Agreement Terms October 25011.

3.1. TXN Fee Processing Period. Transaction overage fees are assessed at the conclusion of each monthly billing period which shall be the “TXN Fee Processing Period”.

3.2. Operators Definitions. As used herein, “Operator” means either a connection aggregator providing connections to network Operators or actual network Operators providing wireless service to mobile subscribers.

3.3. Payments due to SUMOTEXT from Client

3.3.1. Invoices. SUMOTEXT will invoice Client for the Monthly Service Fees in advance of each Processing Period and will invoice Client for any MT Overage Fees following the respective Processing Period. Initial Setup Fees and Monthly Base Service Fees shall be paid within 15 business days of signature. All other payments must be received by SUMOTEXT within 30 days from the invoice date. Any amounts not paid by Client when due will be subject to a finance charge equal to one and one half percent (1.5%) per month or the highest rate allowable by law, whichever is less, which shall be determined and compounded monthly from the date due until the date paid. Failure to timely pay invoices within 60 days of their due date may result in immediate suspension or termination of this Agreement at SUMOTEXT’s sole option.

3.3.2. Form of Payment. SUMOTEXT shall deliver written invoice to Client.

3.3.3. Taxes. Taxes shall be separately itemized on the bills rendered to Client and paid by Client.  Should any Federal, state or local jurisdiction determine that additional taxes or surcharges (and interest, penalty and/or surcharges thereon) are due on services provided under this Agreement, SUMOTEXT shall so advise Client and Client shall be liable for any such tax, interest, penalty and surcharge.  However, if the Client disagrees with the assessment of any such additional tax, penalty, surcharge and interest, the Client shall, at its option and expense (including payment of any such assessment prior to final resolution of the issue), have the right to protest the assessment and participate in any legal challenge to such assessment, but shall be liable for any tax, penalty, surcharge and interest ultimately determined to be due.  SUMOTEXT shall, when requested by Client and at Client’s expense, reasonably cooperate with Client in any such protest or legal challenge.

3.4. SUMOTEXT Fees. “SUMOTEXT Fees” are those fees due to SUMOTEXT as specified and applicable Section 2 of this Agreement.

3.5. Third Party Costs. SUMOTEXT may pass-through additional fees (at cost) from Aggregators, Network Operators and other third parties as required to deliver the service. SUMOTEXT will pass these fees to Client without mark up and provide advanced written notice, notification, and proof of charges as soon as received.

3.6. Third Party Unique Short Code Fees. This section will apply should Client decide to utilize a unique short code. “Third Party Fees” are non-Operator fees incurred by SUMOTEXT to register the Client’s program. These may include, when applicable, CSCA fees or other fees.  Such charges are itemized and included in the invoice when due at the actual cost incurred by SUMOTEXT.  By way of example only, CSCA fees are currently $1500.00 per three month period for random 5 digit short codes, and $3000.00 per three month period for vanity 5 and 6 digit short codes.

If Client wishes to dispute any invoice or payment, it shall due so in writing, with detailed calculations documenting the basis and nature of amounts disputed, within 30 days of receipt of such invoice or payment. Otherwise, Client shall be deemed to have accepted the correctness of invoice or payment.  In any event, should Client dispute an invoice or payment due, Client or SUMOTEXT, as applicable, shall make payment of all amounts that are not disputed on schedule according to the terms of this agreement. Any adjustments relating to a disputed amount shall be reflected on the next monthly invoice or payment issued after resolution.

Upon written notice of not less than thirty (30) calendar days and no more frequently than twice per calendar year, Client may audit the fees paid or payable to Client. Any such audit shall be only of documents relevant to payments to or invoices due from the Client. Any such audit shall be performed at Client’s expense, and during normal business hours. The auditor shall be an independent third party CPA retained at the expense of the Client and shall sign a confidentiality agreement reasonably acceptable to SUMOTEXT.

6.1. Term. Specific Term details are contained in your original agreement. 

6.2. Termination. Specific Termination details are contained in your original agreement. 

6.3. Effect of Termination. Upon the termination of this Agreement for any reason, Client’s rights to use the Services, and any other rights granted hereunder shall immediately cease; and each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this Agreement will not relieve SUMOTEXT or Client from any liability or fees arising prior to the termination of this Agreement. Notwithstanding the foregoing, the provisions of Sections 7.3, 11.1, 11.2, 11.3, 11.4, 11.5 and 11.9 will survive this Agreement.

i. Maintain its own communication lines as required to access the SUMOTEXT Service;
ii. Ensure that the data provided in conjunction with the Services, and for enrollment for the Services, is accurate, complete, and in the form as requested by SUMOTEXT;
iii. Comply with the Policies specified in this Agreement.
iv. Be referenced by SUMOTEXT as a client of SUMOTEXT.

