Terms of Service

Terms of Service

 

Effective Date: August 4, 2022

 

BY DOWNLOADING OR USING THE SUPERCHARGED SMS AND RELATED SERVICES (AS DEFINED BELOW IN  SECTION 1) THROUGH ANY ONLINE OR WRITTEN FORM OR OTHER COMMUNICATION PROVIDED BY SUPERCHARGED SMS EVIDENCING CLIENT’S DOWNLOAD OR USE OF THE SERVICE (“ORDER”), THESE  TERMS OF SERVICE GOVERNS CLIENT’S ACCESS AND USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT AND  USING OR ACCESSING ANY OF THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT, AS MAY BE UPDATED  FROM TIME TO TIME.

 

IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT  YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE  TERMS “CLIENT” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH  AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHALL  NOT BE PERMITTED TO USE THE SERVICES.

 

FURTHERMORE, BY ACCEPTING THIS AGREEMENT YOU REPRESENT AND WARRANT THAT ANY AND ALL  INFORMATION YOU PROVIDE US THROUGH THE SERVICES IS TRUE, ACCURATE AND COMPLETE. THE PROVISION OF  FALSE OR FRAUDULENT INFORMATION IS STRICTLY PROHIBITED.

 

AS USED HEREIN, THE FOLLOWING DEFINITIONS SHALL APPLY:

 

“AGREEMENT” OR “TERMS” MEANS THESE TERMS OF SERVICE AND ALL MATERIALS AND LINKS REFERRED TO  HEREIN.

 

“CLIENT” OR “YOU” MEANS THE INDIVIDUAL OR LEGAL ENTITY LICENSING THE SERVICES HEREUNDER.

 

“SUPERCHARGED SMS” MEANS CROCODILE SOFTWARE, LLC AND ITS AFFILIATES.

 

“PARTIES” MEANS CLIENT, OR YOU, TOGETHER WITH SUPERCHARGED SMS.

 

  1. Services

 

Supercharged SMS’s platform is a unique, proprietary ecommerce marketing platform (“Platform”) that offers  solutions for SMS/MMS marketing campaigns, triggered automations (such as abandoned cart & checkout recovery, shipping notifications, and order delivery) (each also referred to as a “Product” and, as may be combined, “Products”).  Certain Products enable Client to engage with End-Users by utilizing  SMS/MMS/text messages. Through an application provided by Supercharged SMS, or through the Platform, a  Client can enable features whereby Client can send marketing and other messages via  SMS/MMS/text message regarding the Client’s products or services.  “Services,” as used in this  Agreement, refers to a Client’s access to the Platform, Products and other ancillary services specified in  the Order. All content, data and other information that Client submits to the Services through its use  thereof, including, without limitation, such information as Client may collect through the Services from  End-Users (as defined below), is “Client Content” for the purposes of this Agreement. 

 

 

  1. PROPRIETARY RIGHTS

 

  1. Ownership.  Neither party grants the other any rights or licenses not expressly set out in this  Agreement. Except for Supercharged SMS’s rights under this Agreement, between the parties, Client retains  all intellectual property and other rights in its intellectual property and to the Client Content  provided to Supercharged SMS. Except for Client’s rights under this Agreement, Supercharged SMS and its licensors retain  all intellectual property and other rights in the Platform, and in and to each Product, the Services,  and any deliverables and related Supercharged SMS technology, templates, documentation, help files,  tutorials, formats and dashboards, including any modifications or improvements to these items  made by Supercharged SMS and the Usage Data, as defined below (the “Supercharged SMS Materials”). If Client provides  Supercharged SMS with feedback or suggestions regarding the Services or other Supercharged SMS offerings, Supercharged SMS may  use the feedback or suggestions without restriction or obligation.

 

  1. Usage Data.  Supercharged SMS may generate technical logs, data and learnings about Client’s use and an  End-User’s use of the Services (the “Usage Data”) and the Client Content processed by the  Services, and use such information to operate, analyze, improve and support the Platform and/or  the Services and for other lawful purposes. Except as required by law, Supercharged SMS will not disclose  Usage Data externally, including in benchmarks or reports except in the aggregate.

 

  1. LIMITED LICENSE TO ACCESS AND LIMITED LICENSE TO THE CLIENT CONTENT

 

  1. License to the Services.  Subject to the terms and conditions set forth herein (including without  limitation payment of the applicable fees), and during the term of this Agreement only, Client  may access and use the Services only for its internal business purposes in accordance with the  Terms of this Agreement, including any usage limits on an applicable Order. Access to the  Services is limited to Client’s employees and contractors acting for the sole benefit of Client  (“Permitted Users”). Client and its Permitted Users may need to register for a Supercharged SMS account in  order to access or use the Services. Client is responsible for ensuring that account registration  information is accurate, current and complete.

