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PLEASE READ THIS AGREEMENT CAREFULLY. THIS
SMS USER AGREEMENT ("SMS AGREEMENT") DESCRIBES THE TERMS AND CONDITIONS
UNDER WHICH BIGFOOT COMMUNICATIONS, LTD. ("BIGFOOT") OFFERS YOU (THE
"USER" OR "YOU" OR "YOUR") AN ACCOUNT (THE "ACCOUNT") FOR USE OF THE
BIGFOOT SMS SERVICE (THE "SMS SERVICE")
BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS
AND CONDITIONS SET FORTH BELOW AS WELL AS THE TERMS AND CONDITIONS
PUBLISHED ON THE BIGFOOT SITE AT WWW.BIGFOOT.COM (THE "SITE"). IF
YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY
NOT ACCESS OR USE THE SERVICE. BIGFOOT MAY MODIFY THIS AGREEMENT AT
ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON
POSTING OF THE MODIFIED AGREEMENT AT THE SITE. YOU AGREE TO REVIEW
THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR
CONTINUED ACCESS OR USE OF THE SERVICE SHALL BE DEEMED YOUR CONCLUSIVE
ACCEPTANCE OF THE MODIFIED AGREEMENT.
1. The Service
Bigfoot provides the SMS Service with the capability to send SMS to
mobile phones via the World Wide Web on the Bigfoot system. Bigfoot
may terminate, change, suspend or discontinue the SMS Service, including
the availability of any features of the Site, at any time. Bigfoot
may from time to time provide additional services subject to charges
according to the sole discretion of Bigfoot.
2. MEMBER ACCOUNT
(A) Accounts are not available to minors or any person who cannot
legally agree to the terms of this SMS Agreement. By accepting these
terms, you confirm that you are capable of entering into a binding
agreement. You must accurately complete any subscriber information
requested by Bigfoot. The SMS Service is intended to appeal to a broad
audience, and therefore it is the responsibility of the parent or
guardian to determine whether any of the Bigfoot Services are appropriate
for your child. As set forth in the Bigfoot Privacy Policy, Bigfoot
adheres to the requirements of the Children's Online Privacy Protection
Act of 1998 ("COPPA").
(B) To open an account for usage of the SMS Service, the User must
provide true and accurate information as labeled by the Registration
Form and shall labelly update such information to keep it true and
accurate. The User shall choose a user name and a password will be
sent to the email address indicated in his registration form. The
User is entirely responsible for the privacy, confidentiality and
storage of username and password. All website activities that can
be traced to the username and password of the User are deemed as having
performed by User. Bigfoot does not assume any liability for content
of messages sent and is exempt from any claim that may arise from
third parties as a result of message sent. You are fully responsible
for any charges and liabilities incurred through the use of the SMS
Service or Your Account and for any activities conducted through Your
Account. In addition, Bigfoot may temporarily disable access to Your
Account if You report unauthorized use or if usage of the Account
dramatically exceeds normal usage patterns within a short time period.
The User agrees to notify Bigfoot immediately of any unauthorized
use of the account at infosms@bigfoot.com.
3. BILLING AND PAYMENT
You agree to pay all charges that may be required for use of the SMS
Service. All charges will be exclusive of value added tax ("VAT"),
sales or other taxes, except as required by law. Bigfoot reserves
the right to modify its prices, charges or fees, provided that any
changes shall be posted on the Site. You are therefore responsible
for reviewing regularly the Site for information regarding fees and
charges as well as changes to pricing. Continued use of or non-termination
of the SMS service shall be deemed to be acceptance of any posted
changes in the prices for your use of the SMS Service.
To the extent applicable, you agree that Bigfoot may accumulate charges
incurred during your monthly billing cycle and submit them as one
or more aggregate charges during or at the end of each cycle and that
Bigfoot may delay obtaining authorization from your card issuer until
submission of the accumulated charge(s). As a result, you understand
that accumulated charges may appear on your credit or debit card statement.
If you are utilizing the SMS Service under any special promotion,
your debit or credit card will be immediately charged for any applicable
service fees or charges, without further authorization from you and
absent notification from you of your desire to terminate or cancel
your account or the service, upon the expiration of any free trial
period, or shall be charged any applicable additional fees upon expiration
of any promotion.
