KINNEKT TERMS OF SERVICE

Thank you for choosing Kinnekt for Shopify. Kinnekt’s application helps Shopify store owners grow their business through the Kinnekt SMS/MMS platform (“Messaging Platform”). These Terms of Service (“Terms” or “Agreement”) apply to the Messing Platform and services provided by Kinnekt, a division of Zipify, LLC, a Delaware limited liability company (hereinafter “Kinnekt”). The terms and conditions of this Agreement and any guidelines, rules and policies incorporated herein form a legal and binding contract between you and Kinnekt.

BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT USE THE MESSAGING PLATFORM OR RECEIVE SUCH SERVICES.

1 – ACCEPTANCE, APPS AND RIGHTS OF ACCESS

1.01 Kinnekt (“we,” “us,” “our”) provides the Messaging Platform to you subject to your acceptance of these Terms of Service, including our Privacy Policy, Acceptable Use Policy, API Guidelines, Copyright Policy and all other policies and guidelines we may provide from time to time and displayed online at www.zipify.com (our “website”). All such guidelines, rules and policies are incorporated herein by reference and your use of our Messaging Platform constitutes your binding acceptance of such terms and conditions, including any updates or subsequent changes to the Terms made by us from time to time and displayed on our website.

1.02 This is an Agreement for access to and use of the Messaging Platform, and you are not granted a license to any software by this Agreement. You are only granted the right to use the Messaging Platform solely for the purposes described by Kinnekt. Our Messaging Platform requires registration, particularly before accessing certain areas or functionality. When you do register with us, you agree to provide accurate, current and complete information about yourself as prompted (such information being the “Registration Data”) and to maintain and promptly update the Registration Data to keep it accurate, current and complete.

1.03 Subject to your agreement and continuing compliance with these Terms, including, without limitation, meeting the applicable payment obligations, we grant you a personal, nonexclusive, nontransferable, non-sublicensable, revocable, limited right to access and use our Messaging Platform solely for your own internal business purpose. You agree not to use the Messaging Platform for any other purpose or more than one Shopify Store unless we have provided you with prior written authorization. We reserve any and all other rights in the Messaging Platform. Please contact us at info@zipify.com if you are interested in licensing the rights to our Messaging Platform for multiple Shopify Stores.

1.04 We reserve the right to modify or discontinue the Messaging Platform (or any part thereof) with or without notice at any time. You agree that we shall not be liable to you or any third party for any modification, suspension or discontinuance of the Messaging Platform, except as otherwise specified in any separate rules governing certain events or contents.

1.05 The Messaging Platform is intended for the use of adults 18 years or older. You acknowledge and agree that you are not permitted to use the Messaging Platform, and you shall not use our website, if you are under the age of 18.

1.06 The Messaging Platform may contain data from one or more third party sources; to the extent that any such source is used, you will comply with all such third party license and data use requirements.

1.07 Certain application programming interfaces (“API”) may contain code, commonly referred to as open source software, which is distributed under any of the many known variations of open source license terms, including terms which allow the free distribution and modification of the relevant software’s source code and/or which require all distributors to make such source code freely available upon request, including any contributions or modifications made by such distributor (collectively, “Open Source Software”). To the extent that any API contains any Open Source Software, that element only is licensed to you pursuant to the relevant license terms of the applicable third party licensor and not pursuant to the licenses contained in this Agreement, and you accept and agree to be bound by such terms.

2 – COMMENCEMENT DATE, FEES AND PAYMENT

2.01 You may purchase the right to access our Messaging Platform at the rates provided on our pricing page located at www.zipify.com/pricing (“Subscription”).

2.02 Payments will be billed to you by Shopify, and paid by you to Shopify, in U.S. currency. The date your account is first debited or charged will be the “Commencement Date”. Subscriptions are paid in advance and billed on a monthly basis.

2.03 You authorize Shopify or our merchant account provider the right to charge such credit card or perform such debits from your account.

