MODISclub Terms of Service for Providers

Acceptance of Terms of Service

Privacy

Limitations on Use

Electronic Communications

Your Conduct

Third Party Offers and Services

Provider/Customer Responsibilities

1. Provider/Customer shall conform to the Provider/Customer Specification for the relevant Service.
2. Provider/Customer shall promptly provide MODISclub with such accurate written guidelines, provisions or other information (collectively, "Directions") as may reasonably be required by MODISclub from Provider/Customer in order to perform the Services. MODISclub may rely on any Directions provided to it by Provider/Customer and shall incur no liability as a result thereof.
3. Provider/Customer shall be responsible for the procurement of any and all licenses, approvals, qualifications, permits or certificates where required in connection with a Program.
4. Provider/Customer shall comply with MODISclub's current Privacy Policy and Code of Conduct, a copy of the most recent version of which may be found at http://www.modisclub.com/privacy.html, the guidelines of the Mobile Marketing Association, and any applicable Carrier requirements.
5. Provider/Customer shall provide assistance to MODISclub in connection with MODISclub's compliance with any requirements or conditions which are at any time imposed by any Governmental Body relating to the Services or the Provider/Customer Content.
6. Provider/Customer shall be solely responsible for any liability relating to the Provider/Customer Content. If the Provider/Customer Content violates the requirements of this Agreement, MODISclub, in its sole discretion, may remove or to request removal of such Provider/Customer Content. If Provider/Customer refuses such request, MODISclub, in its sole discretion, may immediately block the Provider/Customer Content, suspend the Services, or terminate this Agreement. MODISclub shall not be liable for any damages incurred by Provider/Customer because of any such action.
7. Provider/Customer shall ensure that its collection, access, use and disclosure of Subscriber information shall comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation (i) the Federal Communications Commission's Provider/Customer Proprietary Network Information rules and regulations implementing 47 USC 222 (the CPNI rules) and (ii) laws governing marketing by telephone, direct mail, e-mail, wireless text messaging, fax , and any other mode of communication (collectively, "Privacy Laws"). Provider/Customer shall at all times perform its obligations hereunder in such a manner as not to cause MODISclub to be in violation of any applicable laws or regulations, including any Privacy Laws.
8. Upon request, Provider/Customer shall submit all advertisements relating to the Services to MODISclub for approval.

Content Restrictions

1. Submit Provider/Customer Content that is false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another�s privacy, hateful, or racially, ethnically, or otherwise objectionable;
2. Submit Provider/Customer Content that is harmful to minors;
3. Submit Provider/Customer Content for which it does not have requisite rights;
4. Submit Provider/Customer Content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights;
5. Engage in unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", or other forms of solicitation;
6. Submit or utilize any (a) viruses, worms, Trojan horses, or other code that might disrupt, disable, harm, erase memory, or otherwise impede the operation, features, or functionality of any software, firmware, hardware, wireless device, computer system or network, (b) traps, time bombs, or other code that would disable any software based on the elapsing of a period of time, advancement to a particular date or other numeral, (c) code that would permit any third party to interfere with or surreptitiously access Subscriber personal information, and (d) Content to cause disablement or impairment;
7. Intentionally or unintentionally violate any applicable local, state, national or international law, or any regulations having the force of law;
8. Provide any material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization designated by the United States and Canadian government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
9. Collect or store personal data about Subscribers in connection with the prohibited conduct and activities set forth hereinabove.