 

  1. License to the Client Content– Client grants to Supercharged SMS a worldwide, non-exclusive, transferable,  royalty-free license during the term to, and hereby instructs Supercharged SMS, to use, transfer, copy,  reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or  through third parties, create derivative works of Client Content and otherwise use and  commercially exploit any Client Content in any media formats (i) to the extent necessary to  provide Client with access to and use of the Services in accordance with the Terms of this  Agreement, (ii) to comply with law, (iii) to detect, prevent and investigate security incidents,  fraud, spam or unlawful use of the Services, (iv) to address technical problems, address support  requests, and attend to the proper working of the Services, (v) to protect the rights, property or  safety of Supercharged SMS, its customers, its customers’ end-users, and/or the public, and (vi) subject to the  Data Processing Addendum, described in Section 9.b below, for any other lawful purpose,  including without limitation, for the purposes set forth in Section 2.b hereof. Such license will  apply to any form, media or technology now known or hereafter developed.

 

  1. Open Source Software. The Services may include certain open source components owned by a  third party that are subject to open source licenses (“Open Source Software”). Some of the Open Source Software is not subject to the terms and conditions of these Terms. Instead, each  item of such Open Source Software is licensed under the applicable license terms which  accompany such Open Source Software. Nothing in these Terms limits your rights under, nor  grants you rights that supersede, the terms and conditions of any applicable license terms for the  Open Source Software.

 

  1. LIMITATIONS OF USE

 

  1. Client’s use of the Services shall be limited to its own internal business use Except as specifically  permitted herein, Client shall not (i) sell, license (or sub-license), lease, assign, transfer, pledge or  share any of its rights under this Agreement with/to any other party, entity or person, (ii)  transfer, distribute, copy all or any part of the Services and/or the Supercharged SMS Materials, (iii) refer to  the Services by use of framing and/or deep-linking, (iv) make use of the Services or distribute any  part thereof in any jurisdiction where same is illegal or where such use or distribution would  subject Supercharged SMS or its affiliates to any registration requirement within such jurisdiction or country  (v) use, encourage, promote, facilitate or instruct others to use the Platform for any illegal,  harmful or offensive use, (vi) promote any content, products, services, or other information that  may be illegal to sell or promote under any applicable law or may reasonably be perceived to be  unlawful, inflammatory, offensive or otherwise inconsistent with the spirit of Supercharged SMS’s Services,  brand or image, (vii) transmit any viruses or other harmful, infringing, illegal, disruptive or  destructive content, messages or files, (viii) visit the Platform or access the Services through  unauthorized means, including, without limitation, any data mining, robots/bots, or similar data  gathering and extraction tools to extract for re-utilization of any parts of the Platform, (ix)  distribute, publish, send or facilitate the sending of unsolicited mass messages, promotions,  advertising, or solicitations (e.g. “spam”) including unlawful commercial advertising and  informational announcements, (x) distribute, publish, send, or  facilitate the sending of any inappropriate, inaccurate, misleading, fraudulent or otherwise illegal  content or content which infringes intellectual property rights of third parties or their right for  privacy, (xi) modify, translate, reverse engineer, decompile, disassemble (except to the extent  applicable laws specifically prohibit such restriction), make any attempt to discover the source  code of the Platform and/or the Services and/or any other software available therein or create  derivative works thereof, (xii) remove any copyright, trademark or other proprietary rights  notices contained in or on the Platform, (xiii) remove, change or modify any trademarks from or  attach any additional trademarks to the Platform, (xiv) use the Platform or the Services in a  manner that subjects any part thereof to any obligation to disclose or distribute the source code  thereof and/or that may cause others to have the right to modify or create derivative works  thereof; or cause them to become redistributable at no charge; or (xv) use the Services in a manner that violates Twilio’s Terms of Service (Twilio Terms of Service) or Messaging Policy (Twilio Messaging Policy). Client is solely responsible for  obtaining, paying for, repairing and maintaining all the equipment, software, hardware and  services required for Client to access the Services.    

 

  1. CLIENT OBLIGATIONS

 

