Terms & Conditions

Nimbler Partner Program (the “Program”)

Standard Terms and Conditions

Effective Date: January 17, 2024

PLEASE READ THIS AGREEMENT CAREFULLY!  THIS AGREEMENT IS A LEGAL AND CONTRACTUALLY BINDING AGREEMENT.  YOU INDICATE YOUR WILLINGNESS TO BE BOUND BY THIS AGREEMENT BY SUBMITTING A REGISTRATION APPLICATION (DEFINED BELOW) FOR THE PROGRAM.  BY REGISTERING FOR THE PROGRAM, YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH IN THIS AGREEMENT, AND THAT YOU ARE AUTHORIZED TO AGREE TO THIS AGREEMENT.

These Nimbler Partner Program Standard Terms and Conditions (the “Terms and Conditions”) are made by and between Nymblr, Inc. (“Company”, “Nimbler”, “we”, “our” or “us”), and you, as a partner (“you”, “your” or “Partner”).  These Terms and Conditions shall be referred to herein as the “Agreement”. This Agreement governs your participation as a Nimbler Partner in this Program. The Program permits Partners to promote Nimbler’s services and platform, available at www.Nimbler.com (the “Services”) and earn Referral Fees (defined below) for new customers it refers to the Services as set forth below.  In consideration of the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

1. PROGRAM PARTICIPATION.  

a. Program Registration and Approval.  Program Registration and Approval. You may sign up or apply to become a Program Partner by filling out the registration materials found at https://www.Nimbler.com/partners and submitting it to the Company. You understand and agree that the Company will use a variety of methods to evaluate your application and confirm your eligibility to become a Program Partner. By signing up or submitting your Registration Application to become a Program Partner, you explicitly give permission to the Company and its vendors to independently confirm your eligibility to participate in the Program. .  Company reserves the right to continue to verify the accuracy of your Registration Application at any time as long as you are a Program Partner.  We may deny you participating in the Program, in our sole discretion, for any or no reason, without notice and without liability.  As part of your Registration Application to become a Partner, you may be requested to provide the following information:

• A list of domains that you intend to use for the purpose of your participation in the Program, and information as to how you will use them, including, but not limited to, content and design;

• Information about your area of operational/commercial focus;

• Your marketing methods and target market;

• Proof of identification including, where possible, a government-issued identification number;

• Payment details; and

• Any other information which the Company, at its sole discretion, deems relevant to the assessment of your Registration Application.

Provided you have complied with all of Company’s requirements and requests for information, you will be notified in a timely manner of Company’s acceptance or rejection thereof.  you hereby consent, and hereby provide the requisite authority, to Company, to independently verify, with any third party, any information provided to it by you in terms of this Agreement and any other information as requested by Company during the Term and from time to time.

b. Partner Participation in the Program.  If you are approved to become a Program Partner, we grant you the non-exclusive right to participate in the Program to promote and advertise the Services, subject to the terms and conditions hereof.  Once you have complied with our requirements and you have been notified of your acceptance as a Partner, your Partner account will be activated and you will thereafter be granted a licence, subject to the terms of this Agreement, to operate as a Partner and participate in the Program for the Term.  The granting, and on-going use of the licence, the participation in the Program, and the on-going rights in respect of both, are subject to any conditions contained in this Agreement.  We reserve the right to terminate this Agreement, your Program account and your participation in the Program at any time and for any or no reason, in our sole and absolute discretion by us, or our third party service Company, by giving you notice at your email address that we have in our records for you.  The reasons we may terminate this Agreement, your Program account and your participation in the Program, include, without limitation, (i) failure to comply with the terms of this Agreement, (ii)  failure to keep your website up to date, or (iii) your website or other Partner Materials (defined below) incorporate images or content that we determine to be detrimental to the Nimbler brands or incorporate materials that may infringe or assist others to infringe on any copyright, trademark, other intellectual property or any other rights of any third party.  In addition to this Agreement, you acknowledge that you have carefully read and agree to comply with all of Nimbler’s policies and procedures as may be provided to you or are available on the Services from time to time, including, without limitation, the Service’s Terms of Use posted on www.Nimbler.com, all of which are incorporated into and made part of this Agreement.  you agree that if a conflict exists between this Agreement and any of the terms and conditions of the documents referenced in the previous sentence, this Agreement will control.    you shall participate in any training which the Company provides and requests you to participate in.  you are restricted to one (1) Partner account only.

1. LICENSES.

1. Company License.  We grant you a non-exclusive, non-transferable, revocable license to use our designated and approved trademarks, service marks, logos, links, Company marketing materials and other intellectual property (all only in the form(s) provided to you by us for use in connection with the Program) (collectively, “Licensed Materials”) solely: (i) to promote and advertise the Services in connection with the Program in accordance with this Agreement, and (ii) if you are a member in good standing of the Program.  you may not alter, modify, or change the Licensed Materials in any way without our express prior written approval.  you will not make any specific use of any Licensed Materials for purposes other than advertising and promoting the Services.  you agree that you will not present the Licensed Materials in combination with any other name or mark, in connection with your own goods or services, or in any manner that may suggest or imply that you or your goods or services are supplied by, sponsored by or endorsed by us without first obtaining our prior written approval in each instance.  you agree not to use the Licensed Materials, the Services, content or other materials or property in conjunction with, or to promote any activity that, in our sole discretion, is detrimental to the Company’s brands, including, without limitation, in any manner that is disparaging or that otherwise portrays us in a negative light.  The determination of whether you are using the Licensed Materials, the Services, your website, or any other content or materials related to this Agreement in the best interest of the Company is left to our sole and absolute discretion.  We reserve all of our rights in the Licensed Materials and our other proprietary rights.  your use of our Licensed Materials does not give you any rights in them other than as described in this Agreement.  We may revoke your license to the Licensed Materials at any time, upon notice to you, at which time you agree to immediately cease using the Licensed Materials.  We may from time to time email you with any changes or updates to the Licensed Materials, the Program and/or Company’s related products and services and you must promptly comply with any directions from us in connection therewith.