Intellectual Property

1. Provider/Customer Ownership. Provider/Customer is, and shall remain, the licensee or the owner (including all ownership rights and all Intellectual Property Rights) of the Provider/Customer Marks, Provider/Customer Content, and Provider/Customer Confidential Information and any related documentation and all related and intellectual property, including without limitation, all copyright, trade secret, patent, trade marks and other intellectual property rights therein and including any derivative works made during the Term or thereafter ("Provider/Customer Property"). No property or ownership right or interest in the Provider/Customer Property or any part thereof is granted to MODISclub by virtue of this Agreement, the rights granted hereunder to MODISclub being solely contractual in nature. MODISclub hereby assigns to Provider/Customer all of its right, title and interest in any such Provider/Customer Property. Except as provided herein, MODISclub shall not (i) assign, transfer, modify, create any derivative work of or private label the Provider/Customer Property, or reverse assemble, decompile, reverse engineer or attempt to derive source code or the underlying ideas, algorithms, structure or organization of the Provider/Customer Property, (ii) alter or copy, or permit a third party to alter or copy, any part of the Provider/Customer Property; (iii) use the Provider/Customer Property to provide service bureau, time sharing, access through a public computer bulletin board or "shareware" distribution process, or other similar services to third parties; or (iv) sublicense, distribute, sell, assign, transfer, lease, rent, disclose, or provide access to the Provider/Customer Property to any third party. In no event shall MODISclub use or access the Provider/Customer Property except as permitted hereunder.


2. MODISclub Ownership. MODISclub is, and shall remain, the licensee or the owner (including all ownership rights and all Intellectual Property Rights) of the Platform, Solutions (including any derivatives or customizations thereof), MODISclub Content, MODISclub Marks, MODISclub Confidential Information and any related documentation and all related and intellectual property, including without limitation, all copyright, trade secret, patent, trade marks and other intellectual property rights therein and including any derivative works made during the Term or thereafter ("MODISclub Property"). No property or ownership right or interest in the MODISclub Property or any part thereof is granted to Provider/Customer by virtue of this Agreement, the rights granted hereunder to Provider/Customer being solely contractual in nature. Provider/Customer hereby assigns to MODISclub all of its right, title and interest in any such MODISclub Property. Except as provided herein, Provider/Customer shall not (i) assign, transfer, modify, create any derivative work of or private label the MODISclub Property, or reverse assemble, decompile, reverse engineer or attempt to derive source code or the underlying ideas, algorithms, structure or organization of the MODISclub Property, (ii) alter or copy, or permit a third party to alter or copy, any part of the MODISclub Property; (iii) use the MODISclub Property to provide service bureau, time sharing, access through a public computer bulletin board or "shareware" distribution process, or other similar services to third parties; or (iv) sublicense, distribute, sell, assign, transfer, lease, rent, disclose, or provide access to the MODISclub Property to any third party. In no event shall Provider/Customer use or access the MODISclub Property except as permitted hereunder.


3. Trademarks. Provider/Customer hereby grants to MODISclub a non-exclusive, non-transferable, royalty-free license to use, reproduce, distribute and display the Provider/Customer Marks during the Term and solely in connection with the performance of the Services under this Agreement. MODISclub agrees that as between the parties all uses of the Provider/Customer Trademarks, including the goodwill and reputation associated therewith, will inure to the benefit of Provider/Customer.

Fees and Payments

1. Unless otherwise provided herein, MODISclub shall issue and invoice to Provider/Customer monthly for previously unbilled amounts. Each invoice shall be due and payable within thirty (30) days of the date of such invoice.
2. All payments shall be made in Canadian dollars.
3. The fees stated are exclusive of tax. All taxes, duties, fees and other governmental charges of any kind (including sales, services, use, and value-added taxes, but excluding taxes based on the net income of MODISclub) which are imposed by or under the authority of any government or any political subdivision thereof on the fees for any of the Services, Software, and/or Hardware under the Agreement shall be borne by Provider/Customer and shall not be considered a part of, a deduction from or an offset against such fees. All payments due to MODISclub shall be made without any deduction or withholding on account of any tax, duty, charge or penalty except as required by law in which case the sum payable by Provider/Customer in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, MODISclub receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required.
4. Late payments are subject to a charge of the lesser of 1.5% per month or the maximum allowed by law for each month, or partial month, payment is late as well as collection costs, including reasonable collection and attorney's fees.
5. Provider/Customer acknowledges that MODISclub shall be entitled to act on any request, recommendation, order or directive by a Carrier or Governmental Body whether issued unilaterally or pursuant to contract (collectively "Directive"). Provider/Customer further acknowledges that Carriers and Governmental Bodies may by Directive levy, charge or impose upon MODISclub (on account of the Provider/Customer) liquidated damages, penalties, fines, administrative fees, charges or other like sums for:
   • unfair or deceptive acts or practices by the Provider/Customer that effects Carriers' networks and services and Subscribers (including without limitation, acts and omissions that violate applicable consumer protection laws and regulations);
   • acts or omissions by the Provider/Customer that causes injury or damage to Carriers or Subscribers; and/or
   • injury or damage caused by breach of sections titled 'Provider/Customer Responsibilities'; 'Content Restrictions'; 'Carrier Restrictions'; 'Subscriber Services'; and 'Provider/Customer Warranty' in this Agreement. (individually and collectively, the "Charge").
   In the event any Charge is incurred by MODISclub, Provider/Customer expressly agrees to reimburse MODISclub for the Charge.

