Register Email Address: Company Name: Company URL (Optional): This Terms of Service Agreement is a contract between you ("you" or "your") and SMS.ac, Inc. and d/b/a MobileGuard ("we", "us", "our", or the "company") and applies to your use of the services of SMS.ac, Inc and d/b/a MobileGuard ("Services"). Contained in the following document are the terms on which we offer individuals, persons, and/or entities use of the Services. Your use of the Services is conditioned upon your agreement to (i) the terms and conditions of service set forth herein this document, (ii) the FanBox User Terms and Conditions available at http://profile.fanbox.com/Homepage/TermsAndCons.aspx, (iii) the FanBox User privacy policy available at http://profile.fanbox.com/Homepage/privacy.aspx , (iv) the API terms and conditions, including all procedures and policies related to sending and retrieving information, application content specification, integration with the API, and coding parameters, copyright policies, (v) the fees, posted on the site (vi) the Application Guidelines, (vii) the Application Privacy Policy, and (vii) all of the instructions on our web sites (collectively the "Agreement"). To the extent that the Terms of Service Agreement is inconsistent with the terms and conditions of the other agreements identified above, the Terms of Service Agreement controls. In the event you are entering the Agreement on behalf of an entity, you represent and warrant that you have the legal authority to bind such entity to the terms of this Agreement. If you disagree with any of the terms of this Agreement, you may not use or access our Services. We reserve the right to update, from time to time, the terms of this Agreement without notice or liability to You, by posting the amended terms at http://www.mobileguard.org/TermsOfService.aspx. In the event a change made is not agreeable to you, you may terminate use of the Services. Your continued use of the Services will be deemed as an acceptance by you of the changes. Please read information contained on web pages or documents that are referred to herein this Agreement, as they contain further terms and conditions that apply to you. The headings are for reference only and in no way limit the scope of each section. Terms used in this document have specific definitions, and those have been provided in Section 18. Section 1: General Terms of API Use Subject to the terms and conditions of this Agreement, we offer a set of APIs, tools, and Services that enable you to access certain data and services to the benefit of your commercial or non-commercial service ("API" or "APIs"). Because our product is still being innovated, you acknowledge and agree that the nature and structure of the APIs, which we provide may change from time to time without prior notice to you. Further, you acknowledge and agree that we may cease (permanently or temporarily) providing the APIs (or any features thereof) to you or to users generally at our sole discretion, without prior notice to you. You may stop using the APIs at any time, and you do not need to specifically inform us when you stop using the API (unless you created a Business Premier Account). In order to access certain API features, you may be required to provide information about yourself or users of your service (such as identification or other contact details) as part of a registration or submission process, or as part of your continued use of the API. You agree that any registration information you give to us will always be accurate, correct and up to date. You agree to use the API only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation, third-party terms of service, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). You agree not to access (or attempt to access) any of our or other parties’ services by any means other than through the interface that is provided by us and as specifically intended. You agree that you will not engage in any activity that interferes with or disrupts services (or the servers and networks which are connected to such services). You agree that you will not reproduce, duplicate, copy, sell, trade or resell our services for any purpose. You understand and agree that your use of the API and Services may cause you to interact with the products or services not operated or controlled by us, and that we do not represent or endorse, and shall not be responsible for: (a) the safety, quality, accuracy, reliability, integrity or legality of any such products or services or any content displayed or distributed through such products or services. Section 2: Our Relationship with You We are a Payment and Platform Service Provider:Our APIs help you enhance the functionality and distribution of your service and make payments to and accept payments from third parties. We are an independent contractor for all purposes. We do not have control of or liability for your services utilizing or for any of your services that are paid for with our billing service ("Monetization API") or offered on or through our platform. We do not guarantee the identity of any User or ensure that a buyer and seller will complete a transaction. Your Privacy.Protecting your privacy is very important to us. Please review our FanBox user privacy policy at: http://profile.fanbox.com/Homepage/privacy.aspx and our Application Privacy Policy. These documents express our commitment to your privacy, as