Terms of Service

Terms of Service

The Services

These Terms and Conditions May Change

TextHub reserves the right to update or amend these Terms and Conditions at any time.

TextHub May Change or Suspend Services

TextHub and/or its clients may, at its sole discretion, terminate or suspend the access to the Services or any portion thereof of any user for any reason.

Eligibility

You must be at least 18 years old to be eligible to use the Services. However, if you are at least 13 years old but not yet 18, you may use the Services if, and only if, you have your parents’ or guardians’ prior permission. No one under age 13 may use the Services under any circumstances. By clicking the “SUBSCRIBE” button you are representing that you are at least 18, or that you are at least 13 years old and have your parents’ permission to register for the Services.

Costs

There may be some costs associated with the use of TextHub and its Clients services. For example, your pager or cellular phone service provider may charge you to receive Wireless Text Messages. Neither TextHub, its partners, or its clients, will be held responsible for any charges related to the use of the Services.

Warranty & Disclaimer

TEXTHUB PROVIDES THE SERVICES “AS IS” WITH NO WARRANTIES OF ANY KIND. TEXTHUB EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS.

* Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

Limitation of Liability

UNDER NO CIRCUMSTANCES WILL TEXTHUB OR ITS EMPLOYEES, OFFICERS, OR DIRECTORS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SERVICES WHETHER OR NOT TEXTHUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

If you are dissatisfied with the Services or any content on any of TextHub’s or its client’s website properties, or with these Terms and Conditions, your sole and exclusive remedy is to discontinue using the Services. You acknowledge, by your use of the Services, that your use of the Services is at your sole risk.

Indemnity

You agree to indemnify, defend and hold harmless TextHub, its partners, clients, employees, officers and directors, from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable attorneys’ fees) arising from (i) any content that you or anyone using your account may submit, post or transmit to the web site; (ii) your use of the Services; (iii) your violation of the terms of these Terms and Conditions; and (iv) any violation or failure by you to comply with all laws and regulations in connection with the Services.

Assignment

You may not assign any of your rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of TextHub or its client’s. Any such purported assignment or delegation by you without the appropriate prior written consent of TextHub or its client’s will be null and void and of no force or effect.

All clients must agree to and abide by these Terms and Conditions:

READ THESE TERMS CAREFULLY BEFORE USING THIS SERVICE. BY USING THIS SERVICE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO BINDING AGREEMENTS EITHER INDIVIDUALLY OR ON BEHALF OF YOUR COMPANY AND ARE NOW COMPLETING SUCH A BINDING AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND ALL OTHER ADDITIONAL OR CONTRARY DOCUMENTS, OR REPRESENTATIONS, WRITTEN OR ORAL, ARE HEREBY REJECTED AND SHALL NOT BE BINDING.

1. INTRODUCTION

1.1 Introduction

The technology for this message delivery platform (“!”) is provided by TextHub Inc. (“TextHub “) and is furnished “as is” under this License Agreement (“Agreement”) for the fees specified in our pricing plan. You must read this Agreement and agree to its terms before you may create an account with TextHub.

1.2 Modification of This License Agreement.

TextHub reserves the right to change this Agreement and any additional terms at anytime, effective upon making the modified provisions available on the TextHub web site (www.TextHub.com). You are responsible for regularly reviewing these terms and conditions. Continued use of TextHub after any such changes shall constitute your consent to such changes, including changes in fees. TextHub does not and will not assume any obligation to notify you of any changes to the terms of use and notices, or additional terms.

2. LICENSE

2.1 License

TextHub grants you (referred herein as “you” or “client”) a non-exclusive, nontransferable license to create an account for and use. Your organization in accordance with the terms of this Agreement. The information provided on this web site regarding Features and Pricing, Privacy Policy, and Anti-Spam Policy is incorporated herein by reference. You specifically understand and agree that TextHub and any associated documentation are and shall remain the sole and exclusive property of TextHub, and is copyrighted and licensed, not sold.