  1. Compliance with Law.  Client represents, warrants and covenants to Supercharged SMS that Client’s use of  the Services shall comply with the limitations of use in Section 4 and all applicable laws, rules or  regulations of any jurisdiction, including, without limitation, those relating to (i) communication  by telephone, text/SMS/MMS message or email for advertising, marketing or other purposes, (ii)  monitoring or recording of electronic or telephonic communications, (iii) the privacy, security or  protection of “personal data” or “personal information”, as such terms are defined under privacy  laws (collectively, “Personal Information”), including, without limitation, as applicable to the  collection, storage, retention, processing, transfer, disclosure, sharing, disposal or destruction of  Personal Information, (iv) requirements for websites and mobile applications, online behavioral  advertising, or online tracking technologies, or (v) applicable economic or financial sanctions or  trade embargoes, including those administered by the U.S. government through the U.S.  Treasury Department’s Office of Foreign Assets Control (“OFAC”) or the U.S. Department of  State, or the Israeli government (collectively, “Laws”). Without limiting the foregoing, Laws  include the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and  Abuse Prevention Act, the Do-Not-Call Implementation Act, the Controlling the Assault of Non Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act  (“COPPA”), the Federal Trade Commission Act, the California Consumer Privacy Act (“CCPA”),  other state privacy, data security and breach notification laws, state consumer protection laws,  the European Union’s General Data Protection Regulation (2016/679) (“GDPR”) and Privacy and  Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), the United  Kingdom’s Data Protection Act 2018 (together with the GDPR, the ePrivacy Directive and any  national legislation implementing either, “European Data Protection Law”), Canada’s Personal  Information Protection and Electronic Documents Act, Canada’s Anti-Spam Legislation (S.C. 2010,  c 23), the U.S. Trading with the Enemy Act of 1917, the U.S. International Emergency Economic  Powers Act, the Israeli Trading with the Enemy Ordinance of 1939, and any legislation and/or  regulation implementing or made pursuant to, or which amends, replaces, re-enacts or  consolidates, any of the foregoing. For purposes of this Agreement, Laws also include the Cellular  Telecommunications Industry Association (CTIA) Messaging Principles and any other applicable  self-regulatory rules or codes of conduct, as amended from time to time, including, without  limitation, such rules and guidelines issued by the Mobile Marketing Association and  telecommunications providers. You also represent, warrant and covenant that you are not identified on the OFAC list of Specially Designated and Blocked Persons or any other U.S. or Israeli list of restricted parties, are not operating from, established under the laws of, or  ordinarily resident in Cuba, Iran, Lebanon, North Korea, Syria, or the Crimea region of Ukraine  (each a “Sanctioned Country” and collectively the “Sanctioned Countries”), and will not use the  Services in a Sanctioned Country.

 

  1. Privacy and Cookie Notices. Client shall provide and make available to End-Users a privacy notice  that describes the collection, use and disclosure of End-Users’ Personal Information in  connection with Client’s use of the Services, including without limitation, such collection, use and  disclosure contemplated by this Agreement. If Client is subject to the GDPR or ePrivacy Directive  or other Laws requiring Client to give notice of, or obtain consent to, the use of cookies or similar  technologies on Client’s websites or other online services, then Client shall give such notices and  obtain such consents with respect to any Supercharged SMS cookies or similar technologies utilized on  Client’s websites or other online services.

 

  1. Restricted Data. Client shall ensure that Client Content does not include (i) protected health  information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or  medical information governed by state healthcare privacy laws, (ii) Social Security numbers,  driver’s license numbers or other government-issued identification numbers, (iii) financial  information, banking account numbers or passwords, or information regulated by the Gramm Leach-Bliley Act, (iv) payment card data regulated by the Payment Card Industry Data Security  Standards; (v) biometric data regulated by biometric privacy laws, (vi) online account passwords,  login credentials or related information (vii) criminal history, (viii) racial, ethnic, political or  religious affiliation, trade union membership, or information about sexual life or sexual  orientation or other information that constitutes “special categories of data” regulated by the  GDPR or (ix) Personal Information of children under sixteen (16) years of age regulated by  COPPA, the GDPR or under the age of consent for purposes of applicable privacy laws. Supercharged SMS  shall have no liability with respect to such information, notwithstanding anything in the  Agreement to the contrary.

 

  1. Security. Client shall use its best efforts to prevent unauthorized access to or use of the Services  through its or its Permitted Users accounts, promptly notify Supercharged SMS of any unauthorized access or  use and provide reasonable cooperation regarding information requests from law enforcement,  regulators or telecommunications providers.

 

  1. Obligations Regarding Client Content. Client is solely responsible for the accuracy, content and  legality of the Client Content. Client acknowledges that the Services are provided by Supercharged SMS to  Client on a business-to-business basis, and that Supercharged SMS does not have a direct relationship with  any End-User as a result of providing the Services to Client hereunder. As a result, Client  acknowledges that Supercharged SMS relies on Client’s rights to the Client Content in order to provide the  Services, and processes Client Content according to the Supercharged SMS Data Processing Addendum and  Client’s instructions thereunder. Client is solely responsible for the accuracy, content and legality  of Client Content. Supercharged SMS shall not be liable for any Client Content, and shall be entitled, in its sole  discretion, to edit or remove from the Platform any Client Content which Supercharged SMS reasonably  believes to be inaccurate, inappropriate or otherwise not in compliance with the Agreement or  applicable law. NOTHING IN THIS AGREEMENT OBLIGATES SUPERCHARGED SMS TO DISPLAY ANY CLIENT  CONTENT THAT SUPERCHARGED SMS REASONABLY BELIEVES TO BE INACCURATE, INAPPROPRIATE OR  OTHERWISE NOT IN COMPLIANCE WITH THIS AGREEMENT OR APPLICABLE LAW OR TO USE SUCH  CLIENT CONTENT AT ALL OR IN A CERTAIN MANNER. Client shall designate a copyright agent and  implement a notice and takedown mechanism in compliance with the Digital Millennium  Copyright Act (or other comparable applicable laws in jurisdictions outside of the United States),  and Client shall comply with any such takedown notice received in respect of any Client Content,  in each case, to the extent required by applicable law.

