a) Diamondcard Mobile Messaging Gateway Platform. Diamondcard agrees to use commercially reasonable efforts to deliver Content provided by the CUSTOMER to Carriers (for delivery to Subscribers) by means of the Diamondcard Mobile Messaging Gateway Platform as described in this Agreement. Diamondcard is responsible for obtaining and maintaining at its sole cost and expense Diamondcard Mobile Messaging Gateway, and the CUSTOMER shall not have any liability for the Diamondcard Mobile Messaging Gateway Platform.
b) Compliance with Laws, Regulations and Carrier Guidelines. Either Party shall comply with all applicable laws, rules, regulations, directives, statements, codes of practice, and MMA Guidelines and applicable Carrier guidelines with respect to the Delivery Services, text messaging in general and otherwise in connection with performing its obligations under this Agreement.
c) Content Format. All messages must contain only characters within the standard GSM character set.
d) Content Delivery Limitations. The Diamondcard Mobile Messaging Gateway Platform forwards Content delivered by the CUSTOMER to Carriers for forwarding to Subscribers of the Carrier. However, Diamondcard is not obligated ensure the delivery of Content by Carriers to Subscribers, and the CUSTOMER agrees that the Diamondcard bears no liability to the CUSTOMER or any Third Parties in the event a Carrier does not forward Content to a Subscriber. Upon request, Diamondcard will provide its standard reports to the CUSTOMER indicating whether Content has been delivered to Subscribers.
2.1 Blacklisted Numbers. The CUSTOMER acknowledges that some or all Carriers have implemented a "blacklist" that contains the mobile phone numbers for Subscribers that do not want to receive text messages. If and when Carriers provide this blacklist to Diamondcard, Diamondcard will provide the blacklist to the CUSTOMER, in which case the CUSTOMER will not send any Content to any number on the blacklist.
2.2 Content Disclaimer. The CUSTOMER agrees that Diamondcard and/or the Carriers, in their sole discretion, may reject sending all or part of any Content to Carriers. Diamondcard will notify the CUSTOMER in writing within five (5) business days if Content is being rejected by Diamondcard and the reasons for the rejection. The CUSTOMER agrees that Diamondcard will not be liable for rejection of any Content. The CUSTOMER is solely responsible for ensuring that the Content it supplies is accurate, complete and correct, and shall be solely responsible for all claims or liability arising from the distribution and publication of Content. Diamondcard shall have no obligation to read, proofread or correct any Content supplied by the CUSTOMER, nor shall have any responsibility for the accuracy, completeness or correctness of any Content supplied by the CUSTOMER, nor shall it have any obligation to read any Content to determine whether it contains Confidential Information.
2.3 Filtering. Diamondcard reserves the right to filter or have filtered Content without the prior written permission of the CUSTOMER, without assuming any obligation to filter such Content, to ensure compliance with this Agreement, Diamondcard agreements with Third Parties and applicable laws and regulations.
2.4 Third Party Consents for Content. The CUSTOMER agrees not to send Content that requires a Third Party consent unless it has obtained that consent in writing. Diamondcard may delay or suspend the delivery of any Content until the CUSTOMER has provided Diamondcard with evidence, reasonably satisfactory to Diamondcard, that the CUSTOMER is authorized to send the Content.
2.5 Suspension. Diamondcard may, without terminating this Agreement and without any liability to the CUSTOMER or any Third Party, immediately suspend part or all of the Delivery Services or the link between the Diamondcard Mobile Messaging Gateway Platform and the CUSTOMER System due to any of the conditions set forth below. Diamondcard will immediately notify the CUSTOMER and if such suspension is a direct result of any action by the CUSTOMER, the CUSTOMER will take reasonable steps to fix such problems. The reasons for possible suspension include but are not limited to:
CUSTOMER agrees to comply with, and be solely responsible for compliance with, all "opt-in" and "opt-out" requirements for receiving messaging (including Content) under all applicable laws, Carrier Standards and MMA Guidelines. CUSTOMER shall provide a short code response, website, and customer care email in which Subscribers can indicate to CUSTOMER whether they wish to receive or cease receiving Content. For example, a response of "stop" to a text message would mean that the subscriber has "opted out" and should no longer receive text messages from the CUSTOMER. The CUSTOMER shall immediately comply with any Subscriber request to cease receiving Content. The CUSTOMER shall provide contact information (at a minimum an email address) for the CUSTOMER's customer service at the same time and in a noticeable location (i.e., on the same web page or in the same SMS) as Subscribers register for the CUSTOMER's Delivery Services. The CUSTOMER must include an obvious notice that "other charges may apply" at the same time and location (i.e., on the same web page or in the same SMS) as Subscribers register for the CUSTOMER's Delivery Services.
CUSTOMER represents to Diamondcard that the Content (a) will not contain any material that is obscene, profane, libelous or defamatory; (b) will not violate or infringe any copyright, patent, trademark or trade secret or right of privacy or publicity or any other personal or proprietary right of Diamondcard or any Third Parties; (c) will comply with the law, Content Standards and MMA Guidelines; and (d) at the time of delivery to Diamondcard, will not contain any viruses, worms, trap doors, back doors, timers, clocks, counter or other limiting routines, instructions or designs. CUSTOMER further represents and warrants that it will not use the Delivery Services, or allow any Third Parties to use the Delivery Services, in violation of the law, Content Standards or MMA Guidelines to engage in any spamming, mail-bombing, spoofing or any fraudulent, illegal, unauthorized or improper use.
When CUSTOMER negotiates agreements with its customers where the Delivery Services may be used, CUSTOMER will use commercially reasonable efforts to include in CUSTOMER's customer agreements indemnification rights against such customers for any claims, suits, actions or proceedings which would constitute Claims under this Agreement. Upon written request by Diamondcard and subject to CUSTOMER's confidentiality obligations with respect to its customers, CUSTOMER will notify Diamondcard of the extent to which it has obtained such indemnification rights against CUSTOMER's customers. CUSTOMER's compliance with this Section does not relieve it of its indemnification obligations under this Agreement.
Carriers prohibit the sending of certain types of Content over their systems including, without limitation, the types listed below. Carriers also reserve the right to amend their list of prohibited Content at any time. Accordingly, CUSTOMER may not submit Content to the Diamondcard Mobile Messaging Gateway Platform of any type listed below or of any type otherwise prohibited by the Carriers. Diamondcard reserves the right, in its sole discretion, to modify the list upon written notice to CUSTOMER, including as required by any Carrier.