DYNMARK INTERNATIONAL LIMITED
e-txt™ SOFTWARE LICENSE AGREEMENT
NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF THE e-txt SOFTWARE ("SOFTWARE") YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON: USE CONTAINED IN SECTION 2; TRANSFERABILITY IN SECTION 4; WARRANTY IN SECTION 6; AND LIABILITY IN SECTION 7. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE. IF YOU ACQUIRED THE SOFTWARE ON TANGIBLE MEDIA (e.g. CD) WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF ANY AMOUNT YOU ORIGINALLY PAID IF YOU: (A) DO NOT USE THE SOFTWARE AND (B) RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM WHICH IT WAS OBTAINED WITHIN THIRTY (30) DAYS OF THE PURCHASE DATE.	

	
Dynmark and its suppliers own all intellectual property in the Software. Dynmark permits you to Use the Software only in accordance with the terms of this Agreement. Use of some third party materials included in the Software may be subject to other terms and conditions typically found in a separate license agreement or "Read Me" file located near such materials.

1. Definitions. "Software" means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided, including but not limited to (i) Dynmark or third party computer information or software; (ii) related explanatory written materials or files ("Documentation"); and (iii) fonts; and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by Dynmark (collectively, "Updates"). "Use" or "Using" means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation. "Permitted Number" means ten (10) unless otherwise indicated under a valid license (e.g. volume license) granted by Dynmark. "Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions. "Dynmark" means Dynmark International Limited, a company formed in England and Wales, 10 Cromwell Place, London SW7 2JN, United Kingdom. 

2. Software License. As long as you comply with the terms of this Software License Agreement (this "Agreement"), Dynmark grants to you a non-exclusive license to Use the Software for the purposes described in the Documentation and governed by the Software Terms & Conditions of Use (available at www.e-txt.co.uk). 
2.1 General Use. You may install and Use a copy of the Software on your compatible computer, up to the Permitted Number of computers.
2.2 Network Use. 
2.2.1 Subject to the terms of this Agreement, you may install unlimited copies of the Software on computers on your internal network for use with only the activation code used to activate the software. 
2.2.2 For information on how to distribute the Software for promotional purposes please refer to the sections entitled "How to Distribute Dynmark software" at http://www.Dynmark.com. 
2.3 Backup Copy. You may make one backup copy of the Software, provided your backup copy is not installed or used on any computer. You may not transfer the rights to a backup copy unless you transfer all rights in the Software as provided under Section 4.
2.4 Portable or Home Computer Use. In addition to the single copy permitted under Sections 2.2.1 and 2.3, the primary user of the computer on which the Software is installed may make a second copy of the Software for his or her exclusive use on either a portable Computer or a Computer located at his or her home.
2.5 No Modification. You may customize or extend the functionality of the installer for the Software as specifically allowed by instructions found at http://www.Dynmark.com. You may not otherwise alter or modify the Software or create a new installer for the Software. The Software is licensed and distributed by Dynmark for sending and receiving text messages. 2.6 Third Party Website Access. The Software provides access to third party websites ("Third Party Sites"). Your access to and use of any Third Party Sites, including any goods, services or information made available from such sites, is governed by the terms and conditions found at each Third Party Site, if any. Third Party Sites are not owned or operated by Dynmark. YOUR USE OF THIRD PARTY SITES IS AT YOUR OWN RISK. DYNMARK MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE THIRD PARTY SITES.
2.7 The Software consists of interactive Internet applications which perform a variety of communications over the Internet as part of their normal operation. A number of communications features are automatic and are enabled by default.  Such automatic communications features do not send any personally identifiable information about you without your consent. By installing and/or using the Software, you consent to the Software’s communications features.  You are responsible for any telecommunications or other connectivity charges incurred through your use of the Software.
2.8 Message credits can be purchased by using the Buy Message Credits wizard or by sending a cheque, made payable to Dynmark International Limited and sent to Dynmark International, e-txt Message Sales, 10 Cromwell Place, London SW7 2JN, United Kingdom for the required amount for the number of message to be purchased. The cost of messages credits may vary from time to time and the message cost schedule is available as part of the Buy Messages wizard and this information is also available from the e-txt web site at www.e-txt.co.uk. Once purchased message credits must be used within 12 months of the date of purchase.
2.9 Use of the sender ID field to fraudulently represent the sender or give the impression in any way whatsoever to the recipient of a message that the message has been sent from a person or organisation other than the legitimate registered user is strictly forbidden and such use may lead to the senders prosecution.

