Terms of Service

Effective November 21, 2024

PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF OUR “PLATFORM” AS DEFINED BELOW.

THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US OR OUR AGENTS AND REPRESENTATIVES (INCLUDING ANY THIRD PARTY BENEFICIARY OF THESE TERMS) ON AN INDIVIDUAL BASIS ONLY, AND BY USING THE PLATFORM AND ENTERING INTO THESE TERMS, YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN ANY COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT (INCLUDING AS A CLASS REPRESENTATIVE OR MEMBER OF ANY PUTATIVE CLASS).

YOUR SUBSCRIPTION IS SUBJECT TO “AUTO-RENEWAL” AND CERTAIN LIMITATIONS OF LIABILITY AND INDEMNITY OBLIGATIONS, AS MORE SPECIFICALLY PROVIDED BELOW.

Introduction

These Terms of Service (the “Terms”) govern the individual, company and/or organizational (collectively, “you,” “your” or “Customer”) purchase and use of any of our services, including your use of the various text, SMS (also known as “Short Message Service”), and MMS (also known as “Multimedia Messaging Service”) messaging services (collectively, the “Services”) and other features available through our website (https://www.smsnxt.com) (including both mobile and online versions) and our mobile app (collectively, the “Site”), any SMS/MMS “long codes” or “short codes” that may be provided or made available to you in conjunction with your use of the Services or the Site (collectively, “SMS/MMS Codes”), and the software, technical and communications platform(s) available on and through the Site (collectively, the “Platform”). The Platform and Services are made available by blubyt Tech Inc. (“Provider,” “we,” “our” or “us”).

If you want to use the Platform or our Services or access the Site, then carefully read these entire Terms (including all links to details), as they constitute a binding written legal agreement between you and us and they affect your legal rights and obligations. The business realities associated with operating the Platform and providing the Services are such that, without the conditions that are set forth in these Terms—such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and arbitration of certain disputes—we would not make the Platform or the Services available to you.

In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Platform or to the Services offered via the Platform or otherwise (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. By using and/or continuing to use or access the Platform or the Site, including all Services offered therein or thereby, you are agreeing to be legally bound by these Terms and any applicable Additional Terms. Your continued use the Platform or Site or our Services is an affirmation of your consent to these Terms.

Description of Platform and Service. smsNXT provides a web-based application (“smsNXT”) for managing mobile marketing campaigns including mobile messaging capabilities (the “Service”). Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to this Agreement. You understand and agree that the Service is provided to you on an “AS-IS” basis and that smsNXT assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access and subsequent usage may involve third party fees (such as Internet access to use the Service).

YOUR REGISTRATION OBLIGATIONS. In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or smsNXT has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SmsNXT has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). Children under the age of 18 may not sign up for an SmsNXT account or use any SmsNXT services.

PAYMENT AND FEES.

A. Payment by Credit Card / Paypal. You hereby authorize SmsNXT to charge your credit card as set forth in the Payment Method section of the Registration Form to a monthly Services fee, and overage fees to SmsNXT at the rates set forth on smsNXT.com/pricing or agreed upon rate.

B. Pass Through Charges. If at any time after execution of this Agreement, a Network Operator or other Third-Party changes the Third-Party Charges on Provisioned Phone Numbers then SmsNXT , at its discretion, may pass through such fees (“Pass Through Charges”) to you at cost.

SMSNXT PRIVACY POLICY.

MEMBER ACCOUNT, PASSWORD AND SECURITY. You (the “MEMBER”) will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account designation and are fully responsible for all activities that occur under your password or account designation. You agree to (a) immediately notify SmsNXT of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. SmsNXT cannot and will not be liable for any loss or damage arising from your failure to comply with this section.

MEMBER CONDUCT, REPRESENTATIONS AND WARRANTIES

A. You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not SmsNXT , are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. SmsNXT does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will SmsNXT be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.

SmsNXT is solely a facilitator of the message traffic and has no visibility into or control over individual Messages as they are transmitted through SmsNXT and has no responsibility or liability with respect to the content of any individual Message. Except that SmsNXT may use programmatic means to filter (pre-screen) your messages and block your campaigns or account due to message keywords that SmsNXT has determined, in it’s sole description, may violate an applicable, rule, regulation, or law.

B. You agree to not use the Service to:

1. upload, post, text message, email, transmit or otherwise make available any illegal contests or gambling, unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

2. upload, post, text message, email, transmit or otherwise make available any adult Content or Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements, or which violates the intellectual property rights of a third party (“Rights”);

3. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;

4. upload, post, text message, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any mobile telephone, mobile device, computer software or hardware or telecommunications equipment;

5. “stalk” or otherwise harass another; and/or

6. Using any equipment or software that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, in conjunction with your use of the Services;

7. Using any equipment or software that has the capacity to initiate messages without human intervention, in conjunction with your use of the Services;

8. Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility- related telephone numbers;

9. Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;

10. Harvesting, or otherwise collecting information about others, without their consent;

11. Misleading others as to the identity of the sender of your messages, by creating a false identity, impersonating the identity of someone/something else or by providing contact details at do not belong to you;

12. Transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;

13. Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity;

14. Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or y other harmful/deleterious programs;

15. Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;

16. Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;

17. Abusing the fair use policy with regard to unlimited keywords—that is, registering many keywords without using them for weeks or months, as is determined to be abuse in the sole discretion of SmsNXT ;

18. Interfering with another’s use and enjoyment of the Services or SmsNXT Sites; or

19. Engaging in any other activity that SmsNXT believes could subject it to criminal liability or civil penalty/judgment.

C. You acknowledge that SmsNXT may or may not pre-screen Content, but that SmsNXT and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, SmsNXT and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.

D. You acknowledge, consent and agree that SmsNXT may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any subpoena or other legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of SmsNXT , its users and the public.

E. You understand and agree that all messages you send via the SmsNXT service will be sent, and certify that any subscriber list you decide to import into SmsNXT was collected, in compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing SMS messages, advertising, and telemarketing, including, without limitation, Section 5 of the FTC Act (15 U.S.C. § 45), the CAN-SPAM Act (15 U.S.C. §§ 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227), the Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.) and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations, and, as applicable for SMS to Canadian numbers, the CRTC’s Unsolicited Telecommunications Rules, including the CRTC Telemarketing Rules, National DNCL Rules, and Automatic Dialing and Announcing Device Rules, Telecom Decision CRTC 2007-48, as amended.; and all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices (collectively, “Applicable Message Requirements”). SmsNXT provides the software and carrier-connectivity through which you send your messages; you are solely and exclusively responsible for complying with Applicable Message Requirements (and for defending and indemnifying SmsNXT from any claims in which it is alleged that you failed to do so). If for any reason SmsNXT suspects that your use of its Services in any way is contrary to any Applicable Message Requirements, it reserves the right to request a written explanation from you, the client, including the method of collecting the subscriber’s phone numbers and a guarantee signed by you that all the people on your subscriber list provided you prior express written consent to receive text messages from you of the type that you had sent. You agree to provide all such information and documents reasonably requested by SmsNXT . SmsNXT reserves the right to take any action it thinks appropriate in the case of non-compliance, including but not limited to suspension and/or cancellation of the account, without any liability to you therefor.

F. You represent and warrant that you are aware that, among other requirements, the TCPA requires prior express written consent from a consumer before you can send them marketing text messages using an autodialer, with no purchase required as a condition of their consent, and such consent must be clear and conspicuous. Furthermore, damages for each message sent in violation of the TCPA is $500 and can be $1500 if the violation is proven to be “willful and knowing.”

G. Through the Platform and Services, we provide notification and messaging services that allow paid subscribers to contact and send information to their user database through mobile text messaging services and other mobile communication systems. We have made efforts to make the Platform and Services are Systems and Organization Controls 2 (“SOC 2”) and Health Insurance Portability and Accountability Act (“HIPAA”) compliant but you are ultimately responsible for ensuring compliance with all laws, rules and regulations applicable to you and you organization. After purchasing a subscription to the Platform, you can communicate with your customers utilizing the dashboard. As part of the Services and Platform, we provide businesses and organizations with a variety of tools to input names, mobile phone numbers, email addresses, and other information that have been collected by Customer on an opt-in basis and to help you import such customer data (collectively, “Customer Data”). However, contact information should be imported only if your users have given you consent to receive a specified type of messaging from you (as required by applicable law or your privacy policy). Further, Provider does not initiate, send or generate any messages for you or on your behalf; rather, the messages are initiated by you using our Platform at your sole discretion, subject to these Terms. For example, Provider does not draft the content of your messages, control when the messages are sent or to whom, or provide or generate any phone numbers to be messaged through the Platform or Site. All of these functions must be manually performed by you and are not automated. We cannot and will not send any messages randomly or send recurring messages, and cannot generate random or sequential phone numbers for you. We will not provide you with any legal advice on how to comply with applicable law using the Platform, and nothing on the Site or the Platform should be taken as providing such advice. You will be solely responsible for complying with applicable law under these Terms.

You agree that you will include clear opt-out/unsubscribe information on your messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages, and that you will promptly process all such do-not-text or do-not-call requests and maintain those numbers on your internal do-not-call/text list.

H. You shall schedule your messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, pictures or videos for inclusion in any outbound messages. If you are unfamiliar or unclear on the legalities of any message that you intend to initiate through the Services, you must consult with your attorney prior to your use of the SmsNXT Sites or Services.

I. You represent and warrant that you have all power and authority and have procured all rights and licenses necessary to use and text enable those Phone Numbers utilized for SmsNXT services. In the case of shared use Phone Numbers, you expressly represent that you are the Phone Number Owner.

J. Provider maintains a no-tolerance policy toward spam. Although Provider does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Site and Services. All mobile marketing messages must conform to the latest available best-practice guidelines drafted and published by the MMA (currently available at http://www.mmaglobal.com/policies/consumer-best-practices) and the CTIA (currently available at https://api.ctia.org/wp-content/uploads/2019/07/190719-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf), which you agree to review and abide by before using the Platform. For example, and without limitation, these guidelines may recommend “STOP” instructions using SMS/MMS Codes (see Provision and Use of SMS/MMS Codes for more information) in order to allow recipients to “opt-out” of receiving future messages. In this regard, the Platform provides mandatory STOP instructions on your first welcome message and pre-populates STOP instructions for subsequent messages. However, you are solely responsible for any claims or incidents that may result from your removal of these STOP instructions. If a user replies to a text message you send through the Platform with messages other than STOP instructions, they will appear in your inbox. You are solely responsible for monitoring messages received in your inbox. You agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your company DNC list and, except as otherwise noted above, Provider shall have no other responsibility for notifying you of such opt-outs. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or STOP request.

You hereby acknowledge and confirm that you are solely responsible for the content of your messaging. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages. You hereby acknowledge that Provider merely provides a platform for facilitating the sending of your text messages, and that you shall have sole responsibility and liability for your messages and communications. You also agree to defend, indemnify and hold harmless Provider from and against any claims or damages which may result from your use of the Platform and Services, including, but not limited to, claims, damages, or lawsuits threatened or filed by third parties as well as inquiries and investigations by local, state and federal regulators (see Indemnity provision for a complete list of your indemnities to Provider). We reserve the right to hold, suspend or terminate your account or access to the Platform and/or Services as well as your use of the Site or SMS/MMS Codes for any alleged violation.

K. The Platform may NOT be used for sending any unsolicited messages except with our prior written approval and may NOT be used for sending any messages that violate applicable law or these Terms. You agree to our Privacy Policy and anti-spam policies described in these Terms and agree to enforce the indicated permission-based marketing practices with anyone using your account as required by law. You agree to assume full responsibility and accept the legal consequences of any action by anyone using your account and will indemnify us in relation to the same, according to these Terms. We reserve the right to suspend or terminate your account at any time, at our sole discretion, and without prior warning or refund if your account activity is reasonably believed to violate any term in these Terms or applicable law. Violation of applicable anti-spam laws and regulations, regardless of whether specifically described below, may also result in third-party legal actions against you. Provider also reserves the right to terminate your access to the Platform and Services at any time and immediately if we believe that your conduct is harmful to the interests of Provider or the “Provider Parties” as defined below. We reserve the sole discretion and right to permanently delete any Customer Data stored in your account immediately after your account termination and any of your assigned SMS/MMS Codes may be reassigned by us to other users.

