Terms and Conditions of Use

Effective Date: November 1, 2017

This Terms and Conditions of Use (the “Agreement”) is a legal agreement between you (an entity or person) (“You”) and Disruptive Multimedia, Inc. d/b/a SuperPhone, a Delaware corporation (referred to herein as “DMM”, but at times using “we”, “us” or “our”), that governs Your limited, non-exclusive, terminable right to use the SuperPhone dashboard mobile CRM app and related services (the “App”), desktop dashboard CRM and related services, website and related services (the “Site”), the servers the Site and App are stored on and powered by, and the computer files stored on that server (the foregoing including the App and Site are referred to collectively as the “SuperPhone Service”). By clicking on the “Accept” button, or otherwise using the SuperPhone Service, You agree to be bound by the terms of this Agreement. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT CLICK ACCEPT AND CANNOT USE THE SUPERPHONE SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

DMM may amend this Agreement from time-to-time, and if we do so we will update the Effective Date noted above. All amended terms of use automatically take effect upon positing to our SuperPhone Service. Your use of the SuperPhone Service following the effective date of any modifications to these Terms of Use will constitute Your acceptance of the same, as modified. You agree that notice on the Site or the App of modifications to these Terms of Use is adequate notice.

The SuperPhone Service is available only to individuals who are not less than 13 years old. In addition to being the minimum age to use our Services, if you are not old enough to have authority to agree to these Terms of Use in your state or country, your parent or other legal guardian must agree to these Terms of Use on your behalf.

Services Offered by DMM

The SuperPhone Service provides users the ability to (i) make or receive voice calls from a ten-digit phone number and (ii) send and receive text messages to groups or individuals by using both a ten-digit phone number provided by DMM (the “DMM Phone Number”) or a DMM’s five-digit short code. These services can be used from any location via DMM’s mobile application, or any other device that can access the Internet. Additionally, DMM offers other services associated with providing voice calling and text messaging capability; such services are listed on DMM’s pricing page found at: https://superphone.io/onboarding/pricing. All of the foregoing service offerings are cumulatively included in the definition “SuperPhone Service”.

To use the SuperPhone Service You must have a valid cellular or other phone service. A segment of the voice services offered by the SuperPhone Service initiates a call to the personal phone number listed on Your account and, only after You accept that call, will it connect to the DMM contact You dialed. Although these calls use Your third-party phone service, they will appear on Your DMM contact’s phone as coming from the DMM Number. Alternatively, the SuperPhone Service can work completely over an internet connection using voice over internet protocol (“VoIP”). Because SuperPhone Service may rely on Your internet service or connectivity, SuperPhone Service may be subject to the limits of Your internet service.

You cannot use the SuperPhone Service to place certain calls, which include but are not limited to, 1-900 or other toll calls, 911 and emergency calls, and certain other N11 services (211, 311, 511), area code 500, 700, and 710 calls, 10-10- XXX dial-around calls, or international operator or directory assistance calls. Because the SuperPhone Service may rely on Your third-party service, any limitations in that service will also limit the manner in which You can use the SuperPhone Service.

1. Spam Policy

DMM maintains a zero tolerance policy regarding the delivery of apam or unwanted commercial messages using the SuperPhone Service. Notwithstanding anything else in this agreement, You will not send, cause to be sent, or facilitate the sending of Spam using the Service. Accounts that send Spam or that we believe may be facilitating Spam may be suspended and terminated, and DMM may participate in the prosecution of Spammers.

“Spam” is defined by this Agreement as any message the principal purpose of which is to promote the sale of goods or services without the prior consent of the recipient. This includes the content which has a commercial purpose or promotes a political message or objective, to the recipient, and includes advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit, or advertising material for political purposes.

2. Prior Express Written Consent; Opt-out Mechanism

(a) You will not send, cause to be sent or facilitate the sending of any message or mobile communications using the SuperPhone Service if the intended recipient has not given You prior express written consent, even if You had a previous business relationship with the intended recipient. Under no circumstances will You send Spam or any other message where You obtained the consent of the recipient as a condition to a purchase. It shall be your responsibility to first obtain prior express written consent from any recipient before sending any message or mobile communications using the SuperPhone Service and to supply them with any required disclosures concerning messaging and data rates that may be applicable.