3. Intellectual Property Ownership, Copyright Protection. The Software and any authorized copies that you make are the intellectual property of and are owned by Dynmark and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Dynmark and its suppliers. The Software is protected by law, including without limitation the copyright laws of the European Union, the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Dynmark and its suppliers. 

4. Restrictions.
4.1 Notices. You shall not copy the Software except as set forth in Section 2. Any copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software. 
4.2 No Modifications. You shall not modify, adapt or translate the Software. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Software with another software program, and you have first requested Dynmark to provide the information necessary to achieve such operability and Dynmark has not made such information available. Dynmark has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by Dynmark and any information obtained by you by such permitted decompilation may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Requests for information should be directed to the Dynmark Customer Support Department. 
4.3 Dormant Features. The Software may contain features and functionality that appear disabled or "grayed out" (the "Dormant Features"). The Dormant Features will only activate when certain upgrades to the Software are purchased. You agree not to access, or attempt to access, Dormant Features or otherwise circumvent the permissions that control activation of such Dormant Features.
4.4 Transfer. You may not, rent, lease, sublicense, assign or transfer your rights in the Software, or authorize all or any portion of the Software to be copied onto another user's computer except as may be expressly permitted herein. You may, however, transfer all your rights to Use the Software to another person or legal entity provided that: (a) you also transfer (i) this Agreement, and (ii) the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, Updates and prior versions, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not for resale copies of the Software. 

5. Updates. If the Software is an Update to a previous version of the Software, you must possess a valid license to such previous version in order to Use such Update. All Updates are provided to you on a license exchange basis. You agree that by Using an Update you voluntarily terminate your right to use any previous version of the Software. As an exception, you may continue to Use previous versions of the Software on your Computer after you Use the Update buy only to assist you in the transition to the Update, provided that: (a) the Update and the previous versions are installed on the same computer; (b) the previous versions or copies thereof are not transferred to another party or Computer unless all copies of the Update are also transferred to such party or Computer; and (c) you acknowledge that any obligation Dynmark may have to support the previous versions of the Software may be ended upon availability of the Update. 

6. NO WARRANTY. The Software is being delivered to you "AS IS" and Dynmark makes no warranty as to its use or performance. DYNMARK AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, DYNMARK AND ITS SUPPLIERS MAKE NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. The provisions of Section 6 and Section 7 shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to Use the Software after termination of this Agreement.

7. LIMITATION OF LIABILITY. IN NO EVENT WILL DYNMARK OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN DYNMARK REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. DYNMARK'S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. Nothing contained in this Agreement limits Dynmark's liability to you in the event of death or personal injury resulting from Dynmark's negligence or for the tort of deceit (fraud). Dynmark is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact Dynmark's Customer Support Department.

8. Export Rules. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.

9. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws in force: (a) in the State of California, if a license to the Software is obtained when you are in the United States, Canada, or Mexico; or (b) in Japan, if a license to the Software is obtained when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or (c) England and Wales, if a license to the Software is purchased when you are in any other jurisdiction not described above. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of England and Wales, when the law of England and Wales applies, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. 

10. General Provisions. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized officer of Dynmark. Updates may be licensed to you by Dynmark with additional or different terms. This is the entire agreement between Dynmark and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software. 

11. Notice to U.S. Government End Users. The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Dynmark Systems Incorporated, 345 Park Avenue, San Jose, CA 95110-2704, USA. For U.S. Government End Users, Dynmark agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.

12. Compliance with Licenses. If you are a business or organization, you agree that upon request from Dynmark or Dynmark's authorized representative, you will within thirty (30) days fully document and certify that use of any and all Software at the time of the request is in conformity with your valid licenses from Dynmark.

