Terms of Use

Universal End User Agreement for HeyWire Services

1. GENERAL

1.1   Your use of services and products, including software (collectively, the “Services”), provided by HeyWire, Inc. (“HeyWire”) is governed by the terms of this Universal End User Agreement. The terms of this Universal End User Agreement may be supplemented by additional terms specific to particular Services you may use (“Additional Terms”). In the event of any inconsistency between the terms of this Universal End User Agreement and any Additional Terms, the Additional Terms govern as to the Services to which they apply. This Universal End User Agreement, as supplemented by any Service Specific Terms, is referred to as this “Agreement”). You are referred to as “Customer”. Each of HeyWire and Customer is sometimes referred to in this Agreement as a “Party” and they are sometimes referred to collectively as the “Parties”. 

1.1.1.   HeyWire communication through our short code services are subject to HeyWire’s Shortcode Terms & Conditions which can be found at http://www.heywire.com/sc-terms-of-use

1.2. As a condition of using any Services, Customer must agree to the terms of the Agreement. By clicking “accept” below, Customer acknowledges such agreement. In any event, by actually using any Services, Customer is accepting and agreeing to the terms of the Agreement.

1.3. Notwithstanding anything in the Agreement, Customer acknowledges and agrees that the Services may involve telecommunications services that are subject to various Network Rules (as defined below) that may limit or restrict HeyWire’s ability to provide the Services, all of which are subject to change from time to time. Accordingly, HeyWire shall be under no obligation to Customer to continue its business and may, acting reasonably, discontinue or cease to license and/or support any or all of the Services and/or make whatever changes to the Services or the Service Fees or the terms of this Agreement that are required in response to or in connection with any Network Rule. In the event of any such change in Services or Service Fees, HeyWire agrees to provide Customer with such notice as is commercially reasonable under the circumstances and such change shall be effective as of the date of such notice. In the event that Customer has prepaid for any Service affected by such a Service Fee change, as a condition to continuing to receive the Service, Customer shall be required to promptly pay any additional Service Fees within thirty (30) days after receipt of an invoice from HeyWire. Customer shall have thirty (30) days from the date of any such notice to terminate the affected Services by rendering a notice of termination to HeyWire. For purposes hereof, “Network Rules” means government laws, rules and regulations and industry rules and standards applicable to the Services or the Parties, as well all requirements under any agreements with HeyWire’s global network SMS carriers and providers.

2. RESPONSIBILITIES OF THE PARTIES

2.1 HeyWire’s Responsibilities. HeyWire represents and warrants that it will perform the Services: (a) in accordance with the applicable specifications set forth in the Additional Terms; (b) in accordance with any applicable Network Rules; and (c) in a competent, professional and workmanlike manner consistent with prevailing industry standards.

2.2 Customer’s Responsibilities. Customer will provide to HeyWire, in a timely manner, all information and assistance as set forth in any Additional Terms or reasonably requested by HeyWire in connection with the performance of Services, including, without limitation, any resources specified in the Additional Terms or as otherwise reasonably necessary to enable HeyWire to perform its obligations under this Agreement. Customer understands that it is responsible for any third party items (such as telephone handsets and telephone numbers) and third party services (such as mobile devices, Internet connectivity, wireless and wireline networks) with which Customer chooses to use the Services. Customer’s use of the Services may be regulated via a system of user names and passwords. It shall be Customer’s sole responsibility to administer use and disclosure of such user names and passwords by Customer’s personnel and to implement such security measures as Customer deems appropriate to control such use and disclosure. HeyWire shall have no liability for any unauthorized use of an active user name or password, except if and to the extent that such use is determined to have resulted primarily and directly from HeyWire’s gross negligence or willful misconduct.

3. COMPENSATION

As consideration for the receipt of the Services and, as a condition to using the Services, Customer agrees to compensate HeyWire for the Services by paying the fees specified in the HeyWire Master Order Form. All amounts due shall be paid in U.S. dollars.

4. TERM AND TERMINATION

4.1 Term. This Agreement will remain effective so long as Customer is using Services.

4.2 Termination. HeyWire may terminate or suspend the provision of any Service if Customer commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the breach.