well as our use and disclosure of your information. In order to provide reporting transparency, we may determine in our sole discretion to post the amount of money being earned by you publicly on our web site. You expressly acknowledge and agree to the public display of your earnings through the Monetization API. Others Privacy.If you receive Information about another User through the Service, you must keep the Information confidential and only use it in connection with the Service. You may not distribute a User’s Information to a third party or use the Information for marketing purposes unless you receive the User’s express consent to do so. Intellectual Property."SMS.ac", "FanBox", "MobileGuard", and all related logos, products, and services described in our website are either our trademarks or registered trademarks. In addition, all page headers, custom graphics, button icons, and scripts are our service marks, trademarks and/or trade dress. You may not copy, imitate or use them without prior written consent. You may use the HTML logos provided within the platform APIs without prior written consent for the purposes of directing web traffic to the Services. You may not alter, modify, or change these HTML logos in any way, use them in a manner that is disparaging to us or the Service or display them in any manner that implies sponsorship or endorsement. Assignment.You may not transfer or assign any rights or obligations you have under this Agreement. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. Advertising.Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through your application, are solely between you and such advertiser. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on your application. Any revenue you earn from advertising contained within your application, shall be solely owned by you. Any advertising earned from web pages containing advertisements, not within your application, on or through our platform and web sites shall be solely owned by us. Section 3: Eligibility and Account Type Eligibility.To be eligible to use our Services, you must be 18 years old. Guidelines for Your Service.We may, from time to time and at our sole and absolute discretion, make available API documentation setting forth additional policies and technical specifications applicable to your use of the Services. Your content/application/service must not violate any posted policies or technical specifications. Please review and comply with all the Application Guidelines. If you are in violation of any of the terms of this Agreement or causing consumer or brand harm, your application will be removed from the platform. Accounts.We offer three account types: Personal, Business and Business Premier. You may hold one Personal Account and one either Business or Business Premier Account. By opening a Business or Business Premier Account and accepting the terms of this Agreement, you attest that you are not opening an account primarily for personal, family or household purposes. Authentication.You authorize us, directly or through any third party, to make any inquiry we consider necessary to authenticate your identity. This may include asking you for additional information, requiring you to confirm your ownership of your email address, mobile phone, phone number, ordering a credit report, checking carrier records, and verifying your information against other third party databases. Section 4: Licenses and Ownership License to APIs.Subject to the terms and conditions of this Agreement, we hereby grant you a limited, non-exclusive, no right to sub-license, non-transferable, revocable license, during the term of this Agreement, to access the platform APIs solely as necessary for you to operate your application(s) that meet the all the requirements and conditions set forth in this Agreement and in accordance with the terms and of this Agreement. Your Ownership.We claim no ownership or control over any source code written by you to be used with the API. You retain copyright and any other rights you already hold in this code, and you are responsible for protecting those rights, as appropriate. You agree that we, in our sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the API. Distribution of Your Application.If you submit, and we accept, your application for inclusion in a website or to be hosted on our servers, you direct and authorize that website and/or us and our affiliates to host, link to, and otherwise incorporate your application into their/our services, and to carry out any copying, modification, distribution, internal testing, or other processes necessary in order to make this authorized use. You also agree that you will not yourself (and will not allow third parties to) remove, obscure, or alter our or any third party's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services or the APIs. Our Ownership.We shall retain all right, title, and interest to the Services, our websites, platform and APIs (including Monetization API), including any ideas or technology utilized or developed in order to provide you with access to these service. All accounts created by Users with us (including all data and personally identifiable information) shall be owed by us and shall adhere to our privacy policies. You acknowledge and agree that the Services and any necessary software used in connection with the service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You