This Technology Agreement between FinditLocal411 (a.k.a. YouTextit.com) and our clients (a.k.a end users).
WHEREAS, FINDITLOCAL411 owns and operates a marketing service (the “FINDITLOCAL411 Service”) by which FINDITLOCAL411 directly or indirectly collects data and information from customers and formats and delivers such information to end users (“End Users”) optimized for delivery via data-enabled mobile devices;
WHEREAS, FINDITLOCAL411 wishes to design, develop, provide for Client, host and operate a custom Internet-based application for use in connection with marketing content and/or similar applications (each, an “Application” and collectively, the “Applications,” as further defined herein); and
WHEREAS, FINDITLOCAL411 desires to perform and provide, and Client desires that FINDITLOCAL411 perform and provide, Short Code Services, the Mobile Marketing Center and API Service, as those terms are defined herein, pursuant to the following terms and conditions.
a. Grant. Subject to the terms and conditions set forth in this Agreement, FINDITLOCAL411 hereby grants to Client, and Client hereby accepts from FINDITLOCAL411 a worldwide, non exclusive, fully paid up and royalty free right and license during the Term to access and use the Applications.
b. Reservation of Rights. Except for the license rights granted to Client herein, FINDITLOCAL411 reserves to itself all rights in and to the FINDITLOCAL411 Service and the Applications except for any Client Data or Feeds that may be incorporated therein, and FINDITLOCAL411 may exercise such rights at any time and in any manner that it may deem appropriate. In addition, Client shall own and continue to own any and all rights, including, without limitation, all copyrights, in and to the Client Data. Any modifications or enhancements to the Client Data or Feeds as a result of the Services being provided to Client will be owned exclusively by Client.
c. Use Restrictions.
(i) The Applications may only be used by Client for the purpose of permitting End Users to send and receive Mobile Messaging and Communications via SMS, MMS, and Mobile websites and Apps.
(ii) The Applications shall be hosted by FINDITLOCAL411 and Client shall not have any access to the software code of the Applications.
(iii) Client shall not attempt to disassemble, decompile or reverse engineer, duplicate, replicate or create a derivative work based upon the Applications, or any portion thereof.
(vi) Client may not use the Applications in any manner other than as permitted in this Agreement.
d. Prohibition on Transfer. Client may relicense the Applications to third parties through the Organizational or Enterprise Level of the Mobile Marketing Center Application. Client may not transfer, assign or sell the Applications in whole or accompanying written Documentation to any third party, without FINDITLOCAL411’s prior written consent.
e. Use of Client Data. Client hereby grants FINDITLOCAL411 a non-exclusive license during the Term of this Agreement to use the Client Data provided to FINDITLOCAL411 for the sole purpose of incorporating such Client Data into the Applications hosted by FINDITLOCAL411. FINDITLOCAL411 acknowledges and agrees that Client owns and/or otherwise has the right to use and to license the Client Data, and that FINDITLOCAL411 shall have no right to use or exploit the Client Data or Feeds except for the purpose of providing Client the Services and the Applications hereunder.
2. Fees and Costs.
a. License Fees. Client shall pay to FINDITLOCAL411 the license fees set forth in the Fee Schedule attached hereto as Exhibit “C” (the “Fee Schedule”). Such charges will be referred to herein as “License Fees.”
b. Messaging Fees. Client shall pay to FINDITLOCAL411 the messaging fees set forth in the Fee Schedule attached hereto as Exhibit “C” (the “Fee Schedule”). Such charges will be referred to herein as “Messaging Fees.” FINDITLOCAL411 will invoice Client and Client will pay the License Fees for the Applications & Messaging Fees on a monthly basis in accordance with the timeframe provided in the Fee Schedule. FINDITLOCAL411 reserves the right to change prices for the Services provided hereunder in the event that price changes are imposed by carriers or 3rd parties. Such price changes will be announced to Customer at least fifteen (15) days prior to the effective date of the price change. If such a change represents an increase in any of the prices previously in effect for any of the Services covered by the FINDITLOCAL411 Service, then Customer may notify FINDITLOCAL411 in writing within fifteen (15) days of the effective date of such price change of its desire to terminate the FINDITLOCAL411 Service as of the effective date of such price change or Customer shall specify a termination date to take effect no later than 90 days following the effective date of such price change. FINDITLOCAL411 will invoice Client and Client will pay the License Fees for the Applications & Messaging Fees on a monthly basis in accordance with the timeframe provided in the Fee Schedule.
