Terms of Use

Terms of Use for www.msgme.com brought to you by Waterfall Mobile, Inc.

Effective Date: 03/31/2012

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE AS PART OF THE SIGN-UP / ORDERING PROCESS OR BY EXECUTING AN ORDER FORM THAT REFERENCES THE MSGME TERMS OF USE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF MSGME.COM (THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.


The Msgme.com Service is owned, operated and made available to you by Waterfall Mobile, Inc. (hereinafter "Waterfall Mobile," "Waterfall," "we," "our," or "us"). Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Msgme.com website incorporated by reference herein, including but not limited to Msgme.com's privacy policy. For reference, a Definitions section is included at the end of this Agreement.

The Service is offered in several tiers:
Example:
- Free Trial
- Starter
- Intermediate
- Enterprise
- Custom

Please see the pricing section of Msgme.com for feature differences between the various tiers.

1. Free Trial:

We will make one or more Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by you. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Any data you enter into the services, and any customizations made to the services by or for you, during your free trial will be permanently lost unless you purchase a subscription to the same services as those covered by the trial, purchase upgraded services, or export such data, before the end of the trial period. Notwithstanding Section 15 (Representations & Warranties), during the free trial the Services are provided "as-is" without any warranty.

2. Purchased Services:

We shall make the Purchased Services available to you pursuant to this Agreement and the relevant Order Forms during a License Term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.

3. License Grant & Restrictions:

Waterfall hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Waterfall. You may not access the Service if you are a direct competitor of Waterfall, except with Waterfall's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way, except with Waterfall's prior written consent; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. You may use the Service only for legitimate business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, rules or regulations; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. Certain editions of the Service offer integration capabilities via an application programming interface, or API. The Msgme APIs enable others, including application developers and website operators, to retrieve data from Msgme or provide data to Msgme. Access to the APIs requires a separate developer account and API Key. The number of API calls you can make per account may be limited as more fully described in our developer portal located at http://developer.msgme.com.

4. Your Responsibilities:

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications, the transmission of technical or personal data, wireless carrier guidelines and the Mobile Marketing Association's Code of Conduct for Mobile Marketing and the U.S. Consumer Best Practice Guidelines (located at www.mmaglobal.com). You shall: (i) notify Waterfall immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Waterfall immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Msgme.com user or provide false identity information to gain access to or use the Service.

5. Account Information and Data:

As between you and Waterfall, you shall own any data collected from end-user consumers (the "End-User Data"). However, Waterfall collects aggregate non-personally identifiable data including end-user usage and behavioral data as they relate to the Service (the "Aggregate Data"); and you acknowledge and agree that Waterfall shall be the sole and exclusive owner of such Aggregate Data. Waterfall does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Waterfall, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Waterfall shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Notwithstanding the above, Waterfall may remove any Customer Data from the Service that violates any guidelines or policies set forth by (i) the wireless carriers, or (ii) the Mobile Marketing Association, or (iii) any Authorized Distributor, or (iv) Waterfall, which are subject to change from time-to-time. In the event this Agreement is terminated (other than by reason of your breach), Waterfall will make available to you a file of the End-User Data and Customer Data within 30 days of termination if you so request at the time of termination. Waterfall reserves the right to withhold, remove and/or discard End-User Data and Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use End-User Data and Customer Data immediately ceases, and Waterfall shall have no obligation to maintain or forward any End-User Data or Customer Data.

6. Intellectual Property Ownership:

Waterfall alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Waterfall Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Waterfall Technology or the Intellectual Property Rights owned by Waterfall. The Waterfall name, logo, and the product names and logos associated with the Service are trademarks of Waterfall and no right or license is granted to use them.

7. Privacy Disclosure:

Msgme.com's privacy policy may be viewed at http://www.msgme.com/c/privacy. We reserve the right to modify our privacy policy from time to time. You may be asked whether or not you wish to receive marketing and other non-critical Service-related communications from time to time. You may opt out of receiving such communications at that time or at any subsequent time by clicking a link at the bottom of any email. Note that because the Service is a hosted, online application, we occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. As a customer of the Service, you agree that we can use your name and logo in our marketing and promotional materials (e.g., Waterfall website) for the purposes of listing you as a customer.