L. Terms Applicable to the Purchase of Subscriptions to the Platform and Services.

A. Generally. To purchase access and use of the Platform and gain access to our Services, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence and authorized to bind the specific entity on whose behalf you are accessing and using the Platform or obtaining Services (if applicable). Prior to the purchase of access to the Platform or our provision of the Services, unless we make alternative payment arrangement with you, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge your card. By submitting that information to us or our third party credit card processor, you agree that you authorize us and/or our processor to charge your card at our convenience but within thirty (30) days of credit card authorization. For the specific subscription to the Platform/Services which you order, you agree to pay the price applicable (including any sales taxes and surcharges) as of the time you submit the order. Provider or our third party credit card/payment processor will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please be aware that the current text/SMS standard permits only 160 characters in an individual message (e.g., standard text and hyperlinks). The submission of a seemingly-valid text/SMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid text/SMS message or broadcast exceeding 160 characters will yield distinct, individually debited messages, each of 160 characters or less, together comprising the original message. Please be aware that the current MMS standard permits only 1600 characters in an individual message or certain types and limited sizes of multimedia messages (e.g., JPEG, PNG, TIFF, GIF files). The submission of a seemingly-valid MMS message or broadcast will cause an associated quantity of messages to be debited from your account. Accordingly, the submission of a seemingly-valid MMS message or broadcast exceeding 1600 characters will yield distinct, individually debited messages, each of 1600 characters or less, together comprising the original message. You can obtain the status of your account at any time through the online interface. Delivery and deliverability rates, which are the responsibility of third party carriers and not Provider, for any text/SMS/MMS messages sent using the Platform and Site may vary.

DOWNTIME & REFUND POLICY

A. For purposes of this Agreement, a Unit of Downtime is one period of at least 1 day during which access to www.smsnxt.com is unavailable because of problems with hardware or system software. Downtime does not include:

1. problems caused by factors outside of our reasonable control

2. problems resulting from any actions or inactions by you or any third party

3. problems resulting from your equipment and/or third party equipment not within our sole control, or

4. network unavailability during scheduled maintenance of our network and/or web servers.

B. In any calendar month, we guarantee that Downtime will not exceed 1 Unit of Downtime excluding, however, regularly scheduled maintenance. Any regularly scheduled maintenance will be performed during the hours of 6pm and 8am. We work to ensure the functioning of all web servers through continuous monitoring by our staff.

C. If Downtime exceeds 1 Units of Downtime in any calendar month, we will, upon your written request, credit your account (a “Downtime Credit”) in an amount equal to the pro-rata price for one (1) day of service, for each instance of Downtime as that term is defined herein.

D. To receive Downtime Credit, you must request such credit by sending an email to support@smsnxt.com within seven (7) days after the occurrence of Downtime. The aggregate maximum number of Downtime Credits to be issued for any and all instances of Downtime occurring in a single calendar month will not exceed seven (7). Downtime Credits will be applied upon issue of the first invoice following the request for Downtime Credit, unless the Downtime occurs in your final month of service. In such case, a refund for the dollar value of the Downtime Credit will be mailed to you within thirty (30) days of the expiration of your service agreement.

E. If you are unhappy with any aspect of our service, please contact us and we will attempt to rectify the situation. Because we are providing a service, which starts when you create the account, we can not provide a refund except when the service has not been acceptable. This is at our discretion only. No refunds will be made if we terminate your account due to violation of our Acceptable Use Policy or any other violation of our Terms and Conditions, except as may be provided therein. This does not affect your statutory rights. No bill credit will be given for a period of suspension.

CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE. SmsNXT does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant to SmsNXT the following worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service and elsewhere for the purpose for which such Content was submitted or made available and also for the purpose of providing and promoting the Service to which such Content was submitted or made available.

INDEMNITY. You agree to defend, indemnify and hold SmsNXT , and its affiliates, officers, agents, and employees harmless from any proceeding, suit, claim or demand, including reasonable attorneys’ fees, made by any third party relating to, alleging or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your alleged violation of this Agreement, your alleged violation of any rights of another, or your alleged violation of any law (“Indemnifiable Claims”), and to indemnify SmsNXT from any damages, awards, attorneys’ fees, and costs awarded against or incurred by SmsNXT in connection with any such Indemnifiable Claims. As a condition of the foregoing indemnification obligations, (a) SmsNXT will provide you prompt notice of any such Indemnifiable Claim, provided, however, that the failure to give such prompt notice shall not relieve you of your obligations hereunder except to the extent that you were actually and materially prejudiced by such failure; (b) you will have the sole and exclusive authority to defend or settle any such Claim (provided that you will obtain our consent in connection with any act or forbearance required by SmsNXT , which consent will not be unreasonably withheld); and (c) SmsNXT will reasonably cooperate with you in connection with your activities hereunder, at your expense. SmsNXT reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, you will not settle any Claims for which you have an obligation to indemnify pursuant to this Section admitting liability or fault on behalf SmsNXT , nor create any obligation on behalf of SmsNXT without its prior written consent.

GENERAL PRACTICES REGARDING USE AND STORAGE. You acknowledge that SmsNXT may establish general practices and limits concerning use of the Service but that SmsNXT has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service.

MODIFICATIONS TO SERVICE. SmsNXT reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that SmsNXT shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

TERMINATION. You agree that SmsNXT may, under certain circumstances and without prior notice, immediately terminate your SmsNXT account, any associated text message address and/or email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (g) your engagement in fraudulent, illegal or improper activities, (h) third party operator requirement, and/or (i) nonpayment of any fees owed by you in connection with the Services. You may terminate your access and use of the Service upon prior written notice to SmsNXT . In no event shall you be entitled to a refund of any fees paid to SmsNXT hereunder.

SMSNXT ’S PROPRIETARY RIGHTS. Title, ownership rights and all intellectual property rights in and to the Services shall remain the sole and exclusive property of SmsNXT . SmsNXT retains all rights not expressly granted to you in this Agreement. You are prohibited from attempting, or knowingly permitting or encouraging others to attempt, to reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Services except and only to the extent permissible by applicable law despite such prohibition. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the Service (including your SmsNXT I.D., account, account designation, password and other SmsNXT information), use of the Service, or access to the Service.

DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

A. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SmsNXT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

B. SmsNXT MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED (VI) THAT THE INTERNET WILL BE AVAILABLE AND WILL PERFORM.

C. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SmsNXT OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.

LIMITATION OF LIABILITY.

A. YOU EXPRESSLY UNDERSTAND AND AGREE THAT SmsNXT SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SmsNXT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.

B. YOU EXPRESSLY UNDERSTAND AND AGREE THAT SmsNXT ’s service providers disclaim all liability with regard SmsNXT ’s customers, whether direct, indirect, incidental, consequential, punitive or otherwise, arising out of or related to the use of the services provided under this Agreement. You hereby release SmsNXT ’s service providers from and against all claims, liability and damages arising out of or related to Company Customer’s use of the services provided under this Agreement. Company Customer will be solely responsible for any third party claims, damages and liability arising out of, resulting from or caused by Company Customer’s use of the Services provided under this Agreement including, without limitation, any claims, damages and liability arising out of, resulting from or caused by any Message or Content generated by Company Customer.

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 MAY NOT APPLY TO YOU.

NOTICE. SmsNXT may provide you with notices, including those regarding changes to the Agreement, by either text message, e-mail, regular mail, or postings on the Service.

TRADEMARK INFORMATION. The trademarks, service marks, logos and product and service names of SmsNXT are trademarks of SmsNXT , LLC (the “SmsNXT Marks”). You agree not to display or use in any manner, the SmsNXT Marks without SmsNXT ’ express prior written consent.

NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT. SmsNXT respects the intellectual property of others, and we ask our users to do the same. SmsNXT may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to SmsNXT ’ Copyright Agent:

1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

2. a description of the copyrighted work or other intellectual property that you claim has been infringed;

3. a description of where the material that you claim is infringing is located on the site;

4. your address, telephone number, and email address;

5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

6. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Notice of claims of copyright or other intellectual property infringement should be addressed to: SmsNXT , ATTN: SmsNXT Legal, 811 S Central Expwy Richardson TX. You may also email us: legal@smsNXT.com

GENERAL INFORMATION

Choice of Law and Forum. This Agreement and the relationship between you and SmsNXT shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You and SmsNXT agree to submit to the personal and exclusive jurisdiction of the courts located within Kings County, New York.

Waiver and Severability of Terms. The failure of smsNXT to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement 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 this Agreement remain in full force and effect.

Non-Transferability. You agree that your SmsNXT account is non-transferable, and this Agreement may not be assigned by you without SmsNXT ’s prior written consent.

Entire Agreement. This Agreement constitutes the entire agreement between you and SmsNXT and governs your use of the Service, superseding any prior agreements between you and SmsNXT with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services from SmsNXT .

DEFINITIONS

“Network Operator” means any mobile network operator, wireless service provider, wireless carrier, cellular company, Third Party operator or user of a communications network to and from which smsNXT can directly transmit and receive Messages.

“Third Party” means any Person not a Party to this Agreement.

“Third Party Charges” means any fees or charges that any Third Party imposes on SmsNXT in connection with any Services, including without limitation Service and Transit Fees.

“Transit Fees” means any fees imposed by a Network Operator or Third Party for the delivery of any Message

Contact information:

If you would like to contact us to understand more about this Policy or wish to contact us concerning any matter relating to individual rights and your Personal Information, you may send an email to support@smsNXT.com.

Privacy Policy

Services Privacy Policy

Effective date: December 04, 2024

Introduction‍

Welcome!

bluBYT Tech Inc. d/b/a SMSNXT (“SMSNXT”) is committed to protecting the privacy of your information. This Privacy Statement describes our information practices for our publicly accessible websites. For information about our privacy policies governing your use of SMSNXT’s account portal and associated platform services (“Services”), please consult our separate SMSNXT Services Privacy Policy, available at: https://www.SMSNXT.com/services-privacy-policy..

In the Privacy Statement,(the “Company” or "we," "our" or " SMSNXT") referrers to SMSNXT and our affiliates are committed to protecting your privacy.

This Privacy Policy governs how we collect, store, and use your personal data (as defined below), as well as other data and information arising out of and/or relating to you and/or your use of our Services – which include your use of www.smsnxt.com (the “Sites”), and any other technologies, features, mobile applications, and content we offer (collectively, the “Services”).

We are a business-to-business service provider whereby we provide notification and messaging services that allows paid subscribers (each a "Client" and collectively our "Clients") to contact and send messages and information to their user database ("users") through mobile text messaging services and other mobile communication systems. Our Privacy Policy primarily explains our data collection practices when collecting, storing and or using data on behalf of our Clients as a service provider, including the content of text messages. If you are a consumer who received a message delivered by us because one of our Clients uses our Site and you wish to opt-out from receiving additional messages, please visit section Your Privacy Choices (Section 10 of this Privacy Policy) below.

This Privacy Policy does not apply to information regulated by federal law such as the Health Insurance Portability and Accountability Act and similar federal and state laws, including the privacy and security protections of those laws (collectively, “protected health information” or “PHI”). With respect to any PHI that smsnxt may receive from covered entities, smsnxt will comply with its obligations under HIPAA as a business associate and we encourage you to visit the Privacy Policy or Notice of Privacy Practices of your employer.

This Privacy Policy does not apply to third-party websites, products, or services, even if they may link to our Sites or our Sites may link to them. We recommend you review the privacy practices of those third parties before accessing third party websites and sharing any personal data.

In addition, please review the Site's Terms of Service Tab which governs your use of the Site. To keep things simple, we use the same capitalized terms as those set forth in the Terms of Use, and their respective definitions, apply equally to this Privacy Policy.

1. 1. Services Covered

This Privacy Statement describes smsNXT’s information practices relating to your use of our account portal and associated platform services (collectively, the “Services”). For information about our privacy policies governing your use of our websites (“smsNXT Site”), please consult our separate smsNXT Website Privacy Policy, available at: https://www.smsNXT.com/privacy-policy

In this Privacy Statement, “we,” “us,” “our,” or “smsNXT” refers to smsNXT and our affiliates, which includes any person or entity that controls smsNXT, is controlled by smsNXT, or is under common control with SmsNXT(such as a subsidiary, parent company, or employee).

Your use of our Services, and any dispute over Privacy, is subject to this Privacy Statement and our Terms of Service, available at: https://www.smsNXT.com/terms including its applicable limitations on damages and the resolution of disputes.

2. Information smsNXT Collects from You

smsNXT collects information from Customers in order to help provide them with the best possible user experience, including:

We are transparent about data handling practices while emphasizing our commitment to user privacy and compliance with regulations. “We are committed to safeguarding your privacy and ensuring that your personal information is not shared with third parties or affiliates for marketing or promotional purposes. We will only share your opt-in data with subcontractors or outsourced service providers when necessary to fulfill the services we provide you. Any such data sharing will be strictly for the purpose of delivering the requested service and will be handled in accordance with our privacy policy and applicable data protection laws."

2.1 User Consent and Data Privacy for Receiving Messages

Clear Opt-In: End-users must actively choose to opt-in to receive communications, such as by checking an explicit box or clicking a confirmation button that indicates their willingness to receive messages from us. This will be presented alongside the necessary disclosures about data usage.

Transparency of Data Usage: We are committed to transparency. The information provided in our Privacy Policy outlines how we collect, use, store, and protect your personal data. We will never share your personal information with third parties for marketing or promotional purposes, unless explicitly stated and agreed upon by you.

Privacy Policy & Terms of Service: End-users are encouraged to review our Privacy Policy and Terms of Service before consenting to receive messages. These documents explain how we handle personal data, the rights of end-users, and the specific services we provide.