 

  1. Rights in Client Content. Client represents and warrants to Supercharged SMS that Client has given all notices  and obtained all rights consents, assignments, licenses, permissions and authorizations (including  the waiver of any moral rights) necessary for Client to transfer to Supercharged SMS and for Supercharged SMS to collect,  use and share the Client Content (and any Personal Information contained therein) as  contemplated by this Agreement without violation or infringement of (i) any Laws, (ii) intellectual  property, publicity, privacy or other rights, or (iii) any terms of service or other agreements  governing the Client Content or Client’s activities relating to its use of the Services.

 

  1. Permitted Users and End-Users. Client shall ensure that each of Client’s Permitted Users and  End-Users is legally bound by Client’s terms of use, terms of service or such other legally binding  agreement between Client and each such End-User in a manner that prohibits End-Users from  infringing or otherwise violating third-party rights including, without limitation, third-party  intellectual property rights. Client is solely responsible for all acts, omissions and activities of  Permitted Users and End-Users, including their compliance with this Agreement.

 

  1. Order Fulfillment. As between Client and Supercharged SMS, Client is solely responsible for all customer  service, order fulfillment and returns, and payment of taxes or charges associated with any  products or services that Client sells or markets in connection with the domains listed on the  Order.

 

  1. Sending Messages to End-Users via the Services. To the extent that Supercharged SMS provides Client with  access to functionality that allows Client to send Client communications by telephone,  text/SMS/MMS message or email to End-Users, including, without limitation, marketing and  advertising communications (“Client Messages”), Client agrees not to send any unsolicited,  commercial communications. Further, Client acknowledges that Client is solely responsible for all  content of Client Messages created by or on behalf of Client and for Client’s compliance with all  Laws in connection with Client’s use of the Services to send Client Messages. Accordingly, and  notwithstanding any representation or warranty disclaimer in the Agreement, Client represents,  warrants and covenants that: (i) all applicable lists of email addresses and/or phone numbers  were created and/or shared with Supercharged SMS in a manner that complies with Laws, (ii) each End-User  or other recipient of Client Messages or other communications has been given clear and  conspicuous notice prior to the collection of his or her phone number, email address and/or  other contact information that such information may be collected, used or shared to facilitate  sending Client Messages to such recipient and as contemplated in this Agreement and (iii) each  End-User or other recipient of applicable communications has given all consents required by Law  to receiving commercial email and other forms of communication, including, but not limited to,  consent to receive the Client Messages. Client acknowledges that the Services may employ  automated telephone dialing systems regulated by the TCPA to transmit Client Messages and  Client agrees that such consents shall be sufficient to permit the Services’ use of such systems,  including without limitation, to send messages for advertising and solicitation purposes.

 

  1. Limits on Certain Messages. By using functionality to send Client Messages to End-Users, Client  agrees to make End-Users aware of their right to opt out of any future messages, as required by  law. Client is responsible for honoring all opt-out requests from End-Users. Client must use a  valid telephone number. Phone numbers such as landline numbers that cannot receive  SMS/MMS or text messages will not be eligible for the Services. Client agrees that Supercharged SMS reserves  the right in its sole discretion to cap the number of Client Messages that may be sent in  connection with the Services. Applicable message and data rates apply to such messages. Client  hereby acknowledges and agrees that (i) Supercharged SMS merely plays a technical role in transmitting or  routing Client Messages sent by Client as a conduit, (ii) that Client is the sender of any Client  Messages for purposes of Laws, (iii) Supercharged SMS has no relationship with or any obligation to any End User or any other person or entity with to whom Client provides services utilizing the Services  (“End-User Services”), none of whom is a third-party beneficiary of this Agreement, and (iv)  Client shall have sole responsibility and liability for any Client Messages and for compliance with  any Laws related to End-User Services. Supercharged SMS may suspend or disable Client’s ability to send  messages through the Services at any time if Supercharged SMS, in its sole discretion, believes Client is  sending messages in violation of the Terms of this Agreement.

 

  1. SUSPENSION OF SERVICE

 

  1. Supercharged SMS may suspend Client’s access to the Services if Client breaches Section 4 (Limitations on  Use) or Section 5 (Client Obligations), if Client’s account is 30 days or more overdue or if Client’s  actions risk harm to other Clients or the security, availability or integrity of the Services. Where  practicable, Supercharged SMS will use reasonable efforts to provide Client with prior notice of the  suspension. Once Client resolves the issue requiring suspension, Supercharged SMS will promptly restore  Client’s access to the Service in accordance with this Agreement. Supercharged SMS reserves the right, but is  not obligated, to monitor and audit Client’s use of the Services for any reason or no reason,  without notice, to ensure Client’s compliance with this Agreement.