4.3 Termination for Bankruptcy. HeyWire may terminate the provision of any Service if Customer becomes subject to a proceeding under any federal, state or provincial bankruptcy or insolvency laws which is not dismissed or stayed within sixty (60) days.

5. HEYWIRE TECHNOLOGY

5.1 Ownership. Customer acknowledges that, as between HeyWire and Customer, all right, title and interest in the HeyWire Technology, including all modifications, enhancements and derivatives thereof and all rights under copyright, patent and other intellectual property rights embodied therein, belong to and are retained solely by HeyWire or HeyWire’s licensors and providers, as applicable. For purposes hereof, “HeyWire Technology” means HeyWire’s proprietary social messaging technology platform and all other software, technology, methodologies, workflows, inventions, intellectual property, data, data formats, data compilations and other material created, furnished or made available by HeyWire in connection with this Agreement. Customer’s Confidential Information is not part of the HeyWire Technology.

5.2 License; Restrictions.
(a) The Parties understand and acknowledge that Customer is required to use HeyWire Technology in order to receive the Services. Accordingly, upon the execution of this Agreement, and subject to the terms hereof, HeyWire grants to Customer a non-exclusive, worldwide and non-transferable right to access and use the HeyWire Technology only for the specific purpose and subject to any use limitations specified in the applicable Additional Terms. The Services may be used for commercial or business purposes only and are not intended for personal or consumer use. All rights not expressly granted by HeyWire are reserved. There are no implied rights. (b) Customer shall not, nor permit any third party, to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of any HeyWire Technology; (ii) modify, translate, or create derivative works based on any HeyWire Technology; or (iii) publish or disclose to third parties any evaluation of the HeyWire Technology without HeyWire’s prior written consent. Customer shall not, nor permit any third party to rent, lease, distribute, resell, assign, or otherwise transfer its rights to use the HeyWire Technology. Without limiting the generality of the foregoing, Customer agrees that it will not (i) co-brand the Services, or (ii) frame the Services or any website related thereto.

6. Representations; Warranties and Terms of Service

6.1 Authority. Each Party represents and warrants it has the full power and authority to enter into and consummate the transactions contemplated in this Agreement and that all necessary steps required by it to be taken to permit it to enter into this Agreement, including obtaining all requisite consents and approvals, have been taken. Without limiting the generality of the foregoing, Customer represents that, if Customer is a natural person, Customer is at least 18 years of age and of the age of majority. This Agreement constitutes the legal, valid and binding obligation of each Party, enforceable in accordance with its terms.

6.2 Content. Customer agrees not to use the Services to transmit any Inappropriate Content. For purposes hereof, “Inappropriate Content” is content which (a) is defamatory, obscene, harassing, violent or otherwise objectionable, (b) seeks to exploit or harm children, including exposing children to inappropriate content or asking children for personally identifiable information, (b) advocates the use of violence or any illegal activity, (c) violates the rights of this parties, including intellectual property rights such as copyright. Customer hereby grants HeyWire a non-exclusive, worldwide, royalty-free right and license to use and distribute any customer content provided by Customer to HeyWire in any manner that HeyWire deems necessary or useful in order to provide the Services. Customer agrees that HeyWire does not, and has no duty to, monitor the content of messages transmitted using the Services and, accordingly, will have no liability for any such content. However, HeyWire reserves the right to refuse to transmit or to remove form the Services any content which HeyWire deems, in its discretion, to be Inappropriate Content or which otherwise violates the terms of this Agreement.

6.3 No Virus. Each Party agrees that it will not knowingly introduce a Virus (as defined below) or allow a Virus to be introduced into the other Party’s systems or the systems used to provide or receive the Services. In addition, each Party will use commercially reasonable efforts to prevent unknowingly introducing a Virus or allowing a Virus to be introduced into the other Party’s systems or the systems used to provide or receive the Services. If a Virus is found to have been introduced into a Party’s systems or the systems used to provide or receive the Services as a result of a breach of the foregoing, the Party responsible for introducing the Virus will use commercially reasonable efforts to assist the affected Party in eradicating the Virus and reversing its effects. For purposes hereof, a “Virus” means (a) program code or programming instruction(s) or set(s) of instructions intentionally designed to disrupt, disable, harm, interfere with or otherwise adversely affect computer programs, data files or operations; or (b) other code typically described as a virus, Trojan horse, worm, malware, back door or other type of harmful code.