(A) Fees: User shall pay to Bigfoot a subscription fee according to
the Plan chosen. The SMS account balance is non-refundable and does
not bear interest. All purchases are considered final. The account
is valid for 1 year from date of purchase, and any existing account
balance will be reset to zero without prior notice unless User reloads
the account before the expiration date. If a succeeding prepayment
is made before the 1 year expiration, any unused SMS credits are carried
over to the next period otherwise they are expired. Bigfoot may from
time to time offer limited similar promotions during which no credits
or lesser credits shall apply. The terms and conditions shall remain
in full force and effect. Bigfoot reserves the right to change prices
or institute new charges for access to or use of the SMS Service.
Continued use of the SMS Service or non-termination of User's Account
after changes are posted constitutes User's acceptance of the prices
as modified by the posted changes. User's Account will automatically
expire in the event the Account does not have any more credits. The
Account will be re-activated upon payment for new message credits.
Any message credits purchased must be used up within 1 year from the
date on which it had been purchased.
(B) Non-Bigfoot Fees: Your wireless service provider or pager company
may charge you (i) a fee for the ability to receive text messages,
or a per message fee for the delivery (or attempted delivery) of text
messages to your cellular phone or pager, (ii) airtime or other connection
fees in connection with your downloading of information or messages
from or uploading of information or messages to the SMS Service, and/or
(iii) roaming fees if delivery of a text message occurs outside of
certain geographical areas. You are responsible for paying all such
fees, and for any other hardware, service or other costs You incur
to access Your Account, plus any applicable taxes. Users will be charged
separately for use of the SMS Services in accordance with this Agreement
and the terms set forth on the Site.
(C) Payment: Subscription fees are prepaid and are payable through
credit cards. Bigfoot reserves the right to suspend or terminate Your
use of the SMS Service without notice upon rejection of any credit
card charges, debit card charges or if Your card issuer (or its agent
or affiliate) seeks return of payments previously made to Bigfoot
and as to which Bigfoot believes such payments were proper. In addition,
Bigfoot has the right to seek any fees, damages, expenses or the like
arising from your failure to pay Bigfoot for use of the SMS Service,
including, but not limited to, fees charged to Bigfoot by any credit
card issuer or its agent as a penalty for reversing any payment (i.e.,
a charge back fee) as well as collection fees and expenses, court
costs, and attorney's fees.
(D) Auto-Recharge: If during the sign up process for an SMS account
User indicates acceptance of the Auto Recharge program, User's SMS
Account will automatically be recharged with additional credits in
accordance with the SMS plan User initially signed up for once the
number of credits in the account falls below 50. The User's credit
card or debit card will be charged the subscription fee applicable
to such plan.
You must labelly notify Bigfoot in the event of any changes to your
account or billing information or in the event your charge card or
debit card is canceled for any reason.
PLEASE BE ADVISED:
(a) You expressly agree that all charges for payment of the SMS Service
are final and non-refundable. You are responsible for all charges
resulting from your use of the SMS Service. Once you sign up for the
SMS and provide a form of payment, Bigfoot will not provide you a
refund for any charge made on your credit card, debit card or any
payments.
(b) If you believe that you have been improperly charged for any Service,
you must notify Bigfoot within 5 days of any invoice or credit card
statement, provide Bigfoot any information necessary to review the
claim, and Bigfoot will attempt to resolve the claim in a timely manner.
BIGFOOT DOES NOT CONDONE FRAUD: In the event of any unauthorized use
of your account or unauthorized credit card charges or debit card
charges, you must notify Bigfoot, and you will be responsible for
such unauthorized use or charges until you notify Bigfoot. You must
also adopt any steps necessary to prevent any further unauthorized
use of your account or unauthorized charges.
Upon expiration of the subscription for the SMS Service, Bigfoot shall
automatically renew your subscription and charge your credit or debit
card. If you do not wish to renew, you must notify Bigfoot at infosms@bigfoot.com
no less than 5 days prior to the expiration of your subscription otherwise
you shall be responsible for all fees and charges incurred for such
renewal.
Bigfoot shall have the right to terminate your account immediately,
and you shall have no right to a refund of any service fees or charges,
in the event you in any manner violate these Terms and Conditions
or the Privacy Policy or any other applicable Bigfoot policy, rule
or conditions of use. While you may choose to terminate your account
voluntarily at any time, you will not have a right to any refund of
any service fees or charges.