Carrier Restrictions

1. General Carrier Restrictions. Provider/Customer acknowledges and agrees that (i) one or more Carriers may obligate MODISclub to require certain commitments and representations from third parties such as the Provider/Customer seeking to use such Carriers' services and/or equipment, (ii) MODISclub may be required to deliver and obtain agreement to terms of use of the Carriers' services and/or one or more Carriers' services or equipment from Subscribers, and/or (iii) certain Carriers may place limitations on the type, length, maximum rate of message flow, or other characteristics of Messages that such Carriers will agree to handle at a given time. MODISclub will provide written notice to Provider/Customer of Carrier terms (including updates thereof from time to time) as required by the Carrier. Provider/Customer will promptly notify MODISclub if Provider/Customer determines that Provider/Customer is unwilling to comply or cannot comply with or authorize or enable MODISclub to comply with such Carrier's then-current requirements. Provider/Customer acknowledges that such noncompliance may result in MODISclub suspension of its performance of the Services under this Agreement with respect to one or more Carriers or Content.


2. Message Blocking. Provider/Customer acknowledges that Carriers reserve the right to investigate any Subscriber complaints alleging a violation by MODISclub or its content providers (such as the Provider/Customer) of a Carrier agreement or a violation of requirements imposed by Carriers on MODISclub and/or its content providers. Provider/Customer acknowledges that if a Carrier reasonably believes that MODISclub has violated such requirements, Carrier may refuse to transmit Messages and may suspend or remove MODISclub's access to the Carrier network. If Carriers notify MODISclub of any alleged violation, and MODISclub does not promptly remedy such violation (for example, by denying access to a Subscriber sending inappropriate messages to other Subscribers), the applicable Carrier may also terminate its agreement concerning access of the MODISclub Service to such Carriers network. Provider/Customer further acknowledges that if a Carrier receives a complaint from a Subscriber or a Governmental Body ("Outside Complaint") claiming that any Messages or Content are unlawful, obscene, racially or ethnically offensive or depict sexually explicit materials or infringe on the intellectual property rights of others, the Carrier may notify MODISclub in writing of such Outside Complaint and, in addition, may suspend such Carrier�s connection with MODISclub until such time as the complaint is remedied or otherwise resolved. MODISclub has agreed to remedy any such complaints as promptly as is commercially reasonable. Provider/Customer acknowledges that such remedies may include without limitation removing the recipient of mobile-terminated messages from various participant lists or blocking certain access to the Service. Provider/Customer acknowledges that the obligations described in this Section may prevent MODISclub from performing under this Agreement with respect to such Carriers.


3. Damage to Carrier Property. Provider/Customer will not use or assist others to use Carrier communications services (or any equipment or network connections used with such services) in any way that damages Carrier property or interferes with or disrupts a Carrier network or subscribers.


4. Privacy. Provider/Customer acknowledges that Carriers cannot guarantee the privacy of Messages, and accordingly Provider/Customer agrees that neither MODISclub nor the Carriers will be liable to Provider/Customer or any other party for any lack of privacy or security experienced when using the Service. Provider/Customer also acknowledges that to the extent permitted by law, Carriers have the right to intercept and disclose any transmissions over their facilities in order to protect their rights or property, including without limitation, to protect the efficient operation of their networks or to comply with governmental authorities.


5. Carrier Charges. Provider/Customer acknowledges that for any Message originated by a Carrier Subscriber and transmitted to MODISclub or another Carrier Subscriber, the Carrier Subscriber will be charged at the text messaging rate reflected in their rate plan.