6.4 Non-Interference. Customer agrees not to take any action intended to disrupt the Services or interfere with the use of the Services by others, including, but not limited to transmitting an excessive number of messages with the intent to overwhelm the Services.

6.5 Use of Services in Connection with an Emergency. The Services are not interconnected with a public switched telephone network and are not designed or intended to be a replacement for ordinary mobile or fixed landline service. Any access to voice telephone calls is provided by Customer’s mobile service provider and not by HeyWire or the Services. The Services are not intended or designed to support or carry emergency calls (including 911 and 000) to any type of hospitals, law enforcement agencies, medical care unit, public safety access point, or any other kind of emergency service. Calls or messages to emergency services cannot be processed through the Services. Customer acknowledges and agrees that HeyWire is not required to provide access to emergency services under any applicable local or national rules, regulations or law, and it is Customer’s responsibility to purchase separately, traditional wireless or fixed line telephone services that offer emergency services.

6.6 Privacy Policy. Use of services are subject to HeyWire’s Privacy Policy which can be found at http://www.heywire.com/privacy-policy/.

6.7 Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR ANY HEYWIRE TECHNOLOGY OR SERVICES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6.2 (NO VIRUS) AND 2.1 (HEYWIRE RESPONSIBILITIES) THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, HEYWIRE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE HEYWIRE TECHNOLOGY OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE HEYWIRE TECHNOLOGY OR SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE.

7. Confidentiality.

Each Party acknowledges that it may be furnished, receive or otherwise have access to non-public, commercially proprietary or sensitive information (or materials) belonging to, concerning or in the possession or control of such Party (“Confidential Information”) of the other Party in connection with this Agreement. The Party receiving Confidential Information hereunder (the “Receiving Party”) will keep the Confidential Information of the party disclosing such information (the “Disclosing Party”) confidential and secure and will use all commercially reasonable efforts to protect it from unauthorized use or disclosure by using at least the same degree of care as the Receiving Party employs to avoid unauthorized use or disclosure of its own Confidential Information of a similar nature, but in no event less than reasonable care. Each Party’s Confidential Information will remain the property of that Party. Nothing contained in this Section 7 will be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or by implication, any rights or license to the Confidential Information of the other Party.

8. INDEMNIFICATION OBLIGATIONS

8.1 HeyWire Indemnity. HeyWire shall indemnify, defend and hold Customer and its affiliates and their respective directors, officers, and employees harmless from and against any and all actual and out-of-pocket costs, expenses, damages, judgments and liabilities including reasonable attorneys’ fees, (“Damages”) incurred by, or rendered against Customer in connection with any third party claim that (i) any materials or services provided or made available by HeyWire infringe a U.S. copyright, patent, trademark, trade secret or other proprietary, privacy or intellectual property right of any third party; (ii) HeyWire and/or the Services provided under this Agreement have caused loss or damage, including but not limited to bodily injury (including death) or has damaged real or tangible personal property; (iii) the HeyWire Technology or the Services violated or breached any U.S. governmental laws, rules, ordinances, or regulations; or (iv) arise out of any breach by HeyWire of any warranties or representations made by HeyWire in this Agreement.

8.2 Customer Indemnity. Customer shall indemnify, defend and hold HeyWire and its affiliates and their respective directors, officers, and employees harmless from and against any and all Damages incurred by, or rendered against HeyWire in connection with any third party claim (i) arising out of, or in connection with any products or services furnished by Customer (other than any matter for which Customer is entitled to indemnification under Section 8.1, and to the extent of such indemnification), including, without limitation, any claim that Customer’s products or services violate any third party intellectual property or other rights and any claim for damage to tangible personal property or bodily injury, or (ii) arising from any breach by Customer of any warranties, representations or covenants made by Customer in this Agreement.