 

  1. REPRESENTATIONS AND WARRANTIES

 

  1. In addition to representations and warranties made elsewhere in this Agreement, Client  represents and warrants to Supercharged SMS that: (i) it has, and will have at all times, all right, title and  interest necessary to grant to Supercharged SMS any and all licenses granted by Client or its End-Users or  other third parties hereunder for the purposes contemplated by this Agreement, including from  Client’s End-Users or any third-party site for the use of the Client Content, (ii) has all necessary rights, permits and licenses under all Laws, rules and regulations to operate the domains listed  on the Supercharged SMS Order and to promote, offer for sale, and sell all products or services offered or sold  in connection with such domains, (iii) any and all Client Content complies, and will comply at all  times during the term of this Agreement, with all Laws, rules and regulations, and this  Agreement and does not and will not during the term of this Agreement infringe the rights of any  third party, including any intellectual property rights; and (iv) Client shall comply with all Laws,  including without limitation, TCPA, CAN-SPAM Act and the Digital Millennium Copyright Act.

 

  1. Supercharged SMS represents and warrants that: (i) it has, and will have at all times, all right, title and interest  necessary to grant any and all licenses granted by Supercharged SMS hereunder for the purposes  contemplated by the Agreement; (ii) it has, to its knowledge, all necessary rights, permits and  licenses under all Laws, rules and regulations to operate the Platform in the manner in which it is  meant to be operated at any applicable time; and (iii) the Platform (except as related to Client  Content, which shall be the responsibility of Client), shall, to Supercharged SMS’s knowledge, not infringe on  the rights, including without limitation, intellectual property rights, of any third party.

 

  1. CONFIDENTIALITY

 

  1. During the term of this Agreement, either party (as the “Disclosing Party“) may disclose or make available to the other party (as the “Receiving Party“) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential  information and other sensitive or proprietary information, whether orally or in written,  electronic, or other form or media, and whether or not marked, designated, or otherwise  identified as “confidential” (collectively, “Confidential Information“). Confidential Information  shall not include information that, at the time of disclosure: (i) is or becomes generally available  to and known by the public other than as a result of, directly or indirectly, any breach of this  Section 8 by the Receiving Party or any of its Representatives, (ii) is or becomes available to the  Receiving Party on a non-confidential basis from a third-party source, provided that such third  party is not and was not prohibited from disclosing such Confidential Information, (iii) was known  by or in the possession of the Receiving Party or its representatives before being disclosed by or  on behalf of the Disclosing Party, (iv) was or is independently developed by the Receiving Party  without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential  Information; or (v) is required to be disclosed under applicable federal, state or local law,  regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.

 

  1. The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially  reasonable degree of care, (B) not use the Disclosing Party’s Confidential Information, or permit  it to be accessed or used, for any purpose other than to exercise its rights or perform its  obligations under this Agreement; and (C) not disclose any such Confidential Information to any  person or entity, except to the Receiving Party’s Representatives who need to know the  Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or  perform its obligations under the Agreement.

 

  1. The provisions of this Section 8 shall survive the natural expiration or termination of this Agreement for any reason for a period of three (3) years.

 

  1. PRIVACY AND DATA PROTECTION

 

  1. Client instructs Supercharged SMS to use account registration information and other Personal Information of  Permitted Users collected in connection with their use of the Services as described in Supercharged SMS’s  Privacy Policy, as updated from time to time (currently available https://www.superchargedsms.com/privacy-policy/). Client is responsible for any use of the Services by its  Permitted Users and their compliance with this Agreement. Client shall keep confidential its and  its Permitted Users’ user IDs and passwords for the Services and shall be responsible for any  actions taken through their respective accounts.

 

  1. Supercharged SMS’s Data Processing Addendum, as updated from time to time (currently available at https://www.superchargedsms.com/privacy-policy/) shall apply and form part of this Agreement when Client Content constitutes Personal Information subject to data protection laws, including  European Data Protection Law or the CCPA.

 

  1. DISCLAIMERS

 

  1. EXCEPT AS EXPRESSLY PROVIDED HEREIN: (I) THE PLATFORM, INCLUDING WITHOUT LIMITATION  ANY AND ALL SUPERCHARGED SMS MATERIALS, THE SERVICES (INCLUDING WITHOUT LIMITATION  INSTALLATION, INTEGRATION AND IMPLEMENTATION SERVICES), AND THE PRODUCTS ARE  PROVIDED BY SUPERCHARGED SMS “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR  IMPLIED; (II) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SUPERCHARGED SMS  DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,  IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A  PARTICULAR PURPOSE; (III) SUPERCHARGED SMS DOES NOT WARRANT THAT THE SUPERCHARGED SMS MATERIALS, THE  SERVICES OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL BE UNINTERRUPTED OR  ERROR-FREE, OR THAT THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM  AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND (IV) SUPERCHARGED SMS DOES  NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT CLIENT’S USE OF THE SERVICES WILL  COMPLY WITH LAWS OR OTHERWISE RELATING TO THE USE OR THE RESULTS OF THE USE OF THE  SERVICES, THE SUPERCHARGED SMS MATERIALS OR OTHER CONTENT MADE AVAILABLE IN TERMS OF THEIR  CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CLIENT IS RESPONSIBLE FOR  EVALUATING THE CAPABILITIES AND FEATURES OF THE SERVICES AND MAKING ITS OWN  DETERMINATION ABOUT WHETHER CLIENT IS ABLE TO USE THE SERVICES IN COMPLIANCE WITH  LAWS. CLIENT IS RESPONSIBLE FOR TAKING ALL PRECAUTIONS IT BELIEVES NECESSARY OR  ADVISABLE TO PROTECT IT AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY  VIRTUE OF ITS USE OF OR RELIANCE UPON THE PLATFORM, SUPERCHARGED SMS’S WEBSITE, OR THE SERVICES.  SUPERCHARGED SMS ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD-PARTY TELECOMMUNICATIONS PROVIDERS. THE SERVICES SHOULD NOT BE USED FOR EMERGENCY  COMMUNICATIONS AND SUPERCHARGED SMS WILL HAVE NO LIABILITY ARISING FROM SUCH USE.

