FULCRUM MOBILE, L.L.C.
END-USER AGREEMENT
1. Appointment and Authority. Company and End-User agree that:
a. End-User shall purchase the Products from Company and shall use the Products to transmit to Subscribers various marketing and promotional information related to End-User’s products and services (“End-User Content”) according to the terms and conditions proscribed in this Agreement. End-User Content shall not, in any event, promote, advertise, or encourage Subscribers to participate in a “sweepstakes,” “contest,” and/or “lottery,” as such terms are defined in the Guidelines. It is further expressly understood and agreed that End-User Content shall not, at any time, encourage, require, enable, urge, or impose conditions on Subscribers to reply or respond to any SMS or MMS message received by Subscriber from End-User. Notwithstanding the requirement of the preceding sentence, every SMS or MMS message sent to Subscribers shall specify the method and manner in which a Subscriber may Opt-out of participating in End-User’s Mobile Campaigns.
b. Company shall advise and assist End-User to develop and enhance its Mobile Campaigns by furnishing End-User with a unique username and password combination which grants End-User access to a media platform (“Software”), through the use of http://www.fulcrummobile.com and or http://www.canyoutextmenow.com (“Website”), and allows End-User to autonomously create and manage two-way standard and premium rate SMS and MMS message campaigns for dissemination of End-User Content (“Mobile Campaigns”) (the services to be provided by Company pursuant to this Section shall hereinafter be referred to as the “Services”).
2. Term and Scope. The provisions of this Agreement shall govern all transactions and the entire relationship between Company and End-User and shall last for as long as Company and End-User engage in the activities contemplated in this Agreement.
3. End-User Responsibilities. End-User agrees that, while transmitting End-User Content using the Website, the Software or any database or software, and while acting in any manner contemplated under this Agreement, it will:
a. Comply, at all times, with all relevant state, federal, local, and international laws, rules, regulations, Company directions, provisions of this Agreement, any published advertising and data usage guidelines and/or regulations, including but not limited to the Mobile Marketing Association Consumer Best Practices Guidelines (“Guidelines”), and individual wireless carrier guidelines. End-User agrees not to transmit End-User Content that would violate any federal state or local law, court order, regulation, the Guidelines, or any wireless carrier guidelines. If End-User believes its use of any End-User Content is not in compliance with any federal, state, or regulatory agency guidelines or rules, the Guidelines, or individual wireless carrier guidelines, the End-User agrees to contact the Company and cease activities immediately until such time that a determination can be made by the Company, or a court of competent jurisdiction, as to the legality of the activities in question.
b. Be solely responsible for the development, operation and maintenance of the End-User Content. End-User also is responsible for ensuring that the End-User Content complies with the restrictions or limitations in this Agreement and does not disparage, defame, or discredit Company or its respective names and is not derogatory or detrimental to the good name or business reputation of Company. Company or its designated agent may review all End-User Content prior to its delivery to Subscribers. Company may reject any End-User Content in its sole discretion. Company’s failure to reject End-User Content shall not constitute an approval or endorsement of the suitability of such content.
c. Only transmit End-User Content to target customers who have affirmatively expressed a desire to receive End-User Content (“Opt-in Consent” or “Opt-in”) in a manner consistent with the Guidelines (“Subscribers”). Failure to request and gain Opt-in Consent of any Subscriber shall be a breach of this Agreement and shall result in forfeiture of any and all of End-User’s rights under this Agreement.
d. End-User may not transmit any unsolicited End-User Content.
e. Allow Subscribers to stop receiving End-User Content and participating in End-User’s Mobile Campaigns at Subscriber’s choosing (“Opt-out”). Each SMS or MMS message transmitted to Subscribers shall contain directions for Subscriber to request an Opt-out. The method and manner of requesting an Opt-out shall, in every manner, comply with the requirements of the Guidelines. Failure to include “Opt-out” directions on outgoing SMS or MMS messages shall result End-User’s access to the Software and Website being withdrawn without refund.
f. Obtain Subscribers’ written consent prior to uploading Subscribers’ information and data into the Software or any other database.
g. Not sell, disclose, transfer, or rent any Subscriber information or Subscriber lists obtained by End-User to any third party nor use any Subscriber information on behalf of any third party, without the permission of the applicable Subscriber specifically approving such use.
