Terms and Conditions

MobiTX Terms of Use

Last Update: February 1, 2009

THIS WEBSITE AT WWW.MOBITX.COM (THE ‘WEBSITE’) IS MADE AVAILABLE TO YOU BY MOBITX, INC. (‘MOBITX’). PLEASE READ THESE TERMS OF USE (THE ‘TERMS OF USE’) CAREFULLY BEFORE ACCESSING, VIEWING OR, USING THE WEBSITE OR SUBSCRIBING TO THE SERVICES AVAILABLE FROM MOBITX. BY ACCESSING, VIEWING OR USING THE WEBSITE OR SUBSCRIBING TO THE SERVICES, YOU AGREE TO BE BOUND BY ALL THE TERMS OF USE. IF YOU DO NOT AGREE TO ALL THE TERMS OF USE, YOU DO NOT HAVE THE RIGHT TO ACCESS, VIEW OR USE THE WEBSITE OR TO SUBSCRIBE TO THE SERVICES. MOBITX MAY MODIFY THE TERMS OF USE FROM TIME TO TIME, IN MOBITX’S SOLE DISCRETION. YOU ARE RESPONSIBLE FOR COMPLYING WITH THE MOST CURRENT VERSION OF THE TERMS OF USE POSTED ON THE WEBSITE. YOUR USE OF THE WEBSITE OR THE SERVICES FOLLOWING ANY MODIFICATIONS WILL SIGNIFY YOUR CONSENT AND TO ACCEPTANCE OF SUCH REVISED TERMS OF USE.

1. DEFINITIONS.

(a) ‘Advertisements’ means those direct, impression and other types of advertisements, promotional and marketing materials (i) displayed by MobiTX on the Website or (ii) delivered to a Subscriber by MobiTX via text messaging or other similar means. ‘Advertisements’ include without limitation all content contained therein.

(b) ‘Advertisers’ means those third party advertisers who provide Advertisements to MobiTX for MobiTX to serve and provide to Subscribers in connection with the Services.

(d) ‘Points’ means those points earned by a Subscriber via such Subscriber’s participation in Subscriber Interactions.

(e) ‘Products’ means those products and/or services offered for sale to Subscribers by Advertisers pursuant to Advertisements as part of the Services.

(f) ‘Services’ means those services provided by MobiTX to Subscribers in connection with the Website, including without limitation (i) delivering and serving Advertisements to Subscribers, (ii) providing Subscribers with links to Advertisers’ websites and access to Product sales, and (iii) redeeming Subscriber Points earned by Subscriber for, among other things, credit toward Carrier account fees, gift cards for cellular minutes and check payments from MobiTX to Subscriber.

(g) ‘Subscriber’ means a person who has subscribed to the Services.

(h) ‘Subscriber Interaction’ means those means and methods by which a Subscriber may earn Points, including without limitation, purchasing Products, signing up for the Services, receiving text messages from Advertisers, watching Subscriber ads and providing feedback thereto, and such other activities as MobiTX may offer from time to time.

2. THE WEBSITE.

(a) Scope. These Terms of Use apply to all Subscribers. The Website includes all aspects of MobiTX, including without limitation, Services, Advertisements, Subscriber Interactions and other information, materials and services offered to Subscriber herein. Subject to the terms of these Terms of Use, MobiTX grants Subscriber permission to (i) access and view the Website, Advertisements thereon and associated content and (ii) participate in Subscriber Interactions, all solely for his/her own information and personal use or to otherwise participate in the Services.

(b) Third Party Links. The Website will contain links to third party websites, including without limitation, Advertiser websites that are not owned or controlled by MobiTX. MobiTX assumes no responsibility for and does not review or edit the content, practices or policies of any third party site, including without limitation sites owned or controlled by Advertisers. Subscriber agrees that MobiTX shall not be liable for any third party sites, including without limitation content contained therein. Subscriber accesses such third party and Advertiser sites is at Subscriber’s own risk.

(c) Customer Service. Subscribers may direct questions or requests regarding the Services to MobiTX’s customer service department by clicking the appropriate link on the Website.

(d) Website Use Limitations. Subscriber may not:

(i) copy and/or distribute the Website, the Advertisements, or any portion thereof or content of any kind included therein, in any medium without MobiTX’s prior written consent;

(ii) modify the Website, or any portion thereof;

(iii) access Advertisements or Website content or Subscriber Interactions through any technology or means other than those provided on the Website itself; or

(iv) use the Website, or any portion thereof or content of any kind included therein, in any medium, for any commercial use.

