Client Terms and Condition

Date of Last Revision: February 13, 2008

SMSJOCK.COM (the "Service") is a wireless service provided by FEEDTEXT INC. ("FEEDTEXT"), to you as the owner and/or operator of a CORPORATION (as used herein, “you” shall refer to the CORPORATION(s) such as but not limited to TV, Radio, Print, Consumer Brand Owner and Advertising agency its such employees and agents, as applicable). By accessing or using our web site our Service, you signify that you have read, understand and agree to be bound by these Terms and Conditions ("Terms of Use" or "Agreement"), We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Conditions at any time without further notice. If we do this, we will indicate at the top of this page the date these terms were last revised. Your continued use of the Service or the Site after any such changes constitutes your acceptance of the new Terms and Conditions. If you do not agree to abide by these or any future Terms and Conditions, do not use or access (or continue to use or access) the Service or the Site. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes. These Terms and Conditions will apply to all participants in the Service.

Service Participation. Participation in the Service is subject to Feedtext prior approval and CORPORATION continued compliance with this terms and conditions located at www.smsjock.com, or such other URL as Feedtext may provide from time to time. Feedtext reserves the right to refuse participation to any applicant or participant at any time in its sole discretion.

Implementation and Operation of Alerts, Messages, Poll, Contest, Requests, Script Generator

You agree to comply with the specifications provided by Feedtext from time to time to enable proper operation of the Feedtext application including without limitation the following features of Feedtext Alerts, Messages, Poll, Contest, Requests and Register Nick.

Alerts/Club. If you have elected to enable Alerts, you are obliged to create at least 3 alerts per week and up to a maximum of 7 alerts per week. Maximum alerts sent in a day will be limited to one alert. These alerts once created will be pushed to all your Alerts/Club subscribers on the day it was created. You acknowledge that you will allow Feedtext to push wireless content to its subscriber base without the permission of the CORPORATION via its Alert/Club service e.g. Announcements, News, Quotes and Events. You represent and warrant that the content being used by you in the Alert/Club service does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and are not pornographic, hate-related or otherwise violent or criminal in content. Feedtext will not be liable for non-performance, misdirection or non-receipt, misdelivery of the messages.

Messages and Requests: All messages received by Feedtext intended for your account will be forwarded to your SMSJOCK.COM account for your viewing. Feedtext will not be liable for non-performance, misdirection or non-receipt, misdelivery of the messages.

POLL: The poll feature is a tool provided by Feedtext. If you have elected to use the POLL Feature, you agree to use it in a lawful manner. You also acknowledge that you have complete authority to conduct any polls, including without limitation intellectual property ownership and applicable licenses.

Contest: The contest feature is only a tool provided by Feedtext, and Feedtext therefore will not provide any prizes for any contest provided or conducted by you. All regulatory permits, etc. are for and on your behalf. Feedtext will only provide the tool to you to conduct SMS based contest. Ie. Multiple Choice, Y/N with a text raffle to draw the winner. (nth texter, random pick).

Script Generator and Announcement of the Service

You agree that you will announce the service on air using the script that the Service will generate including but not limited to the keyword to be announced, price of the service, and other charges applied by mobile service carriers (“Carriers”). You will also announce on air the application URL www.smsjock.com for more information regarding the service. You will encourage users to use the application by promoting the service on air. Feedtext will not be liable for non-performance, misdirection or non-receipt, misdelivery of the messages. You agree that SMSJOCK.COM may add cross sell messages at the end of the message.

Ownership of Content Used in Connection with the Service

You represent and warrant that the content being used by you in connection with the Service (the “Content”) does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and is not pornographic, hate-related or otherwise violent or criminal in content. Feedtext will not be liable for non-performance, misdirection or non-receipt, misdelivery of the messages.

Feedtext does not claim ownership of the materials you provide to Feedtext Alerts, club, (including news, events, announcements, quotes, feedback and suggestions) or that you post, upload, input or submit to the Service for review and receipt of your subscribers, by the general public, or by the members of any public or private community. However, by posting, uploading, inputting, providing or submitting ("Posting") your Submission you are granting Feedtext permission to use your Submission in connection with the operation of their business, including, without limitation, the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; to publish your name in connection with your Submission; and the right to sublicense such rights. No compensation shall be paid with respect to the use of your Submission, as provided herein. Feedtext is under no obligation to post or use any Submission you may provide and Feedtext may remove any Submission at any time in its sole discretion. By Posting a Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in these Terms of Use including, without limitation, all the rights necessary for you to Post the Submissions.  