8. Third-Party Interactions & Applications:

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Waterfall and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Waterfall does not endorse any products or sites on the Internet that are promoted by Users through the Service. In no event shall Waterfall or its licensors be responsible for any content, products, or other materials on or available from third-party websites. Waterfall provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services. We may offer integration of Third-Party Applications with the Service. If you install or enable Third-Party Applications for use with the Service, you acknowledge that we may allow providers of those Third-Party Applications to access your data as required for the interoperation of such Third-Party Applications with the Service. We shall not be responsible for any disclosure, modification or deletion of your data resulting from any such access by Third-Party Application providers. Service features that interoperate with such Third-Party Applications (e.g., Facebook, Twitter, etc.) depend on the continuing availability of such Third-Party Application APIs for use with the Services. Waterfall does not guarantee any aspect of a Third-Party Application including the availability, security or reliability of third party APIs or data exchanges. If any Third-Party Application provider ceases to make the their APIs available or modifies the way in which their APIs work, we may cease providing such Service feature(s) without entitling you to any refund, credit, or other compensation.

9. Short Codes, Use of Keywords, Provisioning / Carrier Certification:

Certain tiers of the Service allow you to use our shared short code(s). Use of the Service with a shared short code requires a unique keyword per campaign. You agree not to reserve keywords and attempt to sell such keywords to a third party, except with Waterfall's prior written consent. Any such behavior shall be grounds for immediate termination of this Agreement and your account. Further, Waterfall shall have the right, at any time, to reclaim keywords that you have reserved but are not actively using. Additionally, you shall not use keywords that are a trademark of another company. The Service allows you to use your own short code. You may lease your own short code at www.usshortcodes.com. Unless otherwise agreed, you are responsible for registering and paying for your own short code(s). We will assist in getting your short code(s) provisioned by the wireless carriers and obtaining all required certifications and authorizations. We will use commercially reasonable efforts to provision your short codes but cannot guarantee if / when your short codes(s) will be provisioned or certified by the wireless carriers.

10. Charges and Payment of Fees:

You shall pay all fees or charges to your account in accordance with the applicable Order Form. The fees include, but are not limited to, monthly service fee, messaging fees, voice call fees, short code fees, account fees, keyword fees, transaction fees, technical support fees, client services fees, etc. In addition, you agree to pay (or reimburse Waterfall, if we are required to pay directly), for any and all fees in connection with the registration, provisioning, certification and use of your short code(s) including but not limited to content distribution fees, message transaction fees, or any surcharges, fines or penalties imposed by a wireless carrier or Authorized Distributor. Payments must be made monthly, quarterly or annually in advance per the terms mutually agreed upon in an Order Form or through the Online Order Center. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all services ordered for the entire License Term, whether or not such services are actually used. You must provide Waterfall with a valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add services by executing an additional written Order Form or using the Online Order Center. Added services will be subject to the following: (i) added account licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the fee for the added services will be the then current, generally applicable service fees; and (iii) services added in the middle of a billing month will be charged for a pro-rata portion of that billing month. Waterfall reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email. All pricing terms are confidential, and you agree not to disclose them to any third party.

11. Billing:

Waterfall charges and collects in advance for use of the Service. Waterfall will automatically bill your credit card or issue an invoice to you each month, quarter or year as applicable, in accordance with the terms of your Order Form, or as otherwise mutually agreed in writing. Fees for other services will be charged on an as-quoted basis. Waterfall's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Waterfall's income. You agree to provide Waterfall with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, we reserve the right to terminate your access to the Service in addition to any other legal remedies. Unless Waterfall in its discretion determines otherwise, you will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes. If you believe your bill is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. If you use the Service to distribute Customer Data or other premium content for which end-users pay a fee to receive, then you may be entitled to a share of the "Net Retail Revenue" (as defined below) generated in connection with such premium content. Unless otherwise mutually agreed in writing, Waterfall will remit any Net Retail Revenue payouts on a quarterly basis, within sixty (60) days after the end of each calendar quarter. Waterfall may also apply the Net Retail Revenue payout amount against any fees or charges that are due on your account.

12. Non-Payment and Suspension:

In addition to any other rights granted to Waterfall herein, Waterfall reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to a service fee of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for the Service during any period of suspension. If you or Waterfall initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Waterfall may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. Waterfall reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Waterfall has no obligation to retain End-User Data or Customer Data and that such End-User Data and Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

13. Expiration, Renewal & Termination:

This Agreement commences on the Effective Date. The Initial Term will be as you elect during the online sign-up in the Online Order Center or as otherwise mutually agreed upon in an Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Waterfall's then current fees. Either party may terminate this Agreement effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) days prior to the end of the then current License Term. In the event this Agreement is terminated (other than by reason of your breach), Waterfall will make available to you a file of the End-User Data and Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Waterfall has no obligation to retain the End-User Data or Customer Data, and may delete such End-User Data or Customer Data, more than 30 days after termination.

