Salesmsg Messaging Services Agreement

Version: 11-02-2026-V11
Effective date: November 2, 2026

This Salesmsg Messaging Services Agreement (“MSA”) is entered into by and between SalesMessage, Inc. (“Salesmsg”), a Delaware corporation having its principal offices at 1045 East Atlantic Avenue, Suite 202, Delray Beach, FL 33483, and the party named as the customer in the applicable Order Form or that otherwise accepts this MSA (“Customer”). Salesmsg and Customer may be referred to herein individually as a “Party” and jointly as the “Parties”. Customer shall be bound by this MSA upon the earliest of: (a) execution of an Order Form by its duly authorized representative; (b) acceptance of this MSA in writing or by electronic means, including by electronic signature or upon account registration; and (c) access to or use of the Messaging Services after this MSA has been made available to Customer, provided that, where Customer is established in the European Economic Area, Switzerland or the United Kingdom, Customer becomes bound only under (a) or (b), and access to or use of the Messaging Services shall not of itself constitute acceptance; and no execution by Salesmsg is required for this MSA to take effect. This MSA takes effect on the MSA Effective Date stated in the applicable Order Form or, where none is stated, on the date Customer becomes bound (the “Effective Date”). In consideration of the mutual covenants and obligations herein contained, the Parties agree as follows:

1. DEFINITIONS. All capitalized terms shall have the meanings ascribed to them in this Section 1 or elsewhere in this Agreement or associated Order Form.
   1. “Admin User” means the Customer employee who has access to certain additional features and functionalities of the Messaging Services to monitor and administer the Customer’s account without limitation the ability to grant access to the Messaging Services to Authorized Users.
   2. “Affiliate” means, with respect to either Party, any person directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Party. For purposes of this Agreement, the word “control,” when used with respect to any specified person, means the power to direct the management and policies of such person, directly or indirectly, or ownership of at least 50 percent (50%) of the voting securities of such person.
   3. “Agreement” means this MSA in combination with any associated Order Form(s).
   4. “Applicable Law” means any law, regulation, rule, or order of any government authority applicable to a Party, its business, or the subject matter of this Agreement, including but not limited to the following United States (and if applicable, Canadian) statutes and any regulations relating thereto: the Telephone Consumer Protection Act, the Telephone Consumer Fraud & Abuse Prevention Act, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, the Children’s Online Privacy Protection Act, and (if applicable) Canada’s Anti-Spam Legislation, and, where Messages are sent to or from recipients located in the European Economic Area, Switzerland or the United Kingdom, the General Data Protection Regulation (EU) 2016/679, the United Kingdom General Data Protection Regulation and Data Protection Act 2018, Directive 2002/58/EC and the national laws implementing it, and the Privacy and Electronic Communications Regulations 2003.
   5. “Authorized User” means an employee, contractor, or agent of Customer who is authorized to use the Messaging Services and has access to the Messaging Services via a unique username and password under Customer’s Account.
   6. “Confidential Information” means any information, however disclosed by a Party (a “Disclosing Party”) to the other Party (a “Receiving Party”) that is when disclosed or within thirty (30) days of disclosure designated or described as “Confidential,” “Proprietary,” or information that the Receiving Party knows, or reasonably should have known, was the Confidential Information of the Disclosing Party
   7. “Content” means any and all text, pictures, video, or any other type or form of information contained in the body of any Message.
   8. “Salesmsg APIs” means any application programming interface provided by Salesmsg as part of its Messaging Services, which allows customers like Customer to establish access to the Messaging Services for sending and receiving Messages, uploading and managing contacts, and other service-related access.
   9. “Inappropriate Content” means any Content that (a) violates Applicable Law, (b) violates any Salesmsg policies including without limitation Salesmsg’s Acceptable Use Policy, or is otherwise unsolicited, including without limitation, spam or other unsolicited commercial or other advertising material, (c) violates any authoritative industry guidelines, or violates any Network Operator requirements, conditions, or codes of practice, (d) is racist, harassing, defamatory, libelous, abusive, threatening, demeaning, vulgar, pornographic, obscene, coercive or objectionable, including material that is false, misleading or inaccurate, (e) violates the rights of any person or company protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations, (f) contains any malicious programs including viruses, worms, Trojan horses, e-mail bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data or personal information, including executing any form of network monitoring that will intercept data not expressly approved for use, or (g) Salesmsg reasonably believes in its sole discretion could subject it to criminal or civil liability or cause it to lose its common carrier status.
   10. “Message(s)” means any short-message service message (SMS), multi-media service message (MMS), or other form of message supported by the Messaging Services that is free of Inappropriate Content.
   11. “Messaging Services” means the Salesmsg text-based and related communications services accessible via Salesmsg’s website (www.salesmessage.com), mobile applications, and APIs that are being provided by Salesmsg to Customer on a non-exclusive basis.
   12. “Network Operator” means any mobile network operator, wireless service provider, wireless carrier, cellular company, Third Party operator or user of a communications network to and from which Salesmsg can directly transmit and receive Messages.
   13. “Order Form” means any order form signed by the Parties that indicates the Messaging Services to be provided Salesmsg and the fees to be paid by Customer and which also incorporates by reference this Agreement.
   14. “Pass Through Fees” means any fees imposed by a Network Operator or Third Party to deliver any Message.
   15. “Third Party” means any person not a Party to this Agreement.
   16. “Effective Per-Credit Rate” means, in respect of a subscription package, the recurring Fee payable for that package for the subscription term stated in the Order Form divided by the number of message credits included in that package for the same term.
   17. “Services” means, collectively, the Messaging Services and any other services, features, or functionality made available by Salesmsg to Customer under this Agreement, including the Salesmsg website, mobile applications, and Salesmsg APIs.
   18. “Documentation” means Salesmsg’s then-current published user guides, help documentation, and technical specifications for the Messaging Services.
   19. “Customer Application” means any application, website, or platform operated by Customer or its End Users through which the Messaging Services are accessed or used.
   20. “Customer’s End Users” means the individuals with whom Customer communicates using the Messaging Services.
   21. “App” means the Salesmsg mobile or web application made available to Customer as part of the Messaging Services.
   22. “App Providers” means the operators of any third-party application marketplace or platform, including Apple’s App Store and Google Play, through which the App is made available.
   23. “Registered User” means an individual who has registered for access to the Messaging Services, including during a free trial or promotional period.
   24. “Communications Surcharges” means any surcharge, tax, or regulatory fee that Salesmsg is required or permitted to collect in connection with the transmission of Messages, in addition to Pass Through Fees.
   25. For the purposes of Section 3.2, references to “Third-Party Fees” mean the fees referred to elsewhere in this Agreement as Pass Through Fees.
   26. “Taxes” means the taxes, duties, and levies referred to in Section 3.5 (Taxes).
2. SALESMSG SERVICES.
   1. Messaging Services. Subject to the terms and conditions of this Agreement, Salesmsg will make the Messaging Services, including the Salesmsg APIs, available to Customer on a non-exclusive basis.
   2. Access to Services. Customer’s Admin User may allow such number of Customer employees and/or independent contractors as is indicated on an Order Form to use the Messaging Services on behalf of Customer as Authorized Users, provided each Authorized User creates a unique password-protected account. All Authorized Users shall be deemed part of Customer’s account, and Customer is responsible for all use (whether or not authorized) of the Messaging Services conducted via Customer’s account, including all charges related to such use without limitation.
   3. Suspension of Access. Salesmsg may suspend Customer’s account and access to the Messaging Services at any time and without prior notice if Salesmsg reasonably believes that any use of the Messaging Services via Customer’s account is in violation of this Agreement. Although Salesmsg is under no obligation to monitor Customer’s use of the Messaging Services, Salesmsg may do so and may prohibit any use it reasonably believes may be or alleged to be in violation of the foregoing provided; however, that Customer shall not have any right to transfer such dedicated short code and Salesmsg shall not have any obligation to assist in any requested transfer by Customer until (i) after the first anniversary date of the Effective Date of this Agreement, and (ii) Customer has paid in full all amounts due to Salesmsg pursuant to this Agreement.
   4. Affirmative Consent. Customer will only send Messages to end users who have affirmatively consented (“opted-in”) to receive such Messages, and Salesmsg will automatically assume and rely on the foregoing obligation of Customer. Customer acknowledges and agrees that using the Messaging Services to send Messages to phone numbers that have not affirmatively consented or that have subsequently opted out is a material breach of this Agreement and contrary to Applicable Law. Customer is prohibited from using third party lists whether consent has been gathered or not. Where a recipient is located in the European Economic Area, Switzerland or the United Kingdom, Customer shall ensure that consent to marketing Messages is freely given, specific, informed and unambiguous, is given by a clear affirmative act separately from any other terms, is as easy to withdraw as to give, and is recorded in a manner sufficient to demonstrate it, including its date, time, source and the wording presented, and Customer shall produce such records to Salesmsg promptly on request.
   5. Opt-Out. Customer will include clear opt-out or unsubscribe instructions in its messages when required by Applicable Law, and Customer agrees to comply with all Network Operator policies including CTIA’s Messaging Principles and Best Practices without limitation, if and when applicable to Customer’s Messages. Customer shall honor any such opt-out requests immediately. Customers will honor all opt-out requests by sending one final opt-out confirmation message to notify the consumer that they have opted-out successfully. Unless a valid opt-in is re-obtained, no further messages will be sent following the confirmation message.
   6. Customer Responsibilities. Customer will: (a) be solely responsible for all use of the Services and Documentation under Customer´s account and each Customer Application; (b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to Customer´s End Users in connection with the use of each Customer Application as permitted herein) or offer them on a standalone basis; (c) use the Services only in accordance with this Agreement, the Salesmsg Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (d) be solely responsible for all acts, omissions, and activities of Customer´s End Users, including their compliance with this Agreement, the Salesmsg Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Salesmsg promptly of any such unauthorized access or use; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with Customer´s representations and warranties set forth in Section 5 (Representations And Covenants; Warranties Disclaimer; Limitation Of Liability).
   7. Message Content. Customer is solely responsible for the Content of any Message it or any third party on its behalf generates and sends to end-users through the Messaging Services, and Customer shall not use the Messaging Services or permit any Messaging Services to be used directly or indirectly to transmit Inappropriate Content.
   8. Rights in the Content. Except for stock images made available to Customer by the Messaging Services, Customer represents and warrants that it has all rights, title, and interests necessary to transmit such Content to and via the Message Services and that Customer’s provision of the Content does not infringe any third party’s proprietary or personal rights, including without limitation, any trademark, copyright, patent, or trade secret. By providing any such information or materials to Salesmsg (other than information required for Customer’s use of the Messaging Services as contemplated herein), Customer grants to Salesmsg an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of, and distribute such information and materials for the purpose of Salesmsg performing its obligations under this Agreement.
   9. Provisioning of Services. Customer acknowledges and agrees that Salesmsg is a regulated telecommunications carrier, serving as a passive conduit that provides telecommunication services consisting of the processing and delivery of Customer’s messages to Network Operators and that the final delivery of Messages to end-users is the responsibility of Network Operators and outside of Salesmsg’s control. Customer acknowledges and agrees that all Messages are subject to Network Operator policies and conditions, including without limitation maximum message length and that the time it takes to transfer a Message to an end-user and whether the end-user receives the Message is dependent upon a number of conditions prevailing at the time of submission, many or all of which are outside of Salesmsg’s control and that Salesmsg will not be liable to Customer for any losses, costs, or damages incurred as a result of (a) the actions of any Network Operator, (b) the unavailability of the Messaging Services, or (c) the delay or failure of any Message in reaching one or more end-users. Salesmsg reserves the right to segment, truncate, or otherwise reduce the length of any Message or to refuse to transmit and/or deliver a Message that does not comply with any Network Operator’s policies or conditions.
