Simplewire Terms and Conditions
Exhibit
10.11
Simplewire
Terms and Conditions
This
commercial service Agreement (the “Agreement”) is a legal and binding Agreement
between Company
Name ,
a
[State,
C/S/LLC] corporation
(“Customer”) and Simplewire, Inc., a Michigan, U.S.A. corporation
(“Simplewire”). This Agreement shall become effective as of
03-07
2006 (the
“Effective Date.”)
Background
Simplewire
is a wireless messaging services company. Simplewire enables customers to send
Content and services directly to mobile subscribers over telecommunications
networks using various messaging technologies.
Customer
provides Content and services designed for delivery to and receipt from
subscribers’ wireless devices via short message service, WAP push, and/or other
mutually agreed upon messaging technologies.
The
parties desire to permit Customer to connect to Simplewire’s Network to deliver
messages to the aggregated Simplewire wireless carriers.
This
Commercial Service Agreement consists of the following:
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·
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This
Signature Page
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·
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Terms
and Conditions
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Access
and Messaging Signup Form
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Short
Code Messaging Signup Form
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Short
Code Program Form
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By
signing below, Customer represents and warrants that the information Customer
provides below and on each of the attached forms is accurate, and that Customer
has read and understood, and will act in accordance with, all of the terms
set
forth in the attached documents.
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Simplewire,
Inc.
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Company
Name
With
its main office at:
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____________________.
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By:
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By:
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Name:
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(Signature)
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Name:
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(Signature)
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Title:
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(Printed)
Account
Executive
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Title:
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(Printed)
CEO
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Date:
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(Printed)
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Date:
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(Printed)
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(Printed)
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(Printed)
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Page
1
Terms
and Conditions
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1
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DEFINITIONS
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1.1
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“User(s)”
shall mean the subscriber on a wireless telecommunications network
that
sends or receives SMS messages via a wireless Device. The User is
the
consumer of the messaging services provided by Simplewire and the
Customer.
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1.2
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“Carrier(s)”
shall mean Simplewire’s pre-approved paging and mobile networks, and other
networks which may subsequently be approved; the number of said Carriers
shall be at Simplewire’s discretion. A list of the current pre-approved
Carriers providing the Services can be found at the URL:
▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/. Carriers for specific programs such
as
Premium SMS may be defined separately in the Simplewire Short Code
Program
Form.
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1.3
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“Services”
shall mean Simplewire’s Wireless Messaging services used by Customer
including SMS mobile originated and mobile terminated messaging for
text
and binary, message routing, short code provisioning, long code
provisioning, premium billing, preview messaging lookups, handset
data
subscriptions, and other such services Simplewire may
offer.
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1.4
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“Software”
shall mean the object code version of Simplewire’s client Software
Development Kit ("SDK"), HTML code, application programming interfaces
(APIs), related documentation and other client software or code which
Simplewire provides to Customer, including updates, to enable Simplewire
to provide the Services to Customer. Unless otherwise specified,
Software
shall not include any source code. The Software is proprietary to
Simplewire and is licensed to Customer under a separate SDK License
Agreement at the time of download.
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1.5
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“Transaction(s)”
shall mean information related to the origination or termination
of a
Wireless Message request by Customer and transmission and routing
of same
to the appropriate Carrier with requests for further delivery.
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1.6
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“Wireless
Message(s) (Messaging)” shall mean the transmissions of Customer’s
instructions, and as converted and routed by Simplewire and delivered
to
the gateway of the Carrier, together with a request that the Carrier
deliver said messages to the wireless Devices designated by
Customer.
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1.7
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“SMS
(Short Message Service)” shall mean a short message service text or binary
message consisting of 160 characters of text or 140 bytes of binary
data,
or other length of text or binary data per the Carrier’s network’s support
for such length of data.
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1.8
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“Short
Code” means the unique 5-digit code Customer is assigned by CSCA and the
Common Short Code Authority (CSCA), or a 4-digit or 3-digit code
Customer
is assigned by a specific carrier, that enables the Simplewire Network
to
identify that Customer is the intended recipient of a Message and
is used
to route the Message to the
Customer.
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1.9
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“Content”
means data, text, audio, music, ringtones, graphics, photographs,
artwork
and other materials in digital electronic
form.
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1.10
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“Device(s)”
shall mean any hardware capable of receiving or sending Wireless
Messages
to or from a Carrier.
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1.11
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“SMSC”
shall mean a short messaging service center server operated by a
Carrier
that manages the distribution of Messages to/from Simplewire, to/from
Users and/or Devices.
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1.12
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“SMPP
Connection” shall mean a direct connection to an SMSC using the short
message peer-to-peer protocol.
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2
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1.13
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“Simplewire
Network” shall mean Simplewire’s telecommunications network, including
without limitation Simplewire’s SMSC, the Simplewire Carriers,
Simplewire’s routing system, and the technical connectivity used to
send/receive Wireless Messages.
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1.14
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“Wireless
Number Portability” shall mean the ability for a User to keep a mobile
number originally owned by one Carrier to a new
Carrier.
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1.15
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“Premium
SMS” shall mean the charging of Users for a specific use of SMS messaging
with the use of Short Codes for a per event charge in addition to
their
already prescribed monthly service plan or standard rate message
fee.
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1.16
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“Standard
Rate SMS” shall mean the transmission of an SMS message without a Premium
SMS fee applied that is charged to the Customer by Simplewire and
where
the user may still be charged a fee by the carrier for the termination
or
origination of the SMS message.
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1.17
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“Mobile
Originated (MO)” shall mean the origination of an SMS by a User on their
Device that is sent into the Carrier’s SMSC and subsequently transmitted
to Simplewire’s SMSC for delivery to the
Customer.
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1.18
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“Mobile
Terminated (MT)” shall mean an SMS that is sent by the Customer to
Simplewire’s SMSC and subsequently transmitted to the Carrier’s SMSC for
delivery to the User.
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1.19
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“Customer
Service” shall mean the application, service, Content, or information that
the Customer is making available to the User via wireless
Messaging.
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2
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CUSTOMER
OBLIGATIONS
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2.1
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Connectivity
and Application
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Customer
shall solely establish and maintain the appropriate and necessary TCP/IP
connection between the Customer and Simplewire’s Network, including, without
limitation, transmitting Customer’s registration information and Transaction
data to Simplewire’s servers via the Internet and ensuring that the data
transmitted in conjunction with the Services, and for enrollment for the
Services, is accurate, complete, and in the form as requested by Simplewire,
and
is not corrupted due to Customer’s systems. Customer will only connect to the
IPs and ports provided by Simplewire. Customer shall develop, host, run, and
maintain the Customer Service application that will handle the business-logic
of
the Wireless Messaging service described in this Agreement and such application
shall implement at all times the required policies of the Wireless Messaging
service (as defined in section 2.9).
