Terms

SMSCLIK, LLC (“Company “) welcomes the undersigned customer (“You”). SMSCLIK provides its service to You subject to the following Terms of Service (“TOS”), which may be updated from time to time at SMSCLIK’ discretion with notice provided to you via e-mail. By logging into our system you agree to the terms of service.

DESCRIPTION OF PRODUCTS & SERVICE

SMSCLIK provides clients with an innovative method to transmit information via SMS text messaging, managed via an easy-to-use web site (the “Service”).

You agree that the Service may include certain communications from SMSCLIK to You via email, such as service announcements and administrative messages, and that these communications are considered part of SMSCLIK membership and You may not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, shall be subject to the TOS. You understand and agree that the Service is provided “AS-IS” and that SMSCLIK assumes no responsibility for the timeliness, deletions, mis-deliveries or failures to store any user communications or personalization settings. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. You must provide and are responsible for all equipment necessary to access the Service.

FEES FOR USE

From time to time, we will offer discount code “coupons” to some of our clients. Upon activation of the coupon, You may continue to use the discount indefinitely, unless otherwise noted. All fees are paid monthly via credit card, cash, or check. Returned checks are subject to a $30.00 processing fee and immediate suspension of account. By using this service, you agree to allow SMSCLIK to charge your credit card for all fees incurred. SMSCLIK offers a month to month agreement. 30 days notice to cancel an account is required. There will be no pro-rated rates. Accounts falling past due or with returned payments are subject to additional fees and your account will be locked until account is current. If delinquency is not cured and/or your account is under agreement we reserve the right to flag numbers on account. In order to avoid another billing cycle we must receive your notice on the day of your billing.

SMSCLIK, LLC. PRIVACY POLICY

In order to set up Your account, You must provide SMSCLIK certain information, such as credit card numbers, cell phone numbers and billing addresses. SMSCLIK will never release Your information to anyone for any reason without prior approval by You, unless required to do so by law. As part of its service, SMSCLIK collects the phone numbers of prospective buyers that access information via text message (SMS). The phone numbers collected by Your leased codes will never be shared with other SMSCLIK users (unless those numbers are collected by another user’s leased codes) of the system nor will they be distributed outside the system, unless required by law. SMSCLIK will never market to these phone numbers under any circumstances whatsoever. Accounts falling past due are subject to a lock on their account.

MEMBER ACCOUNT, PASSWORD AND SECURITY

You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify SMSCLIK of any unauthorized use of Your password or account or any other breach of security, and (b) ensure that you exit from Your account at the end of each session. SMSCLIK is not liable for any loss or damage arising from Your failure to comply with this Section 5.

MEMBER CONDUCT

You agree to not use the Service to:

1. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

2. harm minors in any way;

3. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

4. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;

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

6. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or

7. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law.

You acknowledge that SMSCLIK may or may not pre-screen Content, but that SMSCLIK and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, SMSCLIK and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

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

You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by SMSCLIK and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.

INDEMNITY

You agree to defend, indemnify and hold SMSCLIK, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim, complaint, demand or lawsuit, including reasonable attorneys’ fees, made by any third party due to or arising in any way out of Your subscription with SMSCLIK or Your use of SMSCLIK services.

NO RESALE OF SERVICE

SMSCLIK service is non-transferable. You may not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.

MODIFICATIONS TO SERVICE

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

TERMINATION

You agree that SMSCLIK may, under certain circumstances and without prior notice, immediately terminate Your SMSCLIK account and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by You (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) You have engaged in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of Your SMSCLIK account includes (a) removal of access to all offerings within the Service (b) deletion of your password and all related information, text associated to codes, activity reports and content associated with or inside Your account (or any part thereof), and (c) barring further use of the Service. Further, You agree that all terminations for cause shall be made at SMSCLIK sole discretion and that SMSCLIK shall not be liable to You or any third-party for any termination of your account or access to the Service.

SPAM & TCPA COMPLIANCE

You may not spam using Toll Free Numbers, Short Codes, or 10DLC. Harvesting of numbers (obtaining numbers without the prior written consent of a numbers owner) is strictly prohibited. By manually adding subscribers to your account or providing a list of subscribers to be added, you certify that each subscriber or mobile user has explicitly given you permission to be added as a subscriber for marketing and/or communication purposes. Multiple complaints generated from numbers that have been added without proof of permission will be cause for immediate termination of account if not handles within 48 hours after notification. OPT OUT instructions should be included in your messages.

