Membersoft, LLC, d/b/a TomerTalk (“TomerTalk,” “our,” “we,” or “us”) provides messaging and other services to users. You agree to our Terms of Service (“Terms”) by installing, accessing, or using our apps, services, features, software, or website (together, “Services”).

NO ACCESS TO EMERGENCY SERVICES: Our Services do not provide access to emergency services or emergency services providers, including the police, fire departments, or hospitals, or otherwise connect to public safety answering points. You should ensure you can contact your relevant emergency services providers through a mobile, fixed-line telephone, or other service.

Registration. You must register for our Services using accurate data, and, if you change it, update this data through our app. You agree to receive text messages and phone calls (from us or our third party providers) with codes to register for our Services.

Address book. You provide us the phone numbers of others you communicate with through our Services and your other contacts in your mobile phone address book on a regular basis. You confirm you are authorized to provide us such numbers to allow us to provide our Services.

Age. You must be at least 13 years old to use our Services (or such greater age required in your country for you to be authorized to use our Services without parental approval). In addition to being of the minimum required age to use our Services under applicable law, if you are not old enough to have authority to agree to our Terms in your country, your parent or guardian must agree to our Terms on your behalf.

Connecting you with other people. We provide ways for you to communicate with others including through messages, voice calls, sending images and video, showing your status, and sharing your location with others when you choose. We work with partners, service providers, and affiliated companies to help us provide ways for you to connect with their services. We use the information we receive from them to help operate, provide, and improve our Services.

Communicating with businesses. We provide ways for you and third parties, like businesses, to communicate with each other, such as through order, transaction, and appointment information, delivery and shipping notifications, product and service updates, and marketing. Messages you may receive containing marketing could include an offer for something that might interest you.

Devices and Software. You must provide certain devices, software, and data connections to use our Services, which we otherwise do not supply. For as long as you use our Services, you consent to downloading and installing updates to our Services, including automatically.

Fees and taxes. You are responsible for all carrier data plan and other fees and taxes associated with your use of our Services. We may charge you for our Services, including applicable taxes. We may refuse or cancel orders. We do not provide refunds for our Services, except as required by law. We reserve the right, in our sole discretion, to change the fees for our Services upon thirty (30) days advance notice of the applicability of such change to the fees.

Charges. You understand that you may be charged a monthly fee for our Services, including other fees, surcharges, and applicable taxes. All charges are facilitated through a third party payment processing service. Your payment method will be charged monthly in advance for service plan charges, fees, taxes and surcharges. We may refuse or cancel orders. We do not provide refunds for our Services, except as required by law. We reserve the right, in our sole discretion, to change the fees for our Services upon thirty (30) days advance notice of the applicability of such change to the fees.

Cancellation. You may cancel your account and terminate your access to our Services at any time. Cancellation will be effective immediately, and you will lose access to any messages and data associated with your account. Your payment method will no longer be charged if you cancel your account.

No credit for non-usage. Non-usage of our Services does not entitle you to a credit for, or refund of, any portion of any payment made to us.

Non-payment. If any charge to your payment method is declined, or reversed, or if your payment method expires, your account will be terminated and you will lose access to our Services, and any messages or data associated with your account.

Modification to our Services. We reserve the right at any time to modify or discontinue, temporarily or permanently, our Services (or any part thereof) with or without notice. TomerTalk shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of our Services.

Phone number When you register for our Services, you will be assigned a phone number (the “Assigned Number”). You acknowledge that the Assigned Number is temporary and that if you cancel your account or if you are no longer permitted access to our Services for any reason, the Assigned Number will be released, and you will no longer have access to or use of the Assigned Number, and the Assigned Number will no longer be associated with your account. Released phone numbers cannot be recovered. We reserve the right to change the Assigned Number at any time and for any reason.

Our Privacy Policy describes our information practices, including the types of information we receive and collect from you and how we use and share this information. You agree to our data practices, including the collection, use, processing, and sharing of your information as described in our Privacy Policy, as well as the transfer and processing of your information to the United States and other countries globally where we have or use facilities, service providers, or partners, regardless of where you use our Services. You acknowledge that the laws, regulations, and standards of the country in which your information is stored or processed may be different from those of your own country.