Privacy Policy: Link [www.smsnxt.com/privacy-policy]

Terms of Service: [www.smsnxt.com/terms of service] :

2.2 Third-Party Data Sharing: We do not share your data with third parties or affiliates for marketing purposes. However, we may share end-user opt-in data with our subcontractors or outsourced service providers solely to fulfill the services rendered to you. These third parties are required to comply with our privacy practices and data protection standards.

2.3 Right to Withdraw Consent: End-users may withdraw consent to receive messages at any time by using the’ STOP’ or ‘unsubscribed’ link provided in our communications or by contacting us directly. Withdrawal of consent will not affect the lawfulness of processing based on consent before its withdrawal.

2.4 Conditions in Place:

User Accessibility: Both the Privacy Policy and Terms of Service are easily accessible on our website via prominent links in the footer or during the sign-up/opt-in process.

Clear Instructions: We provide clear instructions on how users can review these documents, and they will be required to acknowledge they have read and understood the policy before providing consent.

Compliance: We ensure full compliance with applicable data protection regulations, such as the GDPR or CCPA, depending on the region where the end-user is located, ensuring their rights are respected.

No Marketing Sharing: We do not share end-user data with third parties for marketing purposes unless explicit, informed consent is given. End-users will always have control over their information and can request details on how their data is used.

2.5 Required Contact Information

When expressing an interest in obtaining additional information about our Services or in registering to use them, smsNXT requests you to provide us with some basic contact information, such as name, company name, address, phone number, and email address.

2.6 Billing Information

When purchasing our Services, smsNXT requires you to provide us with financial qualification and billing information, such as billing name and address, credit card number, and the number of employees within your organization that will be using our Services. We also track your usage of our Services, such as the number of times you use our Services and which ones you use, so we can properly bill you for your use of those Services. Payment information is collected and processed by our third-party payment processors.

2.7 Security, Fraud Prevention, and Network Management

We collect information from you for authentication and security purposes. For example, we collect your IP address when you login to our account portal as part of our “Identity Confirmation” and “IP Range Restrictions” security features. We also collect information from you and your use of our Services that allows us to appropriately manage our networks.

2.8 Content of Your Communications and Related Data

We collect the content of your telecommunications and related information in connection with your use of our Services. To transmit your messages, voice broadcasts, and other communications, we collect the content of what you communicate through our Services and transmit it to the next carrier. Likewise, we collect and transmit related data to the next carrier that is necessary to route and connect your communication to the intended recipient.

2.9 Communications with Our Customer Support Team

When you reach out to our customer support team, we may use the information that you provide us to communicate with you about your use of our Services, to respond to inquiries and complaints, and for other customer service purposes.

2.10 Optional Information

smsNXT may also give you the option of providing additional information to us, such as company annual revenues, total number of employees, and industry. We may offer you the option to import your email address book or calendar. This category of optional information includes any information that you voluntarily provide to us while using the Services.

3. How smsNXT Uses the Information It Collects

smsNXT will not share your information with third parties for marketing, advertising, research, or other purposes.

Depending on how you use the Services, we may use your information to improve our Services, develop new features, and to market and promote our Services. For example, we use this data to:

connect our Customers with one another. For example, we may use your information to offer you the opportunity to connect with other Customers who you might know or who might share similar characteristics, such as location or industry. We may also suggest connections between Customers whose calls, messages, broadcasts, or campaigns target similar Contacts based on analyses of Customer information or other de-identified or aggregated data.

allow Customers to engage, interact, and communicate with one another about their uses of our Services. For example, we may give you the opportunity to notify Customers that you have connected with about your uses of our Services, and you may receive similar notifications from other Customers. These notifications may be initiated by you or by smsNXT.

The next Section discusses certain other categories of information that are regulated by the Federal Communications Commission (FCC). To the extent that this Section and Section 4 conflict, Section 4 is controlling.

4. Consent for Use of Confidential Data and Customer Proprietary Network Information

As described above how we consent end-user to receive messages and we do not share your information with third parties for marketing, advertising, research, or other purposes.

In order to better serve our Customers’ needs and to offer them additional products and services, smsNXT may analyze certain information about their usage of our Services. Such analyses will be based on your anonymized, aggregated data, and any information belonging to you will not be personally identifiable. We will provide the results of any such analyses to you in order to help you understand how other businesses that may be similar to yours are using our Services. The information used for this analysis may include:

4.1 Customer Proprietary Network Information

Information that is made available to the smsNXT solely by virtue of your relationship with us as a telecommunications carrier is known under FCC regulations as Customer Proprietary Network Information ("CPNI"). This carrier- acquired, generated, or maintained information relates to the quantity, technical configuration, type, destination, location, and usage amount of your telecommunications services purchased from smsNXT. It also includes the content of specific telecommunications that Customers make or receive, as well as the related local and toll billing information.

smsNXT acknowledges its duty under federal law and/or any applicable state law to take reasonable measures to safeguard the confidentiality of your CPNI.

4.2 Confidential Information

In some circumstances, smsNXT may include in its analyses Confidential Information (“CI”) that is not covered under the definition of CPNI, such as your subscriber list or published information (listed or unlisted). CI could include information like your name, telephone number, address, and information related to non-telecommunications aspects of our Services. We use your CI solely on an anonymized basis.

By using our Services, you grant smsNXT permission to use any CI and CPNI for the purpose of improving your experience with our Services, providing insight into how you and other Customers use our Services, and offering you any and all products and services available from us, including offerings that are different from those you currently buy from us.

You have a right to disapprove of our uses of your CPNI and CI as set forth above. You may withdraw the permission you have granted us by agreeing to these terms at any time by notifying us in writing at policy@smsNXT.com

5. Sharing of Information Collected

We may share your information with third-party service providers or others who need access to the information to perform their work on our behalf. For example, we may share your information with service providers who host our Sites, analyze aggregate information about our customers, assist us in detecting and deterring fraud, security incidents, or other unlawful activity, and for other business purposes described in the How smsNXT Uses the Information It Collects section. Additionally, smsNXT may share information provided by you with our agents so that these agents can contact you on our behalf. smsNXT may also share this information with our agents to ensure the quality of information provided. smsNXT does not share, sell, rent, or trade personal information with third parties for their own promotional purposes.

smsNXT reserves the right to disclose your information, including personal information, to comply with legal obligations, if required by law, if we reasonably believe that disclosure is necessary to protect our rights, and/or to comply with a judicial proceeding, court order, or legal process, or if we believe that disclosure is reasonably necessary to protect the public from harm.

If we go through a corporate sale, merger, reorganization, dissolution, or similar event, the personal information that we gather from you may be part of the assets transferred or shared in connection with the due diligence for any such transaction. Any acquirer or successor of SmsNXT may continue to use that data as set forth in this Privacy Statement.

6. Customers’ Contact Data

SmsNXT Customers use our Services to host data and information. Such information usually includes Customers’ Contact Data, such as data about the contacts they wish to communicate with by using our platform and Services. SmsNXT processes Customers’ Contact Data on behalf of our Customers. We only use Customers’ Contact Data for the purpose of providing Services to our Customers and as otherwise permitted under our applicable agreements with our Customers.

6.1. Release of Contact Data. By uploading your Contact Data to our Services, you release this information to us for purposes of providing the Services.

6.2. Right to Store and Use the Contact Data. By uploading your Contact Data to our Services, you represent that you have the right to store and otherwise use that Contact Data on our Services, as well as the right to communicate with the Contact using that information.

6.3. Customer Responsibility for Maintaining a Secure Account. Customers are responsible for maintaining the security and confidentiality of their SmsNXT usernames and passwords. This is important to protect the confidentiality of their Contact Data.

6.4. Requests for Deletion of Contact Data by the Contact. Any Contact of a SmsNXT Customer who would like their data to be deleted from a Customer’s account should send such requests directly to the Customer.

7. Friend Referral

You may elect to use our referral service to inform their friends about our Sites and Services. When using the referral service, SmsNXT requests the friend’s name and email address. We will automatically send the friend a one-time email inviting him or her to visit our Sites. We do not store this information. You are responsible for obtaining the consent of any friend or referral that you provide to us.

8. Security

SmsNXT uses reasonable precautions proper security measures to protect the information we collect through the Services from unauthorized access, disclosure, alteration, and destruction. Please be aware that, despite our efforts, no data security measures can guarantee security.

You should take steps to protect against unauthorized access to your password, phone, and computer by, among other things, signing off after using a shared computer, choosing a robust, unique password that nobody else knows or can easily guess, and keeping your log-in and password private. We are not responsible for any lost, stolen, or compromised passwords or for any activity on your account via unauthorized password activity.

9. Correcting and Updating Your Information

Customers may update or change their registration information by editing their user or organization record. To update a user profile, please visit the smsNX.com/login, sign in with your login information, and then click "My Account" and click “Personal Info.” To discontinue your account and request that the information you maintained on our Services be returned to you, please email policy@smsNXT.com. Requests to access, change, or delete your information will be handled to the extent possible within 30 days.

10. Notice Concerning Children

Our Services are not designed for children under thirteen (18). If we discover that a child under thirteen (18) has provided us with personal information, we will delete such information from our systems.

11. Our Role as a Service Provider Under the CCPA

When we operate as a service provider under the California Consumer Privacy Act (“CCPA”), we process or maintain personal information on behalf of our business customers that provide personal information to us in compliance with written contracts that we enter into with our business customers directly. In accordance with the CCPA, we will only use and disclose personal information we receive from our business customers as necessary to provide the Services to our business customers, to retain or employ another service provider where that service provider meets the requirements of a service provider under the CCPA, for our internal use to build and improve the quality of our Services as permitted under the CCPA, to detect security incidents or protect against fraudulent or illegal activity, and for the purposes enumerated under the CCPA or as otherwise required by the CCPA.

In general, when we operate as a service provider, we will handle requests on behalf of our business Customers as they require under the applicable agreement we have in place with them. Where applicable, we may act on behalf of our business Customers according to their instructions or by responding to a consumer that the request cannot be acted upon because the request has been sent to a service provider.

12. Communications Preferences

We may send periodic promotional e-mails to you. You may manage your receipt of marketing and non-transactional communications by clicking here or by clicking on the ‘STOP’ or "unsubscribe" link located at the bottom of our marketing emails. Additionally, you may send a request specifying your communications preferences to support@smsNXT.com

If you opt-out of receiving promotional e-mails, we may still send you e-mails about your account or any services you have requested or received from us.

13. Changes to this Privacy Statement

This Privacy Statement is current as of the Effective Date set forth above. We may change this Privacy Statement from time to time, so please be sure to check back periodically. We will post any changes to this Privacy Statement on our Sites. SmsNXT will provide notification of material changes to this Privacy Statement on our Sites at least thirty (30) days prior to the change(s) taking effect.

Contacting Us

Questions regarding this Privacy Statement or the information practices related to our Services should be directed to SmsNXT Privacy by emailing policy@smsNXT.com or by mailing SmsNXT Privacy, 811 S. Central Expwy Richardson Texas-75080.‍

Changes to this Privacy Policy

This Privacy Policy may be amended from time to time, consistent with the requirements of the Safe Harbor Principles. Appropriate public notice will be given concerning material amendments or changes to this Policy. We encourage you to periodically review this page for the latest information on our privacy practices. This Privacy Policy was last updated on the date indicated above.

We will not use your previously collected Personal Information in a manner materially different than indicated at the time it was collected without your consent. To the extent any provision of this Privacy Policy is found by a competent tribunal to be invalid or unenforceable, such provision shall be severed to the extent necessary for the remainder to be valid and enforceable.

If you have any questions about this Privacy Policy, the practices of this Site, or your dealings with this Site or our Services, please contact us at policy@smsNXT.com Alternatively or by mailing SmsNXT Privacy, 811 S. Central Expwy Richardson Texas-75080.

Data Processing Agreement

Data Processing Agreement

SMSNXT

This Data Processing Agreement ("DPA") between smsnxt and Company forms part of the Agreement and is effective as of September November-20-204.

1. Definitions

All capitalized terms not defined in this DPA will have the meanings set forth in the Agreement. Terms used but not defined in this DPA, such as “controller,” “data subject,” “personal data,” “processing,” and “processor” will have the same meaning as set forth in the EU Data Protection Law.

"Affiliate" means an entity that directly or indirectly controls, is controlled by or is under common control with an entity.

"Agreement" means smsnxt’s Terms of Use, which govern the provision of the Services to Company.

"Company Data" means any personal data that smsnxt processes on behalf of Company as a processor in the course of providing Services, as more particularly described in this DPA.

“Consent” means a Data Subject’s freely given, specific, informed and unambiguous indication of the Data Subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the Processing of Personal Data relating to him or her.

“Controller” means the entity that determines the purposes and means of the Processing of Personal Data. “Controller” includes equivalent terms in other Data Protection Law, such as the CCPA-defined term “Business” or “Third Party,” as context requires.

