OneText Terms of Service

Master Services Agreement

Last Revised on July 28, 2025

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Welcome to the Master Services Agreement (the “Agreement”) for use of our platform that allows your Customers (“Consumers”) to purchase your goods and services via text messages, together with any updates, modifications or improvements to such platform (collectively, the “Services”), operated by OneText, Inc. (“OneText”, “we” or “us”).

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This Agreement governs your access to and use of the Services. Please read this Agreement carefully, as it includes important information about your legal rights. By clicking the “I agree” button at the end of this Agreement or by signing this document you are agreeing to this Agreement (such date of your acceptance is the “Effective Date”).

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For purposes of this Agreement, “you”, “your” or “Merchant” means both you, as the user of the Services, and the entity you represent. You represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement.

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1. Definitions

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1.1. “Authorized User” means an individual authorized by the parties to access the Services, but not for the purposes of hosting, modifying or otherwise maintaining the Services. For example, an Authorized User may include Merchant’s employees, agents, Consumers or other third parties with whom Merchant transacts.

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1.2. “Confidential Information” means all nonpublic information disclosed or provided by one party or its affiliate under this Agreement that is (i) labeled as confidential at the time of disclosure, (ii) designated as confidential at the time of disclosure either in writing or orally, or (iii) would reasonably be perceived as being confidential based on its nature or method of disclosure.

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1.3. “Merchant Data” means all data, information, content, and materials uploaded by Merchant and Authorized Users while accessing the Services.

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1.4. “Documentation” means the documentation, supporting materials, and other information related to the Services, available at: https://docs.onetext.com/, as updated by OneText from time to time.

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1.5. “Order Form” means the written ordering document that specifies Merchant’s purchase of subscriptions or services from OneText, attached hereto as Exhibit A or provided as a standalone agreement.

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1.6. “OneText Materials” means the Services, Documentation and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided by OneText in connection with the Services.

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1.7. “SMS Provider” means Verizon, AT&T, Inc., T-Mobile US, Inc. and similar telecommunications providers.

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1.8. All other terms not defined in this Section 1 are as defined elsewhere in the Agreement.

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2. The Services

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2.1. Agreement to Provide Services. Subject to Merchant’s successful completion of the onboarding process set forth in Section 2.3, Merchant’s payment of the fees and Merchant’s and its Authorized Users’ compliance with the other terms and conditions of this Agreement, OneText will provide Merchant with the Services in accordance with the terms hereof. Merchant agrees to use and shall cause its Authorized Users (excluding its Consumers) to use the Services for Merchant’s internal business purposes only. OneText will commence provision of the Services when it accepts Merchant’s Order Form in writing. Each Order Form will be in subject to the terms and conditions of this Agreement. In the event of any conflict between the terms contained in this Agreement and the terms of an Order Form, the terms in this Agreement will control unless otherwise expressly set forth in an Order Form.

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2.2. User Accounts and Login Credentials. In order to use the Services, each Authorized User must create an account (“User Account”), which includes a username and password (together the “Login Credentials”). As between the parties, Merchant is responsible for ensuring that Authorized Users maintain the confidentiality of their Login Credentials and comply with this Agreement. Merchant acknowledges that it is solely responsible for any liabilities arising from (i) an Authorized User’s non-compliance with this Agreement and (ii) any activity that occurs through an Authorized User’s account via the use of the Login Credentials.

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2.3 Onboarding.

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2.3.1. In order to use the Services, Merchant must link Merchant’s OneText Account with one of Merchant’s payment processing services, such as Shopify’s merchant platform, Klaviyo’s marketing automation platform, the Authorize.net payment gateway, or the payment processing services of Maverick, PayPal or Stripe (each, a “Card Processor”) though the applicable process described in a link provided by OneText.

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2.3.1.1. For integration with the Shopify merchant platform, Merchant must provide and approve the OneText app on their Shopify dashboard and provide Merchant’s private key to OneText.

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2.3.1.2. For integration with the Klaviyo marketing automation platform, Merchant must provide OneText access to Merchant’s Klaviyo account dashboard.

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2.3.1.3. If Merchant uses a [different] SMS Marketing platform, Merchant may send a contact list to OneText, and OneText may integrate such information at no additional fee.

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2.3.1.4. For integration with PayPal, Merchant must configure its Paypal account to accept credit cards (provided that Merchant may provide OneText developer access and OneText shall perform this configuration, at no additional charge).

