Terms and Conditions

2.1. Provision of Services. LeadVolt will provide the Services to Customer during the applicable Term in accordance with this Agreement and the relevant Order Form.

2.2. LeadVolt Platform License. Subject to Customer's compliance with this Agreement, LeadVolt grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the applicable Term to access and use the LeadVolt Platform via LeadVolt's cloud-based services, solely for Customer's internal business purposes. Such access and use is expressly limited to the number of Users set forth in the applicable Order Form. LeadVolt and its licensors reserve all rights and licenses in and to the LeadVolt Platform not expressly granted to Customer under this Agreement.

2.3. Restrictions; Prohibited Uses. Customer acknowledges that the LeadVolt Platform contains trade secrets of LeadVolt and its licensors, and Customer agrees not to access or use the LeadVolt Platform in any manner inconsistent with LeadVolt's proprietary rights. Customer will not, and agrees not to: (a) use or permit the use of the Services except as expressly authorized under this Agreement or the Documentation; (b) interfere with or disrupt the integrity or performance of the LeadVolt Platform; (c) reverse engineer, decompile, disassemble, decrypt, or otherwise tamper with the LeadVolt Platform; (d) derive the trade secrets, source code, object code, or algorithms of the LeadVolt Platform; (e) defeat, avoid, by-pass, remove, disable, or otherwise circumvent any software protection mechanisms; (f) gain unauthorized access to the LeadVolt Platform; (g) disseminate viruses, adware, spyware, worms, or other malicious code; (h) overload, flood, spam, or otherwise create an undue burden on the LeadVolt Platform infrastructure; (i) reproduce, copy, modify, adapt, or create derivative works of the LeadVolt Platform; (j) distribute, sell, sublicense, or otherwise transfer or provide access to the LeadVolt Platform; (k) access the LeadVolt Platform for the purpose of building a similar or competitive product or service; (l) monitor availability, performance, or functionality for any benchmarking or competitive purposes; (m) remove, alter, or obscure any proprietary notices; or (n) use the LeadVolt Platform in any manner that is unlawful or in violation of this Agreement. LeadVolt may terminate Customer's access at any time without notice if Customer fails to comply with this Agreement.

2.4. Third Party Applications. LeadVolt may offer Customer the ability to use third-party applications in combination with the LeadVolt Platform. Customer acknowledges and agrees that LeadVolt may allow third-party application service providers access to Customer Data as required for the interoperation with the LeadVolt Platform. LeadVolt shall have no liability for any claims, losses, or damages arising out of or in connection with Customer's use of any third-party applications.

2.5. Customer Account. In order to access and use the LeadVolt Platform, Customer will need to register and create an account ("Account"). Customer agrees to provide accurate, current, and complete information. LeadVolt reserves the right to suspend or terminate the Customer's Account if any information provided is or becomes inaccurate, false, or misleading. Customer is responsible for maintaining the confidentiality of Customer's Account, including all user names and passwords, and agrees to notify LeadVolt if any password is lost, stolen, or disclosed to an unauthorized third-party.

2.6. Customer Responsibilities. Customer is responsible for all activity that occurs under Customer's Account. Customer agrees to: (a) be solely responsible for all Customer's and Customer's Users' activities on the LeadVolt Platform; (b) be solely responsible for Customer Data; (c) obtain and maintain during the Term all necessary consents and approvals from individuals or third parties for all actual or intended uses of information, data, or other content used in connection with the Services; (d) use commercially reasonable efforts to prevent unauthorized access to the Services; and (e) use the Services only in accordance with applicable laws, rules, and regulations.

2.7. Third Party Administrator. Customer hereby authorizes LeadVolt to grant limited access to Customer's Account, including authorized User Accounts and Customer Data, to a designated third-party administrator ("Third Party Administrator") for onboarding, configuration, administration, management, and support services. Third Party Administrator must be bound by a written confidentiality agreement and shall only access Customer's Account on a need-to-know basis. LeadVolt shall be responsible for any breach of this Agreement by a Third-Party Administrator.

