN NO EVENT SHALL PROVIDER EVER BE LIABLE FOR MORE THAN THE ACTUAL DOLLAR AMOUNT CLIENT PAID TO PROVIDER FOR THE USE OF PROVIDER’S PRODUCTS AND/OR SERVICES.  ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE ASSERTED WITHIN ONE (1) YEAR OF THE DATE UPON WHICH SUCH CAUSE OF ACTION ACCRUED, OR WITHIN THREE (3) MONTHS OF THE DATE UPON WHICH THE COMPLAINING PARTY DISCOVERED OR SHOULD HAVE REASONABLY DISCOVERED THE EXISTENCE OF SUCH CAUSE OF ACTION, WHICHEVER IS LATER.

Termination of This Agreement:

Provider may terminate this Agreement at any time, with or without cause, and with or without notice.  IN THE EVENT CLIENT WOULD LIKE TO TERMINATE THIS AGREEMENT, CLIENT MAY DO SO ONLY BY SENDING SUCH NOTICE OF TERMINATION VIA FACSIMILE TO (250) 764-8642.  CLIENT MAY NOT TERMINATE THIS AGREEMENT IN ANY OTHER MANNER, INCLUDING, BUT NOT LIMITED TO, ELECTRONIC, VERBAL, TELEPHONIC, OR OTHER WRITTEN MEANS.  Client’s termination of this Agreement will be effective upon the last day of the month in which Provider receives such notification and must be received by Provider at least five (5) days prior to your next month’s renewal date.  Client agrees that if Client’s account is terminated prior to the expiration of the full term, Client will not be entitled to any refund for the unused portion of the term.

Entire Agreement; Acceptance:

This Agreement, along with any documents expressly referenced herein, constitutes the entire and only agreement between the parties and supersedes any and all prior agreements, whether written, oral, express, or implied, of Provider and Client with respect to the transaction(s) set forth herein.  Neither party will be bound by, and each party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of the Agreement (whether or not it would materially alter the Agreement) and which is proffered by such party in any correspondence or other document, unless the party to be bound specifically agrees to such provision(s) in writing.  The services and/or products referenced in this Agreement are offered to you conditioned upon the acceptance of this Agreement and your use of the services, software and/or other products constitutes your acceptance of this Agreement.

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