14. Termination for Cause:

Any breach of your payment obligations or unauthorized use of the Waterfall Technology or Service will be deemed a material breach of this Agreement. Waterfall, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Waterfall may terminate a free or trial account at any time in its sole discretion. You agree and acknowledge that Waterfall has no obligation to retain the End-User Data or Customer Data, and may delete such End-User Data and Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

15: Representations & Warranties:

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Waterfall represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

16. Indemnification:

You shall indemnify and hold Waterfall, its affiliates and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that your use of the Service, End-User Data, including Content or Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Waterfall (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Waterfall of all liability and such settlement does not affect Waterfall's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

17. Disclaimer of Warranties:

WATERFALL AND ITS AFFILIATES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE, ANY THIRD-PARTY APPLICATION OR ANY CONTENT. WATERFALL AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY WATERFALL AND ITS AFFILIATES. IF YOU ARE DISSATISFIED WITH THE SERVICE, PLEASE REVIEW OUR SUPPORT AND MAINTENANCE POLICY LOCATED AT HTTP://WWW.MSGME.COM/C/MAINTENANCE

18. Internet & Telecommunication Delays:

WATERFALL 'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS INCLUDING THOSE UNDER THE CONTROL OF WIRELESS CARRIERS, WATERFALL'S AUTHORIZED DISTRIBUTORS AND THIRD-PARTY APPLICATION PROVIDERS. WATERFALL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

19. Limitation of Liability:

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

20. Additional Rights:

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

21. Local Laws and Export Control:

This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Waterfall makes no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.

22. Notice:

Waterfall may give notice by means of a general notice on the Service, electronic mail to your email address on record in Msgme.com's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Msgme's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Waterfall (such notice shall be deemed given when received by Waterfall) at any time by any of the following: letter sent by confirmed facsimile to the following fax number: (415) 354-3356; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following addresses: Waterfall Mobile, Inc., 564 6th Street 2nd Floor, San Francisco, CA 94103; addressed to the attention of: Chief Financial Officer.

23. Modification to Terms:

Waterfall reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

24. Assignment; Change in Control:

This Agreement may not be assigned by you without the prior written approval of Waterfall but may be assigned without your consent by Waterfall to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Waterfall directly or indirectly owning or controlling 50% or more of you shall entitle Waterfall to terminate this Agreement for cause immediately upon written notice.

25. General:

This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Waterfall as a result of this agreement or use of the Service. The failure of Waterfall to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Waterfall in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Waterfall and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

26. Confidentiality:

Each Party to this Agreement (the "Receiving Party") understands that the other Party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business. For the purposes of this Agreement, "Confidential Information" means any information relating to or disclosed during the course of the Agreement, which is or should reasonably be understood to be confidential or proprietary to the Disclosing Party, including, without limitation, the terms of and performance under this Agreement and any and all negotiations related thereto, information about each Party's users, clients and/or customers, research, development and know-how, technical processes and formulas, technical specifications, security algorithms, encryption techniques or testing methodologies, application program interfaces, source codes, product designs, sales, costs, trade secrets, unpublished financial information, product and business plans and opportunities, projections, and product testing and marketing data. In addition, all Waterfall data shall be considered Confidential Information. Confidential Information shall not include information that the Receiving Party establishes by written documentation (i) is, at the time of its disclosure, or thereafter becomes part of the public domain without breach of this Agreement, (ii) was known to the Receiving Party prior to its receipt from the Disclosing Party, (iii) is rightfully received from a party other than the Disclosing Party ("Third Party") that did not acquire or disclose such information by a wrongful or tortuous act or in breach of any confidentiality obligation to the Disclosing Party, or (iv) is currently being developed, was developed, or will be developed independently by the Receiving Party, or by a Third Party on behalf of the Receiving Party, without use of or reference to any Confidential Information of the Disclosing Party. For the avoidance of doubt, the Parties acknowledge and agree that the Receiving Party may have developed, is currently developing, or will be developing, independently or with the assistance of a Third Party, products, services, concepts, systems or techniques that are similar to or compete with the products, services, concepts, systems or techniques contemplated by or embodied in the Disclosing Party's Confidential Information, provided that the Receiving Party (a) can document such development, (b) does not violate any of its obligations under this Agreement, and (c) does not reverse engineer the Disclosing Party's Confidential Information. The Receiving Party acknowledges the confidential and proprietary nature of the Disclosing Party's Confidential Information and agrees that it will not disclose the Disclosing Party's Confidential Information to anyone or use, or permit others to use, any Confidential Information for any purpose other than the purposes specifically set forth in this Agreement, without the Disclosing Party's prior written consent so long as they remain Confidential Information or trade secrets, as applicable. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein. Notwithstanding the foregoing, if the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental entity with jurisdiction over it, including any court of competent jurisdiction, the Receiving Party will give the Disclosing Party prompt written notice thereof to allow the Disclosing Party to seek a protective order or other appropriate remedy. Such notice shall include, without limitation, identification of the information to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as it reasonably deems is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed. In addition, the Receiving Party may disclose Confidential Information on a "need-to-know" basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information to its employees, consultants, lawyers, and entities controlled by or controlling it (collectively, the "Personnel") who have a need to know Confidential Information in connection with the purposes set forth in this Agreement. The Receiving Party's Personnel will have access only to the Confidential Information needed for such purposes, and the Receiving Party will ensure that its Personnel comply with this Agreement. The Receiving Party will be liable for any breach of this Agreement by its Personnel and will promptly notify the Disclosing Party of any such breach. Upon the termination or expiration of this Agreement or at the request of the Disclosing Party, the Receiving Party will promptly return all tangible material embodying Confidential Information and will destroy (or, in the case of electronic embodiments, permanently erase) all other tangible material containing or reflecting Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control, whether prepared by the Disclosing Party, the Receiving Party, or their respective advisors or otherwise, and will not retain any copies, extracts or other reproductions in whole or in part of such materials. All documents, memoranda, notes and other writings whatsoever prepared by the Receiving Party and its affiliates based on the Confidential Information shall be destroyed, and such destruction shall be certified in writing to the Disclosing Party by an authorized officer supervising such destruction. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement without posting bond, or by posting bond at the lowest amount required by law. Each Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information and that each Party may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