2.8. No Dependence on Future Functionality. Customer agrees that Customer is not entering into this Agreement or any Order Form contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in an Order Form.

3.1. Protection of Customer Data. LeadVolt will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Customer consents to LeadVolt's internal access, collection, transmission, storage, copying, processing, analysis and use of Customer Data (a) in order to provide the Services and to monitor compliance with this Agreement, (b) for Account Administration, (c) to prevent or address service or technical problems, (d) as expressly permitted in writing by Customer, and (e) solely in anonymized and aggregated format for research and development purposes related to the Services.

3.2. Data Maintenance. LeadVolt will follow its internal archival procedures for Customer Data, including regular backups of all Customer Data. In the event of any loss or corruption of Customer Data, LeadVolt will use commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup. LeadVolt shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Customer Data caused by Customer or any third-party.

3.3. Security Event. LeadVolt will promptly inform Customer of any known or reasonably suspected security breach or unauthorized disclosure of Customer Data or Confidential Information ("Security Event"). If there is a Security Event, LeadVolt shall (a) take all reasonable steps to mitigate any potential damages, and (b) promptly respond to reasonable security-related inquiries from Customer and take all reasonable steps to identify, investigate, and resolve applicable security issues on a timely basis.

3.4. Privacy Policy. LeadVolt's privacy policy related to the use of the LeadVolt Platform, accessible at https://www.LeadVolt.com/privacy-policy/ ("Privacy Policy") is incorporated herein by reference and each Party agrees to the provisions contained therein. To the extent of any conflict or inconsistency between the provisions of this Agreement and any portion of the Privacy Policy, the terms of this Agreement will prevail.

3.5. International Privacy and Data Protection. In the event Customer or any Customer Data is sourced from the European Union ("EU") or other location that requires special privacy or data protection provisions, Customer shall notify LeadVolt in writing, and the parties may agree to a Data Processing Addendum with additional provisions relating to privacy and data protection, which shall become a part of this Agreement.

4.1. Service Level Agreement. LeadVolt will provide Customer with maintenance and support services for the Services, in accordance with and subject to the service level agreement ("SLA") in effect as of the Effective Date at https://www.LeadVolt.com/sla.

4.2. Limitations. LeadVolt will have no obligation of any kind to provide support for problems in the operation or performance of the Services to the extent caused by: (a) non-LeadVolt software or hardware products; or (b) Customer's use of the Services other than as authorized in this Agreement or as provided in the Documentation. If LeadVolt determines that maintenance services are necessary for a problem caused by either of the above, LeadVolt will notify Customer and have the right to invoice Customer for all such maintenance services performed and approved by Customer.

5.1. Fees. Customer agrees to pay all fees set forth in each Order Form for the applicable Term ("Fees") for the Services. Customer shall also reimburse LeadVolt for all reasonable travel and expenses incurred in the performance of Professional Services. Except as otherwise specified herein or in an Order Form, (a) Fees will be quoted and paid in United States dollars and (b) payment obligations are non-cancelable and Fees paid are non-refundable.

5.2. Payment. Customer will provide a payment method and pay for all Services initially set forth in the Order Form during the sign-up process. Fees are due in advance, for the then-current Term, and any usage Fees incurred during that Term will be charged on the next billing cycle. Customer must pre-pay for the Services before the Term commences and, for continuous Services, Customer will be automatically charged before any Renewal Term commences.

5.3. Payment Method. By providing Customer's payment information, Customer is expressly authorizing LeadVolt to charge Customer for all Fees incurred in connection with the applicable Order Form and Customer's usage of the Services. LeadVolt uses a third-party Payment Processor who stores and maintains Customer's payment method in accordance with accepted security protocols. LeadVolt does not keep or store Customer's payment information. Customer is required to keep its payment information current, complete, and accurate.

5.4. Overdue Fees. If any Fees are not received from Customer by the due date, then at LeadVolt's discretion, such Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

5.5. Suspension of Services. Except with respect to any Fees disputed in good faith by Customer, if any Fees are seven (7) or more days overdue, LeadVolt may suspend the Services and Customer's use of the LeadVolt Platform until such amounts are paid in full.

