SERVICE AGREEMENT MOBILE MESSAGING SERVICES · 20701 N. Scottsdale Road Suite107-451 Scottsdale, AZ...

20701 N. Scottsdale Road Suite107-451

Scottsdale, AZ 85255

Phone: 480.515.5200

Fax: 480.699.9491

www.celltrust.com

SERVICE AGREEMENT MOBILE MESSAGING SERVICES

CellTrust™ Corporation

20701 N. Scottsdale Road

Scottsdale, AZ 85255

CellTrust Corporation 2008. ALL RIGHTS RESERVED.

http://www.celltrust.com/

Service Agreement Mobile Messaging Services Copyright 2008 CellTrust Corporation, All rights reserved

1. OVERVIEW

1.1 BACKGROUND

CellTrust is a wireless messaging service company that enables customers to send Content and

services to mobile subscribers over telecommunications networks using various messaging

technologies. Customer provides Content and services designed for delivery to and receipt by

subscribers’ wireless devices via messaging technologies supported by CellTrust, pursuant to the

terms of this Agreement. For valuable consideration hereto recognized by each party, the parties

desire to permit Customer to connect to the CellTrust Network to deliver Messages to Carriers

exclusively pursuant to the terms contained within this Agreement.

2. DEFINITIONS

2.1 “Carrier(s)” shall mean CellTrust’s pre-approved mobile networks. Customer

acknowledges that third party networks may be utilized for connections between CellTrust,

Carriers, and Users. A partial or complete list of Carrier(s) may be published and updated

on CellTrust’s website. The number of said Carriers and any changes to the list shall be at

CellTrust’s discretion. Carriers for specific programs such as Premium SMS may be

defined separately.

2.2 “CellTrust Network” shall mean CellTrust’s software, hardware, and infrastructure that are

exclusively within CellTrust’s control, including CellTrust’s Gateway software, routing

systems, computers, devices, as well as CellTrust telecommunication equipment and

software, and the connectivity used for wireless and landline communication and any other

communication with CellTrust.

2.3 “Content” shall mean, without limitation, information, data, text, audio, music, ringtones,

graphics, instructions, photographs, artwork and/or other materials in digital electronic

form, any of which has been provided by Customer.

2.4 “Customer” shall mean the party engaging in this Agreement with CellTrust. Customer

agrees and acknowledges it shall be solely responsible for any third party that Customer

chooses to allow to provide any type of Content, messages, or any products or services

through Customer’s rights under this Agreement and that Customer shall not be relieved of

any obligation under this Agreement in the event such third party rights are allowed.

2.5 “Customer IT” shall mean application, software, hardware, network, telecommunication

connection, service, or information that the Customer utilizes in connection with the

CellTrust Network.


2.6 “Customer Offerings” shall mean the Customer’s Content, Messages and/or any products

and services, including but not limited to support services, made available to Users.

2.7 “Customer’s User(s)” shall mean a User associated with Customer Offerings.

2.8 “Device(s)” shall mean any hardware capable of receiving or sending Messages.

2.9 “Message(s)” shall mean the data transmitted between two or more parties, including, but

not limited to, MO and MT.

2.10 “Mobile Originated (MO)” shall mean an SMS that is sent or is intended to be sent by a

User’s Device to Carrier for delivery to Customer.

2.11 “Mobile Terminated (MT)” shall mean an SMS that is sent or is intended to be sent by

Customer to Carrier for delivery to a User’s Device.

2.12 “Premium SMS” shall mean the fee to User for Customer Offerings, which is included on

the regular Carrier bill as an extra charge to the already prescribed service or subscription

plan.

2.13 “Program” shall mean the Customer Offerings approach through the use of Short Code as

described in the Short Code Program Form intended for approval by Carrier(s) for use on a

short code. “Approved Program” shall mean the Program that has been approved by

Carrier(s).

2.14 “Service(s)” shall mean CellTrust products and services Customer has agreed to purchase

as listed on a price quote or other written request from Customer, as well as optional

services for use by Customer such as CellTrust web portal (“Portal”) and support.

“Purchased Service(s)” shall refer only to those items listed on fully paid invoices that

Customer receives from CellTrust.

2.15 “Short Code” means the unique number assigned by Carriers and registered with the

Common Short Code Authority (“CSCA”) or the Canadian Wireless Telecommunication

Association (“CWTA”), or any other authority representing such functions, for routing

SMS messages. Short Codes are typically short numbers, but for the purpose of this

Agreement, long codes are included in this definition. Short Codes may also be referred to

as “Long Code”.

2.16 “SMS (Short Message Service)” shall mean a short message service offered by Carriers to

send short messages that are typically around 160 characters in length.

2.17 “Software” shall mean the object code version of CellTrust’s Software Development Kit

("SDK"), HTML code, application programming interfaces (APIs), related documentation

and other software or code which CellTrust provides to Customer, including updates, to


enable CellTrust to provide the Services to Customer. Unless otherwise specified, Software

shall not include any source code. The Software is proprietary to CellTrust and is licensed

to Customer under a separate SDK License Agreement at the time of download.

2.18 “Standard Rate” shall mean the fee charged by carriers for each User’s prescribed

subscription or service plan.

2.19 “Transaction” shall mean any business and related information conducted with CellTrust

Network.

2.20 “User(s)” shall mean a person who owns or uses a Device.

3. CUSTOMER OBLIGATIONS

3.1 CONNECTIVITY AND APPLICATION

Customer shall establish and maintain the appropriate and necessary TCP/IP connection between

the Customer IT and the CellTrust Network, including, without limitation, transmitting Customer’s

registration information and Transaction data to CellTrust Network 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 CellTrust, and is not corrupted due to

Customer IT. Customer will only connect to the designated IPs and ports provided by CellTrust,

and Customer shall implement and maintain reasonable security systems for the Customer IT such

as "firewall" technologies. Customer shall develop, host, run, and maintain the application

associated with Customer Offerings that will handle the business-logic of Customer Offerings. The

application shall be in acceptable industry standard quality and provide the Customer Offerings in

accordance with the required Service Policies (as defined in section 3.9).

3.2 CONTENT AND MESSAGES

Customer acknowledges that all Content and Messages are the sole responsibility of the Customer.