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2.3.1.5. OneText strongly recommends that Merchant integrates the Services with two Card Processors, which permits Merchant to process transactions on a secondary Card Processor (the “Backup Processor”) if Merchant’s primary Card Processor (the “Primary Processor”) is under audit or is otherwise unable to process transactions.

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2.3.2. In no event shall OneText be liable for any integration with a Card Processor, and Merchant shall be solely liable for any and all transactions submitted to or processed by the Card Processor and for compliance with the terms and conditions governing Card Processor’s services.

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2.3.3. To ensure continuity of the Services, OneText requires a minimum balance of $100 in Merchant’s User account, which is fully refundable to Merchant.

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2.3.4. To access the Services, Merchant must also provide payment card information (such card, the “Vaulted Card”). Merchant’s Vaulted Card will only be charged by OneText if Merchant’s User Account balance becomes negative. If Merchant’s User Account balance becomes negative and charging the Vaulted Card fails, OneText will seek to recover the owed amounts by taking 100% of text order transactions until the Merchant User Account balance is restored to zero. Thereafter, 20% of transaction revenue will be taken until the account balance is $100.

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2.4. Merchant Obligations. Merchant must fulfill Consumer orders and may only charge a Consumer if such Consumer has consented to the transaction. Merchant is responsible for processing any Consumer refunds. As between the parties, Merchant is required to obtain lawful consent from a Consumer to send messages to such Consumer, and Merchant is responsible for the content of any such message.

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2.5. Payment Failure

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2.5.1 Transaction Processing by OneText. In the event a payment related to an order from a Consumer is unable to be processed by Merchant’s Primary Processor and Backup Processor for any reason [or otherwise at the election of OneText], Merchant agrees that OneText may process the payment from a Consumer through OneText’s payment processor or acquirer (individually and collectively, the “OneText Processor”) and not submit or utilize the services of the Card Processor. In the event OneText processes a Consumer transaction through OneText Processor, it will act as merchant of record; provided, however, Merchant will remain exclusively liable to Consumers for all goods or services provided to, or requested by, Consumers and all Consumer orders. As merchant of record, OneText’s name will appear on payment transactions, which may be reflected on the statements prepared and provided to Consumers by their respective financial institutions. Merchant acknowledges that it shall comply with the relevant terms, limitations and usage conditions and restrictions imposed by Merchant’s Card Processors or card associations and OneText Processor with respect to the use of their payment methods. From time to time and in the applicable party’s sole discretion, Merchant may change its Card Processors and OneText may change the OneText Processor.

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2.5.2. Payment Settlement by OneText. To the extent OneText processes payments for Consumer orders submitted using the Services and OneText elects to accept payments from Consumers on behalf of Merchant, this Section 2.5(b) applies. Merchant authorizes OneText to receive funds from OneText Processor on Merchant’s behalf for settlement to Merchant, and Merchant authorizes OneText to act as Merchant’s agent with respect to settlement of funds in connection with Merchant’s sale of goods or services, whether directly or indirectly (including in the case of OneText as merchant of record). Pursuant to the terms hereof, OneText will remit to Merchant’s User Account for use of such funds as set forth in Section 2.5(c) all payments received from each such Consumer less any amounts owing to OneText under the terms of this Agreement. Payment from such Consumer shall be considered the same as payment made directly to Merchant by such Consumer. Upon such Consumer’s payment of the funds to OneText, such Consumer’s payment obligation to Merchant for an amount equal to the funds remitted to OneText is terminated. Merchant’s recourse is only against OneText if OneText fails to remit funds received from such Consumer pursuant and subject to the terms hereof.

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2.5.3. User Account. In the event OneText processes any Consumer transaction through OneText Processor pursuant to Section 2.5.1 or otherwise settles funds on Merchant’s behalf under Section 2.5.2, such funds processed in connection with OneText Processor or otherwise settled pursuant to Section 2.5.2 will be deposited into Merchant’s User Account. Merchant authorizes such funds therein to first be applied to any outstanding amounts owed to OneText, and any excess funds may only be used by Merchant to purchase goods or services from OneText on non-refundable basis. The balance in Merchant’s User Account may not exceed $2,000 at any point in time. To the extent such balance does exceed $2,000, the amount of such excess will be automatically applied to any outstanding amounts owed to OneText or, if no amount is owed to OneText, forfeited. Upon termination of this Agreement and at OneText’s election, the funds will either be returned to Merchant (net of any amounts owed to OneText) or forfeited to OneText. If funds are posted to the User Account pursuant to this Section 2.5.3, Merchant agrees it has sixty (60) days from funds posting to the User Account to use such funds. If Merchant does not use funds in such time period, such funds will expire and be forfeited to OneText.

