This Agreement (the “Agreement”) is made and entered into Date: 09/20/2019 (the “Effective Date”) by and between Client Name: {Single Line Text:9} (“Client”) and MobiConcepts, LLC DBA Textboom (“Textboom”).

PREAMBLE:

Client desires to provide certain messages to its customers (“users”) utilizing standard rate SMS, text messaging. Textboom is able to provide such services to Client which will include standard rate SMS, text messaging (the “Program”) on the terms and provisions set forth herein.

Now, therefore, the parties desire to evidence their agreement in writing as follows:

1. Program.  Client desires to send commercial messages to Users to promote certain products and services via standard rate SMS. Registration of Users for the Program shall be via a web opt-in process or via following a mobile call to action (Text KEYWORD to a SHORTCODE) for the purpose of receiving certain promotions or to enroll in certain Client programs.  When a potential User registers, he / she shall receive a text message reply to include details regarding the Program they enrolled to or a promotion. All messages provided via the Program shall be entered by Client into the ExCELLence web-based campaign management platform (“Symphony”).
2. Specific Duties of Textboom.  During the term of this Agreement, Textboom will:
1. Provide all necessary technology and programming to allow for Client’s messages to be launched. Included functionality: Auto Responder (Single and Double), Data Collection, Broadcast, Text2Win (2 types), Text 2 Quiz (2 types) and Text 2 Vote.
2. Provide log-in information to Client in order to access Symphony in order to change the auto responder message or launch additional messages.
3. Provide automatic database management services to include the elimination of opted-out cellular phone numbers.
4. Allow for the transmittal of text messages in a format which is supported by the carriers identified on the attached Exhibit “A”.
5. Assist client by providing industry regulation information as it becomes available to Textboom.
3. Fees for Services.  For the services to be provided by Textboom, Client shall pay the following fees as indicated:
1. Monthly Content Management System: {Product:14:currency}
2. Monthly Use of Common Short Code: Included
1. For the first 1 – {Choose your Plan:14:value}/month: Included
2. {Choose your Plan:14:value}+: $0.009
3. Standard Rate SMS MO (incoming message): Waived
4. Network Look-up:  Included up to your plan SMS allotment. (75,000)
   1. Per Lookup Over : $0.01
5. Per MT and/or MO SMS carrier surcharges (this is a pass-through cost that is paid to the carriers): Waived (Inclusive Pricing)
4. Conditions for Services.
1. This Agreement shall commence on the Effective Date set forth above and shall continue in full force and effect on a month to month basis (the “Initial Term”). The agreement shall renew each month and requires 1 month notice for termination.
2. Textboom reserves the right to refuse participation in any SMS (text) / Email message campaign that violates any law, governmental order, or mobile phone carrier (“Carrier”) rule or regulation.
3. Textboom makes no representation, promises or covenants as to the success of the Program nor does Textboom represent, promise or covenant that the SMS(text) / Email messages will be compatible with all subscribers or that its messages or services will be fully in compliance with U.S. Carrier requirements.
4.  Client shall abide by all Carrier regulations, rules and terms as well as, all local, state and federal laws and/or regulations with regard to all sent messages.  Client is solely responsible to obtain any and all licenses permission and/or intellectual properties of any third party.
5. Payments of Compensation to Textboom.  On the Effective date, Textboom shall start charging the Monthly Content Management System plus Monthly Use of Common Short Code fee plus Monthly Minimum Message Volume Obligation plus any fees due for use of messaging and network look-ups or any other fees agreed to by Client above and beyond the included fees (“Monthly Fee:)”). Additional Monthly Fees shall become due on the same day of each and every month following during the term of this Agreement. There will be no carryover of any unutilized amounts or balances from month to month.
6. Confidential Information.  The parties agree that during the term of this Agreement they will not disclose to others, by publication or otherwise, or to use for any purpose whatsoever, any confidential proprietary information of either party which may be obtained or acquired hereunder, except as authorized in writing by the party whose proprietary information is being used including compensation paid by and received by Textboom.  Information shall not be deemed “confidential” for purposes of this Agreement that (i) is already known to either party at the time of disclosure; (ii) is or becomes publicly known through no wrongful act of either party; (iii) is received from a third party without similar restrictions and without breach of this Agreement; (iv) is independently developed by either party; or (v) is lawfully required to be disclosed by any governmental Client or otherwise required to be disclosed by law. 
7. Termination.  This Agreement may be terminated as follows:
   1. If Client fails to pay any amount due hereunder to Textboom within 10 days after receiving
      written notice of such failure from Textboom, Textboom may elect to terminate this Agreement immediately upon written notice thereof to Client and all monthly fees will be due at the point of termination.
   2. If Client knowingly and deliberately takes any action that violates any local, state, federal or
      Carrier rule, law, order or regulation
   3. If Client breaches any other terms and provisions of this Agreement.
   4. If the parties mutually agree in writing.
   5. If Textboom changes the pricing indicated in item 3 to this Agreement.
   6. If either party gives the other a written notice of termination at least 30 days prior to the expiration of the then current term.