“Data Protection Law” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement, including Regulation 2016/679 (General Data Protection Regulation) (“GDPR”),

“Data Subject” means an identified or identifiable natural person.

‍“De-identified Data” means a data set that does not contain any Personal Data. Aggregated data is De-identified Data. To “De-identify” means to create De-identified Data from Personal Data.

"EEA" means the European Economic Area, United Kingdom and Switzerland.

“Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a Data Subject. “Personal Data” includes equivalent terms in Data Protection Law, such as the CCPA-defined term “Personal Information,” as context requires.

“Personal Data Breach” means a breach of security of the Services leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Company Data.

"Privacy Shield" means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017 respectively.

"Privacy Shield Principles" means the Privacy Shield Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of 12 July 2016 (as may be amended, superseded or replaced).

“Process” or “Processing” any operation or set of operations that a party performs on Personal Data, including collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

“Processor” means an entity that processes Personal Data on behalf of another entity. “Processor” includes equivalent terms in other Data Protection Law, such as the CCPA-defined term “Service Provider,” as context requires.

"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Company Data.

“Sensitive Data” means the following types and categories of data: data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership; genetic data; biometric data; data concerning health, including protected health information governed by the Health Insurance Portability and Accountability Act; data concerning a natural person’s sex life or sexual orientation; government identification numbers (e.g., SSNs, driver’s license); payment card information; nonpublic personal information governed by the Gramm Leach Bliley Act; an unencrypted identifier in combination with a password or other access code that would permit access to a data subject’s account; and precise geolocation.

"Services" means any product or service provided by smsnxt to Company pursuant to the Agreement.

“Standard Contractual Clauses” means the European Union standard contractual clauses for international transfers from the European Economic Area to third countries, Commission Implementing Decision (EU) 2021/914 of 4 June 2021.

“Subprocessors” means the other processors that are used by smsnxt to process Personal Data.

2. Relationship with the Agreement

2.1 The parties agree that the DPA shall replace any existing data processing agreement the parties may have previously entered into in connection with the Services.

2.2 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.

2.3 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the Agreement.

2.4 Company further agrees that any regulatory penalties incurred by smsnxt in relation to the Company Data that arise as a result of, or in connection with, Company’s failure to comply with its obligations under this DPA or any applicable Data Protection Laws shall count toward and reduce Smsnxt’s liability under the Agreement as if it were liability to the Company under the Agreement.

2.5 No one other than a party to this DPA, its successors and permitted assignees shall have any right to enforce any of its terms.

2.6 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.

3. Scope and Applicability of this DPA

3.1 This DPA applies where and only to the extent that smsnxt processes Company Data that originates from the EEA or that is otherwise subject to EU Data Protection Law on behalf of Company as a processor in the course of providing Services pursuant to the Agreement.

4. Roles and Scope of Processing

4.1 Role of the Parties. As between smsnxt and Company, Company is controller of Company Data, and smsnxt shall process Company Data only as a processor acting on behalf of Company.

4.2 Company Processing of Company Data. Company agrees that (i) it shall comply with its obligations as a controller under Data Protection Laws in respect of its processing of Company Data and any processing instructions it issues to smsnxt; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for smsnxt to process Company Data and provide the Services pursuant to the Agreement and this DPA.

4.3 smsnxt Processing of Company Data. smsnxt Process Company Data only for the purposes described in this DPA and only in accordance with Company’s documented, lawful instructions. The parties agree that this DPA and the Agreement set out the Company’s complete and final instructions to Smsnxt in relation to the Processing of Company Data under the Agreement and Processing outside the scope of these instructions (if any) will require prior written agreement between Company and smsnxt. smsnxt is prohibited from: (i) Selling Company Data; (ii) retaining, using, or disclosing Company Data for any purpose other than for the specific purpose of performing the Services specified in the Agreement, including retaining, using, or disclosing the Company Data for a commercial purpose other than providing the Services specified in the Agreement; or (iii) retaining, using, or disclosing the Company Data outside of the direct business relationship between Company and smsnxt. smsnxt will promptly inform Company if following Company’s instructions would result in a violation of Data Protection Law or where smsnxt must disclose Company Data in response to a legal obligation, unless the legal obligation prohibits smsnxt from making such disclosure. Notwithstanding anything to the contrary in this Section, smsnxt may Process Company Data as necessary to detect data security incidents or protect against fraudulent or illegal activity and to build or improve the quality of its products and services, provided that in the course of these activities smsnxt will not (i) permit any third party (other than smsnxt’s service providers or except as instructed by Company) to access Company Data or (ii) use the Company Data to modify or add to Personal Information it collected from a source that is not Company.

4.4 Details of Data Processing

1. Subject matter: The subject matter of the data processing under this DPA is the Company Data.

2. Duration: As between Smsnxt and Company, the duration of the data processing under this DPA is until the termination of the Agreement in accordance with its terms.

3. Purpose: The purpose of the data processing under this DPA is the provision of the Services to the Company and the performance of Smsnxt's obligations under the Agreement (including this DPA) or as otherwise agreed by the parties

4. Nature of the processing: Smsnxt provides web application text messaging, analytics technology and other related services, as described in the Agreement.

5. Categories of data subjects: Any individual accessing and/or using the Services through the Company's account ("Users"); and any individual: (i) whose information is stored on or c ollected via the Services, or (ii) to whom Users send messages or otherwise engage or communicate with via the Services (collectively, "End Users").

6. Types of Company Data:

   1. Company and Users: identification data potentially including name, phone number, and email address.

   2. End Users: identification content includes name, phone number, email address, company name, website, and other information provided to Company and Users by End Users.

4.5 Description of the Processing and Subprocessors

Processing Activity

Status of the Parties

Categories of Personal Data Processed

Categories of Sensitive Data Processed

Applicable SCCs Module

Company discloses Personal Data to Smsnxt in connection with the Services.

Company is a Controller. Smsnxt is a Processor.

Any Personal Data Company discloses to Smsnxt.

None

Module 2 Module 3, if Company acts as a Processor to another Controller.

End Users disclose Personal Data to Company using Smsnxt service

Smsnxt is a Processor. Company is a Controller.

Any Personal Data End User discloses to Company.

None

Module 2

Smsnxt provides professional services to Company.

Smsnxt is a Controller. Company is a Controller.

Name, email address, user ID.

None

Module 1

Smsnxt creates address book data for Company’s End Users and collects usage information from them.

Smsnxt is a Controller. Company is a Controller.

Phone number, name.

None

Module 1

Company contacts Smsnxt for support.

Company is a Controller. Smsnxt is a Controller.

Name, email address, user ID.

None

Module 1

The parties Process Personal Data of their representatives to, e.g., (a) administer and provide the Services; (b) manage invoices; (c) manage the Agreement and resolve any disputes relating to it; (d) respond and/or raise general queries; and (e) comply with their respective regulatory obligations.

Smsnxt is a Controller. Company is a Controller.

Name, title, and contact information.

None

Module 1

‍

4.6 Information for International Transfers

Frequency of Transfer

Continuous for all Personal Data.

Retention Periods

Smsnxt retains Personal Data it collects as a Controller for as long as Smsnxt has a business purpose for it or for the longest time allowable by applicable law.

Smsnxt retains Personal Data it collects or receives from Company as a Processor for the duration of the Agreement and consistent with its obligations in this DPA.

Standard Contractual Clauses

• Clause 7: The parties do not permit docking.

• Clause 9, Module 2(a): The parties select Option 2. The time period is 5 days.

• Clause 9, Module 3(a): The parties select Option 2. The time period is 5 days.

• Clause 11(a): The parties do not select the independent dispute resolution option.

• Clause 17: The parties agree that the governing jurisdiction is the Member State in which the data exporter is established.

• Clause 18: For Modules 1-3, the parties agree that the forum is the Member State in which the data exporter is established.

• Annex I(A): The data exporter is Company. The data importer is Smsnxt. Contact details for the parties are part of the Agreement.

• Annex I(B): The parties agree that Schedule 1 describes the transfer.

• Annex I(C): The competent supervisory authority is the supervisory authority that has primary jurisdiction over the data exporter.

• Annex II: The parties agree that Schedule 2 describes the technical and organizational measures applicable to the transfer.

Localizing the Standard Contractual Clauses

• For Switzerland

• The parties adopt the GDPR standard for all data transfers.

• Clause 13 and Annex I(C): The competent authorities under Clause 13, and in Annex I(C), are the Federal Data Protection and Information Commissioner and, concurrently, the EEA member state authority identified above.

• Clause 17: The parties agree that the governing jurisdiction is the Member State in which the data exporter is established.

• Clause 18: For Modules 1-3, the parties agree that the forum is the Member State in which the data exporter is established. The parties agree to interpret the Standard Contractual Clauses so that Data Subjects in Switzerland are able to sue for their rights in Switzerland in accordance with Clause 18(c).

• The parties agree to interpret the Standard Contractual Clauses so that “Data Subjects” includes information about Swiss legal entities until the revised Federal Act on Data Protection becomes operative.

• For the United Kingdom

• The parties agree that the Standard Contractual Clauses are deemed amended to the extent necessary that they operate for transfers from the United Kingdom to a Third Country and provide appropriate safeguards for transfers according to Article 46 of the United Kingdom General Data Protection Regulation (“UK GDPR”). Such amendments include changing references to the GDPR to the UK GDPR and changing references to EU Member States to the United Kingdom.

• Clause 17: The parties agree that the governing jurisdiction is the United Kingdom.

• Clause 18: For Modules 1-3, the parties agree that the forum is the courts of England and Wales. The parties agree that Data Subjects may bring legal proceedings against either party in the courts of any country in the United Kingdom.

‍

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5. Subprocessing

5.1 Authorized Subprocessors. Company agrees that Smsnxt may engage Subprocessors to process Company Data on Company's behalf. The Subprocessors currently engaged by Smsnxt and authorized by Company are listed in Attachment A.

5.2 Subprocessor Obligations. Smsnxt shall obtain Subprocessor data protection terms that require the Subprocessor to protect the Company Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA.

6. Security

6.1 Security Measures. Smsnxt shall implement and maintain appropriate technical and organizational security measures to protect Company Data from Security Incidents and to preserve the confidentiality, integrity, and availability of the Company Data, in accordance with Smsnxt’s security standards.

6.2 Updates to Security Measures. Company is responsible for reviewing the information made available by Smsnxt relating to data security and making an independent determination as to whether the Services meet Company’s requirements and legal obligations under Data Protection Laws. Company acknowledges that the Security Measures are subject to technical progress and development and that Smsnxt may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Company.

6.3 Company Responsibilities. Notwithstanding the above, Company agrees that except as provided by this DPA, Company is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Company Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Company Data uploaded to the Services.

7. Compliance Verification

7.1 Upon reasonable request, Smsnxt will verify its compliance with this DPA, provided that Company shall not exercise this right more than once per year.

8. International Transfers

8.1 Some jurisdictions require that an entity transferring Personal Data to, or accessing Personal Data from, a foreign jurisdiction take extra measures to ensure that the Personal Data has special protections (an “International Data Transfer Mechanism”). The parties will comply with any International Data Transfer Mechanism that may be required by applicable Data Protection Law, including the Standard Contractual Clauses. Before either party transfers to the other party or permits the other party to access Personal Data located in a jurisdiction that requires an International Data Transfer Mechanism, the transferring party will notify the other party of the relevant requirement and the parties will work together in good faith to fulfill the requirements of that International Data Transfer Mechanism.

8.2 If the International Data Transfer Mechanism on which the parties rely is invalidated or superseded, the parties will work together in good faith to find a suitable alternative.

8.3 Data center locations. Smsnxt may transfer and process Company Data anywhere in the world where Smsnxt, its Affiliates or its Subprocessors maintain data processing operations. Smsnxt shall at all times provide an adequate level of protection for the Company Data collected, transferred, processed, or retained in accordance with the requirements of Data Protection Laws.

8.4 Privacy Shield and Standard Contractual Clauses. To the extent that Smsnxt processes any Company Data protected by EU Data Protection Law under the Agreement and/or that originates from the EEA, to the United States, a country that has not been designated by the European Commission or Swiss Federal Data Protection Authority (as applicable) as providing an adequate level of protection for personal data, the parties acknowledge that Smsnxt shall be deemed to provide adequate protection (within the meaning of EU Data Protection Law) for any such Company Data by virtue of having self-certified its compliance with Privacy Shield and the Standard Contractual Clauses. Smsnxt agrees to protect such personal data in accordance with the requirements of the Privacy Shield Principles and the Standard Contractual Clauses. If Smsnxt is unable to comply with this requirement, Smsnxt shall inform Company.

8.5 Alternative Transfer Mechanism. The parties agree that the data export solution identified in Section 8.4 shall not apply if and to the extent that Smsnxt adopts an alternative data export solution with Company for the lawful transfer of personal data (as recognized under EU Data Protection Laws) outside of the EEA (“Alternative Transfer Mechanism”), in which event, the Alternative Transfer Mechanism shall apply instead (but only to the extent such Alternative Transfer Mechanism extends to the territories to which personal data is transferred).