(b) For the purposes of this Agreement, “Prior express written consent” can either mean a) opting in to marketing via Your e-commerce website, general website or platform of your choice, b) via INCOMING SMS, MMS, call or other form of communication FROM THE CUSTOMER OR INTENDED RECIPIENT, or c) a written agreement, signed by the intended recipient, that authorizes You to deliver marketing messages using an automatic telephone dialing system or prerecorded message to the specific number authorized in the agreement. The signature may be evidenced by any electronic or digital form of signature recognized under applicable state or federal law, including any signatures that satisfy the E-SIGN Act. You will keep copies of all written agreements for at least four years from the last date that the consent was relied upon to initiate a call.

(c) You will include an automated interactive (voice or keypress) opt- out mechanism, announced or displayed at the beginning of the message and remaining available for activation during the entire message, that will allow customers or potential customers to opt-out of receiving additional calls from You immediately. You will automatically add the customer’s or potential customer’s number to Your do-not-call list and immediately disconnect the call when the opt-out mechanism is activated. You will also include an automated opt-out mechanism that will allow customers or potential customers to opt-out of receiving SMS or MMS messages if they wish not to receive any further SMS or MMS messages by, for example, permitting them to sending a “Stop” message.

3. Limited License

DMM grants You a limited, revocable, non-exclusive, non- transferable license to use the DMM software (“Software”) to access SuperPhone Service for Your own individual, enterprise, and limited commercial use subject to the other terms of this Agreement. You agree not to resell the Software. You may not modify, reverse engineer, decompile or disassemble the Software. You may not copy, adapt, alter, modify, translate, or create derivative works of the Software without written authorization of DMM. You may not use the Software for illegal purposes or for the transmission of material that is unlawful, harassing, libelous, invasive of another’s privacy, abusive, threatening, obscene or that infringes the rights or intellectual property of others. You may not permit other individuals to use the Software, including, but not limited to, shared use via a network connection, except under the terms of this Agreement. You may not rent, lease, loan, sublicense, distribute, or otherwise transfer rights to the Software. You may not circumvent or disable any technological features or measures in the Software for protection of intellectual property rights. You may not use the Software in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. Any such forbidden use shall immediately terminate Your license to the Software.

4. Use of DMM and Your Data

In addition to other rules and regulations contained in this Agreement, You and anyone using Your DMM account are responsible for any use of the Site, the App, the SuperPhone Service or Software whether by website or mobile device. You agree not to access, copy, or otherwise use Services unless such use is authorized by this Agreement or authorized in writing. You agree that any information You provide to, or enter in order to use, DMM will complete and accurate. You will not use the SuperPhone Service in any illegal, abusive, interfering or otherwise unacceptable or inappropriate manner, including:

In order to use our SuperPhone Service you must link a 3rd party email account to your SuperPhone Service account. With your permission (which you are granting by using the Services), we will create and update versions of your address book (including phone numbers) and emails for you to access using the SuperPhone Service. You may also have the option to import and update versions of your calendar, social media contacts, and mobile phone call and message history, and you can later choose to upload files to or provide comments through the SuperPhone Service. This data, along with any electronic data and information submitted by or for you to the SuperPhone Service, including electronic data and information submitted by or for you through your use of third party applications including e-commerce sales and transaction data, or collected and processed by or for you using the SuperPhone Service (excluding information obtained by the Company from our content licensors or publicly available sources and provided to you, or otherwise provided by the Company to you in connection with the SuperPhone Service) is referred to as “Your Data.” You retain full ownership to Your Data. We do not claim any ownership to any of it. You grant the Company a worldwide, perpetual license to host, copy, transmit and display Your Data as necessary for the Company to provide the SuperPhone Service in accordance with this Agreement. You also grant to the Company a royalty-free, perpetual, worldwide, transferable, sub-licensable license to transfer Your Data to third party service providers used by the Company in providing the SuperPhone Service. The foregoing licenses each include all necessary rights and licenses to incorporate Your Data into any content indexed and stored in the SuperPhone Service, and by acceptance of this Agreement, You direct the Company to incorporate Your Data into such such content. If we are required by a licensor to remove any indexed content, or receive information that any indexed content provided to you may violate applicable law or third-party rights, we may so notify you and in such event you will promptly remove such content from your systems.

You are solely responsible for your conduct, the content of Your Data and your communications with others while using the SuperPhone Service. For example, it’s your responsibility to ensure that you have all rights and permissions needed to comply with this Agreement and to avoid infringement or violation of any rights of others. You will be responsible for your users’ compliance with this Agreement and your own terms of use or service and will use commercially reasonable efforts to prevent unauthorized access to or use of the SuperPhone Service, and notify us promptly of any such unauthorized access or use.