Updates . From time to time Feedtext may deploy in its discretion updates, fixes or solutions to problems or bugs in the Service. Feedtext shall incorporate and provide the Updates at no additional charge to CORPORATION when and if available. 

Ownership . Feedtext is, and shall remain, the licensee or the owner of the Service and any related documentation and all related intellectual property, including without limitation, all copyright, trade secret, patent, trade marks and other intellectual property rights therein and including any derivative works made during the Term or thereafter (“Feedtext Property”). No property or ownership right or interest in the Feedtext Property or any part thereof is granted to you by virtue of this Agreement, the rights granted hereunder to you being solely contractual in nature. You hereby assign to Feedtext all of your right, title and interest in any such Feedtext Property. 

Parties' Responsibilities.

This Service requires you to open an account. You must complete the registration process by providing Feedtext with current, complete and accurate information as prompted by the applicable registration form. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Feedtext immediately of any unauthorized use of your account or any other breach of security. Feedtext will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Feedtext or another party due to someone else using your account or password, including usage of service by minors. The Service subscription is not transferable, such that you may not authorize other persons to use your account. Any distribution by you of your account name and password may result in cancellation of your subscription.

You are solely responsible for the account that you are using, including all content and materials, maintenance and operation thereof, the proper implementation of Feedtext's specifications, and adherence to the terms of this Agreement. Feedtext reserves the right to investigate, at its own discretion, any activity that may violate this Agreement, including but not limited to any use of a software application to access archives, messages, request, poll, alerts and contests etc. Feedtext is not responsible for anything related to the content in your account. Including without limitation the alerts, contest and poll created by you and the messages and request received from your end users or listeners. In addition, Feedtext shall not be obligated to provide notice to you in the event of any malfunctions of the Service, or any technical abnormalities caused by force majeure or mechanical, including but not limited to inability of the application to send or create alerts, polls and contest, or the Service's failure to receive messages or request from the listeners and registration of nickname.

Privacy Policy . You shall comply with Feedtext current Privacy Policy. You acknowledge that Carriers cannot guarantee the privacy of Messages, and accordingly you agree that neither Feedtext nor the Carriers will be liable to you or any other party for any lack of privacy or security experienced when using the application. You also acknowledge that to the extent permitted by law, Carriers have the right to intercept and disclose any transmissions over their facilities in order to protect their rights or property, including without limitation, to protect the efficient operation of their networks or to comply with governmental authorities.

As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Service in any manner that could damage, disable, overburden, or impair SMSJOCK.COM, or any network connected to the Service, or interfere with any other party's use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, accounts, computer systems or networks connected to the Service, through any means. Feedtext reserves the right at all times to disclose any information as Feedtext deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in its sole discretion.

 Trademarks. You hereby grant to Feedtext a non-exclusive, non-transferable, royalty-free license to use, reproduce, distribute and display your trademarks, service marks and logos (the “CORPORATION Trademarks”) during the Term and solely in connection with the performance of the Services under this Agreement. Feedtext agrees that as between the parties all uses of the CORPORATION Trademarks, including the goodwill and reputation associated therewith, will inure to your benefit. 

System Requirements.  Use of the Service requires a compatible device, Internet access (fees may apply), and certain software (separate fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service and Content involves hardware, software, and Internet access, your ability to use the Service and Content may be affected by the performance of these factors. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility.

Termination/Cancellation

Termination .   Feedtext reserves the right in its sole discretion to terminate or restrict your use of the Feedtext Service, without notice, for any or no reason whatsoever.

Effect of Termination.   Upon termination of this Agreement for any reason, each Party shall promptly return the other Party's Confidential Information (as defined below) or destroy it as directed by the owner of the Confidential Information and certify its destruction in writing within ten (10) days. Any other sections that by their nature refer to obligations of a Party applicable beyond the Term, shall survive the expiration or termination of this Agreement. Upon the termination or expiration of this Agreement, the Parties hereto agree that each Party shall immediately cease the utilization of any trademarks of the other. 

