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General Terms and Conditions
for Mobile Response Customers

Welcome to Nine Mobile, provided by Nine Multimedia, Inc.

Nine Mobile does not charge customers to receive SMS text message responses, broadcasts, information and alerts on the 85800 shortcode.

Standard Messaging Charges May Apply related to the service plan of a customers wireless carrier Plan.

These Terms of Service apply to the Customer experience. This is the mobile cell phone user who is Texting inbound a Call To Action keyword to the shortcode of 85800 or is receiving an information alert broadcast from the 85800 shortcode. Nine Mobile is the CDN Content Delivery Network that is providing the software and service to deliver the messages between brand marketers and customers.

If you have received a message or sent an SMS message to 85800 then you are Opted-in to a mobile alert or information service that is operating on the NineMobile.com network. When you send a specific keyword to 85800, you will receive a message response from the brand marketer / content provider that is related to the specific program and information requested from our system. If the program that you have selected has a periodic information alerts or updates, then you may be receiving occasional broadcast messages from the brand marketer / content publisher in relation to the program.

EXAMPLE:

Call to Action is posted on a billboard that says... "Text the keyword INFO to 85800, to get the latest news and special offers from XYZ sponsor"

Response: is delivered back to the customer cell phone... "From INFO. Thnx for texting. Here is a special alert for you. Go to www.brandinfo.com and see the new product. To Cancel txt STOP.

Nine Mobile does not send information that was not requested by a customer first. We follow the guidelines of the Mobile Marketing Association and the Wireless Cell Phone Carriers. We deliver our service to all major US carriers including Verizon, Att, T-Mobile, Boost, Sprint, AllTell, Cricket, Virgin, US Cellular.

Nine Mobile is happy to remove a customer from any mobile messaging list related to any program, any brand marketer, and any content publisher, at any time. Contact us with any questions or concerns so that we can maintain a high quality service to all customers. You can Opt-Out of any program by simply texting the word STOP to 85800, or email us at help@ninemobile.com , or visit our contact information posted here. Our tool free number is 877-398-3362

Nine Mobile is a product or Nine Multimedia Inc. of San Diego California. Located at 1253 Archer Street. San Diego, CA 92109.

We appreciate your use of our service and interest in the programs and content of our clients, partners, & publishers.

 

GENERAL TERMS AND CONDITIONS FOR MOBILE DELIVERY NETWORK CLIENTS

These Terms of Service apply to general commercial accounts ("Accounts"). Owners of Accounts shall be referred to as "Marketers." By using your Nine Mobile account and associated Nine Mobile mobile features (as described further below), you agree to be bound by the Terms of Service listed below (the "Terms").

Definitions.

Nine Multimedia Gateway Platform.
Nine Multimedia's scalable proprietary wireless platform containing a core infrastructure and computer programs enabling the delivery of Content between the Company and the Interactive Wireless Devices of Subscribers through the Carriers.
Carriers.
Providers of wireless messaging services to Subscribers via wireless telecommunications networks. The Carriers with whom Nine Multimedia maintains connectivity (including via Third Party service entities that provide network connectivity services for message delivery to and from Carriers ("Third Party Aggregators")) as of the Effective Date include those listed in Schedule F. For purposes of this Agreement, the term "Carriers" shall include applicable Third Party Aggregators.
Content.
All data, information, and other content provided by Company to be sent to Interactive Wireless Devices of Subscribers via the Nine Multimedia Gateway Platform, including SMS and MMS.
Content Standards.
Written standards set by the Carriers from time to time which describe the type of Content that they will not transmit to Subscribers. For purposes of this Agreement, the Content Standards include the Content Standards established by the Carriers as of the Effective Date which are set forth on Schedule E attached hereto, and any additions, deletions or changes to such Content Standards that are hereafter announced by the Carriers from time to time.
Customization Services.
Customization Services shall have the meaning defined in Schedule B hereto.
Delivery Services.
The service of delivering the Company's Content to Carriers over the Nine Multimedia Gateway Platform.
Documentation.
The standard user documentation published by Nine Multimedia describing the use of the Application, including any tutorial presentation of the capabilities of the Application and any technical documentation that describes the design of the Application.
Hosting Services.
Hosting Services shall have the meaning defined in Schedule A hereto.
Interactive Wireless Devices.
Any and all wireless devices capable of sending and receiving SMS or displaying Content sent by the Company.
MMA Guidelines.
The Mobile Marketing Association's Consumer Best Practices Guideline and Privacy Code of Conduct established from time to time, including as maintained at http://www.mmaglobal.com/bestpractices.pdf, which are incorporated herein by this reference.
Party(ies).
The parties to this Agreement are collectively referred to herein as the Parties and each a Party.
Premium Content Services.
Delivery Services pertaining to Content delivered to Subscribers for a fee payable by the Subscriber, which fee will be shared by the Carrier, Nine Multimedia and the Company in the manner described in Schedule D hereto.
Services.
The Hosting Services, Customization Services and Delivery Services, collectively.
SMS.
A short message service text message with up to one hundred sixty (160) characters.
Subscribers.
Any and all persons who have Interactive Wireless Devices capable of receiving Content and who have subscribed to send and receive Content via the Nine Multimedia Gateway Platform through the Carrier(s).
Third Parties.
Any and all Persons not a Party to this Agreement.

