Corporate Identification and Trademarks

ytext.me and or any and all other marks appearing on this Site are trademarks of ytext.me in the United States and other jurisdictions (“Trademarks”). You may not use, copy, reproduce, republish, upload, post, transmit distribute or modify the Trademarks in any way, including in advertising or publicity pertaining to distribution of materials on this Site, without ytext.me prior written consent. The use of Trademarks on any other website or network computer environment is prohibited. ytext.me prohibits the use of Trademarks as a “hot” link on, or to, any other website unless establishment of such a link is pre-approved by ytext.me in writing.

User Conduct

You are solely responsible for the content and context of any materials you post or submit through the Site. You warrant and agree that while using the Site, you shall not upload, post, transmit, distribute or otherwise publish through the Site any materials which: (a) are unlawful, threatening, harassing or profane; (b) restrict or inhibit any other user from using or enjoying the Site; (c) constitute or encourage conduct that would constitute a criminal offense or give rise to civil liability; or (d) contain a virus or other harmful component, advertising of any kind, or false or misleading indications or origin or statements of fact.

Use Restriction

You may only use this Site to make legitimate requests to purchase the products or services offered (each, a “Request”), and shall not use this Site to make any speculative, false or fraudulent Requests. You may not use robots or other automated means to access this Site, unless specifically permitted by ytext.me. You represent that you are of sufficient legal age to create binding legal obligations for any liability you may incur as a result of your use of this Site.

You agree to promptly update your membership information (if applicable) in order to keep it current, complete and accurate.

It is a violation of law to place a Request in a false name or with an invalid credit card. Please be aware that even if you do not give us your real name, your Web browser transmits a unique Internet address to us that can be used by law enforcement officials to identify you. Fraudulent users may be prosecuted to the fullest extent of the law.

Permission is granted to electronically copy and print in hard-copy portions of this Site for the sole purpose of using this Site as a shopping resource. Any other use of materials or Content on this Site, including reproduction for a purpose other than that noted above without ytext.me prior written consent is prohibited.

Password

You are solely responsible for protecting the confidentiality of your password and may not disclose your password to any other person. In the event that an unauthorized user gains access to the password-protected area of the Site as a result of your acts or omissions, you agree that you shall be liable for any such unauthorized use.

Privacy

You confirm that you have read, understood and agree to the ytext.me Privacy Policy, the terms of which are incorporated herein, and agree that the terms of such policy are reasonable and satisfactory to you. You consent to the use of your personal information by ytext.me, its third-party providers, and/or distributors in accordance with the terms of and for the purposes set forth in the ytext.me Privacy Policy. If you are not a resident of the United States, please note that the personal information you submit to the Site will be transferred to the United States and processed by Message-Media.com in order to provide this Site and its services to you, or for such other purposes (as set forth in the Privacy Policy).

DISCLAIMER OF WARRANTIES

THE SITE, INCLUDING ALL CONTENT, FUNCTIONS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, IS PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. BIG TICKET, LLC DOES NOT WARRANT THAT THE SITE OR THE FUNCTIONS, FEATURES OR CONTENT CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CERTAIN USERS.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BIG TICKET, LLC – INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, ASSIGNS OR AFFILIATES (COLLECTIVELY, THE “COVERED PARTIES”) – BE LIABLE FOR ANY INJURY, DEATH, LOSS, CLAIM, DAMAGE, ACT OF GOD, ACCIDENT, DELAY, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH ANY USE OF THIS SITE OR WITH ANY DELAY OR INABILITY TO USE THIS SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH THIS SITE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE COVERED PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE) ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SITE EXCEED THE AMOUNT PAID BY YOU TO BIG TICKET, LLC OR MESSAGE MEDIA, INC. FOR THE REQUEST.

Indemnification

You agree to defend, indemnify and hold harmless the Covered Parties from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to (A) your use of the Site, (B) your breach of the Terms and Conditions, (C) your dispute with another user, (D) the unauthorized access to any password-protected are of the Site using your password, and (E) any image or content being reproduced as part of your order. If using the Site on behalf of a Third Party (as described below), you agree to defend, indemnify and hold harmless the Covered Parties as described on behalf of yourself and any Third Party.

Third Parties

If you use this Site to submit Requests for or on behalf of a third party (“Third Party”), you are responsible for any error in the accuracy of information provided in connection with such use as well as for any Request submitted, including related fees, charges and performance obligations. In addition, you must inform the Third Party of all Terms and Conditions applicable to all products or services acquired through this Site, including all rules and restrictions applicable thereto.

User Comments, Feedback and Other Submissions

All comments, feedback, suggestions and ideas disclosed, submitted or offered to a Covered Party in connection with your use of this Site (collectively, “Comments”), shall become and remain the exclusive property of ytext.me. The Comments may be used by a Covered Party in any medium and for any purpose worldwide, without obtaining your specific consent and you relinquish all rights to such Comments. No Covered Party is under any obligation to maintain your Comments (and the use of your first name and first initial of your last name with any comments) in confidence, to pay to you any compensation for any Comments submitted or to respond to any of your Comments. You agree you will be solely responsible for the content of any Comments you make.

Termination

This agreement constitutes a binding agreement between you and ytext.me until terminated by you or ytext.me, which Message-Media.com may do at any time, without notice, in its sole discretion. If you become dissatisfied with the Site, your only recourse is to immediately discontinue use of the Site.

Changes to Terms and Conditions

We may, in our sole discretion, change, add or remove any portion of the Terms and Conditions at any time by posting new Terms and Conditions on the Site. Your continue use of the Site after such changes are posted will constitute your agreement to such changes.

Changes to the Site

We reserve the right, for any reason, in our sole discretion, to terminate, suspend or change any aspect of the Site including but not limited to content, features or hours of availability. We may impose limits on certain features of the Site or restrict your access to part or all of the Site without notice or penalty.

Miscellaneous

The captions in these Terms and Conditions are only for convenience and do not, in any way, limit or otherwise define the terms and provisions of these Terms and Conditions. None of the Covered Parties are responsible for any errors or delays in responding to a Request caused by an incorrect email address, short code or mobile telephone number provided by you or other technical problems beyond their control. If any provision of the Terms and Conditions is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision shall be enforced to the maximum extent possible so as to the effect or the intent of the Terms and Conditions, and the remainder of the Terms and Conditions shall continue in full force and effect. The failure by either you or ytext.me to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. You agree that any cause of action arising out of or related to the Site or the Terms and Conditions must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. All provisions in the Terms of Use regarding representations and warranties, indemnification, disclaimers, and limitation of liability shall survive the termination of the Terms and Conditions.

Entire Agreement

These Terms and Conditions, together with the Privacy Policy and those terms and conditions incorporated herein or referred to herein, constitute the entire agreement (collectively, the “Agreement”) between you and each Covered Party relating to the subject matter hereof, and supersedes any prior understandings or agreements (whether oral or written) regarding the subject matter, and may not be amended or modified except in writing or by making such amendments or modifications available on this Site.

Governing Law

The internal laws of the State of New Jersey shall govern the performance of these Terms and Conditions, without regard to such state’s conflicts of laws principles. You consent to the exclusive jurisdiction and venue of the courts located in Toms River, New Jersey for all disputes arising out of, or relating to, the Terms and Conditions and use of this Site.

Notices

Except as explicitly stated otherwise, any notices shall be given by email to ytext.me via this form or to you at the email address you provide to ytext.me. Notice shall be deemed given 24 hours after the email is sent, unless the sending party is notified that the email address is invalid.

How do I contact ytext.me?

Our postal address is:
ytext.me
Big Ticket, LLC
PO BOX 71
Beachwood, New Jersey 08722

We can be reached via this page or toll free at 1-855-983-9863.

ORDER TERMS AND CONDITIONS

Payment

All prices and amounts shown on this Site are in U.S. Dollars (USD), unless otherwise noted. If a User submits a request on the Site to purchase printing products, mailing services, design services or other services, the User agrees that all charges, taxes and shipping/handling fees will automatically be charged to the credit card or paid by User with an approved payment method. We require each order to be fully paid, including shipping and handling fees, if applicable, before we complete an order. We will not start working on an order until we receive the full payment.

Return Policy

At ytext.me, we strive to provide our clients with the best possible experience. If you are not 100% satisfied with your order for any reason, please contact our customer service department. Our representative will document your complaint for your reference.

All policies are subject to change without prior notification. Determination of defect is at the discretion of management. In most cases, clients will be requested to document the product defect.