2. Partner License.  You grant us a non-exclusive, royalty-free, unrestricted, unconditional, unlimited, worldwide right and license (with right to sublicense) to use your approved names, titles, logos, trademarks, trade names, and service marks, domain names, copyrights, and any other materials created or used by you (which must be approved by us in writing) in connection with the Program (collectively, the “Partner Materials”) to advertise, market, promote and publicize in any manner the Program, your participation in the Program and/or to promote Company or our Services.  The Company will not be required to use the Partner Materials or to advertise, market, promote or publicize your affiliation with the Program.  You represent and warrant that the Partner Materials, your website and any other materials created or used by you in connection with the Program will not contain anything that, in Company’s sole judgment, violates any law, regulation or ordinance or third party rights, is considered to be defamatory or constitute libel or slander, may be inconsistent with Company’s public image, may be in bad taste, are indecent or in Company’s opinion otherwise objectionable, or may tend to bring disparagement, ridicule, or scorn upon Company or any Partner and/or subsidiary companies.  you are responsible for ensuring that the Partner Materials and any other materials posted on your website do not violate, infringe or misappropriate copyrights, right of publicity, trademark rights or other rights of us or any third party.  you must have express written permission to use another party’s intellectual, proprietary or contractual rights, or to use another’s name, social media handles, image, voice or likeness and you agree to provide such written permission to us promptly upon request.  you will be solely responsible for the development, operation and maintenance of your site, for all materials that appear on your site, and for all marketing and promotion you conduct on your website.  you may design your Partner Materials for the sole purpose of directing customers to the Services, subject to the following terms and conditions: (i) you will strictly adhere to the instructions and guidelines as set out in the guidelines issued to you pertaining to the use and application of the Partner Materials, and you shall first obtain our prior written approval or instructions on how to proceed; (ii) you will furnish us, upon written request, with such information and reports, including, but not limited to, samples of any Partner Materials, as may be required by us in connection with your use of any of Licensed Materials; and (iii) Once approved by us, any proposed changes to the Partner Materials you may wish to make shall be submitted to us for prior written approval prior to the use or publication thereof.

3. Ownership.  Subject to the limited licenses above, as between Company and you, each party will exclusively own and control its respective intellectual property.  All goodwill that accrues from the licensed use of a party’s trademarks hereunder will vest exclusively to the party that owns the trademark. you acknowledge and agree that all information relating to any referred customer is the exclusive and sole property of the Company with which such customer is registered, and that you shall have no rights therein whatsoever, excluding any information that you gather independently, outside of your participation in the Program.   

3. RESTRICTIONS.

Compliance with Law.  Without limiting anything else in this Agreement, and notwithstanding anything to the contrary, you will at all times comply with all government laws and regulations, and voluntary industry standards, applicable to the Program and your site and Partner Materials, including, without limitation, labor and employment laws, privacy and data protection laws, anti-money laundering and sanctions laws and regulations and anti-bribery and corruption laws, such as:

• Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act of 2003;

• Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices Guidelines for Messaging;

• Cellular Telecommunications Industry Association (“CTIA”) Best Practices and Guidelines for Location-Based Services;

• CTIA Messaging Principles and Best Practices;

• CTIA SMS Interoperability Guidelines; and 

• CTIA Short Code Monitoring Program Handbook.

For further information, please visit the following websites:

• Federal Communications Commission, http://www.fcc.gov  

• Federal Trade Commission, http://www.ftc.gov  

• Do-Not-Call Registry Info, http://www.donotcall.gov 

• MMA, http://www.mmaglobal.com

• CTIA, http://www.ctia.org    

1. Disallowed Activities.  Without limiting anything to the contrary in this Agreement, you will not engage in any of the following activities:

i. Restrictions on Use of Keyword Advertising (PPC, etc.)

You are not permitted to participate in any trademark bidding using the

Nimbler name as well certain variations or misspellings thereof

ii. Restrictions on Use of Websites and Other Technologies

ii(a). You may not wrap, frame or display in an iframe the Services to give the appearance that the Services are being offered from your website, unless they are being displayed using a Company approved third party tool.  Framing in an invisible frame is expressly prohibited.  All links to the Services must be done in the same full window or in a new browser window.

ii(b). No software downloads or technology may be used by you to intercept, redirect or divert traffic and/or referral fees from the Services or any of Company’s Partner websites.  This restriction includes browser helper objects (BHOs), spyware, adware, parasiteware(tm) and similar products.

ii(c). Traffic eExchanges, auto-surfing or pay-to-surf promotions, pop-ups, pop-unders, and other seen or hidden uses of cookies are NOT permitted.

ii(d). Using ‘Nimbler’ with or without hyphens or other characters, or any misspellings in your top level domain name or as social media Services or other website usernames or profile pages is prohibited.  Any use of the Company intellectual property must be approved in writing by us.

ii(e). You may not maintain a website that is a link farm or banner farm (i.e., there is no content on the site other than lists of text links or banners).

ii(f). You may place our banners or links within the content of your website or your non-spam email newsletters.  All other uses of banners or links, such as newsgroups, chat rooms, or other instant messaging, message boards, banner networks, hit farms, counters, or guestbooks, etc. are NOT permitted.

ii(g). You are not allowed to reference the Services on any websites with adult, hate, discrimination, violent or other controversial content or websites that violate intellectual property or other third party rights or any law, including, but not limited to, CRACKING, and HACKING sites, and sites that contain adware, spyware, malware or require other downloadable software.

iii. Restrictions on Use of E-mail 

iii(a). You may not engage in spamming, unsolicited mass emailing or any unapproved emailing or in any way fail to comply with the CAN-SPAM Act of 2003.  This does not exclude you from making people aware of the Services or communicating by bulk email to a mailing list that complies with the CAN-SPAM Act, and all other applicable laws.  Thus you, must abide by the following requirements: 

• No false or misleading header information. 