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2.2
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Content
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Customer
acknowledges that all Content, data, text, messages and other material contained
in a Transaction (the “Content”) are the sole responsibility of the Customer. In
addition to the technical accuracy referred to in 2.1 above, the Customer is
also solely responsible for the integrity and quality of the Content. The
Customer acknowledges that any financial information that it may receive
pursuant to any Transaction may or may not be a reliable basis for making,
or
refraining from making, investment decisions. Further, Customer shall maintain
commercially reasonable business practices in conjunction with the Services,
the
Transactions, the Carriers, and generally complying with all applicable laws
and
regulations with respect to its use of the Services and with respect to the
Transactions. Specifically, Customer agrees not to use the Service to transmit
any Content which is tortious, defamatory, obscene, libelous, harmful to minors,
“spam”, material containing software viruses or otherwise designed to disrupt
the functionality of any computer software or hardware or telecommunications
equipment, in violation of any regulation of the U.S. Securities and Exchange
Commission or any stock exchange, infringing of another’s rights in intellectual
property, or is invasive of another’s right to privacy.
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2.3
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Liability
of Content
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Under
no
circumstances will Simplewire or any of the Indemnified Parties (as defined
in
section
Page
3
12)
be
responsible for any loss, damage or liability arising out of the Content of
any
Transaction, including any mistakes contained in the Content or the use or
transmission of the Content.
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2.4
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Integrity
of Content
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Customer
shall maintain the integrity of the Content per the policies and guidelines
of
Simplewire and the Carriers (as outlined in section 2.9)
and as
defined by the Short Code Program Form. Customer acknowledges that Simplewire
is
obligated by the Carriers to monitor the integrity of Content by Simplewire’s
Customers and that if such Customer breaches the integrity of the Content that
Simplewire’s Carrier relationships may be irreparably harmed. Simplewire is
obligated by the Carriers to take any and all action necessary to maintain
the
integrity of Content, including without limitation the termination of this
Agreement (as outlined in section 14).
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2.5
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Transmission
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Customer
acknowledges that use of the Service may involve transmissions involving
companies other than Simplewire and the Content may not be private in certain
circumstances and may be changed by those other companies to conform and adapt
to their requirements and Devices. Simplewire assumes no responsibility for
timeliness, deletions, mis-delivery or failure to store any Content or
Transaction.
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2.6
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License
of Content
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Customer
grants to Simplewire all licenses to the Content necessary to perform the
Transactions.
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2.7
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Use
of Software
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Customer
agrees that its use of the Software, and other materials and information
provided by Simplewire to Customer, shall be limited to Customer’s use of the
Services and be in conjunction with the Transactions and governed by this
Agreement.
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2.8
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Short
Code Program Form
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Customer
shall supply Simplewire with an accurate Short Code Program Form for all Short
Code programs and non-Short Code programs as defined in the Short Code Program
Form documentation. Customer shall adhere to the Short Code Program Form
throughout the length of this Agreement. If Customer changes the nature and
structure of their Wireless Messaging program, Customer is obligated to supply
Simplewire with an updated form. Customer acknowledges that Simplewire may
modify the Short Code Program Form to more accurately describe the Customer’s
program.
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2.9
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Program
Policies
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Customer
shall adhere to all policies from Simplewire and the Carrier’s regarding the
Content, User interaction, and Transmission of Messages as described
below.
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2.9.1
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Customer
will ensure that all such Content and materials do not and will
not
contain any material that: (a) is unlawful, obscene, or defamatory
or
violates any intellectual property Rights or any other rights of
any third
party; (b) facilitates any illegal activity; (c) contains any sexually
explicit Content or images; (d) is false, misleading, or likely
to mislead
or deceive (including, without limitation, information relating
to the
source or the author of the message); or (e) promotes violence,
discrimination, or illegal activities.
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2.9.2
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Customer
may only send Messages from the Short Codes obtained by Customer
from CSCA
and provided by Customer to Simplewire.
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2.9.3
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Customer
will not send any Messages to a User unless (i) Customer has obtained
such
User’s “opt-in” consent to receive such Message or the (ii) recipient of
the Message is an employee of Customer (a) using a device owned
or paid
for by Customer or (b) using a personal device and the employee
has given
Customer permission to communicate with employee via the
device.
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4
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2.9.4
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Customer
must provide Users with a simple mechanism for opting out of receiving
Messages from Customer, including information on how to “opt-out” of
receiving Messages from Customer in the first Message sent to a
User.
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2.9.5
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At
a minimum, Customer must provide Users with the ability to opt-out
of
receiving Messages from Customer: (i) by sending a Message to Customer
with “unsubscribe” in the text; (ii) via the same mechanism as the User
registers for the Customer Service or opts-in to receiving Messages
from
Customer. Customer must include a prominent description of the
opt-out
mechanism at the same location and time as Customer provides the
User an
opportunity to opt-in. Customer will not send any Messages to any
User
that has indicated that they intend to opt-out of receiving
Messages.
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2.9.6
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Customer
will not send any Messages to a User unless such messages are directly
related to the Customer Service as described in this Agreement
including
but not limited to the Short Code Program Form.
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2.9.7
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Customer
agrees that, throughout the Term, the Messages, Content and/or
Services
delivered to a User on a specific Carrier network via the Simplewire
Network will not include advertising or promotion of a Carrier’s
competitor. Customer agrees that, throughout the Term, any Customer
Service related web site pages (HTML, WAP, etc.) that are targeted
directly at a Carrier’s User will not include advertising or promotion of
a Carrier’s competitor. If Customer has any questions about whether a
particular third party is a Carrier’s competitor, Customer will contact
Simplewire and Simplewire will escalate the issue to the specific
Carrier
in question and such Carrier will, in its sole discretion, determine
whether the third party is a competitor of the Carrier.
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2.9.8
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Customer
agrees to prominently provide contact information (at a minimum
an email
address) for Customer’s User service (i) at the same time and location
(i.e., on the same web page or in the same Message) as Users register
for
the Customer Service or otherwise opt-in to receiving Messages
from
Customer and (ii) at a location easily accessible to a User to
allow the
User to access the contact information after the User has registered
for
the Customer Service or opted in to receiving Messages from Customer.
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2.9.9
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Customer
agrees to include a prominent notice that “other charges may apply” (or
other language that clearly informs Users that other charges may
apply
such as standard SMS Message rates from the specific Carrier User
maintains service with) at the same time and location (i.e., on
the same
web page or in the same Message) as Users register for the Customer
Service or otherwise opt-in to receiving Messages from Customer.
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2.9.10
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If
Simplewire or Carrier personnel receive questions or complaints
from Users
regarding the Customer Services, or if Simplewire or the Carriers
experience any technical problems with the Customer Services such
that
Users are negatively affected, Customer will cooperate in good
faith with
Simplewire and use best efforts to resolve any problems raised
by
Simplewire, the Carriers, or the Users.