No Liability for Errors

ytext.me is not liable for errors in a final product caused by any of the following reasons:

Misspelling, Graphics, Bleeds, Grammar, Damage Fonts, Punctuation, Wrong cuts, Incorrect or Missing Folds, Die Lines, Crop Marks, Transparency, Overprint, Cracks on Folds, Finished Product Size. ytext.me does not make any changes on customer files.

Artwork or Text Files

Under these Terms and Conditions, you agree that you will NOT upload any text or artwork files consisting of the following material: offensive, indecent or improper material, any material that could give rise to any civil or criminal liability under applicable law; and any material that could infringe rights of privacy, publicity, copyrights or other intellectual property rights without the permission of the owner of these rights and the persons who are shown in the material if applicable. We will refuse an order, which in our opinion may be illegal in nature or an infringement on the rights of any third party. You accept full legal liability for the content of material processed and sent on your behalf and under your instructions. We reserve the right to refuse an order without disclosing a reason.

Miscellaneous

All complaints must be registered within 24 hours of receipt of your initial order. All materials we create in producing your product are the property of ytext.me

Extended Message Media Terms

1. Overview of Key Terms in this Agreement
1.1. This is not a long-term contract. The Customer is not locked into a minimum term (refer to clause 11.1).
1.2. MessageMedia provides an up time service level commitment for Standard Rate SMS Services (refer to MessageMedia’s Service Level Agreement).
1.3. The Customer is entitled to service level credits should MessageMedia fail to meet its uptime service level commitment (refer to clause 4.3).
1.4. The Customer agrees to comply with all relevant legislation and guidelines, including not sending SPAM or Restricted Content (refer to clause 6).
1.5. If the Customer chooses not to pay via credit card direct debit they will incur a $5 surcharge each month (refer to clause 4.2).
1.6. All Customer details and Message content are held in confidence by MessageMedia. However MessageMedia may disclose the existence of this agreement for marketing purposes (refer to clause 5).

2. Definitions
2.1. Account means the entirety of the Customer’s rights and obligations under this Agreement, as well as any usernames, passwords, software, access to MessageMedia services and infrastructure, Dedicated Numbers, Platinum Program Membership and SMS Messaging Services provided by MessageMedia.
2.2. Account Activation and License Fee means the fee set out in Schedule 1 and charged by MessageMedia to the Customer to set up each SMS Messaging Service and allow the Customer a non-exclusive license to use the SMS Messaging Service as set forth in this Agreement.
2.3. Application Form means the application form attached to the front of this Agreement for use of the Standard Messaging Service.
2.4. Business Day means a day upon which trading banks are open for business in the USA.
2.5. Carrier means US and international telecommunications carriers and includes in Australia Telstra, Optus, Virgin, Vodafone or Three, and various other telecommunications carriers throughout the world.
2.6. Confidential Information means, in relation to each party (for the purposes of this definition, the Discloser):
(a) all information relating to or used by the Discloser or its affiliates, including know-how, trade secrets, ideas, marketing strategies and operational information;
(b) all information concerning the business affairs (including products, services, customers and suppliers) or property of the Discloser or its affiliates, including any business, property or transaction in which the Discloser or its affiliates may be or may have been concerned or interested;
(c) any other information disclosed by or on behalf of the Discloser 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;
(d) the terms & the actual existence of this Agreement; and
Including any such information made available to the Discloser or its affiliates by any third party, but excluding any information that:
(i) is publicly known or becomes publicly known other than by breach of this Agreement by or any other obligation of confidentiality;
(ii) is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or
(iii) is developed independently by the other party without reliance on any of the Discloser’s Confidential Information.
2.7. Content means the content or content services to be made available by the Customer for purchase and/or supply to End Users, as described in the Application Form.
2.8. Custom Development Fee means the fees set out in Schedule 1 and charged by MessageMedia to the Customer for any development work performed by MessageMedia on behalf of the Customer in order to further enhance the Customer’s SMS Messaging Service.
2.9. Customer Facilities means material owned or licensed by the Customer (including its IT systems, documentation, templates and data, and web site) which is used by either party to this Agreement in the performance of their obligations under this Agreement and any modification to same.
2.10. Dedicated Number means a Standard Rate digital mobile service provided by MessageMedia during the Term to the Customer under this Agreement for Customer’s exclusive use as part of the Customer’s SMS Messaging Service.
2.11. End User means the party who receives Messages sent to their mobile handset or the Customer’s application, which receives Messages.
2.12. Fees means collectively the Account Activation and License Fee, Monthly Access Fee, Monthly License Fee, Custom Development Fee, and Platinum Program Fee.
2.13. Intellectual Property Rights means all rights conferred under statute, common law and equity in, and in relation to, inventions, designs, trademarks, trade names, trade secrets, logos, and get up, circuit layouts, semi-conductor, patents and copyright and any other intellectual property rights including moral rights, confidential or other proprietary rights, and other rights to registration of such rights.
2.14. Message means text or binary content generated from either a mobile telephone or Customer application such as a web site, call/contact centre or PC terminal, and received by the mobile telephone or customer application.
2.15. Messaging Fee means the fee charged by MessageMedia to the Customer on a monthly basis per Message sent through the SMS Messaging Service.
2.16. MessageMedia Facilities means MessageMedia’s infrastructure, gateway and technology which the Customer will connect to in order to operate the SMS Messaging Service.
2.17. Monthly Access Fee means the fee charged by MessageMedia to the Customer on a monthly basis for access to the SMS Messaging Service.
2.18. Monthly License Fee means the fee charged by MessageMedia to the Customer on a monthly basis for Customer’s exclusive use of a Dedicated Number.
2.19. Non-Public Personal Information means personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, passport numbers, and any other information defined as non-public in any applicable local, State, Federal or international law, statute or regulation.
2.20. Opt Out means the ability for an End User to stop receiving any further Messages from the Customer.
2.21. Platinum Program Fee means the fee charged by MessageMedia to the Customer for access to MessageMedia’s Platinum Program. For further details please consult MessageMedia’s Service Level Agreement.
2.22. Service Level means the service levels set out in the Service Level Agreement provided to the Customer.
2.23. SMS Messaging Service means the service provided by MessageMedia which enables the Customer to send and receive Standard Rate Messages through MessageMedia’s SMS gateway, for which the Customer is billed on a per Message sent basis.
2.24. Standard Rate Messages means Messages that are billed by Carriers at standard SMS rates, and in particular are not premium rate SMS Messages which are billed by the Carriers at a fixed rate applicable to a particular premium rate service.
2.25. Restricted Content means the Content that:
(a) is offensive or obscene;
(b) is unsuitable for minors;
(c) promotes, incites or instructs in matters of crime;
(d) describes, incites or promotes unlawful sexual activity;
(e) promotes or incites violence against any person or group, or incites racial hatred;
(f) causes unnecessary alarm, distress or panic;
(g) breaches a code of practice that applies to the Service;
(h) is false, misleading or deceptive, or likely to mislead or deceive;
(i) provides financial advice to any person;
(j) is out of date, having regard to information generally available, subsequently published, or released, or made available;
(k) is for the purpose of providing any warning or notification about a serious risk to the safety of persons or property (for example, emergency services)
(l) is defamatory;
(m) is infringing the Intellectual Property Rights of a third party;
(n) Is fraudulent, abusive or contains tortious material;
(o) contains Non-Public Personal Information; or

(p) is unlawful.
2.26. Unrestricted Content means the Content not falling within one of the restrictions in clause 2.26 of this Agreement.
3. Background
3.1. Message4U Pty Ltd trading as MessageMedia (“MessageMedia”) offers to provide you (the “Customer”) multiple licenses for SMS Messaging Services subject to this Standard Rate SMS Service Agreement. The parties to this legal agreement shall be MessageMedia and the Customer.
3.2. The SMS Messaging Service may only be used by the Customer solely for the provision of Standard Rate Messages and Unrestricted Content by the Customer to End Users.
3.3. The Customer will pay MessageMedia the Fees.