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2.6. Chargebacks. As between the parties, Merchant is liable for all Chargebacks, Chargeback fees, refunds, and all related fees relating to transactions processed on its behalf through OneText or OneText Processor. “Chargebacks” may occur when a Consumer disputes a payment resulting in a full refund of a transaction together with associated fees being charged to Merchant, and mean the sum of (i) amounts assessed, withheld from or charged OneText by OneText Processor to cancel, change, reverse, or otherwise in connection with previously settled payments and (ii) any related fees, fines, or penalties assessed, withheld, or charged to OneText by OneText Processor. Chargebacks include direct debit reversals or other reversals associated with any Consumer payment. In the event of a Chargeback, OneText may bill the Vaulted Card for the amount of such Chargeback.

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2.7. Restrictions. Merchant will not and will not permit others to:

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2.7.1. attempt to derive the source code, structure, algorithms, or ideas underlying the Services;

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2.7.2. copy, translate, or prepare derivative works of any content or screen shots accessible via the Services or bypass, delete, or disable any copy protection or security mechanisms associated with the Services;

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2.7.3. publish, pledge, rent, lease, sell, resell, or commercially distribute the Services to any third parties;

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2.7.4. use the Services to create or develop any competing products or services;

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2.7.5. alter, remove, obscure, or destroy any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation placed upon the OneText Materials;

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2.7.6. make the Services or Login Credentials available to anyone other than the Authorized Users;

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2.7.7. use the Services to upload, create, access, display, store, manipulate, or distribute any Merchant Data that infringes upon the intellectual property, privacy, or proprietary rights of any third party; or

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2.7.8. use the Services in a manner that violates any statute, law, rule, regulation, directive, guideline, or bylaw in place at the time of such use, including, for the avoidance of doubt, the Telephone Consumer Protection Act and the California Consumer Privacy Act and other similar applicable laws of any jurisdiction.

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3. OneText’s Services Commitment and Services Support

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3.1. Availability. OneText will use commercially reasonable efforts to make the Services Available twenty-four (24) hours a day, seven (7) days a week, except for (i) scheduled maintenance, (ii) unplanned emergency maintenance, and (iii) unavailability due to a Force Majeure Event (as defined in Section 12.4) beyond OneText’s reasonable control. “Available” means the service is available for access and use by Merchant and its Authorized Users and is operating in accordance with the Documentation in all material respects.

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3.2. Support Hours. OneText will provide technical support to Merchant for the Services from 8 AM Pacific time to 10 PM Pacific time, Monday to Friday, excluding U.S. national holidays via helpdesk@onetext.com.

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4. Privacy and Protection of Data

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4.1. Protection of Merchant Data. Merchant acknowledges that if it uses any of the Services’ public features, any Merchant Data provided therein may be publicly accessible. Merchant’s access to the Services may require Merchant or Authorized Users to provide Merchant Data that includes personal information. OneText will use commercially reasonable efforts to maintain the appropriate safeguards for the protection of Merchant Data. Although OneText uses commercially reasonable efforts to safeguard Merchant Data unauthorized third parties may breach the security of OneText’s or its agents’ information systems where Merchant Data is stored. Accordingly, OneText will not be responsible for any breach in security except to the extent the breach is due to OneText’s gross negligence. OneText retains the right to provide notice of security breaches as necessary to comply with applicable privacy laws and regulations. Merchant will convey information notices as required by applicable law, gain any necessary consents from Authorized Users, make any necessary filings with data protection authorities, and enforce and comply with any request from Authorized Users or authorities to access, rectify, and/or delete any Merchant Data of Authorized Users.]

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4.2. Privacy Policy. OneText’s Privacy Policy, which can be found at https://home.onetext.com/privacy-policy, describes how OneText handles Merchant Data. Merchant acknowledges that it has reviewed the Privacy Policy and agrees to comply with it. OneText will not disclose Merchant Data except in accordance with OneText’s Privacy Policy.

