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IMPORTANT – READ CAREFULLY.
This Cherple™ License Agreement (this “Agreement”)
is a legal contract between You (“You”)
and Globaltel Media, Inc. (“GTM”).
This Agreement contains the terms and conditions that
You must accept and that will apply to You for the GTM
Cherple software product that accompanies this Agreement,
and its content, including documentation, application
program interfaces, and any patches, updates, upgrades,
improvements, enhancements, fixes and revised versions
that may be provided to You from time to time (“Software”)
and the Cherple services provided through or in connection
with the Software (the “Service”). By clicking
on the “ACCEPT” button, You agree to be
bound by the terms of this Agreement. If You do not
agree to the terms of this Agreement, click on the “CANCEL”
button, close the browser window, and terminate the
registration process. You represent and warrant that
you are at least 18 years of age or, as applicable,
You possess the legal right and ability to enter into
this Agreement. If You are agreeing to be bound to this
Agreement in Your capacity as an employee or other representative
of a company or other entity, You hereby represent that
You have the authority to enter into binding agreements
on behalf of such entity.
1. SCOPE OF THE SOFTWARE LICENSE.
1.1 License. Subject to Your compliance with the terms
and conditions of this Agreement, GTM grants to You
a nontransferable, nonsublicensable and nonexclusive
right to use and access the functionality of the Software
through Your website or Internet application, and to
allow other users to use and access such functionality,
all in accordance with this Agreement.
1.2 Restrictions. You may not modify, reverse engineer,
decompile, or disassemble the Software, except and only
to the extent that such restrictions are prohibited
by applicable law. You may not remove or alter any notice
or mark of GTM, or any third party logo or mark, accompanying
the Software. You may not resell the Software or use
the Software for service bureau purposes.
2. SERVICE.
2.1 Acknowledgements. You acknowledge that GTM must
comply with all use policies and codes of conduct imposed
by its wireless messaging aggregators and carriers.
You agree that GTM may conduct any activity that it
reasonably deems necessary to comply with such requirements,
including without limiting by limiting the number of
messages that may be sent to a cell phone number may
receive as a safeguard against spamming activities.
2.2 Conduct. You agree to abide by all applicable local
and national laws and regulations and are solely responsible
for all acts or omissions that occur under Your account,
including the content of any transmissions. You are
solely responsible for any content of messages transmitted
by Your or Your users through the Services (the “Content”),
except for any content added by GTM in order to comply
with Section 2.1 above. You shall not (and shall not
permit Your users to): (i) use the Services in connection
with junk SMS messages, spamming or any unsolicited
messages (commercial or otherwise); (ii) harvest or
otherwise collect information about others, including
email addresses, without their consent; (iii) create
a false identity mobile phone address or header, or
otherwise attempt to mislead others as to the identity
of the sender or the origin of the message; (iv) transmit
through the Software, associate with the Software or
publish with the Software any unlawful, harassing, libelous,
abusive, threatening, and harmful, vulgar, obscene or
otherwise objectionable material of any kind or nature;
(v) transmit any material that may infringe the intellectual
property rights or other rights of third parties, including
trademark, copyright or right of publicity; (vi) libel,
defame or slander any person, or infringe upon any person’s
privacy rights; (vii) transmit any material that contains
viruses, Trojan horses, worms, time bombs, cancelbots,
or any other harmful or deleterious programs; (viii)
interfere with or disrupt networks connected to the
Software or violate the regulations, policies or procedures
of such networks; (ix) attempt to gain unauthorized
access to the Software, other accounts, computer systems
or networks connected to the Software, through password
mining or any other means; (x) place any advertising
on or in connection with the Content; or (xi) engage
in any other activity that GTM believes could subject
it to criminal liability or civil penalty or judgment.
GTM may refuse to transmit any Content through the Service
but has no obligation to review any Content.
2.3 Consent to Advertising. You irrevocably consent
and agree that GTM may, but is not obliged, to sell
or otherwise monetize the rights to display advertisements
content in connection with the Content and the user
interface for the Software that appears on Your site
or Internet application.
3. TERMINATION. Without prejudice to any other rights
and without any liability to You or any third party,
either party may terminate this Agreement with immediate
effect upon the failure of the other party to comply
with any of the terms and conditions of this Agreement.
Such termination shall be effective immediately upon
notification by GTM to You in any reasonable manner,
including but not limited to notification by email or
text. You may terminate this Agreement by providing
GTM with notice thereof. In either such event, Your
license to the Software shall immediate terminate, and
You must destroy all copies of the Software. Each party’s
obligations under Sections 4 (Ownership), 6 (Disclaimer),
7 (Indemnification), 8 (Limitation of Liability), 9
(Regulatory), and 10 (General)] will survive any termination
of this Agreement.
4. OWNERSHIP. All rights not expressly granted to You
herein are expressly reserved by GTM. The Software,
and any improvements or modifications thereto (including
without limitation any suggestions that You or Your
users make regarding new features, functionality or
performance, whether adopted or not), are and will remain
exclusive property of GTM and its licensors. Except
with respect to the license grant, nothing in this Agreement
will be deemed to grant, by implication, estoppel, or
otherwise, a license under any of GTM’s or its
licensor’s, existing or future rights in or to
the Software.