4. Fees and Charges
4.1. Fees:
4.1.1.The Account Activation and License Fee and any applicable Custom Development Fees are payable immediately on signing this Agreement.
4.1.2.The Monthly Access Fee, Monthly Licensing Fees and Platinum Program Fees (if applicable) are payable monthly in advance per Account and will be payable on a pro-rata basis in partial months.
4.1.3.Message Fees for any Messages sent by Customer shall be invoiced to the Customer at the end of the month during which they were sent.
4.2. Payments:
4.2.1.MessageMedia will invoice the Customer on a calendar month basis, and the Customer agrees that payment will be made within fourteen (14) days of invoice date.
4.2.2.Payment may be made by the Customer to MessageMedia by direct debit of the Customer’s credit card. MessageMedia may agree to alternate non-direct debit payment methods in its sole discretion, subject to a customer credit assessment. Non-direct debit payment methods attract a monthly $5 surcharge.
4.2.3.The Customer agrees that MessageMedia’s records are conclusive evidence of the Customer’s order for, and use of, the SMS Messaging Service.
4.2.4.The Customer agrees to pay for every Message sent using MessageMedia’s SMS Messaging Service 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 the Customer that the Message in question was successfully delivered to the relevant Carrier. Note that message logs are destroyed after 30 days. Any failure to deliver a Message subsequent to successful delivery to the Carrier is beyond the control of MessageMedia and the Customer will not hold MessageMedia liable in respect of any such failure.
4.2.5.MessageMedia may terminate or suspend access to the SMS Messaging Service without notice if any payment due from the 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.
4.2.6.The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and indemnity legal costs incurred by MessageMedia for enforcement of obligations and recovery of monies due from the Customer under this Agreement.
4.3. Service Level Credits:
4.3.1.The Monthly Access Fee includes service level credits to a maximum amount of the Monthly Access Fee, which Customer may be entitled to as set forth in MessageMedia’s Service Level Agreement (“SLA”), which SLA is incorporated herein by this reference.

5. Confidentiality
5.1. The Customer agrees to MessageMedia disclosing the existence of this Agreement for the purpose of marketing MessageMedia to current and future clients.
5.2. Outside the operation of clause 5.1, each party (Recipient) undertakes that, in respect of Confidential Information disclosed to the Recipient by the other party (Disclosing Party), it will not disclose the Confidential Information of the Disclosing Party except:
(a) for the purpose for which the Confidential Information was disclosed to the Recipient under the terms of this Agreement;
(b) to those employees, officers and agents of the Recipient who need to know the information for the purposes of this Agreement, if that person undertakes to keep confidential the Confidential Information;
(c) to professional advisers and consultants of the Recipient whose duties in relation to the Recipient require that the Confidential Information be disclosed to them;
(d) with the prior written approval of the Disclosing Party; or
(e) as otherwise required by applicable law to disclose such information.
5.3. The parties acknowledge that monetary damages alone would not be adequate compensation for a breach of the obligations of confidentiality under this Agreement, and a Disclosing Party is entitled to an injunction from a court of competent jurisdiction on a breach or threatened breach of this clause, it being specifically acknowledged by the parties that any other available remedies are inadequate.
5.4. The party against whom the injunction is sought agrees that it will not object to the granting of such an injunction.
5.5. Notwithstanding anything else contained in this Agreement to the contrary and in particular in this clause 5, the parties agree that MessageMedia shall have the unconditional and irrevocable right to disclose the identity and address of the Customer and any End User in the event of any complaint received from any regulatory or Governmental body or licensed Carrier, in connection with the Content made available by the Customer.

6. Customer Obligations
6.1. The Customer agrees to comply with any instructions concerning access to and/or use of the SMS Messaging Service that MessageMedia may give to it from time to time and agrees not to do anything that may jeopardise the security or integrity of any part of MessageMedia’s systems or platforms.
6.2. The Customer accepts responsibility for all aspects of their Account, including the actions of all persons in possession of the Customer’s username and password.
6.3. The Customer agrees not to use the SMS Messaging Service to transmit any information or material that violates local, State, Federal or foreign law, or transmit any material that is in contravention of any privacy or copyright rules or any other Intellectual Property Right.
6.4. Without limiting the operation of Clause 6.3, the Customer agrees not to use or seek to use the SMS Messaging Service for publishing, reproducing or advertising any message, information, symbol or other communication which is infringing, threatening, defamatory, fraudulent, tortious, offensive or abusive or of an indecent, obscene or menacing character or for the purpose of causing annoyance, inconvenience or needless anxiety to any person, or for any unlawful purpose, or which contains any Restricted Content.
6.5. The Customer agrees that the SMS Messaging Service is to be used solely for the provision of general information to End Users and provision of Restricted Content is specifically prohibited. The Customer acknowledges that the Carriers and MessageMedia may audit Content of services from time to time and that a breach of this clause shall result in a breach of the Customer’s obligations under this Agreement, or potentially the termination of this Agreement.
6.6. The Customer agrees not to use MessageMedia’s services, connections, or facilities to:
(a) transmit computer worms or viruses;
(b) access, any other MessageMedia computer systems or networks without MessageMedia’s consent or disrupt or damage any MessageMedia computer systems or network;
(c) send any unsolicited materials;
(d) forge any messages; or
(e) send any obscene, sexually explicit, abusive or defamatory material or material that violates or is contrary to any National, International, Federal, State or local law or regulation or guidelines.
6.7. In accordance with anti-SPAM legislation, guidelines and codes of practice, the Customer agrees to abide by MessageMedia’s Acceptable Use and Anti-Spam Policy (“Policy”) which is attached hereto as Schedule 1 and incorporated into and made part of this Agreement. The Policy may be amended from time to time by MessageMedia and MessageMedia will provide notice to the Customer of any changes. The Customer acknowledges that MessageMedia may request explicit confirmation of compliance with this clause from time to time. Failure to comply with this clause 6.7 will result in termination or suspension of Customer’s access to the SMS Messaging Service.

6.8. Customer shall use the SMS Messaging Service solely for its internal business purposes as contemplated by this Agreement and shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make available the SMS Messaging Service to any third party. In addition, Customer shall not: modify, copy, or create derivative works based on the SMS Messaging Service; or otherwise access the SMS Messaging

Service in order to (i) build a competitive service, or (ii) copy any ideas, features, functions, or graphics of the SMS Messaging Service.
6.9. Should Customer elect to receive the Keylink service as part of the SMS Messaging Service provided by MessageMedia hereunder, then (a) Customer shall be required to reply to each Message received by Customer pursuant to the service; (b) the failure to reply to any Message shall constitute a breach of this Agreement by Customer; and (c) MessageMedia shall charge Customer a Messaging Fee for each failure to reply equal to the amount charged by MessageMedia for Message replies.
7. Provision of Service to Others
7.1. The Customer will, to the best of their ability, ensure that any third party using its facilities is bound by the terms and conditions of this Agreement.
7.2. The Customer will, to the best of their ability, ensure the End User is provided with all necessary and required terms and conditions for any goods or services that the Customer is providing through the SMS Messaging Service.
7.3. The Customer expressly acknowledges that MessageMedia will not, at any time, be responsible for the Content, or the destination of any Content conveyed by or to the Customer.
7.4. If the Customer becomes aware of any End User that does not wish to continue to receive Messages, it must take all necessary steps, including notifying MessageMedia where the End User is a MessageMedia customer, to ensure that the End User does not receive any further Messages.

8. Property Rights
8.1. The Customer agrees that MessageMedia’s software, MessageMedia Facilities and the SMS Messaging Service are protected by copyright and trademark and remain the property of MessageMedia and may not be copied without prior consent in writing from MessageMedia. No rights are granted to Customer hereunder other than as expressly set forth herein.
8.2. 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 new programs, upgrades, modifications or enhancements 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 the Customer.
8.3. MessageMedia will withdraw all SMS Messaging Services should it have reason to believe that the Customer has been, or has been attempting to undermine the Intellectual Property Rights of MessageMedia.

9. Indemnities and Limitation of Liability
9.1. The Customer indemnifies and holds MessageMedia, its affiliates, and their respective officers, directors and employees harmless from and against any and all costs (including legal costs on a full indemnity basis), expenses, loss, liabilities, suits, actions, damages or claims or proceedings arising or in any other way connected with:
.
(a) any wilful or negligent act or omission by the Customer, its employees, agents or contractors;
(b) an actual infringement or allegation that the Intellectual Property Rights of any person have been infringed by the use of the Customer’s Facilities;
(c) any Messages sent by the Customer whether or not the claim is brought or made by a MessageMedia customer or another party;
(d) Customer’s non-compliance with the terms of use set forth in this Agreement; or
(e) the Customer’s use of their Account or the SMS Messaging Service, or any other person using the Customer’s username and password.
9.2. Any indemnity in this Agreement is a continuing obligation of Customer, independent of other obligations under this Agreement and continues after this Agreement ends. It is not necessary for MessageMedia to incur expense or make payment before enforcing a right of indemnity under this Agreement.