5.6. Payment Disputes. If an invoiced amount is disputed in good faith by Customer, Customer must notify LeadVolt in writing and provide sufficiently detailed support of any invoice dispute within seven (7) days of Customer's receipt of such invoice. If Customer fails to do so, Customer is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid.

5.7. Taxes. The Fees are exclusive of all taxes, levies, duties or similar governmental assessments of any nature (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with Customer purchases hereunder except for those based on LeadVolt's net income, property, or employee withholdings.

5.8. Audit Rights. LeadVolt shall have the right to audit Customer's compliance with this Agreement at any time during the Term. Customer shall cooperate following any reasonable request by LeadVolt in connection with such audit. If LeadVolt determines that Customer has allowed access to the Services other than as permitted and additional Fees are owed, LeadVolt shall invoice Customer for such discrepancies.

6.1. LeadVolt Ownership. LeadVolt and its licensors reserve sole and exclusive ownership of all right, title, and interest in and to the Services, including all copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights embodied therein.

6.2. Customer Ownership and Licenses. As between LeadVolt and Customer, Customer owns all rights, title, and interest in and to (a) all Customer Data and (b) any information supplied by Customer to LeadVolt as may be specified in any Order Form (collectively, "Customer Materials"). Customer grants LeadVolt a non-exclusive, non-transferable, royalty free, worldwide right to access and use Customer Materials solely to provide the Services to Customer at Customer's request.

6.3. Feedback and Derivative Works. If Customer provides any suggestions, comments, requests, recommendations, or other feedback ("Feedback") or any ideas, technology, developments, derivative works, or other intellectual property ("Derivative Works") related to the Services to LeadVolt, Customer grants LeadVolt a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate any such Feedback or Derivative Works into any of its Services without compensation to Customer.

7.1. Definition of Confidential Information. "Confidential Information" means all confidential information disclosed by a Party ("Discloser") to the other Party ("Recipient"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure by Discloser, (c) is received from a third party without any obligation of confidentiality, or (d) was independently developed by Recipient without reference to or use of Discloser's Confidential Information.

7.2. Ownership of Confidential Information. Discloser shall retain all right, title, and interest in and to its Confidential Information. Neither the execution and delivery of this Agreement, nor the furnishing of any Confidential Information shall be construed as granting to Recipient any license under any intellectual property or proprietary rights, nor any right to use, copy, sell, develop, or exploit the Confidential Information made available to Recipient, except to fulfill the purpose of this Agreement.

7.3. Protection of Confidential Information. Except as otherwise permitted in writing by Discloser, Recipient will (a) use Discloser's Confidential Information only for the purposes of this Agreement and will use the same degree of care to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and (b) limit access to Confidential Information to those of its employees, contractors, agents, and legal and financial representatives who have a need to know such information for purposes consistent with this Agreement. Notwithstanding the foregoing, Customer may not disclose Confidential Information of LeadVolt to any competitor or existing customer of LeadVolt without LeadVolt's prior written consent.

7.4. Compelled Disclosure. Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided that (a) Recipient gives Discloser prior written notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance if Discloser wishes to contest the disclosure, and (b) Recipient shall furnish only that portion of Discloser's Confidential Information which is legally required to be disclosed.

7.5. Return of Confidential Information. Recipient shall return or destroy any Confidential Information disclosed to it and all copies thereof, promptly within ten (10) days following Discloser's written demand for the return or destruction of its Confidential Information at the completion of the use by Recipient as permitted herein or at the termination or expiration of this Agreement.

8.1. Mutual Warranties. Each Party represents and warrants that (a) it has the legal power to enter into this Agreement and to fully perform its obligations hereunder, (b) by entering into this Agreement, it does not violate any agreement existing between it and any other person or entity, (c) this Agreement, when executed and delivered, will constitute the legal, valid, and binding obligations of such party, enforceable against it in accordance with its terms, and (d) it will comply with all applicable laws, rules, and regulations.

