Terms and Conditions

FinditLocal411 / You Text It Terms & Conditions

WHEREAS, FINDITLOCAL411 / YOU TEXT IT owns and operates a marketing service (the “FINDITLOCAL411 / YOU TEXT IT Service”) by which FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT desires to perform and provide, and Client desires that FINDITLOCAL411 / YOU TEXT IT 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.

1.      License.

a.      Grant.  Subject to the terms and conditions set forth in this Agreement, FINDITLOCAL411 / YOU TEXT IT hereby grants to Client, and Client hereby accepts from FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT reserves to itself all rights in and to the FINDITLOCAL411 / YOU TEXT IT Service and the Applications except for any Client Data or Feeds that may be incorporated therein, and FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT’s prior written consent.

e.   Use of Client Data.  Client hereby grants FINDITLOCAL411 / YOU TEXT IT a non-exclusive license during the Term of this Agreement to use the Client Data provided to FINDITLOCAL411 / YOU TEXT IT for the sole purpose of incorporating such Client Data into the Applications hosted by FINDITLOCAL411 / YOU TEXT IT.  FINDITLOCAL411 / YOU TEXT IT acknowledges and agrees that Client owns and/or otherwise has the right to use and to license the Client Data, and that FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT the license fees set forth in the Fee Schedule as denoted above (the “Fee Schedule”).  Such charges will be referred to herein as “License Fees.”

b.      Messaging Fees.  Client shall pay to FINDITLOCAL411 / YOU TEXT IT the messaging fees set forth in the Fee Schedule.  Such charges will be referred to herein as “Messaging Fees.” FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT Service, then Customer may notify FINDITLOCAL411 / YOU TEXT IT in writing within fifteen (15) days of the effective date of such price change of its desire to terminate the FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT’s income. The amount of such taxes will be added to the applicable Client invoice by FINDITLOCAL411 / YOU TEXT IT and be payable to FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT will make standard reports available to client containing user data and other traffic and page views generated or collected by FINDITLOCAL411 / YOU TEXT IT regarding the use of the Applications.

c.       Back-up of Client Data.  FINDITLOCAL411 / YOU TEXT IT is not responsible for, and Client hereby agrees to indemnify and hold FINDITLOCAL411 / YOU TEXT IT harmless for, the storage or dissemination of Client Data by FINDITLOCAL411 / YOU TEXT IT.  Client shall maintain as it deems appropriate back-up copies of all Client Data transmitted to FINDITLOCAL411 / YOU TEXT IT for use in connection with the Applications.  FINDITLOCAL411 / YOU TEXT IT is not responsible for any storing or back-up of such data.

Note: Our servers are a distributed, redundant cloud array and the data is backed up nightly to ensure data integrity.  Any sensitive information that we store in our databases is secured using industry standard hash algorithms with salt to obfuscate data.  All communications with our SMS platform occur over a verified SSL connection using 128-bit encryption for data security.

e.   Service Levels.  FINDITLOCAL411 / YOU TEXT IT will (i) ensure that the Applications are available to End Users and to Wireless Carriers as described below, 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 / YOU TEXT IT 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 / YOU TEXT IT’s latest Acceptable Use Policy (“AUP”).  Carriers in their discretions may modify the AUP from time to time. FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT of any unauthorized use of the Services or any other breach of security known to Customer and shall cooperate with FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT 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 / YOU TEXT IT under this Agreement.

b.      By FINDITLOCAL411 / YOU TEXT IT.  FINDITLOCAL411 / YOU TEXT IT 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 / YOU TEXT IT, (ii) the gross negligence or intentional acts of FINDITLOCAL411 / YOU TEXT IT, (iii) acts performed by FINDITLOCAL411 / YOU TEXT IT outside of the scope of the rights granted by Client under this Agreement, (iv) the Applications, the FINDITLOCAL411 / YOU TEXT IT Service and any and all Services provided hereunder by FINDITLOCAL411 / YOU TEXT IT, 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 / YOU TEXT IT hereunder, or (vi) FINDITLOCAL411 / YOU TEXT IT’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 / YOU TEXT IT UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM.