do not acquire nor will you at any point acquire any intellectual property rights under this Agreement (including but not limited to patent, copyright, and trademark rights) except your right to use the API pursuant to terms of this Agreement and all accompanying documentation and posted guidelines Section 5: Your Obligations, Representations & Warranties We are not responsible for the content and services of your application. You acknowledge that you are solely responsible for the development, monitoring, operation, filtering and maintenance of your service offering and we have no liability or responsibility of any kind. You acknowledge and agree that you are solely responsible for: 1. creation, display, filtering, and monitoring the content/information/services available on or through your service/application; 2. the technical operation and functionality of your application; 3. monitoring and ensuring your service/application does not infringe the rights of any third party (including, for example, trademarks, privacy, copyrights, or other personal or proprietary rights); 4. ensuring your application (including all materials available on, through or within) is in compliance with this Agreement and all applicable laws, statues, ordinances and regulations (for example: FCC, and those regulations governing telecom, mobile data, financial services, consumer protections, unfair competition, anti-discrimination, and false advertising); 5. ensuring your application (including all materials available on, through or within) are not defamatory, trade libelous, unlawfully threatening, unlawfully harassing or otherwise illegal; 6. ensuring your accurately and adequately disclose how you collect, use, manage, store and disclose data and personally identifiable information collected from users visiting/utilizing your application; 7. ensuring your application does not sell or offer counterfeit goods; 8. ensuring your application does not provide information which is false, inaccurate or misleading; and 9. ensuring you conduct your application in a manner that does not result or may result in complaints, disputes, claims, reversals, chargebacks, fees, fines, penalties, and other liability to us, our Users or any third party or you. You represent and warrant that (a) you have full power and authority to agree to the terms of this Agreement; (b) you own and/or have obtained the necessary legal rights to provide all content contained in or transmitted through your application/service, and further, that you will maintain these rights for the term of this Agreement; (c) you do not violate contractual or other legal obligations to any third party by being bound to terms and conditions of this Agreement; (d) you do not violate the legal rights of any third party or any applicable law in creating and making your application and any of the content contained in or transmitted through your application, (e) your application shall not contain any pornographic, hate-related, violent, or illegal content; and (f) your application shall not contain any harmful or malicious code, including but not limited to viruses and worms. You agree that we may, at any time, request that you demonstrate compliance with any of the foregoing requirements. We may determine, in its sole discretion, with or without the requested documentation or evidence provided by you, to terminate this Agreement. Section 6: Prohibited Use In addition to the other prohibitions and obligations in the Agreement, you agree that you or your application shall not: 1. Directly or indirectly, copy, modify, reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of the software; modify, translate, or create derivative works based on our software; or copy (except for archival purposes permitted in the SDK), rent, lease, distribute, assign, or otherwise transfer rights to our software; use our software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels with regard our products and/or services. 2. Violate any message or database call limitations set forth by us. 3. Violate this Agreement or any other terms or policies referenced herein or posted on our web sites or in our documentation, including but not limited, to not creating applications with content that could be considered libelous, abusive, threatening, vulgar, obscene, adult, unlawful, illegal, improper, harassing, hate, disturbing, gaming, gambling, unsolicited, SPAM, against generally accepted privacy policies or immoral. 4. Attempt to obtain personally identifiable information about our Users including but not limited to contact information and mobile phone numbers. We retains sole ownership of User data collected by us. 5. Create false identities in communication headers (SMS, email, etc) to attempt to mislead others as to the identity of the sender or the origin of the message. 6. Transmit through your application, materials that libel, defame, or slander any person or infringe upon any person’s privacy rights, infringes on any third party’s intellectual property rights, copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy. 7. Engage in any other activity that we believe could subject it to criminal liability or civil penalty or judgment or causes any negative effect on our relationships with our partners including but not limited to mobile network operators handling our wireless traffic. 