2.04 If your payment and registration information is not accurate, current, and complete and you do not notify us, Shopify or our merchant account provider promptly when such information changes, we may suspend or terminate your account and refuse your use of the Messaging Platform. If you do not notify us, Shopify or our merchant account provider of updates to your payment method (e.g., credit card expiration date), we may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.

2.05 Your Subscription will remain active and subject to our current rates as published on our pricing page, until your Subscription is cancelled or terminated under this Agreement.

2.06 In the event that we are not able to recover the payment on the due date, we shall be entitled to terminate this Agreement and cease provision of the Messaging Platform. Charges not paid within 10 days after the due date will result in a charge of interest in the amount of 1.5% per month (or the highest rate of interest allowed by applicable law) on outstanding amounts due, which interest shall be compounded on a monthly basis until the entire balance is paid in full.

2.07 All Fees are exclusive of applicable federal, state, local or other governmental sales, goods and services, or other taxes, fees or charges now in force or enacted in the future, including, without limitation, Internet access, telephone, computer, and other equipment, and any communications or other charges to access and use the Messaging Platform. Message and data rates may also apply.

2.08 Payment obligations are non-cancellable and amounts paid or payable are non-refundable, except you may cancel your Subscription by removing the Subscription application from your Shopify store.

3 – PRIVACY AND SECURITY

3.01 Your Registration Data, as well as information that you may provide at other times during your use of the Messaging Platform, is subject to our Privacy Policy (available at https://zipify.com/kinnekt-privacy-policy.

3.02 When registering for the Messaging Platform, you may be required to select a Username and Password that will be used to access your account. You are responsible for any use of your Password, whether by you or others. You agree to (i) keep your Password confidential and not share it with anyone else; and (ii) immediately notify us of any unauthorized use of your Password or account or any other breach of security. Kinnekt will not be liable for any loss or damage arising from your failure to comply with this Section.

3.03 You authorize us to act on instructions received through use of your Password, and that we may, but are not obligated to, deny access or block any transaction made through use of your Password without prior notice.

3.04 By downloading the Messaging Platform, you are subject to the Shopify terms of Service located at www.shopify.com/legal/terms or as otherwise located on the Shopify website and updated from time to time.

4 – USER CONDUCT, OBLIGATIONS AND REPRESENTATIONS

4.01 By using the Messaging Platform, it is your responsibility to know, understand and abide by our rules of conduct. These rules are not meant to be exhaustive, and we reserve the right to determine what types of conduct we consider to be inappropriate use of our Messaging Platform and to take such measures as we see fit. We reserve the right to add or amend this list of rules at any time. We utilize third-party service providers to transmit our marketing messages over the Messaging Platform, which is subject to certain prohibited uses under the acceptable use policy of our third party service provider Zipwhip (“AUP”), which terms can be found at www.zipwhip.com/terms or as such AUP may be relocated and updated by Zipwhip on its website from time to time (“AUP Terms”). In the event of any conflict between this Agreement and the AUP Terms, the AUP Terms shall supersede to the extent of any actual conflict. By agreeing to this Agreement, you also agree to the AUP Terms.

4.02 You understand and agree that all messages are sent by you and not Kinnekt. You will be solely responsible and liable for such messages sent via the Message Platform and you acknowledge and agree that any and all messages you send via the Message Platform will be sent, and you further certify that any End User telephone numbers and/or lists you provide, are in compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing text messages, advertising, and telemarketing, and regulations applicable to data privacy and use and consumer protection including, without limitation, Section 5 of the FTC Act (15 U.S.C. § 45), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C. §§ 7701-7713) CAN-SPAM Act, the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227) (“TCPA”), the Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.) and orders implementing the TCPA, all federal and state Do Not Call and calling-time restriction laws and regulations, and, as applicable for SMS to Canadian numbers, the CRTC’s Unsolicited Telecommunications Rules, including the CRTC Telemarketing Rules, National DNCL Rules, and Automatic Dialing and Announcing Device Rules, Telecom Decision CRTC 2007-48, as amended; and all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices (collectively, “Messaging Requirements”). Kinnekt is not providing legal advice. You agree that you accept full legal responsibility for the use of the Message Platform and have been advised to obtain independent legal counsel before implementing the Message Platform with your customers and end users.