2.2 Services Provided.

TextHub shall provide some or all of the following services, depending on services availability, and the service contract purchased: account management platform; e-mail messaging, including bounce reports, subscriber reports, campaign reports and others; voice messaging and call campaign (voice call), including Intelligent Answering and Filtering and detailed reports; text messaging to domestic customers, including 2-way premium campaigns (e.g., for contests or polls) and results reports; fax messaging with detailed delivery reports; other services as may be/become available; and reasonable technical and administrative support (collectively, “Service” or “Services”).

TextHub is accountable for providing the Services, but provides said Services “as is” and is only responsible for ensuring that the client’s messages leave the TextHub network. TextHub is not and cannot be responsible for the ultimate delivery of the client’s messages, and makes no such warranty or guarantee. TextHub reserves the right to send, dispatch, remit, transmit and/or forward any type, category or form of communication to you including, but not limited to, e-mails, SMS/text messages, facsimiles and/or telephone calls to address or discuss any issue related to TextHub’s Services.

2.3 Copyright.

TextHub’s databases contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions. All rights not granted to you herein are expressly reserved by TextHub. You may not remove any material belonging to TextHub from any web site or any of TextHub’s databases. You are not authorized to use TextHub’s name, logos or any related product and service names, design marks and slogans in any advertising, publicity or any other commercial manner without the prior written consent of TextHub.

2.4 Confidentiality.

You acknowledge that TextHub possesses valuable trade secrets and agrees to maintain the confidentiality of TextHub’s proprietary materials. TextHub agrees to maintain as confidential your e-mail, phone, fax, physical mailing addresses, instant message handles and pager list(s). TextHub agrees not to compile, buy, sell, rent, rent or trade your e-mail, phone, fax, physical mailing addresses, instant message handles or pager list(s), or send unauthorized emails, instant messages, wireless text messages (SMS), direct mail, voice messages or faxes to any individual or entity on your list(s). TextHub further agrees not to use your customer list(s) or any other customer information for any other purposes than those intended with the Service. Your customer information shall not be shared with any other third parties unless required by law. TextHub will provide you with reasonable advance notice prior to disclosing confidential information on this basis and agrees to stipulate to any orders necessary to protect said information from public disclosure.

2.5 Restrictions.

TextHub maintains a Global Permanent Removal List which contains addresses and domains which it will not allow any customer to add to a database. You understand and agree that TextHub has full discretion to block the uploading of any e-mail address which it has placed on such a list, and will not be liable for the blocking of any such address from any customer database.

You shall not: (1) use or copy TextHub’s platform, network, marks or web site or its associated documentation except as provided in this License Agreement; (2) modify or merge TextHub’s platform, network, marks or web site or its associated documentation; (3) publish, display, disclose, rent, lease, modify, loan, distribute, create or otherwise make available the derivative works based on TextHub’s platform, network, marks or web site or its associated documentation or any part thereof, in whole or in part, to any other person or entity; (4) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on TextHub’s platform, network, marks or web site or its associated documentation; (6) reverse engineer, decompile, translate, adapt, or dissemble TextHub’s platform, network, web site or its associated documentation, nor shall you attempt to create the source code from the object code for TextHub’s platform, network, or web site or its associated documentation; (7) sublicense or assign the license for TextHub’s platform, network, marks or web site or its associated documentation; and (8) copy these terms and conditions or this License Agreement for you and your customers’ own use. You shall have the right to copy specific sections as a means of complying with such section in your agreements with its independent contractors, e.g., your customers.

You must include the relevant subscribe/unsubscribe information (as well as a physical address for the CAN SPAM act and an abuse link to TextHub’s abuse system) provided by TextHub in each message you send using TextHub’s email platforms. You shall also honor in a timely manner all unsubscribe requests sent directly to you from those who elected not to use TextHub’s automated subscribe/unsubscribe features, regardless of how harsh or unpleasant the unsubscribe request may be.