4. USE OF ACCOUNT
(A) You and other users of Your Account must comply with all applicable
laws and regulations in using the SMS Service. You may not use the
SMS Service for any of the following purposes or in any of the following
manners: (i) to impersonate or harass any other person; (ii) to send
any information that is or the disclosure of which would libelous,
abusive, threatening, false, fraudulent, misleading, or obscene; that
misappropriates or infringes any person's proprietary right (including
posting any links or URLs that you do not have the right to post or
disclose); (iii) that violates any person's rights of privacy or publicity,
(iv) to send messages that contain any sexual, racist or discriminatory
content constituting harassment of any individual or organization,
(v) that constitutes or that violates any law, statute, ordinance
or regulation (including applicable export control, consumer protection,
unfair competition, anti-discrimination or false advertising laws,
and without limiting the foregoing you specifically agree to comply
with all applicable laws regarding the transmission of the technical
data exported from the United States or the country in which you reside;
(vi) to intercept any communications not intended for you; (vii) to
release, post, distribute or execute any viruses or other harmful
computer code; or (viii) to upload, post, email, or otherwise transmit
any content that infringes any patent, trademark, trade secret, copyright,
or other proprietary rights of any party or (ix) to engage in "spamming,"
transmission of "junk mail" or "chain letters" or unsolicited mass
distribution of e-mail or any similar conduct.
(B) Bigfoot does not control the data, information or other postings
provided by other users that are made available through the SMS Service.
You may find other users' information to be offensive, harmful, inaccurate,
or deceptive or to otherwise violate this Agreement. Please use caution
and common sense when using the SMS Service or relying on any data,
information or other postings provided through the SMS Service.
(C) At our option and without further notice, we may use anti-spam
technologies, such as automatic word and spam filters, that may terminate
messages You send without delivering them or prevent messages from
reaching You. User may not use the SMS Service in a way that imposes
an unreasonable or disproportionately large load (as determined by
us in light of the purposes for which you are using the SMS Service
and the load imposed by other users generally) on our infrastructure
or that otherwise would harm or breach our arrangements with any of
our service providers.
(D) You acknowledge that Bigfoot may establish general practices and
limits concerning use of the SMS Service, including without limitation
the maximum number of days that messages or other uploaded content
will be retained by the SMS Service, the maximum number of messages
that may be sent from or received by an account on the SMS Service,
the maximum size of any message that may be sent from or received
by an account on the SMS Service, the maximum disk space that will
be allotted on the SMS servers on Your behalf, and the maximum number
of times (and the maximum duration for which) You may access the SMS
Service in a given period of time. You agree that Bigfoot 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 SMS Service. You acknowledge that Bigfoot reserves the right to
log off accounts that are inactive for an extended period of time.
You further acknowledge that Bigfoot reserves the right to change
these general practices and limits at any time, in its sole discretion,
with or without notice.
(E) After a successful registration, you may receive advertisements,
promotions or similar messages on your mobile phone, personal computer
or other similar device from Bigfoot. Only paid subscribers can opt
out from said marketing promotions. A free SMS user may opt out from
receiving similar marketing promotions, however, Bigfoot reserves
the right to terminate Your use of the SMS service.To discontinue
receiving from such promotional service, email us at infosms@bigfoot.com
(F) User agrees that Bigfoot may terminate User's Account and use
of the SMS Service (and other Bigfoot services) if Bigfoot believes
User has in any manner (i) violated the terms and conditions of this
Section 4, (ii) violated the SMS Service Terms and Conditions or the
Terms and Conditions of the Site or any other service offered by Bigfoot,
(iii) violated this Agreement, (iv) provided Bigfoot false, inaccurate
or incomplete not current information, or (v) violates any applicable
law, regulation or rule of any state or country.
5. PRIVACY
Bigfoot recognizes that our users have legitimate concerns about privacy.