4.03 You represent and warrant that you are aware that, among other requirements, the TCPA requires prior express written consent from a consumer before you can send them marketing text messages, with no purchase required as a condition of their consent, and such consent must be clear and conspicuous.

4.04 You agree that you will promptly process all such do-not-text or do-not-call requests and maintain those numbers on your internal do-not-call/text list.

4.05 You shall schedule your messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, pictures or videos for inclusion in any outbound messages.

4.06 You represent and warrant that you have all power and authority and have procured all rights and licenses necessary to use and text enable those telephone numbers utilized for the Message Platform. In the case of shared use telephone numbers, you represent that you are the owner of the telephone number.

4.07 You agree that you will not use the Messaging Platform to or make available content as follows:

No Infringing, Illegal, Threatening, Defamatory, and Offensive Uses . You may not use the Messaging Platform to violate any Applicable Law. “Applicable Law” includes all applicable laws, rules and regulations applicable to you, your business or the subject matter of the Terms including without limitation, laws governing the use of individual information, deceptive and misleading advertising, electronic commercial communications, telemarketing and other similar laws, which include, without limitation, the Messaging Requirements, as amended from time to time. Without limiting the foregoing, you shall not use the Messaging Platform for, or in connection with, the following:

Theft or infringement of copyrights, trademarks, trade secrets, or other types of intellectual property.

Fraud; forgery; or theft or misappropriation of funds, credit cards, or personal information.

Impersonation of any person or entity, including, but not limited to, us or our third party service provider, or falsely state or otherwise misrepresent your affiliation with a person or entity.

Harm minors in any way.

Violate the privacy, publicity or other personal rights of others, including, without limitation, any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC”).

Making available any content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any Applicable Law or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities.

Making available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements).

Stalking or otherwise harassing any person or entity.

Export, re-export, or transfer of restricted software, algorithms or other data in violation of applicable export control laws.

Intentionally or unintentionally violate any applicable local, state, provincial, national or international law, treaty, or regulation, or any order of a court.

Deceptive practices such as posing as another service for the purposes of phishing or pharming.

Distributing any materials of a threatening or harmful nature, including without limitation threats of death or physical harm, or materials that are malicious, harassing, libelous, defamatory, or which facilitate extortion or harmful action.

Distributing any offensive materials, including without limitation obscene, pornographic, indecent or hateful materials and materials which promote gambling or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.

Sending unwanted telemarketing, promotional or informational messages without having procured the necessary consents, right and license from the recipient(s) of your messages.

Sending messages in violation of the U.S. National Do Not Call Registry or related considerations under Applicable Law.

Make available, distribute, re-upload or share any video, photos, downloads or other content provided by us or through the Messaging Platform to any other website, streaming technology, peer-to-peer software, or similarly unauthorized distribution channel unless expressly authorized to do so by us.

Registering for more accounts or associated admin logins or End User logins than for which fees have been paid or register for an account on behalf of an individual other than yourself.

Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

Security and Interference . You may not use the Messaging Platform to violate, attempt to violate, or knowingly facilitate the violation of the security or integrity of any network, electronic service, or other system that is accessible through, or in connection with, the Messaging Platform. You shall not use the Messaging Platform in a manner that interferes with any other party’s ability to use and enjoy the Messaging Platform, that interferes with our or our third party service partners’ ability to provide the Messaging Platform, or that otherwise may create legal liability for us or our third party service partner in our sole discretion. You shall not use the Messaging Platform to violate the acceptable use policy or terms of service of any other service provider, including, without limitation, any Internet service provider. Without limiting the foregoing, you shall not use the Messaging Platform for, or in connection with, the following:

Hacking, cracking into, or otherwise using the non-public areas of the Messaging Platform or any other system without authorization.

Unauthorized probes or port scans for vulnerabilities.

Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any system.

Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled.

Unauthorized network monitoring or packet capture.