(e) Ownership and Restrictions.

(i) The Website, Services, including without limitation the Subscriber Interactions and Advertisements and content therein are owned by MobiTX or its licensors, subject to copyright and other intellectual property rights under the United States and foreign laws and international conventions. Subscriber agrees to abide by all copyright notices and trademark, information, and other restrictions in connection with the Website, Service, Subscriber Interactions and Advertisements, including without limitation any content therein.

(ii) Content on the Website or on any Advertisements and related to any Subscriber Interactions may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent or express permission of MobiTX, the Advertisers or their respective owners, as applicable. All rights not expressly granted in and to the Website, Services, Advertisements and Subscriber Interactions are expressly reserved by MobiTX and its licensors, including without limitation, Advertisers.

(f) Noninterference. Subscriber shall not circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any content or enforce limitations on use of the Website, Subscribers Interactions, Services or Advertisements therein.

(g) Third Party Content. On the Website, Subscriber will be exposed to content from a variety of sources. MobiTX is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content. Subscriber further understands and acknowledges that Subscriber may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and Subscriber agrees to waive and hereby does waive, any legal or equitable rights or remedies Subscriber has or may have against MobiTX in connection therewith. Subscriber’s sole and exclusive remedy in connection with exposure to third party material shall be to cancel Subscriber’s subscription to the Services.

3. SETTING UP AN ACCOUNT.

(a) Subscriber Registration. To activate an account, a person must: (i) complete the Subscriber application on the Website at www.mobitx.com, and (ii) obtain a MobiTX User ID (defined below). Such registration shall, among other things, allow Subscriber to receive the Services and participate in Subscription Interactions. The application also provides Subscriber the opportunity to ‘opt in’ to receive Advertisements via text messaging as a means of earning Points.

(b) Subscriber User ID Name and Password. As a condition to using the Services, Subscriber is required to register with MobiTX via the means described above, select a pin and/or password and Subscriber name (collectively, ‘MobiTX User ID’) and agree to the terms set forth in these Terms of Use. Subscriber shall provide MobiTX with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms of Use, which may result in immediate termination of Subscriber's account by MobiTX. Subscriber may not (i) select or use as a MobiTX User ID a name of another person with the intent to impersonate that person, or (ii) use as a MobiTX User ID a name subject to any rights of a person other than Subscriber without appropriate authorization. MobiTX reserves the right to refuse registration of, cancel or change a MobiTX User ID in its discretion, upon notice thereof to a Subscriber or prospective Subscriber. Subscriber shall be responsible for maintaining the confidentiality of Subscriber's MobiTX User ID. MobiTX will not be liable for any losses caused by unauthorized use of Subscriber's MobiTX User ID.

(c) Enabling Responsibilities. Subscriber shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Website and the Services, including without limitation hardware devices, software, and other internet, wireless, broadband, cellular or other communication device and/or connection services. The Services may require Subscriber to pay a third-party fee, including without limitation fees for local and long distance calling and text messaging plans. Subscriber shall be solely responsible for any such third party fees in connection with receiving and/or participating in the Services and/or purchasing any Products.

(d) No Obligation. Subscriber’s registration and activation of an account shall in no way oblige Subscriber to participate in the Services, to view any Advertisement, to purchase any Products from Advertisers or to participate in any Subscriber Interactions.

4. SERVICES.

(a) Advertisements. MobiTX shall, from time to time, upload and display Advertisements to the Website, notify Subscriber of Product offerings or send text message Advertisements to Subscriber. Such Advertisements are intended to encourage and promote Subscriber Interactions.

(b) Point Information.

(i) Subscriber may earn Points by participating in Subscriber Interactions. Points may be redeemed by Subscriber for credits for Carrier account fees, gift cards for cellular minutes, check payments by MobiTX to Subscriber, or such other rewards as may be offered by MobiTX to Subscriber from time to time, in MobiTX’s sole discretion, all as more particularly described at www.mobitx.com (the ‘Point Information Page’)

(ii) The Point values for Subscriber Interactions vary and shall be set by MobiTX, in MobiTX’s sole discretion. Points, Point values for Subscriber Interactions and Point redemption policies, procedures and options, including without limitation, minimum Point requirements for redeeming Points are set forth on the Point Information Page at the above link. Point information is subject to change by MobiTX without notice, and such changes shall be reflected on the Point Information Page. Subscriber is responsible for complying with the then current instructions and requirements set forth on the Point Information Page.