c. Payment. All undisputed Fees and expense reimbursements shall be payable by Client by Credit Card according to the billing structure set-forth.
d. Taxes. Client will be responsible for the payment of any and all United States federal, state and local sales, use, excise, personal property or other taxes or duties imposed in connection with this Agreement or the license or use of the Applications hereunder, other than taxes on FINDITLOCAL411’s income. The amount of such taxes will be added to the applicable Client invoice by FINDITLOCAL411 and be payable to FINDITLOCAL411 together with other sums due. Client shall not be responsible for any taxes that may be imposed by any foreign taxing authority.
e. Audits. FINDITLOCAL411 shall have the right to [implement tracking and monitoring mechanisms sufficient to accurately determine Client’s compliance with the payment terms set forth in this Agreement] Each party shall maintain accurate and complete books and records of all Fees billable to, and payments made by, Client pursuant to this Agreement. Such books and records shall be kept in accordance with generally accepted accounting principles and in a format that will permit audit for a period of not less than three (3) years after payment has been rendered by Client. Each party agrees that the other party, or its authorized agents or representatives, shall have the right to inspect and audit any such books and records at its own expense in the event of a dispute between Client and FINDITLOCAL411 concerning any billing rendered or amounts paid by Client hereunder. In the event any such audit reveals an overpayment of any amounts due under this Agreement, Client shall be entitled to receive a prompt refund of all amounts overpaid by Client. In addition, in the event that any such audit reveals an overpayment of five percent (5%) or more of any amounts due under this Agreement, FINDITLOCAL411 shall pay, together with the amount of such overpayment, the reasonable costs of such audit.
3. Scope of Services.
a. Access to Client Data. FINDITLOCAL411 will provide client with a username and password to access the marketing services & Application via an online portal. Client is responsible to adhere to MMA (Mobile Marketing Association) Best Practices Guidelines as frequently updated online at http://mmaglobal.com/ when using the marketing services & Application.
b. Collection of User Data. As part of the Services, FINDITLOCAL411 shall collect on behalf of Client data regarding the users of the Applications, including, without limitations, traffic and page views collected or created from the Applications and periodically transmit to Client such data. User data will be considered Confidential Information of Client, and all right, title and interest in and to such information will be owned by Client. During the Term, FINDITLOCAL411 will make standard reports available to client containing user data and other traffic and page views generated or collected by FINDITLOCAL411 regarding the use of the Applications.
c. Back-up of Client Data. FINDITLOCAL411 is not responsible for, and Client hereby agrees to indemnify and hold FINDITLOCAL411 harmless for, the storage or dissemination of Client Data by FINDITLOCAL411. Client shall maintain as it deems appropriate back-up copies of all Client Data transmitted to FINDITLOCAL411 for use in connection with the Applications. FINDITLOCAL411 is not responsible for any storing or back-up of such data.
e. Service Levels. FINDITLOCAL411 will (i) ensure that the Applications are available to End Users and to Wireless Carriers as described in the Service Level Agreement attached at Exhibit “D”, and (ii) host and operate the Applications during the Term, including without limitation arranging for communications links sufficient to provide responsive access, the proper functioning of which will be monitored 24 hours per day, 7 days per week, 365 days per year, with the goal of achieving at least ninety-nine and nine tenths percent (99.9%) reliability (both with respect to accessibility by End Users to the Applications and with respect to the proper operation of the Applications) over any consecutive seven (7) day period. In addition, during the Term FINDITLOCAL411 will provide or arrange for the provision of service, support and maintenance of all hardware and software, including communications links for hosting the Applications, such support to be provided by technical support personnel proficient in the operation and maintenance of all hardware and software used in operation and maintenance of the Applications, who will be on call 24 hours per day, 7 days per week, 365 days per year.