Forged or non-standard protocol headers, such as altering source addresses.

Denial of Service (DoS) attacks of any kind.

Distributing unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.

Operating network services such as: open proxies; open mail relays; or open, recursive domain name servers.

Sharing or publishing content from the Messaging Platform to cause, or have the consequence of causing, the user of the content to be in violation of these Terms.

Contain software viruses or any other computer code, files or programs that can interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications

Interfere with the Messaging Platform or servers or networks connected to the Messaging Platform or disobey any requirements of networks connected to the Messaging Platform.

Attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising, or in any way making up, any part of the Messaging Platform.

Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

Spam . You shall not use the Messaging Platform for purposes of distributing text messaging “spam,” bulk unsolicited messages, or any other form of unsolicited electronic communications distributed on a bulk basis to recipients with which you have no preexisting business or personal relationship. You shall not use the Messaging Platform to collect responses from spam. You shall not harvest, collect, gather or assemble information or data of users, including e-mail addresses, without their consent. You are solely responsible for obtaining all necessary and appropriate rights, licenses and consents from those person(s) and entity(ies) with whom you message or otherwise communicate with via the Messaging Platform, prior to commencing any such messaging or communication. Additionally, you shall not use the Messaging Platform to send unwanted messages to individuals who have asked to stop receiving messages through any medium. To the extent required by Applicable Law, you must track and record all such requests specific to your business. You must also provide recipients of those MMS/SMS messages you send via the Messaging Platform with conspicuous notice of their ability to opt-out from receiving any future text messages, by texting STOP in a stand-alone message with no additional characters or punctuation. Without limiting the foregoing, you shall not use the Messaging Platform for, or in connection with, the following:

Sending pyramid schemes.

Sending chain letters.

Sending any mail in contravention of Applicable Law.

Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.

Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

Our third party service partner’s platform responds programmatically to the keyword STOP, and it works with a market leading digital security firm to monitor for and prevent spam.

Changes to the AUP Terms . The AUP Terms are subject to occasional revision at the sole discretion of our third party service partner. We will take reasonable steps to notify you of any material changes or modifications to these AUP Terms by way of prominent notice on our website or by email, but you agree to check these AUP Terms periodically to be aware of any changes or modifications. If you do not agree to the changes in these AUP Terms, you must discontinue use of the Messaging Platform. Your continued use of the Messaging Platform shall be deemed your conclusive acceptance of any such revisions.

4.08 Violation of the rules of conduct may result in the immediate removal of your content from the Messaging Platform and/or the termination of your account(s).

4.09 You understand that all postings and content submitted to any of the Messaging Platform by your customers (“End Users”), whether privately transmitted or made publicly available, are the sole responsibility of the person from which such content (“End User Materials”) originated. You are entirely responsible for all End Users and End User Materials that you make available via the Messaging Platform.

4.10 You acknowledge that we may or may not pre-screen End User Materials, but that we and our designees have the right (but not the obligation) in our sole discretion to remove any End User Materials. You understand that by using the Messaging Platform, you may be exposed to End User Materials that you may consider to be offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any End User Materials. You further acknowledge and agree that you will not rely on any content available on or through the Messaging Platform.

4.11 With respect to End User Materials you directly submit or make available on the Messaging Platform, you grant Kinnekt an irrevocable, fully sublicensable, perpetual, world-wide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such End User Materials (in whole or in part) and to incorporate such End User Materials into other works in any format or medium now known or later developed.

4.12 The Message Platform provides the software and carrier-connectivity through which you send your messages; you are solely and exclusively responsible for complying with Messaging Requirements (and for defending and indemnifying us and our third party service providers from any claims in which it is alleged that you failed to do so). If for any reason we or our third party service provider suspects that your use of the Message Platform in any way is contrary to any Messaging Requirements, it reserves the right to request a written explanation from you, including the method of collecting the End User’s telephone numbers and a certification signed by you that you have received prior express written consent to send text messages to such End User at their registered telephone number before sending messages to such End User.