5. SUBSCRIBER CONDUCT/RELATIONSHIP.

(a) Subscriber Responsible for Actions. Subscriber shall be solely responsible for Subscriber’s own Subscriber Interactions. Subscriber understands that Subscriber is not required to participate in any Subscriber Interactions and that Subscriber’s participation in any Subscriber Interactions shall be in the sole discretion of Subscriber. Subscriber is under no obligation to receive or view Advertisements or purchase Products under these Terms of Use.

(b) No Endorsement. MobiTX does not endorse any Product, Advertiser Advertisement, Subscriber Interactions, or any opinion, recommendation, or advice expressed in any Advertisement, and MobiTX expressly disclaims any and all liability in connection with any Products, Advertisements, Advertisers or Subscriber Interactions.

(c) Nature of Relationship. MobiTX will not be a party to or assume any responsibility obligation or liability in connection with any transaction between Subscriber and any third party, including without limitation Advertisers or Carriers. All agreements between (i) Subscriber and Advertisers and (ii) Subscriber and Carriers shall be directly between Subscriber and Advertiser and Subscriber and Carrier, respectively. Subscriber agrees and understands that MobiTX is not a party to such agreements and shall have no obligations thereunder. Without limiting the generality of the foregoing, MobiTX does not warrant, endorse or assume responsibility for or make any warranties or representations about the adequacy of any Product advertised, offered and or sold by an Advertiser in any Advertisement or through the Website, the Subscriber Interactions or any linked website or advertising medium, including without limitation the Advertisements.

(d) Release. Subscriber hereby releases and agrees to hold MobiTX, its affiliates, officers, agents and employees and their respective successors and assigns harmless from and against any and all past, present and future claims, actions, demands, liability, rights, damages or losses, that Subscriber and Subscriber’s respective heirs had, may have now or may have in the future in connection with the Website, the Products, the Subscriber Interactions and/or the use of the Services by MobiTX, including without limitation, any actions for copyright infringement, product liability, negligence or any violations of rights of publicity or privacy. Subscriber waives any right that Subscriber or Subscriber’s respective heirs may have to inspect or approve of any of Subscriber’s use of the Services or the Website.

6. SERVICE TERMINATION/CANCELLATION POLICIES.

(a) By Subscriber. Subscriber may cancel his/her subscription to the Services at any time, upon ten (10) business day’s notice to MobiTX. To be effective, notice of cancellation shall be provided to MobiTX on its Website by contacting MobiTX’s subscription cancellation contact, as follows: cancel@mobitx.com.

(b) By MobiTX.

(i) MobiTX may, in MobiTX’s sole discretion, terminate Subscriber’s account and access to the Website and Services immediately, without notice, if MobiTX believes that Subscriber has violated the terms of these Terms of Use.

(ii) MobiTX may, in MobiTX’s sole discretion, limit, modify, change, suspend or discontinue all or a portion of the Services, including without limitation certain Subscriber Interactions, Advertisements, Advertisers and/or links to particular third party websites and/or offers in connection with Products (collectively, ‘Changes’), as MobiTX may determine in MobiTX’s discretion. Subscriber shall be responsible for reviewing and becoming familiar with any Changes. Use of the Website or Services by Subscriber constitutes Subscriber’s acceptance of the Changes.

(iii) Survival. Sections 2(e) (‘Ownership and Restrictions’), 5(b) (‘No Endorsement’), 5(c) (‘Nature of Relationship’), 5(d) (‘Release’), 7 (‘Digital Millennium Copyright Act’), 8 (‘Warranty Disclaimer’), 9 (‘Limitation of Liability’), 10 (‘Indemnity’), 11 (‘Privacy’), 12 (‘Ability to Enter into Contract’), 13 (‘Assignment’) and 14 (‘General’) shall survive any termination or cancellation of these Terms of Use.

7. DIGITAL MILLENNIUM COPYRIGHT ACT

(a) MobiTX does not permit copyright infringing activities and infringement of intellectual property rights on its Website.