8.2. LeadVolt Warranties. LeadVolt warrants that the LeadVolt Platform will function, during the Term, in substantial compliance with the applicable Documentation made available to Customer. In order to be entitled to any remedy based on a purported breach of the foregoing warranties, Customer must inform LeadVolt of the purported deficiency within thirty (30) days of the day on which Customer becomes aware of the condition giving rise to such claim.

8.3. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2, LEADVOLT MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE LEADVOLT PLATFORM IS PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. LEADVOLT MAKES NO WARRANTY THAT THE LEADVOLT PLATFORM WILL MEET CUSTOMER'S REQUIREMENTS, THAT PERFORMANCE OR RESULTS ARE GUARANTEED, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.

9.1. Indemnification by Customer. Customer will defend, indemnify, and hold harmless LeadVolt and its officers, directors, employees, agents, successors and assigns, from and against any third party claims, disputes, demands, losses, damages, and other liabilities, costs, and expenses (including but not limited to reasonable legal and professional fees), arising out of or related to (a) Customer's use of the Services in violation of this Agreement, or (b) Customer Data or Customer Materials as provided to LeadVolt or from LeadVolt's permitted use of such Customer Data or Customer Materials.

9.2. Indemnification by LeadVolt. LeadVolt will defend, indemnify, and hold harmless Customer and its officers, directors, employees, agents, successors and assigns, from and against any third-party claims arising out of a claim that the Services, as provided under this Agreement and used within the scope of this Agreement and the applicable Documentation, infringes or misappropriates the intellectual property rights of any third party. LeadVolt has no obligation to indemnify a claim if it arises from: (i) Customer Data or Customer Materials, (ii) unauthorized modification or use of the Services, (iii) LeadVolt's compliance with any design or specifications provided by Customer, or (iv) Customer's acts or omissions not in accordance with, or in breach of, the terms of this Agreement.

9.3. Exclusive Remedy. This Section 9 (Indemnification) states the indemnifying Party's sole and exclusive obligations and liability to, and the indemnified Party's exclusive remedy against, the other Party for any type of claim described in this Section.

10.1. Limitation of Liability. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY (WHETHER UNDER WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, UP TO A MAXIMUM OF $100,000. THE FOREGOING WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.

10.2. No Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR RESULTING FROM CUSTOMER'S ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF AN EXCLUSIVE REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

10.3. Exclusions. SECTIONS 10.1 AND 10.2 DO NOT APPLY TO (A) A VIOLATION OF CONFIDENTIALITY OBLIGATIONS, (B) A VIOLATION OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS, (C) INDEMNIFICATION OBLIGATIONS, OR (D) TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11.1. Term of Agreement. This Agreement commences on the Effective Date and will remain in effect until the earlier of (a) the expiration or termination of all Order Forms under this Agreement or (b) the termination of this Agreement in accordance with this Section 11. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer, including all Order Forms, will immediately terminate and Customer must stop using the Services.

11.2. Minimal Term; Automatic Renewal. Subscriptions for the LeadVolt Platform commence on the Order Date specified in the applicable Order Form and continue for the subscription Term specified therein. The Term will be for a minimum of two (2) months. Except as otherwise specified herein or in the applicable Order Form, all subscriptions will automatically renew for additional periods of one-month (each a "Renewal Term") at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the end of the applicable Term or Renewal Term.

11.3. Termination for Cause. Either Party may terminate this Agreement or any applicable Order Form for cause: (a) upon ten (10) days' written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, (b) immediately for material violations of confidentiality obligations, or (c) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4. Survival. Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause, or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.

11.5. Refund or Payment upon Termination. Upon any termination for cause by Customer, LeadVolt will refund Customer a pro-rata portion of any prepaid Fees for the remainder of the Term after the effective date of termination. Upon any termination for cause by LeadVolt, Customer will pay any unpaid Fees for the remainder of the Term after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to LeadVolt for the period prior to the effective date of termination.

11.6. Exporting Customer Data. During any Term and for the period thirty (30) days after termination or expiration of this Agreement or the applicable Order Form, provided that Customer is in material compliance with this Agreement, Customer may request its Customer Data in comma separated value (.csv) format. Custom exports of Customer Data may incur additional Fees. After the thirty-day period after termination or expiration, LeadVolt will have no obligation to maintain or make available the applicable Customer Data and may thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in LeadVolt systems.