You shall not use TextHub or its networks to:

1. send unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes (a.k.a., “Spam”) to anyone;

2. send unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes to email addresses, phone/pager numbers, landline phones or fax machines, obtained from any purchased or harvested lists in which the recipient did not expressly request to receive your message (or your customers’ messages);

3. send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that harass, embarrass, defame, abuse, threaten, libel, slander or otherwise violate the legal rights of any individual, group, or organization;

4. send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by TextHub;

5. send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contains copyrighted material, including text, graphics (including trademarked material), software or other material protected by intellectual property law, for which you do not have a lawful authorization to reproduce, publish, or otherwise distribute;

6. send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain a computer virus or other code or file that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group or organization;

7. perform or promote illegal activities such as starting or forwarding chain letters, illegal contests or promotions, or any other activity that is illegal;

8. impersonate, use the name of (without express permission) or misrepresent any individual, group or organization;

9. violate any applicable governmental laws or regulations or perform any activity that would cause TextHub to violate any law, statute or regulation.

Although TextHub has no obligation to monitor the content provided by you or your use of the Services, it may do so and may remove any such content or prohibit any use of the Services TextHub believes may be (or is alleged to be) in violation of the foregoing, provided that TextHub provides you with reasonable notice prior to taking such action.

2.6. “No Spam” and Privacy Policies

You represent, covenant and warrant that you shall use the Services only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity or defamation).

In the event you use the Service to conduct telemarketing activities, you shall warrant to TextHub that you will take all required actions necessary to comply with applicable state and federal “DO NOT CALL” and telemarketing registration statutes and regulations, and you shall not use the Service in a manner which will result in a violation of any laws or regulation respecting such Service, including but not limited to the Federal Telephone Consumer Protection Act, 27 U.S.C. § 227, et seq..

You shall use TextHub only for “opt-in” lists, lists in which the recipient has voluntarily signed up to be on your list and has not requested to be unsubscribed. Any messages sent to users who did not request to be on your or your customers’ lists, whether purchased or otherwise obtained without the recipients’ consent, shall be deemed as “Spam” and may result in termination of your account without refund and legal action, including the pursuit of damages, against you for violating our “No Spam” policy.

You shall also agree to abide by and display a Privacy Policy or link to a Privacy Policy on your signup page. You shall either (1) use the Privacy Policy provided by TextHub (attached as Exhibit D) or (2) use a Privacy Policy that contains the same provisions, or their equivalent, as the Privacy Policy that is provided by TextHub. Any violation of this Privacy Policy may result in termination of your account without refund and the commencement of legal action against you. You agree to indemnify and hold TextHub harmless from any damages and claims arising from any violation of this policy.

TextHub is compliant with the CAN-SPAM laws and enforces such practices for all of its customers. TextHub also works closely with the major anti-spam organizations such as Mail Abuse Prevention System (MAPS), SpamCop, Spamhaus, and Spam Prevention Early Warning System (SPEWS) to ensure that all of its customers are not in violation of spamming policies.

You understand that e-mails that are sent through TextHub’s Services may generate abuse complaints from recipients. As a matter of privacy, TextHub does not have to share with you the e-mail addresses, instant message handles, phone numbers, pager numbers or fax numbers of those who complain about your campaigns.

2.7. Addressing Spam Complaints

You are responsible for ensuring that your campaigns do not generate a number of abuse complaints in excess of industry standards. An excessive number of such complaints may result in the termination of your account. TextHub, in conjunction with you, shall mutually determine whether your level of abuse complaints is within industry norms. In the event that your use of TextHub’s Services results in you being listed on SpamCop or any other anti-spam organization, TextHub reserves the right to require that you utilize a “double opt in” feature which will require newly added users to verify their assent to receiving your communications after they have been added to your database(s).

