Publisher Agreement and Terms

TxtVox Publisher Network Service Agreement and Terms of Use

Thank you for choosing TxtVox for your mobile messaging needs. Hereinafter, "API" or "APIs" will refer to the TxtVox web based application and tools. If you disagree with any of the terms below, TxtVox does not grant you a license to use the APIs. Please note that some of our Web Services and APIs may be licensed under terms that supplement or differ from terms listed here. See the specific API or Web Service documentation for details.

TxtVox, Inc ("TxtVox") reserves the right to update and change, from time to time, these Terms of Use and all documents incorporated by reference. You can always find the most recent version of these Terms of by visiting the TxtVox web site at http://www.txtvox.com/pubisher/agreement.aspx. TxtVox may change these Terms of Use by posting a new version without notice to you. Use of the APIs after such change constitutes acceptance of such changes.

As the user of these APIs, you ("Publisher" or "You") agree to develop and promote specific text messaging applications ("Application") that utilize the API to deliver text messages and WAP pages as alerts containing new blog posts, newsletter articles or other content. The Effective Date of this Agreement shall be the date that You register as a TxtVox Publisher or otherwise join the TxtVox Publisher Network.

1. Licensed Uses and Restrictions.

The APIs are owned by TxtVox and are licensed to You on a worldwide (except as limited below), non-exclusive, non-sublicenseable basis on the terms and conditions set forth herein. These Terms of Use define legal use of the APIs, all updates, revisions, substitutions, and any copies of the APIs made by or for You. All rights not expressly granted to You are reserved by TxtVox.

a. Subject to the restrictions set forth in these Terms of Use, You may use the APIs and any updates provided by TxtVox (in its sole discretion). Your license to the APIs under these Terms of Use continues until it is terminated by either party. You may terminate the license by discontinuing use of all or any of the APIs and closing your online Publisher account. TxtVox may terminate the license at any time for any reason. These Terms of Use terminate automatically if (i) You violate any term of these Terms of Use, (ii) TxtVox publicly posts a written notice of termination on its Web site, (iii) TxtVox sends a written notice of termination to You, or (iv) TxtVox ceases providing access to the APIs to You.

b. Unless otherwise specified, use and redistribution of all computer code made available through the APIs is permitted in binary forms, subject to the provisions of this agreement.

c. If your product or service uses or is based upon the APIs, You agree to use the wording "Powered by TxtVox" prominently.

d. You shall use instructions provided in the APIs to place application identification information (application ID) into any application or service You develop that incorporates or makes any use of the APIs. You may only create a single application ID per application or service and such application ID must accompany all web services requests coming from that application or service. You must provide accurate identification, contact, and other information required as part of the registration process. You shall not create any script or other automated tool that attempts to create multiple application IDs.

e. If you wish to confirm that your application constitutes an acceptable use of the APIs or wish to inquire about rate limit increases, register your application with us.

f. YOU SHALL NOT:

(i) use the APIs in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to US embargo, hate materials (e.g. Nazi memorabilia), goods made from protected animal/plant species, recalled goods, hacking/surveillance/interception/descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade, gambling items, non-packaged food items, weapons and accessories;

(ii) use the APIs in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with the TxtVox Terms of Service Terms and Conditions or these Terms of Use;

(iii) use the APIs to operate nuclear facilities, life support, or other mission critical application where human life or property may be at stake. You understand that the APIs are not designed for such purposes and that their failure in such cases could lead to death, personal injury, or severe property or environmental damage for which TxtVox is not responsible;

(iv) sell, lease, or sublicense the APIs or access thereto or derive income from the use or provision of the APIs, whether for direct commercial or monetary gain or otherwise, except any income payable to You by TxtVox, without TxtVox's prior, express, written permission; or

(v) use the APIs in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation, as determined by TxtVox in its sole discretion.

(vi) use the APIs in a product or service that competes with products or services offered by TxtVox.

2. Ownership and Relationship of Parties.

The APIs may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. TxtVox's rights apply to the APIs and all output and executables of the APIs, excluding any software components developed by you which do not themselves incorporate the APIs or any output or executables of the APIs. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in these Terms of Use. TxtVox owns all rights, title, and interest in and to the APIs. In addition, TxtVox owns all rights, title and interest in and to all data associated with each individual subscription and each individual subscriber to each and every Application, including, but not limited to, mobile telephone numbers ("Data"). These Terms of Use grant you no right, title, or interest in any intellectual property owned or licensed by TxtVox, including (but not limited to) the APIs, Data and trademarks.

3. Support.

TxtVox may elect to provide you with support or modifications for the APIs (collectively, "Support"), in its sole discretion, and may terminate such Support at any time without notice to you. TxtVox may change, suspend, or discontinue any aspect of the APIs at any time, including the availability of any APIs. TxtVox may also impose limits on certain features and services or restrict your access to parts or all of the APIs or the Web site without notice or liability. Please register your application for priority notification of status alerts via email.