   10. Salesmsg Platform Maintenance. Salesmsg may, from time to time and without notice to Customer, upgrade, maintain, or migrate the App and/or the Services. In the event Salesmsg determines that it is necessary to interrupt the App and/or the Services or that there is a potential for the App and/or the Services to be interrupted for the performance of system maintenance, Salesmsg will use reasonable commercial efforts to notify Customer prior to such interruption. Salesmsg will use reasonable commercial efforts to schedule system maintenance during non-peak hours (midnight to 6 a.m. local time). In no event shall interruption for system or emergency maintenance constitute a failure of performance by Salesmsg.
   11. Data Use, Storage and Access. Customer acknowledges that Salesmsg may establish general practices and limits concerning use of the Service but that Salesmsg has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. Unless expressly agreed to by Salesmsg in writing elsewhere, Salesmsg has no obligation to store any of Customer´s Content. Salesmsg has no responsibility or liability for the deletion or accuracy of any Content, including Customer´s Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Salesmsg. Customer is solely responsible for applying the appropriate level of access to Customer´s Content. If Customer does not choose, the system may default to its most permissive setting. Customer agrees that Salesmsg retains the right to create reasonable limits on the use and storage of the Content, including Customer´s Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Salesmsg in its sole discretion. Customer further acknowledges that sole responsibility for securing and backing up any Content.
   12. No Guarantee of Message Privacy. Customer acknowledges and agrees that Messages may be transmitted in an unencrypted format and Salesmsg cannot guarantee the privacy of any message. Customer agrees that Salesmsg will not be liable to Customer or any third party for any lack of privacy or security regarding message content by virtue of using the Messaging Services.
   13. Limitations on Message Transmissions. Salesmsg shall have the right not to accept, transmit or deliver any Message that Salesmsg or any Network Operator reasonably believes, exercising reasonable discretion based on industry experience, contains Inappropriate Content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including without limitation any law enforcement, proceeding, process, or inquiry.
   14. Account Suspension. Salesmsg may suspend, terminate, or otherwise deny Customer access to or use of all or any part of the Messaging Services without incurring any resulting obligation or liability if Salesmsg reasonably believes, exercising reasonable discretion based on industry experience that (a) the traffic created from Customer’s account is fraudulent or negatively impacting the operating capability of the Messaging Services, (b) Customer’s use of the Messaging Services is not in compliance with Applicable Law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Messaging Services, (c) there is any use of the Messaging Services by Customer that in Salesmsg’s reasonable judgment threatens the security, integrity, or availability of the Messaging Services, or Salesmsg’s legal status as a common carrier under applicable law, or (d) Customer has materially breached this Agreement. Salesmsg will use commercially reasonable efforts under the circumstances to (i) provide Customer with notice and where practicable an opportunity to remedy such violation or threat prior to any such suspension, (ii) where practicable, limit the suspension based on the circumstances leading to the suspension (e.g. to certain phone numbers, sub-accounts or other subset of traffic), and (iii) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
   15. Forecasting. Customer agrees to use commercially reasonable efforts to provide any anticipated usage information reasonably requested by Salesmsg solely for the purpose of assisting Salesmsg in developing a projection of Customer’s anticipated minimum and maximum usage of the Messaging Services for the next 6 months. Such forecasts may include the anticipated number of Messages per day, the peak Messages per hour and per minute. Salesmsg may update these six-month projections and forecasts quarterly.
   16. Compliance with Laws. Customer will comply with all Applicable Laws and Network Operator rules and directions while using the Messaging Services and will not transmit any communication that would violate any federal, state or local law, court order or regulation. Customer will cooperate with Salesmsg, Network Operators and/or governmental authorities in investigations alleging a violation of any law, rule or regulation. The Parties shall cooperate by (a) notifying each other of any enforcement action, governmental investigation, governmental inquiry, or other communications with any governmental authority relating to performance of this Agreement, unless doing so would violate such action, investigation, inquiry, or request, and (b) negotiating with the other Party in good faith and adopting any modifications to this Agreement necessary to comply with the laws, rules, and regulations.
   17. Technical Support. Salesmsg will provide Customer with technical support for the Messaging Services in accordance with the Support Plan elected by Customer in the Order Form, as set out in the Support Services Schedule at Exhibit B. Where Customer has not elected a Support Plan, Customer receives the Basic plan set out in Exhibit B, which is the whole of the technical support to which Customer is entitled under this Agreement. Salesmsg will use commercially reasonable efforts to provide error corrections, fixes, and workarounds for errors associated with the Messaging Services, during the support hours stated in Exhibit B. No response time, resolution time, channel, resource, or review is committed to Customer save as expressly stated in Exhibit B for the Support Plan that Customer has purchased, and the response targets stated in Exhibit B are not service levels for the purposes of Exhibit A.
   18. Reverse Engineering Prohibited. Except as allowed by Applicable Law, Customer will not reverse engineer, decompile, disassemble, derive, or otherwise create, attempt to create or derive or assist anyone else to create or derive the source code of any software provided in connection with the Messaging Services.
   19. California Consumer Privacy Act of 2018. As part of the Messaging Services, Salesmsg hosts and processes data, including personal information, about the contacts Customer wishes to communicate with by using the Salesmsg Platform. The parties acknowledge and agree that Salesmsg is a “service provider” as defined by the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act (together, the “CCPA”) (Cal. Civ. Code § 1798.100 et seq.). This means that Salesmsg processes personal information on Customer's behalf when Customer discloses to Salesmsg the personal information of contacts (“Contact Data”) in order to use our Messaging Services, for the specific business purpose of providing the Messaging Services and in accordance with Customer's instructions. When Salesmsg processes Contact Data on Customer's behalf, Salesmsg agrees that it will not: (a) retain, use, or disclose Contact Data it processes in connection with the Messaging Services for any purpose other than for performing the Messaging Services under this Agreement and Customer's instructions, or as otherwise permitted by the CCPA; (b) sell or share (as “share” is defined under the CCPA) Contact Data, or promote the sale or sharing of Contact Data; (c) use or process Contact Data for commercial purposes or direct marketing; (d) combine Contact Data with personal information Salesmsg receives from, or on behalf of, another person, or collects from its own interaction with a Data Subject, except as permitted by the CCPA; and (e) disclose or transfer Contact Data to unauthorised personnel or parties, or outside the direct business relationship between Customer and Salesmsg. Salesmsg shall notify Customer promptly if it makes a determination that it can no longer meet its obligations under the CCPA, and Customer shall have the right to take reasonable and appropriate steps to ensure that Salesmsg uses Contact Data consistently with Customer's obligations under the CCPA, and to stop and remediate any unauthorised use of Contact Data of which Customer becomes aware.
   20. Texas Telemarketing Law. Customer acknowledges that Chapter 302 of the Texas Business & Commerce Code, as amended with effect from September 1, 2025, treats the transmission of a text or graphic message or of an image to induce a purchase as a telephone solicitation, and that Chapters 301 through 305 of that Code impose registration, security, disclosure, consent, quiet-hours, and do-not-call obligations on persons making telephone solicitations to recipients located in the State of Texas, enforceable by the Texas Attorney General and by private action under the Texas Deceptive Trade Practices-Consumer Protection Act. Customer is solely responsible for determining whether its Messages constitute telephone solicitations under that Code, for obtaining and maintaining any registration and security required of it, for confining its Messages to recipients who have given the consents required by Applicable Law, and for otherwise complying with Chapters 301 through 305 of that Code in its use of the Messaging Services. Any failure by Customer to comply with this Section constitutes a material breach of Section 2.16 (Compliance with Laws), and any claim, fine, or penalty arising from such a failure falls within Customer’s indemnification obligations under Section 6.1. Salesmsg does not provide legal advice, and no feature of the Messaging Services and no communication from Salesmsg constitutes a representation that Customer’s use of the Messaging Services complies with the laws of the State of Texas or of any other jurisdiction.
   21. Data Security. In providing the Messaging Services, Salesmsg employs data security protocols and measures consistent with generally accepted industry standards, and in any event no less than commercially reasonable standards, considering the types and nature of the data (including Contact Data) processed, stored, accessed, collected and/or used by Salesmsg and/or its permitted affiliates, agents, consultants, personnel and other representatives in the provision of the Messaging Services, and all applicable laws and regulations. Salesmsg maintains a data breach plan and upon the occurrence of any data breach with respect to the Messaging Services or the systems maintained by or on behalf of Salesmsg affecting the Contact Data or the Messaging Services, Salesmsg will comply with all applicable laws and implement the procedures required under such data breach plan. Without limiting the foregoing, where Salesmsg makes a reasonable determination that a data breach has occurred resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Contact Data, Salesmsg will notify Customer without unreasonable delay, within any period required by Applicable Law, and in no event later than thirty (30) days after that determination, and will provide such information regarding the breach as Customer may reasonably require, as it becomes available. Where a law enforcement or governmental authority requests that notification be delayed, or where notification would impede a criminal investigation or endanger national security, the period for notification shall be extended for so long as that authority requires. Where a data processing agreement or business associate agreement is in place between the Parties, notification in respect of personal data or protected health information (as applicable) shall be given in accordance with, and within the periods prescribed by, that instrument, which shall govern in accordance with Section 8.10.5. Salesmsg’s security practices are further described in the SalesMessage Information Security Policy, available on the Salesmsg website at www.salesmessage.com/security-information and through the Salesmsg Trust Center at trust.salesmessage.com in each case as updated by Salesmsg from time to time. The Information Security Policy is made available for information only and does not enlarge, and shall not be construed as enlarging, Salesmsg’s obligations or liability under this Agreement.
   22. Marketing and Performance Data Usage. Subject to Section 8.5 (Publicity), the Customer hereby grants Salesmsg the right to use the Customer’s company name, logo, and non-confidential performance data for Salesmsg’s sales, marketing, and promotional purposes. Such usage may include, but is not limited to, the creation of case studies, testimonials, and the inclusion of the Customer’s company name and logo on Salesmsg’s website and other marketing materials. Salesmsg agrees to utilize this information in a manner consistent with all applicable laws and regulations and shall not disclose any confidential or sensitive information.
   23. Additional Message Credits. Additional message credits purchased outside the Customer’s subscription package, whether purchased on request or supplied automatically through auto-recharge, are charged at 110 per cent of the Effective Per-Credit Rate of the Customer’s then-current subscription package, save where the applicable Order Form states a rate for additional message credits, in which case that rate applies.