ISP FBL Complaints. TextHub is enrolled in feedback loops (“FBL”) which are offered by internet service providers to send back complaints when an end user designates the message as “spam.” The internet service provider tabulates the amount of complaints per campaign and assesses penalties when a campaign exceeds a particular threshold amount which is a percentage of the campaign’s volume. If your campaign exceeds FBL complaint thresholds, you shall be responsible for the following charges:

Abuse E-Mail Complaints. Abuse complaints are also transmitted via e-mail to abuse@TextHub.com or via the TextHub corporate web site when a message recipient follows the “Complain” link located at the footer of each client e-mail message (http://www.TextHub.com/abuse.) For each such complaint, you shall be responsible for the following charges: $10 per each complaint; or $100 per complaint if you cannot show proof of an opt-in for the complainant (also calls for immediate hold and consultation with possible termination). These charges shall be payable by you within 30 days of receipt of invoice from TextHub.

Spamcop. SpamCop (located at www.spamcop.org) is one of the largest Blacklists on the Internet. An excessive number of complaints to SpamCop may result in a blockage of a mailing IP address and a disruption of TextHub’s Services to other customers. For any complaint submitted to SpamCop, TextHub, TextHub’s hosting company or received from SpamCop relating to any messages transmitted by you shall be responsible for the following charges:

2.8 Enforcement.

You acknowledge that upon your breach of Sections 2.3, 2.4, 2.5, or 2.6 TextHub shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief and you further agree to waive any right or claim to which you may be entitled to immunity or exemption from liability. TextHub may also seek damages as a result of such breach.

2.9 Term and Termination.

You understand that this Agreement is effective from the date you create an account with TextHub and shall continue until the contract is complete or the account is terminated either by you or by TextHub. TEXTHUB MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OF THIS LICENSE. YOU WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED. TextHub may terminate this Agreement immediately if: i) you fail to comply with the terms of this Agreement; ii) your account is dormant for a period of 60 consecutive days; iii) the TextHub Service is discontinued; or iv) you have an overdue balance for any Services or products purchased on or through www.TextHub.com. If TextHub terminates your account, you must immediately stop using TextHub and associated documentation, including sample documents provided within TextHub, and all copies you made of them.

Agreements may only be terminated by providing written notice to TextHub’s billing department (billing@TextHub.com). Cancellation must be completed prior to the next billing period which occurs on the first (1st) of the month. If account is not cancelled by the first (1st), all Service fees will continue to be charged. You will not be entitled to any refund of fees paid. In the event that you are on a contract and terminate said contract before it has completed, you agree to pay an early termination fee equal to the higher of a) the amount remaining on the contract, or b) the difference between the highest equivalent non-contract monthly rate charged and the amount you actually paid for each month of Service under the agreement. TextHub may terminate this Agreement or the Services, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. TextHub shall have no liability to you or any third party because of such termination or action. Should TextHub take any such action, it will delete any of your archived data within 30 days after the date of termination. After termination, TextHub will provide upon request the list of unsubscribe requests from within 30 days of your last email campaign, but will not process said requests. If your account is classified (at TextHub’s sole discretion) as inactive for over 60 days, TextHub has the right to permanently remove your subscriber data. TextHub will attempt to contact you via email prior to taking any permanent removal actions.

2.10. Risks.

TextHub and its platforms may have errors and may produce unexpected results. Except as otherwise expressly provided herein, you agree that any use of TextHub’s platforms will be entirely at its own risk. You agree to backup you information and take other appropriate measures to protect programs and data. You may not allow a third party to use TextHub’s account and agree to indemnify and hold TextHub harmless from any damages or claims arising from such use by any third party. You specifically understand that you assume the risk of your messages actually reaching their destination, and that TextHub does not and cannot guarantee the ultimate delivery of your messages.

3. DISCLAIMER OF WARRANTIES AND REMEDIES

3.1 Disclaimer of Warranty.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TEXTHUB’S SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEXTHUB DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TEXTHUB DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS PLATFORM WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT TEXTHUB WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN TEXTHUB’S PLATFORM WILL BE CORRECTED, OR THAT TEXTHUB’S PLATFORM IS COMPATIBLE WITH ANY OTHER PARTICULAR PLATFORM.