12.1. General Compliance. Each Party, at its own expense, agrees to comply with all applicable federal, state, and/or local laws, rules, and regulations of any governmental authority with jurisdiction over its activities under this Agreement.

12.2. Customer Responsibilities. Customer shall be solely responsible for ensuring compliance with any and all applicable federal, state, and local laws regulating telecommunications and information services, including but not limited to, the Telephone Consumer Protection Act 47 U.S.C. § 227 et seq ("TCPA"). Customer assumes all responsibility and liability for use of the Services in compliance with any federal, state or local laws, rules, or regulations pertaining to the use of telephones, automated telephonic equipment, automatic telephone dialing systems, artificial or prerecorded voice messages, ringless voicemails, short message services, texting, electronic mail, fax, and other telephony and telecommunications products and services.

12.3. Telemarketing Safe Harbor Message. Any Customer engaging in telemarketing sales and utilizing the Services to do so agrees to record and maintain a "Safe Harbor Message" in compliance with the Federal Trade Commission's (the "FTC") Telemarketing Sales Rule by stating the name and telephone number of the seller on whose behalf a call is placed.

12.4. Violation of Regulations by Customer. If LeadVolt determines, in its sole discretion, that the receipt of communications via the Services are not consensual, or violates any federal, state, and/or local law, rule, or regulation, or is harassing to consumers or businesses, LeadVolt may suspend Customer's access to the Services until LeadVolt is reasonably satisfied that the violation is cured. Customer represents and warrants that all lists of subscribers/phone numbers provided to LeadVolt or used in connection with the Services ("Subscriber List") and all messages to be sent hereunder, including the opt in and out procedures ("Subscriber Procedures"), are in compliance with any and all applicable state, local and federal laws, including without limitation TCPA requirements.

12.5. Short Message Service ("SMS") Policy.

12.5.1 SMS Definitions.

“Device” shall mean any hardware capable of receiving or sending wireless messages.

“Operator” shall mean the wireless carrier (e.g. T-Mobile) to which LeadVolt has commercial connectivity.

“Subscriber” shall mean the consumer or end-user on a wireless telecommunications network that sends or receives messages via a wireless device. The Subscriber is the consumer of the messaging services provided by LeadVolt, performed by Customer, as enabled by the Operator.

12.5.2. Compliance with Operator Policies. Customer shall adhere to the policies of the Operators regarding content, service, Subscriber interaction, and transmission of messages, and other policies that may be issued by specific Operators or from the Mobile Marketing Association ("MMA"). A breach of these regulations will result in immediate and irreparable damage to LeadVolt and Operator, for which Customer shall be fully responsible for all costs and damage amounts including reasonable attorneys' fees and shall further be a material breach of this Agreement.

12.5.3. Content. Customer agrees to be solely responsible for all Content. Customer will not send Messages for which it does not retain all rights necessary or where approval has not been received from Operator. Customer agrees to be solely responsible for any liability relating to Customer Content or its use of the Services. Under no circumstances will LeadVolt be responsible for any loss, damage or liability arising out of the Content or Data of any transaction, including any billing or payment issues or mistakes contained in the Content or Data or the use or transmission of the Content or Data.

12.5.4. Liability for Operator Limitations. Customer acknowledges and agrees that with respect to Operator communication services: (i) one hundred (100%) percent of the Messages or Content may not be delivered; and (ii) neither LeadVolt nor any Operator will be liable to Customer for any Messages or Content (or part thereof) deleted or not delivered, regardless of the reason for deletion or non-delivery including, without limitation, network issues, message processing, Operator action, or transmission errors.

12.5.5. Facilitator. Customer acknowledges that LeadVolt is merely a facilitator and accepts no liability or obligations for changes to Content executed by Operators. Use of the Services involves transmission through Operators or companies other than LeadVolt and Messages and Transactions may not be private in certain circumstances. LeadVolt assumes no responsibility for timeliness, deletions, miss-delivery or failure to store any Content or Transaction.