Customer is also solely responsible for the integrity and quality of the Content and Messages. The

Customer acknowledges that any financial information that it may receive via Messages may or

may not be a reliable basis for making, or refraining from making, investment decisions. Further,

Customer shall maintain commercially reasonable business practices and general compliance with

all applicable laws and regulations and rules regarding the Carriers and the Services for all

Transactions. Customer agrees and warrants it shall not use the Services to transmit any Content or

Messages which are tortious, defamatory, obscene, libelous, harmful to minors, “spam”, containing

software viruses or otherwise designed to disrupt the functionality of any computer software or

hardware or telecommunications equipment, infringing of another’s rights in intellectual property,

invasive of another’s right to privacy, or in violation of any law or regulation including, but not

limited to, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or the U.S.


Securities and Exchange Commission or any stock exchange. Further, unless approved in writing

by CellTrust’s Legal Department or C-Level Executive, Customer will not transmit any Content

containing sensitive information, such as Protected Health Information as defined under HIPAA.

3.3 LIABILITY OF CONTENT

Under no circumstances will CellTrust or any of the Indemnified Parties (as defined in section 13)

be responsible to Customer or any third party for any loss, damage or liability arising from the

Content, Messages or any Transaction, including, but not limited to, the use or transmission

thereof. Customer acknowledges that CellTrust does not represent that the Services provided

herein are fit for any specific purpose.

3.4 INTEGRITY OF CONTENT AND MESSAGES

Customer shall maintain and assume sole responsibility for the integrity of the Content and

Messages per the Service Policies (as defined in Section 3.9), the guidelines of CellTrust and the

Carriers, and any guidelines by the Mobile Marketing Association (www.mmaglobal.com)

(“MMA”). Customer acknowledges that CellTrust may monitor the compliance with all policies

and guidelines, and, if Customer breaches the aforementioned policies and guidelines, CellTrust’s

Carrier relationships may be irreparably harmed, in which case CellTrust will be obligated to take

any and all action necessary to remedy such breach, including, without limitation or waiver as to

any other remedies available by law or equity, the termination of this Agreement.

3.5 TRANSMISSION

Customer acknowledges that use of the Service may involve companies other than CellTrust and

the Content and Messages may not be private in certain circumstances and may be changed by

those other companies to conform and adapt to their requirements and Devices. CellTrust assumes

no liability or responsibility for timeliness, deletions, duplications, mis-delivery or failure to store

any Content, Message, or Transaction.

3.6 LICENSE OF CONTENT

Customer grants to CellTrust all reproduction and distribution licenses to the Content and

Messages as necessary to perform the Services.

3.7 USE OF SOFTWARE

Customer agrees that its use of the Software, and other materials and information provided by

CellTrust to Customer, shall be limited to Customer’s use of the Services and governed by this

Agreement. CUSTOMER AGREES NOT TO TRANSLATE, DISASSEMBLE, DECOMPILE,

OR REVERSE ENGINEER THE SOFTWARE OF THE PRODUCTS OR SERVICES IN

WHOLE OR IN PART.

http://www.mmaglobal.com/


3.8 SHORT CODE PROGRAM FORM

In order to use a Short Code, Customer shall complete a Short Code Program Form (“Program

Form”), describing the Program in a manner that complies with requirements for approval by

Carrier(s) for Dedicated Short Codes or CellTrust for Shared Short Codes. This includes without

limitation observing requirements for all reserved keywords, such as END, QUIT, STOP,

CANCEL, UNSUBSCRIBE, and HELP. Customer acknowledges that CellTrust may request

modification of any Program Form to more accurately describe the Customer’s Program.

CELLTRUST ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE APPROVAL OR

REJECTION OF CUSTOMER’S PROGRAM FORMS. Customer shall be responsible for all fees

associated with Program Forms and the approval process. Through the term of this Agreement,

Customer shall be responsible to ensure only an Approved Program is allowed on Short Codes.

Customer is obligated to supply CellTrust with an updated Program Form and applicable charges

before any changes are made that deviate from the Approved Program. Customer shall not send

any Content or Messages that is not a part of the Approved Program. Customer shall

immediately report to CellTrust any violation of this Section.

3.9 SERVICE POLICIES

Customer shall adhere to the Terms of Use and the Privacy Policy, as published on CellTrust’s

website, as well as all policies referenced in this Agreement (collectively referred to as the

“Service Policies”), including, but not limited to, those described in Sections 3.2 and 3.4 and

below:

3.9.1 Customer will ensure that all Content and Messages 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) is

sexually explicit; (d) is false, misleading, or likely to mislead or deceive (including,

without limitation, information relating to the source or the author); or (e) promotes

violence, discrimination, or illegal activities.

3.9.2 Customer may only use the Short Codes that are sub-leased to Customer or authorized by

the sublicensee of the Short Code.

3.9.3 Customer will not send any Messages to a User unless: (i) Customer has obtained such

User’s consent to receive such Message; or (ii) the 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 that the employee has permitted Customer to use for communication with the

employee.

3.9.4 Customer shall adhere to requirements for END, QUIT, STOP, CANCEL,

UNSUBSCRIBE, HELP and any other reserved keyword as defined in the Approved

Program.


3.9.5 [Reserved]

3.9.6 Customer will not send any Content or Messages to a User unless such Content or Message

is directly in compliance with the Approved Program.

3.9.7 Customer agrees that the Messages, Content and/or Customer Offerings delivered to a User

on a specific Carrier network via the CellTrust Network will not include advertising or

promotion of a Carrier’s competitor. Customer agrees that, throughout the term of this

Agreement, any web site pages (HTML, WAP, etc.) related to Customer Offerings that are

targeted directly at a Carrier’s User will not include advertising or promotion of a Carrier’s

competitor.

3.9.8 Customer agrees to prominently provide contact information for Customer Support as

provided in Section 3.15 of this Agreement.

3.9.9 If CellTrust or Carrier personnel receive questions or complaints from Users regarding the

Customer Offerings, or if CellTrust or the Carriers experience any technical problems with

the Customer Offerings or any problems that negatively affect Users, Customer will

cooperate in good faith with CellTrust and use best efforts to resolve any problems raised

by CellTrust, the Carriers, or the Users in a timely manner.