8. Transmit any viruses, Trojan horses, worms, time bombs, or other computer programming modules that might be damaging, or interfere with the integrity of the API or the Services or intercept any data 9. Send or receive what we may reasonably believe to be fraudulent transactions. Section 7: Copyright Infringement Claims If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Designated Copyright Agent at the address below with the following information: 1. A signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed; 2. A description of the copyrighted work that you claim has been infringed; 3. A description of where the material that you claim is infringing is located on the Service; 4. Your address, telephone number, and email address; 5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; 6. A statement by you made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. The above information should be in writing and sent to our designated Copyright Agent, as specified below: 255 G Street #723 San Diego, CA 92101 USA Section 8: Customer Support We will provide customer support related to our platform and the Monetization API. If there is a functionality problem or your application is not working properly, we may in our sole discretion enable you to speak directly to the User to resolve the issue. We shall have the right to access your account with us in order to provide good service to Users or as required by any regulatory body or law enforcement agency. You also expressly consent to us to send you communications via email of any updates, notices, or other communication that may be of interest to you or that we deem important for your knowledge of modifications or other changes or your knowledge of the Services. We may require a customer support contact and your personal contact information, which may include your name, company name, email address, mailing address, customer support line, customer support email, and any other information that we deem necessary to ensure that you respond to User complaints appropriately. Any information that you include in the information fields for customer support will be publicly available as part of your Application or provided by our Customer Support team to Users who inquire regarding your application. In addition, an account manager or other designated employee of ours may contact you. You acknowledge and agree we have sole discretion to make refunds to Users related to your Application in connection with this Agreement. Further, in the event we determine, in its sole discretion, that it is necessary to resolve a dispute with a User to pay such User an ex-gratia payment, then you shall be responsible for and agree to reimburse us for any such payments made by us. In the event we make such refunds or ex-gratia payments, we may choose to i) hold-back the amount of the refund or ex-gratia payment from the payment due by us to you hereunder this Agreement, or ii) invoice you for the amount of the refund or ex-gratis payment, which such payment shall be made by you within fifteen (15) days of your receipt of notification from us. Section 9: Purchasing through MobileGuard Purchasing Applications.We only enable you to sell and rent (as applicable) your application to end user customers only. Refund Policy & Canceling.All Sales and rentals (as applicable) are final. To cancel subscriptions reply STOP to any billing confirmation message received by us or to the short code the billing confirmation and subsequent billing reminder messages are sent from. One Time Authentication.One-time authentication is a convenient feature that allows you to purchase or rent (as applicable) applications with a single click of your mouse or other input device after you have authenticated your mobile account with us. When accessing applications across MobileGuard enabled web sites, one-time authentication allows you to purchase or rent (as applicable) may be activated for all your transactions by selecting the "Don't ask me about buying ... again" check box that appears when a "Buy" button is clicked. One-time authentication is activated for each transaction by pressing the button showing the price of the Application, and selecting the "Buy" button. By clicking the "Buy" button, the Application will be available for use and your transaction will be complete without any further steps. Transactions using MobileGuard are subject to this Agreement and the terms posted at the point of sale. Mobile Billing.You will be billed on your mobile phone account (prepaid or post paid as applicable). Your purchase may be authorized and billed in gradual increments during one purchasing and renting (as applicable) session as you click the "Buy Now" button or processed anytime thereafter. Depending on the size of your order, this may appear as multiple orders and billings on your mobile phone account statement. Spending limits.We may, at our discretion, impose limits on the amount of transactions you may perform on our service due for any reason, including but not limited to carrier regulations regarding spending caps, bad debt charge history, lack of credit history, etc. Application Pricing.Application use may be subject to a fee which will be posted at the time you originally purchase the Application. We reserve the right to change prices for Applications offered through us at any time, and do not provide price protection or refunds in the event of a price drop or promotional