4. Fees, Revenue Sharing, Payments

a. TxtVox reserves the right to charge fees for future use of or access to the APIs or the services and Web sites in TxtVox 's sole discretion. If TxtVox decides to charge for the APIs Services, such charges will be disclosed to you in advance.

b. Unless TxtVox requires You to pay in advance, You agree to pay for any fees incurred by your application within 15 days after the end of each calendar month via PayPal or similar payment service acceptable to TxtVox. You may be responsible for per-message fees according to the then published price-per-message fee schedule if you elect to remove advertisements from your outgoing TxtVox messages and WAP pages.

c. TxtVox agrees to pay you revenue-share commissions as follows:

1. fifty percent (50%) of Net Revenue (as hereinafter defined) generated from messages containing content provided by You and sent to subscribers generated by You; plus

2. twenty five percent (25%) of Net Revenue (as hereinafter defined) generated from messages containing content provided by You and sent to subscribers not generated by You; plus

3. twenty five percent (25%) of Net Revenue (as hereinafter defined) generated from messages containing content not provided by You and sent to subscribers generated by You.

"Net Revenue" is defined as collected advertising revenue generated by advertisements within SMS text messages and WAP pages, less all delivery and other third-party costs applicable thereto, including, but not limited to, any advertising agency commissions and costs of content procurement. If TxtVox cannot attribute the amount of Net Revenue generated from a particular revenue source, whether an advertiser or network or other source of revenue, to individual Publishers, then all such Net Revenue from the applicable revenue source shall be equally divided among all Publishers based on the number of revenue-generating clicks generated by each. Revenue-share commissions shall be paid to You within 15 days after the end of each month via PayPal or similar payment service. If your earned balance is less than $100, TxtVox reserves the right to postpone your payment until your balance reaches $100.

d. TxtVox shall provide reports reasonably sufficient to reflect estimates of your net revenue-share commissions.

e. Right to Audit. TxtVos agrees that at all times during the term of this Agreement it shall maintain accurate books and records relating to the performance of the APIs and any payments due Publisher derived therefrom. TxtVox agrees that Publisher, or any designee of Publisher approved by TxtVox, shall have the right following the Effective Date of this Agreement, at Publisher’s sole cost and expense and after executing a confidentiality agreement provided by TxtVox, to examine, inspect, audit, review and copy or make extracts from all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to TxtVox at least ten (10) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be strictly limited to those books and records that specifically relate to information pertinent to the use of the APIs and Publisher’s specific application. Publisher shall be limited to one (1) such audit during any twelve (12) month period.

5. Disclaimer of Any Warranty.

SOME OF THE APIS ARE EXPERIMENTAL OR BETA AND HAVE NOT BEEN TESTED IN ANY MANNER. TXTVOX DOES NOT REPRESENT OR WARRANT THAT ANY APIS ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE APIS ARE PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND TXTVOX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABLILTIY, SECURITY, TITLE AND/OR NON-INFRINGEMENT. YOUR USE OF APIS IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF ANY APIS INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.

6. Limitation of Liability.

TXTVOX SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, USE OF THE APIS, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT TXTVOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TXTVOX SHALL NOT BE LIABLE TO YOU FOR ANY AMOUNT UNDER ANY CIRCUMSTANCES.

7. Exclusions and Limitations.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 5 AND 6 MAY NOT APPLY TO YOU.

8. Release and Waiver.

To the maximum extent permitted by applicable law, you hereby release and waive all claims against TxtVox, and its subsidiaries, affiliates, officers, agents, licensors, co-branders or other partners, and employees from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising from or in any way related to your use of APIs. If you are a California resident, you waive your rights under California Civil Code § 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." You understand that any fact relating to any matter covered by this release now believed to be true may be found to be other than true and you accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights and benefits which you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.

9. Hold Harmless and Indemnity.

To the maximum extent permitted by applicable law, you agree to hold TxtVox harmless and indemnify TxtVox and its subsidiaries, affiliates, officers, agents, licensors, co-branders or other partners, and employees from and against any third party claim arising from or in any way related to your use of APIs, including any liability or expense arising from all claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. TxtVox shall use good faith efforts to provide you with written notice of such claim, suit or action.

10. General Terms.

10.1 Relationship of the Parties.

Notwithstanding any provision hereof, for all purposes of the Terms of Use, you and TxtVox shall be and act independently and not as partner, joint venturer, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of TxtVox, express or implied, and you shall not attempt to bind TxtVox to any contract.

10.2 Invalidity of Specific Terms.

If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and the other provisions of such documents remain in full force and effect.

10.3 Location of Lawsuit and Choice of Law.

The Terms of Use and the relationship between you and shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. You and agree to submit to the personal jurisdiction of the courts located within Palm Beach County, State of Florida.

10.4 No Waiver of Rights by TxtVox.

TxtVox's failure to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision.

10.5 Miscellaneous.

The section headings and subheadings contained in this agreement are included for convenience only, and shall not limit or otherwise affect the terms of the Terms of Use. Any construction or interpretation to be made of the Terms of Use shall not be construed against the drafter. The Terms of Use constitute the entire agreement between and you with respect to the subject matter hereof.

11. Rules for Using APIs and Web Services

By using our documentation, code samples, and services you agree to these terms. In addition, you must:

• Use an application ID for each application.
• Include proper attribution for each application.
• Comply with terms and conditions set herein.

12. Publicity

Neither you nor TxtVox will issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other party.