In the event of termination of this Agreement, Textboom shall be entitled to all compensation for services provided up to the date of termination.

8. Notices.

All notices and other communications under this Agreement shall be in writing and shall be delivered by e-mail or sent by certified, registered mail or by an express mail courier, postage prepaid.  Any such notices or other communications shall be deemed given: (a) upon actual delivery if presented personally or sent by facsimile transmission and (b) three (3) business days following deposit in the United States mail, if sent by certified, registered mail, postage prepaid, in each case to the following address:

MobiConcepts DBA Textboom,
2000 Ponce de Leon Blvd, Suite 600
Coral Gables, FL 33134
e-mail: support@textboom.com

Client Name: {Single Line Text:9}
Client Address: {Address:38.1}{Address:38.2} {Address:38.3} {Address:38.4}{Address:38.5}
e-mail: {Email:8}

Notice of any change in any such address shall also be given in the manner set forth above.  Whenever the giving of notice is required, the giving of such notice may be waived by the party entitled to receive such notice.

9. Severalability.  If any term or provision of this Agreement shall, to any extent be held invalid or unenforceable, the remainder of this Agreement other than those provisions as to which it is held invalid or unenforceable, shall not be affected and the remaining terms and provisions of this Agreement shall be valid and enforced to the fullest extent permitted by law.
10. Entire Agreement.  Except as otherwise stated, this instrument constitutes the entire agreement between the parties and replaces and supersedes, as of the date hereof, any and all prior agreements and understandings, whether oral or written, between the parties.
11. Binding Effect.  This Agreement shall be binding upon and endure to the benefit of the successors in interest, assigns and personal representatives of the respective parties.
12. Counterparts.  This Agreement may be executed in two or more counterparts, each of which, when so executed and delivered, shall constitute a single agreement.
13. Terms and Conditions – General:
    1. Client is responsible for proofreading and approving the information for the text messages
       to be disseminated by Textboom. This applies to all text messages, Push campaigns and information set forth on the Program.  Textboom shall not be responsible for any errors approved by Client.
    2. Client warrants and represents to Textboom that: (i) it is authorized to provide the marketing information supplied to Textboom; (ii) that all marks, copyrights and other intellectual property utilized in its promotional messages is either owned by it or licensed to it for proper dissemination by Textboom; (iii) the text supplied by Client to Textboom for dissemination does not violate the intellectual property or trade secret rights of any third parties; (iv) that it or its advertisers will fulfill all promotions in accordance with the terms advertised; and that (v) it possesses all licenses and permits to lawfully conduct its business operations.
    3. Client agrees to indemnify and hold Textboom harmless along with its officers, directors, employees and agents from and against all claims, causes of action, damages, liabilities, judgments, losses, costs and expenses (including, without limitation, reimbursement for attorneys’ fees, costs and expenses) based upon or arising out of or in connection with: (i) its breach or default of any provision of this agreement; (ii) the breach of its warranties or representations set forth herein; and/or (iii) the operations of its business and complaints from any third party relating to the advertising and promotions disseminated pursuant to this Agreement.
    4. Textboom hereby warrants and represents: (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation; (ii) that it has the legal right and authority to enter into and perform its obligations under this agreement; and (iii) that it will utilize standards prevailing in the industry to perform its services hereunder; and (iv) that it will use all data collected via the Program for the sole use of the Program and shall not share, sell or otherwise disseminate such data to any third party other than Client unless required to do so by law.
    5. In the event it is determined Textboom breached any warranties or representations or agreements required of it under this Agreement, the sole remedy of Client shall be for Textboom to either: (i) refund Client the amount of fees paid to it for the months involved in such breach; or (ii) to resupply the advertising in accordance with the terms hereof, which remedy shall be made in the sole discretion of Textboom.
    6. THE FOREGOING WARRANTIES, TERMS OR CONDITIONS ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  THE AGGREGATE LIABILITY OF TEXTBOOM ARISING OUT OF, OR RELATING TO, THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHER LEGAL AUTHORITY) SHALL NOT EXCEED THE AMOUNT OF FEES BILLED BY TEXTBOOM TO Client PURSUANT TO THIS AGREEMENT IN ANY TWELVE (12) MONTH PERIOD.  IN ADDITION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS), WHETHER OR NOT NOTIFIED OF SUCH DAMAGES.
    7. The parties agree that any dispute, controversy or claim arising out of or relating to this Agreement, whether based on contract, tort, statute or other legal theory of the breach hereof shall be resolved in binding arbitration in accordance with the following provisions.  Such dispute shall be resolved by binding arbitration to be conducted in accordance with the international arbitration rules of the American Arbitration Association before one arbitrator who shall be selected jointly by the parties, or if the parties cannot agree on the selection of an arbitrator, such arbitrator shall be selected by the American Arbitration Association.  The arbitration proceeding shall be conducted in Broward County, Florida.  Each party shall be responsible for fifty (50%) percent of the cost of arbitration.
    8. The parties hereto waive trial by jury in any judicial proceeding involving, directly or indirectly, any matter (whether in tort, contract or otherwise) in any way arising out of, related to or connected with this agreement, any related documents or their relationship established hereunder.  Notwithstanding the foregoing, it is the intent of the parties to resolve all disputes related to this Agreement pursuant to binding arbitration as provided for above.
    9. Neither party shall be liable for any reasonable delay or failure in performance of its duties under this agreement or for any interruption of services rendered hereunder, which results directly or indirectly from acts of God, civil or military authority, acts of public enemies, war, accidents, fires, earthquakes, the elements, utility companies or any other cause beyond the direct and reasonable control of such party.