YOU SPECIFICALLY UNDERSTAND THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF TEXTHUB, THAT E-MAILS, INSTANT MESSAGES, TEXT MESSAGES, PHONE MESSAGES AND FAX MESSAGES MAY NOT REACH THEIR INTENDED RECIPIENTS, AND UNDERSTAND THAT TEXTHUB CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF YOUR MESSAGES.

If you receive a claim that the use of the Services infringes a patent, copyright or other intellectual property right, you must promptly notify TextHub in writing. TextHub, at its own expense and option, may (i) defend and settle such claim, (ii) procure you the right to use the platform, (iii) modify or replace the platform to avoid infringement; or (iv) refund the license fees you paid, if applicable. Subject to Section 3.3 below, these are your sole and exclusive remedies for any and all claims you may have against TextHub arising out of or in connection with the use of TextHub’s platform, whether made or suffered by you and whether based in contract or in tort.

Short codes, telephone numbers, and other text message identifiers originate from our vendors, the North American Numbering Plan, and other institutions who are not under our control, and accordingly, while we use reasonable efforts, we cannot promise that you will be able to maintain or keep any specific text message short code, originating mobile number, or other specific message origination or destination code, address, or identifier (each of the foregoing, a “Code”) that we provide you, and we may not support Code portability. As between you and TextHub, we own all Codes which we provide as part of the Service, and reserve the right to reallocate them at our discretion when required or for other reasonable purposes. You acknowledge that if the TextHub services are suspended or terminated due to your non-payment or breach of this Agreement, you may not be able to obtain the same Codes or other account identifiers should you reactivate such services. YOU AGREE THAT WE HAVE NO LIABILITY FROM OR ARISING OUT OF ANY CODES WE PROVIDE, ANY REALLOCATION OR LOSS OF THE SAME, OR ANY DAMAGE OR LOSS YOU MAY SUFFER AS A RESULT, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, AND LOSS OF PROFITS OR BUSINESS ADVANTAGE, REGARDLESS OF THEORY, WHETHER TORT, CONTRACT, PROPERTY, RELIANCE, OR OTHERWISE.

3.2 Limitations of Liability

TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL TEXTHUB BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE TEXTHUB’S SERVICES, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF TEXTHUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT TEXTHUB IS FOUND LIABLE FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF TEXTHUB TO YOU WILL BE LIMITED TO THE AMOUNT CLIENT PAID FOR THE SERVICES.

3.3 Indemnification.

You (the “Indemnitor”), at your own expense, shall indemnify, defend and hold harmless TextHub, its affiliates and their employees, representatives, agents and affiliates (the Indemnitee”), against any claim, suit, action, or other proceeding brought against the Indemnitee or any affiliate based on or arising from your use of the Services, including but not limited to a claim that any action violates any of the restrictions or terms and conditions, such as violation of the Privacy Policy or using TextHub platforms to send Spam, as set forth in this Agreement, infringes in any manner any intellectual property right of any third party or contains any material or information that is obscene, defamatory, libelous, slanderous, that violates any person’s right of publicity, privacy or personality or has otherwise resulted in any tort, injury, damage or harm to any person; provided, however, that in any such case: (i) the Indemnitees provides the Indemnitor with prompt notice of any such claim; (ii) the Indemnitee permits the Indemnitor to assume and control the defense of such action, with counsel chosen by Indemnitor (who shall be reasonably acceptable to the Indemnitee); and (iii) Indemnitor does not enter into any settlement or compromise of any such claim without the Indemnitee’s prior written consent, which consent shall not be unreasonably withheld. The Indemnitor agrees to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the Indemnitee or any affiliate in connection with or arising from any such claim, suit, action or proceeding. It is understood and agreed that TextHub does not intend and will not be required to edit or review for accuracy or appropriateness any content or material that client or its organization distributes using the your platforms, networks or databases.