9. Additional Security

9.1 Confidentiality of processing. Smsnxt shall ensure that any person who is authorized by Smsnxt to process Company Data (including its staff, agents and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty).

9.2 Security Incident Response. Upon becoming aware of a Security Incident, Smsnxt shall notify Company without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by Company.

10. Changes to DPA and Subprocessors

10.1 Changes to DPA. Smsnxt may be required to update this DPA in order to comply with applicable law, and in such case Smsnxt will provide reasonable notice of any such updates.

10.1 Changes to Subprocessors. Smsnxt shall (i) provide an up-to-date list of the Subprocessors it has appointed upon written request from Company; and (ii) notify Company (for which email shall suffice) if it adds Subprocessors at least 10 days prior to any such changes. Company may object in writing to Smsnxt’s appointment of a new Subprocessor within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such an event, the parties shall discuss such concerns in good faith with a view to achieving resolution. If this is not possible, Company may suspend or terminate the Agreement (without prejudice to any fees incurred by Company prior to suspension or termination).

11. Return or Deletion of Data

11.1 Upon termination or expiration of the Agreement, Smsnxt shall (at Company's election) delete (after providing Company the ability to download, pursuant to the Agreement) all Company Data (including copies) in its possession or control, save that this requirement shall not apply to the extent Smsnxt is required by applicable law to retain some or all of the Company Data, which Company Data Smsnxt shall securely isolate and protect from any further processing, except to the extent required by applicable law.

12. Cooperation

12.1 The Services provide Company with a number of controls that Company may use to retrieve, correct, delete or restrict Company Data, which Company may use to assist it in connection with its obligations under the GDPR, including its obligations relating to responding to requests from data subjects or applicable data protection authorities. To the extent that Company is unable to independently access the relevant Company Data within the Services, Smsnxt shall (at Company's expense) provide reasonable cooperation to assist Company to respond to any requests from individuals or applicable data protection authorities relating to the processing of personal data under the Agreement. In the event that any such request is made directly to Smsnxt, Smsnxt shall not respond to such communication directly without Company's prior authorization, unless legally compelled to do so. If Smsnxt is required to respond to such a request, Smsnxt shall promptly notify Company and provide it with a copy of the request unless legally prohibited from doing so.

12.2 If a law enforcement agency sends Smsnxt a demand for Company Data (for example, through a subpoena or court order), Smsnxt shall attempt to redirect the law enforcement agency to request that data directly from Company. As part of this effort, Smsnxt may provide Company’s basic contact information to the law enforcement agency. If compelled to disclose Company Data to a law enforcement agency, then Smsnxt shall give Company reasonable notice of the demand to allow Company to seek a protective order or other appropriate remedy unless Smsnxt is legally prohibited from doing so.

12.3 To the extent Smsnxt is required under EU Data Protection Law, Smsnxt shall (at Company's expense) provide reasonably requested information regarding the Services to enable the Company to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.

Attachment A

List of Smsnxt Subprocessors

The list of Subprocessors, available at https://smsnxt.com/legal/sub-processors, describes the purpose of each data sub-processor.

Security

smsNXT is committed to controlling security risks and protecting customers. Our security team employs coordinated strategies to ensure data security is prioritized.

Encryption

smsNXT’s data is encrypted in transit and at rest. All HTTP traffic is encrypted using Secure Socket Layer (SSL) connections, and traffic is only accepted on port 443. smsNXT’s SSL status can be verified. All data and associated keys stored at rest in our databases are encrypted using the industry-standard AES-256 algorithm. Static files, such as images and other documents, are persisted using AWS S3 storage and encrypted before being stored.

Secure Cloud Infrastructure

All application traffic is proxied through Cloudflare using a Full (strict) SSL/TLS end-to-end encrypted connection, utilizing origin certificates to ensure non-repudiation of the application’s source. All of smsNXT’s application and database storage is safely contained within Amazon Web Services’ (AWS) infrastructure, which is accredited by ISO 27001, SOC 1 and SOC 2/SSAE 16/ISAE 3402 (Previously SAS 70 Type II), and PCI Level 1.

Continuous Security Monitoring

SMSNXT continuously monitors its infrastructure-as-a-service (IAAS), software-as-a-service (SAAS) environments, and web application to detect potential security incidents in real time. Our security staff quickly responds to security alerts using the U.S. Department of Energy’s six-step process for incident handling.

Access Control

SMSNXT employees must be explicitly authorized to access company information systems before access is permitted. Access is strictly provisioned according to job function and is removed upon a change in job function or termination. Multifactor authentication is enforced for all SMSNXT employees.

Third-Party Testing

smsNXT uses third-party testers to identify web vulnerabilities. If web vulnerabilities are found, we fix the vulnerability, and third party testers confirm successful remediation.

Background Checks

smsNXT performs thorough background checks on all new employees to ensure that customer data is handled with care.

Additional Resources

• See our guides for enabling Multi-Factor Authentication, Automatic Sign Off, and setting up Roles in SMSNXT.

• View our Data Processing Agreement (DPA).

• If you need to contact our Data Protection Officer, please email policy@smsnxt.com.

Government Data Request Policy

SMSNXT

1. Introduction

1.1 This Government Data Request Policy sets out SMSNXT’s procedure for responding to a request received from a law enforcement or other government authority (together the “Requesting Authority“) to disclose personal information processed by SMSNXT (hereafter “Data Disclosure Request“) which is aligned with our Binding Corporate Rules: Government Data Request Procedure.

1.2 Where SMSNXT receives a Data Disclosure Request, it will handle that Data Disclosure Request in accordance with this policy. . If applicable data protection law(s) require a higher standard of protection for personal information than is required by this policy, SMSNXT will comply with the relevant requirements of those applicable data protection law(s).

2. General principle on Data Disclosure Requests

2.1 As a general principle, SMSNXT does not disclose personal information in response to a Data Disclosure Request unless either:

• it is under a compelling legal obligation to make such disclosure; or

• taking into account the nature, context, purposes, scope and urgency of the Data Disclosure Request and the privacy rights and freedoms of any affected individuals, there is an imminent risk of serious harm that merits compliance with the Data Disclosure Requests in any event.

2.2 For that reason, unless it is legally prohibited from doing so or there is an imminent risk of serious harm, SMSNXT will notify and consult with the competent data protection authorities (and, where it processes the personal information on behalf of a Customer, the Customer) to address the Data Disclosure Request.

3. Handling of a Data Disclosure Request

3.1 If a SMSNXT Group Member receives a Data Disclosure Request, the recipient of the request must pass it to SMSNXT’s Data Privacy Officer and Privacy Team (collectively, the “Privacy Team”) immediately upon receipt, indicating the date on which it was received together with any other information that may assist the Privacy Team to respond to the request.

3.2 The Requesting Authority’s request does not have to be made in writing, made under a Court order, or mention data protection law to qualify as a Data Disclosure Request. Any Data Disclosure Request, however made, must be notified to the Privacy Team for review.

3.3 SMSNXT’s Privacy Team will carefully review each and every Data Disclosure Request on a case-by-case basis. The Privacy Team will liaise with the legal department and outside counsel as appropriate to deal with the request to determine the nature, context, purposes, scope and urgency of the Data Disclosure Request, and its validity under applicable laws, to identify whether action may be needed to challenge the Data Disclosure Request and/or to notify the Customer and/or competent data protection authorities in accordance with paragraph 4.

4. Notice of a Data Disclosure Request

4.1 Notice to the Customer

4.1.1 If a request concerns personal information for which a Customer is the controller, SMSNXT will ordinarily ask the Requesting Authority to make the Data Disclosure Request directly to the relevant Customer. If the Requesting Authority agrees, SMSNXT will support the Customer in accordance with the terms of its contract to respond to the Data Disclosure Request.

4.1.2 If this is not possible (for example, because the Requesting Authority declines to make the Data Disclosure Request directly to the Customer, does not know the customer’s identity, or if SMSNXT is not permitted by law to disclose the Data Disclosure Request), SMSNXT will notify and provide the Customer with the details of the Data Disclosure Request prior to disclosing any personal information, unless legally prohibited from doing so or where an imminent risk of serious harm exists that prohibits prior notification.

4.2 Notice to the competent data protection authorities

4.2.1 If the Requesting Authority is in a country that does not provide an adequate level of protection for the personal information in accordance with applicable data protection laws, then SMSNXT will also put the request on hold to notify and consult with the competent data protection authorities, unless legally prohibited or where an imminent risk of serious harm exists that prohibits prior notification.

4.2.2 Where SMSNXT is prohibited from notifying the competent data protection authorities and suspending the request, SMSNXT will use its best efforts (taking into account the nature, context, purposes, scope, and urgency of the request) to inform the Requesting Authority about its obligations under applicable data protection law and to obtain the right to waive this prohibition. Such efforts may include asking the Requesting Authority to put the request on hold, so that SMSNXT can consult with the competent data protection authorities, or to allow disclosure to specified personnel at SMSNXT’s customer, and may also, in appropriate circumstances, include seeking a court order to this effect. SMSNXT will maintain a written record of the efforts it takes.

5. Transparency reports

5.1 Upon request from an existing customer, SMSNXT commits to providing an annual report (a “Transparency Report”), which reflects the number and type of Data Disclosure Requests it has received for the preceding 12 months, as may be limited by applicable law or court order.

6. Bulk transfers

6.1 In no event will any Group Member transfer Personal Information to a Requesting Authority in a massive, disproportionate, and indiscriminate manner that goes beyond what is necessary in a democratic society.

Partner Affiliation

Partner & affiliate program terms & conditions

SMSNXT Partner Program (the “Program”)

Standard Terms and Conditions

Effective Date: 11/20/2024

PLEASE READ THIS AGREEMENT CAREFULLY! THIS AGREEMENT IS A LEGAL AND CONTRACTUALLY BINDING AGREEMENT. YOU INDICATE YOUR WILLINGNESS TO BE BOUND BY THIS AGREEMENT BY SUBMITTING A REGISTRATION APPLICATION (DEFINED BELOW) FOR THE PROGRAM. BY REGISTERING FOR THE PROGRAM, YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH IN THIS AGREEMENT, AND THAT YOU ARE AUTHORIZED TO AGREE TO THIS AGREEMENT.

These SMSNXT Partner Program Standard Terms and Conditions (the “Terms and Conditions”) are made by and between SMSNXT, Inc. (“Company”, “SMSNXT”, “we”, “our” or “us”), and you, as a partner (“you”, “your” or “Partner”). These Terms and Conditions shall be referred to herein as the “Agreement”. This Agreement governs your participation as a SMSNXT Partner in this Program. The Program permits Partners to promote SMSNXT’s services and platform, available at www.SMSNXT.com (the “Services”) and earn Referral Fees (defined below) for new customers it refers to the Services as set forth below. In consideration of the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

1. PROGRAM PARTICIPATION.

a. Program Registration and Approval. Program Registration and Approval. You may sign up or apply to become a Program Partner by filling out the registration materials found at www.smsnxt.com/partners and submitting it to the Company. You understand and agree that the Company will use a variety of methods to evaluate your application and confirm your eligibility to become a Program Partner. By signing up or submitting your Registration Application to become a Program Partner, you explicitly give permission to the Company and its vendors to independently confirm your eligibility to participate in the Program. . Company reserves the right to continue to verify the accuracy of your Registration Application at any time as long as you are a Program Partner. We may deny you participating in the Program, in our sole discretion, for any or no reason, without notice and without liability. As part of your Registration Application to become a Partner, you may be requested to provide the following information:

• A list of domains that you intend to use for the purpose of your participation in the Program, and information as to how you will use them, including, but not limited to, content and design;

• Information about your area of operational/commercial focus;

• Your marketing methods and target market;

• Proof of identification including, where possible, a government-issued identification number;

• Payment details; and

• Any other information which the Company, at its sole discretion, deems relevant to the assessment of your Registration Application.

Provided you have complied with all of Company’s requirements and requests for information, you will be notified in a timely manner of Company’s acceptance or rejection thereof. you hereby consent, and hereby provide the requisite authority, to Company, to independently verify, with any third party, any information provided to it by you in terms of this Agreement and any other information as requested by Company during the Term and from time to time.

b. Partner Participation in the Program. If you are approved to become a Program Partner, we grant you the non-exclusive right to participate in the Program to promote and advertise the Services, subject to the terms and conditions hereof. Once you have complied with our requirements and you have been notified of your acceptance as a Partner, your Partner account will be activated and you will thereafter be granted a licence, subject to the terms of this Agreement, to operate as a Partner and participate in the Program for the Term. The granting, and on-going use of the licence, the participation in the Program, and the on-going rights in respect of both, are subject to any conditions contained in this Agreement. We reserve the right to terminate this Agreement, your Program account and your participation in the Program at any time and for any or no reason, in our sole and absolute discretion by us, or our third party service Company, by giving you notice at your email address that we have in our records for you. The reasons we may terminate this Agreement, your Program account and your participation in the Program, include, without limitation, (i) failure to comply with the terms of this Agreement, (ii) failure to keep your website up to date, or (iii) your website or other Partner Materials (defined below) incorporate images or content that we determine to be detrimental to the SMSNXT brands or incorporate materials that may infringe or assist others to infringe on any copyright, trademark, other intellectual property or any other rights of any third party. In addition to this Agreement, you acknowledge that you have carefully read and agree to comply with all of SMSNXT’s policies and procedures as may be provided to you or are available on the Services from time to time, including, without limitation, the Service’s Terms of Use posted on www.SMSNXT.com, all of which are incorporated into and made part of this Agreement. you agree that if a conflict exists between this Agreement and any of the terms and conditions of the documents referenced in the previous sentence, this Agreement will control. you shall participate in any training which the Company provides and requests you to participate in. you are restricted to one (1) Partner account only.