10. Disclaimer
10.1. MessageMedia (including its affiliates, directors, officers, employees, agents, contractors, successors or assignees) will not be liable for any loss or damage caused to the Customer or anyone else howsoever arising as a result of using MessageMedia’s SMS Messaging Service. This includes but is not limited to loss or damage
caused by loss or delay of Messages or any loss caused by the negligence of MessageMedia, their employees or contractors.
10.2. The Customer accepts that MessageMedia is in part reliant on Carriers and other third party suppliers (collectively referred to as “Telecommunication Providers”) and the Customer will not hold MessageMedia liable, nor shall MessageMedia be liable, in any way whatsoever due to MessageMedia’s inability to provide service as a result of faults that are the responsibility of the telecommunication providers or Carriers. In the event of a telecommunication provider or Carrier fault, MessageMedia shall in a commercially reasonable time, and upon written request by the Customer, communicate in writing to the Customer all relevant information relating to the telecommunication provider or Carrier service fault.
10.3. The Customer will be responsible at all times for maintaining the security of its and its End User’s data, and MessageMedia bears no liability for the loss or damage in part or whole, of such data, to the extent that such loss or damage has been caused or contributed to by the Customer.
10.4. MessageMedia does not warrant that its SMS Messaging Service will be error-free or uninterrupted, or that transmission will be instantaneous. Please consult MessageMedia’s Service Level Agreement for further information.
10.5. The Customer acknowledges that there has been no reliance by it on MessageMedia’s skill or judgement or written or oral representations in deciding whether MessageMedia’s SMS Messaging Service is fit for a particular purpose or meets particular criteria.
10.6. The Customer acknowledges that the internet is not an inherently secure system and undertakes responsibility for the protection of its information and data. The Customer acknowledges that the internet may contain viruses (including other destructive programs), which may, if not eliminated, destroy parts or all of the data contained within its system, and that MessageMedia has no control over these viruses and does not provide any filtering or checking of data to eliminate these viruses.
10.7. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, MESSAGEMEDIA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO 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 OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SMS MESSAGING SERVICES, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY MESSAGEMEDIA.
10.8. IN NO EVENT SHALL MESSAGEMEDIA HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, 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.

11. Term and Termination
11.1. This Agreement commences on the date the Application Form is executed by both parties and will continue until terminated in accordance with this clause 11 (“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.
11.2. MessageMedia may:
(a) immediately cease the conveyance of any Messages that it considers is or may be in breach of guidelines, this Agreement and/or any applicable laws or regulations; or
(b) suspend the Customer’s access to the offending service(s) only if it considers that the Customer is or may be in breach of guidelines, this Agreement and/or any applicable laws or regulations.
11.3. MessageMedia may terminate this Agreement immediately upon notice to Customer if:
(a) MessageMedia notifies the Customer that all Dedicated Numbers made available for use by the Customer are no longer available;

(b) a receiver, liquidator, provisional liquidator or administrator is appointed over any of the Customer’s undertakings or assets or if the Customer enters into any arrangement with any creditors or any class creditors;
(c) it becomes unlawful for the Customer to perform its obligations under this Agreement or the performance by a party of their obligations under this Agreement is in breach of a law;
(d) the Customer sends any Restricted Content to End Users or otherwise violates clause 6.7 above or the Policy;
(e) the Customer threatens the operation, technical integrity or liability of MessageMedia’s Facilities in the reasonable opinion of MessageMedia; or
(f) MessageMedia notifies the Customer in writing of any other breach of this Agreement not identified in subclauses 11.3(a) – (e) above and the Customer fails to remedy the breach to the satisfaction of MessageMedia within 7 Business Days of notification.
11.4. 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 remove access to and disconnect the Customer’s Facilities from the MessageMedia Facilities;
(c) the Customer must return and/or destroy all material provided by MessageMedia to it under this Agreement; and
(d) clauses 5, 8, 9 and 10 shall continue to apply.
11.5. Any termination is without prejudice to any rights, liabilities or obligations accruing as at such termination.

12. General
12.1. This Agreement shall be governed and interpreted according to the laws of the State of New York, except for its conflict of laws principles. The state and federal courts located in New York County, New York shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.2. 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.
12.3. Neither party is liable for any delay or failure to perform its obligations under this Agreement due to any event beyond its reasonable control including an act of god, inclement weather, flood, lightning, fire, industrial action the act or omission of any government, terrorism, war, military operations or riot.
12.4. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
12.5. There are no third party beneficiaries to this Agreement.
12.6. 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.
12.7. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
12.8. 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 (not to be unreasonably withheld, conditioned or delayed). Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this clause shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9. No claim may be brought by Customer under this Agreement more than one (1) year after the accrual of the claim.
12.10. 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. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding the Application Form) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.
12.11. Notices
(a) Notices under this Agreement may be delivered by hand, by mail or by facsimile to: MessageMedia Attention: Grant Rule, Chief Executive Officer Address: One Market Spear Tower, 36th Floor, San Francisco, CA 94105 Telephone: (888) 799-9767 Facsimile: (646) 862-8887
(b) Unless a later time is specified in it, a Notice takes effect from the time it is actually received or taken to be received.
(c) A Notice delivered by hand or sent by post or facsimile is taken to be received:
(i) in the case of delivery by hand, on the day of delivery if delivery is before 5:00pm on a Business Day otherwise on the next business day;
(ii) in the case of a Notice sent by prepaid post on the second Business Day after posting;
(iii) in the case of a facsimile, on production of a transmission report by the machine from which the facsimile was sent, which indicated that the facsimile was sent in its entirety to the facsimile number of the recipient notified for the purpose of this clause, if produced before 5:00pm on a Business Day, otherwise on the next Business Day.

13. Interpretation
13.1. In this Agreement unless the context indicates a contrary intention:
(a) words denoting the singular number shall include the plural and vice versa;
(b) words importing persons shall include corporations and other entities recognised by law and where a person is referred to as the trustee of any Trust or Settlement the reference is to that person in his capacity as such;
(c) headings are for convenience only and shall not affect interpretation;
(d) references to clauses are references to clauses of this Agreement and references to sub-clauses are references to sub-clauses of this Agreement;
(e) references to this Agreement shall be deemed to include references to this Agreement as amended, novated, supplemented, varied or replaced from time to time;
(f) references to any party to this Agreement shall include its transferees, successors or permitted assigns;
(g) words denoting any gender shall include all genders;
(h) each Schedule and Appendices (if any) to this Agreement hereby incorporated into this Agreement, provided that if there is any inconsistency between any such Schedule and the provisions of this Agreement, the provisions of this Agreement shall prevail;
(i) reference to “$” and “dollars” are to United States currency;
(j) a reference to an Act of Parliament, ordinance, code or other law includes regulations and other statutory instruments under it and shall include any amendment, consolidation, modification or re-enactment thereof or any replacement legislation;
(k) a reference to a party binds if a corporation its liquidators, controllers, receivers, managers and administrators and if an individual their executors, trustees and beneficiaries; and
(l) no provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision.

SCHEDULE 1
Acceptable Use and Anti-Spam Policy
MessageMedia’s Acceptable Use and Anti-Spam Policy (Policy) explains MessageMedia’s requirements for our partners, resellers and customers (collectively, “Customers”) with respect to acceptable and unacceptable practices using MessageMedia services, connections or facilities. Customers must not engage in practices that are (i) illegal, (ii) that do not comply with accepted industry best practices as established by the Mobile Marketing Association, or (iii) that disrupt or damage any MessageMedia computer systems or network or other parties’ computer systems and networks. This Policy may be amended from time to time.
MessageMedia maintains a zero-tolerance policy for any violation of this Policy and requires that its Customers implement and enforce this same zero-tolerance policy.

In using any of MessageMedia’s SMS services, Customer agrees to implement the U.S. Consumer Best Practices Guidelines for Cross-Carrier Mobile Content Programs as established by the Mobile Marketing Association (and as may be amended from time to time by the Mobile Marketing Association). The following is a summary of some of those required practices:
1. Obtain clear and unmistakable opt-in from all recipients before sending any text messages. In some instances, double or triple opt-in is required.
2. Include in all messages a mechanism for subscribers to opt out of receiving any further messages by the use of such industry-standard keywords such as “STOP” and remove the recipient from the relevant marketing list as soon as practicable and in any case within 10 business days.
3. Obtain separate opt-ins for each different campaign.
4. Ensure that advertising in all forms is clear and conspicuous regarding all terms and conditions associated with offers and adheres to all state and federal regulations.
5. Identify the Customer as the sender of the message.
6. Offer subscriber customer care and HELP procedures.
7. Clearly state the expense of the service promoted. The phrase “Message and Data Rates May Apply” (or “Msg&Data Rates may apply”) must be used unless premium rates apply.
8. Maintain opt-in and opt-out records from the time the subscriber opts-in until a minimum of six months after the subscriber has opted-out of the program (minimum opt-in archiving period is one calendar year).
9. Prohibit the sale of opt-in lists unless subscribers have given their express permission to receive text messages from others, as documented, with opt-ins and bold writing in the Terms & Conditions.
Violation of this Policy will result in termination or suspension of all services provided by MessageMedia and may also result in civil, criminal, or administrative penalties against the sender and those assisting the sender.
Any failure to enforce this policy in every instance does not amount to a waiver of MessageMedia’s rights.
MessageMedia directs Customers to review the following laws and guidelines for further information, which is not intended to be interpreted as or used as a substitute for the advice of legal counsel. Each Customer is advised to obtain the advice of its own legal counsel.