Requirements to Use Services. Company agrees: (a) to provide true, accurate, current, and complete information about the Company and any Authorized User, including Company's e-mail address, either directly to Nine Multimedia or through the Services, (b) to maintain and promptly update the information to keep it true, accurate, current, and complete, (c) to accept communications from Nine Multimedia at its e-mail address. Company agrees that Nine Multimedia may provide notices, statements, and other communications to Company solely through e-mail, posting on the Services interface, or other electronic transmission. Company agrees to obtain access to the internet, either directly or through devices that access web-based content, and pay any service fees associated with such access. Company will provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device, as well as a web browser. The web browser must support SSL encryption in order for the security features of the Services to function.

Access to Services, Access Security and Passwords. The Services may be accessed only by the Company's employees, agents or representatives of the Company who are authorized by the Company to use the Services pursuant to this Agreement (hereinafter, an "Authorized User"). A unique login ID and password will be issued by the Nine Multimedia to each Authorized User designated in writing by the Company from time to time. Each Authorized User may only access the Services using the login ID and password assigned to the Authorized User, and no person may access the Services using a login ID and password other than the Authorized User to which the login ID and password are assigned. Company is responsible for the confidentiality and use of login ID(s), password(s), and account number(s) provided to the Company and any Authorized User. Company will be responsible for all electronic communications, including account registration and other account holder information, e-mail and financial, and other data ("Electronic Communications") entered through or under Company's or an Authorized User's access number(s), password(s) or account number(s). Nine Multimedia will act as though any Electronic Communications it receives under Company's or an Authorized User's access number(s), password(s) or account numbers(s) will have been sent by Company. Nine Multimedia may disclose Electronic Communications if required to by law or in the good faith belief that such disclosure is reasonably necessary to: (a) comply with a legal process, (b) enforce this Agreement, (c) respond to claims that any Electronic Communications violate the rights of third parties, or (d) protect the rights, property, or personal safety of Nine Multimedia, its users, or others. Company agrees to notify Nine Multimedia immediately of any loss or theft or unauthorized use of any login ID(s), password(s) and/or account number(s). As a further condition to use of the Services, the Nine Multimedia may require that each Authorized User agree to use the Services in accordance with this Agreement and Nine Multimedia's terms of service, as announced from time to time, which Agreement shall be in the form of a webpage containing the terms and conditions of service to which the Authorized User will have to consent in order to access the Services.

Changes in Services. The Services pursuant to this Agreement shall be subject to modification in a manner applicable to all customers of the Services, including as a result of changes made by the relevant Carrier(s) to the corresponding services provided by the Carrier(s) to Nine Multimedia. If any such change is made which has any effect on the rights and obligations of the Parties hereunder, then (i) Nine Multimedia shall use commercially reasonable efforts to notify Company in writing of the relevant changes as soon as reasonably practicable, and (ii) such change shall be automatically binding on the Company.

Payment Policy. Unless otherwise stated in writing in the attached Schedules, all invoices are due upon receipt. Balances over fifteen (15) days past due shall bear interest at the rate of 2.0% per month until paid. In addition, Nine Multimedia has the right to suspend performance under this Agreement at any time that the Company is in default hereunder. In addition, in the event the Company fails to pay any past due amount hereunder, Nine Multimedia may set off any other amounts that Nine Multimedia owes the Company against such amount. In the event that a Schedule hereto does not refer to any specific pricing for any Service (or part thereof), then such Service (or part thereof) shall be provided at Nine Multimedia's then current standard charges, which Nine Multimedia will provide to Company upon request. In addition to the fees set forth on Schedule D, Company shall be responsible for Carrier-specific charges (e.g., program/campaign application fees), if any, which Nine Multimedia will pass-through to Company at cost.

Taxes. The Company agrees to pay any sales, use, or other tax (excluding any tax that is based on Nine Multimedia's income), duty, or other charge of any kind or nature that is levied or imposed by any governmental authority or regulatory body in connection with this Agreement or the Services provided hereunder.

Term. This Agreement shall remain in effect for a period of one (1) year after the activation date of the Services ("Initial Term") unless sooner terminated pursuant to the terms hereof. This Agreement shall automatically renew for successive one (1) year terms ("Renewal Terms"; the Initial Term and all Renewal Terms, the "Term") upon expiration of the Initial Term or any Renewal Term unless either Party hereto provides notice to the other Party of its intent not to renew this Agreement at least ninety (90) days in advance of the scheduled expiration of the Initial Term or any Renewal Term.