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2.10
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Policy
Infringement
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If
Customer or Customer’s Users infringe upon the Program Policies (as defined
in section 2.9)
Customer shall be immediately obligated to correct such an infringement. If
Customer is purposely infringing upon the Program Polices then Simplewire and/or
the Carriers reserve the right to immediately cutoff all message activity and
de-provision Short Codes. If Customer’s Users are infringing upon the Program
Policies, then Customer is obligated to make all efforts possible to correct
such infringements including, but not limited to, blocking the User from
Customer’s Service. If Customer is not able to correct User infringements, then
Customer is in breach
of
this Agreement and Simplewire may terminate this Agreement (as outlined in
section 14).
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2.11
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Permitted
Messages
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Customer
is allowed to send text, binary, WAP Push, Java Midlet-Push, Brew-Directed
(as
Page
5
defined
in below), MMS alerts, Smart-Messaging, EMS, OTA Configuration, concatenated,
alpha originator, source address overrides, and other types of messages as
described in the Simplewire Access and Messaging Signup Form and the Simplewire
Short Code Signup Form. Customer acknowledges that all such message types are
not supported on all Simplewire Carriers. Customer also acknowledges that
Simplewire has differing pricing and approval policies regarding certain types
of messages on specific Carrier’s networks.
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2.11.1
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Brew-Directed
SMS
Customer
is allowed to send Brew-Directed SMS on the Simplewire Network
for
development and production purposes. Customer acknowledges that
some
Carriers, including but not limited to Verizon (U.S.), have specific
policies regarding Brew-Directed SMS and Simplewire requires additional
addendums to this Agreement to support Brew-Directed SMS connectivity
for
production applications.
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2.12
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Security
and Integrity of Messages
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Customer
agrees to maintain an appropriate level of security and integrity for the
Simplewire Network and Customer’s Users in connection with the Customer
Services, including but not limited to, implementing procedures to prevent
third
parties who use the Customer Services from sending or transmitting to Users
(i)
unsolicited data or messages, (ii) viruses, or (iii) a volume of Messages that
unreasonably burdens the Simplewire Network. Customer will immediately notify
Simplewire if it knows or has reason to know that any such unsolicited data,
messages, or viruses are being sent to Users by virtue of such Users’ use of the
Customer Services and agrees to use best efforts to prevent and/or block any
such unsolicited data, Messages or viruses from being sent to Users. Customer
agrees to notify Simplewire immediately if it knows or has reason to know that
Users are being sent an unusual or abnormal flow, number or type of Messages
in
connection with the Customer Services and will cooperate with Simplewire to
prevent continuing transmission of such data or Messages to Users.
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2.13
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Security
of Account
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Customer
agrees to maintain all security regarding their account ID, password, and
connectivity with the Simplewire Network. Customer is responsible for all
messages transmitted to the Simplewire Network. If Customer’s account ID or
password are stolen, or otherwise compromised, and used for malicious purposes,
Customer is responsible for all Messages transmitted using the stolen account
information. Customer is obligated to immediately contact Simplewire to have
such account ID or passwords changed to prevent continued malicious use of
the
Customer account.
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2.14
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Support
Services for Users
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Customer
is obligated to provide Support Services to Users utilizing the Customer
Service. Customer must provide one or more of the following: an email address,
a
web site URL, or a phone number for contacting the Customer. Such services
shall
be made available during reasonable business hours and follow-up shall occur
in
a timely manner. Simplewire or Carriers may refer Users to the Customer Support
Services from time to time.
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2.15
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Blacklists
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If
Simplewire provides Customer with a list of mobile numbers that are
“blacklisted,” Customer will not send any Message to any mobile number on the
blacklist. If Customer receives any Messages from any mobile number on the
blacklist, Customer will send a response Message with text to be provided by
Simplewire. In some cases, Simplewire may implement “blacklist” removal
automatically and Customer will not need to implement such policies depending
on
whether the “blacklist” mobile number is specific to the Customer’s Service or
globally to all Message Services.
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2.16
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Throttle
Rates
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Customer
will throttle Messages so as not to exceed twenty (20) Messages per second
rate,
or the rate defined in the Simplewire Access and Messaging Signup Form, or
as
otherwise negotiated between Simplewire and Customer.
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6
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2.17
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Concurrency
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Customer
will not bind into the Simplewire Network more than twice, or as otherwise
defined in the Simplewire Access and Messaging Signup Form, or as otherwise
negotiated between Simplewire and Customer.
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2.18
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Forecasts
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Customer
shall provide to Simplewire upon execution of this Agreement, an estimate
("Forecast") of its Message traffic. This Forecast will be for at least three
(3) months, and thereafter a three (3) month Forecast shall be provided at
the
start of each calendar quarter (January 1st, April 1st, July 1st, October 1st.)
These Forecasts shall include estimated number of total SMS Messages with a
summary of expected Mobile Originated and Mobile Terminated Messages.
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3
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SIMPLEWIRE
OBLIGATIONS
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3.1
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Grant
of Access
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Services
subject to the terms in this Agreement, Simplewire agrees to (i) provide to
Customer the Services requested and used by Customer related to the transmission
of Transaction information to Carriers with whom Simplewire has established
a
relationship, and (ii) provide Customer with access to standardized reports
regarding Customer’s Transactions processed using the Services. Simplewire
hereby grants to Customer the right to access and use the Services in accordance
with the Agreement.
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3.2
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Method
of Access
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Simplewire
shall provide to Customer the following methods of access to the Simplewire
Network; via Software Development Kits (SDK), via the HTTP Protocol using a
web
service request/response method, and/or via the Short Message Peer to Peer
(SMPP) protocol. The use of specific protocols is subject to the Access Platform
agreed upon in the Simplewire Access and Messaging Signup Form, or otherwise
as
negotiated between Simplewire and Customer. Simplewire may make other Methods
of
Access available in the future and such methods may be made available to
Customer with or without addendums to this Agreement at Simplewire’s
discretion.
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3.3
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Delivery
of Mobile Originated Messages
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Simplewire
shall provide to Customer the following methods of delivery of Mobile Originated
Messages; via the HTTP Protocol as a POST method using XML and via the SMPP
protocol. The use of specific protocols is subject to the Access Platform agreed
upon in the Simplewire Access and Messaging Signup Form, or otherwise as
negotiated between Simplewire and Customer. Simplewire will make all efforts
to
guarantee the delivery of mobile originated messages and as such will retry
HTTP
Posts for up to 24 hours into Customer’s Application until the Simplewire
Network receives an acknowledgement from the Customer’s Application that the
Message has been received. If Customer is utilizing the SMPP protocol,
Simplewire will only deliver a mobile originated message when Customer is bound
into the Simplewire Network. If Customer is bound in over multiple concurrent
SMPP connections, Simplewire will randomly pick a bind to send the MO across
to
the Customer’s Application.
