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SMARTTOUCH MOBILE, INC.

TERMS OF SERVICE LICENSE AND TESTING AGREEMENT

Important: READ CAREFULLY BEFORE RETURNING TO THE SURVEY AND CLICKING ON THE “I ACCEPT” BUTTON

INCLUDES A SOFTWARE APPLICATION FOR SMARTTOUCH, RELATED DOCUMENTATION AND WIDGETS (COLLECTIVELY, “THE SERVICE”) THAT BELONGS TO SMARTTOUCH MOBILE, INC. (“SMARTTOUCH”), THE USE OF WHICH IS SUBJECT TO THIS CLICK-THROUGH SERVICE LICENSE AND TESTING AGREEMENT (“AGREEMENT”). CLICKING ON THE “I ACCEPT” BUTTON OR USING THE SERVICE (INCLUDING DOWNLOADING THE SOFTWARE APPLICATION AND WIDGETS) CONSTITUTES ACCEPTANCE BY YOU (“YOU” MEANS YOU OR THE BUSINESS ENTITY ON WHOSE BEHALF YOU USE OR INSTALL THE SERVICE, AS APPLICABLE) TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE SYSTEM RECEIVING YOUR RESPONSE IS NOT CAPABLE OF INTERPRETING OR REACTING TO ANY TERMS OR INPUT SUBMITTED OR TRANSMITTED BY YOU OTHER THAN ACCEPTANCE OR REJECTION. IF YOU DO NOT AGREE (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON, IN WHICH CASE YOU WILL NOT BE AUTHORIZED TO DOWNLOAD, INSTALL, OR USE THE SERVICE. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT.

NOTICE: The Service is still under development. SmartTouch is providing you with access to and use of the Service under the terms of this Agreement as part of SmartTouch’s development process in exchange for your feedback and comments. This Agreement may be cancelled and your use of and access to the Service may be stopped at any time without prior notice.

The SmartTouch application makes use of SMS (text) messaging for sending requests and for receiving responses and alerts from various SMS services. In addition to these messages which are initiated by the user, the SmartTouch application may from time to time send additional SMS (text) messages for the purpose of communicating control information between the client and the server. The SmartTouch application is designed to minimize the number of such control messages. Standard text messaging fee will apply to all messages sent and received.

Certain actions on the part of the user may cause a data connection or browser to be opened from within the SmartTouch application. Before such a data connection is made, the application may provide an indication to the user (e.g. "Data Charges will apply") and an option to cancel such action. Should such a data connection or browser be opened, standard data changes will apply. The widgets provide access to text messaging systems of other companies. Unless otherwise noted, the widgets are not authorized or endorsed by those companies. The use of trademarks of those companies is only intended to identify text messaging systems and/or services of those companies. All trademarks are owned by the respective third parties and are not licensed, approved or authorized by such third parties.
  • License Grant. Subject to the terms and conditions of this Agreement, SmartTouch grants You a limited, non-transferable, non-sub-licensable, non-exclusive license to use the Service as contemplated in the applicable documentation. You are not granted any rights or licenses in the Service other than those rights expressly granted in this Agreement.
  • Permitted Uses. The Service is licensed only to You for your personal use and may not be transferred to anyone without SmartTouch’s prior written authorization. This Agreement will automatically terminate in the event of any violation of this Agreement by You.
  • Ownership. SmartTouch and its licensors retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (i) the Service, all copies and derivative works thereof (by whomever produced), (ii) additions, modifications, suggestions for improvements or additional features thereto arising during the term of this agreement and (iii) all copyright rights, patent rights, trade secret rights and all other intellectual property and proprietary rights anywhere in the world in all of the foregoing.
  • You shall not (and shall not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, or underlying ideas or algorithms of the Service (except to the extent expressly permitted under applicable law); (ii) provide, lease, lend, use for timesharing or otherwise use or allow others to use the Service to or for the benefit of third parties; (iii) modify, incorporate into or with other hardware or Service, or create a derivative work of any part of the Service; or (iv) disseminate performance information or analysis from any source relating to the Service. You agree to cooperate with SmartTouch and its licensors in connection with their efforts to protect their copyright and other legal rights in the Service
  • This Agreement will become effective on the date You click on the “I Accept” button or otherwise use the Service and will remain in force until terminated. You may terminate this Agreement at any time, and SmartTouch may terminate this Agreement at any time. You agree to remove the SmartTouch application and widgets from your phone immediately upon any termination of this Agreement, and certify the same in writing if requested. (I don’t think there is a way for a user to return anything to us. Just delete the program from their phone)
  • Confidentiality. You acknowledge that the Service contains valuable trade secrets of SmartTouch and other information proprietary to SmartTouch and its licensors. You shall keep confidential such trade secrets and proprietary information, including without limitation all information concerning ideas and algorithms related to the Service.
  • No Warranty.THE SERVICE PROVIDED UNDER THIS AGREEMENT IS NOT FULLY TESTED AND IS STILL BEING DEVELOPED. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE MAY CONTAIN DEFECTS AND ERRORS. YOU ACKNOWLEDGE THAT THE SERVICE IS PROVIDED BY SMARTTOUCH AND ITS LICENSORS “AS IS” WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER SMARTTOUCH NOR ITS LICENSORS WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION. NEITHER SMARTTOUCH NOR ITS LICENSORS WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE OF THE SERVICE INCLUDING, WITHOUT LIMITATION, THE CORRECTNESS, ACCURACY OR RELIABILITY OF SUCH USE OR RESULTS.
  • Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SMARTTOUCH AND ITS LICENSORS WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS YOU PAID FOR THE SERVICE ($0.00); (II) ANY LOST DATA OR OTHER EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, MOBILE PHONE FAILURE OR MALFUNCTION, LOSS OF DATA, OR ANY AND ALL LOST PROFITS, EVEN IF SMARTTOUCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (III) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
  • Indemnity. You agree to indemnify and hold SmartTouch and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Service or any subject matter of this Agreement.
  • Miscellaneous. A party’s failure to exercise or its delay in exercising any rights hereunder will not be deemed to be a waiver of such right. If any provision of this Agreement shall be held by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized officer of SmartTouch.
  • If you have any questions, please contact us via email at: support@smarttouchmobileinc.com.

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