2. LICENSES.

1. Company License. We grant you a non-exclusive, non-transferable, revocable license to use our designated and approved trademarks, service marks, logos, links, Company marketing materials and other intellectual property (all only in the form(s) provided to you by us for use in connection with the Program) (collectively, “Licensed Materials”) solely: (i) to promote and advertise the Services in connection with the Program in accordance with this Agreement, and (ii) if you are a member in good standing of the Program. you may not alter, modify, or change the Licensed Materials in any way without our express prior written approval. you will not make any specific use of any Licensed Materials for purposes other than advertising and promoting the Services. you agree that you will not present the Licensed Materials in combination with any other name or mark, in connection with your own goods or services, or in any manner that may suggest or imply that you or your goods or services are supplied by, sponsored by or endorsed by us without first obtaining our prior written approval in each instance. you agree not to use the Licensed Materials, the Services, content or other materials or property in conjunction with, or to promote any activity that, in our sole discretion, is detrimental to the Company’s brands, including, without limitation, in any manner that is disparaging or that otherwise portrays us in a negative light. The determination of whether you are using the Licensed Materials, the Services, your website, or any other content or materials related to this Agreement in the best interest of the Company is left to our sole and absolute discretion. We reserve all of our rights in the Licensed Materials and our other proprietary rights. your use of our Licensed Materials does not give you any rights in them other than as described in this Agreement. We may revoke your license to the Licensed Materials at any time, upon notice to you, at which time you agree to immediately cease using the Licensed Materials. We may from time to time email you with any changes or updates to the Licensed Materials, the Program and/or Company’s related products and services and you must promptly comply with any directions from us in connection therewith.

2. Partner License. You grant us a non-exclusive, royalty-free, unrestricted, unconditional, unlimited, worldwide right and license (with right to sublicense) to use your approved names, titles, logos, trademarks, trade names, and service marks, domain names, copyrights, and any other materials created or used by you (which must be approved by us in writing) in connection with the Program (collectively, the “Partner Materials”) to advertise, market, promote and publicize in any manner the Program, your participation in the Program and/or to promote Company or our Services. The Company will not be required to use the Partner Materials or to advertise, market, promote or publicize your affiliation with the Program. You represent and warrant that the Partner Materials, your website and any other materials created or used by you in connection with the Program will not contain anything that, in Company’s sole judgment, violates any law, regulation or ordinance or third party rights, is considered to be defamatory or constitute libel or slander, may be inconsistent with Company’s public image, may be in bad taste, are indecent or in Company’s opinion otherwise objectionable, or may tend to bring disparagement, ridicule, or scorn upon Company or any Partner and/or subsidiary companies. you are responsible for ensuring that the Partner Materials and any other materials posted on your website do not violate, infringe or misappropriate copyrights, right of publicity, trademark rights or other rights of us or any third party. you must have express written permission to use another party’s intellectual, proprietary or contractual rights, or to use another’s name, social media handles, image, voice or likeness and you agree to provide such written permission to us promptly upon request. you will be solely responsible for the development, operation and maintenance of your site, for all materials that appear on your site, and for all marketing and promotion you conduct on your website. you may design your Partner Materials for the sole purpose of directing customers to the Services, subject to the following terms and conditions: (i) you will strictly adhere to the instructions and guidelines as set out in the guidelines issued to you pertaining to the use and application of the Partner Materials, and you shall first obtain our prior written approval or instructions on how to proceed; (ii) you will furnish us, upon written request, with such information and reports, including, but not limited to, samples of any Partner Materials, as may be required by us in connection with your use of any of Licensed Materials; and (iii) Once approved by us, any proposed changes to the Partner Materials you may wish to make shall be submitted to us for prior written approval prior to the use or publication thereof.

3. Ownership. Subject to the limited licenses above, as between Company and you, each party will exclusively own and control its respective intellectual property. All goodwill that accrues from the licensed use of a party’s trademarks hereunder will vest exclusively to the party that owns the trademark. you acknowledge and agree that all information relating to any referred customer is the exclusive and sole property of the Company with which such customer is registered, and that you shall have no rights therein whatsoever, excluding any information that you gather independently, outside of your participation in the Program.

3. RESTRICTIONS.

Compliance with Law. Without limiting anything else in this Agreement, and notwithstanding anything to the contrary, you will at all times comply with all government laws and regulations, and voluntary industry standards, applicable to the Program and your site and Partner Materials, including, without limitation, labor and employment laws, privacy and data protection laws, anti-money laundering and sanctions laws and regulations and anti-bribery and corruption laws, such as:

• Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act of 2003;

• Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices Guidelines for Messaging;

• Cellular Telecommunications Industry Association (“CTIA”) Best Practices and Guidelines for Location-Based Services;

• CTIA Messaging Principles and Best Practices;

• CTIA SMS Interoperability Guidelines; and

• CTIA Short Code Monitoring Program Handbook.

For further information, please visit the following websites:

• Federal Communications Commission, http://www.fcc.gov

• Federal Trade Commission, http://www.ftc.gov

• Do-Not-Call Registry Info, http://www.donotcall.gov

• MMA, http://www.mmaglobal.com

• CTIA, http://www.ctia.org

1. Disallowed Activities. Without limiting anything to the contrary in this Agreement, you will not engage in any of the following activities:

i. Restrictions on Use of Keyword Advertising (PPC, etc.)

You are not permitted to participate in any trademark bidding using the

SMSNXT name as well certain variations or misspellings thereof

ii. Restrictions on Use of Websites and Other Technologies

ii(a). You may not wrap, frame or display in an iframe the Services to give the appearance that the Services are being offered from your website, unless they are being displayed using a Company approved third party tool. Framing in an invisible frame is expressly prohibited. All links to the Services must be done in the same full window or in a new browser window.

ii(b). No software downloads or technology may be used by you to intercept, redirect or divert traffic and/or referral fees from the Services or any of Company’s Partner websites. This restriction includes browser helper objects (BHOs), spyware, adware, parasiteware(tm) and similar products.

ii(c). Traffic eExchanges, auto-surfing or pay-to-surf promotions, pop-ups, pop-unders, and other seen or hidden uses of cookies are NOT permitted.

ii(d). Using ‘SMSNXT’ with or without hyphens or other characters, or any misspellings in your top level domain name or as social media Services or other website usernames or profile pages is prohibited. Any use of the Company intellectual property must be approved in writing by us.

ii(e). You may not maintain a website that is a link farm or banner farm (i.e., there is no content on the site other than lists of text links or banners).

ii(f). You may place our banners or links within the content of your website or your non-spam email newsletters. All other uses of banners or links, such as newsgroups, chat rooms, or other instant messaging, message boards, banner networks, hit farms, counters, or guestbooks, etc. are NOT permitted.

ii(g). You are not allowed to reference the Services on any websites with adult, hate, discrimination, violent or other controversial content or websites that violate intellectual property or other third party rights or any law, including, but not limited to, CRACKING, and HACKING sites, and sites that contain adware, spyware, malware or require other downloadable software.

iii. Restrictions on Use of E-mail

iii(a). You may not engage in spamming, unsolicited mass emailing or any unapproved emailing or in any way fail to comply with the CAN-SPAM Act of 2003. This does not exclude you from making people aware of the Services or communicating by bulk email to a mailing list that complies with the CAN-SPAM Act, and all other applicable laws. Thus you, must abide by the following requirements:

• No false or misleading header information.

• The email should appear to come from the exact sender. This means that the email cannot appear to come directly or indirectly from the Company.

• No deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message. The subject line should only represent the Services in the truest form.

• You must give recipients an opt-out method. you must provide a return email address or another Internet-based response mechanism that allows a recipient to ask you not to send future email messages to that email address, and you must honor the requests. you must also include your physical address. Company reserves the right to compile these opt-out requests in order to populate an opt-out exclusion database.

iv. Restrictions on Use of Social Media

iv(a). You are permitted to use social media to promote your activities in connection with the Program as long as they only incorporate Licensed Materials and do not otherwise violate the terms of this Agreement. you are not permitted to claim to be us in connection with any of your activities.

iv(b). You must comply with all terms of services posted on any social networking site that you are using. If we become aware that you have received a suspension and or terminations notice from a third party website, we reserve the right to terminate you from the Program.

iv(c). Mentions on micro-blogs, such as (but not limited to) Twitter can only be used a maximum of five (5) times per day. Activities that consist of messaging that only include direct links that don't engage in a more detailed conversation are subject to removal from the Program.

iv(d). Spam reports from any social media site are grounds for termination from the Program.

iv(e). If you are not sure your social networking methods are permitted, please ask, by contacting us using the e-mail address for approvals below.

v. Restrictions on Use of Messaging

v(a). You will not use phone numbers which you do not own.

v(b). You will not participate in spam of any kind.

vi. Other Restrictions

vi(a). If you are operating in a way that allows you to pay and/or approve of sub-partners (Partners who work on your behalf), you will not be permitted to participate in the Program unless you have prior written permission from us to do so.

vi(b). You will not act in any way that might interfere with the operation of or otherwise harm the Services. you will not attempt any unauthorized access to or use of the Services and will not attempt to access or gather any information regarding users of the Services.

vi(c). You will not offer any discounts, rebates or other similar offers associated with the Services without our prior written approval.

vi(d). Your website or other Partner Materials will not link to an offshore gambling service or otherwise link to Services that are unregulated or considered illegal in the U.S. marketplace.

c. Obtaining Approvals and Right to Monitor. If you have questions about any of these restrictions, please contact us at support@SMSNXT.com for clarification and to obtain our written approval for using a tool or other marketing device in connection with your marketing activities for the Program. Any approval by us of your tools or other activities will not, under any circumstances, void, nullify or constitute a waiver of your indemnification obligations hereunder, the independent contractor nature of your engagement or of any of our rights. Any Partner found to be in violation of the above terms is subject to immediate deactivation from the Program, in addition to all your Referral Fees being forfeited. We have the right, in our sole discretion, to monitor your Program marketing activities at any time and from time to time to determine if you are in compliance with the terms of the Agreement and terminate your participation in the Program for any failure to comply with the restrictions set forth in this Section 3. If we terminate for your failure to comply with this Section 3 or other breach of this Agreement, we may withhold payment of your Referral Fees. you shall notify Company by email at support@SMSNXT.com of any known or suspected unauthorized uses of Licensed Materials or any known or suspected breach of security concerning any Licensed Materials.

d. Fraud. Fraud is a serious offense, and will be treated by us as such. As used in this Agreement, “Fraud” means any action that intentionally attempts to create false patrons, sales, leads, or click-throughs using any method now or hereafter known, including, without limitation, robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of generating Referral Fees. Misuse of Licensed Materials, including the use of banners or links in unapproved places, such as newsgroups, chat rooms, message boards, banner networks, hit farms, counters, or guest books etc. is cause for your account to be terminated with a forfeit of all your Referral Fees. For the purposes of this Agreement, “Fraud” shall include, but shall not be limited to: (i) acts made in bad faith; (ii) a Referred Customer’s collusion with any other player on the Services; (iii) you or any third party offering or providing any unauthorized incentive (financial or otherwise) to potential customers (including, without limitation, the sharing by you of any Referral Fees earned by you through your promotion of the Services); or (iv) the creation of multiple user accounts (including those to be used by you or your friends, relatives or associates) in order to abuse the Referral Fee mechanism. Reporting or committing false or fraudulent transactions in an effort to increase your Referral Fees are illegal, will not be tolerated, and may result in termination of your Program account and the forfeiture of all your Referral Fees and may result in the fraud being reported to legal authorities. If we suspect you are involved in Fraud, we may withhold all Referral Fees that are owed to you.