Termination. This Agreement may be terminated by either Party only upon breach by the other Party of the terms contained herein and failure to cure same within thirty (30) days after receipt of notice from the non-breaching Party describing the alleged breach. Upon expiration or termination of this Agreement for any reason, Company shall, upon receipt of an invoice, pay to Nine Multimedia all undisputed amounts owed hereunder as of the effective date of termination within thirty (30) days of receipt of such invoice.

Confidential Information. Each Party (the "Receiving Party") undertakes to retain in confidence the terms of this Agreement and all other non-public information, pricing, business methods, technology, materials and know-how of the other Party disclosed or acquired by the Receiving Party pursuant to or in connection with this Agreement which is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information"); provided that each Party may disclose the terms and conditions of this Agreement to its parent, subsidiaries, and affiliates and to its immediate legal and financial consultants on a confidential basis in the ordinary course of its business. Neither Party shall use any Confidential Information with respect to which it is the Receiving Party for any purpose other than to carry out the activities contemplated by this Agreement. Each Party agrees to use commercially reasonable efforts to protect Confidential Information of the other Party, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. Each Party shall also notify the other promptly in writing in the event such Party learns of any unauthorized use or disclosure of any Confidential Information that it has received from the other Party, and will cooperate in good faith to remedy such occurrence to the extent reasonably possible. The restrictions set forth in this Paragraph shall not apply to any information that: (i) was known by the Receiving Party without obligation of confidentiality prior to disclosure thereof by the other Party; (ii) was in or entered the public domain through no fault of the Receiving Party; (iii) is disclosed to the Receiving Party by a Third Party legally entitled to make such disclosure without violation of any obligation of confidentiality; (iv) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed); or (v) is independently developed by the Receiving Party without reference to any Confidential Information of the other Party. Upon request of the other Party, each Party shall return to the other all materials, in any medium, which contain or reveal all or any part of any Confidential Information of the other Party. Each Party acknowledges that breach of this Section by such Party would result in irreparable harm to the other Party, for which money damages would be an insufficient remedy, and therefore that the other Party shall be entitled to seek injunctive relief to enforce the provisions of this Paragraph. Such restrictions shall remain in effect during the term hereof and for a period of two (2) years after termination of this Agreement for any reason; provided, however, that if any such Confidential Information constitutes a trade secret (as defined in the Georgia Trade Secrets Act), such restrictions shall remain in effect for so long beyond such period as such Confidential Information continues to qualify as a trade secret as so defined. This Paragraph shall survive termination of this Agreement.

Subscriber Information. Company shall use and handle all Subscriber information subject to all laws, rules, regulations, codes, guidelines, and all MMA Guidelines and Carrier policies and directives in force from time to time applicable to confidentiality and personal data protection. Company understands and agrees that Carrier(s) shall exclusively own all information that they and their affiliates collect directly from Subscribers, from Subscriber's usage of Interactive Wireless Devices on the Carriers' networks or roaming partner networks, or from Carriers' web site including, without limitation, personally identifiable information, such as name, home and e-mail address, wireless telephone number and residential telephone number. Company shall not authorize or encourage any Third Party to collect any Subscriber information in connection with any of the Services contemplated by this Agreement. If Company collects any such Subscriber information, Company may only use such information to the extent necessary to deliver Content to Subscribers and thereafter must destroy such information. In no event may Company disclose Subscriber information to any Third Party.

Intellectual Property Rights of Company. The Company retains all right, title and interest in and to its trademarks, service marks, logos and other proprietary indicia. The Company shall have all rights, title and interest in and to all software, documentation, derivative works and other intellectual property rights that are acquired, developed, designed, created or contributed by Company in relation to the Company System.

Intellectual Property Rights of Nine Multimedia. All title and rights of ownership in the Application, the Documentation and Services, as well as enhancements, modifications, derivative works or changes made by Nine Multimedia to the Application, the Documentation and the Services, remain with Nine Multimedia and are protected by trademark, copyright, patent and/or trade secret laws. In addition, Nine Multimedia retains all right, title and interest in and to its trademarks, service marks, logos and other proprietary indicia that are acquired, developed, designed, created or contributed by Nine Multimedia in relation to the Application or Services. Company agrees to take all reasonable steps necessary to protect Nine Multimedia's proprietary rights in the Application, Documentation and the Services. Nine Multimedia represents and warrants that the Application and the Services do not infringe any United States patent, copyright, trademark, trade secret, or any other proprietary right of any Third Party, and hereby indemnifies and holds the Company, its affiliates and its customers harmless against any claim of infringement from a Third Party. In the event the continued use of the Application or the Services is held or is likely to be held to constitute an infringement, Nine Multimedia, at its expense, may (i) modify the Application or Services so that they are non-infringing so long as the Application or Services, as modified, performs substantially the same functions that it performed before the modification, (ii) procure for the Company the right to continue using the Application or the Services, or (iii) allow the Company to terminate this Agreement without liability to Nine Multimedia.