3.10 POLICY INFRINGEMENT

If Customer or Customer’s Users infringe upon the Service Policies (as defined in section 3.9) of

this Agreement, Customer shall be immediately obligated to correct such an infringement. If

Customer is purposely infringing upon any such terms, then CellTrust 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 such terms, then Customer is obligated to make all efforts possible to

correct such infringements including, but not limited to, blocking the Customer’s User from

Customer Offerings. If Customer is not able to correct Customer’s User infringements, then

Customer is in breach of this Agreement and CellTrust may, without waiving any other remedy

available by law or equity, terminate this Agreement.

3.11 PERMITTED MESSAGES

Customer is allowed to send Content and Messages supported by the CellTrust Network, in

accordance with this Agreement, and where available and permitted by the Carrier(s). Customer

acknowledges that not all Content and Message types are supported on all Carriers. Customer also

acknowledges that CellTrust may have differing pricing and approval policies regarding certain

types of Content and Messages for specific Carrier(s) and to specific countries.

3.12 BREW-DIRECTED SMS

Customer is allowed to send Brew-Directed SMS on the CellTrust 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 may require that

applications be white listed. Customer further acknowledges that CellTrust requires additional

addendums to this Agreement to support Brew-Directed SMS connectivity for production

applications.

3.13 SECURITY AND INTEGRITY OF MESSAGES

Customer agrees to maintain an appropriate level of security and integrity for the CellTrust

Network and Customer’s Users in connection with the Customer Offerings, including but not

limited to implementing procedures to prevent the use of Customer Offerings for sending or

transmitting: (i) unsolicited Content or Messages, (ii) viruses, or (iii) a volume of Messages that

unreasonably burdens the CellTrust Network. Customer will immediately notify CellTrust if it

knows or has reason to know that any such unsolicited Content, Messages, or viruses are being

sent by virtue of such use of the Customer Offerings and agrees to use best efforts to prevent

and/or block any such unsolicited Content, Messages or viruses from being sent. Customer agrees

to notify CellTrust immediately if it knows or has reason to know that an unusual or abnormal

flow, number, or type of transmissions exist in connection with the Customer Offerings and will

cooperate with CellTrust to prevent continuing transmission of such Content or Messages.

3.14 SECURITY OF ACCOUNT AND CELLTRUST NETWORK

Customer agrees to maintain all security regarding their account ID, password, and connectivity

with the CellTrust Network. Customer is responsible for all Messages it transmits to the CellTrust

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 prior to Customer’s written and phone notification of the compromise to

CellTrust. Customer is obligated to immediately contact CellTrust to have such account ID or

passwords changed to prevent continued malicious use of the Customer account. Customer agrees

it shall abide by CellTrust’s Security Requirements as set forth in Exhibit C.

3.15 CUSTOMER SUPPORT FOR USERS

Customer is obligated to provide support services to Customer’s Users. Customer must provide

support contact information to Users in one or more of the following formats: an email address, a

web site URL, or a phone number. Such contact information shall be provided (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 Offerings or otherwise opt-in to receiving Messages from Customer; (ii) at a location

easily accessible and conspicuous to Users to allow access to the contact information after the User

has registered for the Customer Offerings or opted in to receiving Messages from Customer; and

(iii) to adhere with requirements regarding reserved keywords such as HELP. Such support

services shall be made available during reasonable business hours and follow-up shall occur in a

timely manner. CellTrust or Carriers may refer Users to the Customer support services from time

to time.


3.16 BLACKLISTS

A “Blacklist” is a list of mobile numbers that should not receive messages. Customer

acknowledges that CellTrust, Carriers or other third parties may maintain Blacklist(s) that prevent

sending of Messages to such mobile numbers. Customer agrees it will create and maintain a

Blacklist of mobile numbers for any User that notifies Customer that the User does not want to

receive messages whether such notification is made through the “STOP” or other opt-out

command via the short code, email, phone call, or any other means. Customer shall ensure that no

Message (except as set forth below) is sent to any mobile number on Customer’s Blacklist by

either maintaining a system that electronically prevents sending Messages to such mobile numbers

or by emailing CellTrust support with adequate information to add such mobile number to the

appropriate CellTrust Blacklist. If Customer receives any Messages from any mobile number on a

Blacklist, other than a proper opt-in command in accordance with Customer’s approved program,

Customer will not send a reply Message. CellTrust, in its own discretion, reserves the right to add

any mobile number to a Blacklist if CellTrust is notified that a mobile number should not receive

Messages. Sending a confirmation response as required by MMA guidelines or by Carrier rules to

(i) a User who has sent a message to indicate a desire to be placed on a Blacklist (i.e. the User texts

“stop” to Customer), or (ii) to a User who texts “HELP”, will not be construed to be a violation of

this Section.

3.17 RESERVED

3.18 RESERVED

3.19 FORECASTS

Each Customer MT submission to CellTrust Network may be for one or more Devices; however

each MT submission shall not be for more than 5,000 Devices at a time. If Customer intends to

exceed this limit, Customer acknowledges that more than one MT submission is required with

increments no larger than 5,000 Devices at a time. Customer agrees not to send more than thirty

(30) SMS per second. If Customer forecasts a higher output will be required, Customer shall

contact CellTrust to purchase a bandwidth upgrade, which may require up to 30 days for

activation.

4. CELLTRUST OBLIGATION

4.1 GRANT OF SERVICES

CellTrust grants to Customer the use of Services subject to the terms of this Agreement.


4.2 METHOD OF ACCESS

CellTrust will provide the following methods of access to the CellTrust Network, subject to the

CellTrust Terms of Use, Privacy Policy, both incorporated herein, and the provisions of this

Agreement: via Software Development Kits (SDK), via the HTTP Protocol using a web service

request/response method, and/or via the GUI. CellTrust 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 CellTrust’s discretion. Customer acknowledges that all methods

of access may not be supported by Customer’s particular development environment.