   24. Artificial Intelligence Features. Salesmsg may make available features of the Messaging Services that employ artificial intelligence, including AI texting agents, AI calling agents using an artificial or synthesised voice, call recording, transcription and summarisation, and knowledge base retrieval (the “AI Features”). Salesmsg processes Customer Data and Contact Data through the AI Features only in order to provide the Messaging Services, and only through the subprocessors identified in the Salesmsg AI Agents Privacy and Use Policy, and neither Salesmsg nor those subprocessors uses Customer Data or Contact Data to train or improve general-purpose artificial intelligence models. Customer is solely responsible for (a) disclosing to each recipient, at the outset of the communication and where Applicable Law so requires, that the recipient is interacting with an artificial intelligence system and not with a natural person; (b) obtaining and recording any prior express written consent required before a call or Message is placed or sent using an artificial or prerecorded voice or an automatic telephone dialling system, including under the Telephone Consumer Protection Act, 47 U.S.C. 227 and the regulations made under it, under which a voice generated by artificial intelligence is an artificial voice; and (c) obtaining and recording any consent required by Applicable Law to the recording, transcription or monitoring of a call, including in any jurisdiction requiring the consent of every party to the call. Output generated by the AI Features is produced automatically, may be inaccurate or incomplete and is not advice of any kind, and Customer is responsible for reviewing output before it is sent to, relied upon by or acted upon in respect of any recipient; Sections 5.2 and 5.3 apply to the AI Features in full. Customer shall not use the AI Features to impersonate any natural person, to misrepresent the identity of the sender, or for any purpose prohibited by Section 2.7 or by the Acceptable Use Policy, and a breach of this Section 2.24 is a material breach for the purposes of Section 7.3 and is within Customer’s indemnity at Section 6.1. The AI Features are further described in the Salesmsg AI Agents Privacy and Use Policy published on the Salesmsg website, which is made available for information only and does not enlarge, and shall not be construed as enlarging, Salesmsg’s obligations or liability under this Agreement. Where a data processing agreement is in place between the Parties, that instrument governs the processing of personal data through the AI Features in accordance with Section 8.10.5.
3. FEES AND PAYMENTS
   1. Fees. Except as otherwise expressly set forth herein, payment obligations are non-cancelable and fees, Taxes, and Communications Surcharges (collectively, “Fees”), once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 3.4 (Late Payments, Payment Disputes and Interest), Customer will pay the Fees due hereunder in accordance with this Section 3 (Fees and Payments). Customer shall pay to Salesmsg the amounts set forth in the Order Form attached here to with respect to the Messaging Services provided by Salesmsg and any Pass Through Fees incurred and invoiced by Salesmsg in connection with any Messaging Services provided by Salesmsg hereunder.
   2. Pass Through Fees. If at any time after execution of this Agreement, a Network Operator or other Third-Party changes the Third-Party Fees then Salesmsg, at its discretion, may pass through such Pass Through Fees to Customer at cost. Pass Through Fees will be added to the monthly invoice in USD. The rate of exchange to be used to compute the Pass Through Fees from CAD to USD shall be the monthly average rate equal to the New York foreign exchange rate quoted by the Wall Street Journal. The monthly average exchange rate is the average for the rate published on the first and the last day of the month.
   3. Invoicing and Payment. All fees that become due must be paid upfront, commensurate with the start of your contract term and in accordance with the agreed-upon invoicing frequency or billing cycle, as stated on your Order Form. Any invoiced charges are due net seven (7) days from the invoice date. Unless otherwise specified in the Order Form, all undisputed payments are due and payable by Customer to Salesmsg in United States dollars upon receipt of the invoice. Pursuant to Section 3.4 (Late Payments, Payment Disputes and Interest), if the Customer disputes any amounts set forth in the invoice Customer shall notify Salesmsg within three (3) days of the receipt and the Parties shall work together in good faith to resolve such dispute. If Customer requires a purchase order for payment, no terms on any purchase order provided by Customer will be binding on Salesmsg to the extent they differ from the terms of this Agreement.
   4. Late Payments, Payment Disputes and Interest. Customer will notify Salesmsg in writing within three (3) days of the date Salesmsg bills Customer for any Fees that Customer wishes to dispute. Where Customer is disputing any Fees, Customer must act reasonably and in good faith and will cooperate diligently with Salesmsg to resolve the dispute. Salesmsg will not charge Customer a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless Customer fails to cooperate diligently with Salesmsg or Salesmsg determines the dispute is not reasonable or brought in good faith by Customer. Undisputed payments not received by the due date will be assessed a finance charge of 1.5 percent per month. If Customer is paying by credit or charge card, Customer acknowledges and agrees that this Agreement constitutes a services agreement for the term specified in the Order Form and that Customer is not entitled to any refund.
   5. Taxes. Customer will pay all applicable sales, use, service, value-added, consumption or other taxes associated with the Messaging Services purchased by Customer. Salesmsg will pay all taxes on its income and all taxes and insurance associated with its personnel.
   6. Free Trials and Other Promotions. Any free trial or other promotion that provides a Registered User-level access to the Services must be used within the specified time of the trial. At the end of the trial period, unless specifically stated otherwise by the Salesmsg, Customer´s subscription will automatically continue on a paid subscription basis, subject to Service Subscription Fees, unless Customer takes action to cancel the subscription. If Customer are inadvertently charged for a subscription, please provide adequate notice to Salesmsg pursuant to Section 8.2 (Notices) of this Agreement. Where Customer cancels within the first fourteen (14) days of a trial, Customer will not be charged the monthly subscription fee; the account will be pro-rated and a refund issued less the amount of message credits used. In every other case, and save only as expressly provided in Section 7.4, subscription fees, carrier fees, and all compliance-related charges are nonrefundable, and no exception shall be made.
   7. Custom Work. Notwithstanding the terms outlined in this Section 3 (Fees and Payments), Custom Work refers to any additional development requested by Customer, that is not included within the standard features of the SaaS platform and scope of services as described in Section 2 (Salesmsg Services) of this Agreement. Salesmsg reserves the right to decline any requests for Custom Work at its sole discretion. Custom Work may include, but is not limited to;
      1. Integration with third-party systems that are not supported by default.
      2. Development of custom reporting features.
      3. Creation of unique workflows or automation rules specific to Customer.
   8. Conditions For Custom Work. Custom Work will be subject to separate fees, terms, and timelines as mutually agreed upon by both Parties in a written proposal, pursuant to Section 3.10 (Custom Work Proposals and Scope Modifications), prior to the commencement of any such work. Furthermore, Customer agrees that these additional fees are non-refundable. Customer further agrees that any delays or additional costs resulting from Custom Work will not impact the payment obligations for SalesMsg’s standard features and services as described in this Agreement.
   9. Custom Work Related Fees. The fees for custom work shall be determined based on the specific scope and resources required for each project, and as outlined below;
      1. Senior Developer. Services rendered shall be billed at a rate of $250 per hour.
      2. Junior Developer. Services rendered shall be billed at a rate of $150 per hour.
      3. Project Management and Oversight. Services rendered shall be billed at a rate of $200 per hour.
      4. Data Engineer. Services rendered shall be billed at a rate of $200 per hour.
   10. Custom Work Proposals and Scope Modifications. A detailed proposal outlining the scope, estimated hours, and total cost of the custom work will be provided to the Client for approval prior to the commencement of any work. Any modifications to the scope during the development process may result in adjustments to the final fees, pursuant to Section 3.12 (Change Order Policy).
   11. Payment for Custom Work. Payment for custom work shall be due upon the completion of specific milestones as agreed upon in any such proposal as it relates to Section 3.10 of this Agreement (Custom Work Proposals and Scope Modifications). The parties must mutually agree upon adjustments to the milestones and any corresponding payment schedule. The final payment shall be due upon completing such custom work and formal acceptance by the Customer. Without prejudice to the aforementioned provision herein, the period for formal acceptance shall not exceed three (3) business days.
   12. Change Order Policy. In the event that any modifications to the scope of custom work are required during the development process, the following change order policy shall apply;
       1. Change Request Initiation. Customer may request changes to the scope of custom work. Such requests must be made in writing and include a detailed description of the proposed changes.
       2. Review and Impact Analysis. Upon receipt of a change request, Salesmsg will review the proposed changes and assess their impact on the project, including but not limited to the estimated hours, resources required, and any adjustments to the timeline and fees.
       3. Change Order Proposal. Salesmsg will provide the Customer with a written Change Order Proposal detailing the scope of the requested changes, the estimated additional hours and resources required, any adjustments to the timeline, and the revised cost. Such a proposal shall also outline any impacts on the current milestones and payment schedule.
       4. Mutual Agreement. The parties shall agree in writing to the terms outlined in the Change Order Proposal before any work related to the requested changes begins. The agreed-upon changes will be documented as an amendment to the original Custom Work Proposal and Scope Modification.
       5. Adjustment of Fees. Any changes to the scope of custom work may result in adjustments to the final fees. The Customer agrees to pay any additional fees as specified in the mutually agreed Change Order Proposal. These additional fees are non-refundable.
   13. Third-Party Costs. Any third-party costs or licensing fees necessary for the completion of custom work shall be billed to Customer, provided that such costs are disclosed with full transparency and receive prior written approval from Customer.
   14. Additional Services; Upsizing. Customer may at any time during the Term request an increase in the volume, quantity, tier, feature set, or scope of the Messaging Services, including an increase in the monthly message credit allowance, the purchase of additional message credits or of an automatic credit recharge, an upgrade of the subscription plan, the addition of seats, Registered Users, or Authorized Users, the addition of telephone numbers, short codes, or long codes, the purchase of or an upgrade to a Support Plan, or the addition of any add-on feature or integration (“Additional Services”). Salesmsg is under no obligation to accept any such request. Where Salesmsg accepts a request for Additional Services, Salesmsg shall give effect to it by issuing an order confirmation, a supplemental or amended Order Form, or an order addendum (each an “Upgrade Order”) or, where no Upgrade Order is issued, by issuing an invoice which identifies the Additional Services and the Fees payable in respect of them.
   15. Amendment of the Order Form by Upgrade Order or Invoice. Notwithstanding Section 8.10 (Agreement, Modifications, Severability, and Waiver), an Upgrade Order and, where no Upgrade Order is issued, an invoice issued under Section 3.14, shall take effect as an amendment to the applicable Order Form and shall form part of the Agreement upon the earliest of (a) Customer’s written or electronic acceptance of it, including acceptance given by an Admin User or Authorized User through the Messaging Services, by electronic signature, or by electronic mail, (b) payment by Customer of the invoice in whole or in part, and (c) Customer’s access to or use of the Additional Services. No further signature by either Party is required for such an amendment to take effect. Where Customer wishes to dispute an Upgrade Order or an invoice issued under Section 3.14, Customer must do so in writing within fifteen (15) days of receipt in accordance with Section 3.4, failing which the Upgrade Order or invoice shall be binding on Customer as to the Additional Services ordered and the Fees payable. Save to the extent expressly stated in the Upgrade Order or invoice, every other term of the Agreement, including the duration of the Term, remains in full force and unamended.