(f) Acceptable Use.
Customer and all persons and entities accessing the Services provided to Customer, including Customer’s End-Users, employees, agents, representatives and third-party contractors must comply with FINDITLOCAL411’s latest Acceptable Use Policy (“AUP”) set forth in Exhibit “D”. Carriers in their discretions may modify the AUP from time to time. FINDITLOCAL411 shall give Customer prompt written notice of any changes to the AUP. Customer shall comply with the AUP and not permit the Services to be used in or for any illegal, fraudulent, unauthorized or improper manner or purpose. Customer is solely responsible for any and all activities that occur on its Application or Services account. Customer agrees to immediately notify FINDITLOCAL411 of any unauthorized use of the Services or any other breach of security known to Customer and shall cooperate with FINDITLOCAL411 in investigations and other actions taken for suspected or known violations of the AUP, including any incidents of spam by Customer or any End-User.
4. Representations, Warranties and Remedies.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES, APPLICATIONS, THE DOCUMENTATION, THE CLIENT DATA, THE FEEDS, ALL ACCOMPANYING MEDIA, IF ANY, AND ALL OTHER PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY’S EMPLOYEES OR AGENTS, WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY SET FORTH ABOVE AND NEITHER PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE.
5. Indemnification; Limitation of Liability.
a. By Client. Client agrees to indemnify and hold FINDITLOCAL411 and its affiliates, officers, directors, employees and agents harmless from any and all claims, costs, liabilities, and judgments, including reasonable attorneys’ fees (collectively, “Losses”), arising or resulting from (i) the breach or alleged breach of this Agreement by Client, (ii) the gross negligence or intentional acts of Client, or (iii) acts performed by Client outside of the scope of the rights granted by FINDITLOCAL411 under this Agreement.
b. By FINDITLOCAL411. FINDITLOCAL411 agrees to indemnify and hold Client, its Affiliates, and each of their respective affiliates, officers, directors, employees and agents harmless from any and all Losses arising or resulting from (i) the breach or alleged breach of this Agreement by FINDITLOCAL411, (ii) the gross negligence or intentional acts of FINDITLOCAL411, (iii) acts performed by FINDITLOCAL411 outside of the scope of the rights granted by Client under this Agreement, (iv) the Applications, the FINDITLOCAL411 Service and any and all Services provided hereunder by FINDITLOCAL411, or Client’s or any Affiliate’s use thereof in accordance with this Agreement, (v) the collection and/or use of User Data by FINDITLOCAL411 hereunder, or (vi) FINDITLOCAL411’s use of the Client Data or Feeds.
c. EXCLUDING CLAIMS ARISING FROM BREACH OF A PARTY’S REPRESENTATIONS AND WARRANTIES, BREACH OF CONFIDENTIALITY CLAIMS AND INDEMNIFICATION CLAIMS AND DEFENSE COSTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR FOR ANY LOST PROFITS, LOST BUSINESS, LOST INFORMATION OR OTHER PECUNIARY LOSS, SUFFERED OR INCURRED BY THE OTHER PARTY AS A CONSEQUENCE OF THE APPLICATIONS, CLIENT DATA, FEEDS OR SERVICES PROVIDED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY LOSS, COST, EXPENSE OR DAMAGE IN AN AMOUNT EXCEEDING THE SUM OF THE FEES PAID OR PAYABLE BY CLIENT TO FINDITLOCAL411 UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM.