4.3 DELIVERY OF MOBILE ORIGINATED MESSAGES

CellTrust shall provide to Customer methods of delivery of Mobile Originated Messages as

supported by the CellTrust Network. CellTrust reserves the right to revise, add or discontinue

support of a specific method with 30 days prior notice to Customer. Customer acknowledges that

all methods of delivery may not be available for Customer’s particular development environment.

4.4 CHANGES TO SERVICES

In CellTrust's reasonable discretion, and upon reasonable electronic or written notice to Customer,

CellTrust may modify its products and services which may impact the Services. Customer

acknowledges that modifications of Customer Offerings may be required to continue the use of

Services. Customer agrees to be exclusively responsible for any costs associated with such

modifications to Customer Offerings.

4.5 SECURE TRANSACTIONS

CellTrust 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. CellTrust

does not guarantee the security of the Content, Messages, or Transactions. CellTrust will not be

responsible in the event of any infiltration of its security systems, provided that CellTrust has used

commercially reasonable efforts to prevent infiltration. Customer further acknowledges and agrees

that CellTrust is not responsible for the security of Content, Messages, Transactions, or any other

information on Customer IT.

4.6 PRIVACY OF DATA

Customer acknowledges and agrees that in the course of providing the Services, CellTrust may

capture certain Content, Message, Transaction and User information (collectively, the "Data").

CellTrust shall not disclose Data to third parties or use the Data, except that CellTrust shall have

the rights: (i) to use the Data as necessary to enforce the Service Policies and perform the Services

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 or

compliance regulations for internal use, record keeping, internal reporting, and/or support


purposes; (iii) to provide the Data as required by law or court order, or to defend CellTrust’s rights

in a legal dispute or as it may be legally compelled by a third party; and (iv) to use the Data in

aggregate form, without identifying the Customer, to promote CellTrust’s ongoing business and

conduct internal analysis of CellTrust’s business. Notwithstanding the foregoing, Data is Customer

“Confidential Information” under Section 10.1 below.

4.7 TECHNICAL SUPPORT FOR SERVICES

CellTrust’s email support is free and available from 9:00 am to 5:00 pm Arizona Standard Time.

CellTrust phone support is for emergency use only when an outage lasting more than two (2)

continuous hours affects 100% of Customer transmissions in that period. The details of CellTrust

support are listed on the CellTrust website.

4.8 SERVICE AVAILABILITY

CellTrust’s Service Level Agreement (SLA) is provided as EXHIBIT A to this Agreement.

4.9 DELIVERY RECEIPTS

CellTrust Portal shall provide Customer with reports for MO and MT for a period of 90 days and,

where available, show the status of delivery for MT.

5. SHORTCODE PROGRAMS

5.1 OWNERSHIP OF SHORTCODE

A Dedicated Short Code under this Agreement is a Short Code that is, either sublicensed by

Customer and hosted by CellTrust or sublicensed by CellTrust on behalf of Customer. For

Dedicated Short Codes, Customer is required to: (i) properly complete a Program Form; (ii)

provide CellTrust with the related registration information; (iii) pay all applicable fees; and (iv)

assume sole responsibility for Content submitted through the Short Code. Customer acknowledges

that in addition to all initial setup and processing fees, Customer is responsible for payment of all

recurring fees, such as leasing fees and hosting fees, that are incurred during and after the approval

process. Customer will begin to incur the periodic hosting fees as set forth in Section 5.3.

Customer will begin to incur the periodic leasing fees immediately upon registration of the Short

Code.

A Shared Short Code is a Short Code subleased by CellTrust and is used by one or more

customers. If a Shared Short Code is part of Customer’s Purchased Services, CellTrust will grant

access for Customer to its Shared Short Code, provided that the Customer Program is approved.

Customer is responsible for payment of initial setup fees and periodic platform access fees for use

of a Shared Short Code. Customer acknowledges that CellTrust’s Shared Short Code will remain

under the control and ownership of CellTrust. CellTrust shall grant Customer the right of use for

one or more keyword(s) on the Shared Short Code. Customer shall not use any keyword other than


the keyword(s) for which the right of use has been granted specifically to Customer. Customer

acknowledges that it is not guaranteed the right to any keyword utilized in a demo account, but

Customer may request use of such keyword(s) upon purchase of Services. Customer acknowledges

that it does not maintain any ownership rights to any keyword(s) and, upon termination of this

Agreement, any such keyword(s) associated with a CellTrust Short Code may be made available

by CellTrust to other customers.

Customer acknowledges that in addition to aforementioned fees, appropriate credit is required for

both Dedicated and Shared Short Codes to send and receive MT and MO.

5.2 SHORTCODE APPROVAL / REFUND

Program approval is required for activating a Dedicated Short Code and any Programs on

CellTrust Shared Short Codes. Customer shall pay all setup and any other applicable processing

fees prior to commencement of the approval process by CellTrust. In the case of Programs that are

not approved by some or all Carriers, Customer has the option to cancel such Program(s), in which

case Customer acknowledges that setup and processing fees are nonrefundable and any new

Program approval, or resubmission of a Program for approval, shall bear new setup, processing,

and other applicable fees.

Customer acknowledges that all leasing fees and hosting fees are nonrefundable. Customer’s

Dedicated Short Code is launched with a Carrier when the Program is approved by that Carrier and

the Dedicated Short Code has been set up for MO and MT for Users of that Carrier.

Customer acknowledges and agrees that Shared Short Code setup fees and periodic access

platform fees are nonrefundable even if Customer has not used the Shared Short Code.

Customer acknowledges that the Short Code approval process is subject to change at the will of

any Carrier or other third party necessary for the Services and that such changes are beyond the

control of CellTrust. Customer acknowledges that new information, documentation, or other

requests may be required to complete the Short Code approval process. Customer further

acknowledges that any delay by Customer in responding to such requests will delay the Short Code

approval process.

5.2.1 CREDIT REFUNDS/TRANSFERS

Credits are nonrefundable and are revoked upon: (i) Customer’s proper request for cancellation;

(ii) termination of all Services; or (iii) expiration of credits. Customer may request the transfer of

any available credits to other Short Codes owned by Customer or any Shared Short Code that is

part of Customer’s Purchased Services. Such transfer shall be subject to approval by CellTrust at

its sole discretion.