Our Terms and policies. You must use our Services according to our Terms and posted policies. If we disable your account for a violation of our Terms, you will not create another account without our permission.

Legal and acceptable use. You must access and use our Services only for legal, authorized, and acceptable purposes. You will not use (or assist others in using) our Services in ways that: (a) violate, misappropriate, or infringe the rights of us, our users, or others, including privacy, publicity, intellectual property, or other proprietary rights; (b) are illegal, obscene, defamatory, threatening, intimidating, harassing, hateful, racially, or ethnically offensive, or instigate or encourage conduct that would be illegal, or otherwise inappropriate, including promoting violent crimes; (c) involve publishing falsehoods, misrepresentations, or misleading statements; (d) impersonate someone; (e) involve sending illegal or impermissible communications such as bulk messaging, auto-messaging, auto-dialing, and the like; or (f) involve any non-personal use of our Services unless otherwise authorized by us.

Harm to TomerTalk or our users. You must not (or assist others to) access, use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sublicense, transfer, display, perform, or otherwise exploit our Services in impermissible or unauthorized manners, or in ways that burden, impair, or harm us, our Services, systems, our users, or others, including that you must not directly or through automated means: (a) reverse engineer, alter, modify, create derivative works from, decompile, or extract code from our Services; (b) send, store, or transmit viruses or other harmful computer code through or onto our Services; (c) gain or attempt to gain unauthorized access to our Services or systems; (d) interfere with or disrupt the integrity or performance of our Services; (e) create accounts for our Services through unauthorized or automated means; (f) collect the information of or about our users in any impermissible or unauthorized manner; (g) sell, resell, rent, or charge for our Services; or (h) distribute or make our Services available over a network where they could be used by multiple devices at the same time.

Keeping your account secure. You are responsible for keeping your device and your account safe and secure, and you must notify us promptly of any unauthorized use or security breach of your account or our Services.

Our Services may allow you to access, use, or interact with third party websites, apps, content, and other products and services. For example, you may choose to use third party data backup services that are integrated with our Services or interact with a share button on a third party’s website that enables you to send information to your TomerTalk contacts. Please note that when you use third party services, their own terms and privacy policies will govern your use of those services.

Your rights. TomerTalk does not claim ownership of the information or content that you submit for your account or through our Services. You must have the necessary rights to such information or content that you submit for your account or through our Services and the right to grant the rights and licenses in our Terms.

Our rights. We own all copyrights, trademarks, domains, logos, trade dress, trade secrets, patents, and other intellectual property rights associated with our Services. You may not use our copyrights, trademarks, domains, logos, trade dress, patents, and other intellectual property rights unless you have our express permission.

Your license to TomerTalk. In order to operate and provide our Services, you grant us a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, create derivative works of, display, and perform the information (including the content) that you upload, submit, store, send, or receive on or through our Services. The rights you grant in this license are for the limited purpose of operating and providing our Services (such as to allow us to display your profile picture and status message, transmit your messages and content, store your undelivered messages on our servers as we try to deliver them, and otherwise as described in our Privacy Policy).

TomerTalk’s license to you. We grant you a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use our Services, subject to and in accordance with our Terms. This license is for the sole purpose of enabling you to use our Services, in the manner permitted by our Terms. No licenses or rights are granted to you by implication or otherwise, except for the licenses and rights expressly granted to you.

You may not use our Services, or enable anyone else to use our Services, in a manner that:

• violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual-property right;

• bullies, harasses, or intimidates;

• defames;

• spams or solicits our users

You must also respect our rights. These Terms do not grant you any right to do any of the following (or enable anyone else to do so):

• use branding, logos, designs, photographs, videos, or any other materials used in our Services;

• copy, archive, download, upload, distribute, syndicate, broadcast, perform, display, make available, or otherwise use any portion of our Services or the content on our Services except as set forth in these Terms;

• use our Services, any tools provided by our Services, or any content on our Services for any commercial purposes without our consent

You may not use our Services or the content on the Services in ways that are not authorized by these Terms. Nor may you help anyone else in doing so.