   16. Committed Amount; No Downgrade. Unless the Upgrade Order expressly provides otherwise: (a) the Additional Services shall be co-terminous with the then-current Term; (b) Fees for the Additional Services accrue from the effective date stated in the Upgrade Order or invoice and, where the Additional Services commence during a billing period, shall be prorated for the balance of that period; (c) the aggregate recurring Fees payable by Customer following the Upgrade Order (the “Committed Amount”) shall constitute the minimum recurring Fees payable by Customer for the remainder of the then-current Term and for each Renewal Term, provided that the Committed Amount shall exclude any Fees attributable to additional message credits purchased outside the subscription package or supplied through automatic credit recharge; (d) Customer may not cancel, reduce, downgrade, or suspend any Additional Services, or any other part of the Messaging Services, during the then-current Term; and (e) any reduction in the Committed Amount shall take effect only from the commencement of a Renewal Term and only where Customer has given written notice in accordance with, and within the period prescribed by, Section 7.6 (Notice of Non-Renewal). For the avoidance of doubt, an Upgrade Order or invoice issued under Section 3.14 does not extend, restart, or otherwise alter the duration of the then-current Term, and this Agreement shall continue to expire and to renew in accordance with Section 7.1 as though no Additional Services had been ordered.
   17. Order Form Customers; Application of Published Billing Terms. Where Customer has entered into an Order Form, any self-service cancellation, downgrade, trial, or refund facility published on the Salesmsg website or made available within the Messaging Services shall not apply to Customer and shall confer no right to cancel, downgrade, suspend, or obtain a refund of any Fees. The cancellation, non-renewal, suspension, and termination of this Agreement and of each Order Form are governed exclusively by Section 7 (Term and Termination). Any cancellation or downgrade request submitted by Customer through a support ticket, live chat, in-application facility, or to any Salesmsg representative shall be of no effect unless it also satisfies Section 7.
   18. Chargebacks. Customer shall allow Salesmsg not less than thirty (30) days to resolve any billing dispute in accordance with Section 3.4 before initiating any chargeback, payment reversal, or dispute with a card issuer, bank, or payment provider. Any chargeback or reversal initiated otherwise than in accordance with this Section 3.18 shall constitute a material breach of this Agreement, and Salesmsg may, without prejudice to its other rights and remedies, suspend the Messaging Services under Section 7.8, recover the disputed amount together with all fees, costs, and expenses incurred in connection with the chargeback, and refer the account to a third-party collection agency, in each case regardless of the outcome of the chargeback.
   19. Payment Processing Fee. Where Customer elects to pay by credit or charge card, Salesmsg may charge a payment processing fee at the rate stated in the applicable Order Form or invoice, calculated on the amount charged, provided that the fee is stated separately before the charge is made. No such fee shall be charged where, and to the extent that, it is prohibited or restricted by Applicable Law, in which case no fee, or the maximum fee permitted by that law, shall apply.
4. TREATMENT OF CONFIDENTIAL INFORMATION
   1. Ownership of Confidential Information. For purposes of this Agreement, all Confidential Information is proprietary to the Disclosing Party and will remain the sole property of the Disclosing Party.
   2. Mutual Confidentiality Obligations. A Receiving Party shall (a) use Confidential Information only for the purposes described herein, (b) hold in confidence and protect Confidential Information from dissemination to, and use by, any Third Party, (c) restrict access to Confidential Information to a receiving Party’s employees, and, with Disclosing Party’s prior written consent, agents, and consultants, who need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement or are otherwise subject to similar written agreements with respect to the protection of confidential information, and (d) return or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control upon written request of the Disclosing Party. A Receiving Party shall not (i) create any derivative work from Confidential Information of a Disclosing Party, or (ii) reproduce Confidential Information without the prior written consent of the Disclosing Party except as required to accomplish the intent of this Agreement. In the event of any improper disclosure or loss of Confidential Information by the Receiving Party, the Receiving Party will promptly notify the Disclosing Party and reasonably cooperate with the Disclosing Party in investigating and remedying such disclosure or loss and in any subsequent inquiry, dispute or claim arising out of such disclosure or loss.
   3. Confidentiality Exceptions. Confidential Information does not include information that is (a) publicly available or in the public domain at the time disclosed or becomes publicly available or enters the public domain through no fault of the Receiving Party, (b) lawfully communicated to the Receiving Party by persons not bound by confidentiality obligations with respect thereto, (c) already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure, or (d) independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
   4. Authorized Disclosure. Notwithstanding the obligations in Section 4.2 hereof, a Receiving Party may disclose Confidential Information of a Disclosing Party to a court or governmental agency pursuant to statute, regulation, government order, or validly issued subpoena, provided, however, that the Receiving Party shall notify the Disclosing Party in writing as much in advance as is practicable under the circumstances prior to any such disclosure in a good faith effort to provide the Disclosing Party the opportunity to seek a protective order or to contest such required disclosure prior to such disclosure.
   5. Remedies/Liability Limitation as to Confidential Information. The Parties agree that (a) a Receiving Party’s threatened or actual improper disclosure or use of a Disclosing Party’s Confidential Information will cause irreparable injury to the Disclosing Party for which money damages alone would be an inadequate remedy, and (b) a Disclosing Party shall have the right to seek an immediate injunction of any such threatened or actual improper disclosure or misuse of the Disclosing Party’s Confidential Information from any court of competent jurisdiction in the United States without the need for any bond or other security. Except for an action commenced solely for the purpose of seeking an injunction hereunder, a Party must commence or pursue any other claims or remedies against the other Party in accordance with Section 8.9 hereof.
5. REPRESENTATIONS AND COVENANTS; WARRANTIES DISCLAIMER; LIMITATION OF LIABILITY
   1. Representations and Covenants. Each Party represents and warrants to the other that (a) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized, (b) it has the right and all necessary authority to enter into this Agreement, (c) upon execution this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, (d) the execution and performance of this Agreement by it will not violate or conflict with Applicable Law, and (e) during the Term it shall materially comply with Applicable Law. In addition, Salesmsg warrants to Customer that, during the Term, the Messaging Services will perform materially in accordance with the applicable Documentation, meaning Salesmsg’s then-current published user guides, help documentation, and technical specifications for the Messaging Services. Salesmsg’s sole obligation, and Customer’s sole and exclusive remedy, in respect of any breach of the foregoing warranty shall be for Salesmsg to use commercially reasonable efforts to correct the non-conformity and, where Salesmsg is unable to do so within thirty (30) days of Customer’s written notice describing the non-conformity in reasonable detail, Customer may terminate the affected Order Form and receive a refund of any Fees prepaid in respect of the unexpired remainder of the then-current Term for the non-conforming Messaging Services. This warranty does not apply to any non-conformity arising from Excluded Downtime (as defined in Exhibit A), from misuse or unauthorized modification of the Messaging Services, or from use otherwise than in accordance with this Agreement and the Documentation.
   2. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTIES IN SECTION 5.1 ARE IN LIEU OF ALL OTHER WARRANTIES AND SALESMSG DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND TITLE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY SERVICES PROVIDED BY SALESMSG HEREUNDER, INCLUDING WITHOUT LIMITATION THE MESSAGING SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1 AND IN THE SERVICE LEVEL AGREEMENT AT EXHIBIT A, SALESMSG DOES NOT WARRANT THAT THE MESSAGING SERVICES, OR ANY NETWORK OPERATOR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE MESSAGING SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR FREE. SALESMSG DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL.
   3. SPECIFIC DISCLAIMERS. CUSTOMER ACKNOWLEDGE AND AGREE THAT: (I) THE SERVICES CANNOT TRANSMIT COMMUNICATIONS OR OTHER ELECTRONIC REQUESTS TO DEVICES THAT ARE UNREACHABLE (I.E. OUT OF CELLULAR COVERAGE, POWERED OFF, ETC.); AND (II) THAT THE SERVICES ARE NOT A SERVICE TO BE RELIED UPON AS THE SOLE MEANS OF RECEIVING CRITICAL INFORMATION. IN NO EVENT SHALL SALESMSG'S APP PROVIDERS BE LIABLE FOR THE SALE, DISTRIBUTION OR CUSTOMER´S USE OF THE APP OR THE PERFORMANCE OR NON-PERFORMANCE OF THE APP. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE APP PROVIDERS SHALL BE THIRD-PARTY BENEFICIARIES TO THIS SECTION 5.3. CUSTOMER FURTHER ACKNOWLEDGE AND AGREE TO DISCHARGE, WAIVE AND RELEASE THE APP PROVIDERS FROM ANY CLAIMS, LIABILITIES AND DAMAGES, KNOWN OR UNKNOWN, ARISING OUT OF OR RELATING TO CUSTOMER´S INTERACTIONS WITH SUCH PARTIES AND THEIR PRODUCTS AND SERVICES. NOTWITHSTANDING ANY OTHER SECTION, SALESMSG DISCLAIMS ALL LIABILITY OF ANY KIND IN RELATION TO THE APP PROVIDERS AND THEIR PRODUCTS AND SERVICES.
   4. LIMITATION OF LIABILITY. IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, AND COSTS OF LOST OR DAMAGED DATA, EVEN IF AND REGARDLESS OF WHETHER IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS SECTION 5.4 AND IN SECTION 5.5 DO NOT APPLY TO (a) CUSTOMER´S BREACH OF SECTION 2.6 (CUSTOMER RESPONSIBILITIES); (b) CUSTOMER´S AND CUSTOMER´S AFFILIATES’ BREACH OF SECTION 3 (FEES AND PAYMENTS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION).
   5. IN NO EVENT SHALL SALESMSG’S TOTAL LIABILITY FOR ANY CLAIM(S) OR DEMANDS ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID TO SALESMSG BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT(S) FROM WHICH THE CLAIM(S) OR DEMANDS AND LIABILITY ARISES. THE LIMITATIONS IN THIS SECTION ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS IN THIS SECTION ARE A MATERIAL BASIS OF THE BARGAIN, AND THE TERMS OF THIS AGREEMENT WOULD BE DIFFERENT WITHOUT SUCH LIMITATIONS.
6. INDEMNITY
   1. Indemnification of Salesmsg. Customer shall indemnify, hold harmless and defend (a) defend Salesmsg, its Affiliates, and their respective officers, directors and employees (individually, a “Salesmsg Indemnitee,” and collectively, “Salesmsg Indemnitees”), from and against all loss or damage, costs and expenses incurred by Salesmsg as a result of any claims related to or arising out of or against any Permitted Salesmsg Indemnitee Claim, and (b) pay the amount, including reasonable attorney fees (i) awarded to any such Third Party in any final judgment against any Salesmsg Indemnitee based on any Permitted Salesmsg Indemnitee Claim, or (ii) set forth in any written and executed settlement in full of any and all Permitted Salesmsg Indemnitee Claims of such Third Party. As used herein, “Permitted Salesmsg Indemnitee Claim” means any Third Party claim asserted against any Salesmsg Indemnitee that (1) arises from Customer’s material breach of the Agreement, (2) arises from Customer’s breach of any agreement with end users or Customer customers receiving services from Customer, (3) arises from or related to any Content that is reasonably within the Customer’s control, (4) a Customer Application, including, without limitation, any claims that a Customer Application, or Customer´s or Customer´s End Users’ use of a Customer Application, infringes or misappropriation such third party’s intellectual property rights (collectively, “Customer Indemnifiable Claims”). Customer will indemnify Salesmsg from any fines, penalties, damages, attorneys’ fees, and costs awarded against a SalesMessage Indemnified Party or for settlement amounts that Customer approves for a Customer Indemnifiable Claim, (5) Customer´s content.
   2. Procedure. The foregoing obligations are conditioned on Salesmsg promptly notifying Customer in writing of such action, giving Customer sole control of the defense and settlement of the claims against Salesmsg (except that Customer may not settle any claim against Salesmsg unless it unconditionally releases Salesmsg from all liability) and at Customer’s reasonable request and expense, assisting Customer in such defense.
7. TERM AND TERMINATION