By accepting this Agreement, you expressly consent to uses and disclosures
of your personal information as enumerated in Bigfoot's then-current
privacy policies, which are incorporated herein by reference. Our
current privacy policy is available at Bigfoot Privacy Policy. User
will own any personal user information or other registration information
that User has given us as part of the registration process (your "Registration
Information"). With respect to User's Registration Information, User
agrees to grant Bigfoot a non-exclusive, worldwide, perpetual, irrevocable,
royalty-free, sublicensable (through multiple tiers) right to exercise
the copyright and publicity rights you have in your Registration Information
and any information You provide to Bigfoot or other users within the
publicly accessible areas of the SMS Service or the Site, in any media
now known or not currently known. Bigfoot will only use your Registration
Information in accordance with our Privacy Policy.
6. CONTENT
You understand that Bigfoot has no editorial control over any third
party content and that Bigfoot does not guarantee the accuracy or
completeness of any third party content. You agree that Bigfoot will
have no liability to You, or anyone else who uses Your Account, with
regard to any third party content. Under no circumstances will Bigfoot
be liable in any way for any Content, including but not limited to,
any errors or omissions in any Content, or for any loss or damage
of any kind incurred as a result of the user of any Content posted,
emailed, or otherwise transmitted via the Service. You also understand
that the third party content is the proprietary material of Bigfoot
and/or the third party that supplies it, is protected by copyright
and other applicable laws, and may not be reproduced, published, broadcasted,
rewritten, or redistributed without the written permission of the
third party that supplied it, except to the extent allowed under the
"fair use" provisions of the U. S. copyright laws or comparable provisions
of foreign laws.
7. MODIFICATION TO THE SERVICE
(A) User acknowledges that Bigfoot is dependent on various telecommunications
networks and institutions for the delivery of its messages and that
Bigfoot may adjust its prices and offering, should the prices be adjusted
due to reasons that are not in Bigfoot's control. User will be notified
of any such changes through publication on the Site or through e-mail
describing the change.
(B) You understand that Bigfoot may, in its discretion, from time
to time change, add, or remove certain features of the SMS Service
or change the terms of this Agreement by informing you through publication
on the Bigfoot website or through an email describing the changes.
If you are dissatisfied with any such changes to the SMS Service or
this Agreement, you may immediately cancel your Account as provided
in Section 11 of this Agreement. In addition, Bigfoot reserves the
right to discontinue the SMS Service altogether for all users at any
time in its discretion.
8. DISCLAIMERS AND WARRANTIES
YOU UNDERSTAND AND AGREE THAT THE SMS SERVICE IS PROVIDED ON AN "AS
IS" AND "AS AVAILABLE" BASIS. BIGFOOT AND ITS SUPPLIERS MAKE NO WARRANTY
THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT USE OF THE SMS
SERVICE OR THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
NOR DO BIGFOOT OR ITS SUPPLIERS MAKE ANY WARRANTY AS TO THE RESULTS
THAT MAY BE OBTAINED FROM USE OF THE SMS SERVICE OR THE ACCURACY,
RELIABILITY OR TIMELINESS OF ANY INFORMATION OBTAINED THROUGH THE
SMS SERVICE (INCLUDING THIRD PARTY CONTENT), OR THAT ANY DEFECTS IN
THE SMS SERVICE WILL BE CORRECTED. SIMPLY PUT, BIGFOOT MAKES NO REPRESENTATION
OF DELIVERY, RECEIPT OR TERMINATION OF AN SMS MESSAGE. USER ALSO ACKNOWLEDGES
THAT, DEPENDING ON THE RECIPIENT'S MOBILE SERVICE PROVIDER, IT MAY
NOT BE POSSIBLE TO TRANSMIT THE SMS MESSAGE TO THE RECIPIENT SUCCESSFULLY,
PARTICULARLY IF THE PROVIDER DOES NOT SUPPORT SMS DELIVERY AT ALL.
BIGFOOT AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER
EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SMS SERVICE, INCLUDING
ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL
OR DATA OBTAINED THROUGH USE OF THE SMS SERVICE IS AT YOUR OWN DISCRETION
AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR RESULTS OBTAINED
USING ANY SUCH MATERIAL OR DATA OR ANY RESULTING DAMAGE TO YOUR COMPUTER
SYSTEM OR LOSS OF DATA. SOME STATES OR JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, THE ABOVE EXCLUSIONS
MAY NOT APPLY TO YOU TO THAT EXTENT, AND NOTHING IN THIS SECTION SHOULD
BE CONSTRUED AS EXCLUDING OR LIMITING ANY WARRANTY BEYOND WHAT IS
PERMISSIBLE UNDER APPLICABLE LAW.