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3.4
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Changes
to Services
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Simplewire
may modify the Services from time to time, in Simplewire's reasonable
discretion, and upon reasonable electronic or written notice to Customer,
provided that such modifications shall not materially diminish the functionality
of the Services. Customer agrees to incorporate these modifications into the
Software, connectivity, or Application.
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3.5
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Secure
Transactions
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Simplewire
has implemented and will maintain reasonable security systems for the
transmission of Customer’s Transactions, namely "firewall" technologies that are
understood in the industry to provide reasonable security for the transmission
of such information over the Internet. Simplewire does not guarantee the
security of the Services or Transaction data. Simplewire will not be responsible
in the event of any infiltration of its security systems, provided that
Page
7
Simplewire
has used commercially reasonable efforts to prevent any such infiltration.
Customer further acknowledges and agrees that Simplewire is not responsible
for
the security of Transaction data or information or any other information stored
on Customer’s servers or any other party’s servers (other than subcontractors of
Simplewire and then only to the extent that Simplewire is liable for its own
actions hereunder).
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3.6
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Privacy
of Data
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Customer
acknowledges and agrees that in the course of providing the Services, Simplewire
will capture certain Transaction and user information (collectively, the
"Data"). Simplewire shall not disclose Data to third parties or use the Data,
except that Simplewire shall have the rights (i) to use the Data as necessary
to
perform the Services and Transactions contemplated in this Agreement (including
distributing the Data to third parties providing services requested by
Customer); (ii) to maintain the Data as long as necessary or as required by
law
and use internally for record keeping, internal reporting, and support purposes;
(iii) to provide the Data as required by law or court order, or to defend
Simplewire’s rights in a legal dispute or as it may be legally compelled by a
third party; and (iv) use the Data in aggregate form, without identifying the
Customer, to promote Simplewire’s ongoing business and do internal analysis of
Simplewire’s business.
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3.7
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Technical
Support for Services
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Simplewire
shall provide Customer with Simplewire’s then-current technical support for the
applicable Services including 24x7x365 support services, and as specified at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/. Specific technical support features are
outlined in the attached Simplewire Access and Messaging Signup
Form.
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3.8
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Service
Availability
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Simplewire
shall provide a Service Level Agreement (SLA) to Customer as outlined in the
Exhibit A: Service Level Agreement.
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3.9
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Delivery
Receipts
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Simplewire
shall provide Customer with Delivery Receipts for all messages on the Simplewire
Network where Delivery Receipts are available. Delivery Receipts will indicate
that a Device successfully acknowledged receipt of the Message. Simplewire
may
charge an additional fee for Delivery Receipts on specific Carrier networks.
Where Delivery Receipts are not available, Simplewire will make available
Transfer Receipts indicating that Messages were successfully delivered to the
Carrier’s SMSC.
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4
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SHORT
CODE PROGRAMS
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4.1
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Provisioning
Timeframe
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Simplewire
requires at least thirty (30) days to provision a Short Code Program for
Customer. Simplewire will make all efforts to expedite provisioning of Short
Code Programs. Customer must make all efforts to expeditiously register Short
Codes with the CSCA to maintain the Provisioning Timeframe. Customer
acknowledges that Simplewire’s Provisioning Timeframe may be delayed if Customer
does not make initial payments to the CSCA in a timely manner and thus causes
delays in the provisioning of a Short Code by the CSCA. Customer also
acknowledges that Simplewire may need to obtain additional Program documentation
from Customer and any delays from Customer may affect the timeframe. The
Provisioning Timeframe is also dependant upon the responsiveness of the Carriers
and Simplewire cannot be held liable for delays from specific Carriers due
to
the Carrier’s unresponsiveness.
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4.2
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CSCA
Registration
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Customer
is required to register all cross-carrier 5-digit Short Codes with the Common
Short Code Authority (CSCA) run by CTIA and Neustar. Simplewire will make all
efforts to assist Customer in the registration of the Short Code and is
authorized under this Agreement to provision the Customer account with the
CSCA
under the Customer’s name, such that the CSCA will ▇▇▇▇ the Customer directly.
Customer will retain a direct billing arrangement with the CSCA, unless
otherwise negotiated between Simplewire and Customer. Customer must maintain
an
Page
8
up-to-date
account with the CSCA for the specific Short Codes that are part of this
Agreement for the length of the Agreement. If Customer allows a Short Code
registration to lapse with the CSCA during the term of this Agreement, Customer
will be in breach of this Agreement.
|
4.3
|
Ownership
of Short Code
|
Customer
will retain ownership of the lease of all Short Codes under this Agreement.
Simplewire maintains no ownership over any Customer Short Codes and Customer
retains the right to transfer Short Codes off of the Simplewire Network upon
termination or amendment of this Agreement.
|
4.4
|
Short
Code Approval; Refund
|
Simplewire
must obtain approval from Carriers to activate a specific Program. Simplewire
must receive all setup fees (as defined in section 7.1)
prior
to commencement of the approval process by Simplewire. In the case of Programs
that are not approved by some or all Carriers, Customer has the option to cancel
such Program(s) within 30 days of the Effective Date of this Agreement. Customer
will receive a refund of the entire setup fee or a portion of the setup fee
depending on whether Simplewire has incurred setup fees from specific Carriers.
Customer acknowledges that Simplewire will determine whether a setup fee has
already been incurred by a Carrier or Carriers. Monthly fees may also be
incurred within the 30-day refund timeframe and all or a prorated portion of
such fees may be charged by Simplewire if Customer chooses to cancel a
Program.
|
4.5
|
Monthly
Fee Commencement
|
Due
to
the nature of the Short Code approval process, Simplewire will begin charging
the Short Code portion of the monthly fee (as defined in the Short Code Signup
Form) upon the first activation of a Short Code on any Carrier
network.
|
4.6
|
Program
Review for Launch
|
Customer
acknowledges that Simplewire must review all Programs prior to a production
launch. Simplewire will not activate any Premium Fee Events (as defined in
section 5.1)
until
Simplewire has fully reviewed and approved a Customer Program. Simplewire is
obligated by all Carriers to perform such program reviews. Simplewire will
ensure that all Customer Programs adhere to the Program Form as provided by
the
Customer. If Programs differ from the Program Form, Simplewire will require
Customer to update the Program Form to reflect such differences. Customer
acknowledges that Simplewire may need additional approval from Carriers to
reflect such modifications.
|
4.7
|
Approvals
Subject to Change
|
Customer
acknowledges that Program approvals by Carriers are subject to change.
Simplewire cannot control approval changes by Carriers. If an approval of a
specific Program changes or is removed, Simplewire will notify customer in
writing and Customer will be obligated to institute such changes into their
Program, including if necessary the deactivation of a Program.
|
4.8
|
Program
Modifications
|
Customer
may modify Programs at any time including adding services, removing services,
or
modifying existing services. Program modifications must continue to adhere
to
all Program Policies and Content guidelines (as defined in section 2.9).
