This Agreement will be effective as of the date mShopper™ accepts Merchant for the Services and charges Merchant's credit card with the Set-Up and License Fees ("Effective Date"). Unless defined elsewhere in this Agreement, terms with initial letters capitalized have the meanings set forth in Exhibit A, Definitions.

2.1 Products. Merchant will submit to mShopper™ each product it wishes to list for sale using the Services in accordance with mShopper™'s procedures therefore, as may be designated by mShopper™ from time to time. Merchant will not submit for listing any Prohibited Product. Merchant may remove any Product from listing on the Services in accordance with mShopper™'s procedures therefore as may be designated by mShopper™ from time to time.

2.2 Listing on the Services; Authorization. Subject to Section 2.1, Merchant will determine the Products that are listed on the Mobile Website, and mShopper™ will determine which of such Products are listed on the PriceCrusher™ Mobile Mall. Merchant hereby authorizes mShopper™ to list any or all Products for sale on Merchant's behalf via the PriceCrusher™ Mobile Mall. mShopper™ is not obligated to list any or all Merchants Products via the PriceCrusher™ Mobile Mall, and mShopper™ may add, change or discontinue the listing of any or all Products on the PriceCrusher™ Mobile Mall at its discretion. Merchant may request that mShopper™ remove and refrain from listing all Products on the PriceCrusher™ Mobile Mall in accordance with mShopper™'s procedures therefore, as may be designated by mShopper™ from time to time.

2.3 Product Information. Merchant will supply to mShopper™ accurate and complete information for all Products (e.g., brand name, product name, price, etc.) and such other information as requested by mShopper™ to provide the Services to Merchant (collectively "Product Information"). Merchant will provide the Product Information in the format specified by mShopper™ and in accordance with mShopper™ datafeed requirements.

mShopper™'s procedures therefore may change, as may be designated by mShopper™ from time to time. Merchant will update such information as frequently as necessary so that the Product Information is at all times current, accurate and complete.

2.4 Quality of Products and Product Information. Merchant will ensure that the Products and Product Information comply with all applicable laws and that the Products are of good and marketable quality. Merchant will promptly notify mShopper™ of any recalls or threatened recalls of any Products (of which Merchant has knowledge) and will make all appropriate refunds to customers in connection therewith. Merchant will be responsible for all costs and expenses incurred by Merchant, mShopper™ or any of their Affiliates in connection with any recall or threatened recall of any Products.

3.1 Transaction Processing. Merchant will process each purchase of a Product or the commitment to purchase a Product made through the Services (each a "Transaction") in a manner that is in accordance with its standard terms and conditions. Transactions generated by the Services shall not be processed in a manner that is worse than Merchant's normal order processing conditions. Merchant is responsible for processing all payments and refunds for Transactions, and Merchant's name will appear on the customer's credit card statement. Merchant will bear the risk of credit card fraud and bed debt expense occurring in connection with Transactions except to the extent caused by mShopper™'s negligence or willful misconduct.

3.2 Sale and Fulfillment. Merchant will be solely responsible for, and bear all risk and liability for, sourcing, storing, selling, fulfilling, and delivering all Products (including for any non-conformity or defects in, damage to, or theft of or claims regarding the delivery or non-delivery of, the same) and accepting returns of, and providing refunds and adjustments for, Products, and Merchant will do so in accordance with the terms of this Agreement, all terms of the Mobile Websites and PriceCrusher™ Mobile Mall and in accordance with all applicable laws, rules and regulations.

4.1 Responsibilities. As between the parties, mShopper™ will be responsible for and will have sole discretion regarding all customer service issues relating to the Services and their features (including the ordering process, but excluding Merchant order fulfillment issues). As between the parties, Merchant will be responsible for and will have sole discretion regarding all customer service for issues relating to: (a) payment; (b) payment processing, refunds and adjustments; (c) Products (including availability, technical support, functionality and warranty); (d) Product fulfillment, shipping and handling and customer cancellations and returns; and (e) feedback concerning experiences with Merchant’s personnel, policies or processes. Each party will generally conduct its customer service dealings hereunder in a timely, professional, and courteous manner; and in any event ensure that the customer service provided (including in regard to product fulfillment and responsiveness to customer inquiries) is as good as that offered by such party to other customers. Each party's customer service will be responsible for handling inquiries only from persons contacting the party in their capacity as consumer. Each party will refer customers having issues for which the other party is responsible under this Agreement to the other party in a timely, professional and courteous manner and at the applicable email address and/or phone number provided for such purpose by such other party.In performing customer service, each party will always present itself and the other party as separate entities to consumers."Powered by mShopper™ will appear on all custom Mobile Websites created for the merchant with the Mobile Commerce Platform to notify the consumer of the relationship between the parties.

4.2 Use of Customer Information. Merchant shall exclusively own all Customer Information generated as a result of activity through its Mobile Website, except that mShopper™ and Merchant shall co-own mobile Customer Information from consumers shared on the PriceCrusher™ Mobile Mall, together with all associated intellectual property rights, with no duty on the part of either party to pay any royalties or account to the other party with respect to its use of any Customer Information. Each party will comply with all laws applicable to Customer Information, mShopper™'s privacy policy and its respective policies regarding use of Customer Information as displayed on the Services.