   1. Term. The initial subscription term of this Agreement commences on the Effective Date and continues for a period of one (1) year, or for such other period as is stated in the applicable Order Form (the “Initial Term”), unless earlier terminated in accordance with this Section 7. On expiry of the Initial Term, this Agreement and each Order Form shall automatically renew for successive periods of one (1) year (each a “Renewal Term”, and the Initial Term together with each Renewal Term, the “Term”) unless a Party has given notice of non-renewal in accordance with Section 7.6. Each Order Form is co-terminous with the Term unless it expressly provides otherwise. The Term is a committed term: except as expressly provided in Section 7.4, Customer’s obligation to pay the Fees for the whole of the then-current Term is absolute and is not conditional upon Customer’s use of, or the extent of Customer’s use of, the Messaging Services, and the termination or expiry of any single Order Form does not terminate this Agreement or any other Order Form.
   2. Renewal Fees. Unless the Order Form expressly provides otherwise, the Fees payable in respect of each Renewal Term shall be the Fees payable in the immediately preceding Term, increased by such percentage as Salesmsg notifies to Customer in writing not less than ninety (90) days before the commencement of that Renewal Term, such increase not to exceed the greater of (a) five per cent (5%) and (b) the percentage increase in the United States Consumer Price Index for All Urban Consumers (CPI-U, U.S. City Average, All Items) published by the U.S. Bureau of Labor Statistics, measured over the most recent twelve (12) month period for which figures are available at the date of such notice. Where Salesmsg gives notice of an increase later than ninety (90) days before the commencement of a Renewal Term, no increase shall apply and the Fees for that Renewal Term shall remain the Fees payable in the immediately preceding Term. In no event shall the recurring Fees payable in respect of a Renewal Term be less than the Committed Amount. This Section 7.2 does not limit Salesmsg’s right to invoice Pass Through Fees, Taxes, or Communications Surcharges under Section 3.
   3. Termination by Salesmsg. Salesmsg may terminate this Agreement or any Order Form, in whole or in part, with immediate effect by written notice to Customer where (a) Customer fails to pay any undisputed Fee within ten (10) days of its due date, (b) Customer initiates a chargeback or payment reversal otherwise than in accordance with Section 3.18, (c) Customer commits a material breach of Section 2 (Salesmsg Services), including the Salesmsg Acceptable Use Policy, Section 2.4 (Affirmative Consent), Section 2.5 (Opt-Out), or Section 2.16 (Compliance with Laws), or of Section 4 (Treatment of Confidential Information), (d) Customer commits a material breach of any business associate agreement, data processing agreement, or other data protection instrument between the Parties which is not cured within the period (if any) prescribed by that instrument, (e) an Insolvency Event occurs in relation to Customer, or (f) Salesmsg reasonably determines that the continued provision of the Messaging Services to Customer would place Salesmsg in breach of Applicable Law or of any Network Operator requirement, or would expose Salesmsg to regulatory, carrier, or criminal sanction or to the loss of its status as a common carrier. In any other case of material breach by Customer, Salesmsg may terminate on thirty (30) days’ written notice specifying the breach, unless the breach is cured within that period. For the purposes of this Section 7, “Insolvency Event” means a Party’s insolvency, an assignment for the benefit of creditors, the appointment or sufferance of appointment of a trustee, receiver, or similar officer, or any voluntary or involuntary proceeding seeking reorganization, rehabilitation, liquidation, or similar relief under any bankruptcy, insolvency, or debtor-relief statute; an Insolvency Event is not capable of cure.
   4. Termination by Customer. Customer may terminate this Agreement only where Salesmsg commits a material breach of this Agreement and fails to cure that breach within thirty (30) days after receipt of written notice from Customer which (i) is given within thirty (30) days after Customer first becomes aware of the breach, (ii) identifies the breach and the provision breached in reasonable detail, and (iii) states expressly that Customer will terminate if the breach is not cured. None of the following constitutes a material breach by Salesmsg for the purposes of this Section 7.4: (a) any suspension, limitation, refusal, segmentation, or truncation of transmission exercised under Section 2.3, Section 2.13, Section 2.14, or Section 7.8; (b) any interruption, degradation, latency, or unavailability of the Messaging Services attributable to a Network Operator, to a Force Majeure Event, or to scheduled, emergency, or migration maintenance under Section 2.10; (c) the non-delivery, delayed delivery, or misdelivery of any Message; (d) any matter in respect of which liability is excluded or disclaimed under Section 2.9, Section 2.11, Section 2.12, or Section 5; or (e) any breach which is capable of remedy and is remedied within the cure period. Customer may not give notice under, or exercise any right of termination pursuant to, this Section 7.4 at any time when any undisputed Fee is overdue. Where Customer validly terminates under this Section 7.4, Salesmsg shall refund Fees prepaid in respect of the period after the effective date of termination and no Early Termination Fee shall be payable; that refund is Customer’s sole monetary remedy in respect of the termination itself, without prejudice to any other remedy available to Customer in respect of the underlying breach and subject in all cases to Section 5.
   5. No Termination for Convenience; Early Termination Fee. Customer has no right to terminate this Agreement or any Order Form for convenience. If, before the scheduled expiry of the then-current Term, Customer purports to terminate this Agreement or any Order Form otherwise than in accordance with Section 7.4, ceases or abandons use of the Messaging Services, or fails to pay the Fees, or this Agreement or any Order Form is terminated by Salesmsg under Section 7.3, then in each case (a) all Fees for the unexpired balance of the then-current Term shall become immediately due and payable in full, without deduction, set-off, or counterclaim, being the aggregate of the recurring Fees stated in the Order Form or, if greater, the Committed Amount, for each remaining month or part month of the Term (the “Early Termination Fee”), (b) no Fee already paid shall be refunded in whole or in part, and (c) any discount, credit, promotional rate, waived charge, or preferential rate granted to Customer by reference to the length of the Term or to a minimum volume or spend commitment shall be forfeited, the Fees for the elapsed part of the Term shall be recalculated at Salesmsg’s standard list rates then in effect, and the resulting difference shall be immediately due and payable by Customer. The Early Termination Fee is payable within ten (10) days of the effective date of termination and bears interest under Section 3.4 until paid in full. The Parties acknowledge and agree that the Fees, discounts, and rates were set in reliance upon Customer’s commitment for the full Term, that Salesmsg incurs carrier, provisioning, and capacity costs on that basis, that the loss Salesmsg would suffer upon early termination is difficult to ascertain with precision, and that the Early Termination Fee is a genuine and reasonable pre-estimate of that loss and not a penalty.
   6. Notice of Non-Renewal. To prevent the renewal of this Agreement or of any Order Form, a Party must give written notice of non-renewal to the other Party not less than sixty (60) days before the end of the then-current Term. Notice given by Customer must be given in accordance with Section 8.2 (Notices), must identify this Agreement and each Order Form to which it relates, and must be given by a duly authorized officer of Customer. No other communication shall be effective to prevent renewal, including any support ticket, live chat message, in-application cancellation request, instruction given to a Salesmsg representative, or non-payment or attempted non-payment of an invoice. Where notice of non-renewal is not given in accordance with this Section 7.6, this Agreement and each Order Form shall renew in accordance with Section 7.1 and Customer shall be liable for the Fees payable in respect of that Renewal Term in full.
   7. Renewal Notification. Where and to the extent required by Applicable Law, Salesmsg shall notify Customer of the forthcoming automatic renewal of this Agreement and of the date by which notice of non-renewal must be given, within the period prescribed by that law. Save where required by Applicable Law, the giving of such a notification is not a condition of renewal and no failure to give it shall affect the operation of Section 7.1 or Section 7.6. Salesmsg may give any notification under this Section 7.7 by electronic mail to any Admin User or billing contact of Customer, by a statement on or accompanying an invoice, or by a notice within the Messaging Services, and the notification is deemed given when so sent or posted. Where Applicable Law makes the giving of such a notification a condition of the enforceability of an automatic renewal and the notification has not been given in time, this Agreement and each Order Form shall not terminate but shall continue on a month-to-month basis on the terms, and at the Fees, in effect at the end of the then-current Term, until the earlier of (a) a renewal taking effect following a notification compliant with that law, and (b) termination by either Party on thirty (30) days’ written notice, or on such shorter notice as Applicable Law requires, and Customer shall pay the Fees in respect of the whole of that continuation period.
   8. Suspension as an Alternative to Termination. Without prejudice to Sections 2.3 and 2.14, Salesmsg may suspend the Messaging Services in whole or in part, on five (5) days’ written notice, where any undisputed Fee remains unpaid after its due date or where Customer is in material breach of this Agreement, and may maintain that suspension until the breach is cured and all outstanding amounts are paid in full. Suspension does not relieve Customer of its obligation to pay the Fees in respect of the period of suspension, does not extend the Term or any billing period, and shall not constitute a breach by Salesmsg or entitle Customer to any refund, credit, service-level remedy, or right of termination.
   9. Effect of Termination. On the effective date of termination or expiry of this Agreement (a) all rights granted to Customer under this Agreement cease and, subject to paragraph (d) below, Salesmsg may disable Customer’s account and all access to the Messaging Services, (b) all Fees accrued or payable, including any Early Termination Fee, become immediately due and payable, (c) no Fee is refundable save as expressly provided in Section 7.4, (d) Customer shall have thirty (30) days from the effective date of termination in which to export its Content, after which Salesmsg may delete Customer’s Content in accordance with its retention practices and Applicable Law and shall be under no obligation to retain it, and (e) Customer shall have no right to the transfer, porting, or continued use of any telephone number, short code, or long code except as provided in Section 2.3 and in any event only after payment in full of all amounts due to Salesmsg.
   10. Additional Message Credits on Renewal. Message credits included in the subscription package are allotted for each subscription term and do not carry over to the next allotment, whether on renewal or otherwise. Additional message credits, whether purchased on request or supplied automatically through auto-recharge, carry over until used and are not extinguished by the commencement of a Renewal Term. All unused message credits expire on the termination or expiry of this Agreement, are non-refundable, and do not count towards any minimum commitment for the purposes of renewal.
   11. Survival. The provisions of Sections 1, 3 (to the extent of accrued and outstanding unpaid Fees, including any Early Termination Fee), 4, 5, 6, 7.5, 7.9, this Section 7.11, and 8 will survive the termination or expiration of this Agreement. The California Consumer Privacy Act of 2018 provisions of Section 2 shall also survive, and shall continue to apply for so long as Salesmsg retains any Contact Data.
8. MISCELLANEOUS
   1. Independent Contractors; No Third-Party Beneficiaries. In making and performing this Agreement, Salesmsg and Customer act and will act at all times as independent contractors, and nothing contained in this Agreement will be construed or implied to create an agency, partnership, or employer and employee relationship between them. Neither Party shall have the power by virtue of this Agreement to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent. This Agreement is entered into solely between the Parties and may only be enforced by a Party against the other Party.
   2. Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of courier, by certified U.S. mail, postage prepaid and return receipt requested, by a nationally recognized express mail service to a Party at the addresses listed below, or by electronic mail. Notice will be effective upon receipt or refusal of delivery. Notices to Customer shall be sent to the address, and marked for the attention of the person, stated in the notice details below or, where none is stated, to the address and contact details recorded in Customer’s account or in the applicable Order Form. Each Party may change its address for receipt of notice by giving notice of such change to the other Party.
      