6. No Liability for Carrier Limitations. Provider/Customer acknowledges and agrees that, with respect to Carrier communications services: (a) one hundred percent of the Messages or Content may not be delivered; and (b) neither MODISclub nor any Carrier will be liable to Provider/Customer for any Messages or Content deleted or not delivered, regardless of the reason for deletion or non-delivery including, without limitation, message processing or transmission errors. Neither MODISclub nor any Carrier makes any representations or warranties regarding the quality, reliability, timeliness or security of the carrier communications services or that they will be error-free, uninterrupted, free from unauthorized access or that all messages will be delivered.

Subscriber Services

1. Provider/Customer will be responsible for providing all support services for Subscribers. Provider/Customer agrees that it will prominently provide contact information (at a minimum an e-mail address) for Provider/Customer's Provider/Customer service (i) at the same time and location (ie on the same web page or in the same message) as Subscribers register for the Service or otherwise opt-in to receiving Provider/Customer Content, and (ii) at a location easily accessible to a Subscriber to allow the Subscriber to access the contact information after the Subscriber has registered for the Provider/Customer Service or opted in to receiving Provider/Customer Content. If a Subscriber contacts MODISclub in relation to the Provider/Customer Services, MODISclub shall redirect or transfer such Subscriber to the support facilities of Provider/Customer, or, if such a transfer is not reasonably practicable for any reason (including, without limitation, by reason of any unwillingness by the Subscriber to be redirected to the Provider/Customer), then MODISclub may itself provide an initial response to the Subscriber's query or complaint.


2. Where MODISclub receives more than 50 such contacts from Subscribers in any calendar month, then unless (a) the proximate cause of the Subscriber making such contact is a breach of this Agreement, or a failure of the Services to perform in accordance with the Service Specifications, for which MODISclub is responsible, or (b) the Subscriber's requirement to make contact with MODISclub results either from (i) a failure on the part of MODISclub to submit to the relevant Carrier a Provider/Customer Care Form previously provided by the Provider/Customer containing the Provider/Customer's relevant contact information, or (ii) a failure of the relevant Carrier to provide that contact information to the Subscriber, then MODISclub shall have the right to charge the Provider/Customer the sum of $4.00 in respect of each individual telephone or other contact made by a Subscriber with MODISclub.

Suspension of Services

1. MODISclub is entitled to terminate this Agreement;
2. MODISclub is obliged or advised to comply with an order, instruction, directive or request of a Governmental requires such suspension, in MODISclub's sole discretion;
3. MODISclub has reason to believe that Provider/Customer is in breach of any of its obligations under this Agreement;
4. The services of one or more of the Carriers upon which the provision of Services is dependent suspends its those services to MODISclub; or Any payment due to MODISclub hereunder is outstanding more than thirty (30) days after the due date for payment.

Use of Information Submitted

No Warranty & Liability Limit

Disputes

Right to Terminate

1. One or more of the Carriers upon which the provision of the Services hereunder is dependent terminates its provision of services to MODISclub; or
2. Any modification to MODISclub's existing Carrier contracts, to the Mobile Marketing Association Code of Conduct, or any Change in Law makes the provision of the Services illegal or contrary to a law, regulation, or the Mobile Marketing Association Code of Conduct, or, prohibitively expensive for MODISclub, in MODISclub's sole discretion; or
3. 50% or more of the voting stock of Provider/Customer or substantially all of Provider/Customer's assets is acquired by an MODISclub competitor.

Warranties

1. Mutual Warranty. Each party hereby represents and warrants that it (i) has the full power, ownership interests and the right to enter into this Agreement and to grant the rights and licenses contemplated by this Agreement, without the need for any consents, approvals or immunities not yet granted and without any conflict with, breach of or default under its articles of incorporation, bylaws or other charter documents or any contract by which it is bound and (ii) has all required licenses, consents, approvals and permits from any person necessary to perform its obligations under this Agreement.


2. MODISclub Warranty. MODISclub hereby represents and warrants that it shall perform the Services in a good and workmanlike manner. The foregoing shall not be construed as a warranty that the Platform of Services will function without error.