6. Term and Termination.
The term of this Agreement (the “Term”) will begin on the Effective Date of this Agreement and will continue for a period of one month, and afterward continue according to the terms set-forth month-to-month thereafter. Client can provide written notice to FINDITLOCAL411 of its intent not to renew at least thirty (30 days) days prior the end of the then current Term.
(a) Force Majeure. Except for delays or failures caused by the negligent act or omission of a party, neither party shall be liable under this Agreement by reason of any failure or delay of performance that occurs as a result of fire, flood, earthquake, or similar catastrophe; civil commotion, strike, labor dispute, or embargo; lack or failure of transportation facilities, shortage of suitable parts, materials, or any law, proclamation, or order of any governmental agency; or any other event beyond such party’s reasonable control (each, a “Force Majeure Event”); provided, however, that the party so affected will use its best efforts to avoid or remove the cause of non-performance and promptly continue performance hereunder whenever the cause is removed. Notwithstanding the foregoing, the party not affected by a Force Majeure Event may terminate this Agreement immediately upon written notice to the other party if the Force Majeure Event continues for more than thirty (30) consecutive days or an aggregate of sixty (60) days whether consecutive or not.
(b) Independent Contractors. Nothing in this Agreement will be construed as creating the relationship of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent between the parties. Neither party hereto will be deemed the agent or legal representative of the other for any purpose whatsoever and each party will act as an independent contractor with regard to the other in its performance under this Agreement. Nothing herein will authorize either party to create any obligation or responsibility whatsoever, express or implied, on behalf of the other or to bind the other in any manner, or to make any representation, commitment or warranty on behalf of the other.
List of US Wireless Carriers
FINDITLOCAL411 will make a continuous and good faith effort to provision any and all leased Short Code(s) using MMA compliant campaigns to Wireless Carriers within the United States including, but not limited to the following:
Tier 1 Carriers: AT&T, Sprint/NEXTEL, T-Mobile USA and Verizon Wireless
Tier 2 Carriers: Alltel, Boost, Cellular One, Dobson, US Cellular, Virgin Mobile, Metro PCS
Tier 3 Carriers: Tier 3 Carriers have extremely fragmented distribution and most require local presence and/or advertisement of the application to gain approval. No individual carrier on this list can be guaranteed. Cellcom, Cellular South, Appalachian Wireless, Bluegrass Cellular, Cellular One of East Central Illinois, ECIT, Centennial Wireless, Immix Wireless, Inland Cellular, Revol Wireless, Unicel, West Central Wireless
Wireless carriers may change in name or merge from time to time, which is out of the control of FINDITLOCAL411. FINDITLOCAL411 will inform Client as soon as practical if it becomes aware that any such Carrier will cease working with FINDITLOCAL411 to provide the Service.
Short Code Provisioning Fee
Customer may request a dedicated Short Code. Customer shall only submit requests to FINDITLOCAL411 that comply with carrier requirements. FINDITLOCAL411 shall invoice the customer additional fees for hosting, provisioning, and gateway fees tbd for Short Code.
Fees are exclusive of charges that may be imposed by a carrier and/or short code service providers. Customer acknowledges that if Customer leverages multi-entity programs or runs multiple Customer client programs on a single Short Code, all such clients programs will be at risk of interruption in the event any one client causes the Short Code to suspended or terminated pursuant to the Agreement.
FINDITLOCAL411 provides on-demand mobile marketing services & applications. The following services required are: Enterprise Mobile Marketing Center Application, Short Code Services and Messaging.
APPLICATION(S) Product Name Product Description Monthly Price One Time Set-ups
Application and development of connection;
API documentation included
Process flow documented Two-way messaging with interactive mobile marketing features and limited keywords. Platform supports using a shared short code. Multi-User Access: Individual access and admin rights granted to each user (or sub-users within an office). API for 2-way messaging included.
Technical support available by phone. Includes training sessions by FINDITLOCAL411 Client Support team during launch phase.