h. Not collect information on children under 14, or to hold such information in any of Company’s or End-User’s own database, information storage software, the Software, or any data retention format. In the event that such data is inadvertently collected and stored, End-User agrees to purge and permanently delete such data as soon as practicable but in no case more than twenty four (24) hours after the discovery is made.
i. Not disseminate, disclose, transmit, or distribute End-User’s unique username and password for the use of the Website to any third party, without the expressed written consent of the Company.
j. Promptly notify the Company if it becomes aware of instance of violation of Company content restrictions or any applicable law, rule, regulation, wireless carrier guideline, or the Guidelines.
k. Cooperate with the Company, wireless carriers, and/or governmental authorities in investigations alleging violations of any law, rule, or regulation; and promptly notify Company within twenty four (24) hours of receiving any notice or communication pertaining to any enforcement action, governmental investigation, governmental inquiry, or other communications with any governmental authority relating to the obligations of the parties or the services to be provided under this Agreement.
l. Submit to Company or to any product representative written orders or offers to purchase Products and, simultaneously with such order or offer to purchase, transmit payment for the Products being purchased according to the pricing structure in existence at the time of the order or offer to purchase. The methods and procedures for payments for Products by End-Users shall be governed according to Company’s policies and at Company’s sole discretion. End-User expressly agrees that Company shall not be obligated to deliver the Products or furnish the Services, including granting End-User access or use of the Software or Website, until acceptance of the End-User’s order or offer to purchase and receipt of payment from End-User, and until End-User’s acceptance of the terms of this Agreement and the terms and condition of use of the Website.
m. Comply with the highest ethical standards when performing under this Agreement. End-User agrees that, in such performance, it will not directly or indirectly pay, offer, or authorize payment of anything of value (either in the form of compensation, gift, contribution, or otherwise) to any person or organization contrary to applicable law.
4. Company Responsibilities. Company agrees that, with respect to the Products and Services contemplated in this Agreement, it will:
a. Deliver the Products and furnish the Services to End-User upon receipt and acceptance of an order or offer to purchase and payment from End-User and upon End-User’s acceptance of the terms of this Agreement and the terms and conditions of use of the Website. Acceptance of an order or offer to purchase Products shall be at the Company’s sole discretion and in writing.
b. Retain sole discretion as to determination of the appropriateness of the content of the data or information disseminated through the SMS and MMS messages or any communication with any third parties.
c. Provide End-User with access to and use of the Website, subject to the terms of this Agreement, planned system outages, operational capability, maintenance and repairs, and subject to any obligations of Company with any third parties, including those responsible for the operation and maintenance of the Software. For the End-User’s initial Mobile Campaign, Company will furnish the Services through Company representatives who shall be responsible for, among other things, assisting End-User with the use of the Software. Such representatives shall provide such assistance at no additional cost to End-User.
5. Relationship of Parties and Controlling Laws.
a. This Agreement and any rights hereunder non-assignable. Any assignment by one party without the prior written consent of the other party shall be void. End-User shall notify Company in writing in advance of any proposed change in the ownership, control, or management of End-User.
b. It is understood that End-User and its representatives, subsidiaries, affiliates and employees are in no way the employees, agents or legal representatives of Company for any purpose whatsoever and have no right or authority to assume or create, in writing or otherwise, any obligation of any kind expressed or implied in the name of or on behalf of Company.
c. End-User understands and acknowledges that Company is or may be subject to regulation by agencies of the U.S. government or other state or local entities. Any and all obligations of Company under the terms of this Agreement shall be subject in all respects to such federal, state, and local laws and regulations.
d. End-User agrees to comply with the laws, rules, and regulations applicable to the performance of its obligations under the terms of this Agreement, including those of any federal, state, or local governmental entity, any published advertising and data usage guidelines and/or regulations, the Guidelines, and individual wireless carrier guidelines.
e. End-User understands and acknowledges that the Software and/or any data and information generated pursuant to the performance of the terms of this Agreement, including billing and payment records, may be controlled, collected, and stored by a third party of Company’s choosing. The provisions of the preceding sentence are not intended to grant Company any right or permission to disseminate Subscribers’ data or information in a manner not permitted under the applicable laws, rules, and regulations or the terms of this Agreement.