Confidentiality.  You agree not to disclose Feedtext Confidential Information without Feedtext's prior written consent. " Feedtext Confidential Information " includes without limitation: (a) all Feedtext software, technology, programming, specifications, materials, guidelines and documentation relating to the Service; (b) statistics relating to the applications performance in the Service provided to you by Feedtext; and (c) any other information designated in writing by Feedtext as "Confidential" or an equivalent designation. Feedtext Confidential Information does not include information that has become publicly known through no breach by you or Feedtext, or information that has been (i) independently developed without access to Feedtext Confidential Information, as evidenced in writing; (ii) rightfully received by you from a third party; or (iii) required to be disclosed by law or by a governmental authority.

No Guarantee . Feedtext makes no guarantee regarding the number of messages and requests received by the Service and the timing and the number of delivered alerts under this Agreement. Feedtext also makes no guarantee that you will be launched on all the wireless carrier that Feedtext supports. All programs undergo a certification process and Feedtext may only activate your program or mobile marketing campaign upon approval of the carriers.

No Warranty . FEEDTEXT MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ALERTS, MESSAGES, POLL, CONTEST, REQUESTS, NICKNAME REGISTRATION, POLL PULLS, CONTEST PULLS AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. FEEDTEXT SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE ALERTS, MESSAGES, POLL, CONTEST, REQUESTS, NICKNAME REGISTRATION, POLL PULLS, CONTEST PULLS OF THE SERVICE RECEIVED BY YOU AND CREATED BY YOU FOR DISTRIBUTION TO YOUR SUBSCRIBERS.

Limitations of Liability: Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE SERVICE, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.

No liability for actions by Carriers and Feedtext.  You acknowledge and agree that, with respect to Carrier and Feedtext communications services: (a) one hundred percent of the Messages may not be delivered; and (b) neither Feedtext nor any Carrier will be liable to you for any Messages deleted or not delivered, regardless of the reason for deletion or non-delivery including, without limitation, message processing or transmission errors. Neither Feedtext nor any Carrier makes any representations or warranties regarding the quality, reliability, timeliness or security of the carrier communications services or that they will be error-free, uninterrupted, free from unauthorized access or that all messages will be delivered. Feedtext is not responsible for loss of business, financial, or otherwise resulting from any of the services that it offers.

Publicity. You agree that Feedtext may use your name and logo in presentations, marketing materials, CORPORATION lists, financial reports, Web site listings of CORPORATIONs, Search Results Pages, and Referral Pages. If you wish to use Feedtext's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features (" Brand Features "), you may do so, so long as such use is in compliance with this Agreement and in compliance with Feedtext policies

Representations and Warranties. You represent and warrant that (a) all of the information provided by you to Feedtext to enroll in the Service is correct and current; (b) you are the owner of the CORPORATION or that you are legally authorized to act on behalf of the owner of CORPORATION for the purposes of this Agreement and the Service; (c) you have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of you hereunder; and (d) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the FCC regulations and any relevant data protection or privacy laws) in your performance of any acts hereunder. You further represent and warrant that your account in the Service and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent and criminal in content.

CORPORATION Obligation to Indemnify. You agree to indemnify, defend and hold Feedtext, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively " Indemnified Person(s) ") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from your use of the Service, the Site(s), and/or your breach of any term of this Agreement.

Carrier Restrictions/Requirements . 

General Carrier Restrictions . You acknowledge and agree that (i) one or more Carriers may obligate Feedtext to require certain commitments and representations from third parties such as you seeking to use such Carriers' services and/or equipment, (ii) Carriers' approval is subject to existing 3 rd party procedures, and that processing periods may vary, (iii) Feedtext may be required to deliver and obtain agreement to terms of use of the Carriers' services and/or one or more Carriers' services or equipment from Subscribers, and/or (iv) certain Carriers may place limitations on the type, length, maximum rate of message flow, or other characteristics of Messages that such Carriers will agree to handle at a given time.

Feedtext will provide written notice to you of any Carrier terms (including updates thereof from time to time if required by Carriers) that Feedtext is obligated to require you to acknowledge and comply with. You will promptly notify Feedtext if you determine that you are unwilling to comply or cannot comply with or authorize or enable Feedtext to comply with such Carrier's then-current requirements. You acknowledge that such noncompliance may result in Feedtext's suspension of its performance of the Services under this Agreement with respect to one or more Carriers or Content.