SUMOTEXT shall provide the following (collectively, the “SUMOTEXT Services” or “Services”):

i. Access to the SUMOTEXT software interfaces required for Client to utilize the service, including a specific login ID and password for the Clients sole use on the SUMOTEXT system;
ii. Messaging access to users via the corresponding Operator, provided such Operator is then-currently connected to SUMOTEXT; and
iii. Standard and reasonable telephone and email technical support to the Client during SUMOTEXT’s normal business hours.

9.1 Use of Service. SUMOTEXT hereby grants to Client the right to access and use both the SUMOTEXT standard Services and the CUSTOM applications developed by SUMOTEXT in accordance with the Agreement. Client may use the Service only for Client’s commercial business purposes and shall not:

i. Interfere with or disrupt the integrity or performance of the Service or the data contained therein; or
ii. Attempt to gain unauthorized access to the Service or its related systems or networks.
iii. Share any work product, code base, or design document produced by SUMOTEXT with any third party without expressed written permission, or
iv. Claim ownership of any work product, code base, or design document produced from any professional services efforts under any custom application development project performed by SUMOTEXT.

9.2 Client agrees that its use of the Software, Technology, Website and other materials and information provided by SUMOTEXT to Client, shall be limited to Client’s use of the Services and be in conjunction with the Transactions and governed by this Agreement.

9.3 Transmission and Billing Access. Client acknowledges that use of the Services involves transmission through Operators or companies other than SUMOTEXT and messages and Transactions may not be private in certain circumstances, and may be changed by those other companies to conform and adapt to their requirements of networks and devices. SUMOTEXT assumes no responsibility for timeliness, deletions, mis-delivery or failure to store any Content or Transaction. 

9.4 Content. Client acknowledges that the content transmitted by Client related to the Services (“Content”) is the sole responsibility and liability of Client. Under no circumstances will SUMOTEXT or any of the SUMOTEXT indemnified parties be responsible for any loss, damage or liability arising out of Content of any Transaction, including any mistakes contained in Content or the use or transmission of Content. 

9.5 License. Client grants to SUMOTEXT a non-exclusive, license to process MO and MT text message transactions over carrier networks. This license shall be sub licensable to the Operators and any third party subcontractors of SUMOTEXT.

9.6 Unique Short Code Programs. If Client changes the nature and structure of their Program as described to the carriers, Client will immediately supply SUMOTEXT with written notification. Client acknowledges that SUMOTEXT may modify the Short Code Program Form to more accurately describe the Client’s Program. SUMOTEXT must receive all setup fees, as described in Section 3.3.1 prior to commencement of the approval process by Operators. SUMOTEXT will not activate any Short Code until SUMOTEXT has fully reviewed and approved a Client Program and received such approvals from Operators. Client acknowledges that Program approvals by Operators are subject to change and in such event may require modification or termination of a Program. In such case SumoText will notify Client at the same time SumoText is notified. 

9.7 Operator Approval and Program Modification. SUMOTEXT must obtain approval from Operators to activate a specific Program and conduct Transactions for that Program on the Operator network.  In the case of a Program that is not approved or is initially approved but later become not approved due to policy changes by some or all Operators, the Client will be responsible for additional development and testing fees (at SUMOTEXT standard rates) that may be required to bring the program back into compliance for the Operator.

9.8 CSCA Registration. Should Client utilize a unique short code, Client is required to register and keep current all cross-carrier 5-digit Short Codes with the Common Short Code Authority (CSCA) run by CTIA and Neustar. Upon request by Client, SUMOTEXT is authorized under this Agreement to register and provision the Short Code on behalf of Client with the CSCA, such that the CSCA will bill SUMOTEXT for such Short Code. Such fees shall be included in fees due from Client.

9.9 Preview Lookups. Client will not be charged an additional fee for “Automatic Preview Lookups” which are number lookups performed by SUMOTEXT when required to properly route a message or Transaction. The fee for Automatic Preview Lookups is included in the rate structure for such messages or Transactions. Client will be charged an additional fee for each “Offline Preview Lookups”, which are number lookups initiated by the Client that is not part of a message or Transaction. SUMOTEXT makes no warranty of any kind, express, or implied or statutory, regarding the accuracy of data returned from the preview lookup system.