DISCLAIMER OF WARRANTIES. THE APPLICATION AND THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER, AND NINE MULTIMEDIA DISCLAIMS ALL WARRANTEES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY ACKNOWLEDGES THAT NINE MULTIMEDIA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS, OR SECURITY OF THE APPLICATION OR SERVICES AND DOES NOT REPRESENT OR WARRANT THAT THE APPLICATION OR SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS), THAT THE CONTENT WILL BE KEPT CONFIDENTIAL OR THAT ALL OR ANY CONTENT WILL BE DELIVERED OR RECEIVED. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

LIMITATION OF LIABILITY. THE PARTIES HAVE NEGOTIATED THIS AGREEMENT WITH DUE REGARD FOR THE BUSINESS RISK ASSOCIATED WITH THE ARRANGEMENTS DESCRIBED IN THIS AGREEMENT. EXCEPT FOR LIABILITIES SUBJECT TO THE INDEMNITY PROVISIONS OF THIS AGREEMENT OR FOR FEES DUE NINE MULTIMEDIA BY COMPANY, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN ANY MANNER, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING FROM THE SERVICES. THIS LIABILITY LIMITATION APPLIES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, ANTICIPATED PROFITS OR LOST BUSINESS, AND EVEN IF THE DAMAGES WERE OR WERE NOT REASONABLY FORESEEABLE. IN ANY CASE, THE CUMULATIVE AGGREGATE LIABILITY OF EACH PARTY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FROM ANY CAUSE WHATSOEVER (OTHER THAN CLAIMS SUBJECT TO THE INDEMNITY PROVISIONS OF THIS AGREEMENT OR FOR FEES DUE NINE MULTIMEDIA BY COMPANY) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY SHALL BE LIMITED TO THE ACTUAL DIRECT OUT-OF-POCKET EXPENSES THAT ARE REASONABLY INCURRED BY THE NON-BREACHING PARTY AND SHALL NOT EXCEED THE LESSER OF: (I) $1,000, OR (II) THE AMOUNT PAID BY COMPANY TO NINE MULTIMEDIA DURING THE YEAR BEFORE THE DATE THE BREACH OCCURRED. COMPANY SPECIFICALLY UNDERSTANDS AND AGREES THAT NINE MULTIMEDIA SHALL NOT BE LIABLE TO COMPANY OR THE CUSTOMERS OF COMPANY FOR ANY CONTENT DELETED OR NOT DELIVERED, REGARDLESS OF THE REASON FOR DELETION OR NONDELIVERY, INCLUDING, WITHOUT LIMITATION, MESSAGE PROCESSING, TRANSMISSION ERRORS OR SMS SERVICE FAILURES; AND NINE MULTIMEDIA SHALL NOT BE LIABLE TO COMPANY OR THE CUSTOMERS OF COMPANY FOR ACTS OR OMISSIONS OF ANY THIRD PARTY, OR FOR INFORMATION PROVIDED THROUGH THE COMPANY SYSTEM, OR FOR CAUSES BEYOND THE REASONABLE CONTROL OF NINE MULTIMEDIA. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

Company Indemnity. Company, at its own expense, will indemnify, defend and hold harmless Nine Multimedia, its Affiliates, and the Carrier(s) through whom Content is routed and their respective employees, representatives, agents, officers and directors against any claims, losses, liabilities, costs, expenses or damages (including reasonable attorney's fees) incurred by reason of any claim, demand, lawsuit or action initiated by Third Parties based on or relating to: (i) any breach by Company of any of its representations and warranties in this Agreement; (ii) any services provided by Company or its subcontractors relating to the Services provided under this Agreement; or (iii) an allegation that all or any part of the Content provided by Company, a message transmission by a Subscriber to Company or Company's use of any Services violates any local, state or federal law, rule, or regulation, the Carrier Standards and/or the MMA Guidelines ("Claims"). In this regard, Nine Multimedia will promptly notify Company of Claims, and it will permit Company to assume and control the defense of Claims. Nine Multimedia, however, will have the right to employ separate counsel and participate in the defense of Claims. Company shall have the sole authority to defend, compromise, settle or otherwise dispose of the Claims; provided that Company shall not agree to any disposition or settlement of a Claim that admits liability or imposes duties of performance or payment on Nine Multimedia without Nine Multimedia's prior written consent. In the event the Parties agree to settle Claims, Company agrees not to publicize the settlement without first obtaining Nine Multimedia's written permission.

Remedies. Each Party acknowledges that breach by it of certain of the terms set forth herein, including any breach arising out of or relating to an alleged violation of the other Party's intellectual property rights, would result in irreparable harm to the other Party for which monetary damages alone would be an insufficient remedy. Thus, although nothing herein will prohibit pursuit of any remedies available against any Party under applicable law (which shall be cumulative with those remedies set forth herein), each Party specifically agrees that, in the event of any threatened or actual breach of any such terms by it, the other Party shall be entitled to injunctive relief or other similar remedy from a court of competent jurisdiction.