offering. Subscription Payments.A recurring payment is a payment in which you authorize us to directly charge your account on a one-time, regular, or sporadic basis. For example, you may agree to a monthly subscription whereas you will be charged to your account a fee each month for the service you purchased ("Subscriptions" or "Recurring Payments"). Application Specific Terms.Applications purchased by you are subject to your prior acceptance of the terms of any end-user agreements or other terms and conditions required for use of such Application. Carrier Fees.Additional carrier fees may apply depending on your mobile phone carrier and your service plan. You are responsible for the fees that your phone service carrier charges for SMS, MMS, data charges, etc. FOR ASSISTANCE WITH ORDERS – Contact MobileGuard Customer Service.For assistance with billing questions or other order inquiries, please contact us at: http://www.mobileguard.org/Contact.aspx . Responses to emails will be provided as soon as possible. Section 10: Receiving Payment through MobileGuard Monetization API.The Monetization API allows you to use Mobile Guard to accept payments on those web sites specified in the MobileGuard documentation. Please see the fees posted on the web site. Payment Service.You hereby authorize us to act as your facilitator to aid the acceptance and processing of payments from Users. You agree that only we shall contact mobile network operators, intermediary aggregators, and payment processing firms for billing and collection of charges for products provided by you hereunder. You acknowledge that we are neither: (1) a bank and our obligations are as a payment processing service, not a banking service; nor are we (2) acting as a trustee, fiduciary, or escrow with respect to your funds, and are acting only as a facilitator and intermediary to process payments due you. Processing Delays.When a payment is received by the Monetization API, we authenticate the purchase with the appropriate mobile phone carrier system. If the authentication is unable to confirm transmission with the mobile phone carrier system, then the transaction will be held in pending status. Spending limits.We may, at our discretion, impose limits on the amount of transactions a User may perform due for any reason, including but not limited to carrier regulations regarding spending caps, bad debt charge history, lack of credit history, etc. Risk of reversals, chargebacks, and claims.When you receive a payment, you are liable to us for the full amount of the payment plus any fees if the payment is invalidated for any reason, including but not limited to carrier "true-ups" on successful transactions, chargebacks, refunds, or claims. You agree that we may recover any amounts due to us by deducting the balance owed by us to you. If there are insufficient funds you in your balance, you agree to reimburse us through other means. Carrier chargeback transactions may appear in subsequent months than when they originally occurred for any of the following "message not delivered" events that prevent a user from being successfully billed immediately: invalid or disqualifying phone information collected from a user, user overdrawing against a prepaid account or technical carrier issues. Thus, due to the "message not delivered" events specified above, we cannot guarantee the billing of all transactions. Therefore, "message not delivered" events specified above will not be included in calculating proceeds. Additionally, we cannot guarantee that revenues relating to all successfully delivered messages will be collected from the User. However, FanBox will make commercially reasonable attempts to collect payment for all message-delivered transactions. Setoff of Balances.You agree that if you have multiple accounts with us, we may debit one of your accounts for the negative balance in another account. Security Interest.To secure your performance of this Agreement, you grant us a lien on and secured interest in the monies in your account with us. Taxes.You shall be responsible for reporting and paying your own taxes in relation to this Agreement. In the event we are required to withhold taxes for revenues earned hereunder this Agreement, then we are authorized by you to do so. Section 11: Withdrawing Money from Your Account Withdraw Money.You may request payment by logging into your account and requesting payment. A physical check will be mailed out to you. Withdraw Minimums & Limits.You must have at least $50 USD in your account before a check for payment may be requested. Depending on account history and validation, we may limit you to withdrawing no more than $1,000 USD per month. In addition, we may delay withdrawals of large sums of money while we screen for risk. Reserves.We may, in our sole discretion, place a reserve of funds on your account if we believe there may be a high level of risk associated with your account. If your account is subject to a reserve, we will provide you notice including the terms of the reserve. Acceptable Use Violations - Fines.If you violate the Application Guidelines or specifically those guidelines outlined below, then we may hold your funds until we determine we are not at risk for third party claims in association with your violation, and may fine you up to $2,000 USD per violation, and may take legal action against you to recover additional losses we incur. You acknowledge and