f. The Company shall not be responsible for interruption of service and shall not incur any liability to End-User for failure of delivery of SMS or MMS messages or interruption of service not caused by Company. End-User understands that Product delivery to Subscribers is not guaranteed and any undelivered Products will not be refunded. However, should there be a service interruption where the End-User is unable to deliver End-User Content to Subscribers through the Software, the Company agrees to waive fees to the End-User on the following basis: (1) 24 consecutive hours of interruption in delivery of End-User Content to Subscribers shall entitle End-User to three (3) days’ credit of service and account fees; (2) 24-48 consecutive hours of interruption in delivery of End-User Content to Subscribers shall entitle End-User to ten (10) days’ credit of service and account fees; (3) 48-72 consecutive hours of interruption in delivery of End-User Content to Subscribers shall entitle End-User to thirty (30) days’ credit of service and account fees.
6. Termination. This Agreement shall be terminated as follows:
a. Either party shall have the right to terminate this Agreement, for any or no reason, without judicial intervention, thirty (30) days after providing notice of the termination to the non-terminating party.
b. Either party shall have the right to terminate this Agreement in the event the other shall be guilty of any breach, non-observance or non-performance of any of its obligations hereunder and has failed to cure such breach within thirty (30) days of receiving written notice from the terminating party.
c. Company shall have the right to terminate this Agreement immediately, upon providing written notice to End-User, if End-User shall at any time: (1) Become subject to the de facto or de jure control of any third party; (2) Fail to obtain Opt-in Consent or provide Opt-out directions with each outgoing SMS or MMS message; (3) End-User shall have participated or caused, in any way, the dissemination or transmission of: (i) material that violates the rights of any person, or of copyrighted material, trade secret, patent, or other intellectual property; (ii) material that is harassing, defamatory, libelous, abusive, threatening, obscene, coercive or objectionable, including material that is false, misleading or inaccurate; (iii) unsolicited material, including without limitation, “junk messages,” “Unsolicited bulk text messages,” unsolicited bulk e-mail,” or other unsolicited advertising materials; or (iv) material or data which introduces malicious programs into wireless carriers’ networks, Company’s databases and/or software, or Subscribers’ devices and equipment. This includes but is not limited to viruses, worms, Trojan horses, e-mail bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data, or personal information, including executing any form of network monitoring that will intercept data not expressly approved for use.
d. Either party shall have the right to terminate this Agreement immediately, upon providing written notice to the other party: (1) In the event that the non-terminating party shall be unable to pay its debts or perform its services under this Agreement, cease to conduct its operations in the ordinary course of business, or enter into liquidation or be declared bankrupt, whether compulsorily or voluntarily, or otherwise become subject to the insolvency laws; (2) If the non-terminating party shall, at any time, have acted in a dishonest or fraudulent manner under this Agreement; or (3) If the non-terminating party shall, at any time, have violated any law, rule or regulation, including the Guidelines, applicable to the performance of its duties and obligations under this Agreement.
e. The termination of this Agreement for any reason shall be without prejudice to the rights and obligations of the parties accrued up to and including the date of such termination. Neither party shall conduct its activities so as to accrue unusual or inappropriate rights or obligations after notice of termination has been given by the other party.
f. The termination of this Agreement by Company shall entitle Company to suspend and/or terminate the Services, without financial reimbursement to End-User.
g. On termination of this Agreement, End-User agrees to return to Company all documents and property of Company, including Confidential Information, information relating to intellectual property rights of Company, any third party in a contractual relationship with Company, and any other property of Company which has been submitted to End-User and is in its possession.
7. Waiver. The failure of either party to enforce at any time or for any period of time the provisions hereof in accordance with its terms shall not be considered to be a waiver of such provisions or of the right of such party thereafter to enforce each and every provision.
8. Execution and Modification. This Agreement, together with all writings incorporated herein by reference, constitutes the entire and only agreement between the parties and wholly cancels, terminates, and supersedes any and all previous negotiations, commitments, and writings between the Company and End-User.