• The email should appear to come from the exact sender.  This means that the email cannot appear to come directly or indirectly from the Company.

• No deceptive subject lines.  The subject line cannot mislead the recipient about the contents or subject matter of the message. The subject line should only represent the Services in the truest form.

• You must give recipients an opt-out method. you must provide a return email address or another Internet-based response mechanism that allows a recipient to ask you not to send future email messages to that email address, and you must honor the requests. you must also include your physical address. Company reserves the right to compile these opt-out requests in order to populate an opt-out exclusion database.

 

iv. Restrictions on Use of Social Media

iv(a). You are permitted to use social media to promote your activities in connection with the Program as long as they only incorporate Licensed Materials and do not otherwise violate the terms of this Agreement.  you are not permitted to claim to be us in connection with any of your activities. 

iv(b). You must comply with all terms of services posted on any social networking site that you are using.  If we become aware that you have received a suspension and or terminations notice from a third party website, we reserve the right to terminate you from the Program.

iv(c). Mentions on micro-blogs, such as (but not limited to) Twitter can only be used a maximum of five (5) times per day.  Activities that consist of messaging that only include direct links that don't engage in a more detailed conversation are subject to removal from the Program.

iv(d). Spam reports from any social media site are grounds for termination from the Program.

iv(e). If you are not sure your social networking methods are permitted, please ask, by contacting us using the e-mail address for approvals below.

v. Restrictions on Use of Messaging

v(a). You will not use phone numbers which you do not own.

v(b). You will not participate in spam of any kind.

vi. Other Restrictions

vi(a). If you are operating in a way that allows you to pay and/or approve of sub-partners (Partners who work on your behalf), you will not be permitted to participate in the Program unless you have prior written permission from us to do so.

vi(b).  You will not act in any way that might interfere with the operation of or otherwise harm the Services.  you will not attempt any unauthorized access to or use of the Services and will not attempt to access or gather any information regarding users of the Services.

vi(c). You will not offer any discounts, rebates or other similar offers associated with the Services without our prior written approval.

vi(d). Your website or other Partner Materials will not link to an offshore gambling service or otherwise link to Services that are unregulated or considered illegal in the U.S. marketplace.  

c. Obtaining Approvals and Right to Monitor.  If you have questions about any of these restrictions, please contact us at support@Nimbler.com for clarification and to obtain our written approval for using a tool or other marketing device in connection with your marketing activities for the Program.  Any approval by us of your tools or other activities will not, under any circumstances, void, nullify or constitute a waiver of your indemnification obligations hereunder, the independent contractor nature of your engagement or of any of our rights.  Any Partner found to be in violation of the above terms is subject to immediate deactivation from the Program, in addition to all your Referral Fees being forfeited.  We have the right, in our sole discretion, to monitor your Program marketing activities at any time and from time to time to determine if you are in compliance with the terms of the Agreement and terminate your participation in the Program for any failure to comply with the restrictions set forth in this Section 3.  If we terminate for your failure to comply with this Section 3 or other breach of this Agreement, we may withhold payment of your Referral Fees.  you shall notify Company by email at support@Nimbler.com of any known or suspected unauthorized uses of Licensed Materials or any known or suspected breach of security concerning any Licensed Materials.

d. Fraud.  Fraud is a serious offense, and will be treated by us as such.  As used in this Agreement, “Fraud” means any action that intentionally attempts to create false patrons, sales, leads, or click-throughs using any method now or hereafter known, including, without limitation, robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of generating Referral Fees.  Misuse of Licensed Materials, including the use of banners or links in unapproved places, such as newsgroups, chat rooms, message boards, banner networks, hit farms, counters, or guest books etc. is cause for your account to be terminated with a forfeit of all your Referral Fees.  For the purposes of this Agreement, “Fraud” shall include, but shall not be limited to: (i) acts made in bad faith; (ii) a Referred Customer’s collusion with any other player on the Services; (iii) you or any third party offering or providing any unauthorized incentive (financial or otherwise) to potential customers (including, without limitation, the sharing by you of any Referral Fees earned by you through your promotion of the Services); or (iv) the creation of multiple user accounts (including those to be used by you or your friends, relatives or associates) in order to abuse the Referral Fee mechanism.  Reporting or committing false or fraudulent transactions in an effort to increase your Referral Fees are illegal, will not be tolerated, and may result in termination of your Program account and the forfeiture of all your Referral Fees and may result in the fraud being reported to legal authorities.  If we suspect you are involved in Fraud, we may withhold all Referral Fees that are owed to you. 

