Terms of Use

Effective Date: April 25, 2017

This Terms of Use (“TOU”) is a binding contract between you, an individual user (“you”) and Attentive Mobile, Inc. (“Attentive,” “we,” “us” or “our”), governing your use of the website located at www.attentivemobile.com and any related subdomains (“Site”).  BY ACCESSING OR USING THE SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS TOU.  IF YOU DO NOT AGREE TO THIS TOU, THEN YOU MUST NOT ACCESS OR USE THE SITE.

Material Terms:  As provided in greater detail in this TOU (and without limiting the express language of this TOU), you acknowledge the following:

  • you consent to the collection, use, and disclosure of your information in accordance with the Attentive Privacy Policy www.attentivemobile.com/privacy (“Privacy Policy”);

  • the Site is provided “as is” without warranties of any kind and Attentive’s liability to you is limited; and

  • we will resolve disputes arising under this TOU through binding arbitration.  By accepting this TOU, as provided in greater detail in Section 9 of this TOU, you and Attentive are each waiving the right to a trial by jury or to participate in a class action.

1.   General Terms and Conditions.

a.    Description. The Site provides you with information about our products and services.  If you have an Account (defined below), then you may gain access to a portion of the Site that will allow you to send text or electronic mail messages that may include marketing promotions, surveys, conversations, and other materials (collectively, “Messages”) to Subscribers (defined below).  If you have an Account, you also may gain access to certain tools to collect the phone number, email address or other contact information of Subscribers.

b.    Changes to this TOU.  You understand and agree that Attentive may change this TOU at any time without prior notice. Attentive will endeavor to provide you with prior notice of any material changes.  You may read a current, effective copy of this TOU at any time by selecting the appropriate link on the Site.  The revised TOU will become effective at the time of posting on the Site, and your use of the Site after such time will constitute your acceptance of the revised TOU.  If any change to this TOU is not acceptable to you, then your sole remedy is to stop using the Site.  Notwithstanding the preceding sentences of this Section 1.b, no revisions to this TOU will apply to any dispute between you and Attentive that arose prior to the effective date of those revisions.

c.     Consideration.  Attentive provides you with access to the public-facing portions of the Site for free. In return for enjoying this free access, you acknowledge and agree that Attentive may generate revenues, increase goodwill or otherwise increase the value of Attentive from your use of the public-facing portions of the Site, and you will have no right to share in any such revenues, goodwill or value whatsoever.

d.     Privacy Policy.  Your use of the Site is also subject to Attentive’s Privacy Policy, which is incorporated into this TOU by reference.

e.     Jurisdictional Issues.  The Site is controlled and operated by Attentive from its offices in the State of New York.  Attentive makes no representation that materials on the Site are appropriate, lawful or available for use in any locations other than the United States of America.  Those who choose to access or use the Site from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

f.     Eligibility.  THE SITE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE BY ATTENTIVE.  IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SITE AT ANY TIME OR IN ANY MANNER.  Furthermore, by using the Site, you affirm that either you are at least 18 years of age or have been authorized to use the Site by your parent or legal guardian who is at least 18 years of age.

2.   Accounts and Messaging

a.     Log-In Credentials.  While you may always browse the public-facing portions of the Site without registering with us, in order to enjoy the full benefits of the Site you must register an account with us (“Account”).

b.     Account Security.  You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your log-in credentials.  You agree to notify Attentive immediately at contact@attentivemobile.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account.  Attentive will not be liable for any loss or damage arising from unauthorized use of your log-in credentials prior to you notifying Attentive of such unauthorized use or loss of your log-in credentials.  Separate log-in credentials may be required to access External Sites (defined in Section 7 below).

c.     Accuracy of Information.  When creating an Account, you will provide true, accurate, current, and complete information as Attentive requests.  You will update the information about yourself promptly, and as necessary, to keep it current and accurate.  We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this TOU, cause damage to or impair the Site, infringe or violate any third party rights, damage or bring into disrepute the reputation of Attentive, or violate any applicable laws or regulations.  If messages sent to the e-mail address you provide are returned as undeliverable, then Attentive may terminate your Account immediately without notice to you and without any liability to you or any third party.

d.     Sending Messages.  You represent, warrant, and covenant that when using the Site to send Messages, you will (i) comply with all applicable federal, state, and local laws, regulations, and rules governing such Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, and state and local equivalents; (ii) comply with all applicable industry best practices; (iii) send Messages only to individuals from whom your Organization has obtained the legally required consent to do so (“Subscribers”); and (iii) promptly notify Attentive of all requests made by Subscribers to stop receiving Messages from Attentive or your Organization.  As used in this Section, “Organization” means any company, entity or organization on whose behalf you access and use the Site to send Messages to Subscribers.