4.13 You agree to provide all such requested information and documents requested by us or our third party service provider that (i) all telephone numbers and other personal information used in connection with the Messaging Platform have been collected in accordance with the Messaging Requirements, (ii) sufficient notice and opt-in consent has been received and maintained by you for a period of no less than 9 months from the date of the opt-in written consent (and documentation evidencing such opt-in written consent cannot be evidenced by third party lists that you purchased or obtained) in connection with your use and your End User’s use of the Messaging Platform under the Agreement, and for the preparation and distribution of all messages, content, and other materials delivered to your End Users and other recipients by and through the Messaging Platform.

4.14 The Messaging Platform is protected by copyright, trade secret, and other intellectual property laws as further described below. You agree not to use, nor permit any third party to use, the Messaging Platform or content in a manner that violates any applicable law, regulation or this Agreement. You agree you will not: (i) provide access to or give any part of the Messaging Platform to any third party; (ii) reproduce, modify, copy, deconstruct, sell, trade or resell the Messaging Platform; (iii) make the Messaging Platform available on any file-sharing or application hosting service; (iv) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Messaging Platform (or any source code relating thereto); (v) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Messaging Platform (or any source code relating thereto); (vi) remove, obscure, or alter any proprietary rights notices affixed to or contained within the Messaging Platform; (vii) assign, sell, rent, lease, sublicense, lend, transfer, resell, or distribute any part of the Messaging Platform (or any source code relating thereto) to any third party or use the services on behalf of any third party unless otherwise agreed to in writing by us in our sole discretion; (viii) access all or any part of the Messaging Platform in order to build a product or service which competes with the Messaging Platform including, without limitation, the software; create Internet links to or frame or mirror any Messaging Platform or any content; or (ix) display or reference any part of the Messaging Platform, software or any Kinnekt name, trademark or logo, without our prior written consent in each instance.

4.15 You represent and warrant that by entering into this Agreement, you hereby authorize Kinnekt and its third party service providers to act as your agent and affiliates’ agent to text enable non-wireless telephone numbers owned or otherwise provided and referenced herein for the management of text messaging and related services through the Messaging Platform. In no event shall Kinnekt be liable in any way for claims arising from or relating to a breach of any representation or warranty hereunder.

5 – END USER DATA

5.01 You will be responsible for ensuring that all programs used in conjunction with the Messaging Platform, including, without limitation, marketing, advertising or promotional campaigns, contests, drawings, raffles (“Programs”), including the administration thereof, comply with all applicable laws, rules, and regulations.

5.02 You will be responsible for ensuring that all End Users who are engaged by you through the Messaging Platform are required to agree to your license agreement, terms of service, terms of use, acceptable use policy, privacy policy, merchant messaging policy and any other appropriate terms and conditions that may be provided by Kinnekt from time to time that are in addition to, supplement or otherwise modify your terms (the “End User Terms”) and that you will, at all times, have in effect enforceable and up-to-date End User Terms related to the sending of SMS/MMS messages. Without limiting the foregoing, the End User Terms shall contain provisions that address the following:

(a) Prohibited content provision, similar to the prohibitions set forth in Section 4.02 above, expressly providing that the End User is prohibited from using the Messaging Platform in such a manner;

(b) An age restriction provision expressly providing that the End User may not use or engage with the Messaging Platform if the End User is under thirteen (13) years of age and that, if the End User is between the ages of thirteen (13) and eighteen (18) years of age, End User must have his or her parent’s or legal guardian’s permission to use or engage with the Messaging Platform;

(c) An opt-out provision expressly providing that the End User agrees to opt-out of receiving any further messages on the Messaging Platform via one or more specified methods, which, at a minimum, shall include the following: (i) any of the opt-out keywords that are universally recognized, including but not limited to STOP, END, UNSUBSCRIBE, QUIT or CANCEL; and (ii) one or more alternative opt-out methods, including, but not limited to, via a web-based portal, telephone number, and/or email address established by you for the purpose of opting-out End Users; and

(d) A dispute resolution and/or jurisdiction provision expressly providing that End User waives the right to any class action litigation and/or jury trials and expressly providing that End User agrees to resolve all disputes via confidential arbitration in which the arbitrator will apply the substantive state or federal law of New York, unless you otherwise expressly state the location where your principle place of business or domicile is located for any and all TCPA related claims.