4. Transactions

a. Transaction Eligibility Requirements. To be eligible to receive Referral Fee, a prospect must be registered, accepted and valid. you are not eligible to receive a Referral Fee or any other compensation from us, based on transactions with a Nimbler Lead (as defined below) or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable end user objects to or prohibits such compensation or excludes such compensation from its payments to us or our Partners; (iii) we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us with respect to a given transaction; (iv) the end user has paid or will pay such commissions, referral fees, or other compensation directly to you; (v) the end user participates in this Program, or (vi) for any transactions with end user that precede in time to you becoming a Partner in this Program under this Agreement. 

b. Submission, Acceptance and Validity of Prospects. You must register each prospect with us. To register a prospect and a deal, you must provide at least the following information about each prospect: contact first name, contact last name, email, and company name. We generally will accept a prospect who, in our determination: (i) is a new potential customer of ours; (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, involved in our active sales process, or your Partner; (iii) is a legitimate prospect whose contact information was legally obtained.  Notwithstanding the foregoing, we may choose not to accept a prospect, in our sole discretion. We may choose to do so at the time of your registration submission, or we may reject a prospect and remove attribution to you if we determine a prospect does not meet the criteria outlined in this Section 4.b. at any point after submission, even in cases where it was initially accepted. A prospect is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) if it is expired, (iv) if it exceeds the registered capacity limits or other applicable limits, or (v) after this Agreement is expired or terminated.  Once the valid prospect is ready to purchase, we will, at our discretion, accept an order and provision the Services for the end user in order to complete a qualified transaction.  Please note that you must have a written and readily available privacy policy and you certify that you are providing the prospect’s information to us in accordance with not only all applicable laws and regulation but also in accordance with your own privacy policy. 

c. Nimbler Leads. We may choose to introduce you to, or send you information on, a prospect of ours when we identify that such prospect may have a need for the services you offer (each, a “Nimbler Lead”). We can do the same for other Partners of ours, even if it is for the same Nimbler Lead. you may use the information about the Nimbler Lead provided only to market and sell your services to them and not for any other purpose (unless the Nimbler Lead otherwise consents). Immediately upon our or the Nimbler Lead’s request, you will promptly discontinue all use of and delete the Nimbler Lead’s information. Nimbler Leads are considered our Confidential Information and shall be treated in accordance with the ‘Confidentiality’ section below.

 

d. Shared Leads. If we decide to participate in the same sales process as you and this results in the sale of the Subscription Service to a prospect that would have otherwise not been valid based on it (i) not being registered, (ii) not being accepted, (iii) being expired, or (iv) exceeding the registered capacity limits or other applicable limits, (each, a “Shared Lead”) and you have an active engagement with such Shared Lead, then we may in our discretion, determine that Shared Lead will be considered a registered, accepted and valid prospect for the purposes of the ‘Eligibility’ section above.  Nimbler may request you to provide proof of active engagement (for example, by providing a copy of your retainer agreement with the end user if we so request) for managed and/or sold credit.

 

e. Engagement with Prospects and end users.  We may engage with a prospect, lead or end user directly (i) to complete the subscription process, (ii) to fulfill or enforce our obligations under an agreement with such prospect, (iii) to provide support, (iv) to conduct our standard marketing and sales activities with prospects, or (v) as otherwise permitted by this Agreement.  If and when we do engage, we may choose how to engage with each prospect and may request that you collaborate with us in the engagement. Upon our request, you will provide us with the name and contact information of the prospect, and facilitate an introduction. If a prospect is not valid then we may choose to maintain it in our database and we may choose to engage with such a prospect.   If we request, you will facilitate our participation on calls with you and various end user(s). We may request to participate on these calls in an effort to help to ensure the quality of your service delivery and for the purposes of managing the Program.   In a resulting qualified transaction, (i) the end user will contract directly with us for provision of the Services, or (ii) you will place order(s) and contract with Nimbler in your own capacity for the Services with us, specifying the terms of the Services ordered and providing information about the end user as we may request. 

5. REFERRAL FEES.  

a. Requirements for Payment; Forfeiture. In order to receive payment under this Agreement, you must have: (i) agreed to and complied with the terms of this Agreement; (ii) provided us with all of your account information, including your bank information for payment; and (iii) submitted to us all the necessary and valid tax documents, including VAT invoices where necessary, and the documents have been approved. In order for you to receive the Referral Fee you must have submitted the required documentation set out in this section no later than thirty (30 ) days after the end of any given fiscal quarter.  If we have not received such documentation within this timeframe, we will not process the Referral Fee payment until the next fiscal quarter payment date for applicable qualified transactions.

All payments by Nimbler will be made by bank transfer or other payment services approved by the Company and it is your responsibility to ensure that you have provided us with the most up-to-date and correct bank information to facilitate the transfer. We will not issue payment by any other means. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) if any of the requirements set forth in this section, Section 5. a., remain outstanding for six (6) months immediately following the close of a qualified transaction, or (ii) we have attempted to pay you a Referral Fee for a qualified transaction by bank transfer, and the attempt was unsuccessful (as confirmed by bank notice), to no fault of our own; and (iii) we reached out to your Contact to obtain the necessary information and have not received a response; and (iv) six (6) months has passed since the date of the initial, failed bank transfer described herein, then your right to receive Referral Fee arising from any and all qualified transactions(s) with the associated end user will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you a Referral Fee associated with a Forfeited Transaction.

Once you comply with all of the requirements in this Section 4 then you will be eligible to receive Referral Fee on qualified transactions, as long as these qualified transactions do not involve the same end user associated with a Forfeited Transaction.

b. Referral Fee Payment. We will pay the Referral Fee amount due to you within forty-five (45) days after the end of each fiscal quarter.  We may withhold the Referral Fee payment until the Referral Fee amount that we owe you is above $100 USD.

c. Taxes. You are responsible for payment of all taxes applicable to the Referral Fee. You will be assessed sales tax unless you provide us with a valid reseller certificate that indicates tax should not be applied to the Referral Fee amount.  All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.