If you believe that anything on our Services infringes a copyright that you own or control, please contact us at help@tomertalk.com. Please include the following information in your correspondence:

• physical or electronic signature of a person authorized to act on behalf of the copyright owner;

• identify the copyrighted work claimed to have been infringed;

• identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to let us locate the material;

• provide your contact information, including your address, telephone number, and an email address;

• provide a personal statement that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

• provide a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner

We will use reasonable efforts to maintain the security and integrity of information you provide to us. However, you acknowledge and agree that we cannot fully eliminate security risks and cannot guarantee that unauthorized access to your information will never occur. You agree that you are responsible for maintaining the security of your account and password. You agree that you will keep your password for your account confidential and secure, and that you will not share it with others. You further agree that:

• you will not use our Services for any purpose that is illegal or prohibited in these Terms;

• you will not use any robot, spider, crawler, scraper, or other automated means or interface to access our Services or extract other user’s information;

• you will not use or develop any third party applications that interact with our Services or other users’ content or information without our written consent;

• you will not use our Services in a way that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services, or that could damage, disable, overburden, or impair the functioning of our Services;

• you will not use or attempt to use another user’s account, username, or password without their permission;

• you will not solicit login credentials from another user;

• you will not transmit or post content that contains or links to pornography, graphic violence, threats, hate speech, or incitements to violence;

• you will not upload viruses or other malicious code or otherwise compromise the security of our Services;

• you will not attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of our Services that you are not authorized to access;

• you will not probe, scan, or test the vulnerability of our Services or any system or network;

• you will not encourage or promote any activity that violates these Terms;

• we also care about your safety while using our Services so do not use our Services in a way that would distract you from obeying traffic or safety laws. For example, never use our services while driving

Availability of our services. Our Services may be interrupted, including for maintenance, repairs, upgrades, or network or equipment failures. We may discontinue some or all of our Services, including certain features and the support for certain devices and platforms, at any time. Events beyond our control may affect our Services, such as events in nature and other force majeure events.

Termination. We may modify, suspend, or terminate your access to or use of our Services anytime for any reason, such as if you violate the letter or spirit of our Terms or create harm, risk, or possible legal exposure for us, our users, or others. The following provisions will survive any termination of your relationship with TomerTalk: “Licenses,” “Disclaimers,” “Limitation of Liability,” “Indemnification,” “Dispute Resolution,” “Availability and Termination of our Services,” “Other,” and “Special Arbitration Provision for United States or Canada Users.”

WE DO NOT GUARANTEE THAT TOMERTALK WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. YOU USE OUR SERVICES AT YOUR OWN RISK AND SUBJECT TO THE FOLLOWING DISCLAIMERS. WE ARE PROVIDING OUR SERVICES ON AN “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL CODE. WE DO NOT WARRANT THAT ANY INFORMATION PROVIDED BY US IS ACCURATE, COMPLETE, OR USEFUL, THAT OUR SERVICES WILL BE OPERATIONAL, ERROR FREE, SECURE, OR SAFE, OR THAT OUR SERVICES WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. WE DO NOT CONTROL, AND ARE NOT RESPONSIBLE FOR, CONTROLLING HOW OR WHEN OUR USERS USE OUR SERVICES OR THE FEATURES, SERVICES, AND INTERFACES OUR SERVICES PROVIDE. WE ARE NOT RESPONSIBLE FOR AND ARE NOT OBLIGATED TO CONTROL THE ACTIONS OR INFORMATION (INCLUDING CONTENT) OF OUR USERS OR OTHER THIRD PARTIES. YOU RELEASE US, OUR SUBSIDIARIES, AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, AND AGENTS (TOGETHER, THE “TOMERTALK PARTIES”) FROM ANY CLAIM, COMPLAINT, CAUSE OF ACTION, CONTROVERSY, OR DISPUTE (TOGETHER, “CLAIM”) AND DAMAGES, KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY SUCH CLAIM YOU HAVE AGAINST ANY THIRD PARTIES. YOU WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE §1542, OR ANY OTHER SIMILAR APPLICABLE STATUTE OR LAW OF ANY OTHER JURISDICTION, WHICH SAYS THAT: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, MEMBERSOFT, LLC AND OUR MANAGING MEMBERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, LICENSORS, AGENTS, AND SUPPLIERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR MULTIPLE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (B) THE CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES ON OR THROUGH THE SERVICES; OR (C) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR CONTENT, EVEN IF MEMBERSOFT, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MEMBERSOFT, LLC’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES EXCEED THE AMOUNT YOU PAID US IN THE LAST 12 MONTHS.