 

  1. CLIENT ACKNOWLEDGES, THAT EMAIL AND TEXT/SMS/MMS MESSAGES ARE INSECURE MEDIUMS  THAT ARE GENERALLY NOT ENCRYPTED IN TRANSIT AND SECURITY OF INFORMATION  TRANSMITTED THROUGH THE INTERNET CAN NEVER BE GUARANTEED AND, ACCORDINGLY,  SUPERCHARGED SMS IS NOT RESPONSIBLE FOR ANY INTERCEPTION OR INTERRUPTION OF ANY COMMUNICATIONS THROUGH THE INTERNET OR FOR CHANGES TO OR LOSS OF CLIENT  CONTENT IN CONNECTION WITH THE SERVICES.

 

  1. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES.  ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS  ARE INAPPLICABLE.

 

  1. LIMITATION OF LIABILITY

 

  1. TO THE MAXIMUM PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WHATSOEVER WILL  SUPERCHARGED SMS NOR ITS RESPECTIVE AFFILIATES OR PARTNERS NOR ANY OF ITS OR THEIR RESPECTIVE  OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS OR SUPPLIERS BE RESPONSIBLE OR LIABLE, UNDER ANY LEGAL THEORY, WHETHER BASED IN  CONTRACT, TORT OR OTHERWISE, FOR ANY COMPENSATORY, DIRECT OR INDIRECT, INCIDENTAL,  OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS AND LOST  BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, REVENUE, INCOME, GOODWILL, USE,  DATA OR OTHER INTANGIBLE LOSSES OR SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT  RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO THIS AGREEMENT OR THE  MATTERS CONTEMPLATED HEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT THAT SUPERCHARGED SMS IS FOUND LIABLE  OR RESPONSIBLE TO YOU FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE IN CONNECTION WITH  THESE TERMS AND/OR THE MATTERS CONTEMPLATED HEREIN, SUPERCHARGED SMS’S AGGREGATE LIABILITY  TO YOU SHALL BE LIMITED TO $100.00.

 

  1. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR  INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS  MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE.

 

  1. YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY  LIMITATIONS IN THESE TERMS ARE A MATERIAL, BARGAINED-FOR BASIS OF THESE TERMS AND  THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY SUPERCHARGED SMS TO  OFFER TO YOU AND BY YOU TO USE THE SERVICES AND THE PLATFORM.

 

  1. INDEMNIFICATION

 

  1. Indemnification by Supercharged SMS. Supercharged SMS will defend Client, its officers, directors, employees and  affiliates (“Client Indemnified Parties”) from and against any third-party claim made against a  Client Indemnified Party to the extent alleging that the Platform or the Services, when used by  Client as authorized in this Agreement, infringes such third-party’s U.S. patent, copyright,  trademark or trade secret, and will indemnify and hold harmless Client Indemnified Parties  against any damages or costs awarded against Client (including reasonable attorneys’ fees) or  agreed in settlement by Supercharged SMS resulting from the claim.

 

  1. Indemnification by Client. Client will defend Supercharged SMS, its officers, directors, employees, and  affiliates (“Supercharged SMS Indemnified Parties”) from and against any third-party claim, demand, suit, or  proceeding made or brought against a Supercharged SMS Indemnified Party to the extent resulting from  Client Content, or Client’s breach or alleged breach of Section 5 (Client’s Obligations), Client’s use  of the Services or any activities other than in accordance with these Terms; and will indemnify  and hold harmless Supercharged SMS Indemnified Parties against any damages or costs awarded against  Supercharged SMS Indemnified Parties (including reasonable attorneys’ fees) or agreed in settlement by  Client resulting from the claim.

 

  1. Procedures.  The indemnifying party’s obligations in this Section 12 are subject to receiving (i)  prompt written notice of the claim, (ii) the exclusive right to control and direct the investigation,  defense and settlement of the claim and (iii) all reasonably necessary cooperation of the  indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The  indemnifying party may not settle any claim without the indemnified party’s prior written  consent if settlement would require the indemnified party to admit fault or take or refrain from  taking any action (other than relating to use of the Service, when Supercharged SMS is the indemnifying  party). The indemnified party may participate in a claim with its own counsel at its own expense.