8.3 Indemnification Procedures. To receive the foregoing indemnity, the indemnitee must promptly notify the indemnitor of a claim or suit, allow the indemnitor sole control of the defense or settlement of any claim and provide reasonable cooperation to the indemnitor, at the indemnitor’s sole expense, in defending and/or settling the claim or suit. The indemnitor shall not enter into any settlement agreements related to the indemnity that have an impact, monetary or otherwise, on the indemnitee, without receiving the prior written consent of the indemnitee, with such consent not to be unreasonably withheld.

8.4 Infringement Claims. Upon notice of a claim that the HeyWire Technology and/or the Services violate any third party intellectual property right or if, in HeyWire’s opinion, a claim of intellectual property infringement is likely, HeyWire may, at its reasonable option and sole expense: (a) modify or replace the HeyWire Technology or Services so that it is functionally equivalent and non-infringing, (b) obtain a license for the Customer to continue using the HeyWire Technology or Services (as applicable), or (c) terminate this Agreement and the affected Services upon notice to the Customer. THE FOREGOING REMEDY IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND HEYWIRE’S SOLE LIABILITY, WITH RESPECT TO CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.

9. LIMITATION OF LIABILITY

9.1 Exclusion of Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 Liability Cap. EXCEPT FOR (A) NON-PAYMENT; (B) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN SECTION 7 OF THIS AGREEMENT; (C) HEYWIRE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1 (i) OR (ii) OF THIS AGREEMENT; OR (D) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY’S TOTAL LIABILITY TO THE OTHER ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT, SHALL EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO HEYWIRE UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY.

9.3 No Liability to Third Parties. Without limiting HeyWire’s direct obligations under Section 8.1, in no event will HeyWire be directly liable for any claim by any third party in connection with the Services or otherwise relating to subject matter of this Agreement.

10. MISCELLANEOUS

10.1 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence.

10.2 Relationship of the Parties. It is agreed that each of the Parties is and shall remain an independent contractor and nothing contained in this Agreement shall be construed to constitute either Party as a partner, agent or employee of the other. In dealings with third parties, neither Party shall hold itself out as a partner, agent or employee of the other Party. Neither Party shall have authority to make any agreement or incur any liability on behalf of the other Party, nor shall either Party be liable for any acts, omissions to act, contracts, commitments, promises or representations made by the other, except as specifically authorized in this Agreement or as the Parties may otherwise agree in writing.

10.3 Publicity. During the term of this Agreement, HeyWire may refer to Customer as a customer reference in non-public business dealings with actual or prospective customers and financing sources and Customer may identify HeyWire as its provider of cloud messaging in non-public business dealings with to actual or prospective customers and financing sources. Both parties agree to issue a joint press release announcing the business partnership, with prior written consent. HeyWire has the right to display a Customer-supplied logo in the customer section of its website. Both Parties may refer to this Agreement or use the name of the other Party in any public statement or announcement, press release, or form of publicity or advertising, either directly or indirectly, with the prior written consent of the other Party, not to be unreasonably withheld.

10.4 Assignment. Neither Party shall assign its rights or obligations under this Agreement without the prior written consent of the non-assigning Party. Notwithstanding the foregoing, either party may assign this Agreement to an affiliate in the event of a merger/consolidation, internal reorganization or stock purchase and HeyWire may assign this Agreement in the event of a sale of HeyWire’s assets or business associated with the provision of the Services.

10.5 Waiver. The waiver, express or implied, by either of the Parties of any right under this Agreement or with respect to any failure to perform or breach of this Agreement by the other Party, shall not constitute or be deemed a waiver of any other rights hereunder or of any other failure to perform or breach by such other Party, whether of a similar or dissimilar nature.

10.6 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

10.7 Headings. The headings to Sections of this Agreement are to facilitate reference only, do not form a part of this Agreement and shall not, in any way, affect the interpretation hereof.

10.8 Notice. Notices shall be deemed to be given (a) when delivered by messenger, (b) when sent by facsimile or electronic mail (with receipt confirmed), or (c) when received by the addressee, if sent by First Class Mail, Federal Express or other overnight delivery service (receipt requested). Customer’s address for notice shall be the address provided by Customer for such purpose at the time Customer registered for the Service. HeyWire’s address for notice shall be: 1 Canal park, Suite 1130, Cambridge, MA 02141. Either Party may, by notice to the other Party, designate another address to which notices shall be sent.