5. MODIFICATIONS TO SOFTWARE. GTM may modify or discontinue
any aspect or feature of the Software and Service, in
either case, as it deems reasonably necessary. Such
changes shall be effective immediately upon posting
of such addition, change, or deletion. Any use by You
of the Software or Service after any such change has
been posted shall constitute the acceptance of any such
changes. If You do not agree with any such changes,
you may terminate this Agreement in accordance with
Section 3 (Termination).
6. DISCLAIMER. Your use of the Software and Services
is entirely at Your own risk. You are responsible for
obtaining and maintaining all computer hardware, software
and communications equipment needed to support Your
website and access the Software, and for paying all
related access charges. The Software and Service is
made available to You only “AS IS”, AND
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GTM
MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SOFTWARE
OR SERVICE, AND HEREBY DISCLAIMS ALL WARRANTIES, STATUTORY,
EXPRESS OR IMPLIED REGARDING THE SOFTWARE, INCLUDING
WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
You acknowledge that GTM has no control over mobile
telephone network coverage and, as a result, messages
may not be delivered or received.
7. INDEMNIFICATION. You will defend, indemnify, and
hold harmless GTM and its affiliates, licensors, suppliers,
officers directors, employees and agents from and against
any and all claims, suits, proceedings, damages, costs,
and expenses, including court costs and reasonable attorneys’
fees arising out of or incurred as a result of: Your
or Your users’ gross negligence, willful misconduct
or use of the Software or Services any component thereof
in a manner in violation of this Agreement, except to
the extent such claim is based on an indemnification
obligation of GTM. GTM will defend, indemnify, and hold
harmless You, and Your officers directors, employees
and agents from and against any and all claims, suits,
proceedings, damages, costs, and expenses, including
court costs and reasonable attorneys’ fees arising
out of or incurred as a result of: the infringement
of any third party intellectual property rights by the
Software or Service (other than with respect to the
content of any messages). Each party, as indemnitee,
agrees to provide the indemnifying party with the opportunity
to assume sole control the defense of the claim.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, IN NO EVENT WILL GTM OR ITS SUPPLIERS
BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INDIRECT,
GENERAL, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND,
INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF
BUSINESS, LOSS OF SYSTEMS OR DATA, COST OF PROCUREMENT
OF SUBSTITUTE SOFTWARE OR LOSS OF PROFIT OR REVENUE,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
AND THE SOFTWARE AND SERVICES RENDERED HEREUNDER (HOWEVER
ARISING, INCLUDING NEGLIGENCE), EVEN IF GTM OR ITS SUPPLIERS
ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. GTM SHALL
NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN EXCESS
IN THE AGGREGATE OF $10,000. Some jurisdictions do not
allow the exclusion or limitation of liability for certain
damages, so the above limitation may not apply to you
to the extent prohibited by such applicable laws.
9. REGULATORY. The Software is subject to United States
export control laws and regulations; You may not install,
download or otherwise export or reexport the Software
(i) into (or to a national or resident of) any country
that is subject to a U.S. trade embargo (“Embargoed
Country”); or (ii) to anyone listed on the U.S.
Treasury Department’s list of Specially Designated
Nationals, or the U.S. Commerce Department’s Table
of Denial Orders, Entity List, or Unverified List (collectively
“Denied Persons”). By installing, downloading
or using the Application, you represent and warrant
that you are not located in, under the control of, or
a national or resident of any Embargoed Country, and
that you are not, and not under the control of, any
Denied Persons.
10. GENERAL. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter
hereof. Though freely assignable by GTM, You may not
assign or transfer this Agreement, or any of the rights
or obligations hereunder, by operation of law or otherwise,
without the prior written consent of GTM and any attempt
to do so shall be void. This Agreement will be interpreted,
construed and enforced in all respects in accordance
with the laws of the State of California without reference
to its choice of law rules. THE SOLE JURISDICTION AND
VENUE FOR ACTIONS RELATED TO THE SUBJECT MATTER OF THIS
AGREEMENT SHALL BE THE STATE AND US FEDERAL COURTS HAVING
WITHIN THEIR JURISDICTION THE SAN DIEGO, CALIFORNIA.
If any provision of this Agreement is held by a court
of law to be illegal, invalid, or unenforceable, the
legality, validity, and enforceability of the remaining
provisions of this Agreement will not be affected or
impaired thereby and the illegal, invalid, or unenforceable
provision will be deemed modified such that it is legal,
valid, and enforceable and accomplishes the intention
of the parties to the fullest extent possible. The failure
of either party to enforce any provision of this Agreement,
unless waived in writing by such party, will not constitute
a waiver of that party’s right to enforce that
provision or any other provision of this Agreement.
All notices to GTM required or permitted under this
Agreement must be in writing; must be personally delivered
or sent by registered or certified mail (postage prepaid),
by overnight courier, or by facsimile (receipt confirmed),
to the following address: Globaltel Media, Inc., 4653
Carmel Mountain Road, Suite 308-508, San Diego, California
92130, USA, Attention: [Contracts Administration].
4345602v.2
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