4. Transactions

a. Transaction Eligibility Requirements. To be eligible to receive Referral Fee, a prospect must be registered, accepted and valid. you are not eligible to receive a Referral Fee or any other compensation from us, based on transactions with a SMSNXT Lead (as defined below) or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable end user objects to or prohibits such compensation or excludes such compensation from its payments to us or our Partners; (iii) we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us with respect to a given transaction; (iv) the end user has paid or will pay such commissions, referral fees, or other compensation directly to you; (v) the end user participates in this Program, or (vi) for any transactions with end user that precede in time to you becoming a Partner in this Program under this Agreement.

b. Submission, Acceptance and Validity of Prospects. You must register each prospect with us. To register a prospect and a deal, you must provide at least the following information about each prospect: contact first name, contact last name, email, and company name. We generally will accept a prospect who, in our determination: (i) is a new potential customer of ours; (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, involved in our active sales process, or your Partner; (iii) is a legitimate prospect whose contact information was legally obtained. Notwithstanding the foregoing, we may choose not to accept a prospect, in our sole discretion. We may choose to do so at the time of your registration submission, or we may reject a prospect and remove attribution to you if we determine a prospect does not meet the criteria outlined in this Section 4.b. at any point after submission, even in cases where it was initially accepted. A prospect is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) if it is expired, (iv) if it exceeds the registered capacity limits or other applicable limits, or (v) after this Agreement is expired or terminated. Once the valid prospect is ready to purchase, we will, at our discretion, accept an order and provision the Services for the end user in order to complete a qualified transaction. Please note that you must have a written and readily available privacy policy and you certify that you are providing the prospect’s information to us in accordance with not only all applicable laws and regulation but also in accordance with your own privacy policy.

c. SMSNXT Leads. We may choose to introduce you to, or send you information on, a prospect of ours when we identify that such prospect may have a need for the services you offer (each, a “SMSNXT Lead”). We can do the same for other Partners of ours, even if it is for the same SMSNXT Lead. you may use the information about the SMSNXT Lead provided only to market and sell your services to them and not for any other purpose (unless the SMSNXT Lead otherwise consents). Immediately upon our or the SMSNXT Lead’s request, you will promptly discontinue all use of and delete the SMSNXT Lead’s information. SMSNXT Leads are considered our Confidential Information and shall be treated in accordance with the ‘Confidentiality’ section below.

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d. Shared Leads. If we decide to participate in the same sales process as you and this results in the sale of the Subscription Service to a prospect that would have otherwise not been valid based on it (i) not being registered, (ii) not being accepted, (iii) being expired, or (iv) exceeding the registered capacity limits or other applicable limits, (each, a “Shared Lead”) and you have an active engagement with such Shared Lead, then we may in our discretion, determine that Shared Lead will be considered a registered, accepted and valid prospect for the purposes of the ‘Eligibility’ section above. SMSNXT may request you to provide proof of active engagement (for example, by providing a copy of your retainer agreement with the end user if we so request) for managed and/or sold credit.

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e. Engagement with Prospects and end users. We may engage with a prospect, lead or end user directly (i) to complete the subscription process, (ii) to fulfill or enforce our obligations under an agreement with such prospect, (iii) to provide support, (iv) to conduct our standard marketing and sales activities with prospects, or (v) as otherwise permitted by this Agreement. If and when we do engage, we may choose how to engage with each prospect and may request that you collaborate with us in the engagement. Upon our request, you will provide us with the name and contact information of the prospect, and facilitate an introduction. If a prospect is not valid then we may choose to maintain it in our database and we may choose to engage with such a prospect. If we request, you will facilitate our participation on calls with you and various end user(s). We may request to participate on these calls in an effort to help to ensure the quality of your service delivery and for the purposes of managing the Program. In a resulting qualified transaction, (i) the end user will contract directly with us for provision of the Services, or (ii) you will place order(s) and contract with SMSNXT in your own capacity for the Services with us, specifying the terms of the Services ordered and providing information about the end user as we may request.

5. REFERRAL FEES.

a. Requirements for Payment; Forfeiture. In order to receive payment under this Agreement, you must have: (i) agreed to and complied with the terms of this Agreement; (ii) provided us with all of your account information, including your bank information for payment; and (iii) submitted to us all the necessary and valid tax documents, including VAT invoices where necessary, and the documents have been approved. In order for you to receive the Referral Fee you must have submitted the required documentation set out in this section no later than thirty (30 ) days after the end of any given fiscal quarter. If we have not received such documentation within this timeframe, we will not process the Referral Fee payment until the next fiscal quarter payment date for applicable qualified transactions.

All payments by SMSNXT will be made by bank transfer or other payment services approved by the Company and it is your responsibility to ensure that you have provided us with the most up-to-date and correct bank information to facilitate the transfer. We will not issue payment by any other means. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) if any of the requirements set forth in this section, Section 5. a., remain outstanding for six (6) months immediately following the close of a qualified transaction, or (ii) we have attempted to pay you a Referral Fee for a qualified transaction by bank transfer, and the attempt was unsuccessful (as confirmed by bank notice), to no fault of our own; and (iii) we reached out to your Contact to obtain the necessary information and have not received a response; and (iv) six (6) months has passed since the date of the initial, failed bank transfer described herein, then your right to receive Referral Fee arising from any and all qualified transactions(s) with the associated end user will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you a Referral Fee associated with a Forfeited Transaction.

Once you comply with all of the requirements in this Section 4 then you will be eligible to receive Referral Fee on qualified transactions, as long as these qualified transactions do not involve the same end user associated with a Forfeited Transaction.

b. Referral Fee Payment. We will pay the Referral Fee amount due to you within forty-five (45) days after the end of each fiscal quarter. We may withhold the Referral Fee payment until the Referral Fee amount that we owe you is above $100 USD.

c. Taxes. You are responsible for payment of all taxes applicable to the Referral Fee. You will be assessed sales tax unless you provide us with a valid reseller certificate that indicates tax should not be applied to the Referral Fee amount. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.

6. TERM AND TERMINATION. The term of this Agreement will begin upon the Effective Date and will end when terminated by either party in accordance with this Agreement (“Term”). Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. If we terminate this Agreement because you are in breach of a term hereof, including, without limitation, if you are in breach of any of the representations and warranties in Section 7 or if Company learns that improper payments are being or have been made to Foreign Officials or any private party by you or your subcontractors with respect to services performed on behalf of Company or any other entity, we may withhold compensation payable to you and we may terminate this Agreement without further obligation to you including the obligation to pay compensation. All licenses granted herein terminate automatically upon termination of this Agreement, and the licensee of any subject matter will immediately cease use of any Licensed Materials. In addition, each party may terminate any license in part at any time by giving the other written notice that specified licensed subject matter may no longer be used, or may no longer be used in a particular manner. Either party may terminate this Agreement with immediate effect if: (i) any relevant regulator disapproves this Agreement or the commercial components thereof and the parties, acting together in good faith, are not able, without materially frustrating the commercial intent of this Agreement, to amend the Agreement so that the regulator approves this Agreement in a timely manner; (ii) any relevant gambling law or regulation invalidates or it becomes otherwise illegal for you to provide the services to the Company under the Agreement; or (iii) any relevant federal or state regulator revokes either party’s license or registration or denies its application for such license or registration. Company may terminate this Agreement with immediate effect if Company learns that you supplied information during the course of the due diligence process, whether such process takes place before this Agreement is entered into or thereafter, that is false, misleading or materially incomplete and/or that Company believes could expose it to significant legal, regulatory, reputational, or financial harm were Company not to terminate the Agreement. Further, in the event of such termination, you shall not be entitled to any further payment, regardless of any activities undertaken or agreements with additional third parties entered into prior to termination, and you shall be liable for damages or remedies as provided by law.

7. REPRESENTATIONS AND WARRANTIES. you hereby represent and warrant to us as follows:

1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.

2. Your execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate: (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.

3. You are the sole and exclusive owner or authorized licensee of the Partner Materials and have the right and power to grant to us the license to use the Partner Materials in the manner contemplated herein, and such grant does not and will not: (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity. In addition, your performance under this Agreement will not infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity.

4. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third-party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.

5. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any partner of yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to the Partner Materials, and, to the best of your knowledge, there is no basis for any such claim, action or proceeding.

6. You represent to Company that you are duly authorized under applicable law to provide the services on a permanent basis as an independent contractor and that you have the ability, experience, contacts, expertise and resources to provide the services and to perform all of its obligations hereunder. you warrant and undertake that there is no legal, commercial, contractual or other restriction, which precludes or might preclude it from fully performing its obligations pursuant to this Agreement.

7. You represent that you hold all the necessary approvals, licenses and permits insofar as required by any applicable law for the provision of the services in accordance with this Agreement and that you shall continue to hold such approvals, licenses and permits during the Term of this Agreement.

8. You shall use best efforts to perform the services in a manner consistent with good business ethics and in good faith towards the Company.

9. You shall not undertake any action which could reasonably be construed as bringing the Company into material disrepute or to create a material negative perception of the integrity of the Company.

10. You shall not undertake any action which may have a detrimental impact on the ability of Company to be qualified for or to hold or maintain any license, permit or approval granted, or to be granted, by any competent authority.

11. For purposes of this provision: (i) “Foreign Official” is defined as any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization. You may not and will not directly or indirectly offer or pay, or authorize such offer or payment, any money or anything of value to improperly and corruptly seek to influence any Foreign Official or foreign government entity decision-making or to gain a commercial or other improper advantage for Company. you have not and will not corruptly directly or indirectly offer, promise or give, or authorize such offer, promise of giving, any financial or other advantage to induce or reward a person to perform improperly a relevant function or activity. In carrying out your responsibilities under this Agreement, you will implement all necessary controls and procedures to ensure that any contractual relationship it enters into with any subcontractor or other third party acting on its behalf and on behalf of Company is permissible under the FCPA, the UK Bribery Act, applicable local laws and regulations, and applicable industry codes. All the information provided by you during the due diligence process was accurate and contained no material omissions. Should you be found to have violated the FCPA, or any other criminal laws of the United States or local laws (including the UK Bribery Act) in the country in which you are operating in conjunction with carrying out the terms of this Agreement, and should Company have, as a result, incurred attorneys’ fees, costs and other expenses, you agree that Company is entitled to recover from you such fees, costs, and other expenses.

8. Dispute Resolution

PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.

A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation or claim arises out of or relates to the Services, the Program or this Agreement, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Company’s actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in Section 8(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Section 10(A). Your notice to us must be sent via certified U.S. mail to: SMSNXT, 811 S central Expy Richardson TX 75080, USA (Attn: Legal Department). The written description included in your notice must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; the date of any purchase or transaction at issue (if any and if available), and the relief sought. For a period of sixty (60) days from the date of receipt of notice from the other party, Company and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, through an informal telephonic dispute resolution conference between you and Company in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Company to resolve the Dispute or Excluded Dispute on terms with respect to which you and Company, in each of our sole discretion, are not comfortable. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process. Certain portions of this Section 10(A) are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act (“FAA”). you and Company agree that we intend that this Section 10(A) satisfies the “writing” requirement of the FAA.

B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 8(A) within sixty (60) days of receipt of the notice, then ANY DISPUTE ARISING BETWEEN YOU AND COMPANY OR ANY THIRD-PARTY BENEFICIARY OF THESE TERMS (whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, any other intentional tort or negligence), common law, constitutional provision, respondent superior, agency or any other legal or equitable theory), whether arising before or after the effective date of these Terms, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. The FAA, not state law, shall govern the arbitrability of all disputes between Company and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. Company and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 8(J) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies and damages arising between you and Company regarding these Terms and the Services, whether arising or stated in contract, statute, common law or any other legal theory, without regard to any jurisdiction’s choice of law principles. An Excluded Dispute will only be subject to binding arbitration pursuant to this Section 8 if the parties mutually agree. Any Dispute will be resolved solely by binding arbitration in accordance with the then-current: (i) Consumer Arbitration Rules of the American Arbitration Association “AAA”) then in effect since the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1; and if such Consumer Arbitration Rules do not apply then: (ii) the Commercial Arbitration Rules (collectively, “Rules”) of the AAA, except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Company consent to in writing.

C. Arbitration Process. If after sixty (60) days the informal dispute resolution procedure set forth in Section 10(A) above is unsuccessful in resolving the parties’ Dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules. (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf). The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside. The parties will first attempt to agree on an arbitrator. If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the Rules. The arbitration may be conducted by telephone or based on written submissions, and if an in-person hearing is required, then it will be conducted in the county where you live or at another mutually agreed upon location. you and we will pay the administrative and arbitrator’s fees and other costs (and please note that you will be responsible for a portion or percentage of such fees) in accordance with the requirements of the Rules; but if the Rules (or other applicable arbitration rules or laws) require Company to pay a greater portion or all of such fees and costs in order for this Section 10 to be enforceable, then Company will have the right to elect to pay the fees and costs and proceed to arbitration. Except as set forth in Section 10(D), the arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. The arbitrator will render an award within the time frame specified in the Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the Rules, and these Terms. The arbitrator’s award of damages and/or other relief must be consistent with the terms of the Limitations of our Liability Section above as to the types and the amounts of damages or other relief for which a party may be held liable. If a claim is brought seeking public injunctive relief and a court determines that the restrictions prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated. In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration. If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), Company will have the right to recover its attorneys’ fees and expenses. This arbitration provision shall survive termination of these Terms or the Service. you can obtain AAA and JAMS procedures, rules and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.

