October 24th 2011
1. General. These Terms of Service (TOS) govern the responsibilities of Red Fish Media, LLC (RFM) in providing the Services, as hereinafter defined, to its Client and the responsibilities of Client to RFM.
2. Definitions. For the purpose of the TOS the following definitions apply;
2.1 “Aggregator” means an entity that facilitates transmission of content to Carriers.
2.2 “Ancillary Documents” means a written proposal from RFM that has been accepted by Client and any other written compilation of terms agreed to by RFM and Client.
2.3 “Campaign” means the advertising, marketing, promotion, publicity, web hosting, design, mobile telecommunication and billing services related and incidental to the delivery or sale of specific Content or to a specific offering of Client.
2.4“Carriers” means collectively all companies providing and billing mobile telecommunications services to End-users such as Verizon Wireless, AT&T Wireless, and Sprint and “Carrier” means one of them
2.5 “Client” means the party for whom RFM provides the Services.
2.6 “Content” means the text, data, or binary code that is delivered to the End-user as part of the Services
2.7 “Consumer Information” means the mobile phone number of a Device and any data provided by an End-user either on the Device or through the Internet that is intended to be used by RFM to perform the Services.
2.8 “Carrier Rules” means the rules, restrictions, and policies imposed by Carriers or an Aggregator on the use of Shortcodes, the provision of the Services, or marketing activities related to the use of Shortcodes.
2.9 “Device” means a mobile handset or other mobile communications device capable sending and receiving voice and data over the Carriers’ networks.
2.10 “End-User” means the consumer that is the owner of a mobile handset registered with a Carrier.
2.11 “MMA and MMA Guidelines” mean respectively the Mobile Marketing Association and the Best Practices Guidelines published by the MMA, available for review or download at http://mmaglobal.com/bestpractices.pdf.
2.12 “Premium Rate Billing” means the billing and collection of revenue from End-users by RFM by using PSMS and receiving a portion of the funds collected by the Carrier.
2.13 “PSMS” means an SMS for which a charge is imposed by the Carrier to pay for content ordered by the End-user.
2.14 “Services” means mobile telecommunications, marketing, and technical services related to the delivery of Content to Devices and the receipt of Consumer Information from Devices, as may be more particularly defined in the Ancillary Documents, to include in whole or in part, without limitation:
2.14.1. Creating and hosting text alert services
2.14.2. Creating and hosting contests, polls, and sweepstakes
2.14.3. Delivery of Content
2.14.4. Collection of Consumer Information
2.15 “Shortcode” means a five or six digit number assigned by the Registrar of Common Short Codes to be used by a provider of mobile content to identify the provider to the mobile communication networks. See www.usshortcodes.com.
2.16 “SMS” means Short Message Service, a text message service usually limited to 160 characters that is supported by almost all mobile handsets and Carriers.
2.17 “Standard SMS” means the sending and receipt of SMS without any charge for content or other fee imposed on the End-User other than changes imposed under his rate plan with the Carrier.
3 Entire Agreement. The entire Agreement (the “Agreement”) between RFM and Client consists of the following:
3.1 These Terms of Service
3.2 Terms and Conditions contained in Ancillary Documents.
3.3 Carrier Rules.
Where inconsistencies exist among the foregoing, Carrier Rules take precedence over the provisions of the TOS and Ancillary Documents. Ancillary Documents take precedence over the provisions of the TOS.
4. Engagement. The Client hereby engages RFM to perform the Services set forth in Ancillary Documents and RFM hereby agrees to provide the Services in a diligent and workmanlike manner. If Client desires to make any changes in or variations from the services set forth on the Ancillary Documents, and such changes result in additional costs to Client, RFM shall notify Client's authorized representative in writing of the amount of such additional costs before any such additional costs are incurred and shall proceed after receiving authorization from such representative. It is understood and agreed that the Services relate to mobile telecommunications and that RFM is required to utilize the services and facilities of Carriers, mobile telecommunications gateways and aggregators, and server hosting and telecommunications/data transport facilities and that RFM may use any such services and facilities as in its discretion are necessary for the ordinary conduct of its business. RFM is an independent contractor and shall perform the Services in accordance with its own judgment and discretion as necessary to meet its obligations under the Agreement. RFM is not an agent of Client and is not subject either to its direction or control. In the event that a statement of work or agreement calls for an ongoing services arrangement with Red Fish Media, and is silent or ambiguous on the term or duration of a contractual agreement, then the Term of the Agreement will be presumed to be Yearly, with the initial term commencing on the Effective date, or other date services were provided by the Company, and continuing for 365 days unless terminated sooner. Yearly contracts will automatically renew for an additional term of one year on the same terms and conditions unless amended in a writing signed by both parties, or terminated by either party with 60 days advance written notice before the anniversary date of the Effective Date. RFM customarily publicizes newsworthy campaigns it powers for its Clients through its website, newsletter and social media channels. Client expressly consents to such publicity and news dissemination unless the statement of work , Agreement, written communications between RFM and Client provide otherwise.