agree that a fine up to $2,000 USD is a reasonable minimum considering current circumstances including the relationship of the fine amount to the amount of harm we could responsibly anticipate to our business and that the anticipation that proof of actual damages may be impractical or extremely difficult. You agree that we may deduct fines directly from your account balance. The specific activities that may subject you to said fines, are using Services to promote or receive payment for: 1. Tobacco products; 2. Sexually oriented or obscene materials; 3. Narcotics or other controlled substances, steroids or prescription drugs; 4. Wagers, gambling, gambling winnings, regardless of the location or type of gambling activity. Section 12: Copyright Licensing For all content copied, published, performed, delivered, sold, or controlled by you, you represent and warrant that (i) you own or have the necessary licenses, rights, consents, and permissions to use such content, (ii) you have the written consent, release, license, and/or permission of each and every identifiable person in the content to sue the name or likeness of each and every such identifiable individual person to enable inclusion and use of the content in the manner contemplated; (iii) that you will pay any and all necessary licensing, royalty, or other rates or fees necessary in order to obtain such rights of use. By submitting any content to our Service, you thereby grant us a worldwide, non-exclusive, royalty-free, sub licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform such content in connection with the Services, including without limitation for promoting and redistributing part or all of the Services in any media formats and through any media channels. You also hereby grant each User of your application a non-exclusive license to access, copy, transmit, perform, and use the content through your application, pursuant to the subscription terms that may be require. For information on whether you will need to obtain rights to music or video produced by others, please consult the guidelines located at: * http://www.soundexchange.com/licensing101.html, * http://www.riaa.com/issues/licensing/vol_stat.asp, * http://www.mpaa.org/piracy_AndLaw.asp. For information on licensing distribution and/or performance of music, please consult the following websites. * http://www.loudcity.net/Services/HowLoudCityWorks/tabid/126/Default.aspx * http://www.ascap.com * http://www.bmi.com * http://www.sesac.com * http://www.harryfox.com We are not responsible for obtaining rights to your content, and will not be liable for any fees, fines, penalties, or liabilities you incur relating to your failure to obtain full rights to content distributed through your application. Section 13: No Warranty WE, OUR PARENT, EMPLOYEES, OFFICERS, DIRECTORS, AND OUR SUPPLIERS PROVIDE OUR SERVICES AS IS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED, OR STATUTORY. WE, OUR PARENT, EMPLOYEES, OFFICERS, DIRECTORS, AND OUR SUPPLIERS SPECIFCALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. We do not have any control over the Applications that are promoted and paid for through our Services and we cannot ensure that a buyer and seller will actually complete a transaction or is authorized to do so. We do not make any warranties or representations that the Services shall be available at all times. You acknowledge that the Services may be unavailable due to a variety of reasons including but not limited to system updates, causes beyond our control such as virus infection, power failures, or other "acts of God". We make no guarantees as to the continuous availability of the Services or any specific feature(s) of the Services. We do not guarantee delivery of Services or successful billing transactions through our Services and those services of mobile network operators, intermediary aggregators, or payment processing firms. We make no claims in respect to network coverage. Although we focus on providing extensive coverage aggregation services, mobile network operators and/or their appointed partners and/or affiliates may choose from time to time to not be part of our services or its service providers’ networks or we may determine in our sole discretion to stop working with a particular mobile network operator, intermediary aggregator, or payment processing firm. This may result in transactions not being available; billing not being available for certain mobile network operators or payment processing firms, either for a period of time or indefinitely. It is understood that billing records provided by the mobile network operator shall be final and under no circumstances shall we assume responsibility relating to discrepancies or disputes with monies not recognized on the mobile network operator reports. Section 14: Indemnification and Release Indemnification.To the fullest extent permitted under law, you hereby agree to indemnify, defend and hold us, and our officers, directors, agents, licensors and licensees (collectively, the "Indemnified Parties") harmless from and against any and all claims or demands (including, without limitation, attorneys’ fees) incurred by the Indemnified Parties in connection with or arising out your breach of this Agreement and/or your use of the Services. You shall cooperate as fully as reasonably required in the defense of any claim. FanBox reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You