Simplewire may charge additional fees for Program modifications.
|
5
|
PREMIUM
SMS
|
|
5.1
|
Premium
Fee Event
|
Simplewire
will trigger a Premium Fee charge on an MO or MT message “Premium Fee Event”.
Customer must choose either method as defined in the Short Code Signup Form.
If
the MT method is selected, Customer must instruct Simplewire’s Network to
trigger the Premium Fee Event. If the MO Method is selected, Customer must
provide keywords for Simplewire to trigger the Premium Fee Event. If keywords
are spelled incorrectly, the Premium fee shall not be triggered. It is the
Customer’s responsibility to ensure keywords are correctly spelled.
Page
9
|
5.2
|
Multiple
Price Tiers
|
Simplewire
supports multiple price tiers on a single short code. Customer acknowledges
that
Multiple Price Tiers may not be available on all Carriers and that additional
fees may apply for the provisioning and continuation of Multiple Price Tiers.
Multiple Price Tiers may require the activation of Carrier-specific short codes
and Simplewire may modify Premium SMS messages with such Carrier-specific short
codes to implement Multiple Pricing Tiers. Carrier-specific short codes may
be
shared across Simplewire Customers as Simplewire may determine from
time-to-time.
|
5.3
|
Price
Tier Modifications
|
Customer
has the right to change pricing tiers for Premium SMS programs at any time
on a
month-to-month basis. An updated Program Form must be submitted to Simplewire
prior to any pricing tier modifications and is subject to approval by Carriers.
Additional fees may apply for such modifications.
|
5.4
|
Charge
Backs
|
Customer
acknowledges that charge backs may occur on Premium SMS messages and such charge
backs will be removed from the Premium Payout (as defined in section
8).
Charge
backs may occur if a User successfully contests with the User’s Carrier that the
service was not received by the User for the Premium fee such as delivery of
a
ringtone. Charge backs may also occur if User does not have sufficient funds
available in a pre-paid wireless plan. Charge backs may occur up to 120 days
or
more after the Premium transaction has been completed. The Customer cannot
dispute charge backs. Simplewire and the Carriers will make all attempts to
avoid any charge back activity, including escalating the User to the Customer’s
Support Services for resolution of issues prior to a charge back occurring.
Simplewire will automatically remove charge backs from the Customer’s
Payout.
|
5.5
|
Refunds
to Users
|
In
most
cases, the ability to refund a User is not available. Customer may choose to
manually notify Simplewire of a specific refund or set of refunds on a monthly
basis and Simplewire will propagate such refund notices to the relevant Carrier.
Carrier may not have a method in place of performing such
refund(s).
|
5.6
|
User
Premium Limits
|
A
User
may be limited by the Carrier for the total aggregate Premium charges in a
single calendar month. This total is calculated by adding all Premium charges
used across any premium program available by a Carrier (not just Simplewire
programs). Customer acknowledges that in most cases Simplewire is unable to
block Premium SMS Messages to Users who have exceeded their premium limit.
Customer agrees that Premium SMS payout, in this case, will not be
available.
|
5.7
|
Concatenated
Messages
|
Customer
may not send any concatenated messages in connection with a Premium SMS Short
Code except as follows: Customer may send concatenated messages as Standard
Rate
Messages; provided that each Message in the series shall be considered a
separate Standard Rate Message for which Customer shall pay a separate Message
fee.
|
6
|
PREVIEW
MESSAGING SYSTEM
|
|
6.1
|
Usage
Policies
|
Customer
agrees that any data retrieved from the Preview Messaging System may be used
for
pricing, marketing information, reporting, Content formatting, or routing of
Messages, provided that: (a) Messages have or will be eventually transmitted
through the Simplewire Network; (b) Messages are not eventually transmitted
through a non-Simplewire route including email gateways; or (c) Messages will
never be transmitted in the future. Customer is not allowed to resell data
retrieved from Preview Messaging System to third party. Customer agrees data
is
for internal business-use only. Simplewire may immediately suspend or terminate
use of the
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10
Preview
Messaging System and/or this Agreement, without notice, if Customer breaches
this usage policy.
|
6.2
|
Lookup
Fees
|
Customer
will not be charged an additional fee for “Automatic” Preview Lookups performed
by the Simplewire Message Server, which is a Preview Lookup required to properly
route an MT SMS. The fee for Automatic Preview Lookups is included in the
standard MT/MO rate structure. Customer will be charged an additional fee for
each “Offline” Preview Lookup, which is a Preview Lookup query initiated by the
customer for a specific wireless telephone number. Offline Preview Lookup fees
are outlined in the Simplewire U.S. Short Code Messaging Signup
Form.
|
6.3
|
Accuracy
of Data
|
Simplewire
makes no warranty of any kind, express, or implied or statutory, regarding
the
accuracy of data returned from the Preview Messaging System. Simplewire shall
use commercially reasonable efforts to maintain accurate data and shall use
reasonable efforts to correct or replace inaccurate data.
|
7
|
FEES
AND PAYMENT TERMS
|
|
7.1
|
Payment
Terms
|
Customer
agrees to pay Simplewire all initial setup and deposit fees within five (5)
business days following the execution of this Agreement. Simplewire will invoice
Customer on the first (1st)
day of
every calendar month. Unless expressly otherwise agreed, all payments must
be
received by Simplewire thirty (30) days from the invoice date. Customer agrees
that any delay on the part of Simplewire in sending out any invoices will not
relieve Customer of the obligation to pay the amounts reflected in such invoices
by their specified due date. Each monthly invoice will reflect the fees payable
for the preceding calendar month and the prepayment fees payable for the current
calendar month. Fees owed are outlined in the Simplewire Access and Messaging
Signup Form, Short Code Signup Form, or any other relevant Simplewire signup
forms. Any amounts not paid by Customer when due under this Agreement will
be
subject to a finance charge equal to one and one half percent (1.5%) per month
or the highest rate allowable by law, whichever is less, determined and
compounded monthly from the date due until the date paid. Failure to pay
invoices by their due date may result in suspension or termination of this
Agreement as outlined in Section 14.
|
7.2
|
Proration
|
If
the
Effective Date of this Agreement does not fall on the first calendar day of
the
month, Simplewire will invoice Customer for a pro-rata portion of the recurring
monthly fees owed by Customer for the first partial calendar month, in addition
to any other fees that are owed for such months.
|
7.3
|
Deposits
|
Simplewire
may require Customer to deposit a prepayment for specific Services the Customer
subscribes to. Simplewire will maintain a running total of previously unpaid
invoices and accrued fees for the current calendar month. Simplewire will notify
Customer if the running total of fees accounts for at least eighty (80%) percent
of the total deposit and if Customer risks an impending suspension of Services.