5.3 PERIODIC FEE COMMENCEMENT

Due to the nature of the Dedicated Short Code approval process, CellTrust has the right to begin

charging the hosting fees upon Dedicated Short Code becoming live with three (3) Carriers, except

in the event Customer chooses to initially or only submit its program to less than three (3) Carriers,

CellTrust shall have the right to begin charging the hosting fees upon the Dedicated Short Code

becoming live with each of the Carriers Customer initially selects. Leasing fee for Dedicated Short

Code shall commence upon the registration of the Dedicated Short Code with CSCA, CWTA, or

any other authority representing such functions.

Shared Short Code periodic fees shall commence upon activation.

5.4 ACCEPTANCE OF SHORT CODE TERMS

Customer acknowledges that, in order to provide Content or otherwise utilize a Short Code,

Customer is required to be aware of and accept the terms of the Common Short Code

Administration (“CSCA”) Registrant Sublicense Agreement available at

http://www.usshortcodes.com/csc_subLeaseAgree.html, which may be modified by the CSCA at

any time and in the CSCA’s sole discretion. Customer agrees it shall abide by the obligations set

forth within the CSCA Registrant Sublicense Agreement and Customer shall have sole

responsibility for ensuring that it remains up-to-date on any changes or modifications that may be

made to this agreement.

5.5 APPROVALS SUBJECT TO CHANGE

Customer acknowledges that Carriers may revoke or require changes to Approved Program(s). In

such an event, CellTrust will notify Customer and Customer will be obligated to comply with the

new requirements, including if necessary the deactivation of a Program. Customer acknowledges

that such revocation or required modification is outside the control of CellTrust.

5.6 [Reserved]

6. [Reserved]

7. [Reserved]

8. FEES AND PAYMENT TERMS

8.1 PAYMENT TERMS

Unless alternate terms are agreed to in writing, Customer agrees to pay CellTrust all applicable

initial setup, processing and deposit fees within five (5) business days following the execution of

http://www.usshortcodes.com/csc_subLeaseAgree.html


this Agreement. Customer further acknowledges that without prior written approval of an

authorized CellTrust representative, all Services will require prepaid fees. CellTrust will invoice

Customer within the first five days of every calendar month. Unless expressly otherwise agreed to

and approved in writing by an authorized member of the CellTrust accounting department, all

payments must be received by CellTrust thirty (30) days from the date CellTrust sends the invoice

to Customer. Customer agrees that any delay on the part of CellTrust 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 invoice will reflect the payments due for the payment period; Customer

acknowledges that previous, unpaid invoice amounts may not be reflected on any other invoice.

For Dedicated Short Codes registered through CellTrust, Customer shall make payment of leasing

fees directly to CellTrust and shall not pay CSCA, CWTA or any other agency directly. Customer

acknowledges that leasing fees for Dedicated Short Code(s) are invoiced by CellTrust at least

thirty (30) days prior to their due date by CSCA, CWTA or any other agency and failure to timely

pay leasing fees shall cause deregistration of the Dedicated Short Code, requiring the leasing of a

new code and re-completing the short code provisioning process. 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 15.

8.2 PRO-RATA FEES

If the Effective Date of this Agreement does not fall on the first calendar day of the month,

CellTrust will invoice Customer the following month for the pro-rata portion of the recurring

monthly fees incurred in the first partial month, in addition to the full portion of recurring monthly

fees due for the current billing month.

8.3 RESERVED

8.4 PAYMENT METHODS

CellTrust will accept check, credit card, money order, electronic funds transfer, or wire transfer for

payments. CellTrust reserves the right to change its methods of receiving payment at any time and

will notify Customer at least thirty (30) days prior to the effective date of the change. CellTrust

reserves the right to require payment by a specific method for a particular Product or Service or for

a particular Customer.

8.5 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 CellTrust 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 CellTrust

in electronic form or at the postal address: 20701 N. Scottsdale Road; Suite107-451; Scottsdale,

AZ 85255.

8.6 PRICES SUBJECT TO CHANGE

CellTrust reserves the right to change the prices for Services provided by CellTrust hereunder as

necessary to account for considerations of CellTrust expenses, Carrier price changes, competition,

and market conditions. Customer acknowledges that CellTrust does not have control over some

industry-required price changes and does not always receive prior notice of such changes;

however, CellTrust will use its best efforts to notify Customer at least thirty (30) days prior to the

effective date of the price change.

8.7 CONCATENATED MESSAGES

Customer may submit a large Message to CellTrust Network, when supported by CellTrust

Network, for the purpose of MT, which will be concatenated as multiple SMS Messages, and each

Message in the series shall be considered a separate SMS Message for which Customer shall pay a

separate Message fee.

8.8 TAXES

Sales, use, gross receipts or other taxes or surcharges (excluding taxes on CellTrust income)

properly 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 shall be 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, CellTrust 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. CellTrust shall, when requested by Customer and at Customer's expense, cooperate with

Customer in any such protest or legal challenge.


9. [Reserved]

10. CONFIDENTIALITY / FEEDBACK

10.1 CONFIDENTIALITY

Each party acknowledges that pursuant to or in connection with this Agreement certain

information may be disclosed or acquired that either is designated as proprietary and/or

confidential or ought in good faith to be treated as proprietary and/or confidential, including but

not limited to 1) the terms of this Agreement, and 2) all other non-public information, technology,

materials and specialized knowledge, whether oral, written, or in any tangible form (inclusively

referred to as “Confidential Information”). Each party shall retain Confidential Information in

confidence, and neither party shall use any Confidential Information of the other party for any

purpose other than to perform its obligations or exercise its rights under this Agreement.

Notwithstanding the foregoing, each party may disclose the terms and conditions of this

Agreement to the party’s immediate legal and financial consultants in the ordinary course of

business. Neither party shall provide Confidential Information of the other party to any third party

or to any employees who do not have a need to know.