You acknowledge that DMM has no obligation to monitor any information on the SuperPhone Service and that DMM is not responsible for the accuracy, completeness, appropriateness, safety or legality of Your Data or any other information or content you may be able to access using the SuperPhone Service.

If you install or enable any third-party application or service for use with the SuperPhone Service (e.g., Shopify, Google, Facebook), you grant us permission to allow the provider of that application to access Your Data as required for the interoperation of that third-party application with the SuperPhone Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a third-party application. Please also be aware that when you use any such third-party application or services, even with the SuperPhone Service, such third party’s own terms of use and privacy policies will govern your use of those applications or services.

Subject to the limited exceptions specified in our Privacy Policy, until you choose otherwise, all of Your Data remains visible only to you. However, the SuperPhone Service do allow you to share Your Data with others. If you choose to share Your Data, we cannot be responsible for what those other users do with Your Data, so please carefully consider what you share and with whom you share it.

We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data as described in our Privacy Policy. We do not guarantee that Your Data will be free from loss, theft, misuse, or unauthorized access, disclosure, alteration or destruction. You acknowledge that it is your responsibility to use a secure encrypted connection if you wish to protect Your Data when you are transmitting it to us and to keep your own backup copies of Your Data. You are solely responsible for protecting your passwords, limiting access to your computers and devices, and signing out of the SuperPhone Service when you are not using them.

5. Pricing, Charges, Billing and Usage

If you register on our website for a free trial, we will make one or more services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the SuperPhone Service, or (b) the start date of any purchased service subscriptions ordered by you for the SuperPhone Service. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

IF YOU ELECT TO USE THE SUPERPHONE SERVICES FOR THE TRIAL PERIOD AND DO NOT PURCHASE A SUBSCRIPTION BEFORE THE END OF THE TRIAL PERIOD, YOUR TRIAL SUBSCRIPTION FOR THE SERVICES WILL EXPIRE AT THE END OF THE TRIAL PERIOD AND SHALL NOT AUTO-RENEW. ANY DATA ENTERED INTO THE SUPERPHONE SERVICES BY YOU OR RECEIVED BY YOU IN CONNECTION WITH YOUR USE OF THE SERVICES, AND ANY CUSTOMIZATIONS THAT MAY BE MADE TO THE SERVICES BY YOU DURING THE FREE TRIAL PERIOD, WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SERVICES BEFORE THE END OF THE TRIAL PERIOD.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE FREE TRIAL THE SUPERPHONE SERVICES ARE PROVIDED “AS-IS”, “AS-AVAILABLE”, WITHOUT ANY WARRANTY OR SUPPORT WHATSOEVER.

DMM will never charge You to use its Services, unless You sign up for a paid plan, which requires You to affirmatively select a plan and pay by entering Your credit card information. You authorize DMM to charge and/or place a hold on Your credit card with respect to any unpaid charges related to the Services. You authorize the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and You agree that Your acceptance of this Agreement is authorization to the issuer of the credit card to pay all such amounts. You authorize DMM and/or any other company who bills products or services, or acts as billing agent for DMM to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to Your credit card until such amounts are paid in full. You authorize DMM and/or any other company who bills products or services, or acts as billing agent for DMM to bill You on a recurring monthly basis on the monthly anniversary of Your initial registration for a paid DMM plan.

You will provide DMM with updated credit card information upon DMM’s request and any time the information You previously provided is no longer valid. You are solely responsible for maintaining and updating the credit card information. DMM is not liable for any non- sufficient funds or other charges incurred by You as a result of such attempts to charge, and/or place holds on, Your credit card. If You mistakenly provide a debit card number, instead of a credit card number, You authorize all charges described herein to be applied to such debit card unless and until You provide a credit card number.

For paid plans, usage and monthly fees will be charged directly to the credit card You provide to us as specified in our pricing plans found at https://www.app.dmm.fm/pricing. Except as provided below, monthly services and certain other charges are billed and charged one month in advance, and there is no proration of such charges if service is terminated on other than the last day of Your billing cycle. You agree to pay for all SuperPhone Service. In the event that (i) You have a subscription for a paid plan to the SuperPhone Service, (ii) You have not used the SuperPhone Service since the beginning of the current billing cycle, and (iii) You request a refund for cancellation of Your subscription to a paid plan within 15 days of the beginning of the current billing cycle, DMM may in its sole discretion determine whether You may receive a refund for any or all of the amount billed for the Services during the current billing cycle. Notwithstanding anything in this Section 5, DMM will not refund any amount paid by You in a previous billing cycle for a subscription to a paid plan.