If the running total of unpaid fees meets or exceeds one hundred
(100%) percent of the deposit, Simplewire reserves the right to temporarily
suspend Customer’s Services. Upon termination of this Agreement, Simplewire will
reduce the remaining invoice amounts owed by the deposit amount. If the deposit
amount is greater than the remaining invoice amounts, Customer is entitled
to a
refund of the remainder deposit within thirty (30) days, provided that: (a)
if
Customer subscribes to Premium SMS Services, Simplewire reserves the right
to
withhold the deposit refund for up to one-hundred and twenty (120) days to
cover
potential charge backs from the Carriers. Customer has the right to increase
the
amount of the deposit at any time. Customer has the right to decrease the amount
of the deposit upon approval by Simplewire.
Page
11
|
7.4
|
Payment
Methods
|
Simplewire
will accept several different methods of payment including check, money order,
electronic funds transfer, wire transfer, or credit card. Simplewire reserves
the right to change its payment methods at any time and will use its best
efforts to notify Customer prior to the effective date of the change. Simplewire
reserves the right to require payment by a specific method depending on which
Services the Customer subscribes to. Credit cards will only be accepted for
Customer’s subscribing to the Basic Access Platform. Credit cards cannot be used
as a payment method for deposits.
|
7.5
|
Disputes
|
If
there
is any dispute associated with billing, Customer shall make payment in
accordance with the billing invoice as submitted to Customer. Customer shall
have the right to dispute any amount so invoiced and paid and must notify
Simplewire in writing of its dispute within sixty (60) calendar days of the
receipt of such invoice or the dispute shall be waived. A notification of
disputed charges plus any Customer documentation supporting Customer's claim
shall be sent to Simplewire in electronic form or at the postal address as
set
forth in this Agreement.
|
7.6
|
Prices
Subject to Change
|
Simplewire
reserves the right to change the prices for Services provided by Simplewire
hereunder as necessary to account for considerations of Simplewire expenses,
Carrier price changes, competition, and market conditions. Simplewire will
use
its best efforts to notify Customer at least thirty (30) days prior to the
effective date of the price change.
|
7.7
|
Concatenated
Messages
|
Customer
may send concatenated messages; each Message in the series shall be considered
a
separate Standard Rate Message and charged accordingly.
|
7.8
|
Taxes
|
Sales,
use, gross receipts or other taxes or surcharges (excluding taxes on Simplewire
income) determined by Simplewire to be due to Federal, state or local taxing
jurisdictions on the Services provided under this Agreement, and which are
not
already reflected in the fees for services, shall be separately itemized on
the
bills rendered to Customer and paid by Customer. Should any Federal, state
or
local jurisdiction determine that additional sales, use, gross receipts or
other
taxes or surcharges (and interest, penalty and/or surcharges thereon) are due
on
the provision of the services provided under this Agreement, Simplewire shall
so
advise Customer and Customer shall be liable for any such tax, interest, penalty
and surcharge. However, if the Customer disagrees with the assessment of any
such additional tax, penalty, surcharge and interest, the Customer shall, at
its
option and expense (including payment of any such assessment prior to final
resolution of the issue), have the right to protest the assessment and
participate in any legal challenge to such assessment, but shall be liable
for
any tax, penalty, surcharge and interest ultimately determined to be due.
Simplewire shall, when requested by Customer and at Customer's expense,
cooperate with Customer in any such protest or legal challenge.
|
8
|
PAYOUT
TERMS FOR PREMIUM SMS
|
|
8.1
|
Payout
Terms
|
The
Total
Payout to a Customer for a Premium SMS program is calculated by multiplying
the
number of successful Premium SMS transactions sent by Customer times the
payout
amount per Premium SMS message as defined in the Simplewire Short Code
Signup
Form. The Net Payout to the Customer will be calculated by taking the Total
Payout minus any monthly, setup, deposit, or other fees due to Simplewire
for
the current payment period.
|
8.2
|
Payout
Period
|
Payout
Periods are a calendar month. Net Payouts from Simplewire to Customer occur
on
the first (1st)
day of
every month. Payouts for a Payout Period will occur sixty (60) days after the
close of the period. Customer acknowledges that some or all of the Net Payout
may be delayed beyond the sixty (60) day period if a Carrier has delayed their
payment to Simplewire.
Sales Rep:
RAS
Page
12
|
8.3
|
Minimum
Payout
|
If
the
Net Payout is less than $200.00 USD in a single Payout Period, the payout will
be carried over to the following month’s payout. A Payout will only occur once
the Net Payout is greater than $200.00 USD.
|
8.4
|
Single
Payment
|
Where
Customer is acting as a Content aggregator there shall be a single payment
of
Premium SMS payout and it shall remain the responsibility of the Customer to
ensure that any such payment is divided between third party Content
providers.
|
8.5
|
Method
of Payout
|
Customer
agrees to choose the payout method as outlined in the Short Code Messaging
Signup Form. Payouts can be sent as a check via postal mail or as an electronic
funds transfer (“EFT”). A separate bank approval form must be signed to complete
EFT validation.
Simplewire will send payout using method chosen in the Short Code Messaging
Signup Form.
|
8.6
|
User
Non-Payment
|
Customer
hereby acknowledges and agrees that Premium SMS Message revenue is not payable
where a Carrier was unable to collect charges from the User.
|
9
|
CONFIDENTIALITY;
FEEDBACK
|
|
9.1
|
Confidentiality
|
Each
party (the "Receiving Party") undertakes to retain in confidence the terms
of
this Agreement and all other non-public information, technology, materials
and
know-how of the other party disclosed or acquired by the Receiving Party
pursuant to or in connection with this Agreement which is either designated
as
proprietary and/or confidential or, by the nature of the circumstances
surrounding disclosure, ought in good faith to be treated as proprietary and/or
confidential ("Confidential Information"); provided that each party may disclose
the terms and conditions of this Agreement to its immediate legal and financial
consultants in the ordinary course of its business. Neither party shall use
any
Confidential Information with respect to which it is the Receiving Party for
any
purpose other than to carry out the activities contemplated by this Agreement.