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4.3. Core Vault. Customers who order via OneText’s payment system, vault a payment method with OneText, agree to OneText terms and conditions and may consent to receive marketing directly from OneText. These Customers onboard into OneText’s Core Vault and can pay frictionlessly via Text to Buy across any brand that uses OneText. See the Appendix 1 for additional details.

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4.4. Extended Vault Network. The Extended Vault Network, is an optional, on-by-default OneText feature that allows Merchants and Customers to benefit from personalized, low friction shopping experiences. When enabled, OneText may prefill Customer information across brands. See Appendix 1 for additional details.

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5. Fees

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5.1 Fees. The fees shall consist of (i) a fixed monthly fees (the “Fixed Fees”), (ii) SMS Provider or other carrier fees per Short Message Service (SMS), Multimedia Messaging Service (MMS) message or Rich Communication Service (RCS) message and Card Processor Fees (the “Passthrough Fees”), and (iii) Transaction Fee fees as a percentage of sales to Consumers generated through the Services (the “Transaction Fee”), in each case, as set forth in the Order Form.

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5.2. Invoicing; Payment.  OneText will automatically deduct accrued Passthrough Fees and Transaction Fee fees at the time of each text-to-buy transaction. No prior approval from the Merchant is necessary for these deductions. Unless otherwise set forth in the Order Form, (i) OneText will invoice Merchant the Fixed Fees in advance on a [monthly] basis and (ii) all invoices are due thirty (30) days after the invoice date. In the event that the balance of Merchant’s User Account is negative or Merchant is unable to pay any undisputed fees, Merchant agrees that OneText may bill the Vaulted Card for the amount of such negative balance or undisputed fees in accordance with Section 2.3(e). Any fees that are not paid when due will accrue interest at 1.5% per month, or at the highest rate permissible by law, whichever is lower. Fees are based on the Services purchased, not on actual usage, and they will be paid in the currency specified in the Order Form. Payment obligations are non-cancelable and fees that have been paid in advance are non-refundable and Merchant will not be entitled to any refund.

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5.3. Disputes. Merchant may dispute an invoice by providing OneText with written notice and the relevant documentation or information evidencing the error that gave rise to the dispute within thirty (30) days of the invoice date. If Merchant does not notify OneText within this timeframe, Merchant waives its right to dispute such invoice. Notwithstanding any disputes, Merchant will pay any undisputed amount of an invoice on or before the due date. In the event of a dispute, the parties will use best efforts to promptly resolve it.

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5.4. Suspension of Services and Acceleration of Fees. If Merchant owes any undisputed fees under the Agreement that is more than thirty (30) days overdue, OneText may charge Merchant’s accelerate any unpaid fee obligations, which will become immediately due and payable. OneText can also suspend Merchant’s access to the Services until all amounts have been paid.

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5.5. Modification of Fees. OneText reserves the right to modify the Fixed Fees or Transaction Fee upon written notice at least sixty (60) days prior to end of the then-current Term of the applicable Order Form. The modified Fixed Fees or Transaction Fee will be effective at the start of the next Renewal Term, unless Merchant notifies OneText of non-renewal at least thirty (30) days prior to the end of the then-current term. Merchant agrees that Passthrough Fees are dependent on SMS Providers, Card Processors and other third parties and may fluctuate without notice.

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5.6. Additional Merchant Costs and Expenses. If Merchant requires storage for Merchant Data in excess of the amount specified in an applicable Order Form, or services related to the conversion or transition of Merchant Data, Merchant will be responsible for all associated costs.

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5.7. Taxes. The fees are exclusive of any applicable sales, use, gross receipts, excise, value-added, personal property, or other similar taxes, which shall be separately itemized and payable by Merchant. If OneText has the legal obligation to pay or collect any taxes that Merchant is responsible for, the appropriate amount will be invoiced to Merchant and paid accordingly. Merchant indemnifies OneText against any penalties, interest, or other liability arising from its failure to pay applicable taxes.

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6. Confidentiality

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6.1. General Obligations. All Confidential Information relating to or provided by one party (the “Disclosing Party”) shall be held in confidence by the other party (the “Receiving Party”) to the same extent and in at least the same manner as the Receiving Party protects its own confidential or proprietary information, but in no event less than reasonable care, and shall be used by the Receiving Party only for the purposes of this Agreement. No party may disclose, publish, release, transfer, or otherwise make available Confidential Information of, or obtained from, the other in any form to, or for the use or benefit of, any person or entity without the other party’s consent. Each party shall be permitted to disclose relevant aspects of the other’s Confidential Information to its officers, directors, employees and agents, to the extent that such disclosure is not restricted under this Agreement, but only to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations under this Agreement. The obligations in this Section 6.1 shall not restrict any disclosure pursuant to any applicable law or by order of any court or governmental authority, provided that the recipient shall give prompt notice to the Disclosing Party of such order.