AIRTIME AND OTHER MEASURED USAGE (“CHARGEABLE TIME”) IS BILLED IN FULL-MINUTE INCREMENTS, AND ACTUAL AIRTIME AND USAGE ARE ROUNDED UP TO THE NEXT FULL- MINUTE INCREMENT AT THE END OF EACH CALL FOR BILLING PURPOSES. WE CHARGE A FULL MINUTE OF AIRTIME USAGE FOR EVERY FRACTION OF THE LAST MINUTE OF AIRTIME USED ON EACH WIRELESS CALL. UNLESS OTHERWISE PROVIDED IN YOUR PLAN, MINUTES WILL BE DEPLETED ACCORDING TO USAGE IN THE FOLLOWING ORDER: Chargeable Time begins for outgoing calls either (i) when You place an outgoing call over VoIP or (ii) when You answer the incoming DMM call to Your personal cell phone number. Chargeable Time begins for incoming calls when a signal connection from the caller is established with our facilities. Chargeable Time ends after the call has ended, either by You, the person You are speaking with, or due to a technical malfunction, but not until Your signal of call disconnect is received by us and the call disconnect signal has been confirmed.

All outgoing calls for which we receive answer supervision or which have at least 30 seconds of Chargeable Time, including ring time, shall incur a minimum of one minute airtime charge. Answer supervision is generally received when a call is answered; however, answer supervision may also be generated by voicemail systems, private branch exchanges, and interexchange switching equipment. Chargeable Time may include time for us to recognize that only one party has disconnected from the call, time to clear the channels in use, and ring time. Chargeable Time may also occur from other uses of our facilities, including by way of example, voicemail deposits and retrievals, and call transfers. Calls that begin in one rate period and end in another rate period may be billed in their entirety at the rates for the period in which the call began.

If You select a paid plan to the SuperPhone Service that includes a predetermined allotment of Services (for example, a predetermined amount of airtime or messages), unless otherwise specifically provided as a part of such paid plan, any unused allotment of Services from one billing cycle will not carry over to any other billing cycle. We may bill You in a format as we determine from time to time.

Additional charges may apply for additional copies of Your bill, or for detailed information about Your usage of SuperPhone Service.

You also remain responsible for paying Your monthly Service fee if Your Service is suspended for nonpayment.

You agree that for amounts not paid by the due date, we may charge, as a part of its rates and charges, and You agree to pay, a late payment fee of 10% or the maximum allowed by law. In the event You fail to pay billed charges when due and it becomes necessary for us to refer Your account(s) to a third party for collection, we will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18% to cover our internal collection costs.

No charges to Your personal voice plan (cellular or otherwise) will be incurred when using the SuperPhone Service unless (1) You use Your personal phone to text to the DMM number to disseminate a text message to a group; (2) a person texts Your DMM number and You have enabled the text forwarding option in the account settings page; (3) You send a text message using SuperPhone Service to Your cellular phone; or (4) You use the SuperPhone Service to bridge off of Your cellular plan to make voice calls, in which case Your carrier’s standard voice charges will apply. In each of the mentioned cases, normal data and messaging rates may apply.

Recipients of Your text messages sent and voice calls made using the SuperPhone Service will be charged in accordance with the voice, data and messaging rates established by the recipient’s carriers.

Even though DMM offers unlimited calling and texting under all of its paid plans, DMM may restrict the amount of messages, minutes and groups that can be sent or received per plan, per month based on fair use. DMM, in its sole discretion, may determine fair use, but in any case fair use will never be less than 1,000 voice minutes per month and 1,000 text messages per month.

For DMM’s bronze, silver and gold plans, DMM may charge a fee of $0.01 per message if texting exceeds 10,000 message for bronze, 25,000 texts for gold and 50,000 text message gold plans. Fair usage can be overcome by moving to an enterprise plan, which can be obtained by contacting team@dmm.fm.

Taxes. Client will be responsible for, and agrees to pay, all sales, use, excise, and value-added taxes, or taxes of a similar nature (excluding personal property taxes and taxes based on DMM’s income which shall be borne by DMM), imposed by the United States, any state or local government, or other taxing authority, on all goods and/or services provided to Client by DMM under this Agreement.