Whereof, the parties hereto have executed this Agreement effective as of the date first above written.

Client Name:

By: {Name:5.3} {Name:5.6}                                            
As its authorized representative

MobiConcepts, LLC DBA Textboom
By: Lesley Lopez

Express written consent may be written on paper or obtained electronically via a text message exchange between consumer and Client or online, and compliance with the E-SIGN Act satisfies this requirement. If express written consent is obtained via electronic signatures, Client will capture proof of same such as an IP Address, website pages that contain consumer consent language and fields, associated screenshot of the consent webpage as seen by the consumer where the phone number was inputted, complete data record submitted by the consumer (with time and date stamp), other identification sources sufficient to substantiate that express written consent was indeed obtained from the consumer and/or Screenshots for the record. All collected information is obtained for a minimum of four (4) years from the date of last contact with Client’s respective consumer.

4. Client agrees that any request for consent from consumers that will allow Client to make autodialed and/or pre-recorded calls or send text messages that are sent or made to a wireless telephone or a pre-recorded call made to a residential land line, will give consumer a CLEAR AND CONSPICIOUS DISCLOSURE that consumer will receive future text messages or calls that deliver autodialed and/or pre-recorded messages on behalf of Client; that consumer’s consent is not a condition of purchase; that consumer will be assessed standard message and data rates for text messages; and that consumer must designate a phone number at which to be reached.

5. Client agrees that prior express written consent for all text messages or auto-dialed calls to wireless telephones will meet the requirements of the October 16, 2013 effective rule change; and that such consent must include, but not be limited to, a clearly and conspicuously placed disclosure (for example, not simply in a terms weblink, but also directly in the text message or on the homepage or consumer collection page of the website in close proximity and readable font to the consumer entry point) that the consumer who is submitting their information agrees and consents to receive return telephone calls through the use of an “autodialer” from Client, and that consent to receive such calls or text messages “does not obligate the consumer to purchase.” The consent must be affirmatively consented to, such as through the use of an open-checkbox, and a screenshot and IP address (or other recordable proof) that is provided to MobiConcepts upon request and maintained for at least four years in an easily searchable format.