A. Telephone Consumer Protection Act (“TCPA”)
The federal TCPA law states that without prior express consent of the called party, it is illegal to use an automatic dialing system to make any call. While “call” is not defined, it has been held to cover sending text or SMS messages to cell phones and other wireless devices.
The Federal Communication Commission (“FCC”) rules also prohibit sending unwanted text message solicitations to a wireless phone if the wireless phone number is listed on the national Do-Not-Call registry.

The full text of the TCPA can be found here:
http://www.fcc.gov/cgb/policy/TCPA-Rules.pdf
The FCC’s Telemarketing Rules can be found here: http://www.fcc.gov/cgb/policy/Telemarketing-Rules.pdf
See also: http://www.the-dma.org/guidelines/tcpa.shtml

B. CAN-SPAM
The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”) is a federal law regulating the transmission of commercial email messages and Internet-to-phone SMS commercial messages to addresses that reference Internet domains.
The full text of this law can be found here:
http://uscode.house.gov/download/pls/15C103.txt
See also http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm

C. MMA Code of Conduct for Mobile Marketing
The Mobile Marketing Association is a non-profit trade association established “to lead the growth of mobile marketing and its associated technologies.” The Mobile Marketing Association has developed a Global Code of Conduct “designed to provide guidelines that all Mobile Marketers should consider and build their mobile programs around.” In using any of MessageMedia’s SMS services, Customer agrees to implement this Code of Conduct as established by the Mobile Marketing Association (and as may be amended from time to time by the Mobile Marketing Association).
The Code sets forth general guidelines as to Notice, Choice & Consent, Customization & Constraint, Security and Enforcement & Accountability.
The Code of Conduct can be found here:
http://mmaglobal.com/?q=node/1563

D. MMA Consumer Best Practices Guidelines
The MMA also has developed a publication entitled “U.S. Consumer Best Practices Guidelines for Cross-Carrier Mobile Content Programs.” In using any of MessageMedia’s SMS services, Customer agrees to implement these Best Practice Guidelines as established by the Mobile Marketing Association (and as may be amended from time to time by the Mobile Marketing Association).
These guidelines establish best practices for mobile marketing. The guidelines also list carrier-specific requirements for accessing the carrier messaging platforms. The carriers strictly enforce these requirements.
The Best Practice Guidelines can be found here:
http://www.mmaglobal.com/bestpractices.pdf

