Textmaxx Pro Terms of Use

Overview

Welcome to Textmaxx Pro! We are a texting service that provides our subscribers with the ability to engage, communicate and interact with their customers via SMS and MMS text. These Terms of Use govern your use of our service. As used in this agreement, “Textmaxx Pro Services” means the service, content and software provided by Textmaxx Pro (“TMP”) for sending and receiving communications to and from mobile devices, websites, user interfaces and mobile applications.

ASubscription

iOngoing Subscription

Your TMP subscription, which may start with a promotional offer, will continue month-to-month unless and until you cancel your membership or we terminate it. You must have internet access and provide us with a current, valid, accepted method of payment which may be updated from time to time (“Payment Method”) to use the Textmaxx Pro Services. We will bill the monthly membership fee to your Payment Method in advance of the following month (“Billing Period”).

iiSubscription Plans

We may offer a number of subscription plans, including special promotional plans or subscriptions with differing conditions and limitations. Any terms which vary from those described in these Terms of Use will be disclosed at sign-up or in other communications made available to you. You can find specific details regarding your subscription with TMP by visiting our website and clicking on the “Login” link. We reserve the right to unilaterally modify, terminate or otherwise amend our subscription plans at any time.

BPromotional Offers

iPromotional Conditions

Your TMP subscription may start with a free trial, free texts, or other incentives. Any free trial period is for one month unless otherwise specified during sign-up. TMP reserves the right, in its sole discretion, to determine eligibility for all promotional offers including, but not limited to, whether these offers may be combined.

iiPromotional Billing

We will begin billing your Payment Method for monthly subscription fees at the end of the free trial period of your membership unless you cancel prior to the end of the trial period. We may authorize your Payment Method for up to one month of Textmaxx Pro Services as soon as you register.

iiiNotification

You will not receive a notice from us that your promotional offer has ended or that the standard terms of your subscription have begun. We will continue to bill your Payment Method on a monthly basis for your subscription and other fees until and unless you cancel according to the terms set forth in this document.

CBilling

iRecurring Billing

By starting your TMP subscription and providing a Payment Method, you authorize us to charge a monthly subscription fee at the then current rate along with any other charges you may incur in connection with your use of the Textmaxx Pro Services. Other charges may include, but are not limited to, setup, training and overage fees. You acknowledge that the amount billed each month may vary and you authorize us to charge your Payment Method for all such amounts.

iiPrice Changes

We reserve the right to adjust pricing for the Textmaxx Pro Services or any ancillary components in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in these Terms of Use, any price changes to your TMP subscription will take effect immediately following email notice to you. For subscribers outside the United States, the subscription fees may be adjusted annually or more frequently as permitted by law in accordance with the inflation index as established by General Price Index Market published by Fundao Getlio Vargas (“IGP-M”) or such other index as may be applicable to the Textmaxx Pro Services.

iiiBilling Cycle

The subscription fee for your Textmaxx Pro Services will be billed immediately upon activation. Your payment will be automatically run monthly until and unless we receive written notice of cancellation 30 days in advance of the Billing Period. Subscription fees are fully earned upon payment. We reserve the right to change the timing of our billing if your Payment Method has not successfully settled. You may visit our website and click on the “View billing details” link on the “Your Account” page to see the commencement date for your next renewal period. We may authorize your Payment Method in anticipation of subscription and other related charges.

ivNo Refunds

PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO CREDITS FOR PARTIALLY USED TEXTING ALLOWANCES. Following any cancellation, you will continue to have access to the Textmaxx Pro Services through the end of your current billing period. At any time and for any reason we may provide a refund, discount, or other consideration to some or all of our subscribers (“Credits”). The amount and form of such Credits, and the decision whether or not to provide them, are at our sole discretion. The provision of Credits in one instance does not entitle you to Credits in the future under similar circumstances, nor does it obligate us to provide subsequent Credits to you.

vPayment Methods

If a payment is not successfully settled due to expiration, insufficient funds, or for any other reason, and you do not edit your Payment Method information or cancel your account, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method. This may result in a change to your payment billing dates. In addition, your TMP account may be deactivated until you provide an updated Payment Method and your account is brought current. For certain Payment Methods, the card issuer may assess a foreign transaction fee or other charges for which you are solely responsible.

viCancellation

YOU MUST PROVIDE US WITH 30 DAYS WRITTEN NOTICE PRIOR TO THE PAYMENT PERIOD IN ORDER TO AVOID BILLING FOR THE NEXT MONTH’S SUBSCRIPTION FEES. If you cancel your subscription, your account will automatically close at the end of your current billing period. If you signed up for Textmaxx Pro Services using your account with a third party as a Payment Method and wish to cancel your TMP subscription, you may need to do so through such third party utilizing their website methodology. This may include turning off auto-renew or unsubscribing from TMP through that third party.