5.03 You warrant, covenant and represent that you are the owner or legal custodian of, or otherwise have the right to provide to Kinnekt, all programs, data, information and other content transmitted via the Messaging Platform and hosted through its services, including, without limitation, End User Data (as defined below) and your marketing content (collectively, “Your Data”) and you have the full authority to transmit and store Your Data through the Messaging Platform and its services. You hereby authorize the storage of Your Data by Kinnekt through the Messaging Platform and its services. You acknowledge that you bear sole responsibility and liability for adequate security, protection, and backup of Your Data on your owned, licensed or controlled equipment and systems. You understand that the services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions, and other causes, which might result in you restoring files that are no longer usable. Without limiting the generality of this section, Kinnekt will have no liability to you for any unauthorized access to, or use, alteration, corruption, deletion, destruction, or loss of any of Your Data.

5.04 In connection with Kinnekt’s performance of its services, Kinnekt may collect online data from you through the Messaging Platform regarding your End Users (the “End User Data”). Further, you acknowledge that such End User Data may include personal information of your End Users, as well as data relating to End User communications. We will not use such End User Data for any purpose other than to provide our services to you, to improve the Messaging Platform and our services generally, or as described herein or in the Privacy Policy. If you cancel your account with Kinnekt or become inactive due to past-due amounts, you agree that we may delete all End User Data after a period of thirty (30) days, except for that information, including End User Data, that we may retain for purposes of compliance with applicable law, regulations or contractual obligations with our third party service providers. To the extent that any privacy or data protection laws impose an obligation upon us to comply with an individual’s request for access to or correction of their personal information that is End User Data, you agree that you shall satisfy such obligations. You agree that it may be necessary for us to access End User Data to respond to your request for assistance with any technical problems and/or queries. You shall hold Kinnekt, its affiliates, directors, officers, employees, subcontractors, suppliers, and licensors harmless from any and all privacy or data protection claims relating to such access. We may transfer End User Data to a successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of our assets or business to which this Agreement applies.

6 – SUPPORT SERVICES

6.01 Support is included in your Subscription Fee. We accept support questions 24 Hours per day x 7 days per week at www.zipify.com. We attempt to respond to webform support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.

6.02 We try to make the Messaging Platform available 24 hours a day, 7 days a week, except for planned down-time for maintenance.

7 – INDEMNITY

You agree to defend, indemnify and hold harmless Kinnekt, its parent company, affiliates, subsidiaries, employees, contractors, content and our third party service providers, and assignees and our and their respective officers, directors, employees and agents from and against any and all liabilities, claims, actions, demands, damages, costs, losses and expenses (including, without limitation, reasonable attorney’s fees, taxes, fees, fines, penalties, and interest) made by any third party due to or arising out of use of the Messaging Platform, any transaction resulting from use of the Messaging Platform, your connection to the Messaging Platform, your submission, posting, or transmission of User Materials to the Messaging Platform, any violation of any rights of under any law or regulations, including any breach of the TCPA, 47 U.S.C. § 227, et seq., or similar state and federal laws, and any regulations promulgated thereunder. This duty and agreement shall survive any cancellation or termination of this Agreement.

8 – TERM AND TERMINATION

8.01 This Agreement shall commence on the Commencement Date and shall continue until terminated by either party in accordance with the terms of this Agreement.

8.02 Either party may with immediate effect terminate this Agreement by written notice to the other party (i) if the other party breaches any provision of this Agreement (including non-payment of fees) and such breach is not cured within ten (10) days after written notice thereof; or (ii) earlier than the ten day period if the other party commits any breach that is unable to be cured or repeats any breach as has previously been the subject of a notice under paragraph (i) above.