For the purposes of this section, “Recipient” shall mean the party receiving or acquiring

Confidential Information. The restrictions set forth in this section shall not apply to any

information that: (i) was known by Recipient without obligation of confidentiality prior to

disclosure; (ii) was in or entered the public domain through no fault of Recipient; (iii) is disclosed

to Recipient 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

Recipient without reference to or knowledge of any Confidential Information of the other party. If

a demand is made upon Recipient under a legal or regulatory authority of competent jurisdiction or

requirement of law for disclosure of Confidential Information of the other party, when feasible,

notice of the demand or requirement shall be provided by Recipient to the other party prior to

Recipient’s disclosure of the Confidential Information so that reasonable arrangements may be

sought to protect the confidential and proprietary nature of the Confidential Information.

Each party agrees to use commercially reasonable efforts to protect Confidential Information of the

other party from unauthorized or inadvertent disclosure or use, and in any event, to take

precautions at least as great as those taken to protect its own confidential information of a similar

nature. Recipient shall also notify the other party promptly in writing in the event Recipient learns

of any unauthorized use or disclosure of any Confidential Information of the other party, and will

cooperate in good faith to remedy such occurrence to the extent reasonably possible. 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 section 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 in addition to all other available legal or equitable

remedies to enforce the provisions of this Section.

10.2 FEEDBACK

Customer agrees that if it provides CellTrust with any suggestions, comments, or other feedback

about Confidential Information of CellTrust (“Feedback”) such Feedback is given voluntarily.

Company also agrees that even if Customer designates such Feedback as confidential, unless the

parties enter into a separate, subsequent, written Agreement, the Feedback shall not be confidential

and CellTrust shall be free to use, disclose, reproduce, license, or otherwise distribute the

Feedback in its sole discretion without any obligations or restrictions of any kind, including

without limitation, intellectual property rights. Customer agrees not to provide CellTrust with any

Feedback that is subject to license terms that seek to require the licensing or sharing with a third

party any CellTrust product, technology, service or documentation incorporating or derived from

such Feedback, or any CellTrust intellectual property. Any modifications made by CellTrust based

on or related to Feedback shall be owned exclusively by CellTrust, and CellTrust shall have

exclusive rights and interests on any product, service or intellectual property incorporating such

Feedback.

11. PUBLICITY After the Effective Date and while the Agreement remains in force, both Customer and CellTrust

shall have the right to mention the following in their marketing materials, public announcements,

or as a reference for future customers: (1) the existence of this Agreement, (2) the identity of either

party, (3) Services, or (4) Customer Offerings. 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; and (b) any such marketing materials do not disclose Confidential Information

pursuant to the terms in Section 10.1.

12. WARRANTY / DISCLAIMER CellTrust represents and warrants that the Purchased Services shall conform, in all material

respects, to the applicable documentation provided by CellTrust to Customer and will be

performed in a workmanlike manner consistent with generally-accepted industry standards.

Customer’s sole remedy for CellTrust’s breach of this warranty shall be CellTrust’s reasonable

efforts to repair or replace the Purchased Services. EXCEPT AS EXPRESSLY SET FORTH


ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CELLTRUST

MAKES NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,

REGARDING THE SERVICES, TRANSACTIONS AND/OR SOFTWARE, AND CELLTRUST

HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN

OR ORAL, CONTRACTUAL OR STATUTORY, EXPRESS OR IMPLIED, INCLUDING

WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY,

FITNESS FOR PARTICULAR PURPOSE OR USE, TITLE, NON-INFRINGEMENT, AND

ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF

DEALING OR USAGE OR TRADE. CUSTOMER ACKNOWLEDGES THAT CELLTRUST

HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE

UNINTERRUPTED, ERROR-FREE, WITHOUT DELAY, OR WITHOUT COMPROMISE OF

THE SECURITY SYSTEMS RELATED TO THE SERVICES. NO REPRESENTATIONS OR

WARRANTIES OF ANY KIND ARE MADE BY CELLTRUST WITH REGARDS TO ANY

SERVICES PROVIDED BY ANY WIRELESS CARRIER OR THIRD PARTY NECESSARY

FOR SUPPORTING THE CELLTRUST NETWORK. CELLTRUST EXPRESSLY DISCLAIMS

ANY LIABILITY IN ANY RESPECT FOR ANY ACT OR OMISSION OF CUSTOMER, ANY

CARRIER, ANY THIRD PARTY SUPPORT PROVIDER, AND ANY USER.

13. INDEMNIFICATION

13.1 INDEMNIFICATION

Customer will indemnify, defend and hold harmless CellTrust, its past, present, and future officers,

directors, agents and employees, from and against any and all third party claims, and associated

losses, demands, liabilities, damages, costs and expenses (including reasonable attorneys’ fees), to

the extent 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, CellTrust, CellTrust’s customers, or prospective or actual Users customers of Customer

relating to Customer’s or its agents’ misuse and/or abuse of the Services. CellTrust 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

third party claim that the Purchased Services that were exclusively developed by CellTrust 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 CellTrust’s

replacement of the offending Software or Purchased Services, CellTrust’s obtaining a license for

Customer’s continued use of the Software or Purchased Services, or CellTrust’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 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.

13.2 INDEMNIFICATION OF PARTIES THROUGH WHOM CONTENT IS

PASSED.

In addition to the indemnification set forth above, Customer specifically agrees it shall indemnify,

defend and hold harmless any and all aggregators, Carriers, CellTrust and their respective

affiliates, through whom Content is passed, as well as their respective past, present, and future

officers, directors, agents and employees, from and against any and all third party claims, and

associated losses, demands, liabilities, damages, costs and expenses (including reasonable

attorneys’ fees), incurred by reason of any claim, demand, lawsuit or action initiated by any third

party to the extent based on or relating to an allegation that all or any part of the Content provided

by Customer, a message transmission by a Subscriber to Customer, or the Customer’s use of any

Services violates any local, state or federal law, rule, or regulation, the Content Standards and/or

the MMA Guidelines.