3.4 Damages.

You understand that the sending of unsolicited messages may result in fines, penalties, and the blocking of servers by spam filters and other spam preventing measures, and you shall reimburse TextHub for any fines or penalties assessed against, and shall be liable for damages caused to TextHub’s server which is blocked as a result of your use of TextHub’s Services covered herein. In addition to penalties which TextHub may impose if your campaign results in a server being blocked, TextHub shall have the right to charge your account for any time spent by TextHub agents or employees addressing issues arising out of the unlawful use (or use in any manner inconsistent with the terms of this Agreement) of TextHub’s Services, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.

4. PAYMENT AND PLANS

4.1 Authorization

By using TextHub’s Services, you expressly agree that TextHub is permitted to bill you the applicable fees and any other charges for the Services provided by TextHub. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. TextHub may change the fees and charges in effect, or add new fees and charges from time to time.

4.2 Payment Terms

Payment is due in full upon receipt of the invoice. If the invoice is thirty (30) days past due, TextHub may, to the extent permitted by the law of the State of Illinois, charge you a late fee of up to 1.5 percent per month (18 percent annually). TextHub may also charge you for any collection agency fees that TextHub uses to collect from you.

4.3 Automated Credit Card Payments

TextHub permits you to set up an automated payment system by establishing a credit card account from which payments are debited. You agree that TextHub shall automatically bill your credit card account each month after the commencement of your Services contract with TextHub. If your credit card is declined on the that day of the month when payment is due, you may log onto your account, but will be unable to send any messages via TextHub’s platform. If your credit card is also declined on the 10th day of the month when payment is due, TextHub will assess a $10 late fee. If your credit card is then declined on the 25th day of the month when payment is due, TextHub will assess an additional $15 late fee. TextHub reserves the right to terminate your account if your credit card is declined in the next billing cycle. You shall remain responsible for any uncollected amounts.

4.5 Mobile-Terminated/ Mobile-Originated Messages

A mobile-terminated (“MT”) message is any SMS message sent by TextHub to an end-user using TextHub’s platform. A mobile-originated (“MO”) message is any SMS message sent by an end-user back to TextHub. For any campaign, your monthly allotted plan includes only MT messages. Each MT message transmitted to an end-user constitutes a separate message regardless of the timing of the transmission or identity of a recipient. You will not be charged for MO messages.

5. MISCELLANEOUS

5.1 Miscellaneous.

This license and the rights granted under this License Agreement may not be transferred or assigned by you. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Illinois, United States of America without regard to its principles of conflict of laws. The parties consent to the jurisdiction of the courts of the State of Illinois and the federal courts located within the State of Illinois, County of Cook, and any disputes shall be litigated solely in those courts. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees. If any clause, sentence or other provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining clause, sentence, or other provisions shall remain in full force and effect. Neither of the parties shall be liable for failures due to causes beyond their control, including, but not limited to, acts of God, acts of government, fire, flood, strikes, or acts or omissions of carriers. You warrant that you shall comply with all applicable laws and regulations that relate to the performance of this Agreement.’

5.2 No Agency.

No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind TextHub in any respect whatsoever.

THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF TEXTHUB OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA . YOU SHALL NOT EXPORT TEXTHUB, THE DOCUMENTATION, OR INFORMATION ABOUT TEXTHUB, AND THE DOCUMENTATION WITHOUT CONSENT OF TEXTHUB AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. This Agreement constitutes the entire Agreement, supersedes all prior agreements, and changes are only effective when in writing and signed by both parties.

5.3 Records.

You will ensure that anyone in your organization or affiliated entities who uses TextHub (accessed either locally or remotely) does so only for your authorized use and complies with the terms of this Agreement.

5.4 Assignment of Accounts

TextHub reserves the right to assign its IP and/or client’s accounts and data to another company of equal or greater capabilities and capacity to handle client’s account. In the event that TextHub merges with or is acquired by another company or companies, all of its client accounts shall be automatically transferred to said new company or companies.

5.5 Non-Solicitation

During the term of this Agreement and for a period of two (2) years thereafter, neither you nor any employee, officer, director, representative, lawyer, agent, or affiliate of yours will solicit, encourage, or cause others to solicit or encourage any employees of TextHub to terminate their employment with Company.