(b) If a person is a copyright owner or an agent thereof and believes that any content posted on the Website infringes upon another’s copyrights, such person may submit a notification pursuant to the Digital Millennium Copyright Act (‘DMCA’) by providing MobiTX’s Copyright Contact with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

§ A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

§ Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

§ Identification of 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 permit the service provider to locate the material;

§ Information reasonably sufficient to permit the service provider to contact the reporting person, such as an address, telephone number, and, if available, an electronic mail;

§ A statement that the reporting person has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

§ A statement that the information in the notification is accurate, and under penalty of perjury, that the reporting person is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(c) MobiTX’s designated copyright contact (‘Copyright Contact’) to receive notifications of claimed infringement is: MobiTX 4301 Westbank Drive, Suite B150, Austin, TX 78746, attn: Legal fax: (303) 496-8797. Please be advised that DMCA notices should go to the Copyright Contact; any other feedback, comments, requests for technical support, and other communications should be directed to MobiTX customer service through www.mobitx.com/contact. The complaining person acknowledges that in the event he/she fails to comply with all of the requirements of this Section, such person’s DMCA notice may not be valid.

(d) If the person to who is allegedly infringing a copyright (as reported by the complaining person above) believes that content that was removed (or to which access was disabled) is not infringing, or that such person has authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content, the person responding to the complaint may send a counter-notice containing the following information to the Copyright Contact:

§ The responding person’s physical or electronic signature;

§ Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

§ A statement that the responding person has a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and

§ Such responding person’s name, address, telephone number, and e-mail address, a statement that such responding person consents to the jurisdiction of the federal court in Travis County, Texas, and a statement that he/she will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Contact, MobiTX may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, MobiTX’s sole discretion

8. WARRANTY DISCLAIMER.

MobiTX has no special relationship with or fiduciary duty to Subscriber. Subscriber acknowledges that MobiTX has no control over, and no duty to take any action regarding: which users gain access to the Website; what Products a Subscriber purchases from Advertisers; which Subscriber Interactions Subscriber participates in via the Website; what effects the Advertisements or Subscriber Interactions may have on Subscriber; how an Advertiser may interpret or use the Advertisements or Subscriber Interactions; or what actions Subscriber may take as a result of having been exposed to any Advertisements, Products and/or Subscriber Interactions. The Website may contain, or direct Subscriber to sites containing, or Subscriber may receive Advertisements or content containing information that some people may find offensive or inappropriate. MobiTX makes no representations concerning any Advertisers, Advertisements, Subscriber Interactions or Products contained in or accessed through the Website, and MobiTX will not be responsible or liable for the accuracy, suitability, reliability, performance, transmission, copyright compliance, legality or decency of material contained in or accessed through the Website. ALL USE OF THE WEBSITE AND SERVICES, INCLUDING WITHOUT LIMITATION THE PRODUCTS, SUBSCRIBER INTERACTIONS, ADVERTISEMENTS AND ANY SOFTWARE IN CONNECTION THEREWITH SHALL BE AT SUBSCRIBER'S OWN RISK AND ALL OF THE FOREGOING ARE PROVIDED ON AN ‘AS IS’/’AS AVAILABLE’ BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. MOBITX ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES, OR INACCURACIES OF SUBSCRIBER INTERACTIONS, ADVERTISEMENTS OR ADVERTISERS, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM SUBSCRIBER’S ACCESS TO AND USE OF THE WEBSITE OR SERVICES, INCLUDING WITHOUT LIMITATION PRODUCTS AND SUBSCRIBER INTERACTION ACTIVITIES, (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (vi) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.

9. LIMITATION OF LIABILITY.

IN NO EVENT SHALL MOBITX BE LIABLE WITH RESPECT TO THE WEBSITE, SERVICES, ADVERTISERS, SUBSCRIBER INTERACTIONS, ADVERTISEMENTS UNDER ANY AGREEMENT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, AND NOTWITHSTANDING ANY DAMAGES THAT SUBSCRIBER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF MOBITX WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OF USE SHALL BE LIMITED TO. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO SUBSCRIBER.