Set up fee:
SHORT CODE SERVICES Short Code (SC) Management, Hosting & Gateway Services
FINDITLOCAL411 will manage each short code, maintain connections to wireless carriers and facilitate independent audits conducted by wireless carriers.
This service also includes hosting the short code and provides throughput to each carrier to handle various campaigns running on each short code. Standard capacity throughput is 10 msgs/sec.
*Monthly hosting fee does not begin until Short Code is activated on 3 of the 4 TIER 1 carriers. included
MESSAGING APPLICATIONS Product Name Product Description Monthly Price One Time Set-ups
Messaging Fees MO MO – Messages originated from consumer.
Each MO requires at least one carrier-grade message in return. FREE
Messaging Fees MT
(Carrier-Grade Messaging) MT – Messages sent from our application to a consumer. Outbound MT messages are based on monthly volume. For monthly volume exceeding 1,000,000 msgs/mo, an escrow may be required. Message discounts apply as volume for all MT messages within a calendar month are reached.
Acceptable Use Policy
Scope. Customer and all persons and entities accessing the Services must comply with this Acceptable Use Policy (“AUP”). By using the Services, Customer acknowledges, and agrees to ensure compliance with, this AUP. FINDITLOCAL411 in its discretion may modify this AUP at any time.
Restrictions on Use. Customer agrees to ensure that the Services will not be used in or for any illegal, fraudulent, unauthorized or improper manner or purpose and will only be used in compliance with all applicable laws, rules and regulations, including all applicable state, federal, and international Internet, data, telecommunications, telemarketing, “spam,” and import/export laws and regulations, including the U.S. Export Administration Regulations. Without limiting the foregoing, Customer agrees not permit the Services to used to transmit or disseminate any:
(i) junk mail, spam, or unsolicited material to persons or entities that have not agreed to receive such material or to whom Customer or its End-Users do not otherwise have a legal right to send such material;
(ii) material that infringes or violates any third party’s intellectual property rights, rights of publicity, privacy, or confidentiality, or the rights or legal obligations of any wireless service provider or any of its customers or subscribers;
(iii) material or data, that is illegal, or material or data, as determined by FINDITLOCAL411 (in FINDITLOCAL411’s sole discretion), that is harassing, coercive, defamatory, libelous, abusive, threatening, obscene, or otherwise objectionable, materials that are harmful to minors or excessive in quantity, or materials the transmission of which could diminish or harm the reputation of FINDITLOCAL411 or any third-party service provider involved in the provision of the Services;
(iv) material or data that is alcoholic beverage-related (e.g., beer, wine, or liquor), tobacco-related (e.g., cigarettes, cigars, pipes, chewing tobacco), guns or weapons-related (e.g., firearms, bullets), illegal drugs-related (e.g., marijuana, cocaine), pornographic-related (e.g., adult themes, sexual content), crime-related (e.g., organized crime, notorious characters), violence-related (e.g., violent games), death-related (e.g., funeral homes, mortuaries), hate-related (e.g. racist organizations), gambling-related (e.g., casinos, lotteries), specifically mentions any wireless carrier or copies or parodies the products or Services of any wireless carrier;
(v) viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
(vi) material or information that is false, misleading, or inaccurate;
(vii) material that would expose FINDITLOCAL411, any third-party service provider involved in providing the Services, or any other third party to liability; and/or
(viii) any signal or impulse that could cause electrical, magnetic, optical, or other technical harm to the equipment or facilities of FINDITLOCAL411 or any third party.
Customer shall not access any Carrier services that Customer has not ordered or for which Customer has not paid applicable fees. Customer will not use or attempt to use a third party’s account with FINDITLOCAL411, or interfere with the security of, or otherwise abuse, the Services or other FINDITLOCAL411 customers. Customer shall not interfere in any manner with FINDITLOCAL411’s provision of the Services.