6. Portability and Reclaiming Numbers

If You are transferring an existing phone number to be Your DMM Phone Number for the SuperPhone Service (i.e., porting a number to us), You hereby authorize us or our agents to process Your order for our voice service and to notify Your existing provider of Your decision to switch Your services to our service, and You represent that You are authorized to take this action. Not all telephone numbers are eligible for porting to us. DMM will charge, and You agree to pay, a ten-dollar ($10) fee to export Your DMM number to another service.

If Your DMM account remains inactive for thirty (30) days or more, we have the right to deactivate Your account and reclaim the DMM Phone Number that was assigned to You when You signed up to use the Services.

7. Proprietary Rights

All right, title and interest in the SuperPhone Service, DMM Software, and any content contained therein is the exclusive property of DMM, except as otherwise stated. Unless otherwise specified, the SuperPhone Service is for Your personal and, for users who may be businesses, limited commercial use only and You may print, copy and download any information or portion of the Site for Your personal use only. If You copy or download any information or software from this Site, You agree that You will not remove or obscure any copyright or other notices or legends contained in any such information.

You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any information, software, products or services obtained from the SuperPhone Service, except for the purposes expressly provided herein, without DMM’s prior written approval.

All trademarks, copyrights, patents, trade names, trade dress, service marks and logos used in connection or concerning the SuperPhone Service or Software are proprietary to DMM. Your use of any marks on the Site in any manner other than as authorized in this Agreement, or as authorized in writing by DMM, is strictly prohibited.

If you believe that any user has submitted content to our SuperPhone Service that violates your copyright, please send us a notice of copyright infringement at legal@superphone.io. It is our policy to remove such content, and in some instances where the circumstances may warrant, terminate the user accounts of repeat infringers.

8. Content License

You grant DMM a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all rights that You have as the copyright owner in any content or feedback that You provided to us.

9. Disclaimer

The materials on DMM’s web site are provided “as is”. DMM makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, DMM does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site, including the SuperPhone Service or DMM Software, or otherwise relating to such materials or on any sites linked to DMM’s Site.

Since the SuperPhone Service is dependent on the IP network, the availability of an adequate power supply, and correct equipment configuration, we do not guarantee that any portion of the SuperPhone Service will be continuous or error-free. You also acknowledge and understand that we cannot guarantee that IP based communications are completely secure. Therefore, the SuperPhone Service should not be used with any third-party services or devices such as MONITORED BURGLAR ALARMS, MONITORED FIRE ALARMS, AND/OR MEDICAL MONITORING SYSTEMS OR DEVICES.

10. Limitations

In no event shall DMM or its suppliers be liable for any consequential, indirect, special, punitive or similar damages, including loss of data or profit, or business interruption, arising out of the use of, or inability to use, the SuperPhone Service, even if DMM or a DMM authorized representative has been notified orally or in writing of the possibility of such damage. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF DMM OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, ATTORNEYS, AND BUSINESS PARTNERS TO ANY PARTY, REGARDLESS OF THE TYPE OF ACTION WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED $100.

Any cause of action You may have with respect to Your use of the SuperPhone Service must be commenced within one (1) year after the claim or cause of action arises. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to You.

11. Revisions

The materials appearing on DMM’s Site or App may include technical, typographical, or photographic errors. DMM does not warrant that any of the materials on its Site or App are accurate, complete, or current. DMM may make changes to the materials contained on its Site or App at any time without notice, and may at times, and in its sole discretion, revise, update, or modify the SuperPhone Service or DMM Software. DMM however, makes no commitment of any kind to update any of the foregoing materials.

12. Assumption of Risk

You use the Internet solely at Your own risk and subject to all applicable local, state, national, and international laws and regulations. While DMM has endeavored to create a secure and reliable SuperPhone Service, please be advised that the confidentiality of any communication or material transmitted to/from a Site or App over the Internet cannot be guaranteed. Accordingly, DMM is not responsible for the security of any information transmitted via the Internet, the accuracy of the information contained on the Site or App, or for the consequences of any reliance on such information. DMM shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the SuperPhone Service.

Any material downloaded or otherwise obtained through the use of the SuperPhone Service is done at Your own discretion and risk. 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.