8.03 You agree that we may, in our sole discretion and without notice, immediately terminate your access to the Messaging Platform. Termination of your account(s) may include (i) removal of access to all offerings within the Messaging Platform, (ii) at our sole discretion, the deletion of all of your account information related to the Messaging Platform, User Materials, and other content associated with your account(s) related to the Messaging Platform (or any part thereof), and (iii) barring your further use of the Messaging Platform.

8.04 Upon termination of this Agreement:

You shall promptly pay us through the end of the applicable calendar month within which the Messaging Platform was provided following the effective date of termination;

You shall immediately discontinue use of the Messaging Platform and uninstall and discontinue use of any software affected by such termination and promptly certify to us that you have discontinued use of and returned or destroyed all copies of the affected software then in your possession, including all documentation related thereto; and

those provisions of this Agreement that by their terms are intended to survive termination or expiration of this Agreement will survive and remain in full force and effect.

9 – LINKS

The Messaging Platform may provide links to third party websites (“sites”) or resources. Because Kinnekt has no control over such sites and resources, you acknowledge and agree that Kinnekt is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Kinnekt shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

10 – PROPRIETARY RIGHTS AND IP

10.01 All title, ownership and intellectual property rights in and to the materials contained in the Messaging Platform are owned by Kinnekt or its licensors. Unless noted otherwise, all content, software, and other materials made available or through the website are protected by copyright, trademark and other applicable intellectual property law and may not be used except as permitted in these Terms. Kinnekt retains all rights not expressly granted to you in this Agreement. You are prohibited from attempting, or knowingly permitting or encouraging others to attempt, to reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Messaging Platform except and only to the extent permissible by applicable law despite such prohibition. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose, any portion of the Messaging Platform (including your user identification, account, account designation, password and other information), use of the Messaging Platform, or access to the Messaging Platform.

10.02 Nothing contained on or in any of our Messaging Platform, including our website, should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed without our written permission or any such third party that may own the trademarks. Your misuse of our trademarks displayed on the Messaging Platform, or any other content on the Messaging Platform, except as provided in these Terms, is strictly prohibited. You acknowledge and agree that we will enforce our intellectual property rights to the fullest extent permitted by law.

10.03 We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users who infringe the intellectual property of others.

If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide us with notice containing the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the App; (iv) your address, telephone number, and e-mail address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Noticeofclaims of copyright or other intellectual property infringement can be reached in the following ways: via email: legal@zipify.com or written notice mailed to: Zipify, LLC, 982 Main Street, Suite 4-315, Fishkill, New York 12524.

11 – WARRANTY; DISCLAIMER OF WARRANTIES

11.01 You represent, covenant and warrant that: (a) You are the sender of Your Data and messages under the TCPA and liable for any TCPA violations; (b) Your Data does not and will not infringe on any copyright, patent, trade secret, or other proprietary right held by any third party and was not and will not be gathered or used by you in a manner that violates applicable law; (c) you are solely responsible for Your Data, including, without limitation, the security of Your Data; (d) you have the necessary rights and licenses, consents, permissions, waivers, and releases to use Your Data and to enable us to use and disclose to you Your Data as intended by the parties under this Agreement, the Privacy Policy; and (e) you will not use the Messaging Platform in a manner that violates applicable law, including, but not limited to, the TCPA, the Children’s Online Privacy Protection Act, or similar state and federal laws and regulations.

11.02 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE MESSAGING PLATFORM AND OUR SERVICES IS AT YOUR SOLE RISK. THE MESSAGING PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. KINNEKT EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. KINNEKT ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO PROVIDE ANY CONTENT OR TO STORE ANY PERSONALIZATION SETTINGS OR USER MATERIALS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE MESSAGING PLATFORM IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KINNEKT OR THROUGH OR FROM THE MESSAGING PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

11.03 We do not guarantee delivery of your marketing content or messages. Message delivery is subject to effective transmission by wireless service providers and is outside of our control. Accordingly, delivery may not be available in all areas at all times, and messages may not be delivered in the event of product, software, coverage, or other changes made by wireless service providers. You agree that neither we nor our vendors, suppliers, or licensors shall be liable for any delayed or failed delivery of any message, including any damage or injury caused by delayed or failed delivery of any message.