27. Definitions:

As used in this Agreement and in any Order Forms now or hereafter associated herewith: "Agreement" means these online terms of use, any Order Forms, whether written or submitted online via the Online Order Center, and any materials available on the Msgme.com website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Waterfall from time-to-time in its sole discretion; "Authorized Distributors" means the wireless carriers, wireless message aggregators, telephone companies and other third-party distributors that Waterfall has contracted with or uses in connection with providing the Service; "Content" means the text, audio and visual elements, URL links, documents, software, products, services or other information contained in, linked to, or attached to messages sent out by you through Waterfall's service, or on your behalf by Waterfall; "Customer Data" means any data, information, materials or multimedia content provided or submitted by you to the Service in the course of using the Service; "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen where this Agreement is displayed, the date contained in an Order Form or the date you begin using the Service; "End-User Data" means any information that is collected by the Service from individual consumers interacting with a campaign such as mobile telephone number, wireless carrier, email address, etc; "Initial Term" means the contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form; "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; "License Administrator(s)" means those Users designated by you who are authorized to add, delete or modify the Service Order using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service; "License Term(s)" means the period(s) during which you are licensed to use the Service pursuant to the Order Form(s); "Net Retail Revenue" means the amount of money actually received by Waterfall from the Authorized Distributors from the sale of Customer Data or other premium content to end-users. The Net Retail Revenue is determined after the following deductions to gross revenue collected by the wireless carriers: (i) applicable wireless carrier revenue share, (ii) applicable Authorized Distributor revenue share, (iii) uncollectible amounts; (iv) charge-backs issued by wireless carriers; (v) charge-backs issued by Waterfall; (vi) actual returns for credit; and (vii) any sales or VAT taxes applicable to such sale; "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the type of service contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail); "Online Order Center" means Msgme.com's online application that allows you to, among other things, sign-up for the Service or add additional products/services in the future; "Purchased Services" means Services that you purchase under an Order Form, as distinguished from those provided pursuant to a free trial; "Service(s)" means the specific edition of Msgme.com's online mobile marketing and CRM platform and other services identified during the ordering process, developed, operated, and maintained by Waterfall, accessible via http://www.msgme.com, the Msgme APIs, widgets or another designated web site or IP address, or ancillary online or offline products and services provided to you by Waterfall, to which you are being granted access under this Agreement, including the Waterfall Technology and the Content; "Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties which interoperate with the Services via the Msgme APIs; "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications (including API credentials) and passwords by you (or by Waterfall at your request); "Waterfall" means Waterfall Mobile, Inc., a Delaware corporation, having its principal place of business at 564 6th Street 2nd Floor, San Francisco, California 94103; "Waterfall Technology" means all of Waterfall Mobile's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, APIs, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Waterfall in providing the Service;

Questions or Additional Information:

If you have questions regarding this Agreement or wish to obtain additional information, please send an email to support@msgme.com.

Effective Date: 03/31/2012