13. Your Responsibility to Protect Data and Password

It is Your responsibility to protect Your personal data and maintain the confidentiality of Your user information and password. You are also responsible for immediately notifying DMM of any unauthorized use of Your account, or breach of Your account information or password. DMM will not be liable for any loss that You may incur as a result of someone else using Your username or password, either with or without Your knowledge. To the extent allowable by law, You shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for Your failure to safeguard user and password information and/or promptly notify DMM about unauthorized use of Your account or breach of Your account information or password.

14. Links

The Site may include links to certain websites, materials, or content developed by third parties. DMM has not reviewed all of the sites linked to its Internet Site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by DMM of the Site. Use of any such linked website is at Your own risk. DMM reserves the right in its sole and absolute discretion to discontinue links to any other sites at any time and for any reason.

15. Enforcing Security

Actual or attempted unauthorized use of any of the SuperPhone Service may result in criminal and/or civil prosecution. For Your protection, we reserve the right to view, monitor, and record activity on the SuperPhone Service without notice or further permission from You, to the fullest extent permitted by applicable law. This right extends to our review of message content and details pertaining to claimed violations of our Spam Policy. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the SuperPhone Service.

16. Compliance with Laws

You will use the SuperPhone Service in full compliance with all applicable laws and regulations with regard to Your use of the SuperPhone Service, including, without limitation, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, individual state laws, and all other laws and regulations concerning privacy, telemarketing, Internet marketing and the transmission of electronic communications such as SMS and MMS messages. You will not use the SuperPhone Service in violation of any service agreement that You have with a third-party telecommunications provider.

17. Indemnity

You will indemnify and hold DMM, its affiliates, officers, directors, employees, agents, legal representatives, licensors, subsidiaries, joint ventures and suppliers, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Your breach of this Agreement, Your violation of any law, or the rights of a third party.

18. Termination of License

DMM may terminate Your right to use the SuperPhone Service or Software with or without cause at any time, including when we feel that You are taking advantage of unlimited messaging offered under a paid plan. We would consider “taking advantage” to be use above 500 text messages per dollar spent monthly on paid plan. You may also terminate this Agreement by simply discontinuing use of the SuperPhone Service. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement. In the event of any termination of this Agreement, the limitations on Your use of the Software as set forth in Section 3 shall survive such termination, and You agree to be bound by those terms.

19. Governing Law

ANY CLAIM RELATING TO DMM’S SITE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE IN AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL. IF FOR ANY REASON A COURT OF COMPETENT JURISDICTION FINDS ANY PROVISION OF THIS AGREEMENT, OR A PORTION THEREOF, TO BE UNENFORCEABLE, THAT PROVISION SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMISSIBLE SO AS TO AFFECT THE INTENT OF THIS AGREEMENT, AND THE REMAINDER OF THIS AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT. A PRINTED VERSION OF THIS AGREEMENT SHALL BE ADMISSIBLE IN JUDICIAL OR ADMINISTRATIVE PROCEEDINGS.

20. Waiver of Jury Trial

EACH OF THE PARTIES WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ALL CLAIMS OR CAUSES OF ACTION (INCLUDING COUNTERCLAIMS) RELATED TO OR ARISING OUT OF THIS AGREEMENT BROUGHT BY EITHER PARTY AGAINST THE OTHER. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS OF OR MODIFICATIONS TO THIS AGREEMENT.

21. No Class Actions

All claims between the parties related to this Agreement will be litigated individually and You will not consolidate or seek class treatment for any claim with respect to the Services.

YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

22. Waiver of Compliance of this Agreement

Even if we do not require strict compliance with the Agreement in each instance, You will be obligated to comply with the Agreement. Our failure to enforce, at any time, any of the provisions, conditions or requirements of the Agreement, or the failure to require, at any time, performance by You of any of the provisions of the Agreement, will in no way waive Your obligation to comply with any of the provisions of the Agreement or our ability to enforce each and every such provision as written.

Any and all waivers by DMM of any provision, condition or requirement of the Agreement will only be effective against DMM if it is in writing and signed by an authorized officer of DMM, and any such written waiver will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

23. Assignment and Delegation

You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to You. We may also substitute, by way of unilateral novation, effective upon notice to You, DMM, Inc. for any third party that assumes our rights and obligations under this Agreement.

24. No Injunctive Relief

In no event shall You seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the SuperPhone Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service.

25. Contacting Users

By using the SuperPhone Service, You agree that we may contact You via voice call, text message or other electronic medium. In the event that any information You have provided to DMM changes, including but not limited to, Your phone number, e-mail or address, You agree to promptly update Your information.