Governing Law; Attorney's Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia applicable to contracts made in Georgia by persons domiciled in Atlanta, Georgia and without regard to its principles of conflicts of laws. The Parties expressly consent to jurisdiction and venue in the state and federal courts located in Fulton County, Georgia, and the Northern District of Georgia, United States of America, as the exclusive jurisdictions and venues for any and all matters arising out of or pertaining to this Agreement. Either Party shall be entitled to recover its attorney's fees and costs from the other Party in the event it utilizes the services of an attorney to enforce any provision of this Agreement or to collect any amounts due hereunder, and it is the prevailing Party.

Mutual Representations and Warranties. Each Party to this Agreement represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required; (b) its actions in connection with this Agreement will be performed in compliance with all applicable laws, rules and regulations; (c) its execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a Party; and (d) this Agreement will constitute the legal, valid and binding obligation of such Party when executed and delivered.

Force Majeure. Neither Party shall be liable for any delay or failure to perform per the terms of this Agreement caused by Acts of God or other causes beyond the parties' control and without fault or negligence. In such event, either Party may suspend this Agreement in whole or in part for the duration of the delaying cause. Both parties shall resume performance under this Agreement immediately after the delaying cause ceases and the initial term of this Agreement shall be extended for a period of time equivalent to the length of time the excused delay occurred.

Relationship of Parties. Nothing contained in this Agreement shall be construed to create a partnership, agency, joint venture, or employer/employee relationship between the parties. Neither Party has the authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other Party or to bind such other Party in any way. Each Party shall be responsible for wages, taxes, withholding, insurance, hours and conditions of employment of its personnel during the term hereof.

Assignment. This Agreement may not be assigned by either Party without the written consent of the other Party; provided, however, Nine Multimedia may assign this Agreement to any affiliate of Nine Multimedia or to any entity acquiring all or substantially all of assets of Nine Multimedia. Either Party may also assign this Agreement as collateral to any entity providing financing to such Party. Any assignments to a financing Party shall not relieve Nine Multimedia from its obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of Company and Nine Multimedia.

Miscellaneous Provisions. This Agreement and the representations, warranties and covenants contained herein shall survive consummation of the transactions herein contemplated. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby. This Agreement may be executed in any number of counterparts, each of which shall constitute an original. Section headings have been inserted in this Agreement as a matter of convenience and for reference only and it is agreed that such section headings are not a part of this Agreement and shall not be used in the interpretation of any provision of this Agreement. Whenever used herein, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be applicable to all genders.

Entire Agreement; Modifications. This Agreement constitutes the entire agreement between the parties hereto and all prior agreements, understandings, obligations or statements by and between the parties concerning the subject matter hereof will be merged into and be superseded by this Agreement and shall be of no further force and effect. No failure or delay on the part of any Party in exercising any right, power, privilege or remedy arising hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power, privilege or remedy preclude any other or future exercise thereof or the exercise of any other right, power, privilege or remedy. No notice to or demand on any Party in any case shall entitle it to any other or further notice or demand in similar or other circumstances. No modification, amendment or waiver of any provision of this Agreement, nor any consent to any departure by any Party from the terms hereof, shall be effective unless the same be in writing and signed by all parties hereto.


SOFTWARE LICENSE AGREEMENT

Definition of Application. The Application is computer software owned by Nine Multimedia known as Content Gateway, Mobile Media Storefront, Media Content Library Database, Video Transcoding Server, and Campaign Manager.

Grant of License. Nine Multimedia hereby grants Company a limited, nonexclusive, nontransferable license to use the Application to facilitate and manage the delivery of Content over the Nine Multimedia Gateway Platform in accordance with the terms set forth herein. Company shall not, nor shall it permit others to: (a) use the Application outside of the context set forth herein or for purposes other than those set forth herein; (b) download, copy, recreate, disassemble, modify, translate, reverse engineer or decompile the Application; or (c) assign, sell, sublicense, lease, or otherwise transfer Company's right to use the Application as set forth herein. The Company shall also be entitled to all updates and upgrades to the Application and Documentation that are produced from time to time by Nine Multimedia in its sole discretion and offered to Nine Multimedia customers without fee.

Access to Application. The Application shall reside on one or more computers hosted and managed by Nine Multimedia that are accessible only by the internet (the "Hosting Services"). The Company shall be responsible for the acquisition, configuration, monitoring, maintenance and management of all hardware and software at the Company's location necessary to access the Application, including local area networks, computers, software, telecommunications, internet access and devices.

Setup Services. Nine Multimedia shall provide basic training assistance on usage of the Application, including phone support and, if required, NetMeeting sessions to explain the use of the Application and review the Documentation provided in association with the Application.

Modifications to Application. Nine Multimedia shall not be obligated to make any alteration, modification, customization or enhancement to the Application that is necessary or desired for the Company's internal purposes, and any such alteration, modification, customization or enhancement shall only be made by Nine Multimedia at the Company's expense on such terms that are set forth in Schedule B attached hereto or a separate writing between Nine Multimedia and the Company.