DServices

iProviding Entity

Textmaxx Pro Services are provided by CLAC Holding, LLC or one of its affiliated entities.

iiDescription

TMP shall enable the subscriber to generate SMS and MMS messaging for the purpose of communicating with its customers. “SMS” means a short message service in the form of a text message using standardized protocols sent to a mobile phone device. “MMS” means multimedia messaging service in the form of picture messages using standardized protocols sent to a mobile phone device.

iiiFees

Subscriber will be responsible for paying all fees as incurred. The fees for the Textmaxx Pro Services as defined in this agreement may be amended from time to time as unilaterally determined by TMP in its sole discretion. In addition, subscriber shall owe TMP an Administration Fee equal to the number of hours expended by TMP to investigate, assist and respond to any subscriber or governmental agencies’ inquiries regarding the provisions of Textmaxx Pro Services, at the rate of $200 per hour, plus actual attorneys’ fees related thereto.

ivSubscriber Responsibility

Subscriber must provide, and is solely responsible for, its own resources, facilities and provisions as well as the cost of
appropriate telecommunication equipment necessary for subscriber to utilize the Textmaxx Pro Services.

vSubscriber Directions

Subscriber shall provide TMP with such mobile numbers, guidelines, provisions, content or other information (“Directions”) as may reasonably be required by TMP to perform the Textmaxx Pro Services. TMP may rely on any such Directions provided to it by subscriber and shall incur no liability as a result thereof. TMP shall not be required to follow any Directions not made or confirmed in writing. TMP may refuse to follow any Directions within its sole discretion but must inform subscriber of its reason for failing to follow said Directions within five (5) working days. Subscriber represents and warrants that its Directions comply with all applicable state and federal laws, rules and regulations.

EGeneral Terms & Conditions

iDisclaimer of Warranty

EXCEPT FOR THOSE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS OF USE, TMP DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR BY OPERATION OF LAW. TMP SPECIFICALLY DISCLAIMS ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.

iiLimitation of Liability

TMP shall incur no liability as a result of the information and content contained in MMS or SMS text messages sent at subscriber’s request. TMP has no obligation to provide support, maintenance, upgrades, modifications or new releases of the Textmaxx Pro Services. EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL TMP’S LIABILITY TO SUBSCRIBER EXCEED THE TOTAL AMOUNT OF FEES PAID BY SUBSCRIBER TO TMP IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, TMP SHALL NOT BE LIABLE WHATSEOVER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS OR DATA EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS.

iii

Subscriber agrees to indemnify, defend and hold harmless TMP and its directors, officers, shareholders, affiliates, employees, representatives and agents from and against any loss, fines, fees, settlements, judgments, costs, expenses (including, without limitation, reasonable attorneys’ fees, court costs, and administrative fees), and any other liability arising out of, or related, to any claim, demand, or cause of action asserted by any third party arising out of or related to the sending of SMS and MMS messages pursuant to subscriber Directions.

ivCompliance

TMP and subscriber represents and warrant that they have all appropriate licenses and registrations to operate their respective businesses and that the business will be conducted in accordance with all applicable laws, rules and regulations. Subscriber is solely and exclusively responsible for ensuring that any test messaging services it provides comply with applicable state and federal laws, rules and regulations.

vConsents

Subscriber represents and warrants that it has obtained all consents required under state and federal law for its customers to receive SMS and MMS messages including, but not limited to, marketing and joint marketing/account related texts. This warranty incorporates any and all consents required under the Telephone Consumer Protection Act and related state statutes. Subscriber also represents and warrants that no other applicable state or federal law, rule or regulation prohibits TMP from sending any text message in accordance with subscriber Directions.