6. TERM AND TERMINATION.  The term of this Agreement will begin upon the Effective Date and will end when terminated by either party in accordance with this Agreement (“Term”).  Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination.  If we terminate this Agreement because you are in breach of a term hereof, including, without limitation, if you are in breach of any of the representations and warranties in Section 7 or if Company learns that improper payments are being or have been made to Foreign Officials or any private party by you or your subcontractors with respect to services performed on behalf of Company or any other entity, we may withhold compensation payable to you and we may terminate this Agreement without further obligation to you including the obligation to pay compensation.  All licenses granted herein terminate automatically upon termination of this Agreement, and the licensee of any subject matter will immediately cease use of any Licensed Materials.  In addition, each party may terminate any license in part at any time by giving the other written notice that specified licensed subject matter may no longer be used, or may no longer be used in a particular manner.  Either party may terminate this Agreement with immediate effect if: (i) any relevant regulator disapproves this Agreement or the commercial components thereof and the parties, acting together in good faith, are not able, without materially frustrating the commercial intent of this Agreement, to amend the Agreement so that the regulator approves this Agreement in a timely manner; (ii) any relevant gambling law or regulation invalidates or it becomes otherwise illegal for you to provide the services to the Company under the Agreement; or (iii) any relevant federal or state regulator revokes either party’s license or registration or denies its application for such license or registration. Company may terminate this Agreement with immediate effect if Company learns that you supplied information during the course of the due diligence process, whether such process takes place before this Agreement is entered into or thereafter, that is false, misleading or materially incomplete and/or that Company believes could expose it to significant legal, regulatory, reputational, or financial harm were Company not to terminate the Agreement.  Further, in the event of such termination, you shall not be entitled to any further payment, regardless of any activities undertaken or agreements with additional third parties entered into prior to termination, and you shall be liable for damages or remedies as provided by law.

7. REPRESENTATIONS AND WARRANTIES.  you hereby represent and warrant to us as follows:

1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.

2. Your execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate: (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.

3. You are the sole and exclusive owner or authorized licensee of the Partner Materials and have the right and power to grant to us the license to use the Partner Materials in the manner contemplated herein, and such grant does not and will not: (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity.  In addition, your performance under this Agreement will not infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity.

4. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third-party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.

5. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any partner of yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to the Partner Materials, and, to the best of your knowledge, there is no basis for any such claim, action or proceeding.

6. You represent to Company that you are duly authorized under applicable law to provide the services on a permanent basis as an independent contractor and that you have the ability, experience, contacts, expertise and resources to provide the services and to perform all of its obligations hereunder. you warrant and undertake that there is no legal, commercial, contractual or other restriction, which precludes or might preclude it from fully performing its obligations pursuant to this Agreement. 

7. You represent that you hold all the necessary approvals, licenses and permits insofar as required by any applicable law for the provision of the services in accordance with this Agreement and that you shall continue to hold such approvals, licenses and permits during the Term of this Agreement. 

8. You shall use best efforts to perform the services in a manner consistent with good business ethics and in good faith towards the Company. 

9. You shall not undertake any action which could reasonably be construed as bringing the Company into material disrepute or to create a material negative perception of the integrity of the Company.

10. You shall not undertake any action which may have a detrimental impact on the ability of Company to be qualified for or to hold or maintain any license, permit or approval granted, or to be granted, by any competent authority.

11. For purposes of this provision: (i) “Foreign Official” is defined as any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.  You may not and will not directly or indirectly offer or pay, or authorize such offer or payment, any money or anything of value to improperly and corruptly seek to influence any Foreign Official or foreign government entity decision-making or to gain a commercial or other improper advantage for Company.  you have not and will not corruptly directly or indirectly offer, promise or give, or authorize such offer, promise of giving, any financial or other advantage to induce or reward a person to perform improperly a relevant function or activity.  In carrying out your responsibilities under this Agreement, you will implement all necessary controls and procedures to ensure that any contractual relationship it enters into with any subcontractor or other third party acting on its behalf and on behalf of Company is permissible under the FCPA, the UK Bribery Act, applicable local laws and regulations, and applicable industry codes.  All the information provided by you during the due diligence process was accurate and contained no material omissions.  Should you be found to have violated the FCPA, or any other criminal laws of the United States or local laws (including the UK Bribery Act) in the country in which you are operating in conjunction with carrying out the terms of this Agreement, and should Company have, as a result, incurred attorneys’ fees, costs and other expenses, you agree that Company is entitled to recover from you such fees, costs, and other expenses.

8. Dispute Resolution 

PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.

A. First – Try to Resolve Disputes and Excluded Disputes.  If any controversy, allegation or claim arises out of or relates to the Services, the Program or this Agreement, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Company’s actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in Section 8(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it.  Our notice to you will be sent to you based on the most recent contact information that you provide us.  But if no such contact information exists or if such information is not current, then we have no obligation under this Section 10(A).  Your notice to us must be sent via certified U.S. mail to: Nimbler, 1800 Century Park East, Suite 600, Los Angeles, CA 90067, USA (Attn: Legal Department).  The written description included in your notice must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; the date of any purchase or transaction at issue (if any and if available), and the relief sought.  For a period of sixty (60) days from the date of receipt of notice from the other party, Company and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, through an informal telephonic dispute resolution conference between you and Company in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Company to resolve the Dispute or Excluded Dispute on terms with respect to which you and Company, in each of our sole discretion, are not comfortable.  The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference.  If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference.  This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding.  The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process.  Certain portions of this Section 10(A) are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act (“FAA”).  you and Company agree that we intend that this Section 10(A) satisfies the “writing” requirement of the FAA.