      If to Salesmsg:
      SalesMessage, Inc.
      1045 E Atlantic Ave #202
      Delray Beach, FL 33483
      Phone: 888-409-2298
      With a copy to: legal@salesmessage.com
      
      If to Customer:
      Legal entity name
      Attention (name and title)
      Address
      Email address
      Telephone
   3. Assignment. Except with respect to an assignment between Salesmsg and any of its Affiliates, neither Party may assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld, except pursuant to a merger, acquisition, or sale of all or substantially all of such Party’s assets, in which case assignment shall be permitted without the consent of the other Party, provided that notwithstanding the foregoing no fees or pricing in this Agreement relating to any Messaging Services may be assigned by Customer, except to an Affiliate of Customer, without Salesmsg’s prior written consent, which shall not be unreasonably withheld. Except as permitted by the foregoing, any attempted assignment will be null, void, and of no effect. In the event of permitted assignment of this Agreement, all terms and conditions hereof, except for any pricing or other fees in the Agreement in the case of an assignment by Customer, will be binding on and inure to the assignee as though such assignee were an original Party hereto.
   4. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party (a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
   5. Publicity. During the Term, neither party will disclose the existence of this Agreement or any of its terms to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, (b) pursuant to a mutually agreeable press release, or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party to this Agreement).
   6. Intellectual Property, Trademarks and Copyrights.
      1. Intellectual Property. The Parties retain all rights, title, and interest in and to their respective intellectual property and nothing in this Agreement, or the performance of a Party’s obligations hereunder, shall, or be construed to, operate as, or to cause, any conveyance, license, or other transfer of a Party’s intellectual property rights to the other Party or any Third Party.
      2. Trademarks. SalesMessage, the SalesMessage logo, and other marks, including graphics and logos, used in connection with SalesMessage, are trademarks or registered trademarks of SalesMessage, Inc. in the United States and/or other jurisdictions. All other trademarks, service marks, graphics, and logos used in connection with SalesMessage may be the trademarks of their respective owners.
      3. Copyright. Any unauthorized use or exploitation of SalesMessage trademarks or any copyrighted materials, except as expressly permitted within this Agreement, is strictly prohibited. Nothing herein shall be construed as conferring upon You any license or right under any patent, copyright, or trademark owned by SalesMessage or any third party.
      4. Protected Content. Customer shall comply with all applicable intellectual property laws, including copyright laws. SalesMessage's policy regarding copyright infringement and the procedure for notifying SalesMessage of claims of copyright infringement can be found in the Salesmsg Terms of Use published at https://www.salesmessage.com/terms-of-use.
   7. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware, U.S.A. without regard to, or application of, any choice of law or conflicts of law rules thereof. Neither the United Nations Convention on the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. This Agreement is prepared and executed in the English language only and any translations of this Agreement into any other language that either Party may prepare shall have no legal or binding effect on the other Party.
   8. Jurisdiction and Venue. Subject to Section 8.9 (Arbitration Agreement; Class Waiver; Waiver of Trial by Jury), the Parties agree that any application to compel arbitration or to enforce an arbitral award, and any application for interim or injunctive relief pending the constitution of the tribunal, shall be commenced exclusively in the state courts of the State of Delaware or a federal court sitting in the State of Delaware, U.S.A., all other claims being resolved exclusively in accordance with Section 8.9, and each Party hereby (a) irrevocably submits to the jurisdiction of such courts over it, and (b) waives, and agrees not to assert in any action or proceeding in such courts to the fullest extent permitted by law any defense or objection that the action or proceeding is brought in an inconvenient forum, that the venue of the action or proceeding is improper, or that this Agreement, or the subject matter hereof, or any of the transactions contemplated hereby, may not be enforced in or by such courts. Notwithstanding the foregoing, either Party may commence in any court of competent jurisdiction an action solely for the purpose of obtaining an injunction against the other Party for an alleged violation of Section 4 as set forth more specifically in Section 4.5 hereof.
   9. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Arbitration Agreement carefully.
      1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of the Messaging Services that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to Customer and Salesmsg, and to their respective Affiliates, agents, employees, predecessors in interest, successors, and permitted assigns.
      2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Salesmsg should be pursuant to Section 8.2 (Notices) of this Agreement. After the Notice is received, Customer and Salesmsg may attempt to resolve the claim or dispute informally. If Customer and Salesmsg do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
      3. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Commercial Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. The parties agree any such arbitration shall be filed and heard in the State of Delaware. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorneys’ fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
      4. Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
      5. Time Limits. If Customer or Salesmsg pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
      6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of Customer and Salesmsg, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon Customer and Salesmsg.
      7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between Customer and Salesmsg in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, CUSTOMER AND SALESMSG WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
      8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
      9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
      10. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
      11. Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Agreement.
      12. Survival of Agreement. This Arbitration Agreement will survive the termination of Customer´s relationship with Salesmsg.
      13. Small Claims Court. Notwithstanding the foregoing, either Customer or Salesmsg may bring an individual action in small claims court.
      14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
      15. Claims Not Subject To Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.
      16. Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within the State of Delaware, for such purpose.
   10. Agreement, Modifications, Severability, and Waiver.
       1. Agreement. This Agreement, together with each Order Form, the Service Level Agreement at Exhibit A, the Support Services Schedule at Exhibit B, any other exhibit or attachment expressly incorporated into this Agreement or an Order Form, the Salesmsg posted policies referred to in this Agreement (including the Acceptable Use Policy), and the Related Agreements referred to in Section 8.10.5, sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous, oral or written agreements, discussions, and understandings between the Parties with respect to the subject matter hereof, it being understood that neither Party will be bound by any conditions, inducements, or representations other than as expressly provided for herein. This Agreement may not be amended or modified except in writing duly executed by the Parties. The Salesmsg Terms of Use published at https://www.salesmessage.com/terms-of-use govern use of the Salesmsg website and do not form part of the Agreement, save that the copyright infringement notification procedure referred to in Section 8.6.4 is incorporated into the Agreement by reference. In the event of any conflict between the Terms of Use and the Agreement, the Agreement prevails.
       2. Modifications. Salesmsg reserves the right to modify its posted policies, including the Terms of Use and the Acceptable Use Policy, at any time. Any such modification will be effective upon posting on the Salesmsg website or upon other written communication to Customer, and Customer’s continued use of the Messaging Services after such posting or communication constitutes Customer’s acceptance of the modification. Custom terms agreed between the Parties in a duly executed instrument, including this Agreement, any Order Form, and any Upgrade Order or invoice taking effect under Section 3.15, supersede any conflicting posted term for so long as they remain in force, and continue in full force through each Renewal Term without expiring, lapsing, or requiring re-execution upon renewal, unless and until amended in accordance with Section 8.10.1 or superseded by a later instrument duly executed by the Parties. Nothing in this Section 8.10.2 entitles Customer to modify this Agreement otherwise than in accordance with Section 8.10.1.
       3. Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any court or tribunal of competent jurisdiction, such provision will be construed to have been modified to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering such provision invalid or unenforceable in any other case, circumstance, or jurisdiction or of rendering other provisions of this Agreement invalid or unenforceable whatsoever.
       4. Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is, or would be, sought and any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
       5. Related Agreements; Order of Precedence. Where the Parties have entered into a business associate agreement with Salesmsg (a “BAA”), the Salesmsg Data Processing Agreement (the “DPA”), or both, each such instrument forms part of the Agreement, applies concurrently with this MSA, and is co-terminous with this MSA save as it expressly provides otherwise. In the event of any conflict, and solely to the extent of the conflict, the BAA controls with respect to Protected Health Information, the DPA controls with respect to the processing of personal data within its scope, and this MSA controls in all other respects, including as to Fees, term, and termination. The Parties’ liability under this MSA, the BAA, and the DPA is subject to the single aggregate limitation of liability set forth in Section 5.5, which applies across those instruments together and is not enlarged, stacked, or multiplied where the same event gives rise to claims under more than one of them. Termination or expiry of this MSA terminates the BAA and the DPA, save for provisions that expressly survive; and an uncured material breach by Customer of the BAA or the DPA constitutes a material breach of this MSA for the purposes of Section 7.3.
   11. Counterparts. This Agreement may be executed in counterparts, including by electronic transmission, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same Agreement.
   12. Export Controls and Sanctions. Each Party shall comply with all applicable export control and economic sanctions laws and regulations of the United States and any other applicable jurisdiction, including the U.S. Export Administration Regulations and the sanctions programs administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC). Each Party represents and warrants that it is not, and is not owned or controlled by or acting on behalf of, any person identified on any applicable government restricted-party list, and that it is not located, organized, or resident in any country or territory that is the subject of comprehensive sanctions. Customer shall not, and shall ensure that its End Users do not, access or use the Messaging Services in, from, or for the benefit of any such country, territory, or person, or otherwise in violation of any export control or sanctions law. Salesmsg may suspend or terminate the Messaging Services with immediate effect by written notice where it reasonably believes that this Section has been or will be breached.
   13. Anti-Bribery and Anti-Corruption. Each Party shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act of 1977 and, where applicable, the UK Bribery Act 2010, and shall not, directly or indirectly, offer, promise, give, solicit, or accept any bribe, kickback, facilitation payment, or other improper payment or advantage in connection with this Agreement. Each Party shall maintain policies and procedures reasonably designed to ensure compliance with this Section. A breach of this Section is a material breach of this Agreement entitling the non-breaching Party to terminate this Agreement with immediate effect by written notice.
   14. Verification of Use. Customer shall maintain accurate records reasonably necessary to verify its compliance with this Agreement and each Order Form, including records of Users, seats, telephone numbers, and usage volumes, throughout the Term and for two (2) years thereafter. Not more than once in any period of twelve (12) months, on not less than thirty (30) days’ prior written notice, Salesmsg may audit such records and Customer’s relevant systems, during Customer’s normal business hours and in a manner that does not unreasonably interfere with Customer’s operations, solely to verify such compliance, and shall first seek verification by remote or records-based review where reasonably practicable. Any use in excess of the entitlements in the applicable Order Form shall be invoiced at the rates in that Order Form or, in the absence of applicable rates, at Salesmsg’s then-current list rates, in each case from the date on which the excess use began, and shall be payable in accordance with Section 3. Where an audit discloses an underpayment exceeding five per cent (5%) of the Fees payable in respect of the audited period, Customer shall also reimburse Salesmsg’s reasonable costs of the audit. Information obtained by Salesmsg in an audit shall be treated as Customer’s Confidential Information and used solely for the purposes of this Section.