12 – LIMITATION ON LIABILITY

YOU UNDERSTAND AND AGREE THAT KINNEKT SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KINNEKT HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE MESSAGING PLATFORM; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE MESSAGING PLATFORM; OR (iv) ANY OTHER MATTER RELATING TO THE MESSAGING PLATFORM. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. WE AND OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE MESSAGING PLATFORM OR SERVICES TO YOU.

13 – EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KINNEKT’S TOTAL CUMULATIVE LIABILITY TO YOU UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY YOU ACTUALLY RECEIVED BY KINNEKT FOR THE 3 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.

14 – GENERAL INFORMATION

14.01 No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.

14.02 Notice. Kinnekt may provide you with notices, including those regarding changes to the Terms, by e-mail, regular mail, or postings on the Messaging Platform or our website; provided, however, that this Section places no requirements on us not already expressly set forth herein.

14.03 Choice of Law and Dispute Resolution.

These Terms are governed by laws of the State of New York, without regard to its conflict of laws principles. You hereby consent to the exclusive jurisdiction and venue of the state and federal courts within New York, New York, for any claims arising out of or relating to your use of the website or these Messaging Platform. To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms or your use of the Messaging Platform offered by Kinnekt (“Dispute”), any dispute relating in any way to your use of or access to any of the Messaging Platform shall be submitted to confidential arbitration in New York, except that, to the extent you have in any manner violated or threatened to violate Kinnekt’s intellectual property rights, Kinnekt may seek injunctive or other appropriate relief in any state or federal court in the state of New York, and you consent to exclusive jurisdiction and venue in such courts.

Arbitration under this Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no dispute under this Agreement shall be joined to a dispute involving any other party subject to this Agreement, whether through class arbitration

proceedings or otherwise.

14.04 Attorney Fees. If we file an action against you claiming you breached these Terms and we prevail, we’re entitled to recover reasonable attorney fees and any damages or other relief we may be awarded.

14.05 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Messaging Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

14.06 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

14.07 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

14.08 Publicity. You grant us the right to add your name and company logo to our customer list and website.

14.09 Force Majeure. Neither party will be liable to the other party for its inability or failure to perform, or delay in performing, any obligations under this Agreement caused by a Force Majeure Event. The party affected by the Force Majeure Event will notify the other party once its performance of its obligations under this Agreement is no longer prevented due to the Force Majeure Event. Notwithstanding anything to the contrary herein, a Force Majeure Event shall not include the failure to make timely payments when due. A “Force Majeure Event“ includes any act, event, non-happening, omission or accident beyond reasonable control and includes, without limitation, the following: the acts, decrees, legislation, orders, regulations or restrictions of any government strikes, lock-outs, riot, invasion, terrorist attack, war, fire, explosion, storm, flood, earthquake, or other natural disaster.

14.10 Waiver. Any omission to exercise, or delay in exercising, any right or remedy under this Agreement shall not constitute a waiver of that, or any other, right or remedy. The waiver by any party to this Agreement of any of its rights or remedies arising under this Agreement or by law shall not constitute a continuing waiver of that right or remedy or a waiver of any other right or remedy.

14.11 Severability. If any provision of this Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of this Agreement will remain in full force and effect and will not in any way be impaired. If any provision of this Agreement is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.

14.12 Independent Contractors; No Partnership. Nothing in this Agreement is intended to or shall be construed as establishing or implying any partnership, joint venture or agency of any kind between the parties other than that of independent contractors, and nothing in this Agreement shall be deemed to constitute any party as the agent of any other party. No party shall have any authority to act in the name of, or on behalf of, or otherwise to commit or bind any other party in any way whatsoever (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

14.13 Assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without our prior written consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.14 Section Titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.

14.15 Entire Agreement. These Terms constitute the entire agreement between you and Kinnekt with respect to your use of the Messaging Platform.