TERMS AND CONDITIONS ADVERTISING SERVICES AND LEAD GENERATION MEMBERSHIP

1. Scope. Upon accepting and or signing this Agreement and or Insertion Order, the Customer acknowledges that he/she has read this contract and has not relied upon any promise, statement or representation other than contained herein and hereby acknowledges acceptance of all Terms and Conditions and or receipt of a copy of this Agreement and or Insertion Order. Big Ticket, LLC, trading as YText.me allows our Customers to benefit from YText.me value added services such as telephone area code phone call redirect, SEO or Search Engine Optimization both paid and organic (natural), SEM or Search Engine Marketing, Display Advertising, Printed Publications, Digital Text Messaging, Web site or Proxy Web site including but not limited to, the use of the telephone number YText.me exclusively on all media services including print, radio, television and other online, printed or digital marketing in the designated or assigned market area as outlined on the insertion order attached. This is a contract (referred to herein as this “Agreement”) between Big Ticket, LLC, YText.me (hereinafter referred to as “us”, “we” and “our”) and the customer (“you” and “your”) identified on the first page of this document (the “Order”) for us to fulfill your order for our Advertising Service and/or Lead Generation Membership Products or Services identified on the Order. This Agreement consists of the Order and these Terms and Conditions for Advertising Service and/or Lead Generation Membership Products or Services (these “Ts&Cs”). In the event except as otherwise expressly provided in these Ts&Cs and in the event of any conflict between the terms of the Order and of these Ts&Cs, the Order shall control and prevail. This order shall not be binding upon YText.me unless and until this order is signed by an authorized representative of YText.me at its corporate headquarters and Customer hereby waives notification of same. The sales representative is not authorized to accept this offer on behalf of YText.me.
2. Services. Ytext.me will provide the Customer with products and services described on the Order (the “Services”). The Customer agrees to cooperate with YText.me as required for YText.me to provide the Services.
3. Equipment. The Customer is solely responsible for obtaining all computer equipment and connections required to access and use the Systems and the Services. YText.me will not be responsible for the workings or failures of the Customers computer equipment, network, and software or Internet access.
4. Term. The term of this Agreement commences on the date of execution by you (either in writing or by electronic signature, including recorded oral
acceptance of this Agreement of an Order presented by us and shall (subject to our right hereunder to terminate or suspend our performance or remove Advertising Service and/or Lead Generation Membership Products or Services under circumstances specified in this Agreement) continue until we have fulfilled the Advertising Service and/or Lead Generation Membership Products or Services specified in the Order for the Initial Term specified in the Order. Unless otherwise provided in the Order and except as provided below in these Ts&Cs, upon expiration of the Initial Term, the term of this Agreement shall automatically renew for a “Renewal Term” unless you or we notify the other of its intent not to renew at least thirty days before expiration of the Initial Term. All services provided during the Renewal Term will be subject to the then-current Terms and Conditions, pricing and other terms for Print, Online, Digital, Texting or Internet Advertising, Advertising Service and/or Lead Generation Membership Products or Services available on our Web site (such then current Ts&Cs being referred to herein as this Agreement). The Renewal Term will continue from expiration of the Initial Term until termination pursuant to this Agreement. Unless otherwise provided in the Order, either you or we may terminate the Renewal Term, with or without cause, upon thirty days’ prior written notice to the other. Neither of us may terminate this Agreement during the Initial Term, provided that we may terminate this Agreement at any time upon notice to you if you breach this Agreement. If you choose to have your Advertising Service and/or Lead Generation Membership Products or Services removed from any site and/or our services discontinued prior to the end of the Initial Term or Renewal Term, as the case may be, you shall notify us in writing and the unpaid balance for the entire Initial Term or Renewal Term will become immediately due and owing.
5. Termination by Customer. THE CUSTOMER MAY CANCEL THIS ORDER BY PROVIDING WRITTEN NOTICE TO BIG TICKET, LLC CORPORATE OFFICE AT ANY TIME PRIOR TO MIDNITE OF THE THIRD DAY AFTER THE DATE THE CUSTOMER SIGNED THE ORDER. Disconnection of the customer’s phone, discontinuation of the Customer’s business, or sale of the customer business does not constitute termination of the order. Customer agrees to honor all advertised coupons and or offers purchased for the length of the term agreed upon by the Customer and YText.me. As published, printed, mechanically and or electronically and distributed under the terms of this contract. YText.me reserves the right to extend coupon or offer expiration date termination (if necessary) without prior notice. Delivery date of printed materials will begin no later than 8 weeks from last order written. No other starting date is guaranteed or implied.
6. Third Parties. You represent and acknowledge that you are entering into this Agreement to obtain the Advertising Service and/or Lead Generation Membership Products or Services for your own benefit and not for the benefit or on behalf of any third party, including, but not limited to, any of your shareholders, partners, owners, employees, agents or affiliates. However, each of our distribution or fulfillment vendors or internet search engines on which we place your advertising (each, a “Distribution Site” or “Distribution Location”) is an intended third-party beneficiary of your obligations hereunder that relate to Advertising Service and/or Lead Generation Membership Products or Services and may independently enforce each obligation directly against you. If the distribution location is unavailable at the time of shipment of Advertising Service and/or Lead Generation Membership Products or Services, Printed Publication, or should the distribution location close for any reason, YText.me reserves the right to relocate and distribute the Advertising Service and or Printed Publication at the nearest available location; or, in the alternative and at YText.me discretion, rescind this Agreement and or refund any monies paid by the Customer on a pro rata basis excluding any and all expense relating to the creation or development of Advertising Service and/or Lead Generation Membership Products or Services.
7. Rates and Payment. Unless otherwise provided in the Order, we will bill you during our first applicable billing cycle after we fulfill your order for Advertising Service and/or Lead Generation Membership Products or Services and will continue to bill you during each applicable billing cycle thereafter during the term of this Agreement. The billing cycle will be thirty (30) days unless otherwise provided in the Order. We will bill you for Advertising Service and/or Lead Generation Membership Products or Services for which no rate is specified in the Order at our standard rates for such Advertising Service and/or Lead Generation Membership Products or Services at the time that we provide such Advertising Service and/or Lead Generation Membership Products or Services. Any rates specified in the Order will apply during the Initial Term only. Unless you or we terminate this Agreement at the end of the Initial Term, you will be invoiced for each billing cycle of the Renewal Term at our standard rates during such billing cycle for such Advertising Service and/or Lead Generation Membership Products or Services. Such standard rates may be higher than the rates set forth on the Order. Payments are due on the due date specified on the invoice or, if no payment date is specified, then thirty days after the date of the invoice. We may remove, or (in the case of Advertising Service and/or Lead Generation Membership Products or Services placed on Distribution Sites) cause to be removed, your Advertising Service and/or Lead Generation Membership Products or Services and suspend our services hereunder if payment is not received by the due date. Your prompt payment is required or we may suspend our services hereunder if payment is not received by the due date. Your prompt payment of any costs that we incur to suspend services or remove or cause removal of Advertising Service and/or Lead Generation Membership Products or Services, or to resume services or replace or cause replacement of Advertising Service and/or Lead Generation Membership Products or Services, will be a condition to our resumption of services and the replacement of Advertising Service and/or Lead Generation Membership Products or Services. You acknowledge that no such suspension or removal will extend the term of this Agreement and, therefore, that it will reduce the aggregate time that we fulfill your order. We may charge late payment fees that will accrue at our then-current standard rates or, if lower, the maximum rate permitted under applicable law. You agree to pay any attorneys’ fees and costs that our agents or we incur in collecting any unpaid amount. You will pay any sales, use or other local, state, federal, foreign or other taxes or governmental fees arising out of or in connection with this Agreement, other than taxes based on our net income. There will be a $25.00 charge added for any dishonored payment.
8. Credit. Customer authorizes YText.me to obtain initial and periodic commercial and or personal credit investigative report regarding Advertising Service and/or Lead Generation Membership Products or Services as necessary or desirable in making a decision whether to extend credit to Customer from time to time. Extension of credit and approval for any payment program is contingent upon the results of the credit investigation being satisfactory to YText.me, in its sole discretion. YText.me may require advanced payment in full to the provision of Services.
9. Denial of Credit. If your application for business credit is denied, you have the right to a written statement of the specific reasons for the denial. To obtain the statement, you must contact us within 60 days from the date you are notified of our decision and we will send you a written statement of reasons for the denial within 30 days of receiving your request for the statement. Notice: The Federal Equal Credit Opportunity Act prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age (provided the applicant has the capacity to enter into a binding contract); because all or part of the applicant’s income derives from any public assistance program; or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with this law concerning this creditor is Federal Trade Commission, Equal Credit Opportunity, Washington, DC 20510.
10. Delinquent Accounts. YText.me may, in its sole discretion, apply all of the Customers payments to the oldest charges due in the Customer’s account. If Customer defaults in paying any charge when due, YText.me may declare all charges under the Order and any other agreements with the Customer to be immediately due and payable. If YText.me sends a Customer’s account to a collection agency, the Customer will pay YText.me reasonable attorney fees, court cost and service cost, in addition to the outstanding amounts due. If an account becomes delinquent, discounts and special promotions will be considered voided and the full published rates for all Services in the Order will replace the rates shown on the Order. If the Customer fails to make any payment when due, YText.me may declare the entire balance owed by the Customer to YText.me under this, or any other, agreement between YText.me and Customer immediately due and payable. If the Customer is in default, YText.me may charge the delinquent balance to the Customer’s checking or credit card account on file and or associated with Customer account.
11. Custom Domain Registration/Ownership of Work Product/ Market Area Terminating Telephone Number. Customer has exclusive right to all telephone calls from designated geography or assigned area code(s) and switching station located in areas as specified on the insertion order. All calls from the specified telephone area code(s) will be redirected to the terminating telephone number as specified on page one of the insertion order. You are responsible for any and all taxes, fees, dues and interruptions of service to the terminating telephone number for any reason during the length of this contract. You are required to maintain terminating telephone number service at all times during the length of this contract. We reserve the right to redirect or reassign designated terminating telephone number should this contract be breached by you in any way or fail to maintain telephone service to the designated terminating telephone number as specified on page one of the insertion order. In the event that your terminating telephone number becomes unavailable, you can request a new telephone terminating number to be assigned to the designated area code(s) on request by contacting (855) 983-9863 Monday through Friday 9:00 AM to 5:00 PM EST. If the Advertising Service and/or Lead Generation Membership Products or Services you have ordered involve the hosting or operation of a Web site or proxy Web site, the Universal Resource Locator (“URL”) therefore must be registered in our name with a domain registrar of our choosing so we may manage the domain while we host or operate the Web site. If you do not have a URL, we will procure a URL and will pay the applicable domain name registration fees to the registrar and maintain ownership. We cannot guarantee that any URLs and/or domain names you request for your Web site will be available for your use. If none of your requested URLs are available, we will contact you and request alternatives. If you already own the registration for the desired URL, you must transfer the URL to us with a domain registrar of our choosing. If the URL cannot be transferred or you fail to undertake the action we request to cause the transfer, then, in our discretion, we may (but are not obligated to) choose a URL or domain name on your behalf. Upon termination of this Agreement or in the event you are in breach of this Agreement, any Web sites hosted or operated under this Agreement may be disabled, in our sole discretion. We will invoice you for all fees payable in connection with the transfer to you of any URL registered in our name that is related to your Web site if you notify us in writing within thirty (30) days after termination or expiration of this Agreement that you desire such transfer. We will then promptly transfer such URL to you if you timely pay such invoice. If you fail to notify us that you desire such transfer within such thirty (30) day period or fail timely to pay such invoice, then you waive all rights in or with respect to such URL, and you acknowledge that we may allow the registration for such URL to lapse, may retain and use such URL, or may transfer such URL to a third party, without restriction.