12.5.6. Use and Privacy of Data. For purposes of this Agreement and as a result of the operation of its Services, LeadVolt collects some of the Data generated from the Transactions including but not limited to the success or failure of the transaction. Customer acknowledges that Operators cannot guarantee the privacy of Messages, and accordingly Customer agrees that neither LeadVolt nor the Operators will be liable to Customer or any other party for any lack of privacy or security experienced when using the Services.

12.5.7. Limitations on SMS Liability. Notwithstanding anything in this Agreement to the contrary: (a) the services provided by any Operator by means of a wireless network or the Internet, are "as is", "where is" and "when available"; (b) LeadVolt is not responsible for the availability of any Operator, or the availability and/or performance of the wireless network or the Internet; and (c) LeadVolt is not responsible for any damages or costs Customer suffers or incurs as a result of any instructions given, actions taken or omissions made by Customer.

12.6. Electronic Mail ("Email") Policy.

12.6.1. Internet Service Provider ("ISP") Reported Bouncebacks. Customer's email sending activities shall not result in bounce results, as reported by Internet Service Providers (e.g. Google, Yahoo, Hotmail) in excess of applicable limits. Exceeding said limits may result in temporary or permanent disabling of Customer's email service. Limits are subject to change at any time based on ISP policies.

12.6.2. Deliverability. LeadVolt makes no guarantee with regard to delivery of email generated by the email service available through the Services.

12.6.3. Spam. Customer is prohibited from transmitting, distributing, or delivering unsolicited bulk or commercial email through the Services. Customer agrees that all emails sent, or caused to be sent, by Customer to or through the Services shall be 100% opt-in and shall not use or contain invalid or forged headers; use or contain invalid or nonexistent domain names; employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path; use other means of deceptive addressing; use a third party's internet domain name, or be relayed from or through a third party's equipment, without permission of the third party; or contain false or misleading information in the subject line or otherwise contain false or misleading content.

12.6.4. Email Content. Customer shall not directly or indirectly send, transmit, handle, distribute or deliver any email through the Service with content, or in a manner that: (a) is threatening, abusive, harassing, or defamatory; (b) is deceptive, false, misleading or fraudulent; (c) is invasive of another's privacy; (d) contains vulgar, obscene or indecent material; (e) infringes any third party's intellectual property rights; (f) violates export control laws and/or regulations; (g) violates the usage standards or rules of an entity affected by Customer's use; (h) is legally actionable by private parties; and/or (i) is in violation of any applicable local, state, national or international law or regulation, including without limitation the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act), 15 U.S.C. sec. 7701 et seq.

12.6.5. Violations and Enforcement. If LeadVolt believes that Customer has breached any of the provisions of Sections 12.6.3 or 12.6.4 above, it may, without notice, in addition to all other remedies available to it, take such action as it deems appropriate, including but not limited to, requiring Customer to use a third-party email provider at an additional charge of $250.00 per month for integration and maintenance services, blocking the delivery of Customer's email messages, and/or suspending Customer's use of the Services.

13.1. Governing Law. This Agreement is governed by the laws of the State of California, excluding choice of law principles.

13.2. Dispute Resolution; Mandatory Arbitration. The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Except for actions (i) to protect a party's intellectual property, and (ii) to enforce an arbitrator's decision hereunder, any claim or dispute arising out of or relating to the Agreement shall be submitted to and resolved by confidential binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its then-prevailing Commercial Arbitration Rules. The arbitration shall take place in Los Angeles County, California, before a single, neutral arbitrator who is a former or retired judge with at least ten (10) years of experience in general commercial transactions and contract disputes in the technology and software industry. The arbitrator's award shall be accompanied by a reasoned opinion, will be binding on the parties, and may be entered as a judgment in any court of competent jurisdiction.

13.3. Venue. If for any reason a claim proceeds in court rather than in arbitration, it shall be brought exclusively in a state or federal court of competent jurisdiction located in Los Angeles County, California, and the parties expressly consent to personal jurisdiction and venue therein.

13.4. Waiver of Jury Trial. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.