9.10 Compliance with Use Policies and Law. Client shall adhere to all policies from SUMOTEXT and the Operators regarding Content, Services, user interaction, and Transmission of messages, including without limitation the SUMOTEXT Acceptable Use Policies as updated from time to time and other policies that may be issued by specific Operators. The SUMOTEXT Acceptable Use Policies shall be provided to Client in writing and Client shall be notified in writing of any changes or updates. It is the Client’s material obligation to routinely review the SUMOTEXT Acceptable Use Policies.  Additionally and specifically, a) Client will ensure that all such Content and materials do not and will not contain any material that: (i) is unlawful, obscene, or defamatory or violates any intellectual property rights (including but not limited to copyright) or any other rights of any third party; (ii) facilitates any illegal activity; (iii) contains any sexually explicit Content or images; (iv) is false, misleading, or likely to mislead or deceive (including, without limitation, information relating to the source or the author of the message); (v) promotes violence, discrimination, or illegal activities; b)Client will ensure that its use of all Content and materials are authorized in a written agreement by fully authorized parties; and c) Client will not send any messages to a user unless such messages are directly related to the Client service as described in the Short Code Program Form.  All of the policies specified or referred to in this Section 9.10 are incorporated herein by reference (collectively, the “Policies”). Client is required to comply with the Policies.  SUMOTEXT is obligated by Operators to take any and all action necessary to maintain the integrity of Content and compliance with the Policies. If Client is not able or willing to promptly correct infringement of Policies, then Client is in breach of this Agreement and SUMOTEXT may terminate this Agreement.

9.11 Security of Account. Client agrees to maintain all security regarding their account ID, password, and connectivity with the SUMOTEXT network and website. Client is responsible for all messages transmitted to the SUMOTEXT network. If Client’s account ID or password are stolen, or otherwise compromised, and used for malicious purposes, Client is responsible for all messages transmitted using the stolen account information.  If Client’s network or service is compromised and used by other parties to send messages or Transactions, Client is responsible for all such messages or Transactions. In the event that the security of Client’s services, network, ID, or password has been violated. Client is obligated to immediately contact SUMOTEXT to have such account ID or passwords changed to prevent malicious use of the Client account.

9.12 Message Volume Increases. Client agrees to provide SUMOTEXT 48 hours advance notice for any single scheduled campaign that will send more than 100,000 mobile terminated (MT) messages.

10.1. Service Level Agreement. SUMOTEXT provides a Service Level Agreement (“SLA”) of 99.9%, meaning that the SUMOTEXT systems will be available for transmission and reception of messages and Transactions from the Client 99.9% of the time in a given Processing Period, excluding scheduled maintenance. Scheduled maintenance and associated downtime shall not exceed 8 hours on a monthly basis and will always be conducted with at least 24 hours notice to Client.  Every reasonable effort will be made to schedule maintenance during off-peak hours.

10.2 Measurement of SUMOTEXT performance under the SLA is determined by the availability and correct functioning of SUMOTEXT service infrastructure including the software and systems necessary for receiving and correctly routing messages and Transactions, and the associated electrical power, routers, switches, hubs, cabling, HVAC, and server hardware for those systems.  Measurement of SUMOTEXT performance under the SLA does not include the availability or the correct functioning of a) the SMS or internet worldwide infrastructure beyond SUMOTEXT’s control; b) Operator infrastructure; c) Client’s infrastructure including network connectivity, hardware, or software; or d) end user mobile devices.  SUMOTEXT network downtime (“SUMOTEXT Downtime”) exists from the time a Client files a trouble ticket with SUMOTEXT notifying SUMOTEXT that SUMOTEXT systems are unable to receive and correctly route messages and Transactions until the time the SUMOTEXT systems are once again receiving and correctly routing messages and Transactions.  However, if Clients exceeds traffic levels specified in section 9.12 without providing the required notice to SUMOTEXT as required in 9.12, any outages or processing in such traffic periods shall be excluded from the calculation of SUMOTEXT Downtime. Downtime is monitored and measured by SUMOTEXT.  In addition, the Client may open a trouble ticket with SUMOTEXT at any time if transmissions or Transactions are failing.

10.3 SLA Performance Rebates. In the event that SUMOTEXT fails to meet its SLA as specified in 10.1, and such failure is solely attributable to SUMOTEXT, SUMOTEXT will refund such Client ten (10%) percent of the Monthly SUMOTEXT Service Fee, as specified in Section 2 of this Agreement, for each sixty (60) minute interval of SUMOTEXT Downtime below the minimum specified in 10.1 above, up to, and not to exceed 100% of the Client’s Monthly SUMOTEXT Service Fee in any Processing Period.