D. Special Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against Company by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed. you also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule. Counsel for the claimants and counsel for Company shall each select five (5) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process; the parties may but are not required to agree in writing to modify the number of cases to be included in the bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision. In the bellwether process, a single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise. After decisions have been rendered in the first ten (10) cases, Company and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases. If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. After decisions have been rendered in the second group of twenty (20) cases, Company and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein. Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases, in order to increase the efficiency of administration and resolution of arbitrations, the arbitration Company shall: (i) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. you agree to cooperate in good faith with Company and the arbitration Company to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “batch arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind. Company does not agree or consent to class arbitration, private attorney general arbitration or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 8(D). The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Section 8(D) from the time of the first cases are selected for a bellwether process until the time your case is selected to proceed, withdrawn or otherwise resolved. A court shall have authority to enforce this Section 8(D) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Company.

E. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES—OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 8(A); (b) filing for arbitration with JAMS as set forth in Section 8(B); or (c) filing an action in state or federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.

F. Injunctive Relief. The foregoing provisions of this Section 8 will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with, any loss, cost or damage (or any potential loss, cost or damage) relating to the Services, the Program, this Agreement and/or Company’s intellectual property rights (including such Company may claim that may be in dispute), Company’s operations and/or Company’s products or services.

G. No Class Action Matters. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Except as expressly contemplated for mass arbitrations set forth in Section 8(D), Disputes and Excluded Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute or Excluded Dispute to be arbitrated on a class action basis or on any basis involving Disputes or Excluded Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 8(B) to arbitrate will not apply and the Dispute or Excluded Dispute must be brought exclusively in court pursuant to Section 8(F). Notwithstanding any other provision of this Section 8, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions. Notwithstanding any other provision of this Agreement, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire arbitration agreement shall be void. If any portion of this arbitration agreement other than the class action waiver and prohibition against class arbitration is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration agreement.

H. Federal and State Courts in Los Angeles County, California. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute, arising hereunder may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.

I. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court on an individual basis for disputes and actions within the scope of such court’s competent jurisdiction.

9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOUR ACCESS TO AND USE OF THE SERVICES AND THE PROGRAM IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Company and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors and assigns (collectively, the “Company Parties”) hereby disclaim and make no representations, warranties, endorsements or promises, express or implied, as to:

(a) the Services;

(b) the Program;

(c) whether the Services or your use thereof constitute an “automatic telephone dialing system” (“ATDS”), “advertising,” “telemarketing,” or “solicitations,” as such terms are used and defined in the TCPA or by other applicable related regulations or law;

(d) the functions, features, terms, or any other elements on, or made accessible through, the Services (including but not limited to SMS/MMS Codes);

(e) any products, services (including, without limitation, the Services) or instructions offered or referenced at or linked through the Services;

(f) security associated with the transmission of your materials to customers and data transmitted to Company via the Services or using SMS/MMS Codes (other than the Services’s SOC 2 and HIPAA compliant security measures);

(g) whether the Services or the servers that make the available are free from any harmful components (including viruses, Trojan horses, and other technologies that could cause harm);

(h) whether the information (including any instructions) on the Services is accurate, complete, correct, adequate, useful, timely or reliable;

(i) whether any defects to or errors in the Services will be repaired or corrected;

(j) whether your access to the Services (including use of SMS/MMS Codes) will be uninterrupted;

(k) whether the Services and Program will be available at any particular time or location;

(l) whether certain SMS/MMS Codes will be assigned to you, either exclusively or on a shared basis;

(m) whether your use of the Services (including SMS/MMS Codes) is lawful in any particular jurisdiction; and

(n) whether any text/SMS/MMS messages sent using the Services, regardless of the type of SMS/MMS Codes used, will be actually delivered to and received by the intended recipients on their mobile devices (including but not limited to messages that are not delivered to the extent the SMS/MMS Codes used are not registered, verified, or approved by any phone service carrier).

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A COMPANY PARTY, COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

10. LIMITATIONS OF OUR LIABILITY

UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental or consequential losses or damages that are directly or indirectly related to:

(a) the Services (including the SMS/MMS Codes) or use thereof, including but not limited to any violation of the TCPA or other applicable laws, statutes, or regulations;

(b) the Services, including, without limitation, lost communications, errors, mistakes, typos, communication failures, etc.;

(c) your use of or inability to use the Services or participate in the Program or the performance of the Services;

(d) your use of any mobile alert terms and conditions we make available through the Services;

(e) any action taken in connection with an investigation by Company Parties or law enforcement authorities regarding your access to or use of the Services or participation in the Program;

(f) any action taken in connection with copyright or other intellectual property owners or other rights owners;

(g) the availability and use of any particular SMS/MMS Codes provided in the course of using the Services, or the registration or verification thereof;

(h) the delivery and/or deliverability rates of any text/SMS/MMS messages that might be sent using the Services;

(i) any errors or omissions in the Services’ technical operation, including delivery of messages; or

(j) any damage to any user’s computer, hardware, software, modem or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the Company Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure or destruction of the Services).

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES, YOUR UTILIZATION OF OUR SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID COMPANY IN THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.

11. Waiver of Injunctive or Other Equitable Relief

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICES AND OUR PROVISION OF THE SERVICES, THEN THE LOSSES, DAMAGES AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OF COMPANY.

12. Feedback you Submit

A. General. Company may now or in the future offer users of the Services the opportunity to post, upload, display, publish, distribute, transmit or otherwise make available on or submit through the Services, messages, text, files, comments, responses, information, content, results, reviews, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “Feedback”). Company may allow you to do this through contact us, email and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title and interest that you have in your Feedback and you remain ultimately responsible for it.

B. Non-Confidentiality of your Feedback. You agree that: (a) your Feedback will be treated as non-confidential—regardless of whether you mark them “confidential,” “proprietary” or the like—and will not be returned; and (b) Company does not assume any obligation of any kind to you or any third party with respect to your Feedback. Upon Company’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with this Agreement.

C. License to Company of your Feedback. Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your Feedback, you hereby grant to Company, and you agree to grant to Company, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of and otherwise use and exploit in any manner whatsoever, all or any portion of your Feedback (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format and remove such Feedback and combine same with other materials, and (b) use any ideas, concepts, know-how or techniques contained in any Feedback for any purposes whatsoever, including developing, producing and marketing products and/or services. In order to further effect the rights and license that you grant to Company to your Feedback, you also hereby grant to Company, and agree to grant to Company, the unconditional, perpetual, irrevocable right to use and exploit your name, persona and likeness in connection with any Feedback, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Feedback, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. you understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 12(C).

15. Updates to Terms

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable Services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICES AND OUR SERVICES EVOLVE, THE TERMS OF USE UNDER WHICH WE OFFER THE SERVICES AND SERVICES MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICES OR THE PROGRAM UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICES OR UTILIZE OUR SERVICES OR THE PROGRAM, YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS OF USE AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICES (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICES AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted terms of service and any applicable each time you use the Services and participate in the Program (at least prior to each transaction or submission). The new terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, this Agreement that applied when you previously used the Services and participated in the Program will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. you should frequently check the home page, and the email you associated with your purchases for notices, all of which you agree are reasonable manners of providing you notice. you can reject any new, revised or additional terms by discontinuing use of the Services and participation in the Program.

16. General Provisions

A. Company’s Consent or Approval. As to any provision in this agreement that grants Company a right of consent or approval, or permits Company to exercise a right in its “sole discretion,” Company may exercise that right in its sole and absolute discretion. No Company consent or approval may be deemed to have been granted by Company without being in writing and signed by an officer of Company.

B. Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.

C. Indemnity. You agree to, and you hereby defend, indemnify and hold Company Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your use of the Services and participation in the Program and your activities in connection with the Services and the Program, including, without limitation, any message sent by you through your use of the Services or use of SMS/MMS Codes; (ii) your breach or alleged breach of this Agreement; (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities in connection with your use of the Services, your participation in the Prorgram or your activities in connection therewith; (iv) information, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or entity; (vi) any misrepresentation made by you; (v) any other party’s access and/or use of the Services/Program with your account; (vi) any failure to obtain consents required by applicable law or regulations prior to sending communications using the Services; (vii) any privacy or spam policy violation alleged to have been committed through any use of your account; and (viii) Company Parties’ storage, use and distribution of the information and data (including mobile numbers) that you provide to us (all of the foregoing, “Claims and Losses”). you agree to cooperate as fully as reasonably required by the Company Parties in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action involving Claims and Losses, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. you will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company Party. you acknowledge and agree to be held liable for any and all damages caused to the Company Parties by you as a direct result of a violation of local, state, national or international laws and regulations, including, but not limited to, those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by the Company Parties to you.

D. Operation of Services; Availability of Services; International Issues. Company controls and operates the Services and the Program and provides the same from its California based offices in the U.S.A., and Company makes no representation that the Services or the Program (including but not limited to SMS/MMS Codes) are appropriate or available for use beyond the U.S.A. If you use the Services and participate in the Program from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Services may describe services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Services, the Program and/or the provision of any content, program, product, service or other feature described or available on the Services or in the Program to any person, entity, geographic area or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide. you and we disclaim any application to this Agreement of the Convention on Contracts for the International Sale of Goods. Delivery and delivery rates of text/SMS/MMS messages are the responsibility of third party mobile carriers to whom such messages are delivered and may vary.

E. Export Controls. Software related to or made available by the Services may be subject to export controls of the U.S.A. No software from the Services may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or Services (which, as of the effective date of this Agreement, includes Cuba, North Korea, Iran, Sudan, and Syria), (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). you are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity or end-user, subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.

F. Severability; Interpretation. If any provision of this Agreement, is for any reason deemed invalid, unlawful, void or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in this Agreement, the word will be deemed to mean “including, without limitation.”

G. Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. you agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Services, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you. you agree to promptly notify us if you change your email or mailing address.

H. Investigations; Cooperation with Law Enforcement; Termination; Survival. Company reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Services security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Company in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Services and/or the Program, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Company under this Agreement. Upon suspension or termination of your access to the Services/Program, or upon notice from Company, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately discontinue use of the Services and the Program. The provisions of these this Agreement, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Company in this Agreement, as well as the indemnities, releases, disclaimers and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action and mandatory arbitration.

I. Assignment. Company may assign its rights and obligations under this Agreement, in whole or in part, to any party at any time without any notice. This Agreement may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.

J. No Waiver. Except as expressly set forth in this Agreement: (i) no failure or delay by you or Company in exercising any of rights, powers or remedies under will operate as a waiver of that or any other right, power or remedy, and (ii) no waiver or modification of any term of this Agreement will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.

K. Connectivity. You are responsible for obtaining and maintaining all equipment and software, and all internet service Company, mobile service and other services needed for your access to and use of the Services and participation in the Program and you will be responsible for all charges related to them.

L. Confidentiality. Each party may have access to the other party’s information, which shall be deemed confidential information if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans and any information which provides a competitive advantage. The receiving party shall protect the other’s confidential information with the same degree of care it uses for its own confidential information (and at least a reasonable degree of care), shall use the information only to carry out this Agreement, and shall disclose the information only to its employees (or agents bound by similar confidentiality obligations) with a need to know for that purpose. Confidential information shall remain the property of the disclosing party and shall be destroyed upon request. Notwithstanding the above, neither party shall be required to accelerate the destruction of any archival back-up tapes created in the ordinary course of business, even if such archival back-up tapes contain confidential information. Information shall not be deemed confidential information if it: (i) is disclosed by the disclosing party to others without restriction on use and disclosure; (ii) becomes known to the receiving party without restriction from a third party who is not in breach of a confidentiality agreement with the disclosing party; (iii) is already known by the receiving party at the time of disclosure; or (iv) is independently developed by the receiving party without any reliance on the confidential information of the disclosing party. Confidential information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure.

M. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.

N. Subcontractors. You acknowledge that we will, in the rendition of the Services and the Program hereunder, engage third party suppliers and other vendors and subcontractors (collectively, “Subcontractors”) to provide certain Services offered as part of the Services. Company shall supervise such services and endeavor to guard against any loss to you as the result of the failure of Subcontractors to properly execute their commitments, but we shall not be responsible for their failure, acts or omissions and cannot guarantee any Subcontractor’s performance.

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SMSNXT Promo Codes Terms & Conditions

• Promo codes are available for a limited time only and are provided to eligible users on a first-come, first-served basis. The offer is open only to new customers unless otherwise specified.

• Promo codes cannot be applied to previously placed purchases.

• Promo codes that offer a percent only apply to the plan amount and do not apply to passthrough fees or number fees.

• Promo codes are not transferable or redeemable for cash or credit.

• Custom plans are excluded from promo codes.

• To apply a promo code, you must enter it prior to completing the order.

• SMSNXT reserves the right to modify, suspend, or cancel any promo code at any time without notice. In case of a dispute, the decision of SMSNXT will be deemed final and binding.