9. LIMITATIONS ON LIABILITY
(A) BIGFOOT AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT,
INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES
OF ANY NATURE, INCLUDING BUT NOT LIMITED TO, BUSINESS INTERRUPTION,
LOSS OF PROFITS, BUSINESS INTERRUPTION LOSS OF DATA, INJURY TO GOODWILL,
USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BIGFOOT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM USE OF THE SMS
SERVICE BY YOU, OR ANYONE USING YOUR ACCOUNT, INCLUDING, BUT NOT LIMITED
TO: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) UNAUTHORIZED
ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) STATEMENTS
OR CONDUCT OF ANY THIRD PARTY ON THE SMS SERVICE OR THE SITE; OR (iv)
ANY DAMAGES OR LOSS OF ANY NATURE ARISING FROM OR RELATING TO YOUR
USE OF THE SMS SERVICE OR USE OF THE SMS SERVICE THROUGH YOUR ACCOUNT
BY ANYONE ELSE.
(B) BIGFOOT SHALL IN NO EVENT BE LIABLE TO THE USER OR ANYONE ELSE
FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE
CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS OF
THE SMS SERVICE GENERALLY, THE SITE, ANY OTHER BIGFOOT SERVICE AND
ANY ASPECT ANCILLARY THERETO;
(C) BIGFOOT SHALL IN NO EVENT BE RESPONSIBLE FOR THE SECURITY OF THE
DATA TRANSMISSIONS BETWEEN BIGFOOT AND THE USER, INCLUDING BUT NOT
LIMITED TO THE TRANSMISSION OF THE PAYMENT INFORMATION SUCH AS CREDIT
CARD NUMBERS. BIGFOOT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND,
WHETHER EXPRESSED, OR IMPLIED, FOR THE SECURITY OF THE DATA TRANSMISSION
BETWEEN BIGFOOT AND THE USER.
(D) BIGFOOT'S TOTAL CUMULATIVE LIABILITY TO YOU AND ANYONE WHO USES
THE SMS SERVICE THROUGH YOUR ACCOUNT, FOR ANY AND ALL CLAIMS UNDER
ANY THEORY OF LAW (INCLUDING NEGLIGENCE), WILL NOT EXCEED THE AGGREGATE
AMOUNT YOU PAID TO BIGFOOT IN THE PRECEDING TWELVE MONTHS. SOME STATES
OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN
TYPES OF LIABILITY. THEREFORE, THE ABOVE LIMITATIONS OF LIABILITY
MAY NOT APPLY TO YOU TO THAT EXTENT, AND NOTHING IN THIS SECTION SHOULD
BE CONSTRUED AS EXCLUDING OR LIMITING BIGFOOT'S LIABILITY BEYOND WHAT
IS PERMISSIBLE UNDER APPLICABLE LAW.
10. RELEASE AND INDEMNIFICATION
(A) In the event that you have a dispute with one or more users, you
release Bigfoot (and our officers, directors, agents, subsidiaries
and employees) from claims, demands and damages (actual and consequential)
of every kind and nature, known and unknown, suspected and unsuspected,
disclosed and undisclosed, arising out of or in any way connected
with such disputes and you waive any rights under any state or local
law limiting the extent of such release.
(B) User agrees to defend, indemnify and hold harmless Bigfoot and
its subsidiaries, affiliates, officers, directors, agents, attorneys
and employees from and against any claim or demand, including reasonable
attorneys' fees, made by any third party due to or arising out of
User's breach of this Agreement, User violation of any law or the
rights of a third party, the content User submits, posts or transmits
through the SMS Service, or Your use of the SMS Service.
11. TERMINATION OF ACCOUNT
You may terminate Your Account, at any time and for any reason or
no reason, by contacting Bigfoot's customer service at infosms@bigfoot.com.