3.   Intellectual Property Rights.

a.     License.  Subject to your complete and ongoing compliance with this TOU, Attentive hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Site in strict compliance with the provisions of this TOU.

b.     Content.  Except for User Content (defined in Section 4.a below), the content that Attentive provides to you on the Site, including, without limitation, any text, graphics, software, interactive features, information or other materials, is protected by copyright or other intellectual property rights and owned by Attentive or its licensors (collectively, the “Attentive Content”).  Moreover, Attentive or its licensors own all design rights, database and compilation rights and other intellectual property rights in and to the Site, in each case whether registered or unregistered, and any related goodwill.

c.    Marks.  The Attentive trademarks, service marks, and logos (collectively, the “Attentive Trademarks”) used and displayed on the Site are Attentive’s registered and/or unregistered trademarks or service marks.  Any other product and service names located on the Site may be trademarks or service marks owned by third parties (collectively with the Attentive Trademarks, the “Trademarks”).  Except as otherwise permitted by law, you may not use the Trademarks to disparage Attentive or the applicable third party, Attentive’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks.  You may not use any Trademarks as part of a link to or from any website without Attentive’s prior express written consent.  All goodwill generated from the use of any Attentive Trademark will inure solely to Attentive’s benefit.

d.     Restrictions.  Attentive hereby reserves all rights not expressly granted to you in this Section 3.  Accordingly, nothing in this TOU or on the Site will be construed as granting to you, by implication, estoppel, or otherwise, any additional license rights in and to the Site or any Attentive Content or Trademarks located or displayed on or within the Site.

4.   User Content.

a.     Definition.  “User Content” means any content that you post, submit or otherwise transmit (collectively, “Post”) to the Site, including, without limitation, text, photographs and/or any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws.  For clarity, User Content excludes Attentive Content and Feedback (defined below).

b.     Your Rights to User Content.  YOU RETAIN COPYRIGHT AND ANY OTHER PROPRIETARY RIGHTS THAT YOU MAY HOLD IN ANY USER CONTENT THAT YOU POST TO THE SITE SUBJECT TO THE RIGHTS YOU GRANT IN THIS TOU.

c.     License to Attentive.  If you Post User Content to the Site, then you hereby grant to Attentive a worldwide, non-exclusive, transferable, and royalty-free right and license to host, store, transmit, reproduce, distribute, create derivative works from, publicly perform and display and otherwise use and exploit your User Content, in any media now known or later created, to provide, improve, advertise, promote and market the Site and Attentive’s business.

d.     Representations and Warranties.  You are solely responsible for your User Content and the consequences of Posting User Content on the Site. By Posting User Content on the Site, you affirm, represent, and warrant that: (i) you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use, and to authorize Attentive to use, your User Content as necessary to exercise the licenses granted by you in this Section; and (ii) your User Content, and the use of your User Content as contemplated by this TOU, does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) cause Attentive to violate any law or regulation.

e.     Disclaimer.  We are under no obligation to edit or control User Content that you or other users Post on the Site, and will not be in any way responsible or liable for User Content. Attentive may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this TOU or is otherwise objectionable, such as, without limitation, User Content that Attentive determines is or could be interpreted to be infringing, defamatory or otherwise unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promoting discrimination, bigotry or racism (collectively, “Objectionable Content”).  You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Attentive with respect to User Content.  We expressly disclaim any and all liability in connection with User Content.

5.   Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.

a.     Respect of Third Party Rights.  Attentive respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same.  Infringing activity will not be tolerated on the Site.

b.     Repeat Infringer Policy.  Attentive’s intellectual property policy is to (i) remove or disable access to material that Attentive believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the Site; and (ii) remove any User Content Posted to the Site by “repeat infringers.”  Attentive considers a “repeat infringer” to be any User that has uploaded User Content to the Site and for whom Attentive has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content.  Attentive has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon Attentive’s own determination.

c.     Procedure for Reporting Claimed Infringement.  If you believe that any content made available on or through the Site has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below.  Your Notification of Claimed Infringement framay be shared by Attentive with the User alleged to have infringed a right you own or control, and you hereby consent to Attentive making such disclosure.  Your communication must include substantially the following:

i.      a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;

ii.     identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;

iii.    identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Attentive to locate the material;

iv.    information reasonably sufficient to permit Attentive to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;

v.     a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

vi.     a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.