3. Provider/Customer Warranty. Provider/Customer hereby represents and warrants to MODISclub and the Carriers that the Provider/Customer will comply with all applicable consumer protection laws and regulation.


4. Exclusive Remedies. For any breach of the MODISclub Warranty above, Provider/Customer's sole and exclusive remedy and MODISclub's entire liability shall be, at MODISclub's discretion, either: (a) correct the error that caused the breach of warranty; (b) re-perform the Services; or (c) in the event that MODISclub is unable to cure such breach, termination of this Agreement and return of the fees paid for such nonconforming Services.


5. Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ALL MATERIALS, CONTENT, SERVICES, AND DELIVERABLES PROVIDED BY ONE PARTY TO THE OTHER PARTY HEREUNDER ARE PROVIDED �AS IS.� THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRNGEMENT, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.


6. Notwithstanding anything herein to the contrary, MODISclub shall have no responsibility or any liability of any kind for transmission errors in, corruption of, or the security of Provider/Customer's data or Content carried over wireline or wireless telecommunication providers' facilities and networks. MODISclub shall in addition have no responsibility or any liability of any kind for the acts and omissions of Carriers in connection with the Service.


7. MODISclub shall have no liability to Provider/Customer or any other person for or in respect of any Provider/Customer Content, Subscriber information, or instructions supplied by the Provider/Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other act or omission of the Provider/Customer.

Indemnification

1. MODISclub Indemnity. MODISclub shall defend, indemnify and hold harmless Provider/Customer and its officers, stockholders, directors, employees, agents, successors and permitted assigns (separately and collectively, the "Provider/Customer Indemnitee") from and against any action, liability, demands, loss, damages, costs and expenses, including reasonable legal fees (collectively, "Damages"), incurred by or brought against a Provider/Customer Indemnitee relating or arising out a third party claim that the MODISclub Services, as used within the scope of this Agreement, infringes any United States or Canadian patent, trademark, copyright or other intellectual property right or misappropriates a third party trade secret, provided that Provider/Customer: (a) notifies MODISclub in writing immediately of (but in no event more than five (5) business days after) receipt of the claim; (b) grants MODISclub sole control of the defense and settlement of the claim prior to taking any action in response to such claim; and (c) provides MODISclub (at MODISclub's expense) with all assistance, information and authority required by MODISclub for the defense and settlement of the claim.


2. Provider/Customer Indemnity. Provider/Customer shall defend, indemnify and hold harmless MODISclub and its officers, stockholders, directors, employees, agents, successors and permitted assigns (separately and collectively, the "MODISclub Indemnitee") from and against any Damages incurred by or brought against a MODISclub Indemnitee relating to or arising out of (i) the Provider/Customer Content or the Provider/Customer Marks; or (ii) any claims that a Program does not comply with all federal, state, county, local and international laws, ordinances regulations, rules and codes applicable to Provider/Customer and/or the Program including, but not limited to, all U.S. and Canadian contest rules and regulations for mobile, online, text and mail votes, provided that MODISclub: (a) notifies Provider/Customer in writing immediately of (but in no event more than five (5) business days after) receipt of the claim; (b) grants Provider/Customer sole control of the defense and settlement of the claim prior to taking any action in response to such claim; and (c) provides Provider/Customer (at Provider/Customer's expense) with all assistance, information and authority required by Provider/Customer for the defense and settlement of the claim.


3. Exclusions. Notwithstanding the terms of this Section, MODISclub will have no liability for any claim of any kind to the extent it results from: (a) the combination, operation or use with the MODISclub Property or Services of any content, product or services supplied by Provider/Customer to the extent such claim could have been avoided if the products or services were not used in such combination; (b) failure of Provider/Customer to use updates or modifications provided by MODISclub, including those provided to avoid infringement; or (c) compliance by MODISclub with designs, plans or specifications furnished by or on behalf of Provider/Customer.


4. Sole Remedy.The provisions of this Section set forth MODISclub's sole and exclusive obligations, and Provider/Customer's sole and exclusive remedies, with respect to infringement of intellectual property rights of any kind.