14. LIMITATIONS OF LIABILITY

14.1 LIMITATION OF LIABILITY

Customer acknowledges that CellTrust is not a Carrier nor does it maintain any wireless

infrastructure. The CellTrust products and services and any other services provided by any Carrier

or other necessary party, which may be provided by means of the Internet, are provided “as is,”

“where is” and “when available”. CellTrust is responsible only for providing data transmission to

effect certain routing of Message requests from Customer to the Carrier and is not responsible for

the Carrier or any other pass-through agent’s actions and/or ability to effectuate Customer’s

requests. CellTrust is therefore not responsible for the availability of any Carrier, the availability

and/or performance of the Internet, or the availability and/or performance of any third party

provider required to effectuate any Services. CellTrust 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 CELLTRUST’S LIABILITY ARISING OUT OF THIS

AGREEMENT EXCEED THE FEES PAID TO CELLTRUST BY CUSTOMER DURING THE

THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE

RISE TO SUCH CLAIM, INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR

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 CELLTRUST HAS BEEN ADVISED BY 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. MULTIPLE CLAIMS WILL NOT EXPAND THE LIMITATIONS SET FORTH

HEREUNDER. Notwithstanding the above, the limitations set forth above shall be enforceable to

the maximum extent allowed by applicable law.

15. TERM AND TERMINATION

15.1 TERM

The initial term of this Agreement shall commence on the date executed by CellTrust and shall

continue for a period of one (1) year. This Agreement shall automatically renew for an additional

one (1) year term upon the expiration of the initial term, unless Customer provides CellTrust notice

of its intent to not renew this Agreement at least thirty (30) days prior to the expiration of the then

current term.

15.2 TERMINATION AND SUSPENSION

CellTrust may terminate this Agreement upon no less than thirty (30) days prior written notice to

Customer. Customer may terminate this Agreement in accordance with CellTrust Cancellation

Policy, which provides that (a) service cancellation requires thirty (30) days prior written notice

from the end of the then-current term, (b) Customer must contact its account executive for a

Service Cancellation Form, (c) Customer must follow up with CellTrust Customer Care if

Customer does not receive a confirmation email within five (5) business days after faxing the

completed Service Cancellation Form to CellTrust, and (d) unused credits and services are not

refundable. Either party may terminate this Agreement immediately 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 fifteen (15) days after receipt of written notice of the breach and intent to

terminate from the other party. CellTrust reserves the right to immediately suspend this Agreement

if Customer violates the provisions of Sections 3.2, 3.4, 3.7, 3.8, 3.9, 3.10, 3.13, 3.14, or 3.15.

15.3 NON-PAYMENT

Notwithstanding any other provisions of this Agreement, CellTrust shall have the right to

terminate Services and this Agreement immediately without further notice if any Services are not

paid in full within thirty (30) days of the payment due date.

15.4 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

mailto:customercare@%20celltrust.com


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) fails to

comply with a written request for reasonable assurances within ten (10) business days.

15.5 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 CellTrust or Customer

from any liability arising prior to the termination of this Agreement. Notwithstanding the

foregoing, the provisions of Sections 3.6, Sections 10 through 14 and 17, warranty disclaimers, and

Customer’s obligations to pay fees accrued through the effective date of termination will survive

any termination of this Agreement.

16. NO EXCLUSIVITY / COMPETITION

16.1 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.

17. MISCELLANEOUS TERMS

17.1 FORCE MAJEURE (EVENTS BEYOND THE PARTIES’ CONTROL)

Neither party shall incur any liability to the other party on account of any loss or damage resulting

from any delay or failure to perform all or any part of this Agreement if such delay or failure is

caused, in whole or in part, by events, occurrences, or causes beyond the control and without

negligence of the parties. Such events, occurrences, or causes shall include, without limitation,

acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquakes, fire, and explosions, but

the delay or failure to meet financial obligations under this Agreement is expressly excluded.

17.2 ENTIRE AGREEMENT AND MODIFICATION

The terms in this Agreement constitute the entire Agreement between CellTrust and Customer

regarding its subject matter, and its terms supersede any prior or simultaneous agreement or terms

on the same subject matter, whether written or oral. Except as otherwise provided for herein, any

waiver, modification, or amendment of any provision of this Agreement by Customer will be


effective only if in writing, acknowledged and signed by an authorized representative of CellTrust.

Any attempt by Customer to modify or amend any provision of this Agreement except as expressly

set forth herein shall be void. Customer’s obligations described within this Agreement shall apply

to any time during which Customer was previously receiving products or services from CellTrust,

if no other agreement expressly governs such period.

17.3 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.

17.4 ASSIGNABILITY

This Agreement is assignable by CellTrust. Customer acknowledges that this Agreement and the

rights and licenses granted hereunder are to a specific entity or legal person and are not assignable

or transferable by the Customer without the prior written consent of CellTrust, nor are the

obligations imposed on the Customer delegable. Any attempt by Customer to improperly

sublicense, assign or transfer any of the rights, duties, or obligations under this Agreement shall be

void. For the purposes of this section, a change in the persons or entities that control 50% or more

of the equity securities or voting interest of Customer shall be considered an assignment of

Customer's rights. Customer will give CellTrust twenty (20) days prior written notice of any

change in ownership or establishment by Customer. Customer acknowledges that CellTrust may,

at its sole discretion, immediately terminate this Agreement upon any change of ownership of

Customer. Customer acknowledges that written notice must be provided immediately to CellTrust

of any actual or potential ownership or ownership interest of Customer by a CellTrust competitor

or company who owns a competing product.

17.5 NON-SOLICITATION

Neither party shall solicit Project-Related Parties (defined below) of the other party, to undertake

employment with it, its parent company, any subsidiary company, or any affiliated company

during the performance of this Agreement and for a period of one year after termination of this

Agreement. This restriction does not apply to advertisements in the general media and, except to

the extent that an individual was specifically encouraged to respond to such advertisements, there

shall be no restrictions on the hiring of individual so responding. As used herein, “Project-Related

Party” shall mean any employee or former employee of a Party (to the extent the former employee

is solicited within six (6) months after his/her separation of employment with the other Party) who

is or was materially involved with any aspect of the Services or deliverables provided or to be

provided hereunder or who was otherwise introduced to the other party in connection with the

performance of this Agreement.