Limited Warranty. Nine Multimedia warrants that for a period of ninety (90) days after implementation of the Application, the Application shall substantially perform in accordance with the Documentation. Company's sole and exclusive remedy and Nine Multimedia's sole liability shall be for Nine Multimedia, at Nine Multimedia's sole option, to (i) replace the Application that does not meet the limited warranty, (ii) attempt to correct any defects which Company finds in the Application during the warranty period, or (iii) refund the license fee for the Application. Any replacement Application received by Company shall be warranted for the remainder of the original warranty period or for thirty (30) days, whichever is longer. If Company discovers a defect in the Application during the warranty period, Company shall provide written notice to Nine Multimedia that includes (i) a statement that the Application does not substantially perform in accordance with the Documentation, (ii) a list of defects in the Application, (iii) detailed information regarding each defect. The limited warranty shall be null and void if (i) Company modifies or changes its copy of the Application in any way, or if any failure of the Application resulted from accident, misuse, abuse, or misapplication by Company, or its employees or agents, (ii) errors or defects are attributable to equipment malfunction, products other than the Application, use of the Application in conflict or contravention of the Documentation or the terms of this Agreement, or accident, neglect, misuse, or abuse of the Application; or (iii) Company does not provide the written notice to Nine Multimedia as provided herein. Nine Multimedia does not warrant that the operation of the Application will be uninterrupted or error free or that all defects in the Application will be corrected.

CUSTOMIZATION AND SETUP SERVICES

Customization Services. Nine Multimedia offers certain developmental and professional services to design and develop modifications or enhancements (hereinafter, "Modifications") to current or future Applications that utilize the Nine Multimedia Gateway Platform (hereinafter, the "Customization Services"). The ultimate scope of such Customization Services, whether for design development, custom programming or other agreed upon services, shall be based upon the needs and determinations of Company as reflected in an applicable statement of work ("Statement of Work") and shall only be undertaken by Nine Multimedia pursuant to a prior written Statement of Work entered into by the parties or as set forth herein.

Statement of Work. Nine Multimedia shall not be obligated to make any Modifications to an Application unless the Company and Nine Multimedia execute a Statement of Work to evidence the terms and conditions under which the Modifications will be made. From time to time, either Company or Nine Multimedia may initiate a draft Statement of Work for the others' consideration. Once finalized with authorized signatures, the Statement of Work shall be an addendum to and subject to the conditions and terms of this Agreement. Each Statement of Work shall, at a minimum, include the following before services begin:

The parties may specify any further terms and conditions that are to be made part of the Statement of Work. The deliverables under a Statement of Work shall be deemed accepted by Company when such deliverable(s) have been implemented or delivered by Nine Multimedia and made ready for use in accordance with the installation and operating specifications of the Statement of Work and Nine Multimedia has tested the deliverable to insure that it operates in accordance with the specifications contained in the Statement of Work.

Ownership of Work Product of Customization Services. The Company and Nine Multimedia agree that Nine Multimedia shall be the sole owner of any Modifications to an Application that are created as a result of any Statement of Work, and that the Company shall be entitled to use the Modifications on the same terms, and to the same extent, as the Company is authorized to use the Application. In addition, Nine Multimedia shall retain the right to use the ideas, concepts, tools, templates, methods, processes, know-how, organization techniques and other intellectual property used by it in the development of the Modifications requested by the Company. Company acknowledges that Nine Multimedia is in the business of licensing the Application and the Nine Multimedia Gateway Platform to others, and providing Hosting and Delivery Services associated therewith, and that Nine Multimedia may develop Modifications for other parties that are identical or similar to the Modifications developed for the Company. Nothing contained herein shall preclude or inhibit Nine Multimedia from developing, marketing, using, licensing, providing or selling any products or services to third parties that are similar or identical in function, design or otherwise to those provided to the Company.

Limited Warranty. Any Modification to an Application shall be deemed a part of the Application, and Nine Multimedia warrants the Modification only to the same extent that its warrants the Application, except that the time period during which Nine Multimedia warrants the Modification shall be for ninety (90) days from the installation of the Modification.

CONTENT DELIVERY SERVICES

SMS & MMS Content Delivery Service.

Nine Multimedia Gateway Platform. Nine Multimedia agrees to use commercially reasonable efforts to deliver Content provided by the Company to Carriers (for delivery to Subscribers) by means of the Nine Multimedia Gateway Platform as described in this Agreement. Nine Multimedia is responsible for obtaining and maintaining at its sole cost and expense the Nine Multimedia Gateway Platform, and the Company shall not have any liability for the Nine Multimedia Gateway Platform.

The Company System. The Company is responsible for obtaining and maintaining at its sole cost and expense the its system (the "Company System") for delivering or receiving Content to or from the Nine Multimedia Gateway Platform, and Nine Multimedia shall not have any liability for the Company System.

