MogoTXT: MogoTXT Terms of Service

1. ACCEPTANCE OF TERMS

MogoTXT provides its products and services ("Services") to you, subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. Although we may attempt to notify you when major changes are made to the TOS, you should visit this page periodically to review the TOS. MogoTXT may, in its sole discretion, modify or revise the TOS at any time. Your use of Services following the posting of any changes, modifications or revisions to the TOS shall constitute your consent to the changes, modifications or revisions to the TOS, and you agree to be bound by these changes, modifications or revisions.

2. DESCRIPTION OF SERVICES

MogoTXT's Services (including MogoTXT SMS messaging services) provides registered users with web-to-mobile messaging, mobile-to-mobile messaging, and other messaging and communications capabilities. You understand and agree that Services may include advertisements and that these advertisements are necessary for MogoTXT to provide the Services. You also agree to receive up to the number of advertising and marketing impressions per month agreed upon by you and MogoTXT via text messages from MogoTXT and its advertising partners. You also understand and agree that MogoTXT may, at its sole discretion, modify Services at any time and that MogoTXT reserves the right to change the number of text messages and any other goods and Services offered by MogoTXT or to eliminate all Services offered by MogoTXT in their entirety. You also understand and agree that Services may include certain communications from MogoTXT, such as service announcements and administrative messages, and that these communications are considered part of Services. Unless explicitly stated otherwise, any new features that augment or enhance the current Services shall be subject to the TOS. You understand and agree that Services are provided to you on an "AS-IS" basis and that MogoTXT assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to Services and that access and subsequent usage may involve third party fees (including, but not limited to, Internet service provider, mobile telephone subscription, text message reception, and airtime charges). You are solely responsible for all such third party fees. In addition, you must provide and are responsible for all equipment needed to access and use Services.

3. YOUR REGISTRATION OBLIGATIONS

In consideration for your use of Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving Services under the laws of the United States or any other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by MogoTXT's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or MogoTXT has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, MogoTXT has the right to suspend or terminate your account and refuse any and all current or future use of Services (or any portion thereof). Children under the age of 13 must obtain the consent of a parent or legal guardian in order to sign up for a MogoTXT account or use any of MogoTXT's Services.

4. MOGOTXT PRIVACY POLICY

Registration Data and certain other information about you are subject to our Privacy Policy. For more information, please review our full privacy policy. You understand that through your use of Services you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing, and use by MogoTXT and its affiliates.

5. MEMBER ACCOUNT, PASSWORD AND SECURITY

You will receive a password and account designation upon completing MogoTXT's registration process. You are responsible for maintaining the confidentiality of the password and account designation and are fully responsible for all activities that occur under your password or account designation. You agree to (a) immediately notify MogoTXT 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. MogoTXT cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5.

6. MEMBER CONDUCT

You understand that all information, data, text, software, music, sound, photographs, graphics, audio, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not MogoTXT, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via Services. MogoTXT does not control the Content posted via Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will MogoTXT be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via Services.

You agree to not use Services to:

a. upload, post, text message, email, transmit or otherwise make available any Adult Content or 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;
b. harm minors in any way;
c. impersonate any person or entity, including, but not limited to, a MogoTXT official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through Services;
e. upload, post, text message, 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);
f. upload, post, text message, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
g. upload, post, text message, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
h. upload, post, text message, 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 mobile telephone, mobile device, computer software or hardware or telecommunications equipment;
i. disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of Services are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
j. interfere with or disrupt Services or servers or networks connected to Services, or disobey any requirements, procedures, policies or regulations of networks connected to Services;
k. 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;
l. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
m. "stalk" or otherwise harass another; and/or
n. collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through m above.

You acknowledge that MogoTXT may or may not pre-screen Content, but that MogoTXT 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 Services. Without limiting the foregoing, MogoTXT 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. In this regard, you acknowledge that you may not rely on any Content on Services.

You acknowledge, consent and agree that MogoTXT 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 any subpoena or other 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; or (e) protect the rights, property, or personal safety of MogoTXT, its users and the public.

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

7. SPECIAL ADMONITIONS FOR INTERNATIONAL USE

Recognizing the global nature of both the Internet and telecommunications networks, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

8. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON SERVICES

MogoTXT does not claim ownership of Content you submit or make available for inclusion on Services. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of Services, you grant to MogoTXT the following worldwide, royalty-free and non-exclusive license(s), as applicable:

With respect to Content you submit or make available for inclusion on publicly accessible areas of Services, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on Services and elsewhere for the purpose for which such Content was submitted or made available and also for the purpose of providing and promoting Services to which such Content was submitted or made available.
With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on publicly accessible areas of Services, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.

"Publicly accessible" areas of Services are those areas of Services that are intended by MogoTXT to be available to the general public. For example, publicly accessible areas of Services include those portions of Services that are open to both members and visitors. Publicly accessible areas of Services do not include portions of Services that are expressly restricted to certain members.