Notifying Bigfoot in any other way of your desire to terminate your
Account may result in delays in processing your request. Bigfoot,
in its sole discretion, may immediately terminate or suspend Your
password, account (or any part thereof) or use of the SMS Service,
for any reason, including, without limitation, for lack of use or
if Bigfoot believes that You have violated, acted inconsistently with
this Agreement or if the charges to Your credit card or debit card
for the fees are refused for any reason. Bigfoot reserves the right
to terminate Your Account and this Agreement for any other reason
if Bigfoot gives You at least ten (10) days advance notice. Upon any
such termination of Your Account, You will remain obligated to pay
all outstanding fees and charges relating to Your use of the SMS Service
before termination. You agree that any termination of Your access
to the Service under any provision of this Agreement may be effected
without prior notice, and acknowledge and agree that Bigfoot may immediately
deactivate or delete Your account and all related information and
files in Your account and/or bar any further access to such files
or the Service. Further, you agree that Bigfoot shall not be liable
to You or any third-party for any termination of Your Account.
12. NO RESALE OF SERVICE
User agrees not to reproduce, duplicate, copy, sell, resell or exploit
for any commercial purposes, any portion of the SMS Service, use of
the SMS Service, or access to the SMS Service.
13. LINKS
The SMS Service may provide, or third parties may provide, links to
other World Wide Web sites or resources. User agrees that Bigfoot
is not responsible for the availability of such external sites or
resources, and does not endorse and is not responsible or liable for
any content, advertising, products, or other materials on or available
from such sites or resources. You further acknowledge and agree that
Bigfoot shall not be responsible or liable, directly or indirectly,
for any damage or loss caused or alleged to be caused by or in connection
with use of or reliance on any such content, goods or services available
on or through any such site or resource.
14. INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that the SMS Service contains proprietary
and confidential information that is protected by applicable intellectual
property and other laws. You further acknowledge and agree that as
a result of use of the SMS Service, you may have access to or receive
information or content protected by copyrights, trademarks, service
marks, patents or other proprietary rights and laws ("intellectual
property rights"). Except as expressly authorized, You agree not to
violate the intellectual property rights of Bigfoot or any third party.
15. GOVERNING LAW; ARBITRATION
The laws of Hong Kong, Special Administrative Region, excluding its
conflicts-of-law rules, shall govern all matters relating to this
Agreement and use of the SMS Services. The United Nations Convention
on contracts for the international sale of goods is expressly disclaimed.
Any controversy or dispute arising out of this Agreement, the interpretation
of any provision hereof, or the action or inaction of any party hereto
shall be submitted to arbitration in Hong Kong, SAR, in accordance
with the International Arbitration Rules of the American Arbitration
Association (the "AAA International Rules") then in effect, conducted
by one arbitrator either mutually agreed upon by the parties to this
Agreement or chosen in accordance with the AAA International Rules.
Each party shall have no longer than three (3) days to present its
position. Either party may apply to the arbitrator seeking injunctive
relief until the arbitration award is rendered or the controversy
is resolved. Either party also may, without waiving any remedy under
this Agreement, seek any interim or provisional relief that is necessary
to protect the rights or property of that party pending the establishment
of the arbitral tribunal (or pending the arbitral tribunal's determination
of the merits of the controversy) and for the purposes of seeking
such interim relief User shall consent to the exclusive jurisdiction
of the courts of Hong Kong, SAR. The successful party to the arbitration
or any litigation relating to this Agreement or the SMS Services shall
be entitled to an award for reasonable costs and attorney's fees,
as determined by the arbitrators. Any award or decision obtained from
any such arbitration proceeding shall be final and binding on the
parties, and judgment upon any award thus obtained may be entered
in any court having jurisdiction thereof. The parties agree that the
arbitrator shall have the power to award damages and injunctive relief.
16. MISCELLANEOUS
If any provision of this Agreement is invalid or unenforceable under
applicable law, such provision will be deemed modified to the extent
necessary to render such provision valid and enforceable and the other
provisions of this Agreement will remain in full force and effect.
This document and the pages referred to herein represent the entire
agreement governing use of the SMS Service and supersede any prior
or contemporaneous written or oral statements by Bigfoot or its representatives
or resellers. The failure of Bigfoot to exercise or enforce any right
or provision of this Agreement shall not constitute a waiver of such
right or provision. The section titles in this Agreement are for convenience
only and have no legal or contractual effect. This Agreement may not
be amended except as provided in Section 7.
Bigfoot may assign this Agreement in accordance with the sale of all
or substantially all of its stock or membership interest or all or
substantially all of its assets to a third party.
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