EXHIBIT A
SERVICE LEVEL AGREEMENT

A.1 Application. This Service Level Agreement (this “SLA”) forms part of the Agreement and applies to the hosted Salesmsg software platform made available to Customer under the Agreement (the “Platform”). This SLA does not apply to Network Operator Services, telecommunications carriers, telephone number provisioning or registration (including 10DLC and toll-free verification), third-party products, services, or integrations, or to features identified as beta, pilot, or early access. Capitalized terms used but not defined in this SLA have the meanings given in the Agreement.

A.2 Uptime Commitment. Salesmsg will use commercially reasonable efforts to make the Platform available with a Monthly Uptime Percentage of at least 99.9% in each calendar month (the “Uptime Commitment”). “Monthly Uptime Percentage” means the total number of minutes in a calendar month, minus the number of minutes of Downtime in that month, divided by the total number of minutes in that month, expressed as a percentage. “Downtime” means a period during which the Platform is materially unavailable to all of Customer’s End Users and administrative users, as measured by Salesmsg’s monitoring systems, excluding Excluded Downtime. Salesmsg publishes the current operational status of the Platform at status.salesmessage.com the status page is provided for information only and does not enlarge Salesmsg’s obligations under this SLA.

A.3 Excluded Downtime. “Excluded Downtime” means any unavailability arising from: (a) scheduled maintenance carried out in accordance with the Salesmsg Platform Maintenance provisions of the Agreement, in respect of which Salesmsg has used reasonable commercial efforts to notify Customer in advance and to schedule the maintenance during non-peak hours; (b) emergency maintenance reasonably necessary to protect the security or integrity of the Platform; (c) events addressed by the force majeure provisions of the Agreement; (d) failures or degradation of Network Operator Services, telecommunications carriers, internet service providers, or third-party products, services, or integrations; (e) acts or omissions of Customer or its End Users, or Customer’s equipment, software, or network connectivity; or (f) suspension or termination of the Messaging Services in accordance with the Agreement.

A.4 Service Credits. If the Monthly Uptime Percentage in a calendar month falls below the Uptime Commitment, Customer will be eligible, upon a valid claim under Section A.5, for a credit against future invoices calculated as a percentage of the recurring Fees attributable to the Platform for that month (a “Service Credit”), as follows: (a) Monthly Uptime Percentage below 99.9% but equal to or greater than 99.0%: ten percent (10%); (b) below 99.0% but equal to or greater than 95.0%: twenty-five percent (25%); and (c) below 95.0%: fifty percent (50%).

A.5 Claims. To receive a Service Credit, Customer must submit a written claim to Salesmsg support within thirty (30) days after the end of the calendar month in which the Downtime occurred, including the dates and times of the claimed Downtime and reasonable supporting detail. Claims are verified against Salesmsg’s monitoring records, which shall be determinative absent manifest error. Valid Service Credits are applied against a future invoice, have no cash value, are not refundable, shall not in the aggregate exceed fifty percent (50%) of the recurring Fees attributable to the Platform for the relevant month, and are forfeited upon termination of the Agreement.

A.6 Sole and Exclusive Remedy. Service Credits are Customer’s sole and exclusive remedy, and Salesmsg’s entire liability, for any failure to meet the Uptime Commitment or for any unavailability, interruption, or degradation of the Platform.

A.7 Relationship to the Agreement. This SLA is subject to the Agreement, including Section 5 (Representations and Covenants; Warranties Disclaimer; Limitation of Liability). In the event of any conflict between this SLA and the body of the Agreement, the body of the Agreement governs.

EXHIBIT B
SUPPORT SERVICES SCHEDULE

B.1 Application. This Support Services Schedule forms part of the Agreement and sets out the whole of the technical support that Salesmsg provides to Customer. The Support Plan applicable to Customer is the plan identified in the Order Form, and where no plan is identified the Basic plan applies.

B.2 Support hours and channels. Support requests are submitted through the in-application chat facility and by electronic mail to support@salesmessage.com, and enter a single support queue. Requests reach the queue on receipt and are handled in the order in which they are received, subject to the response targets stated in this Exhibit B. A request raised otherwise than through those channels, including with an individual member of Salesmsg personnel, is not submitted for the purposes of this Exhibit B. Support is staffed between 9:00 a.m. and 8:00 p.m., Monday to Friday, Eastern Time, excluding public holidays observed by Salesmsg. A request received outside those hours enters the queue on receipt and any response target begins to run at the commencement of the next staffed period. Customers holding Enterprise may also telephone the number notified to them, during staffed hours.

B.3 Basic. Basic is included in every subscription at no additional charge and comprises access to the Salesmsg help centre and documentation and the submission of support requests through the channels stated in B.2, handled in the order in which they are received and during the hours stated in B.2. Basic carries no committed or target response time, no telephone support, no named or dedicated resource, no business review, no roadmap input and no development hours. Basic is the whole of the support included in the subscription Fees.

B.4 Pro. Pro comprises Basic together with a target first response of two (2) hours and the return of telephone calls requested through a support request. The Fee for Pro is the greater of eight per cent (8%) of the Monthly Subscription Fees and two hundred and fifty United States dollars (US$250) per month.

B.5 Enterprise. Enterprise comprises Pro together with a target first response of one (1) hour, inbound telephone support, a dedicated Solutions Engineer, quarterly business reviews, the opportunity to provide input to the Salesmsg product roadmap, and ten (10) hours of development time for each calendar quarter. The Fee for Enterprise is the greater of eight per cent (8%) of the Monthly Subscription Fees and one thousand United States dollars (US$1,000) per month.

B.6 Monthly Subscription Fees. Monthly Subscription Fees means the recurring subscription Fees payable by Customer for the Messaging Services in respect of the month in question, and excludes Pass Through Fees, Communications Surcharges, Taxes, any payment processing fee, additional message credits whether purchased on request or supplied by auto-recharge, Custom Work and any other non-recurring charge. Where the recurring subscription Fees are payable otherwise than monthly, the Monthly Subscription Fees are the recurring subscription Fees for the subscription term stated in the Order Form divided by the number of months in that term.

B.7 Response targets. A target first response is the period, measured during the hours stated in B.2, within which Salesmsg aims to make first substantive contact with Customer following receipt of a support request in the queue. An acknowledgement generated automatically is not a first response. The periods stated in this Exhibit B are targets only. They are not service levels for the purposes of Exhibit A, they attract no service credit or other remedy, and Salesmsg is under no obligation to report its performance against them to Customer.

B.8 Solutions Engineer and development hours. The time of the dedicated Solutions Engineer and the development hours included in Enterprise are recorded against the requests made by Customer and are consumed as recorded by Salesmsg, whose records are determinative absent manifest error. Development hours are allotted for each calendar quarter, do not carry over to any subsequent quarter, have no cash value and are not refundable. Salesmsg determines which of its personnel is assigned as the dedicated Solutions Engineer and may change that assignment on notice to Customer.

B.9 Matters outside support. Support does not include the development of custom features, integration work, the writing of code on behalf of Customer, brand or campaign registration decisions, the drafting of message content, consent or regulatory compliance advice, training beyond the published documentation, or the investigation of faults in third-party products, networks or integrations. Work of that character is Custom Work and is governed by Section 3.7.

B.10 Escalation. Customer may request, in the same support request, that a matter be escalated. Escalation is to the Salesmsg support lead and, where the matter warrants it, to engineering. Escalation does not alter any response target.

B.11 Term, Fees and Committed Amount. A Support Plan is elected in the Order Form and runs for the remainder of the then-current Term. The Fee for the Support Plan is invoiced with the subscription Fees, forms part of the Committed Amount for the purposes of Section 3.16, and may not be reduced or cancelled during the Term. Customer may move to a higher Support Plan at any time in accordance with Sections 3.14 and 3.15. Customer may move to a lower Support Plan, or to Basic, only with effect from the commencement of the next Renewal Term and on not less than sixty (60) days written notice given in accordance with Section 7.6.

B.12 Relationship to the Agreement. This Exhibit B is subject to the Agreement, including Section 5 (Representations and Covenants; Warranties Disclaimer; Limitation of Liability). In the event of any conflict between this Exhibit B and the body of the Agreement, the body of the Agreement governs, save that this Exhibit B governs as to the content of the Support Plans.