d.     Designated Agent Contact Information.  Attentive’s designated agent for receipt of Notifications of Claimed Infringement (“Designated Agent”) can be contacted at:

Via E-mail:     copyright@attentivemobile.com

Via U.S. Mail:    156 Fifth Avenue, Suite 303, New York, New York 10010

e.     Counter Notification.  If you receive a notification from Attentive that material you Posted on the Site has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Attentive with what is called a “Counter Notification.”  To be effective, a Counter Notification must be in writing, provided to Attentive’s Designated Agent through one of the methods identified in Section 5.d above and include substantially the following information:

i.      your physical or electronic signature;

ii.     identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

iii.     a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

iv.     your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Attentive may be found, and you will accept service of process from the person who provided notification in accordance with Section 5.d above or an agent of such person.

You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.

f.     Reposting of Content Subject to a Counter Notification.  If you submit a Counter Notification to Attentive in response to a Notification of Claimed Infringement, then Attentive will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Attentive will replace the removed User Content or cease disabling access to it in 10 business days, and Attentive will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Attentive’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Attentive’s system or network.

g.     False Notifications of Claimed Infringement or Counter Notifications.  The Copyright Act provides that:

[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Attentive] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

17 U.S.C. § 512(f).

Attentive reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.

6.   Restrictions on Use of the Site.

a.     Without limiting any other terms of this TOU, when using the Site, you agree not to (and not to attempt to):

i.       decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Site;

ii.      use any device, software or routine to interfere or attempt to interfere with the proper working of the Site, or any activity conducted on the Site;

iii.     delete or alter any material Attentive makes available on the Site;

iv.     frame or link to any of the materials or information available on the Site;

v.      use or exploit any Trademarks or Attentive Content in any manner that is not expressly authorized by this TOU;

vi.     access, tamper with, or use non-public areas of the Site, Attentive’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Attentive’s providers;

vii.     provide any false personal information to Attentive;

viii.    create a false identity or impersonate another person or entity in any way;

ix.     restrict, discourage, or inhibit any person from using the Site;

x.      use the Site, without Attentive’s prior express written consent, for any commercial or unauthorized purpose;

xi.     gain unauthorized access to the Site or personally identifiable information, or to other computers or websites connected or linked to the Site;

xii.    Post any Objectionable Content;

xiii.   Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Site or communications equipment and computers connected to the Site;

xiv.   violate any federal, state, or local laws or regulations or the terms of this TOU; or

xv.    assist or permit any person in engaging in any of the activities described above.

7.   External Sites.  The Site may contain links to other websites or other online properties that are not owned or controlled by Attentive (collectively, “External Sites”).  The content of External Sites is not developed or provided by Attentive.  Attentive is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on External Sites.  You should contact the site administrator or Webmaster for External Sites if you have any concerns regarding content located on those External Sites.  You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs.  If you decide to access any External Sites, then you do so at your own risk.  Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Site in connection with your use of External Sites.

8.   Feedback.  While our own staff works to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the User community.  If you choose to contribute by sending Attentive or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided.  Accordingly, by sending Feedback to Attentive, you agree that:

a.     Attentive has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;

b.     Feedback is provided on a non-confidential basis, and Attentive is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and

c.     You irrevocably grant Attentive perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge, and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.

9.   Dispute Resolution.

a.     General.  In the interest of resolving disputes between you and Attentive in the most expedient and cost effective manner, you and Attentive agree that any dispute arising out of or in any way related to this TOU or your use of the Site will be resolved by binding arbitration.  Arbitration is less formal than a lawsuit in court.  Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts.  Arbitrators can award the same damages and relief that a court can award.  This agreement to arbitrate disputes includes all claims arising out of or in any way related to this TOU or your use of the Site, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this TOU.  YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS TOU, YOU AND ATTENTIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.

b.     Exceptions.  Notwithstanding Section 9.a above, nothing in this TOU will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.

c.     Arbitrator.  Any arbitration between you and Attentive will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this TOU, and will be administered by the AAA.  The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Attentive.  The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

d.     Notice; Process.  A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”).  Attentive’s address for Notice is: 156 Fifth Avenue, Suite 303, New York, New York 10010, Attn: Chief Executive Officer.  The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”).  The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Attentive may commence an arbitration proceeding.  During the arbitration, the amount of any settlement offer made by you or Attentive must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.  If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Attentive prior to selection of an arbitrator, Attentive will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Attentive in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.