12. Performance Based Advertising Products. We or our vendor will fulfill your performance based Advertising Service and/or Lead Generation Membership Products or Services including, but not limited to, either paid or organic (natural) SEO or Search Engine Optimization, SEM, Search Engine Marketing, Website, Proxy Website, Telecommunications, Text or Instant Messaging, Landing or Connection Page, Display Advertising or Printed Publications and all Advertising Services or Media. For SEO internet search engines determined by us, which may include affiliated or syndicated search engine network partners, will provide the contracted number of clicks or performance paid insertion. We may change search engines from time to time in our sole discretion. You agree that all placements on search engines shall conclusively be deemed to have been approved by you. We or our vendor will continue to fulfill your Advertising Service and/or Lead Generation Membership Products or Services for the contracted number of clicks or performance paid insertion, calls, search or other actions (an “Action”) or until your budget is exhausted. If the applicable number of Actions has not been delivered or disputed Actions have been credited by us in our sole discretion or your budget has not been exhausted during the Initial Term, we will continue to fulfill your Advertising Service and/or Lead Generation Membership Products or Services at no additional charge until the applicable number of Actions has been delivered or your budget has been exhausted. Although we will invoice you in twelve installments for the contract amount, we do not guarantee that the Actions will be fulfilled within that timeframe or otherwise during the term of this Agreement. We cannot provide you with (1) the names of the search engines and/or search engine networks to which your Advertising Service and/or Lead Generation Membership Products or Services will be submitted and/or (2) the URL and IP address from which clicks or other Actions are made. Our only obligation is that the number of Actions identified in the Order will be provided. We do not guarantee that any clicks or paid performance insertion (1) will be from potential customers for you and/or (2) will be of any benefit or value to you. You acknowledge that the clicks or paid performance insertion may be: from adult sites, from adult-sounding URLs, from sites potentially offensive to you, the result of prohibited or improper purposes, and the result of spiders, robots and other automated or mechanical means. We will send or make available periodic reports from us or Distribution Sites regarding the number of Actions we deliver. You agree that such reports and the counts contained therein shall be the conclusive, definitive measurements of our performance, and that they shall determine your related obligations for all purposes of this Agreement. No other measurements or usage statistics from any source whatsoever shall be accepted by us or have any applicability to our obligations or your rights under this Agreement. Notwithstanding anything to the contrary in Section 2 of these Ts&Cs, upon fulfillment of your performance based Advertising Service and/or Lead Generation Membership Products or Services, we will terminate your performance based program unless you and we agree to renew it. If you cancel your performance based Advertising Service and/or Lead Generation Membership Products or Services or disable your Web site, terminating telephone number or otherwise impair our ability to complete the Actions, we will invoice you for the remaining months of the Initial Term or retain the amount of any remaining budget as an early termination charge. We have no liability for any Actions you dispute. However, in our sole discretion, we may issue you a credit for additional Actions to be delivered.
13. Prohibitions, Content and Intellectual Property Rights. The transmission of any unsolicited commercial e-mail messages through our services is strictly prohibited without the prior consent of the recipient. You acknowledge that neither we nor the Distribution Sites generate the content upon a site where your Advertising Service and/or Lead Generation Membership Products or Services may be fulfilled and that neither we nor the Distribution Sites are responsible for such content. You acknowledge that it is not possible to avoid placing your Advertisement Services and/or Lead Generation Membership Products on web sites that display adult content, have adult-oriented domain names, or that are primarily intended as gambling sites, you acknowledge that it is not possible to avoid all such placements, and that we shall in no event have any liability to you of any type or nature as a result of any such placement or any other such placement that may be offensive to you. We or any Distribution Site may refuse, remove and/or terminate Advertising Service and/or Lead Generation Membership Products or Services and our services due to any content that we or a Distribution Site deem for any reason (a) may subject us, a Distribution Site or another party to liability, (b) includes obscene, profane, sexual, violent or other inappropriate content, or (c) is otherwise unacceptable in our or the Distribution Site’s sole discretion; provided that we have no obligation to review your Advertising Service and/or Lead Generation Membership Products or Services and shall have no liability related to the content thereof. If this occurs, you will remain responsible for payment of all amounts to be invoiced for the then-current term and will not be entitled to any refund or abatement or any extension of the term of this Agreement. Furthermore, you are making the following representations and both we and each Distribution Site are relying upon them: (a) that you are authorized to advertise and display the requested business, product or service, (b) you are a business, not a consumer, (c) that the content of any advertisement is truthful and not misleading, (d) that you are in compliance with all laws and licensing requirements relating in any manner to the goods or services displayed or to your advertisement or Advertising Service and/or Lead Generation Membership Products or Services, and (e) that you have the right to use and publish any requested name, address, trade name, trademark, service mark, picture, likeness, reproduction, endorsement, copyrighted or copyrightable item or other content and that such use complies with all applicable laws, license agreements and other obligations. Without limiting any of our other rights or remedies, you agree to notify us immediately in writing at any time that you discover or suspect that any of these representations is not true and correct in all respects. You assume sole responsibility for the protection of any copyrights, trademarks, service marks, trade names and other intellectual property owned wholly or partially by you or which you are authorized to use or display. If we receive notice or documentation demonstrating that another person or entity contests your right to use or display a name, trademark, service mark or other content, we may reject or discontinue the Advertising and/or Lead Generation Membership Products and our services without liability to you until such time you have resolved that dispute with the other party to our satisfaction. As to any Advertising Service and Lead Generation Membership Products or Services we create for you, whether in whole or in part, and any derivative work that we create from your content, you acknowledge that we are an author and assign to us all rights in and to any independently copyrightable contribution you might have made to the advertising. You further acknowledge that we retain all right, title and interest, including the copyright, in such Advertising Service and/or Lead Generation Membership Products or Services and that neither you nor we intend for such Advertising Service and/or Lead Generation Membership Products or Services to constitute a joint work. You grant us a nonexclusive license during the term of this Agreement, including the right to sublicense, to copy, distribute, create derivative works based upon, publicly display, publicly perform and otherwise use any trademark, service mark, graphics, text or other content you provide to us in connection with our performance of our obligations under this Agreement. Upon termination of this Agreement, we are not obligated to return any of these works to you. Customer must contact YText.me immediately in writing at any time that you discover or suspect that any of these representations is not true and correct in all respects. You assume sole responsibility for the protection of any copyrights, trademarks, service marks, trade names and other intellectual property owned wholly or partially by you or which you are authorized to use or display. If we receive notice or documentation demonstrating that another person or entity contests your right to use or display a name, trademark, service mark or other content, we may reject or discontinue the Advertising Service and/or Lead Generation Membership Products or Services and our services without liability to you until such time you have resolved that dispute with the other party to our satisfaction. As to Advertising Service and/or Lead Generation Membership Products or Services we create for you, whether in whole or in part, and any derivative work that we create from your content, you acknowledge that we are an author and assign to us all rights in and to any independently copyrightable contribution you might have made to the Advertising Services or Lead Generation Membership Products. You further acknowledge that we retain all right, title and interest, including the copyright, in such Advertising Service and/or Lead Generation Membership Products or Services and that neither you nor we intend for such advertising to constitute a joint work. You grant us a nonexclusive license during the term of this Agreement, including the right to sublicense, to copy, distribute, create derivative works based upon, publicly display, publicly perform and otherwise use any trademark, service mark, graphics, text or other content you provide to us in connection with our performance of our obligations under this Agreement. Upon termination of this Agreement, we are not obligated to return any of these works to you.
14. Design of Our Sites, Advertising Service and/or Lead Generation Membership Products or Services, Statistics and Interruption of Our Services. We and the Distribution Sites may redesign or modify the organization, structure and/or “look-and-feel” of our respective Web sites, Advertising Service and/or Lead Generation Membership Products or Services, and published set of headings and directories at any time and without notice; we may discontinue or add Distribution Sites at any time in our sole discretion. Although we assign each Advertising Services or Lead Generation Membership Product an internally generated point value and/or seniority date, such assignment is internal to us and does not confer any rights to you. We or any Distribution Site may position your advertisement on any page within the appropriate sites, in any position upon such page, in any sequence and in association with any classified heading, related category or keyword(s) we or any Distribution Site deems appropriate unless otherwise specifically noted in the Order. Unless expressly provided on the Order, neither any Distribution Site nor we make any representation or warranty with respect to traffic, telephone calls or usage statistics regarding Actions on our site or on any Distribution Site or the levels of impressions, cost per click, cost per call or click-through rates or the quality or conversion rate for any advertisement. An “impression” means each occurrence of a display of an advertisement for the purposes of Advertising Services and/or Lead Generation Membership Products. Neither any Distribution Site nor we will have any liability to you and you will remain responsible for all moneys owed to us should there be an interruption in our Web site or any third party site or other interruption in our services hereunder for any period of time, although we may, in our sole discretion, issue credits or extend the term of this Agreement in the event of interruptions lasting several days or longer.