B. Binding Arbitration.  If we cannot resolve a Dispute as set forth in Section 8(A) within sixty (60) days of receipt of the notice, then ANY DISPUTE ARISING BETWEEN YOU AND COMPANY OR ANY THIRD-PARTY BENEFICIARY OF THESE TERMS (whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, any other intentional tort or negligence), common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory), whether arising before or after the effective date of these Terms, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION.  The FAA, not state law, shall govern the arbitrability of all disputes between Company and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below.  BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY.  Company and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 8(J) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies and damages arising between you and Company regarding these Terms and the Services, whether arising or stated in contract, statute, common law or any other legal theory, without regard to any jurisdiction’s choice of law principles.  An Excluded Dispute will only be subject to binding arbitration pursuant to this Section 8 if the parties mutually agree.  Any Dispute will be resolved solely by binding arbitration in accordance with the then-current: (i) Consumer Arbitration Rules of the American Arbitration Association “AAA”) then in effect since the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1; and if such Consumer Arbitration Rules do not apply then: (ii) the Commercial Arbitration Rules (collectively, “Rules”) of the AAA, except as modified herein, and the arbitration will be administered by the AAA.   If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Company consent to in writing.  

C. Arbitration Process.  If after sixty (60) days the informal dispute resolution procedure set forth in Section 10(A) above is unsuccessful in resolving the parties’ Dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules.  (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf).  The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside.  The parties will first attempt to agree on an arbitrator.  If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the Rules.  The arbitration may be conducted by telephone or based on written submissions, and if an in-person hearing is required, then it will be conducted in the county where you live or at another mutually agreed upon location.  you and we will pay the administrative and arbitrator’s fees and other costs (and please note that you will be responsible for a portion or percentage of such fees) in accordance with the requirements of the Rules; but if the Rules (or other applicable arbitration rules or laws) require Company to pay a greater portion or all of such fees and costs in order for this Section 10 to be enforceable, then Company will have the right to elect to pay the fees and costs and proceed to arbitration.  Except as set forth in Section 10(D), the arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim.  The arbitrator will render an award within the time frame specified in the Rules.  The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award.  Judgment on the arbitration award may be entered in any court having jurisdiction thereof.  The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the Rules, and these Terms.  The arbitrator’s award of damages and/or other relief must be consistent with the terms of the Limitations of our Liability Section above as to the types and the amounts of damages or other relief for which a party may be held liable.  If a claim is brought seeking public injunctive relief and a court determines that the restrictions prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated.  In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court.  In no event will a claim for public injunctive relief be arbitrated.  All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide.  Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.  If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), Company will have the right to recover its attorneys’ fees and expenses.  This arbitration provision shall survive termination of these Terms or the Service.  you can obtain AAA and JAMS procedures, rules and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.

D. Special Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against Company by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed.  you also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule.  Counsel for the claimants and counsel for Company shall each select five (5) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process; the parties may but are not required to agree in writing to modify the number of cases to be included in the bellwether process.  The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision.  In the bellwether process, a single arbitrator shall preside over each case.  Only one case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise.  After decisions have been rendered in the first ten (10) cases, Company and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases.  If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.  After decisions have been rendered in the second group of twenty (20) cases, Company and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein.  Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases, in order to increase the efficiency of administration and resolution of arbitrations, the arbitration Company shall: (i) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch.  you agree to cooperate in good faith with Company and the arbitration Company to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims.  This “batch arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind.  Company does not agree or consent to class arbitration, private attorney general arbitration or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 8(D).  The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Section 8(D) from the time of the first cases are selected for a bellwether process until the time your case is selected to proceed, withdrawn or otherwise resolved.  A court shall have authority to enforce this Section 8(D) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Company.

E. Limited Time to File Claims.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES—OR IT WILL BE FOREVER BARRED.  Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 8(A); (b) filing for arbitration with JAMS as set forth in Section 8(B); or (c) filing an action in state or federal court.  The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.

F. Injunctive Relief.  The foregoing provisions of this Section 8 will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with, any loss, cost or damage (or any potential loss, cost or damage) relating to the Services, the Program, this Agreement and/or Company’s intellectual property rights (including such Company may claim that may be in dispute), Company’s operations and/or Company’s products or services.  

G. No Class Action Matters.  YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION.  Except as expressly contemplated for mass arbitrations set forth in Section 8(D), Disputes and Excluded Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.  There shall be no right or authority for any Dispute or Excluded Dispute to be arbitrated on a class action basis or on any basis involving Disputes or Excluded Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated.  But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 8(B) to arbitrate will not apply and the Dispute or Excluded Dispute must be brought exclusively in court pursuant to Section 8(F).  Notwithstanding any other provision of this Section 8, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator.  The arbitrator does not have the power to vary these class action waiver provisions.  Notwithstanding any other provision of this Agreement, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire arbitration agreement shall be void.  If any portion of this arbitration agreement other than the class action waiver and prohibition against class arbitration is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration agreement.  

H. Federal and State Courts in Los Angeles County, California.  Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute, arising hereunder may only be instituted in state or federal court in Los Angeles County, California.  Accordingly, you and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.

I. Small Claims Matters Are Excluded from Arbitration Requirement.  Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court on an individual basis for disputes and actions within the scope of such court’s competent jurisdiction. 