Company's Communications with Nine Multimedia Gateway Platform. The Company shall provide the connection between the Company System and the Nine Multimedia Gateway Platform at its own costs and expense. The Company shall deal directly with the relevant telecommunications company for service recovery issues should the connection(s) fail. The Company will be responsible for maintaining security of the connection between the Company System and the Nine Multimedia Gateway Platform. The connection must be achieved through a persistent physical or logical connection (such as a frame relay or virtual private connection) ("Persistent Connection") per written specifications provided by Nine Multimedia. The Company must comply with all reasonable security requirements and procedures established by Nine Multimedia for the Persistent Connection. The Company and Nine Multimedia shall provide each other with such technical and other assistance as is reasonably necessary in connection with the testing and connection of the Nine Multimedia Gateway Platform and the Company System.

Compliance with Laws, Regulations and Carrier Guidelines. The Company shall comply with all applicable laws, rules, regulations, directives, statements, codes of practice, and MMA Guidelines and applicable Carrier guidelines with respect to the Delivery Services, text messaging in general and otherwise in connection with performing its obligations under this Agreement.

Content Format. The Company shall provide Content to the Nine Multimedia Gateway Platform in such format as Nine Multimedia may require from time to time. Nine Multimedia may amend the formats required for the Services by providing reasonable advance notice thereof. The Company shall provide at least thirty (30) days advance written notice to Nine Multimedia for any change in the formatting of the Content. Content Delivery Limitations. The Nine Multimedia Gateway Platform forwards Content delivered by the Company to Carriers for forwarding to Subscribers of the Carrier. However, Nine Multimedia is not obligated ensure the delivery of Content by Carriers to Subscribers, and the Company agrees that the Nine Multimedia bears no liability to the Company or any Third Parties in the event a Carrier does not forward Content to a Subscriber. Upon request, Nine Multimedia will provide its standard reports to the Company indicating whether Content has been delivered to Subscribers.

Limitations on Content.

Content Standards. The Company agrees to adhere to the Content Standards, and any changes to the Content Standards required by the Carriers from time to time, and agrees that no Content shall violate the Content Standards. In the event the Company fails to comply with the Content Standards, Nine Multimedia, in addition to all other remedies available to it at law and equity, may suspend the Delivery Services after providing written notice of the breach, until such breach has been cured. If the Company fails to cure the breach within 30 days of Nine Multimedia's written notification to the Company, Nine Multimedia may terminate this Agreement without further liability, obligation or penalty.

Blacklisted Numbers. The Company acknowledges that some or all Carriers have implemented a "blacklist" that contains the mobile phone numbers for Subscribers that do not want to receive text messages. If and when Carriers provide this blacklist to Nine Multimedia, Nine Multimedia will provide the blacklist to the Company, in which case the Company will not send any Content to any number on the blacklist.

Content Disclaimer. The Company agrees that Nine Multimedia and/or the Carriers, in their sole discretion, may reject sending all or part of any Content to Carriers. Nine Multimedia will notify the Company in writing within five (5) business days if Content is being rejected by Nine Multimedia and the reasons for the rejection. The Company agrees that Nine Multimedia will not be liable for rejection of any Content. The Company is solely responsible for ensuring that the Content it supplies is accurate, complete and correct, and shall be solely responsible for all claims or liability arising from the distribution and publication of Content. Nine Multimedia shall have no obligation to read, proofread or correct any Content supplied by the Company, nor shall have any responsibility for the accuracy, completeness or correctness of any Content supplied by the Company, nor shall it have any obligation to read any Content to determine whether it contains Confidential Information.

Filtering. Nine Multimedia reserves the right to filter or have filtered Content without the prior written permission of the Company, without assuming any obligation to filter such Content, to ensure compliance with this Agreement, Nine Multimedia agreements with Third Parties and applicable laws and regulations. Any blocked Content will not be deemed to have been delivered to Carriers for purposes of determining applicable fees.

Third Party Consents for Content. The Company agrees not to send Content that requires a Third Party consent unless it has obtained that consent in writing. Nine Multimedia may delay or suspend the delivery of any Content until the Company has provided Nine Multimedia with evidence, reasonably satisfactory to Nine Multimedia, that the Company is authorized to send the Content.

Suspension. Nine Multimedia may, without terminating this Agreement and without any liability to the Company or any Third Party, immediately suspend part or all of the Delivery Services or the link between the Nine Multimedia Gateway Platform and the Company System due to any of the conditions set forth below. Nine Multimedia will notify the Company as soon as reasonably possible and if such suspension is a direct result of any action by the Company, the Company will take reasonable steps to fix such problems. The reasons for possible suspension include but are not limited to:

Unauthorized or fraudulent use of the Delivery Services, or if the Company's use of the Delivery Services is causing or may cause damage to the Nine Multimedia Gateway Platform or to a Carrier's system; or

Any breach by the Company of its obligations to Nine Multimedia.