17.6 ARBITRATION AND CUSTOMER CLAIMS OR CONTROVERSIES

The parties will attempt in good faith to resolve any controversy or claim raised by Customer by

negotiation or mediation. If they are unable to do so, and regardless of the causes of action alleged

by Customer, the claim will be resolved by arbitration before a sole arbitrator in Phoenix, AZ

pursuant to the then-current Commercial Rules of the American Arbitration Association and the

federal substantive and procedural law of arbitration. The arbitrator’s award for such claim will be

final and binding, and may be entered in any court having jurisdiction thereof. The arbitrator will

not have the power to award punitive or exemplary damages, or any damages excluded by, or in

excess of, any damage limitations expressed within this Agreement. Each party will bear its own

attorneys' fees and costs related to the arbitration. Any claim or action by Customer must be

brought within two years after the cause of action accrues.

17.7 GOVERNING LAW AND JURISDICTION

This Agreement will be governed by and construed in accordance with the laws of the state of

Arizona without reference to its conflicts of laws principles. Each party consents to the exclusive

venue and jurisdiction of the state and local courts within Maricopa County, Arizona for any

dispute under this Agreement.

17.8 EXPORT RESTRICTIONS

Customer acknowledges and agrees that it shall not directly or indirectly import, export, ship,

transmit, or reexport any CellTrust commodity, including, without limitation, Customer’s products

or services incorporating or using and CellTrust products or services, in violation of any law or

regulation of any applicable jurisdiction, including, without limitation, the Export Administration

Act of 1979 or the Export Administration Regulations issued by the United States Department of

Commerce, or re-export, download, or otherwise export into (or to a national or resident of) any

country to which the United States has embargoed goods, or to anyone on the U.S. Treasury

Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of

Denial Orders. Customer represents and warrants that Customer is not located in, under the control

of, or a national or resident of any such country or on any such list.

17.9 NOTICE

Except as otherwise expressly stated, any notice required or permitted under the terms of this

Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by

registered mail return receipt requested, (c) sent by overnight air courier, (d) by facsimile (with a

hard copy mailed on the same date), or (e) if to Customer, by email. If to CellTrust, notice shall be

sent to CellTrust at 20701 N. Scottsdale Road Suite #107-451, Scottsdale, Arizona 85255-6499

USA, Attn: President with a copy to CellTrust General Counsel. Either party may change its

contact information for notice by written notice to the other party. Notices shall be considered to

have been given at the time of actual delivery in person, five business days after posting if sent by

registered mail, one business day after delivery to an overnight air courier service, or upon receipt


of machine confirmation of successful transmission by facsimile or email as described herein.

EXECUTION

IN WITNESS WHEREOF this Agreement has been duly executed this ____ day of ____________ 20___.

Customer Official Business Name: ………………………….……………………………………………….

Official Business Address: ………………………….…………………………………………………………

Official Phone Number: ……………………… Official Business Fax Number: ………………………….

Signee/Authorized Representative of Customer:

Printed Name: ………………………….…………………

Title: ……………………………………………

I am an authorized officer of the Customer, and I have read and accepted the attached Service Agreement Mobile

Messaging Services, and all applicable terms and conditions, including the exhibits and the Terms of Use and Privacy

Policies available on the CellTrust website, and I represent and warrant that they bind the Customer and all its

employees, contractors and agents.

Signature: …………………………………………………………………………

v.2016.2


EXHIBIT A: SERVICE LEVEL AGREEMENT

CellTrust Network Uptime: CellTrust’s SLA guarantees that the CellTrust Network will be available for transmission

and reception of SMS messages, delivery receipts, and other meta-data around such messages, 99% of the time in a

given month, excluding scheduled maintenance. If Customer experiences Downtime, CellTrust will credit Customer

the pro rata portion of the monthly Access Platform fee equal to the portion of any Downtime experienced beyond 1%

in that month provided that Customer request such credit in writing within 30 days of the Downtime. For example, if

Customer experiences 5% Downtime, Customer may be credited 4% of Customer’s monthly Access Platform fee

(CellTrust’s guaranteed Uptime of 99% minus Customer’s experienced Uptime of 95% = 4% refund).

CellTrust Network uptime consist of correct functioning of CellTrust Network only and does not consist of the correct

functioning of any other third party provider or network infrastructure beyond CellTrust’s Network. CellTrust has no

ability to control the correct functioning of the Carriers’ infrastructure or the User’s mobile Device. The Uptime

guarantee does not consist of situations where transmission or reception of data to or from the CellTrust

Network is disrupted or affected due to the Customer, Carrier(s), aggregator(s), User(s), or any other party, or

force majeure.

Customer Downtime is measured from the time the trouble ticket is appropriately opened by Customer to the time the

CellTrust Network is once again up.


EXHIBIT B: INTERNATIONAL MULTIPLIERS International Multipliers are the number of credits deducted for each SMS message based on the country of

the Device. Multipliers are subject to change by CellTrust without notice. International Multipliers may be

available on CellTrust website or through your CellTrust Account Manager.


EXHIBIT C: SECURITY REQUIREMENTS CellTrust reserves the right to modify or update these security requirements at any time, and Customer

expressly agrees to accept such modified or updated terms and to comply with all such modified or

updated terms within forty-five days of CellTrust’s publication which shall be posted in the CellTrust Portal

dashboard. In the event Customer will not or does not wish to accept any such modified or updated terms,

Customer must cancel the Agreement in accordance with the termination policies as set forth in Section

15.2. While CellTrust may notify Customer directly of any changes to the security requirements, it is

Customer’s responsibility to periodically check the Portal for any updates.

Customer shall implement industry-standard controls and framework to prevent compromises to

CellTrust’s Network through Customer’s connection to CellTrust’s Network regardless if such is

by Customer or by any third party that connects through Customer’s Network.

Customer shall provide CellTrust with a list of no more than three (3) IP addresses for the purpose

of whitelisting and shall not be allowed to access CellTrust’s network except through these

whitelisted IP addresses.

Customer shall adhere to IT industry best practices for security and maintain security systems such

as “firewall” technologies that are understood in the industry to provide reasonable security

protection.

Customer agrees to implement and maintain a level of cyber security no less than industry standard

to protect the security and integrity of Customer’s Network. Customer shall maintain a cyber-

security policy and supporting evidence of Customer’s compliance with such policy that will be

provided to CellTrust upon request.

SERVICE AGREEMENT MOBILE MESSAGING SERVICES · 20701 N. Scottsdale Road Suite107-451 Scottsdale, AZ...

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