11.1 Confidentiality. Each party (the “Receiving Party”) undertakes to retain in confidence the terms of this Agreement and all other non-public information, technology, materials and know-how of the other party disclosed or acquired by the Receiving Party pursuant to or in connection with this Agreement which is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”); provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business. Notwithstanding anything to the contrary, Client understands and consents that Client metrics and statistics are provided to SUMOTEXT Operators as part of SUMOTEXT’s partnerships to process Transactions with such Operators. Neither party shall use any Confidential Information with respect to which it is the Receiving Party for any purpose other than to carry out the activities contemplated by this Agreement. Each party agrees to use commercially reasonable efforts to protect Confidential Information of the other party, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. Each party shall also notify the other promptly in writing in the event such party learns of any unauthorized use or disclosure of any Confidential Information that it has received from the other party, and will cooperate in good faith to remedy such occurrence to the extent reasonably possible. The restrictions set forth in this paragraph shall not apply to any information that: (i) was known by the Receiving Party without obligation of confidentiality prior to disclosure thereof by the other party; (ii) was in or entered the public domain through no fault of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (iv) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed); or (v) is independently developed by the Receiving Party without reference to any Confidential Information of the other party. Upon request of the other party, each party shall return to the other all materials, in any medium, which contain or reveal all or any part of any Confidential Information of the other party.  Each party acknowledges that breach of this by such party would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party shall be entitled to seek injunctive relief to enforce the provisions of this Section 11.1.

11.2 Representations, Warranties and Covenants. Each party hereby represents, warrants and covenants that: (i) it has the full right, power, legal capacity and authority to enter into this Agreement and to carry out the terms and conditions hereof without causing a conflict with its obligations to third parties; (ii) it owns or has obtained all rights sufficient to fully perform its obligations hereunder; and that the rights granted herein are, free and clear of any lien, mortgage, restriction, encumbrance in favor of any person or entity not a party hereto or known third party claims for infringement of any third party’s Intellectual Property Rights, breach of contract rights or other interest; and  (iii) it shall comply with all applicable laws, rules and regulations in the provision of the Services.

11.3 Warranty; Disclaimer. SUMOTEXT represents and warrants that the Services shall conform, in all material respects, to the applicable documentation provided by SUMOTEXT to Client. Client’s sole remedy for SUMOTEXT’s breach of this warranty shall be SUMOTEXT’s reasonable efforts to repair or replace the Services. EXCEPT AS EXPRESSLY SET FORTH ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUMOTEXT MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, TRANSACTIONS AND/OR SOFTWARE, AND ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF CLIENTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED BY SUMOTEXT. CLIENT ACKNOWLEDGES THAT SUMOTEXT HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES. NO REPRESENTATIONS OR WARRANTIES OF ANY KIND ARE MADE BY SUMOTEXT WITH REGARDS TO ANY SERVICES PROVIDED BY ANY OPERATOR.

11.4 Limitations on Liability. Client acknowledges that SUMOTEXT is not an Operator nor does it maintain any public network infrastructure. The Services and any other services provided by any Operator, which are provided by means of the Internet, are provided “as is”, “where is” and “when available”. SUMOTEXT is responsible only for providing data transmission to effect certain routing of messages and Transactions from Client to the Aggregator and is not responsible for the Aggregator’s actions and/or ability to effectuate Client’s requests. SUMOTEXT is therefore not responsible for the availability of any Operator, or the availability and/or performance of the Internet. SUMOTEXT is also not responsible for any damages or costs Client suffers or incurs as a result of any instructions given, actions taken or omissions made by Client. IN NO EVENT WILL SUMOTEXT’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO SUMOTEXT BY CLIENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SUMOTEXT HAS ADVISED CLIENT OR ANY THIRD PARTY OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.

11.5 Indemnification. Client will indemnify, defend and hold harmless SUMOTEXT, its past, present, and future officers, directors, agents and employees, from and against any and all claims, losses, demands, liabilities, damages, penalties, costs and expenses (including reasonable attorneys’ fees), either arising out of or relating to (i) the breach of this Agreement by Client, (ii) the sale or use of any product or Services sold by Client, (iii) claims brought or damages suffered by any Operator, SUMOTEXT, SUMOTEXT’s customers, or prospective customers of SUMOTEXT relating to Client’s or its agents’ misuse and/or abuse of the Services, except to the extent solely caused by SUMOTEXT or (iv) claims brought or damages suffered by any Operator or third-party, or penalties assessed on SUMOTEXT by any Operator as a result of Client’s breach, act, omission or otherwise violation of section 10. 