6. Client, agrees to assume any and all liability for any data residing on Client, and any of Client’s Agents, Affiliates, Associates, Assignees, Partners, successors in interest, or the like, account or sub accounts (Including but not limited to: consumer cell phone numbers) uploaded to the system or otherwise received via the system, which was acquired BEFORE October 16, 2013 and hereby represents and confirms to MobiConcepts that this data complies with the new amendments to the TCPA. If Client wishes to designate certain data as compliant while the rest is not in compliance, Client shall list such compliant data elements (names of Databases for example) in Exhibit B to this affidavit. If none of the data acquired prior to October 16, 2013 is compliant, please check below. By not checking below and not designating any certain data elements in Exhibit B client confirms that its entire data is compliant as discussed above.

• None of the data acquired prior to October 16, 2013 is compliant.

EXHIBIT A

Information Regarding New Telephone Consumer Protection Act (“TCPA”) Restrictions
On February 15, 2012 the FCC adopted additional restrictions to the TCPA. The new restrictions apply to businesses that use Automatic Telephone Dialing Systems (ATDS or “dialer”) to dial cellular or wireless phones for marketing and sales calls, SMS Text Messages, and/or placing pre-recorded calls made to residential land lines for marketing or sales calls. The restrictions went into effect October 16, 2013. The changes to the TCPA are as follows:

1.         ATDS may not be used to dial cellular or wireless phones for marketing or sales calls, unless having first received prior express written permission from the consumer to call their cell phone with a dialer. The written consent must conspicuously tell the consumer, among other things, both that an “autodialer” will be used to dial their wireless number, and that the consumer’s consent does not obligate them to purchase. 

2.         Text/SMS messages that are auto-dialed or auto-sent to wireless devices also require prior express written consent.

3.         Pre-recorded calls may not be made to residential land lines for marketing or sales calls unless having first received prior express written permission from the consumer to call their residential land line with a dialer.  Pre-recorded message calls that are used for marketing or sales (Robo-calls) are expressly prohibited, unless a very specific prior written consent is obtained from the consumer consistent with TCPA regulations.

Definitions Pertinent to the Affidavit

The Telephone Consumer Protection Act (“TCPA”): Passed into law in 1991, the TCPA empowers the FCC to make rules and regulations following the TCPA. Generally the TCPA regulates the telemarketing industry by placing restrictions on telephone solicitations and the use of automated telephone equipment. Violations of the TCPA give individuals the right to file lawsuits and collect damages for up to $1500 per call.

Telemarketing call: Calls made to generate leads or solicit products or services to consumers.  Informational calls and calls made for non-commercial purposes are exempt from FCC regulation, such as pure charitable calls.

Autodialed call: The FCC has a very broad definition of “autodialer.”  It can best be described as equipment which has the capacity (regardless of whether or not it uses that capacity) to take a phone number that has been either previously produced by the equipment or has been previously stored in the equipment, and dial that phone number without human intervention.  If you are unsure, we recommend that you consult with an attorney who has expertise in telemarketing law. SMS text messages to cell phones are considered “calls” under the TCPA. The TCPA applies to both voice and short message service (SMS) text messages, if they are transmitted for marketing purposes. The TCPA has been interpreted in recent years to prohibit the sending of unsolicited commercial text messages to cell phones – with limited exceptions (i.e., messages sent for real emergency purposes).

Robocall: is a phone call that uses an “autodialer” system to deliver a pre-recorded telemarketing message.  The message is a pre-recorded voice, computer voice, or other artificial voice played to a consumer.

Abandoned call:  an outbound telephone call is deemed “abandoned” if a person answers the telephone and the caller does not connect the call to a sales representative within two seconds of the called person’s completed greeting.

Do Not Call List: Consumers are entitled to place their wireless (cellular) and residential lines on a National Do Not Call List. Any reference to the Do Not Call List herein shall bear the same definition as that utilized in the Do-Not-Call Implementation Act, Public Law No. 108-10, 117 Stat. 557 (2003), codified at 15 U.S.C. § 6101.