5. Service Level. Unless specifically and separately agreed in the Ancillary Documents RFM does not warrant or guaranty under its Service Level Addendum the availability of its facilities or the delivery to and receipt of data from the Carriers on an uninterrupted basis. Providing the Services requires data transport over the Internet and connectivity to the Carriers through their networks and the Aggregator’s facilities. RFM has no control over the availability of all such networks and facilities. RFM will provide the Services on a best efforts basis using industry standard practices to assure receipt and delivery of data on a timely basis and to resolve outages and other service interruptions as promptly as possible. The complete Service Level Addendum, summarized in this paragraph, is available at www.redfishmedia.com.
6. Compliance. Except where superseded by Carrier Rule or governmental regulation, RFM adheres to the MMA Guidelines in providing services to Clients and requires that all clients adhere to the MMA Guidelines in all marketing and advertising to End-users and in providing content to them. Client is required to review the MMA Guidelines available at http://mmaglobal.com/bestpractices.pdf. In the event that RFM becomes aware that any aspect of Client’s marketing, advertising, or content does not comply with MMA Guidelines, it shall promptly notify Client of the noncompliance with sufficient specificity to allow Client to take corrective action. Client shall take such corrective action as promptly as possible. Carrier Rules are both published and non-published and may be changed, reinterpreted, or superseded without prior notice. RFM will use its best efforts to advise Client of any Carrier Rule that may apply to the Services and to cause the Services to comply with Carrier Rules. In the event that at any time RFM becomes aware that any element of the Services does not comply with a Carrier Rule, it shall take corrective action as promptly as possible to the extent that correction is within its control.
7. Customer Service. Unless otherwise provided in the Ancillary Documents, RFM provides customer service to all End-users without charge for Campaigns involving Standard SMS and at a charge specified in the Ancillary Document, but not less than $2.00 per incident if not specified. RFM’s provision of customer service is a requirement of Carrier Rules that may only be delegated in exceptional circumstances.
8. Notices. All notices between RFM and Client shall be in writing. Except as provided below, delivery of notices by email constitutes a sufficient written communication provided that the party receiving the notice by email replies to the notifying email or otherwise acknowledges its receipt. Delivery by fax shall be assumed if evidenced by a machine generated delivery receipt showing the date and time of transmission and the fax number indicated below as the receiving facsimile device. Delivery of notices by non-electronic means with positive confirmation of receipt is required for communications purporting to terminate or cancel the Services and for claims of breach or serious misconduct by either RFM or Client. Such notices shall be sent to Client at the address most recently indicated in the Ancillary Documents and to RFM as follows:
Red Fish Media, LLC 605 Lincoln Rd., Suite 220 Miami Beach, FL 33139 Fax number: 305 675 8281
10. Limitation Of Liability, Disclaimer Of Warranties and Indemnity..
10.1 EXCEPT AS PROVIDED IN SECTIONS 14 AND 18 NEITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN OR WILL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, RFM’S MAXIMUM LIABILITY FOR ANY AND ALL CLAIMS RELATING TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, NEGLIGENCE, INFRINGEMENT OF ANY RIGHTS OF ANY PARTY OR THIRD PARTY, PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR CLAIM WHATSOEVER, SHALL NOT EXCEED 25% “OR” SIX MONTHS OF THE NET REVENUES EARNED, WHICH EVER IS LESS, BY RFM UNDER THIS AGREEMENT.
10.2 OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, WHETHER ARISING UNDER ANY STATUTE, LAW, COMMERCIAL USAGE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.3 Indemnity. Client agrees to and does hereby defend, indemnify and hold harmless RFM, its Affiliates, successors, assigns, directors, officers, agents and employees ("RFM Indemnitees") from and against any and all liabilities, demands, losses, damages, costs, expenses, fines, amounts paid in settlements or judgments, including without limitation, costs, reasonable attorneys' fees, witnesses' fees, investigation expenses, cost of management time, any and all out-of-pocket expenses, consequential damages, and all other expenses and costs incident thereto (collectively referred to as "Damages") resulting from: (i) any claim, lawsuit, investigation, proceeding, regulatory action, or other cause of action, which may be suffered by reason of any loss, damage, death, injury, and/or other reason arising out of or in connection with the Services provided pursuant to a Statement of Work and these TOS ("Injury"), unless the Injury was caused solely by reason of RFM's negligence; (ii) the breach or alleged breach by Client of the warranties or representations contained in any Agreement or in the information, content or materials furnished by Client, or (iii) any infringement or alleged infringement of any patent, trademark, copyright, trade secret, or other intellectual property right resulting from Client's use or misuse of any Service provided hereunder. If the Damages are caused by the negligence of both Client and any of the RFM Indemnitees, the apportionment of said Damages shall be shared between Client and such RFM Indemnitees based upon the comparative degree of each party's negligence and each party shall be responsible for its own defense and its own costs including but not limited to the cost of defense, attorneys' fees and witnesses' fees and expenses incident thereto.