SUMOTEXT will indemnify, defend and hold harmless Client, its past, present, and future officers, directors, agents and employees, from and against any damages (including reasonable attorney’s fees) arising out of (a) SUMOTEXT’s breach of this Agreement, or (b) a third party claim that the SUMOTEXT software, website, or services infringe a United States patent, copyright or trade secret right of a third party. Client’s sole remedies for a claim of infringement or misappropriation of any intellectual property shall be SUMOTEXT’s replacement of the offending software or services, SUMOTEXT’s obtaining a license for Client’s continued use of the software or services, or SUMOTEXT’s termination of the affected licenses granted hereunder. The indemnification obligations set forth in this Section are contingent upon (a) the indemnified party giving prompt written notice to the indemnifying party of a claim for which the indemnified party is seeking indemnification, (b) the indemnified party allowing the indemnifying party to control the defense and related settlement negotiations for any such claim, and (c) the indemnified party fully assisting and cooperating in the defense so long as the indemnifying party pays the indemnified party’s out-of-pocket expenses. The indemnifying party shall not settle a claim without the written consent of the indemnified party, such consent not to be unreasonably withheld.

11.6. Severability. In the event that any provision of this Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

11.7 Notice. Except as otherwise provided for in the Agreement, any notice or demand, with respect to this Agreement shall be in writing and shall be effective on the date received only if it is sent by a courier service that confirms delivery in writing, or if sent by certified or registered mail, postage prepaid, return receipt requested, addressed, if to SUMOTEXT, Inc., then to “Attention Director of Business Operations” at SUMOTEXT, Inc. 2100 Riverdale, Suite 200, Little Rock, AR, 72202 and if to Client, then to the address provided in Section 1 of this Agreement. Notwithstanding the foregoing, it is expressly understood that SUMOTEXT may send Client notices of policy updates and changes and pricing changes electronically by e-mail and Client accepts notices provided in this manner to the e-mail address indicated in Section 1 of this Agreement. Client hereby expressly accepts notice by e-mail and expressly waives all claims or defenses that may be asserted as a result of receiving notice by e-mail.

11.8 Force Majeure. Neither party shall be responsible for any delays or inability to perform any of its obligations under this Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, Operator failures, material unavailability or change in supply costs, acts of terrorism, or any other cause beyond the reasonable control of such party.

11.9 Governing Law and Mediation. This Agreement shall be governed by the laws of the State of Arkansas without reference to its principles of conflicts of laws.  Any claim arising out or relating to this Agreement not resolved by good faith negotiations shall be resolved exclusively by arbitration conducted in Arkansas by a sole arbitrator (“Arbitrator”) in accordance with the rules of the American Arbitration Association (“AAA”) and shall be appointed by agreement of the parties; if the parties fail to agree upon the Arbitrator within thirty (30) days of notice of arbitration provided by either party, the AAA shall appoint the Arbitrator. Upon rendering a decision, the Arbitrator shall state in writing the basis for the decision.  The Arbitrator’s decision shall be final and binding upon the parties, provided however that a party may petition a court of competent jurisdiction to: (a) vacate the Arbitrator’s award or decision on the grounds of the Arbitrator’s failure to abide by the provisions of this Agreement, or (b) seek preliminary or final injunctive or other equitable relief. Judgment on the award or any other final or interim decision rendered by the Arbitrator may be entered, registered or filed for enforcement in any court having jurisdiction thereof.

11.10 Independent Contractors. Each party hereto is acting as an independent contractor and not as an agent, partner, employer, employee, or joint venture of the other.

11.11 Any term of this Agreement may be waived by the party entitled to the benefits thereof, provided that any such waiver must be in writing and signed by the party against whom the enforcement of the waiver is sought. No waiver of any condition, or of the breach of any provision of this Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of such condition or breach. Delay or failure to exercise any right or remedy shall not be deemed the waiver of that right or remedy.

11.12 Entire Agreement and Modification. The terms in this Agreement constitute the entire Agreement between SUMOTEXT and Client regarding its subject matter and its terms supersede any prior or simultaneous Agreement or terms, whether written or oral. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing, signed, and acknowledged by the parties herein.