5. Limitation of Liability: EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING FROM THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE TYPE OF CLAIM AND EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT FOR AMOUNTS OWED HEREUNDER AND CLAIMS ARISING OUT OF BREACH OF CONFIDENTIALITY OR INDEMNIFICATION PROVISIONS HEREIN, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER OF: $100,000.

General

1. Priority. To the extent of any inconsistency between the terms of this Agreement and any Module or other incorporated document, such as the Campaign Brief, if any, the terms of the incorporated document shall prevail.


2. Technical Terms.Each word and abbreviation which has a technical or trade meaning is used in this Agreement in accordance with such recognized meaning.


3. Currency. Unless otherwise stated, all dollar amounts referred to in this Agreement are in Canadian dollars.


4. Remedies Cumulative. Unless expressly stated herein, all rights and remedies of a Party under this Agreement are in addition to the Party's other rights and remedies and are cumulative, not alternative.


5. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of Canada and United States without taking into account its principles on conflicts of law. The Parties irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts located in United States and Canada for any litigation arising under this Agreement. A Party seeking a remedy or relief (including injunctive or other similar equitable relief) shall not be required to post a bond or other security for costs as a foreign plaintiff or defendant, as the case may be, in any jurisdiction or venue in which the mitigation may arise under this Agreement.


6. Notices. All notices, requests, demands, or other communications hereunder shall be in writing, in English, and sent by facsimile transmission, recognized overnight delivery service that provides evidence of receipt or registered or certified mail, postage prepaid, to the other party at its address as set forth on page one herein or any other address as such party may provide to the sending party in writing.


7. No Partnership. Nothing in this Agreement is intended or will be construed as creating a relationship of joint venture, partnership or employment between the Parties hereto and each of the Parties specifically acknowledges and agrees that their relationship is and shall be solely as independent contractors. Neither Party shall hold itself out contrary to the terms of this Agreement, and neither Party shall become liable for the representation, act or omission of the other Party contrary to the provisions hereof.


8. No Waiver. A waiver by either of the Parties of any term or condition of this Agreement in any particular instance shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof whether or not of the same or similar nature. No course of dealings or continuing conduct of either Party shall constitute a waiver of or amendment to any provision hereof. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either of the Parties.


9. Severability. If any provision of this Agreement, or part thereof, is held by a court of competent jurisdiction to be void or unenforceable it shall be deemed to have been severed from this Agreement and the remainder of the provisions of this Agreement shall thereafter continue in full force and effect to the extent permitted by law.


10. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the matters contained herein and supersedes all previous discussions, negotiations, understandings, expectations, representations and agreements between the Parties. There are no additional or collateral representations, warranties, terms, conditions, expectations or agreements between the Parties regarding the subject matter hereof, except those expressly set forth herein.


11. Amendment. The parties expressly agree that that MODISclub from time to time may amend this Agreement by sending a 'carrier alert' to the Provider/Customer to (i) update the list of Carriers; (ii) update Carrier rates and (ii) draw attention to any other updated Carrier terms that may be imposed on the Services. Carrier alerts shall be in writing. Upon receipt of a carrier alert, Provider/Customer may elect to terminate this Agreement within ten (10) business days from the date specified in the carrier alert. Provider/Customer acknowledges that failure to terminate or any continued use of the Services after expiry of the ten business days shall be deemed as the Provider/Customer�s express acceptance of updated terms. Except provided herein, no modification, alteration or amendment of this Agreement shall be valid or binding unless in writing and signed by both Parties.


12. Assignment. Subject to the following sentence, neither Party may assign its rights and obligations under or transfer any of its interest in this Agreement, without the prior consent of the other Party Notwithstanding the foregoing, either Party may assign this Agreement or transfer any of its interest to any affiliate of such Party, to a purchaser of all or substantially all of such Party's assets, to a successor in interest of such Party or as part of a corporate reorganization, consolidation or merger. This Agreement and each of the provisions hereof shall inure to the benefit of and be binding upon the Parties and their respective successors, administrators and permitted assigns.


13. Non-Solicitation. During the term of this Agreement and for a period of one year thereafter, Provider/Customer shall not employ, solicit, or seek to employ any person who is, or was during the previous twelve (12) months, an employee of Company or its subsidiaries or affiliates.

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