viNon-Compliance Fee

Failure of subscriber to abide by these Terms of Use or any applicable law, rule or regulation regarding the sending of text
messages shall result in the assessment of a non-compliance fee of $150.00 for each instance of non-compliance.

viiLicensing & Property Rights

Subscriber has a limited, non-sublicensable, non- exclusive, nontransferable, enterprise-wide license to use the TMP technology required to provide the Textmaxx Pro Services. Subscriber acknowledges that all technologies related to the providing of the Textmaxx Pro Services, including but not limited to its structure, organization, source code, and documentation are the sole property of TMP and constitute valuable trade secrets. Subscriber agrees not to: (a) decompile or disassemble any technology related to the Textmaxx Pro Services, separate any technology related to the Textmaxx Pro Services into its component parts or in any way attempt to reconstruct or discover any source code or algorithms of the software related to the Textmaxx Pro Services by any means whatsoever; (b) remove any product identification, trademark, copyright, confidentiality, proprietary or other notice contained on or within the technology related to the Textmaxx Pro Services; (c) modify or create any derivative works from the technology related to the Textmaxx Pro Services or any part thereof, except to the extent that the technology related to the Textmaxx Pro Services provides for User-modifiable components; (d) except as otherwise permitted herein, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer any technology related to the Services or any component thereof; (e) otherwise copy or use any technology related to the Textmaxx Pro Services for any purpose or in any manner not expressly permitted in this agreement; or (f) knowingly permit or encourage any third party to do any of the foregoing. All rights in and to the technology and documentation related to the Textmaxx Pro Services not specifically granted to subscriber herein are reserved by TMP.

viiiPrivacy Policy

All of subscriber’s customer data constituting non-public personal information (“Subscriber Data”) to which TMP obtains access will be maintained by TMP in accordance with applicable state and federal laws. TMP represents and warrants that it will maintain appropriate safeguards to protect Subscriber Data. In the event that TMP or its subsidiaries are ever sold, acquired, merged, liquidated, reorganized, or otherwise transferred, TMP reserves the right to transfer its user databases together with any Subscriber Data contained therein, to a third-party acquiring the assets for the express purpose of continuing to provide Textmaxx Pro Services to the subscriber.

ixData Breach

TMP will maintain reasonable safeguards to prevent a breach of Subscriber Data. TMP shall only be responsible for a breach of Subscriber Data if the breach occurs when the Subscriber Data is in TMP’s direct control (i.e. resides on TMP server). TMP shall not be responsible for any breach that occurs in the process of Subscriber Data being sent to or from TMP. In the event a breach occurs while Subscriber Data is in TMP’s direct control, TMP shall notify subscriber in writing within ten (10) days of TMP’s knowledge of the breach or as otherwise required by law.

xAnnouncements

Subscriber agrees that TMP may publicly announce and list subscriber as a client.

xiAudits

Subscriber shall maintain correct and accurate books and records in connection with its activities under this agreement. TMP shall have the right to conduct a subscriber audit to ensure compliance with the terms of this agreement. Any such audit shall be conducted upon reasonable notice to subscriber, but not more than twice per calendar year and shall not unreasonably interfere with subscriber’s business activities.

xiiGeneral Terms

This document sets forth the entire agreement and understanding of the parties with respect to the subject matter contained herein and supersedes all prior agreements, promises, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative. This agreement will be binding on the parties and their respective successors and permitted assigns. Subscriber may not assign its rights or obligations under this agreement without TMP’s prior written consent. Nothing in this agreement confers any right, privilege or claim to any third party. This agreement may not be amended except in a writing signed by both parties. Failure of a party to exercise any rights or privileges granted by this agreement, or insist upon the full performance of all obligations hereunder, shall not be construed as waiving any such rights, privileges, obligations, or duties, or as creating any consent contrary thereto. This agreement shall be construed as though both parties participated in its construction and may be executed in counterparts.

xiiiChoice of Law and Venue

This Agreement shall be governed by laws of the State of Florida and all parties consent to the personal jurisdiction of a court of competent jurisdiction for Sarasota County, Florida. All actions must be brought exclusively in a court of competent jurisdiction for Sarasota, Florida.

xivAttorney’s Fees and Costs

In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this agreement, whether in contract or tort, the prevailing party shall be awarded its reasonable attorney fees, costs and expenses incurred at both trial and appellate level.