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6.2. Exclusions. The obligations set forth in Section 6.1 shall not apply to any information which (i) known to the Receiving Party without restriction when received, or is developed independently by the Receiving Party, without reference to Confidential Information of the Disclosing Party, (ii) obtained from a source other than the Disclosing Party through no breach of confidentiality obligations by the Receiving Party and no wrongdoing by any third party, (iii) in the public domain when received or thereafter enters the public domain through no fault or wrongdoing of the Receiving Party or any third party, or (iv) disclosed by the Disclosing Party to a third party without restriction.

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6.3. Mandatory Disclosure. Each party may disclose the other party’s Confidential Information if, and to the extent that, it is required to do so by a regulator, relevant stock exchange, or otherwise by law provided that, to the extent it is permitted to do so, it will (i) notify the other party as soon as practicable upon becoming aware of the obligation to disclose, and (ii) cooperate with the other party in avoiding or limiting the disclosure and obtaining assurances as to confidentiality from the body to whom the Confidential Information is to be disclosed.

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6.4. Injunctive and Equitable Relief. The parties acknowledge that their respective Confidential Information is unique and valuable, and that breach by the Receiving Party of the obligations of this Section 6 regarding the Disclosing Party’s Confidential Information could result in irreparable injury to the Disclosing Party for which monetary damages alone would not be an adequate remedy. Therefore, the parties agree that in the event of a breach or threatened breach of such provisions, the affected party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

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6.5. Return of Confidential Information. Upon request of the Disclosing Party, copies and embodiments of the Disclosing Party’s Confidential Information shall be promptly returned to the Disclosing Party by the Receiving Party. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party all Confidential Information provided by the other party, including all copies thereof, provided that the Receiving Party shall be entitled to keep one copy of such Confidential Information in a secure location solely for the purpose of determining the Receiving Party’s legal obligations hereunder.

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7. Ownership

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7.1. Ownership of Services. OneText retains all rights, title, and interest (including all intellectual property rights and other rights) in and to the Services, including any modifications or updates thereto. Merchant does not acquire any other rights, express or implied, in the Services other than those rights expressly granted under this Agreement. Merchant acknowledges that the Services embody OneText’s Confidential Information and that they are protected by copyright and other intellectual property laws.

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7.2. Ownership of Merchant Data. Merchant retains all rights, title, and interest (including all intellectual property rights and other rights) in and to Merchant Data. Notwithstanding anything to the contrary, Merchant hereby grants OneText a worldwide, sublicensable, transferable, nonexclusive, royalty-free, irrevocable and perpetual license to [(i) collect and use Merchant Data for performing and improving the Services, including OneText’s current or future products or services, and (ii) disclose Merchant Data in aggregate or anonymized form in connection with OneText’s business]. Merchant Data in aggregate or anonymized form will not be considered Merchant’s Confidential Information. [Merchant acknowledges that its effective use of the Services depends on the OneText’s use of Merchant Data, including, without limitation, the OneText’s ability to aggregate the Merchant Data in order to analyze use of the Services and data trends.

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7.3. Feedback. If Merchant elects to provide OneText with any feedback, comments, or suggestions for improvements of any kind related to the Services (“Feedback”), Merchant hereby grants OneText a worldwide, sublicensable, transferable, nonexclusive, royalty-free, irrevocable and perpetual right and license to use and disclose such Feedback in any manner and for any purpose.

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8. Representations and Warranties

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8.1. General Representations and Warranties. Each party hereby represents and warrants that:

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8.1.1. it is duly organized and validly existing under the laws of the state or country of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof;

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8.1.2. it is in good standing with all relevant governmental authorities;

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8.1.3. it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder; and

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8.1.4. this Agreement is a legal and valid obligation binding upon it and enforceable in accordance with its terms. The execution, delivery and performance of this Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.

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8.2. OneText Warranties. OneText warrants that the Services will perform in accordance with the specifications set forth in the applicable Documentation. Merchant’s sole and exclusive remedy hereunder with respect to any failure of the Services to function in accordance with the prior sentence will be OneText’s commercially reasonable efforts to correct any failures.