Each party agrees to use commercially reasonable efforts to protect Confidential
Information of the other party, and in any event, to take precautions at least
as great as those taken to protect its own confidential information of a similar
nature. Each party shall also notify the other promptly in writing in the event
such party learns of any unauthorized use or disclosure of any Confidential
Information that it has received from the other party, and will cooperate in
good faith to remedy such occurrence to the extent reasonably possible. The
restrictions set forth in this paragraph shall not apply to any information
that: (i) was known by the Receiving Party without obligation of confidentiality
prior to disclosure thereof by the other party; (ii) was in or entered the
public domain through no fault of the Receiving Party; (iii) is disclosed to
the
Receiving Party by a third party legally entitled to make such disclosure
without violation of any obligation of confidentiality; (iv) is required
to be disclosed by applicable laws or regulations (but in such event, only
to
the extent required to be disclosed); or (v) is independently developed by
the
Receiving Party without reference to any Confidential Information of the other
party. Upon request of the other party, each party shall return to the other
all
materials, in any medium, which contain or reveal all or any part of any
Confidential Information of the other party. Each party acknowledges that breach
of this by such party would result in irreparable harm to the other party,
for
which money damages would be an insufficient remedy, and therefore that the
other party shall be entitled to seek injunctive relief to enforce the
provisions of this Section 9.1.
|
9.2
|
Feedback
|
Company
agrees that if it provides Simplewire any suggestions, comments, or other
feedback about Confidential Information of Simplewire (“Feedback”) such Feedback
is given voluntarily. Company also agrees that even if Company designates such
Feedback as confidential, unless the parties enter into a separate subsequent
written Agreement, the Feedback shall not be confidential and Simplewire shall
be free to use, disclose, reproduce, license, or otherwise
Page
13
distribute
the Feedback in its sole discretion without any obligations or restrictions
of
any kind, including without limitation, intellectual property rights. Company
agrees not to provide Simplewire with any Feedback that is subject to license
terms that seek to require any Simplewire product, technology, service or
documentation incorporating or derived from such Feedback, or any Simplewire
intellectual property, to be licensed or otherwise shared with any third
party.
|
10
|
PUBLICITY
|
|
10.1
|
Publicity
|
Both
Customer and Simplewire shall have the right to mention the existence of this
Agreement, the identity of either party, Services, or Customer Services, after
the Effective Date and while the Agreement remains in force, in their marketing
materials, public announcements, or as a reference for future customers. This
right is given on the condition(s) that: (a) any such marketing materials
accurately reflect the nature of the business relationship created by this
Agreement; or (b) any such marketing materials do not disclose Confidential
Information pursuant to the terms in Section 9.1.
|
11
|
WARRANTY;
DISCLAIMER
|
|
11.1
|
Warranty;
Disclaimer
|
Simplewire
represents and warrants that the Services shall conform, in all material
respects, to the applicable documentation provided by Simplewire to Customer.
Customer’s sole remedy for Simplewire’s breach of this warranty shall be
Simplewire’s reasonable efforts to repair or replace the Services. EXCEPT AS
EXPRESSLY SET FORTH ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW,
SIMPLEWIRE MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
REGARDING THE SERVICES, TRANSACTIONS AND/OR SOFTWARE, AND ALL SUCH WARRANTIES,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED
BY
SIMPLEWIRE. CUSTOMER ACKNOWLEDGES THAT SIMPLEWIRE HAS NOT REPRESENTED OR
WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY
OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES. NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND ARE MADE BY SIMPLEWIRE WITH REGARDS
TO
ANY SERVICES PROVIDED BY ANY WIRELESS CARRIER.
|
12
|
INDEMNIFICATION
|
|
12.1
|
Indemnification
|
Customer
will indemnify, defend and hold harmless Simplewire, its past, present, and
future officers, directors, agents and employees, from and against any and
all
claims, losses, demands, liabilities, damages, costs and expenses (including
reasonable attorneys’ fees), either arising
out of or relating to (i) the breach of this Agreement by Customer, (ii) the
sale or use of any product or Services sold by Customer or (iii) claims brought
or damages suffered by any Carrier, Simplewire, Simplewire’s customers, or
prospective customers of Customer relating to Customer’s or its agents’ misuse
and/or abuse of the Services, except to the extent solely caused by Simplewire.
Simplewire will indemnify, defend and hold harmless Customer, its past, present,
and future officers, directors, agents and employees, from and against any
damages (including reasonable attorney’s fees) arising out of (a) Simplewire’s
breach of this Agreement, or (b) a third party claim that the Software or
Services infringe a United States patent, copyright or trade secret right of
a
third party. Customer’s sole remedies for a claim of infringement or
misappropriation of any intellectual property shall be Simplewire’s replacement
of the offending Software or Services, Simplewire’s obtaining a license for
Customer’s continued use of the Software or Services, or Simplewire’s
termination of the affected licenses granted hereunder. The indemnification
obligations set forth in this Section are contingent upon (a) the indemnified
party giving prompt written notice to the indemnifying party of a claim for
which the indemnified party is seeking indemnification, (b) the indemnified
party allowing the indemnifying party to control the defense and related
settlement negotiations for any such
Page
14
claim,
and (c) the indemnified party fully assisting and cooperating in the defense
so
long as the indemnifying party pays the indemnified party’s out-of-pocket
expenses. The indemnifying party shall not settle a claim without the written
consent of the indemnified party, such consent not to be unreasonably
withheld.
|
13
|
LIMITATIONS
ON LIABILITY
|
|
13.1
|
Limitations
on Liability
|
Customer
acknowledges that Simplewire is not a Carrier nor does it maintain any wireless
infrastructure. The Services and any other services provided by any Carrier,
which are provided by means of the Internet, are provided “as is”, “where is”
and “when available”. Simplewire is responsible only for providing data
transmission to effect certain routing of Wireless Text Message requests from
Customer to the Carrier and is not responsible for the Carrier’s actions and/or
ability to effectuate Customer’s requests. Simplewire is therefore not
responsible for the availability of any Carrier, or the availability and/or
performance of the Internet. Simplewire is also not responsible for any damages
or costs Customer suffers or incurs as a result of any instructions given,
actions taken or omissions made by Customer. IN NO EVENT WILL SIMPLEWIRE’S
LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO SIMPLEWIRE
BY
CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT
WHICH
GAVE RISE TO OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
OR
SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION
OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SIMPLEWIRE
HAS
ADVISED CUSTOMER OR ANY THIRD PARTY OF THE POSSIBILITY OF SUCH DAMAGE. THESE
LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF
ANY
LIMITED REMEDY. Notwithstanding the above, the limitations set forth above
shall
be enforceable to the maximum extent allowed by applicable law.
|
14
|
TERM
AND TERMINATION
|
|
14.1
|
Term
|
This
Agreement will commence on the Effective Date and will continue for a period
of
one (1) year, unless terminated earlier or suspended according to the provisions
of this Agreement. The Agreement will thereafter automatically renew for
successive twelve (12) month terms, unless either party gives the other party
written notice of its intention not to renew the Agreement at least thirty
(30)
days prior to the end of the then-current term or renewal term.
|
14.2
|
Termination
and Suspension
|
Customer
may terminate this Agreement upon no less than thirty (30) days prior written
notice to Simplewire. Either party may terminate this Agreement upon any
material breach of the terms of this Agreement by such other party, provided
that such other party has not cured such material
breach within such fifteen (15) day notice period. Simplewire reserves the
right
to immediately suspend this Agreement if Customer breaches program policies,
transmits “spam” transmits improper Content or exceeds throttle rates, as
outlined in Section 2.