 

  1. Mitigation and Exceptions. In response to an actual or potential infringement claim, if required  by settlement or injunction or as Supercharged SMS determines necessary to avoid material liability, Supercharged SMS  may at its option: (i) procure rights for Client’s continued use of the Platform or the Services, (ii)  replace or modify the allegedly infringing portion of the Platform or the Services to avoid  infringement without reducing the Platform’s or the Services’ overall functionality or (iii)  terminate the affected Order and refund to Client any pre-paid, unused fees for the terminated  portion of the subscription Term. Supercharged SMS’s obligations in this Section 12 do not apply (1) to infringement resulting from Client’s modification of the Platform or the Services or use of the  Platform in combination with items not provided by Supercharged SMS (including third-party platforms), (2)  to infringement resulting from Services other than the most recent release, (3) to unauthorized  use of the Platform or the Services, or (4) if Client settles or makes any admissions about a claim  without Supercharged SMS’s prior written consent. This Section 12 sets out Client’s exclusive remedy and  Supercharged SMS’s entire liability regarding infringement of third-party intellectual property rights.

 

  1. THIRD-PARTY PLATFORMS AND CONTENT

 

  1. Client may choose to use the Services with certain platform(s), publisher(s), add-on, website(s),  service or product not provided by Supercharged SMS that Client elects to integrate or enable for use with the  Services (“Third-Party Platforms“). Third-Party Platforms are not responsible for the Services or  the obligations between Supercharged SMS and Client pursuant to these Terms. Use of Third-Party Platforms  is subject to Client’s agreement with the relevant provider and not this Agreement, except where  expressly agreed by a Third-Party Platform, Third-Party Platform cannot provide assistance with  the installation or use of the Services. Supercharged SMS does not control and has no liability for Third-Party  Platforms, including their security, functionality, operation, availability or interoperability or how  the Third-Party Platforms or their providers use any and all data including (without limitation)  End-User data. If Client enables a Third-Party Platform to integrate or otherwise operate in  connection with the Services, Client authorizes Supercharged SMS to (i) access and exchange Client Content  and End-User data (including personally identifiable information) with the Third-Party Platform  on Client’s behalf and (ii) if required by the applicable Third-Party Platform, retain Client Content  and/or End-User data for such time period and otherwise in accordance with the terms of the  applicable Third-Party Platform, subject in each case to Supercharged SMS’s obligations under the Data  Processing Addendum.

 

  1. If Client is redirected to linked sites and content in connection with Client’s use of any Third-Party  Platform, Supercharged SMS recommends Client carefully read and abide by the terms of use and privacy  policies of such sites and content. Any opinions, advice, statements, content, services, offers or  other information expressed or made available by any Third-Party Platform, are those of the  respective third-party author(s) or distributor(s) and do not necessarily state or reflect those of  Supercharged SMS.

 

  1. TERM, TERMINATION, AND PAYMENT OF FEES

 

  1. This Agreement is effective between Client and Supercharged SMS as of the date of Client’s accepting this  Agreement by downloading or using the Services and will continue in effect until terminated by Client or Supercharged SMS as set forth in this Section 14.  NOTWITHSTANDING THE FOREGOING, SUPERCHARGED SMS RESERVES THE RIGHT UPON AT LEAST SEVEN (7) DAYS WRITTEN NOTICE TO CLIENT TO INCREASE  THE PRICING IN EFFECT. 

 

  1. Either Supercharged SMS or Client may terminate this Agreement if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings  and the proceedings are not dismissed within ninety (90) days. Notwithstanding the forgoing, Supercharged SMS may terminate this Agreement: (i) at any time without notice if it ceases to support the Services, which Supercharged SMS may do in its sole discretion, or (ii) on thirty (30) days written notice.  

 

  1. In any event of termination of this Agreement by either Party, all rights granted hereunder shall immediately expire and any and all use and/or exploitation by Client and/or on its behalf of the Services or the Platform, and any part thereof, shall immediately cease and expire. The following  Sections shall survive termination or expiration of the Terms: 2, 3.2, 7-9, 11-17.

 

  1. In addition to termination rights under Section 12.d, upon termination by Supercharged SMS, under this  Section 14, Client shall promptly pay Supercharged SMS any and all applicable fees and payments due up to  and including the date of termination. Upon such termination by Client under this section, Supercharged SMS shall promptly  refund to Client any fees previously paid by Client that pertain to any Services not yet provided as  of the date of termination. Except in the event of termination caused by an uncured, material  breach, fees paid are non-refundable.

 

  1. Fees are as described in each Order. All fees and expenses are non-refundable. Bonus, or  additional, credits provided by Supercharged SMS to Client for any reason are not transferable and are not refundable or redeemable  for cash at any time.  Any credits shall expire on the date which is one (1) year after purchase pursuant to this Agreement.

 

  1. Supercharged SMS’s fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, other charges, domestic or foreign imposed by any federal, state, or local tax authority with respect thereto including, for example, GST, value-added, sales, use or withholding taxes,  assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying  all Taxes associated with Client’s orders. If Supercharged SMS has the legal obligation to pay or collect Taxes  for which Client is responsible under this Section 14, Supercharged SMS will invoice Client and Client will pay  that amount unless Client provides Supercharged SMS with a valid tax exemption certificate authorized by the  appropriate taxing authority. For clarity, Supercharged SMS is solely responsible for Taxes assessable against it  based on its income, property and employees.