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8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE SERVICES ARE PROVIDED TO MERCHANT “AS IS.” ONETEXT HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ONETEXT DOES NOT WARRANT THAT THE SERVICES WILL MEET MERCHANT’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR BE ERROR-FREE.

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9. Indemnification

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9.1. Merchant’s Indemnifications. Merchant will at its expense, defend, indemnify and hold OneText harmless from and against any all liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees, in connection with any claim, suit, action, or proceeding (“Claim”) (i) alleging that Merchant Data infringes or misappropriates a third party’s intellectual property rights, (ii) arising from an Authorized User, data protection authority, or other third party with regards to the obligations set forth in Section 4.1, (iii) arising from Merchant’s use or access of the Services, and (iv) arising from material breach by Merchant or its Authorized User of any term, condition, representation, or covenant under this Agreement. Merchant agrees not to settle any Claim without OneText’s prior written consent.

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9.2. OneText’s Indemnifications. OneText will at its expense, defend, indemnify and hold Merchant harmless from and against any all liabilities, losses, damages, costs and expenses, including reasonable attorneys’ fees, in connection with any Claim alleging that the Services infringe or misappropriate a third party’s intellectual property rights. If a third party infringement claim arises or if OneText reasonably believes that it is likely to become the subject of a third party infringement claim, it may procure for Merchant the right to continue to use the Services, replace or modify the Services to make them non-infringing, or terminate the Agreement upon thirty (30) days written notice. OneText will not have any liability for any Claim to the extent that it arises from (i) any matter for which Merchant is obligated to indemnify, (ii) the use of the Services with any other product or service not provided by OneText, (iii) modification or misuse of the Services, such that but for the modification or misuse, the Services would not have been infringing, (iv) continued use of the Services after Merchant has been notified and requested to return the Services, (v) continued use of any version of the Services other than the current version if the current version was made available to Merchant, and (vi) use of the Services under a pilot subscription, evaluation agreement, or other beta service.

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9.3. Indemnification Procedure. After becoming aware of any Claim against either party for which such party (the “Indemnified Party”) believes it may be entitled to indemnification under Section 9, the Indemnified Party shall promptly notify the other party (the “Indemnifying Party”) in writing of such Claim and cooperate with the Indemnified Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall not settle any Claim in a manner that adversely affects the rights of the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party’s failure to perform any obligations under this Section 9.3 shall not relieve the Indemnifying Party of its obligation under this Section 9.3 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of the failure. The parties will reasonably cooperate with each other in the defense and settlement of any such Claim.

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10. Limitation of Liability

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IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY CLAIMING THROUGH OR UNDER SUCH PARTY, FOR ANY LOST PROFITS, OR FOR ANY INCIDENTAL, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT (I) TO FULFILL ANY INDEMNITIES PROVIDED BY EITHER PARTY UNDER SECTION 9 OF THIS AGREEMENT, (II) MERCHANT’S FAILURE TO OBTAIN LAWFUL CONSENT FOR ONETEXT TO CONTACT CUSTOMERS, (III) MERCHANT’S FAILURE TO FULFILL CUSTOMER ORDERS, OR (IV) MERCHANT’S FAILURE TO PROCESS CUSTOMER REFUNDS, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE AMOUNTS MERCHANT PAID TO ONETEXT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS IN THIS SECTION 10 ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF THIS SECTION 10 THE PRICING AND OTHER TERMS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

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11. Term and Termination

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11.1. Term. Unless terminated earlier as provided in this Agreement, this Agreement will become effective upon the Effective Date and continue until for the period specified on the applicable Order Form (the “Initial Term”). After the Initial Term, the Agreement will automatically renew for additional successive periods equal to the Initial Term (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides written notice of non-renewal as least thirty (30) days prior to the end of the then-current Term.

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11.2. Termination. Either party may terminate upon thirty (30) days written notice if the other party (i) commits a material breach of the Agreement (including non-payment) that remains uncured for more than thirty (30) days after notice of breach, (ii) becomes insolvent, makes a general assignment for the benefit of its creditors, appoints a receiver for its business or assets, or becomes subject to any proceedings under bankruptcy or insolvency laws, whether domestic or foreign, or (iii) is liquidated, voluntarily or otherwise.