Message Blocking . You acknowledge that Carriers reserve the right to investigate any subscriber complaints alleging a violation by Feedtext or its content providers (such as you) of a Carrier agreement or a violation of requirements imposed by Carriers on Feedtext and/or its content providers. You acknowledge that if a Carrier reasonably believes that Feedtext has violated such requirements, Carrier may refuse to transmit messages and may suspend or remove Feedtext's access to the Carrier network. If Carriers notify Feedtext of any alleged violation, and Feedtext does not promptly remedy such violation (for example, by denying access to a subscriber sending inappropriate messages to other subscribers), the applicable Carrier may also terminate its agreement concerning access by the Service to such Carrier's network. You further acknowledge that if a Carrier receives a complaint from a CORPORATION, end-user or a governmental or law enforcement agency (“Outside Complaint”) claiming that any messages are unlawful, obscene, racially or ethnically offensive or depict sexually explicit materials or infringe on the intellectual property rights of others, the Carrier may notify Feedtext in writing of such Outside Complaint and, in addition, may suspend such Carrier's connection with Feedtext until such time as the complaint is remedied or otherwise resolved. Feedtext has agreed to remedy any such complaints as promptly as is commercially reasonable. You acknowledge that such remedies may include without limitation removing the recipient of mobile-terminated messages from various participant lists or blocking certain access to the Service. You acknowledge that the obligations described in this section may prevent Feedtext from performing under this Agreement with respect to such Carriers. 

Feedtext Rights. You acknowledge that Feedtext owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Service and that you will not acquire any right, title, or interest in or to the Service except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Feedtext services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Service or proprietary information related thereto. You will not remove, obscure, or alter Feedtext copyright notices, Brand Features, or other proprietary rights notices affixed to or contained within any Feedtext services, software, or documentation. " Intellectual Property Rights " means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.

Information Rights. Feedtext may retain and use, subject to the terms of the Feedtext Privacy Policy, all information you provide, including but not limited to Service demographics and contact and billing information. You agree that Feedtext may transfer and disclose to third parties personally identifiable information about you for the purpose of approving and enabling your participation in the Service, including to third parties that reside in jurisdictions with less restrictive data laws than your own. Feedtext may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Feedtext disclaims all responsibility, and will not be liable to you, however, for any disclosure of that information by any such third party. Feedtext may share non-personally-identifiable information about you, including your account, account-specific statistics and similar information collected by Feedtext, with advertisers, business partners, sponsors, and other third parties. In addition, you grant Feedtext the right to access, index and cache account information, or any portion thereof, including by automated means including Web spiders or crawlers.

Miscellaneous. This Agreement shall be governed by the laws of the State of California , except for its conflicts of law principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Santa Clara County , California . The parties specifically exclude application of the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by your online acceptance of updated terms, or after your continued participation in the Service after such terms have been updated by Feedtext. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Feedtext

No Waiver.  A waiver by either of the Parties of any term or condition of this Agreement in any particular instance shall not be deemed or construed to be a waiver of such term or condition for the future or any subsequent breach thereof whether or not of the same or similar nature. No course of dealings or continuing conduct of either Party shall constitute a waiver of or amendment to any provision hereof. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either of the Parties.

Severability.   If any provision of this Agreement, or part thereof, is held by a court of competent jurisdiction to be void or unenforceable it shall be deemed to have been severed from this Agreement and the remainder of the provisions of this Agreement shall thereafter continue in full force and effect to the extent permitted by law.

Entire Agreement .  This Agreement contains the entire agreement between the Parties with respect to the matters contained herein and supersedes all previous discussions, negotiations, understandings, expectations, representations and agreements between the Parties. There are no additional or collateral representations, warranties, terms, conditions, expectations or agreements between the Parties regarding the subject matter hereof, except those expressly set forth herein.

Assignment .  Subject to the following sentence, neither Party may assign its rights and obligations under or transfer any of its interest in this Agreement, without the prior consent of the other Party Notwithstanding the foregoing, either Party may assign this Agreement or transfer any of its interest to any affiliate of such Party, to a purchaser of all or substantially all of such Party's assets, to a successor in interest of such Party or as part of a corporate reorganization, consolidation or merger. This Agreement and each of the provisions hereof shall insure to the benefit of and be binding upon the Parties and their respective successors, administrators and permitted assigns.

Further Assurances . The Parties agree to do and perform and cause to be done and performed such further and other acts and things as may be reasonably necessary or desirable in order to give full force and effect to this Agreement.