9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR ACCESS TO AND USE OF THE SERVICES AND THE PROGRAM IS AT YOUR SOLE RISK.  THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.  Therefore, to the fullest extent permissible by law, Company and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors and assigns (collectively, the “Company Parties”) hereby disclaim and make no representations, warranties, endorsements or promises, express or implied, as to: 

(a) the Services; 

(b) the Program;

(c) whether the Services or your use thereof constitute an “automatic telephone dialing system” (“ATDS”), “advertising,” “telemarketing,” or “solicitations,” as such terms are used and defined in the TCPA or by other applicable related regulations or law; 

(d) the functions, features, terms, or any other elements on, or made accessible through, the Services (including but not limited to SMS/MMS Codes); 

(e) any products, services (including, without limitation, the Services) or instructions offered or referenced at or linked through the Services; 

(f) security associated with the transmission of your materials to customers and data transmitted to Company via the Services or using SMS/MMS Codes (other than the Services’s SOC 2 and HIPAA compliant security measures); 

(g) whether the Services or the servers that make the available are free from any harmful components (including viruses, Trojan horses, and other technologies that could cause harm);

(h) whether the information (including any instructions) on the Services is accurate, complete, correct, adequate, useful, timely or reliable;

(i) whether any defects to or errors in the Services will be repaired or corrected; 

(j) whether your access to the Services (including use of SMS/MMS Codes) will be uninterrupted; 

(k) whether the Services and Program will be available at any particular time or location; 

(l) whether certain SMS/MMS Codes will be assigned to you, either exclusively or on a shared basis; 

(m) whether your use of the Services (including SMS/MMS Codes) is lawful in any particular jurisdiction; and 

(n) whether any text/SMS/MMS messages sent using the Services, regardless of the type of SMS/MMS Codes used, will be actually delivered to and received by the intended recipients on their mobile devices (including but not limited to messages that are not delivered to the extent the SMS/MMS Codes used are not registered, verified, or approved by any phone service carrier).

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A COMPANY PARTY, COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. 

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

10. LIMITATIONS OF OUR LIABILITY

UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental or consequential losses or damages that are directly or indirectly related to:

(a) the Services (including the SMS/MMS Codes) or use thereof, including but not limited to any violation of the TCPA or other applicable laws, statutes, or regulations; 

(b) the Services, including, without limitation, lost communications, errors, mistakes, typos, communication failures, etc.;

(c) your use of or inability to use the Services or participate in the Program or the performance of the Services; 

(d) your use of any mobile alert terms and conditions we make available through the Services; 

(e) any action taken in connection with an investigation by Company Parties or law enforcement authorities regarding your access to or use of the Services or participation in the Program;

(f) any action taken in connection with copyright or other intellectual property owners or other rights owners; 

(g) the availability and use of any particular SMS/MMS Codes provided in the course of using the Services, or the registration or verification thereof;

(h) the delivery and/or deliverability rates of any text/SMS/MMS messages that might be sent using the Services;

(i) any errors or omissions in the Services’ technical operation, including delivery of messages; or 

(j) any damage to any user’s computer, hardware, software, modem or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the Company Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure or destruction of the Services).  

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.  

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES, YOUR UTILIZATION OF OUR SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID COMPANY IN THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.  

11. Waiver of Injunctive or Other Equitable Relief

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES AND OUR PROVISION OF THE SERVICES, THEN THE LOSSES, DAMAGES AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND.  THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OF COMPANY.

12. Feedback you Submit

A. General.  Company may now or in the future offer users of the Services the opportunity to post, upload, display, publish, distribute, transmit or otherwise make available on or submit through the Services, messages, text, files, comments, responses, information, content, results, reviews, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “Feedback”).  Company may allow you to do this through contact us, email and other communications functionality.  Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title and interest that you have in your Feedback and you remain ultimately responsible for it.

B. Non-Confidentiality of your Feedback.  You agree that: (a) your Feedback will be treated as non-confidential—regardless of whether you mark them “confidential,” “proprietary” or the like—and will not be returned; and (b) Company does not assume any obligation of any kind to you or any third party with respect to your Feedback.  Upon Company’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with this Agreement.  

C. License to Company of your Feedback.  Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your Feedback, you hereby grant to Company, and you agree to grant to Company, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of and otherwise use and exploit in any manner whatsoever, all or any portion of your Feedback (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market and promote the same.  Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format and remove such Feedback and combine same with other materials, and (b) use any ideas, concepts, know-how or techniques contained in any Feedback for any purposes whatsoever, including developing, producing and marketing products and/or services.  In order to further effect the rights and license that you grant to Company to your Feedback, you also hereby grant to Company, and agree to grant to Company, the unconditional, perpetual, irrevocable right to use and exploit your name, persona and likeness in connection with any Feedback, without any obligation or remuneration to you.  Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Feedback, even if it is altered or changed in a manner not agreeable to you.  To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.  you understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 12(C).

15. Updates to Terms

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable Services to which it applies, shall govern such use (including transactions entered during such use).  AS OUR SERVICES AND OUR SERVICES EVOLVE, THE TERMS OF USE UNDER WHICH WE OFFER THE SERVICES AND SERVICES MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICES OR THE PROGRAM UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.  ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICES OR UTILIZE OUR SERVICES OR THE PROGRAM, YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS OF USE AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICES (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICES AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS.  Therefore, you should review the posted terms of service and any applicable each time you use the Services and participate in the Program (at least prior to each transaction or submission).  The new terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you.  However, this Agreement that applied when you previously used the Services and participated in the Program will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed.  In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs.  you should frequently check the home page, and the email you associated with your purchases for notices, all of which you agree are reasonable manners of providing you notice.  you can reject any new, revised or additional terms by discontinuing use of the Services and participation in the Program.