6.      Payment, Refunds, Upgrading and Downgrading Terms

a.      A valid credit card is required for paying accounts. Free accounts are not required to provide a credit card number.

b.      If you initially sign up for a Tier 1, Tier 2, Tier 3, Enterprise, or Mobile Marketing Company in a Box account (hereafter “MMCB”), the effective date of the agreement will be the first day of your monthly subscription and your “Pay Date”. All future payments will be made on that Pay Date.

c.       An upgrade from a free trial plan to any paying plan will end your free trial. You will be billed for your first month immediately upon upgrading. That day will be the effective date of your contract and your ongoing Pay Date.

d.      The Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account.

e.      In the event that your credit card is not billed on the pay date, you will have fifteen (15) days to make payment or your access to the services will be denied. At thirty (30) days past due from your pay date, FinditLocal411 / You Text It can at its discretion shut off services and cancel your account. Any unpaid balances will still be due at this the time of cancellation.

f.        All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.

g.      For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle.

h.      Downgrading your Service may cause the loss of Content, features, or capacity of your Account. FinditLocal411 / You Text It does not accept any liability for such loss.

7.      Cancellation and Termination

a.      You are solely responsible for properly canceling your account. Written notice is required to cancel your account. You can cancel your account at any time by sending us a written letter to FinditLocal411 / You Text It, PO Box 761 Niles MI 49120 [email protected] Your cancellation will not be considered complete until one of those two criteria is met. The day that the letter or email is received is your cancellation date.

b.      You will be billed for any unbilled message usage on the day of your cancellation using the credit card on file for your account.

c.       Tier 3, Enterprise, and MMCB accounts utilizing a white-labeled URL will be charged a $125 cancellation fee on the day that they cancel.

d.      All of your Content will be immediately deleted from the Service upon cancellation. This information cannot be recovered once your account is cancelled.

e.      If you cancel the Service before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again.

f.        FinditLocal411 / You Text It, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service, or any other FinditLocal411 / You Text It service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. FinditLocal411 / You Text It reserves the right to refuse service to anyone for any reason at any time.

g.      If your account is inactive for over 120 days, FinditLocal411 / You Text It has sole discretion and right to permanently remove your account, including contact lists recent messages and any other information stored by FinditLocal411 / You Text It. FinditLocal411 / You Text It will attempt to contact you via the email address you provided us, prior to taking any permanent actions in regards to removal.

h.      In the event that FinditLocal411 / You Text It receives complaints from recipients or third parties with respect to the use of the Service, FinditLocal411 / You Text It additionally reserves the right, in its sole discretion, to disclose any and all information to the recipient, applicable authorities or any other party with regard to its clients and application Users.

8.      Terms

 

(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.

9.      Provisioned Carriers

a.    FINDITLOCAL411 / YOU TEXT IT 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 and Canada including, but not limited to the following:

b.    US Carriers

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, Cricket, and others.

c.    Canadian Carriers

Aliant, Bell Mobility, Fido, MTS / Allstream Inc., Northern Telephone, Rogers, Sasktel, Telebec, Telus, Videotron, Virgin Mobile Canada, Wind

d.    Wireless carriers may change in name or merge from time to time, which is out of the control of FINDITLOCAL411 / YOU TEXT IT. FINDITLOCAL411 / YOU TEXT IT will inform Client as soon as practical if it becomes aware that any such Carrier will cease working with FINDITLOCAL411 / YOU TEXT IT to provide the Service.

 

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 / YOU TEXT IT 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 to not permit the Services to be 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 / YOU TEXT IT (in FINDITLOCAL411 / YOU TEXT IT’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 / YOU TEXT IT 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 / YOU TEXT IT, 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 / YOU TEXT IT 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 / YOU TEXT IT, or interfere with the security of, or otherwise abuse, the Services or other FINDITLOCAL411 / YOU TEXT IT customers.  Customer shall not interfere in any manner with FINDITLOCAL411 / YOU TEXT IT’s provision of the Services.