acknowledge that damages for improper use of the API may be irreparable; therefore, we are entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies. Release.You hereby irrevocably release and covenant not to sue or pursue any claim against us, any of our suppliers, officers, directors, employees, assigns or successors, for any and all damages, liabilities, causes of action, judgments and claims: (a) pertaining to your application, the Services, the API, Monetization APIs, or any intellectual property that you develop that is based on, uses or relates to our platform or any portion thereof; and/or (b) which otherwise may arise in connection with your use of, reliance on, or reference to our Services or any portion thereof. Section 15: Limitation of Liability INSOFAR AS ALLOWED BY LAW, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU ON ACCOUNT OF YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICES FOR ANY REASON. SUCH LIMITATION OF LIABILITY SHALL INCLUDE BUT IS NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCLUDING WITHOUT LIMIATION LOST DATA, BUSINESS OR ANTICIPATED PROFITS, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY HOWEVER ARISING, INCLUDING NEGLIGENCE, WHETHER THE DAMAGES ARISE FROM USE, MISUSE, OR RELIANCE ON THE SERVICES, FROM INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES, OR THE INABILITY TO USE THE SERVICES, OR THE INABILITY OF USERS TO ACCESS YOUR APPLICATION. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. OUR LIABILITY, AND THE LIABILITY OF OUR PARENT, EMPLOYEES, OFFICERS, DIRECTORS, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES; SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH JURISDICTIONS, OUR LIABILITY (AND THE LIABILITY OF OUR AFFILIATES, AGENTS, SERVICE PROVIDERS AND PARTNERS) SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. Section 16: Jurisdiction and Choice of Law: This Agreement and any use or inability to use the Services shall be governed by, construed, and interpreted in accordance with the law of the State of California, United States of America, without giving effect to its conflict of law provisions. This Agreement shall be enforced by the proper California courts, subject to the arbitration provision below. Any controversy or dispute between you and us arising out of any terms or conditions of this Agreement shall be submitted to arbitration before a retired Judge of the San Diego Superior Court/attorney through ADR Services, Inc. ("ADR Services"). The arbitration shall be held before a single arbitrator and shall be binding with no right of appeal. The arbitration shall be conducted pursuant to the Judicial Arbitration Rules of Court, California Rules of Court, Rule 1600 et seq. The arbitration shall be commenced by filing a demand for arbitration with the administrator of ADR Services and serving the demand on the opposing party. If there is no response by the responding party, then the allegations of the demand shall be deemed denied. All costs of the arbitration shall be mutually shared between the parties, including the arbitrator’s fees. The arbitrator shall be mutually agreed upon by the parties, and in the event there is not a mutual agreement, then an arbitrator shall be appointed by the administer of ADR Services. Section 17: Miscellaneous Provisions You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. Notwithstanding anything to the contrary contained herein, this Agreement’s benefits do not extend to any third party. This Agreement, together with any exhibits and any linked or referenced documents sets forth the entire understanding of the parties as to the subject matter of this Agreement and supersedes all prior agreements, discussions, and correspondence pertaining to the subject matter of this Agreement. The failure by us to exercise in any respect to any right provided for herein will not be deemed as a waiver of those rights. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Section 18: Definitions "Application" or "your application" means your product/service/content offering. "Business Account" means an account primarily used for business purposes and not for personal, family or household purposes. "Business Premier Account" means an account primarily used for business purposes and not for personal, family or household purposes. Further, if you register for a Business Premier Account you acknowledge and agree to the additional terms of service required to receive the benefits of participating in this type of account. "Personal Account" means an account used for non-business purposes and used primarily for personal, family or household purposes. "Service" means all services offered, including but not limited to platform services, APIs, Monetization API, and related products available through these web sites: www.fanbox.com, www.sms.ac, www.mobileguard.org. "Information" means any confidential and/or personally identifiable information or other information related to an Account or User, including but not limited to the following: name, email, address, billing/shipping address, and phone number. "User", "you" or "your" means you and any other person or entity using the Service or accessing any page of the following web sites: www.fanbox.com, www.sms.ac, www.mobileguard.org. "We" "us" or "our" means SMS.ac, Inc and d/b/a MobileGuard. I agree to the Terms of Service Agreement and terms incorporated herein.