Forecast. If and when requested by Nine Multimedia, the Company shall provide to Nine Multimedia an estimate ("Forecast") of its usage of the Delivery Services. This Forecast will be for at least three (3) months, and thereafter a three (3) month Forecast shall be provided at the start of each calendar quarter (January 1st, April 1st, July 1st, October 1st) within at least the first ten (10) days of the applicable quarter. These Forecasts shall include the estimated number of total mobile originate and mobile terminate messages to be forwarded by Nine Multimedia, Content traffic patterns, and peak messages per second. The Company shall inform Nine Multimedia, as far in advance as possible, of any anticipated increase in the volume of messages to be transmitted or received by the Company. Nine Multimedia shall have the right to regulate such volume or shut down the Delivery Services with written notice to the Company if Nine Multimedia reasonably suspects or determines that the Nine Multimedia Gateway Platform, the Delivery Services, any Nine Multimedia services or any Carrier service will be materially impaired by such number of messages. Nine Multimedia will work with the Company to develop a traffic pattern that will not impair the Nine Multimedia Gateway Platform or Carrier systems as a result of increased traffic estimates.

Subscriber Opt-in/Opt-out Mechanism. Company agrees to comply with, and be solely responsible for compliance with, all "opt-in" and "opt-out" requirements for receiving messaging (including Content) under all applicable laws, Carrier Standards and MMA Guidelines. Company shall provide a short code response, website, and customer care email in which Subscribers can indicate to Company whether they wish to receive or cease receiving Content. For example, a response of "stop" to a text message would mean that the subscriber has "opted out" and should no longer receive test messages from the Company. The Company shall immediately comply with any Subscriber request to cease receiving Content. The Company shall provide contact information (at a minimum an email address) for the Company's customer service at the same time and in a noticeable location (i.e., on the same web page or in the same SMS) as Subscribers register for the Company's Delivery Services. The Company must include an obvious notice that "other charges may apply" at the same time and location (i.e., on the same web page or in the same SMS) as Subscribers register for the Company's Delivery Services.

Representations and Warranties of Company. Company represents, warrants and covenants to Nine Multimedia that the Content (a) will not contain any material that is obscene, profane, libelous or defamatory; (b) will not violate or infringe any copyright, patent, trademark or trade secret or right of privacy or publicity or any other personal or proprietary right of Nine Multimedia or any Third Parties; (c) will comply with the law, Content Standards and MMA Guidelines; and (d) at the time of delivery to Nine Multimedia, will not contain any viruses, worms, trap doors, back doors, timers, clocks, counter or other limiting routines, instructions or designs. Company further represents and warrants that it will not use the Delivery Services, or allow any Third Parties to use the Delivery Services, in violation of the law, Content Standards or MMA Guidelines to engage in any spamming, mail-bombing, spoofing or any fraudulent, illegal, unauthorized or improper use.

Carrier Customer Service Costs. If any Carrier makes a charge to or deduction from payments to Nine Multimedia for Premium Content Services, then Nine Multimedia shall be entitled to recover from the Company the amount of any such charges or deductions. Nine Multimedia agrees to provide the same level of detail (related to the charges) to the Company that is provided to Nine Multimedia by the Carriers.

Indemnification under Company Agreements. When Company negotiates agreements with its customers where the Delivery Services may be used, Company will use commercially reasonable efforts to include in Company's customer agreements indemnification rights against such customers for any claims, suits, actions or proceedings which would constitute Claims under this Agreement. Upon written request by Nine Multimedia and subject to Company's confidentiality obligations with respect to its customers, Company will notify Nine Multimedia of the extent to which it has obtained such indemnification rights against Company's customers. Company's compliance with this Section does not relieve it of its indemnification obligations under this Agreement.

CARRIER MANDATED CONTENT STANDARDS

The Carriers prohibit the delivery of Content over their systems of the type listed below, and reserve the right to amend their list of prohibited Content at any time. Accordingly, Company may not submit Content to the Nine Multimedia Gateway Platform of the type listed below. The list does not apply to Subscriber originated messages. Nine Multimedia reserves the right, in its sole discretion, to modify the list upon written notice to Company, including as required by any Carrier.

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Copyright © 2007-2010 Nine Multimedia Inc. All rights reserved.

Nine Mobile is a SMS & MMS delivery network. We send marketing and advertising response and broadcast messages for brands that have trusted relationship with their clients. If you have received a message from shortcode 85800 then it was sent on behalf of a brand advertiser that is using our shared shortcode system to deliver the information that you requested. If you feel that you would like to be removed from the mobile message, then please text the word STOP to 85800.

NineMobile.com operates shortcode number 85800 as a free service and does not charge the end customer for information or media. We do not offer premium download services or mobile pay subscription services on the 85800 shortcode. Standard message fees may apply from your wireless carrier.

We Deliver on These Carriers. *Standard Messaging Charges Apply. * See Terms & Conditions.

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