9. Limitation of Liability; Warranties; Indemnification.
a. End-User expressly understands and agrees that Company shall not be liable to End-User for any damages or any harm incurred by End-User as a result of use or misuse of Company’s services and products by another end-user or any other person or entity, including competitors of End-User, using the services or products provided by Company.
b. The Company makes no warranties or guarantees as to the performance of the Software and the entire risk as to satisfactory quality, performance, accuracy, and effort is with End-User. Any changes or modifications made to Software shall expose Company to any liability with respect to End-User or Subscribers.
c. Each party agrees to indemnify the other for costs, expenses, and attorney’s fees incurred as a result of failure by such party to follow the provisions of this Agreement and the applicable laws, rules, and regulations, including the Guidelines, pertaining to conduct of each party under this Agreement.
10. Resolution of Disputes and Remedies.
a. Injunctive Relief. The Services and the rights granted to Company hereunder are of a special, unique, and extraordinary character, which gives them a peculiar value, the loss of which cannot reasonably or adequately be compensated for by damages in an action at law. A breach or threat of breach of this Agreement by either party to this Agreement shall give the non-breaching party the right to obtain a temporary restraining order and a preliminary or permanent injunction enjoining the breaching party from violating this Agreement in order to prevent immediate and irreparable harm to the non-breaching party. Under such circumstances the breaching party shall pay any and all reasonable attorney’s fees and costs incurred by the non-breaching party which are associated with the enforcement of the Agreement, including any appeals. Company and End-User agree that any pursuit of equitable relief under the terms of this Agreement shall have no effect whatsoever regarding the continued viability and enforceability of part “b.” of this Article. Remedies for breach under this Agreement are intended to be cumulative and not exclusive; therefore, the parties may freely elect to pursue any one or combination of several remedies that may be available to them under this Agreement.
b. All Other Remedies. Except for, and without limiting, the right to seek equitable relief in a federal or state court as provided in this Article, the parties agree that any dispute, controversy or claim, whether based on contract, tort, statute, discrimination, retaliation, or otherwise, relating to, arising from or connected in any manner to this Agreement, or to the alleged breach of this Agreement, or arising out of or relating to the engagement hereunder or the termination of such engagement, shall, upon timely written request of either party, be submitted to and resolved by binding arbitration. The arbitration shall be conducted in Tulsa, Oklahoma, or the closest available jurisdictional forum to Tulsa, Oklahoma. The arbitration shall proceed in accordance with the rules of the American Arbitration Association (“AAA”) in effect at the time the claim or dispute arose, unless other rules are agreed upon by the parties. Unless otherwise agreed to by the parties in writing, the arbitration shall be conducted by one arbitrator who is a member of the AAA or any comparable arbitration service, and who is selected pursuant to the methods set out in the rules of the AAA, or other rules as the parties may agree to in writing. Any claims received after the applicable/relevant statute of limitations period has passed shall be deemed null and void. The award of the arbitrator shall be a reasoned award with findings of fact and conclusions of law. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, to enforce an arbitration award, and to vacate an arbitration award. However, in actions seeking to vacate an award, the standard of review to be applied by said court to the arbitrator’s findings of fact and conclusions of law will be the same as that applied by an appellate court reviewing a decision of a trial court sitting without a jury. The parties shall equally share the costs associated with payment of arbitration fees. Otherwise, each party shall bear its own costs and fees in the arbitration proceedings and any appeal thereof. However, unless otherwise provided by law and awarded by the arbitrator, prevailing party shall be entitled to receive all costs, including payment of arbitration fees, and attorney’s fees incurred in the arbitration proceedings and in any appeal thereof.
c. Choice of Law and Venue. This Agreement shall be interpreted according to the substantive laws of the State of Oklahoma, without regard to rules pertaining to conflicts of laws. The parties hereto agree that the United States Courts for the Northern District of Oklahoma and/or the District Courts of Tulsa County, Oklahoma, shall have exclusive jurisdiction and venue over any judicial proceeding initiated by either party relating to parties’ rights and obligations under this Agreement. Parties hereby waive any claims based on the forum non conveniens doctrine.
d. The terms of this Article shall survive the expiration or termination of this Agreement for any reason.
11. Binding Authority. The parties warrant to each other that each has legal capacity to enter into and be bound by the terms of this Agreement.