10. INDEMNITY.

Subscriber agrees to defend, indemnify and hold harmless MobiTX and its affiliates, officers, directors, owners, operators, employees, licensors and agents, from and against any and all claims, actions, demands, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from, related to or in connection with : (i) Subscriber’s use of and access to the Website, the Services, in Subscriber Interactions and the Advertisements; (ii) Subscriber’s purchase of any Products, (iii) Subscriber’s violation of any term of these Terms of Use; (iv) Subscriber’s violation of any third party right, including without limitation any copyright, property, or privacy right; or (v) Subscriber’s misuse of the MobiTX User ID.

11. PRIVACY.

(a) MobiTX’s Privacy Policy at www.mobitx.com/privacy (‘The Privacy Policy’), as may be amended by MobiTX from time to time, sets forth the terms and conditions regarding MobiTX’s treatment of Subscriber personal information. The Privacy Policy is hereby incorporated by reference into these Terms of Use. ALTHOUGH MOBITX COMMITS TO TREAT YOUR PERSONAL INFORMATION, WHICH PERSONAL INFORMATION MAY INCLUDE WITHOUT LIMITATION INFORMATION PROVIDED BY SUBSCRIBER TO MOBITX DURING THE SUBSCRIBER REGISTRATION PROCESS OR OTHERWISE IN CONNECTION WITH THE SERVICES OR IN CONNECTION WITH THE SUBSCRIBER INTERACTIONS. IN ACCORDANCE WITH THE TERMS OF MOBITX’S PRIVACY POLICY, MOBITX MUST ADVISE SUBSCRIBER THAT MOBITX CAN MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED VIA A MESSAGE, THE SERVICES, THE WEBSITE, OR ANY WEB-SITE LINKED TO THE SITE. Accordingly, if MobiTX complies with the terms in its Privacy Policy, MobiTX will not be liable for the privacy of e-mail addresses, phone or communication device numbers, registration and identification information, disk space or any other content stored on MobiTX’s equipment and transmitted over networks accessed by the Website, or otherwise connected with Subscriber's use of the Services or participation in the Subscriber Interactions. In addition, if Subscriber provides any personal information in connection with Subscriber’s communication with any Advertiser via the Services or otherwise, MobiTX will have no responsibility or liability to Subscriber in connection with how an Advertiser uses such personal information. Notwithstanding MobiTX’s Privacy Policy, MobiTX may use aggregate Subscriber usage data regarding the Services and the Website.

(b) Subscriber agrees to abide by the then-current terms of MobiTX’s Privacy Policy. Subscriber may not post or transmit, or cause to be posted or transmitted, any communication or solicitation or other ‘phishing’ message designed or intended to obtain password, account, or private information from any Subscriber. Use of the Website, Services or participation in the Subscriber Interactions to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene, or engage in any kind of illegal activity is expressly prohibited. Subscriber will not run Maillist, Listserv, any form of auto-responder, or ‘spam’ on the Website or through use of the Services, or any processes that run or are activated while the Subscriber is not logged in. Further, Subscriber shall not run any automated calling robot or system or otherwise misuse the Services to violate any third party rights, e.g. SMS spoofing.

12. ABILITY TO ENTER INTO AGREEMENT.

Subscriber confirms that Subscriber is competent and able to agree to, abide by and perform the terms of these Terms of Use. By making such affirmations, Subscriber represents that Subscriber is either older than 18 years of age, an emancipated minor, or possesses legal parental/guardian consent. In any event, Subscriber confirms that Subscriber is over the age of 13. The Website is only intended for people over 13 years of age. Children under the age of 13 are not authorized to use the Website or subscribe to its Services.

13. ASSIGNMENT.

MobiTX may assign these Terms of Use without Subscribers’ prior written consent. Subscriber may not assign these Terms of Use.

14. GENERAL.

Subscriber agrees that the Website shall be deemed solely based in Texas shall be deemed a passive Website, such that jurisdiction over MobiTX may only be claimed in Texas. These Terms of Use shall be governed by the laws of the State of Texas, without respect to its conflict of laws principles. Any claim or dispute between Subscriber and MobiTX in any way connected to the Website shall be decided exclusively by a court of competent jurisdiction located in Travis County, Texas. These Terms of Use, together with any other legal notices published by MobiTX on the Website, shall constitute the entire agreement between Subscriber and MobiTX regarding the Website and the Services. If any provision of these Terms of Use are deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. Except as expressly provided otherwise herein, no waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and MobiTX’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. MOBITX AND SUBSCRIBER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.