You agree, to the extent permitted by law, to indemnify, defend, and hold harmless Membersoft, LLC, our affiliates, directors, officers, stockholders, employees, licensors, and agents from and against any and all complaints, charges, claims, damages, losses, costs, liabilities, and expenses (including attorneys’ fees) due to, arising out of, or relating in any way to: (a) your access to or use of our Services; (b) your content; and (c) your breach of these Terms.

Forum and venue. If you are a user located in the United States or Canada, the “Special Arbitration Provision for United States or Canada Users” section below applies to you. Please also read that section carefully and completely. If you are not subject to the “Special Arbitration Provision for United States or Canada Users” section below, you agree that you will resolve any claim you have with us relating to, arising out of, or in any way in connection with our Terms, us, or our Services (each, a “Dispute,” and together, “Disputes”) exclusively in the United States District Court for the District of Maryland or a state court located in Maryland, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such Disputes.

Governing law. The laws of the State of Maryland govern our Terms, as well as any Disputes, whether in court or arbitration, which might arise between TomerTalk and you, without regard to conflict of law provisions.

Arbitration Provision for United States and Canada Users.

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND MEMBERSOFT, LLC TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.

“Excluded Dispute” means any Dispute relating to the enforcement or infringement of your or our intellectual property rights (such as copyrights, trademarks, domains, logos, trade dress, trade secrets, and patents). For clarity and notwithstanding the foregoing, those Disputes relating to, arising out of, or in any way in connection with your rights of privacy and publicity are not Excluded Disputes.

Agreement to arbitrate. For users located in the United States or Canada, Membersoft, LLC and you each agree to waive the right to a trial by judge or jury for all Disputes, except for the Excluded Disputes. Membersoft, LLC and you agree that all Disputes (except for the Excluded Disputes), including those relating to, arising out of, or in any way in connection with your rights of privacy and publicity, will be resolved through final and binding arbitration. Membersoft, LLC and you agree not to combine a Dispute that is subject to arbitration under our Terms with a Dispute that is not eligible for arbitration under our Terms.

Federal Arbitration Act. The United States Federal Arbitration Act governs the interpretation and enforcement of this “Special Arbitration Provision for United States or Canada Users” section, including any question whether a Dispute between Membersoft, LLC and you is subject to arbitration.

Agreement to arbitrate. For TomerTalk users located in the United States or Canada, TomerTalk and you each agree to waive the right to a trial by judge or jury for all Disputes, except for the Excluded Disputes TomerTalk and you agree that all Disputes (except for the Excluded Disputes), including those relating to, arising out of, or in any way in connection with your rights of privacy and publicity, will be resolved through final and binding arbitration. TomerTalk and you agree not to combine a Dispute that is subject to arbitration under our Terms with a Dispute that is not eligible for arbitration under our Terms.

The arbitration will be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules in effect at the time the arbitration is started, including the Optional Rules for Emergency Measures of Protection and the Supplementary Procedures for Consumer-Related Disputes (together, the “AAA Rules”). The arbitration will be presided over by a single arbitrator selected in accordance with the AAA Rules. The AAA Rules, information regarding initiating a Dispute, and a description of the arbitration process are available at www.adr.org. The arbitrator will decide whether a Dispute can be arbitrated. The location of the arbitration and the allocation of fees and costs for such arbitration shall be determined in accordance with the AAA Rules. Notwithstanding the AAA Rules, we will reimburse you for all the AAA administrative fees in Disputes that are subject to the Supplementary Procedures for Consumer-Related Disputes, unless the arbitrator determines that a Dispute was filed for purposes of harassment or is patently frivolous.