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11.3. Effects of Termination. Upon termination or expiration of this Agreement, Merchant and its Authorized Users will cease all use of the Services. Unless otherwise agreed by OneText in writing (email acceptable), Merchant agrees to maintain the integration between the Services and Merchant’s Primary and/or Backup Card Processor for at least three (3) months following the effective date of termination or expiration so that the Services are able to process any Consumer refund requests or Chargebacks for transactions that occurred prior to the termination of the Services. Merchant agrees that the Vaulted Card may be charged for the amount of any Chargeback if OneText is unable to process such Chargeback through Merchant’s Primary and Backup Processors.

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11.4. Survival. Notwithstanding any termination or expiration of this Agreement, Section 1 (Definitions), Section 2.5(c) (User Account), Section 4.1 (Protection of Merchant Data), Section 5 (Fees), Section 6 (Confidentiality), Section 7 (Ownership), Section 8 (Representations and Warranties), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11 (Term and Termination), and Section 12 (General Terms) will survive any expiration or termination of this Agreement.

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12. General Terms

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12.1. Independent Contractor Status. Each party agrees that its relationship with the other party is that of an independent contractor and that nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Neither party shall be responsible to the other party and neither party has the authority to act for, bind, or incur any debts or liabilities on behalf of the other party.

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12.2. Governing Law. The rights and obligations of the parties under this Agreement shall be governed in all respects by the laws of the State of California exclusively, without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. All disputes arising hereunder, other than disputes concerning infringement or misappropriation of intellectual property rights, shall be resolved by confidential binding arbitration, under the commercial rules of the Judicial Arbitration and Mediation Service (“JAMS”), with one (1) arbitrator mutually agreed upon by the parties. If the parties are unable to agree upon arbitrator, JAMS will appoint the arbitrator in accordance with its rules. Any arbitration shall occur in the City and County of San Francisco. The decision of such arbitration shall be final and binding on the parties. All disputes arising hereunder concerning infringement or misappropriation of intellectual property rights shall be subject to the exclusive jurisdiction of the federal and state courts located the City and County of San Francisco and the courts have jurisdiction over appeals therefrom, and the parties hereby consent to the jurisdiction of such courts and venue therein.

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12.3. Assignment. Either party may assign its rights or obligations hereunder, provided that this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

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12.4. Force Majeure. If either party is unable to perform any of its obligations hereunder due to any acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, pandemics, quarantine or lock-down restrictions, strikes or other labor-related problems, Internet or service provider failures or delays, denial of service attacks, or any other cause beyond its reasonable control (each a “Force Majeure Event”), such affected party will not be liable for its delay or failure as long as it uses commercially reasonable efforts to avoid such occurrence and minimize its duration, and gives prompt notice to Merchant. If the force majeure event continues for more than thirty (30) days, either party may terminate this Agreement upon written notice to the other party.

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12.5. Notices and Other Communications. Except as otherwise provided, all notices under this Agreement will be delivered by email to legal@onetext.com, or physical mail to the other party at the address or number set forth in this Agreement or the applicable Order Form. Notices will be deemed to have been given (i) at the time of delivery when delivered by email, (ii) at the time of delivery when delivered personally, or (iii) five (5) business days after having been sent by physical mail.

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12.6. Severability. If any provision in this Agreement is found or held to be invalid or unenforceable, then the meaning of said provision will be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it will be severed from the remainder of this Agreement which will remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by either party. In such event, the parties will negotiate, in good faith, a substitute, valid, and enforceable provision or agreement which most nearly effects the parties’ intent in entering into this Agreement.

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12.7. No Third Party Beneficiaries. The terms and provisions of this Agreement are intended solely for the benefit of each party and their respective successors and permitted assigns, and the parties do not intend to confer third party beneficiary rights upon any other entity or person.

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12.8. Failure to Enforce. Failure, neglect, or delay by either party to enforce at any time any of the provisions hereof or its rights or remedies shall not be construed nor shall be deemed to be a waiver of such party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such party’s rights to take subsequent action. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.

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12.9. Headings and Construction. The headings to the clauses, sub-clauses, and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular section or other portion hereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will be deemed to be followed by the words “without limitation.”

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12.10. Amendment. This Agreement may not be altered except by a written instrument signed by authorized legal representatives of both parties. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective.

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12.11. Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. The parties agree that .pdf signature copies of this Agreement will be legally binding.

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12.12. Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof, and supersedes any prior communications, representations, understandings and agreements, either oral or written, between the parties with respect to such subject matter.

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