9. INDEMNITY

You agree to indemnify and hold MogoTXT, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through Services, your use of Services, your connection to Services, your violation of the TOS, or your violation of any rights of another.

10. NO RESALE OF SERVICES

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of Services (including your MogoTXT I.D., account, account designation, password and other MogoTXT information), use of Services, or access to Services.

11. GENERAL PRACTICES REGARDING USE AND STORAGE

You acknowledge that MogoTXT may establish general practices and limits concerning use of Services, including without limitation the maximum number of days that text messages, email messages, postings or other uploaded Content will be retained by Services, the maximum number of text messages and email messages that may be sent from or received by an account on Services, the maximum size of any text message or email message that may be sent from or received by an account on Services, the maximum disk space that will be allotted on MogoTXT's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access Services in a given period of time. You agree that MogoTXT has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by Services. You acknowledge that MogoTXT reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that MogoTXT reserves the right to modify these general practices and limits from time to time.

12. MODIFICATIONS TO SERVICES

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

13. TERMINATION

You agree that MogoTXT may, under certain circumstances and without prior notice, immediately terminate your MogoTXT account, any associated text message name or address and/or email address, and access to Services. 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 Services (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) your engagement in fraudulent, illegal or improper activities, and/or (h) nonpayment of any fees owed by you in connection with Services. Termination of your MogoTXT account includes (a) removal of access to all offerings within Services, (b) deletion of your password and all related information, files and Content associated with or inside your account (or any part thereof), and (c) barring your further use of Services. You further agree that all terminations for cause shall be made in MogoTXT's sole discretion and that MogoTXT shall not be liable to you or any third-party for any termination of your account, any associated text message address, email address, or access to Services.

14. DEALINGS WITH ADVERTISERS

Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through Services, including payment and delivery of related goods or Services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that MogoTXT shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on Services.

15. LINKS

Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because MogoTXT has no control over such sites and resources, you acknowledge and agree that MogoTXT is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources.

16. MOGOTXT'S PROPRIETARY RIGHTS

You acknowledge and agree that Services and any necessary software used in connection with Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through Services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by MogoTXT or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on Services or the Software, in whole or in part.

If MogoTXT makes Software available to you for downloading to your computer, downloading to your mobile device or otherwise, MogoTXT grants to you a personal, non-transferable and non-exclusive right and license to use the object code of such Software on a single computer, a single mobile device or otherwise for personal use only; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to Services. You agree not to access Services by any means other than through the interfaces that are provided by MogoTXT for use in accessing Services.

17. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF SERVICES IS AT YOUR SOLE RISK. SERVICES IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MOGOTXT 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.
MOGOTXT MAKES NO WARRANTY THAT (i) SERVICES WILL MEET YOUR REQUIREMENTS, (ii) SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOGOTXT OR THROUGH OR FROM SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING SERVICES. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING SERVICES. IMMEDIATELY DISCONTINUE USE OF SERVICES AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING SERVICES -- DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.

18. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT MOGOTXT 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 MOGOTXT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE SERVICES; (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 SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SERVICES; OR (v) ANY OTHER MATTER RELATING TO SERVICES.

19. 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.

20. 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.

21. NOTICE

MogoTXT may provide you with notices, including those regarding changes to the TOS, by either text message, e-mail, regular mail, or postings on Services.

22. TRADEMARK INFORMATION

The trademarks, service marks, logos and product and service names of MogoTXT are trademarks of MogoTXT, Inc. (the "MogoTXT Marks"). You agree not to display or use in any manner, the MogoTXT Marks without MogoTXT's express prior permission.

23. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT

MogoTXT respects the intellectual property of others, and we ask our users to do the same. MogoTXT may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to MogoTXT's Copyright Agent:

an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the site;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

MogoTXT's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:

By mail:

Copyright Agent
c/o MogoTXT, Inc.
1825 So. Grant Street, Suite 620
San Mateo, CA 94402

By email: help@mogotxt.com

24. GENERAL INFORMATION

Entire Agreement. The TOS constitutes the entire agreement between you and MogoTXT and governs your use of Services, superseding any prior agreements between you and MogoTXT with respect to Services. You also may be subject to additional terms and conditions that may apply when you use features and capabilities offered by MogoTXT in the future.

Choice of Law and Forum. The TOS and the relationship between you and MogoTXT shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and MogoTXT agree to submit to the personal and exclusive jurisdiction of California state courts located within the county of San Mateo, California and federal courts located within the city and county of San Francisco, California.

Waiver and Severability of Terms. The failure of MogoTXT 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 at issue, and the other provisions of the TOS shall remain in full force and effect.

No Right of Survivorship and Non-Transferability. You agree that your MogoTXT account is non-transferable and any rights to your MogoTXT I.D., account, account designation, password or contents within your account will terminate upon your death. Upon receipt of a copy of a death certificate, your account will 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 the use of Services 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.

25. VIOLATIONS

Please report any violations of the TOS to our Support department at help@mogotxt.com.

V.052808