Small claims court. As an alternative to arbitration, if permitted by your local “small claims” court’s rules, you may bring your Dispute in your local “small claims” court, as long as the matter advances on an individual (non-class) basis.

Time limit to start arbitration. We and you agree that for any Dispute (except for the Excluded Disputes) we and you must commence an arbitration proceeding within one year after the Dispute first arose; otherwise, such Dispute is permanently barred. This means that if we or you do not commence an arbitration within one year after the Dispute first arose, then the arbitration will be dismissed because it was started too late.

No class actions, class arbitrations, or representative actions. We and you each agree that if you are a TomerTalk user located in the United States or Canada, each of we and you may bring Disputes against the other only on its or your own behalf, and not on behalf of any other person or entity, or any class of people. We and you each agree not to participate in a class action, a class-wide arbitration, Disputes brought in a private attorney general or representative capacity, or consolidated Disputes involving any other person or entity in connection with any Dispute.

Severability. If the prohibition against class actions and other Disputes brought on behalf of third parties is found to be unenforceable for a Dispute, then all of the provisions above under the caption “Special Arbitration Provision for United States or Canada Users” will be null and void as to that Dispute.

Arbitration agreement survival. This arbitration agreement will survive the termination of your relationship with Membersoft, LLC.

• Unless a mutually executed agreement between you and us states otherwise, our Terms make up the entire agreement between you and us regarding TomerTalk and our Services, and supersede any prior agreements.

• We may ask you to agree to additional terms for certain of our Services in the future, which will govern to the extent there is a conflict between our Terms and such additional terms.

• Our Services are not intended for distribution to or use in any country where such distribution or use would violate local law or would subject us to any regulations in another country. We reserve the right to limit our Services in any country.

• You will comply with all applicable U.S. and non-U.S. export control and trade sanctions laws (“Export Laws”). You will not, directly or indirectly, export, re-export, provide, or otherwise transfer our Services: (a) to any individual, entity, or country prohibited by Export Laws; (b) to anyone on U.S. or non-U.S. government restricted parties lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical, or biological weapons, or missile technology applications without the required government authorizations. You will not use or download our Services if you are located in a restricted country, if you are currently listed on any U.S. or non-U.S. restricted parties list, or for any purpose prohibited by Export Laws, and you will not disguise your location through IP proxying or other methods.

• ur Terms are written in English (U.S.). Any translated version is provided solely for your convenience. To the extent any translated version of our Terms conflicts with the English version, the English version controls.

• Any amendment to or waiver of our Terms requires our express consent.

• We may amend or update these Terms. Your continued use of our Services confirms your acceptance of our Terms, as amended. If you do not agree to our Terms, as amended, you must stop using our Services. Please review our Terms from time to time.

• All of our rights and obligations under our Terms are freely assignable by us to any of our affiliates or in connection with a merger, acquisition, restructuring, or sale of assets, or by operation of law or otherwise, and we may transfer your information to any of our affiliates, successor entities, or new owner.

• You will not transfer any of your rights or obligations under our Terms to anyone else without our prior written consent.

• Nothing in our Terms will prevent us from complying with the law.

• Except as contemplated herein, our Terms do not give any third party beneficiary rights.

• If we fail to enforce any of our Terms, it will not be considered a waiver.

• If any provision of these Terms is deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from our Terms and shall not affect the validity and enforceability of the remaining provisions, except as set forth in the “Special Arbitration Provision for United States or Canada Users” — “Severability” section above.

• We reserve all rights not expressly granted by us to you. In certain jurisdictions, you may have legal rights as a consumer, and our Terms are not intended to limit such consumer legal rights that may not be waived by contract.

• We always appreciate your feedback or other suggestions about TomerTalk and our Services, but you understand that we may use your feedback or suggestions without any obligation to compensate you for them (just as you have no obligation to offer them).

Updated March 14, 2019