15. Website Services. YText.me provides domain name registration/renewal/transfer, website creation, website hosting and email hosting services (the Website Services). Customer shall confirm on the front of the Order which services it will purchase from YText.me. Access to the web and email server space is terminated upon expiry of the Website Services. Website Services are provided on the basis of service, facility and equipment availability. YText.me reserves the right not to provide one or more Website Services where necessary facilities, equipment or services are not available for any reason.
16. Telephone Conversations. All telephone conversations between you the Customer and us about your advertising may be recorded and you hereby consent to such monitoring and recordation. Certain Advertising Services and Lead Generation Membership Products and Services may require telephone conversation monitoring and recordation and by signing this Agreement you hereby consent to such monitoring, tracking and recordation unless prohibited by law.
17. Consent. YText.me will collect certain information about the Customer and we may monitor the Customer’s use of the Services and the Systems. Customer consents to YText.me collection, use and disclosure of the Customer’s information for the purposes of providing the Services, communicating with customers, ensuring the Customer’s compliance with this Agreement, and collecting payment under this Agreement.
18. Customer and User Content. Customer will provide YText.me various content in connection with the Systems, Services, Domain Names and Websites (the “Customers Content”) including: (a) the Customer’s name, address, telephone number, trademarks, service marks, (b) all information, data, links and content entered into the Systems by or for the Customer, or otherwise provided to YText.me and (c) other content owned and licensed by the Customer. The Customer must ensure that the Customer Content is accurate and up-to-date, and must deliver the Customer Content in accordance with the specifications and schedule established by YText.me from time to time. The Customer hereby grants YText.me a world-wide, non-exclusive, royalty-free, fully sub licensable license to copy, publicly display, transmit, telecommunicate, use and distribute the Customer Content including on third parties’ websites, materials and other property, and in any form or media now known and hereafter developed in any compilation, order, or format, and any revisions thereto, and in any and all languages. YText.me is not responsible or liable in any manner for any Customer Content or third party applications, software or content posted on the Systems or in connection with the Services, whether posted or caused by users, by third parties or by any of the equipment or programming associated with or utilized in the System or Services. YText.me does not control and is not responsible for what users post, transmit or share and is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content the Customer may encounter in connection with any content. YText.me is not responsible for the conduct, whether online or offline, of any users use of YText.me services.
19. Content Modification, etc. YText.me may review, select from, revise, reject, manipulate and format the Customer Content as necessary or desirable for the normal functioning of the Systems and Services, and for any other reason including unsatisfactory technical quality, inconsistency with YText.me policies, and non-compliance with the terms of this Agreement. Regardless of the extent to which YText.me modifies any Customer Content, YText.me will have no liability whatsoever to any third party regarding the Customer Content and the Customer will be solely liable for that content. The Customer is solely responsible for protecting the Customer Content and all intellectual property in the Customer Content.
20. Trademarks. The Customer hereby grants YText.me a world-wide, non-exclusive, royalty-free, license to use the Customer trademark(s) and copyright(s) in the design element of those trademark(s) and or copyright(s) collectively known as “Customer Marks” solely for the purposes of providing the Services. Customer must not use YText.me name, logo, copyright and or trademark without prior written permission or consent.
21. Passwords. The Customer and its employees must take reasonable measures to maintain the confidentiality and security of all user names and passwords issued to the Customer and its employees. The Customer must immediately notify YText.me in writing if the Customer becomes aware of any unauthorized use of any user name, password or any other security breach regarding the Systems. The Customer will be solely responsible for all activities conducted under the Customer’s and its employee user names and passwords.
22. Additional Services. Customer may purchase additional Services by the issuance and acceptance of one or more additional Orders, and each of the additional Services will be governed by the Orders, as if these terms and conditions were recited at length in those Orders.
23. Modifications. From time to time YText.me may add new features to the Systems, remove existing features from the System and or Service, or otherwise modify the Services and Systems including but not limited to its functionality, look and feel, universal resource locators and software components.
24. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THE ORDER, NEITHER WE NOR ANY DISTRIBUTION SITE MAKES ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES TO YOU OF ANY KIND, EITHER EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE), REGARDING THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF THE ADVERTISEMENTS OR ADVERTISING AND OR LEAD GENERATION MEMBERSHIP OR OTHER PRODUCTS AND SERVICES, LINKED SITES, ANY SITE WE MAY CREATE FOR YOU, OR OTHERWISE UNDER OR RELATED TO THIS AGREEMENT.
25. Restrictions. The Customer must not, without YText.me prior written consent: (a) modify, obscure or otherwise edit any Data or any copyright or other notices which appear on the Systems or the Data; (b) reverse engineer, de-compile, hack, disable, disrupt, interfere with, disassemble, copy, decrypt, reassemble, supplement, translate, adapt or enhance any of the Data or Systems; (c) upload or transmit to the Systems anything that (if reproduced, published, transmitted or used) may: (i) be defamatory, threatening, abusive, obscene, pornographic, harmful or invasive of anyone’s privacy, (ii) violate any law including intellectual property, privacy or other laws, or (iii) give rise to civil or other liability; (d) upload or transmit to the Systems any data, file or software that contains a virus, Trojan horse, worm or other harmful component; (e) use the Services in a manner which consumes excessive amounts of memory, CPU or bandwidth usage, (f) use any of the Data or the Systems for spamming, bulk message transmission, or other prohibited activities: (g) rent, lease or transfer any rights in – or permit any third party to use or access – any of the Data or the Systems; or (h) avoid, circumvent, or disable any access control technology, security device, procedure, protocol or technological protection mechanism that may be included or established in any of the Data or the Systems. In addition to any other available remedies YText.me may suspend or terminate the Customer’s access to the Systems upon breach of any of the above obligations.
26. Assignment. You may not resell, assign, transfer or delegate any of your rights, duties or obligations without our prior written consent, which we may grant or withhold in the exercise of our absolute and sole discretion; in the event we give such consent, the assignee must, without any reservation, assume all of your rights, duties and obligations. Any attempt to resell, assign, transfer or delegate such rights, duties or obligations without our prior written consent shall constitute a breach of this Agreement and shall be of no force or effect. We shall have the right to subcontract performance of our obligations hereunder or to assign to or otherwise transfer this Agreement or any of our rights, obligations or duties hereunder to any person or entity at any time.
27. Notices. All of our notices, demands and other communications must be in writing and will be deemed to have been given (a) if mailed by certified mail, postage prepaid, (b) if delivered by overnight courier, (c) if sent by facsimile transmission and such transmission is confirmed as received, or (d) if sent by electronic mail, and such message is confirmed as received, in each case to the address, fax number or email address specified on the Order for the recipient of such notice. All of your notices, demands and other communications must be in writing and will be deemed to have been given (a) if mailed by certified mail, postage prepaid or if delivered by overnight courier, to our address as shown on our Web site.
28. Liability. NEITHER WE NOR ANY DISTRIBUTION SITE NOR ANY OF OUR OTHER VENDORS SHALL HAVE ANY LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE ADVERTISING SERVICES AND LEAD GENERATION MEMBERSHIP PRODUCTS OR SERVICE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, LOSS OF GOODWILL, THE REJECTION OR REMOVAL OF ANY ADVERTISING CONTENT, ANY DELAY IN DISPLAYING OR OUR FAILURE TO DISPLAY CONTENT, OR OUR FAILURE TO PERFORM SERVICES. WITHOUT LIMITING THE PROVISIONS OF SECTION 13, IN NO EVENT SHALL OUR LIABILITY FOR MONETARY DAMAGES EXCEED THE AMOUNT YOU HAVE ACTUALLY PAID TO US FOR THE ADVERTISING AND/OR LEAD GENERATION MEMBERSHIP PRODUCTS OR OTHER SERVICES WITH RESPECT TO WHICH SUCH LIABILITY AROSE. You acknowledge and agree that the provisions of this Agreement that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this Agreement and are fundamental to the parties’ understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of this Agreement and shall be enforced regardless of any breach hereof or other occurrence or condition relating in any way to this Agreement or the Advertising Service and/or Lead Generation Membership Products or Services. Without limiting the generality of the foregoing, YOU AGREE THAT ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF CONSEQUENTIAL DAMAGES OR OTHER DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY UNDER THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. The limitations contained in this Section 13 apply regardless of the form of action, including actions in contract, tort (including negligence), and strict liability.
29. Exclusive Remedies. YText.me and its licensees are not responsible for typographical errors or the performance of any Advertiser or Customer. If we breach our obligation hereunder to fulfill any Advertising Services and/or Lead Generation Membership Product or breach any other obligation hereunder, we will make commercially reasonable efforts to fulfill such Advertising Services and/or Lead Generation Membership Product or Services at a later date on the same or substitute site or internet search engine or otherwise reasonably to cure such breach. THE FOREGOING CONSTITUTES OUR SOLE OBLIGATION AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH BY US OF THIS AGREEMENT (EITHER DIRECTLY OR THROUGH A FAILURE OF PERFORMANCE BY ANY DISTRIBUTION SITE).
30. Force Majeure. In no event shall we or any Distribution Site have liability or be deemed to be in breach hereof for any failure or delay of performance resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, network failure, riot, explosion, embargo, strikes (whether legal or illegal), terrorist act, labor or material shortage, transportation interruption of any kind or work slowdown or any other condition not reasonably within our control. Your payment obligations shall continue during any event of force majeure.
31. Indemnification. You agree to indemnify us and the Distribution Sites and hold us and the Distribution Site harmless from and with respect to any claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, actual attorneys’ fees) that may at any time be incurred by us or them arising out of or in connection with this Agreement or any Advertising Services and/or Lead Generation Membership Products or Services you request, including, without limitation, any claims, suits or proceedings for defamation or libel, violation of right of privacy or publicity, criminal investigations, infringement of intellectual property, false or deceptive advertising or sales practices and any virus, contaminating or destructive features.
32. Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New Jersey applicable to contracts entered into and performed in New Jersey by residents thereof. Any action or proceeding brought by you under or relating to this Agreement shall be brought in a state or federal court located in the City of Toms River, State of New Jersey, and you hereby irrevocably submit to the personal jurisdiction of and irrevocably consent to venue in such courts for purposes of any such action or proceeding. Any claim against us arising from this Agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy by any other party.
33. Entire Agreement. This Agreement constitutes the entire agreement between you and us with respect to the subject matter of this Agreement and supersedes all prior written and all prior or contemporaneous oral communications regarding such subject matter. Accordingly, you should not rely on any representations or warranties that are not expressly set forth in this Agreement. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Except as provided in Section 1, this Agreement may not be modified except by writing signed by you and us; provided, however, we may change these Ts&Cs from time to time, and such revised terms and conditions shall be effective with respect to any Advertising Service and/or Lead Generation Membership Products or Services ordered after written notice of such revised terms to you or, if earlier, posting of such revised terms and conditions on our Web site.