10.9 Survival. Any provision of this Agreement that contemplates or governs performance or observance subsequent to its termination or expiration will survive the expiration or termination of this Agreement for any reason including Sections 3 (Compensation), 4 (Term and Termination), 5.1 and 5.2(b) (HeyWire Technology), 7 (Confidentiality), 8 (Indemnification Obligations), 9 (Limitation of Liability) and 10 (Miscellaneous).

10.10 Governing Law. The validity, construction and performance of this Agreement shall be governed by the laws of the Commonwealth of Massachusetts, United States, without giving effect to its conflict of law provisions. Customer hereby irrevocably submits to the exclusive jurisdiction of the Federal courts of the United States for the District of Massachusetts and any court of the Commonwealth of Massachusetts located in Middlesex County in any action, suit or proceeding relating in any way to this Agreement or the Services and agrees that service of process in any such action, suit or proceeding may be effected by mailing a copy thereof by registered or certified mail, or a form of mail substantially equivalent thereto, addressed to it at its address as provided for notices hereunder. Customer hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any action or proceeding in such courts and any claim that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

10.11 Remedies. The Parties agree that money damages may be an inadequate remedy for either Party in the event of a breach or threatened breach by the other Party of the provisions set forth in Section 8 (Confidentiality) hereof. In the event of a breach or threatened breach by the other Party of any such provisions, the non-breaching Party may, either with or without pursuing any other remedies afforded by law, immediately seek an injunction from any proper court of law or equity prohibiting the breaching Party from breaching such provisions. Except as otherwise set forth herein, all rights and remedies afforded either Party by law shall be cumulative and not exclusive.

10.12 Entire Agreement. This Agreement, including any Additional Terms, constitutes the complete and exclusive agreement between the Parties and supersedes any and all prior negotiations, representations, understandings and agreements between the Parties relating to the matters referred to in this Agreement, including, without limitation, any non-disclosure agreement between the Parties. Except as set forth in Section 1.3 respecting changes in response to Network Rules, no change in, addition to or waiver of the terms and provisions of this Agreement shall be binding upon either Party unless agreed in writing by a duly authorized officer or representative of each of the Parties.

Additional Terms – HeyWire LiveText™ Messenger Services

This document was last updated on March 11, 2015.

These Additional Terms apply to the provision by HeyWire of LiveText Messenger Services to Customer. They supplement the Universal End User Agreement between HeyWire and Customer. Unless otherwise defined, the capitalized terms used in the Additional Terms shall have the meanings ascribed to them in the Universal End User Agreement.

1. SCOPE OF SERVICES

The principal features of the LiveText Messenger Services are described below.

1.1. Provisioning of Customer-supplied phone #’s (“DIDs”) for LiveText Messenger Services.

1.2. Messaging Delivery – Text messaging sent to Customer-supplied DIDs and text messaging sent out from the Customer-supplied DIDs.

Only DIDs located in the +1 NANPA zone are eligible to use the service. HeyWire has no obligation to provide any LiveText Messenger Services to Customer for use in connection with any DID located outside the +1 NANPA zone.

All message origination (MO) traffic must be destined exclusively within the +1 NANPA zone.

LiveText Messaging Services is for business conversations, NOT mobile marketing, and as such should reflect an average messaging ratio of 3:1 – 3 outbound messages to 1 inbound message.

2. Activation, Access, and Connectivity

2.1. Activation of DIDs. Customer shall provide HeyWire with all desired DID’s such that HeyWire is able to provision for all DID’s that may utilize the Services. HeyWire will provision each unique DID request provided by Customer within 48 hours after receipt. As a condition of provisioning any DIDs for purposes of delivering the LiveText Messenger Services, Customer agrees to provide HeyWire with a signed letter of authorization from the service provider of the DID in the form found at http://www.heywire.com/letter-of-authorization/. Customer represents that it has full authority and approval to use any such DID in conjunction with the LiveText Messenger Services and that Customer’s use of such DID for such purposes is not in violation of any third party licenses, terms, conditions, laws, rules and/or regulations respecting the use of such DID.