13. Specific Exceptions.
13.1 Limited Warranty for Users Residing in Germany or Austria. If you obtained the Software in Germany or Austria, and you usually reside in such country, then Section 6 does not apply, instead, Dynmark warrants that the Software provides the functionalities set forth in the Documentation (the "agreed upon functionalities") for the limited warranty period following receipt of the Software when used on the recommended hardware configuration. As used in this Section, "limited warranty period" means one (1) year if you are a business user and two (2) years if you are not a business user. Non-substantial variation from the agreed upon functionalities shall not be considered and does not establish any warranty rights. THIS LIMITED WARRANTY DOES NOT APPLY TO SOFTWARE PROVIDED TO YOU FREE OF CHARGE, FOR EXAMPLE, UPDATES, PRE-RELEASE, TRYOUT, PRODUCT SAMPLER, NOT FOR RESALE (NFR) COPIES OF SOFTWARE, OR SOFTWARE THAT HAS BEEN ALTERED BY YOU, TO THE EXTENT SUCH ALTERATIONS CAUSED A DEFECT. To make a warranty claim, during the limited warranty period you must return, at our expense, the Software and proof of purchase to the location where you obtained it. If the functionalities of the Software vary substantially from the agreed upon functionalities, Dynmark is entitled -- by way of re-performance and at its own discretion -- to repair or replace the Software. If this fails, you are entitled to a reduction of the purchase price (reduction) or to cancel the purchase agreement (rescission). For further warranty information, please contact Dynmark's Customer Support Department
13.2 Limitation of Liability for Users Residing in Germany and Austria. 
13.2.1 If you obtained the Software in Germany or Austria, and you usually reside in such country, then Section 7 does not apply, Instead, subject to the provisions in Section 13.2.2, Dynmark's statutory liability for damages shall be limited as follows: (i) Dynmark shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the purchase agreement in respect of damages caused by a slightly negligent breach of a material contractual obligation and (ii) Dynmark shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation. 
13.2.2 The aforesaid limitation of liability shall not apply to any mandatory statutory liability, in particular, to liability under the German Product Liability Act, liability for assuming a specific guarantee or liability for culpably caused personal injuries.
13.2.3 You are required to take all reasonable measures to avoid and reduce damages, in particular to make back-up copies of the Software and your computer data subject to the provisions of this Agreement.
13.3 Pre-release Product Additional Terms. If the product you have received with this license is pre-commercial release or beta Software ("Pre-release Software"), then the following Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supercede such other term(s) and condition(s) with respect to the Pre-release Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Software is a pre-release version, does not represent final product from Dynmark, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, the Pre-release Software is provided to you "AS-IS", and Dynmark disclaims any warranty or liability obligations to you of any kind. WHERE LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, DYNMARK'S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY EUROS (EUR €50) IN TOTAL. You acknowledge that Dynmark has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, Dynmark has no express or implied obligation to you to announce or introduce the Pre-release Software and that Dynmark may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at your own risk. During the term of this Agreement, if requested by Dynmark, you will provide feedback to Dynmark regarding testing and use of the Pre-release Software, including error or bug reports. If you have been provided the Pre-release Software pursuant to a separate written agreement, such as the Dynmark Testing Agreement for Unreleased Products, your use of the Software is also governed by such agreement. You agree that you may not and certify that you will not sublicense, lease, loan, rent, assign or transfer the Pre-release Software. Upon receipt of a later unreleased version of the Pre-release Software or release by Dynmark of a publicly released commercial version of the Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Pre-release Software received from Dynmark and to abide by the terms of the license agreement for any such later versions of the Pre-release Software. Notwithstanding anything in this Section to the contrary, if you are located outside the United States of America, you agree that you will return or destroy all unreleased versions of the Pre-release Software within thirty (30) days of the completion of your testing of the Software when such date is earlier than the date for Dynmark's first commercial shipment of the publicly released (commercial) Software. 

If you have any questions regarding this Agreement or if you wish to request any information from Dynmark please use the address and contact information included with this product to contact the Dynmark office serving your jurisdiction. 

Dynmark and e-txt are either registered trademarks or trademarks of Dynmark International Limited in the European Union, the United States and/or other countries.