e.     Fees.  If you commence arbitration in accordance with this TOU, Attentive will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules.  Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.  If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Attentive for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.  Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.  Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award.  The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.  Notwithstanding anything in this TOU to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 9.

f.     No Class Actions.  YOU AND ATTENTIVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  Further, unless both you and Attentive agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

g.     Modifications to this Arbitration Provision.  Except as otherwise provided in this TOU, if Attentive makes any future change to this arbitration provision, other than a change to Attentive’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Attentive’s address for Notice, in which case this arbitration provision, as in feffect immediately prior to the changes you rejected, will continue to govern any disputes between you and Attentive.

h.     Enforceability.  If Section 9.f above is found to be unenforceable or if the entirety of this Section 9 is found to be unenforceable, then the entirety of this Section 9 will be null and void.

10.   Limitation of Liability and Disclaimer of Warranties.  THE TERMS OF THIS SECTION 10 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:

a.     NEITHER ATTENTIVE NOR ITS AFFILIATES (COLLECTIVELY, “ATTENTIVE PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SITE OR ANY CONTENT THEREON.  ACCORDINGLY, THE SITE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE ATTENTIVE PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE.  CONSEQUENTLY, YOU AGREE THAT YOU SOLELY ASSUME ALL RISKS ARISING FROM YOUR USE OF THE SITE.

b.     WITHOUT LIMITING SECTION 10.a, THE ATTENTIVE PARTIES DO NOT WARRANT THAT THE SITE AND ANY CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.  IF YOUR USE OF THE SITE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO ATTENTIVE PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.

c.     IN NO EVENT WILL ANY ATTENTIVE PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SITE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF THE ATTENTIVE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ATTENTIVE’S LIABILITY, AND THE LIABILITY OF ANY OF THE OTHER ATTENTIVE PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING FROM THIS TOU IS LIMITED TO U.S. $100.

11.   Third Party Disputes.  ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SITE IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY.  ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY IRREVOCABLY RELEASE THE ATTENTIVE PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

12.   Indemnification.  To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Attentive Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this TOU; or (b) your access to, use, or misuse of the Attentive Content, Trademarks or the Site; or (c) any allegation that you used the Site, or otherwise caused us, to send a Message in violation of any applicable law, rule, regulation or industry best practice.  Attentive will provide notice to you of any such claim, suit, or proceeding.  Attentive reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Attentive believes that you are unwilling or incapable of defending Attentive’s interests.  In such case, you agree to cooperate with any reasonable requests assisting Attentive’s defense of such matter at your expense.

13.   Term and Termination of the TOU.

a.     Term.  As between you and Attentive, the term of this TOU commences as of your first use of the Site and continues until the termination of this TOU by either you or Attentive.

b.     Termination.  You may terminate this TOU by sending written notification to Attentive at info@attentivemobile.com and terminating your use of the Site.  Attentive reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to all or any part of the Site or to terminate this TOU at any time without prior notice or liability if you breach any provision of this TOU or violate the rights of any third party on or through the Site.  Attentive reserves the right to change, suspend, or discontinue all or any part of the Site at any time without prior notice or liability.  Sections 1(b), 1(c), 1(e),1(f), 2(b), 2(d), 3(b), 3(c), 3(d), 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and all defined terms used therein will survive the termination of this TOU indefinitely.

14.   Miscellaneous.  This TOU is governed by the internal substantive laws of the State of New York without respect to its conflict of laws provisions.  You agree that no joint venture, partnership, employment, or agency relationship exists between you and Attentive as a result of this TOU or use of the Site.  If any provision of this TOU is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this TOU, which will remain in full force and effect.  Failure of Attentive to act on or enforce any provision of this TOU will not be construed as a waiver of that provision or any other provision in this TOU.  No waiver will be effective against Attentive unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance.  This TOU constitutes the entire agreement between you and Attentive with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein.  The Section headings are provided merely for convenience and will not be given any legal import.  This TOU will inure to the benefit of our successors and assigns.  You may not assign this TOU or any of the rights or licenses granted hereunder without the prior express written consent of Attentive.  Attentive may assign this TOU, including all its rights hereunder, without restriction.  For the purposes of this TOU, an assignment includes, without limitation, any merger, acquisition of stock or assets, change of control or similar transaction.

15.     Contact Us.  If you would like to contact us in connection with your use of the Site, then please contact us at 156 Fifth Avenue, Suite 303, New York, New York 10010, or by email at info@attentivemobile.com.