2.2. HeyWire Network Connection. Customer is solely responsible, at its own expense, for establishing and maintaining its equipment, software, facilities, and its connection to the HeyWire Hosting Infrastructure (as defined below). . Customer understands that recipients of text messages transmitted by Customer using the Services may incur standard messaging charges from such party’s mobile carriers for receipt of such messages. Similarly, a party sending a message to a Customer DID that is text-enabled using the Services may incur standard messaging charges from such third party’s mobile carrier for transmitting such message. HeyWire is not responsible for any such charges.

2.3. Network Traffic Encryption. Customer acknowledges that messages will be transmitted between Customer and HeyWire via SSL, and the message traffic between the HeyWire Hosting Infrastructure to destination carrier networks will be unencrypted per standard carrier protocol conventions. To the extent permitted by law, HeyWire may intercept and disclose any messages transmitted over the HeyWire Hosting Infrastructure to the extent reasonably necessary to protect HeyWire’s rights or property, including without limitation, to protect the operation of the HeyWire Hosting Infrastructure, or to comply with any Network Rules.

2.4. For purposes of this Agreement, the “HeyWire Hosting Infrastructure” consists of HeyWire’s network infrastructure, data center and the HeyWire Technology. HeyWire’s network infrastructure, for such purpose, extends from HeyWire’s computing resources to the data center located router that provides the outside interface of each of the WAN connections to HeyWire’s backbone providers. HeyWire’s data center, for such purposes, includes HVAC, managed power systems, backup generators, and battery backup systems. The HeyWire Technology includes the servers, the storage, and the network related to the Services (which includes HeyWire’s APIs). HeyWire is not responsible for any network connectivity beyond the WAN routers (other than any connectivity issues arising from HeyWire Software either on clients or servers) such as Customer networks and points of access to the Internet and connectivity across the Internet. Points of access could include Customer networks, home networks and free cafe Internet access.

3. CUSTOMER RESPONSIBILITIES

3.1. CTIA Guidelines. Customer agrees to use the LiveText Messenger Messaging Services in compliance with the CTIA guidelines for SMS and MMS messaging as in effect from time to time, it being understood that use of the Services is limited to person to person (P2P) messaging and that application to person (A2P) messaging is not permitted. A summary of the current CTIA Guidelines can be found at http://www.heywire.com/messaging-interoperability-guidelines/. Such summary is provided for Customer’s convenience only and Customer acknowledges that, in the event of any inconsistency between the actual guidelines and HeyWire’s summary, the actual guidelines shall govern use of the Services. Customer acknowledges that the CTIA guidelines are subject to change at any time and from time to time.

3.2 INFORMATION REQUESTS

3.2.1. Customer agrees that if at any time during any calendar month during the term of the Addendum, traffic which resembles mobile marketing campaigns appear, OR more than 7,500 MO messages correspond to any DID, HeyWire may request, and Customer will promptly provide, a written report containing the following information with respect to Customer end user account to which the affected DID(s) are assigned:

3.2.1.1. The unique qualifying identification of each IP enabled device corresponding to the account associated with such DID(s)

3.2.1.2. If available, the number of messages corresponding to each IP enabled device identified pursuant to Section 1.2.1.1; and

3.2.1.3. Any other information HeyWire might reasonably request. In the event such a request is made by HeyWire, Customer agrees to cooperate and work with HeyWire in good faith to address whatever issues HeyWire might identify as its concern with respect to such improper use of the Services, including but not limited to suspension of Services from any affected DID.

3.2.2. Without limiting anything else in the Agreement or this Addendum, Customer agrees to promptly provide such information as HeyWire may reasonably request in response to any documented request made by any legal, law enforcement, regulatory, governmental authority, and/or network operator.

3.3 SUSPENSION OR TERMINATION OF SERVICES

In the event HeyWire reasonably determines that Customer has violated Section 3.2 or 3.2 in any material respect, HeyWire may immediately suspend provision of the LiveText Messaging Services to such party. HeyWire will use commercially reasonable efforts to notify Customer in advance of any such suspension (it being understood that HeyWire may not receive advance notice from its network services provider). In the event of a repeated violation, upon notice to Customer, HeyWire may terminate or suspend the provision of such Services to the offending party.

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