|
14.3
|
Non-Payment
|
Notwithstanding
any other provisions of this Agreement, Simplewire shall have the right to
terminate Customer's service and this Agreement without further notice if an
invoice for services provided hereunder by Simplewire is not paid in full within
thirty (30) days after the date of such invoice, and such invoice remains unpaid
for ten (10) days after Customer’s receipt of written notice of such non-payment
from Simplewire.
|
14.4
|
Insolvency
|
Either
party may immediately terminate the Agreement if the other party (a) becomes
or
is declared insolvent or bankrupt; (b) is the subject of any proceeding related
to its liquidation or insolvency (whether voluntarily or involuntarily) which
is
not dismissed within ninety (90) Days; (c) makes an assignment for the benefit
of creditors; (d) experiences a material adverse change in financial condition
which may reasonably be expected to affect its ability to perform; or (e)
Page
15
fails
to
comply with a written request for reasonable assurances within ten (10) business
days or otherwise repudiates any Agreement.
|
14.5
|
Effect
of Termination; Retaining Payouts
|
Upon
the
expiration or termination of this Agreement for any reason, Customer’s rights to
use the Services, and any other rights granted hereunder shall immediately
cease; and each party will be released from all obligations and liabilities
to
the other occurring or arising after the date of such termination, except that
any termination of this Agreement will not relieve Simplewire or Customer from
any liability arising prior to the termination of this Agreement.
Notwithstanding the foregoing, the provisions of Sections 3.6,
9-14,
warranty disclaimers, and Customer’s obligations to pay accrued fees through the
effective date of termination will survive any termination of this
Agreement.
|
15
|
NO
EXCLUSIVITY/COMPETITION
|
|
15.1
|
No
Exclusivity
|
Each
party acknowledges and agrees that the rights granted to and obligations due
to
the other party in this Agreement are non-exclusive, and that, without limiting
the generality of the foregoing, nothing in this Agreement shall be deemed
or
construed to restrict either party’s ability to develop, manufacture, license,
sub-license, distribute, deploy, support, or promote any technology or service
whether or not similar to or competitive with either parties’
Services.
|
16
|
MISCELLANEOUS
TERMS
|
|
16.1
|
Force
Majeure (Events Beyond the Parties’
Control)
|
Neither
party will be liable for
any failure or delay in performing any obligation under this Agreement that
is
due to causes beyond
its
reasonable
control.
|
16.2
|
Entire
Agreement and Modification
|
The
terms in
this Agreement constitute the entire Agreement between Simplewire and Customer
regarding its subject matter and its terms supersede any prior or simultaneous
Agreement or terms, whether written or oral. Except as otherwise provided for
herein, any waiver, modification, or amendment of any provision of this
Agreement will be effective only if in writing, signed, and acknowledged by
the
parties herein.
|
16.3
|
Severability
|
In the event that any provision of this Agreement is unenforceable or invalid
such unenforceability or invalidity will not render this Agreement unenforceable
or invalid as a whole, and in such event, such provision will be changed and
interpreted so as to best accomplish the objectives
of such unenforceable or invalid provision within the limits of applicable
law
or applicable court decisions.
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16.4
|
Assignability
|
Customer may not assign this Agreement without the prior written consent of
Simplewire. This Agreement is assignable by Simplewire.
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16.5
|
Non-Solicitation
|
Both Parties agree that, during the term of this Agreement and for two (2)
years
after its termination, they will not directly or indirectly employ or offer
employment to any person who was employed by the other Party unless such person
shall have ceased to be employed by the respective Party for at least six (6)
months.
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16.6
|
Governing
Law and Jurisdiction
|
This Agreement will be governed by and construed in accordance with the laws
of
the State of Michigan, U.S.A. without reference to its conflicts of laws
principles. Each party consents to the exclusive venue and jurisdiction of
the
appropriate court (United States District Court for the Eastern District of
Michigan or the State of Michigan Courts) for any dispute under this
Agreement.
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16
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16.7
|
Export
Restrictions
|
Customer acknowledges and agrees that it shall not import, export, or re-export
directly or indirectly, any commodity, including Customer's products
incorporating or using any Simplewire products in violation of the laws and
regulations of any applicable jurisdiction.
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16.8
|
Notice
|
Except as otherwise provided for in the Agreement, any notice, demand, or
request with respect to this Agreement shall be in writing and shall be
effective on the date received only if it is sent by a courier service that
confirms delivery in writing, or if sent by certified or registered mail,
postage prepaid, return receipt requested, addressed, if to Simplewire, Inc.,
then to “Attention President” at the Simplewire, Inc. headquarters and if to
Customer, then to the address provided on the Simplewire Website.
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Exhibit
A: Service Level Agreement
Simplewire
is committed to providing superior network performance and the highest quality
of care for our customers under this Commercial Service Agreement. Our goal
is
to provide a Service Level Agreement that exceeds industry standards.
Simplewire
Network Uptime
Simplewire’s
SLA guarantees that the Simplewire Network will be available for transmission
and reception of SMS messages, delivery receipts, and other meta-data around
such messages, 100% of the time in a given month, excluding scheduled
maintenance.
If
a
customer experiences downtime, Simplewire will refund such customer ten (10%)
percent of the monthly Access Platform fee for each thirty (30) minute interval
of downtime, up to one-hundred (100%) percent of the Customer’s monthly Access
Platform fee as defined in the Simplewire Access and Messaging Signup Form.
Simplewire
Network uptime consists of correctly delivering messages to the appropriate
carrier as listed in the Network Coverage List (available at
▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇), or as defined in the Short Code Program Form,
or
as otherwise negotiated between Simplewire and Customer, and the correct
functioning of all Simplewire Network infrastructure including redundant
Internet connectivity, electrical power, routers, switches, hubs, cabling,
HVAC,
UPSs, server hardware, and Short Messaging Service Center (SMSC)
software.
Simplewire
Network uptime does not consist of the correct functioning of the SMS worldwide
infrastructure beyond Simplewire’s control. Simplewire has no ability to control
the correct functioning of the Carrier’s infrastructure or the User’s mobile
Device. Uptime does not consist of routing situations, where a delivery path
that has functioned correctly for the last 30 days, has been disrupted such
that
messages cannot be delivered. Uptime does not consist of situations where
transmission or reception of data to or from the Simplewire Network is due
to a
failure of the Customer’s infrastructure including network connectivity,
hardware, or software.
Simplewire
Network downtime exists when a particular customer is unable to transmit or
receive data and Simplewire records such failure in the Simplewire trouble
ticket system. Network downtime is measured from the time the trouble ticket
is
opened by a customer to the time the Simplewire Network is once again able
to
transmit and receive data.
Refunds
There
is
a limit on refunds received. The limitation is one hundred (100%) percent of
the
monthly Access Platform fee in a given month.
Customers
requesting a refund should submit an online support ticket at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇/
A
request
for a refund must be submitted within seven (7) business days of a service
interruption.
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