16. General Provisions

A. Company’s Consent or Approval.  As to any provision in this agreement that grants Company a right of consent or approval, or permits Company to exercise a right in its “sole discretion,” Company may exercise that right in its sole and absolute discretion.  No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company.  

B. Applicable Law.  These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.

C. Indemnity.  You agree to, and you hereby defend, indemnify and hold Company Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your use of the Services and participation in the Program and your activities in connection with the Services and the Program, including, without limitation, any message sent by you through your use of the Services or use of SMS/MMS Codes; (ii) your breach or alleged breach of this Agreement; (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities in connection with your use of the Services, your participation in the Prorgram or your activities in connection therewith; (iv) information, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or entity; (vi) any misrepresentation made by you; (v) any other party’s access and/or use of the Services/Program with your account; (vi) any failure to obtain consents required by applicable law or regulations prior to sending communications using the Services; (vii) any privacy or spam policy violation alleged to have been committed through any use of your account; and (viii) Company Parties’ storage, use and distribution of the information and data (including mobile numbers) that you provide to us (all of the foregoing, “Claims and Losses”).  you agree to cooperate as fully as reasonably required by the Company Parties in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action involving Claims and Losses, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you.  you will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company Party.  you acknowledge and agree to be held liable for any and all damages caused to the Company Parties by you as a direct result of a violation of local, state, national or international laws and regulations, including, but not limited to, those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by the Company Parties to you.

D. Operation of Services; Availability of Services; International Issues.  Company controls and operates the Services and the Program and provides the same from its California based offices in the U.S.A., and Company makes no representation that the Services or the Program (including but not limited to SMS/MMS Codes) are appropriate or available for use beyond the U.S.A.  If you use the Services and participate in the Program from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.  The Services may describe services that are available only in the U.S.A. (or only parts of it) and are not available worldwide.  We reserve the right to limit the availability of the Services, the Program and/or the provision of any content, program, product, service or other feature described or available on the Services or in the Program to any person, entity, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide.  you and we disclaim any application to this Agreement of the Convention on Contracts for the International Sale of Goods.  Delivery and delivery rates of text/SMS/MMS messages are the responsibility of third party mobile carriers to whom such messages are delivered and may vary.

E. Export Controls.  Software related to or made available by the Services may be subject to export controls of the U.S.A.  No software from the Services may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or Services (which, as of the effective date of this Agreement, includes Cuba, North Korea, Iran, Sudan, and Syria), (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses).  you are responsible for complying with all trade regulations and laws both foreign and domestic.  Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity or end-user, subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.

F. Severability; Interpretation.  If any provision of this Agreement, is for any reason deemed invalid, unlawful, void or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect).  To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.  Wherever the word “including” is used in this Agreement, the word will be deemed to mean “including, without limitation.”

G. Communications.  When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically.  Please note that we are not obligated to respond to inquiries that we receive.  you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.  you agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Services, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you.  you agree to promptly notify us if you change your email or mailing address.  

H. Investigations; Cooperation with Law Enforcement; Termination; Survival.  Company reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Services security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Company in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Services and/or the Program, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party.   Any suspension or termination will not affect your obligations to Company under this Agreement.  Upon suspension or termination of your access to the Services/Program, or upon notice from Company, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately discontinue use of the Services and the Program.  The provisions of these this Agreement, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Company in this Agreement, as well as the indemnities, releases, disclaimers and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action and mandatory arbitration.

I. Assignment.  Company may assign its rights and obligations under this Agreement, in whole or in part, to any party at any time without any notice.  This Agreement may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.  

J. No Waiver.  Except as expressly set forth in this Agreement: (i) no failure or delay by you or Company in exercising any of rights, powers or remedies under will operate as a waiver of that or any other right, power or remedy, and (ii) no waiver or modification of any term of this Agreement will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.  

K. Connectivity.  You are responsible for obtaining and maintaining all equipment and software, and all internet service Company, mobile service and other services needed for your access to and use of the Services and participation in the Program and you will be responsible for all charges related to them.

L. Confidentiality.  Each party may have access to the other party’s information, which shall be deemed confidential information if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans and any information which provides a competitive advantage.  The receiving party shall protect the other’s confidential information with the same degree of care it uses for its own confidential information (and at least a reasonable degree of care), shall use the information only to carry out this Agreement, and shall disclose the information only to its employees (or agents bound by similar confidentiality obligations) with a need to know for that purpose.  Confidential information shall remain the property of the disclosing party and shall be destroyed upon request.  Notwithstanding the above, neither party shall be required to accelerate the destruction of any archival back-up tapes created in the ordinary course of business, even if such archival back-up tapes contain confidential information.  Information shall not be deemed confidential information if it: (i) is disclosed by the disclosing party to others without restriction on use and disclosure; (ii) becomes known to the receiving party without restriction from a third party who is not in breach of a confidentiality agreement with the disclosing party; (iii) is already known by the receiving party at the time of disclosure; or (iv) is independently developed by the receiving party without any reliance on the confidential information of the disclosing party.  Confidential information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure. 

M. Force Majeure.  Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.

N. Subcontractors.  You acknowledge that we will, in the rendition of the Services and the Program hereunder, engage third party suppliers and other vendors and subcontractors (collectively, “Subcontractors”) to provide certain Services offered as part of the Services.  Company shall supervise such services and endeavor to guard against any loss to you  as the result of the failure of Subcontractors to properly execute their commitments, but we shall not be responsible for their failure, acts or omissions and cannot guarantee any Subcontractor’s performance.