SMSCLIK PROPRIETARY RIGHTS

You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by SMSCLIK, You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

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

SMSCLIK MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

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

LIMITATION OF LIABILITY

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

EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY TO YOU.

NO THIRD PARTY BENEFICIARIES

You agree that, except as otherwise expressly provided in this TOS, there shall be no third party beneficiaries to this Agreement.

NOTICE

SMSCLIK may provide You with notices, including those regarding changes to the TOS, by either email, regular mail, or postings on the Service.

TRADEMARK INFORMATION

The SMSCLIK logo any trademarks and service marks and other SMSCLIK logos and product and service names are trademarks of SMSCLIK, LLC (the “SMSCLIK Marks”). SMSCLIK grants you permission to use the SMSCLIK marks on advertising brochures, sign riders and other real estate-oriented marketing campaigns. All other uses not associated with improving your real estate business are expressly prohibited without the prior approval of SMSCLIK.

GENERAL INFORMATION

Entire Agreement. The TOS constitutes the entire agreement between You and SMSCLIK and governs your use of the Service, superseding any prior agreements between You and SMSCLIK with respect to the Service.

Choice of Law and Forum. The TOS and the relationship between you and SMSCLIK shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. You and SMSCLIK agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Palm Beach, Florida .

Waiver and Severability of Terms. The failure of SMSCLIK to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.

No Right of Survivorship and Non-Transferability. You agree that your SMSCLIK account is non-transferable and any rights to Your SMSCLIK or contents within Your account terminate upon Your death. Upon receipt of a copy of a death certificate, Your account may be terminated and all contents therein permanently deleted.

Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The section titles in the TOS are for convenience only and have no legal or contractual effect.

VIOLATIONS

Please report any violations of the TOS to our Violation ([email protected]) group.

DISPUTE RESOLUTION BY BINDING ARBITRATION

We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information, and the proposed resolution. You agree to contact Us with disputes by writing to Us. Company will contact You by letter to Your billing address You provided Us.

Instead Of Suing In Court, We Each Agree To Arbitrate Disputes We each agree to finally settle all disputes (as defined and subject to any specific exceptions below) only by arbitration. In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and conditions in this Agreement, the Terms of Use, and the Privacy Statement, and can award the same damages and relief, including any attorney’s fees authorized by law. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act (“FAA”), and judgment on the award may be entered in any court with jurisdiction. We also each agree as follows:

“Disputes” are any claims (including the definition of “claims” contained in the section Limitation of Liability and Disclaimer of Warranty above) or controversies against each other related in any way to this Agreement, the Terms of Use, the Privacy Statement, or Your purchase and use of the Product. This includes claims You bring against Our affiliates, officers, directors, shareholders, employees, independent contractors, telecommunications providers, or agents or other representatives, or that Company brings against You. If either Company or You wants to arbitrate a dispute, We each agree to send written notice to the other providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution. Notice to You will be sent to Your billing address that You provided Us. We each agree to make attempts to resolve this dispute within forty-five (45) days of receipt of the notice to arbitrate, then We may submit the dispute to formal arbitration.

The FAA applies to this Agreement and arbitration provision. We each agree that the FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration. The arbitration will be administered by the National Arbitration Forum (“NAF”) under its arbitration rules. If any NAF rule conflicts with the terms of this Agreement, the terms of this Agreement apply. You can obtain procedures, rules, and fee information from the NAF at www.adrforum.com.

Unless We each agree otherwise, the Arbitration will be conducted by a single neutral arbitrator and will take place in the state of Your last billing address. The federal or state law that applies to the Agreement will also apply during the Arbitration.

We each agree not to pursue arbitration on a consolidated or class-wide basis. We each agree that any arbitration will be solely between You and Company (not brought on behalf of or together with another individual’s claim). If for any reason any court or arbitrator hold that this restriction in unconscionable or unenforceable, then this agreement to arbitrate does not apply and the dispute must be brought in court.

We each are responsible for our own costs relating to counsel, experts, and witnesses, as well as any other costs relating to the arbitration. However, Company will cover any arbitration administrative or filing fee above: (a) $25 if You are seeking less than $1,000 from Company; or (b) the equivalent court filing fees for a court action in the appropriate jurisdiction if you are seeking $1,000 or more from us.

No Class Actions

TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.

No Trial By Jury

TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.