10.4 In the event that any demand or claim is made or suit is commenced against RFM for which Client has an indemnity obligation under Paragraph 10.3 above, written notice of such shall be provided to Client, and RFM Indemnitees shall cooperate with Client in the defense of the demand, claim or suit to whatever reasonable extent Client requires, and Client shall have the right to compromise such claim to the extent of its own interest and shall undertake the defense of any such suit. Notwithstanding, if Client fails to assume its obligation to defend, RFM Indemnitees may do so to protect their interest and seek reimbursement from Client. Client consents to venue in and jurisdiction of any court in which a lawsuit is filed against any RFM Indemnitees asserting one or more claims from and against which Client is obligated to defend, hold harmless and indemnify any RFM Indemnitees.
11. Confidentiality. Under this TOS either RFM or Client may be a Receiving Party or a Disclosing Party. Receiving Party shall hold in strict confidence and will not utilize, other than in connection with the performance of its obligations under this Agreement, all non-public, proprietary, and other confidential information with respect to the business and operations of Disclosing Party, including any plans, strategies and pricing information furnished hereunder or which become known because of this Agreement; provided, however, that nothing contained in this section shall be deemed or construed to apply to information that is publicly available, is acquired from any third party without any obligation to maintain confidentiality, or is independently developed by the Receiving party without use of any confidential information of the Disclosing Party. Nothing contained in this section shall be deemed or construed to prohibit the Receiving party from disclosing any confidential information to the Receiving party's auditors, tax consultants, professional advisors, and attorneys. The foregoing shall not restrict the disclosure of any information or the filing of documents required by applicable law. Client authorizes RFM to disclose the provision of services to Client and display Client’s logo on its corporate website among other RFM Clients.
12. Ownership of Intellectual Property. RFM represents that, to the best of its knowledge, information and belief, the services it is providing do not infringe any software, copyrights, or other intellectual property rights belonging to third parties. RFM does not make any warranty with respect to the marketing of goods and services to mobile phones or other mobile devices. Without specific written agreement to the contrary, no process or flow of information disclosed by Client and incorporated in the Services shall be claimed as the property of Client except for information relating to the business systems of Client. The Services do not constitute works for hire. Client shall acquire no ownership or rights in any process or software used or created by RFM to provide the Services.
13. Client’s Content. Client warrants and represents that Content delivered to RFM for use in the Services shall be free from defects and malicious code and that such Content does violate or infringe the Intellectual Property rights of any person.
14. Limitations on Use of Services. The Services are provided to Client solely for the uses intended or described in the Ancillary Documents. Client may not resell, assign, or transfer the Services, the use of the Services, or its rights under the Agreement to any party. Client may assign the rights under the Agreement to a subsidiary or other related party with the consent of RFM, which consent may not be unreasonably withheld. If the Services include computer code or software applications delivered to Client, Client shall disable such code or software upon completion of the Services.
15. Governing Law. These Terms of Service and any Agreement between RFM and Client shall be governed by the laws of the State of Florida without regard to its principles of conflicts of law.
16. Acceptance. These Terms of Service shall be conclusively presumed to be accepted by Client upon acceptance of the Ancillary Documents by Client.
The special provisions below apply only to the Clients for whom RFM provides Premium Rate Billing.
17. Additional Approvals and Monitoring Required. If RFM bills End- users using PSMS, the Campaign will be subject to specific approval by each of the Carriers. RFM shall submit applications to Carriers for approval of the Campaign and provide the Services in the manner required by the Carriers. RFM shall communicate specific Carrier requirements to Client as to matters, such as marketing and content, under Client’s control. Campaigns are routinely monitored by the Carriers for ongoing compliance or to implement revised Carrier Rules. Client represents and warrants to RFM that it shall conform to all Carrier Rules and to requests for changes in its Campaign to avoid penalties or other adverse action against RFM by the Carriers. Anything in Section 9 to the contrary notwithstanding, Client shall indemnify and hold RFM harmless from all costs and damages paid or incurred by RFM on account of Client’s failure to take corrective action after notice from RFM.
18. Reserves. RFM may establish a Reserve from Revenues payable to Client for Premium Rate Billing if it in good faith believes that there are 1) pending or threatened claims for which Client is responsible under Section 14. or to End-Users under Carrier Rules, 2) other obligations of Client to RFM have not been paid or provided for, or 3) such action is deemed necessary to protect the interests of End-Users. RFM shall notify Client in writing of the reason for establishing a Reserve prior to establishing a Reserve. The amount of any such Reserve must be reasonable and not punitive.