 

  1. NOTICES, GOVERNING LAW AND JURISDICTION

 

This Agreement is to be construed in accordance with and governed by the laws of the State of Delaware, United States, without giving effect to its provisions regarding conflict of laws. Each party hereby irrevocably consents  to be subject to the exclusive jurisdiction and venue of the courts located in New Castle County, Delaware, and each Party hereby irrevocably submits to the personal jurisdiction of such courts  and waives any jurisdictional, venue, or inconvenient forum objections to such venue and courts.  All notices are to be sent in writing by email to Supercharged SMS at: laura@superchargedsms.com, to Client at the address provided on the Order. Any such notices shall be deemed to have been given upon delivery.

 

  1. PUBLICITY

 

Supercharged SMS may use Client’s name and/logo to identify Client as a Supercharged SMS customer of the Services, including without limitation, on Client’s public website and marketing materials. Any such use shall be subject to Supercharged SMS’s compliance with any written guidelines that Client may  deliver to Supercharged SMS regarding the use thereof. Client hereby grants Supercharged SMS a non-exclusive,  worldwide, royalty free and fully paid up right and license to utilize its name, logo, trade-marks  and trade names for the purposes set forth above.

 

  1. GENERAL

 

If any provision of this Agreement is held to be unenforceable, such provision shall be reformed  only to the extent necessary to make it enforceable and if such provision is determined to be  invalid or unenforceable nonetheless, the provision shall be deemed to be severable from the  remainder of the Agreement and shall not cause the invalidity or unenforceability of the  remainder of the Agreement.  Client acknowledges and agrees that Supercharged SMS has the right, at any time and for any reason, to  redesign or modify the Supercharged SMS Materials and other elements of the Platform or any part thereof.  This Agreement constitutes the entire agreement between Client and Supercharged SMS respect to the subject  matter herein and supersedes and replaces any prior or contemporaneous understandings and  agreements, whether written or oral, including previous non-disclosure agreements between the  parties. Supercharged SMS may update this Agreement from time to time. We will provide prior written notice  of any material updates The updated version of this Agreement will  supersede all prior versions. Following such notice, Client’s continued use of the Services and  Platform on or after the effective date of the updated Agreement constitutes Client’s acceptance  of such updated Agreement . If you do not agree to the updated version of this Agreement, you  must stop using the Services and Platform immediately. No failure, delay or default in performance of any obligation of a party (other than a payment  obligation) shall constitute an event of default or breach of this Agreement to the extent that  such failure to perform, delay or default arises out of a cause, existing or future, that is beyond  the control of such party, including action or inaction of governmental, civil or military authority;  fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; epidemic,  pandemic or quarantine; earthquake, tornado or other natural disaster; failure or diminishment  of power or telecommunications or data networks or services; distributed denial of service or other cyberattacks; or refusal of a license by a government agency. The party affected  by such cause shall take all reasonable actions to minimize the consequences of any such cause.  Neither party may assign this Agreement without the prior written consent of the other party,  not to be unreasonably withheld, provided that either party may assign or transfer this  Agreement, without the prior written consent of the other party, to an affiliate or in connection  with a sale or merger of all or substantially all of the assigning party’s business or assets. Any  unauthorized assignment will be void and of no force or effect.  Except as expressly stated herein, nothing in this Agreement shall be considered as granting any  rights to third parties. The failure of either party to enforce any rights granted hereunder or to  take action against the other party in the event of any breach hereunder shall not be deemed a  waiver by that party as to subsequent enforcement of rights or subsequent actions in the event  of future breaches.  All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement  on one occasion will not be deemed a waiver of any other provision or of such provision on any  other occasion.  Supercharged SMS may use subcontractors and permit them to exercise Supercharged SMS’s rights (including without  limitation the provision of customer support), but Supercharged SMS remains responsible for their  compliance with this Agreement and for its overall performance under this Agreement.  In any event of a conflict or inconsistency between the terms herein and the terms of the Order Form,  the terms of the Order Form shall prevail. Any additional or conflicting terms contained in purchase  orders issued by Client with respect to the subject matter hereof are hereby expressly rejected  and shall have no force or effect on the terms of this Agreement or any Order Form. EXCEPT FOR CLAIMS RELATED TO OR ARISING FROM CLIENT’S INDEMNITY OBLIGATIONS  CONTAINED IN SECTION 12 HEREOF OR CLIENT’S PAYMENT OBLIGATIONS HEREUNDER, CLIENT  AND SUPERCHARGED SMS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS  AGREEMENT, THE SERVICES OR THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER  THE CAUSE OF ACTION SHOULD HAVE REASONABLY BEEN DISCOVERED. OTHERWISE, SUCH  CAUSE OF ACTION IS PERMANENTLY BARRED.