5.1 Fees. As consideration for Merchant's access to and use of the Services, Merchant will pay mShopper™: (a) the applicable monthly License Fee, (b) with respect to Transactions via the Services (including Transactions generated from the Mobile Website and the PriceCrusher™ Mobile Mall), Transaction Revenue Share (Commission), and (c) all GetFirstDibs™ SMS Text Messaging Fees. The current License Fee, Revenue Share and GetFirstDibs™ Messaging Fees are set forth on Exhibit B, and mShopper™ may change the Fees upon 30 days notice to Merchant.

5.2 Payment of License Fees. mShopper™ will charge Merchant's credit card with the month's License Fee upon accepting Merchant for Services. Thereafter, mShopper™ will charge Merchant's credit card with the monthly License Fee on each monthly anniversary of mShopper™'s accepting Merchant for Services, monthly in advance for each month during the term of this Agreement. The execution and acceptance of this Agreement constitutes and conveys to mShopper™ an Authorization for Recurring Credit Card Transactions for the applicable monthly License Fee as set forth herein.

5.3 Payment of Revenue Share; Revenue Share Statement. Merchant will pay the Revenue Share on a monthly basis within thirty (30) days after the end of each calendar month. Within ten (10) business days after the end of each calendar month, mShopper™ will provide to Merchant via email a statement of Revenue Share for such calendar month which will include the number of Transactions, total amount of revenue generated by Transactions, total price of Products sold in Transactions, Revenue Share owed to mShopper™ and such other information requested by mShopper™.

5.4 Payment of Transaction Processing Fee. Merchant will pay the Transaction Processing Fee on a monthly basis within thirty (30)days after the end of each calendar month. Merchant will pay a Transaction Processing Fee to mShopper for every successful transaction generated by the mShopper Service and processed through mShopper's Business Process Center.   The Transaction Processing Fee shall be equal to the greater of $2.00 per Transaction or the Revenue Share. Merchants who have a direct order integration through an API into their shopping cart will not pay the Transaction Processing Fee.

5.5 Payment of SMS Text Messaging Fees. Merchant will pay all fees associated with mShopper™'s delivery of SMS text messaging for Merchant’s consumer outreach. SMS text messages will be purchased by Merchant as credits in advance of mShopper™'s delivery of Merchant's approved SMS text messages.

5.6 Payment for Additional Customer Service. From time to time Merchant may request live Customer Service over and above what is included with the Mobile Commerce Platform, e.g., Merchant email support, education, webinars, videos and Help section. This standard Customer Service information on how to best use the Mobile Commerce platform and market the Merchant's mobile website is available to all Merchants free of charge. Customer Service fees will apply for any Merchant requiring more than 1 hour of mShopper™'s live Customer Support. These fees will be billed to Merchant's credit card on account at $50/hour.

5.7 Payment Terms. Merchant will provide mShopper™ with complete and accurate information for a valid credit card issued to Merchant by a United States bank and otherwise meeting mShopper™'s requirements (the "Merchant Credit Card"). Merchant will update such information as frequently as necessary so that such Merchant Credit Card information is at all times current, accurate and complete. Merchant hereby authorizes mShopper™ to verify Merchant’s information (including any updated information), to obtain credit reports about Merchant from time to time during the term of this Agreement, to obtain credit authorizations from Merchant's credit card issuer, and to charge the Merchant Credit Card for any Fees payable by Merchant to mShopper™ under this Agreement. mShopper™ reserves the right to invoice Merchant for any Fees due mShopper™ and not otherwise paid to mShopper™ under this Agreement, and Merchant will pay mShopper™ invoiced Fees upon receipt. Any amount not paid when due will be subject to finance charges equal to one and a half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Merchant will reimburse any costs or expenses (including attorneys' fees) incurred by mShopper™ to collect any amount that is not paid when due. Amounts due from Merchant under this Agreement may not be withheld or offset by Merchant against amounts due to Merchant for any reason. Merchant will pay all amounts in United States dollars.

5.8 Taxes. Any and all Fees payable by Merchant pursuant to this Agreement are exclusive of all sales, use and similar taxes, and Merchant will pay any taxes that are imposed and payable by it on such amounts. If mShopper™ is required by law or by administration thereof to collect any sales, use or similar taxes from Merchant, Merchant will pay such taxes to mShopper™. Merchant will be solely responsible for all obligations associated with any and all sales, use, excise, import, export, value added and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by Merchant on or through the Services, or otherwise in connection with any action, inaction or omission of Merchant, its Affiliates or their respective employees, agents, contractors or representatives (collectively "Merchant Taxes").

5.9 Costs. Except as expressly provided otherwise in this Agreement, each party will be responsible for all costs and expenses incurred by it in performing its obligations under this Agreement.

Merchant acknowledges and agrees that certain restrictions and limitations apply to the Services and Merchant's use of the Services, as set forth below in this Section 6.

6.1 Changes to Services. mShopper™ reserves the right to change the Services, including the Mobile Websites, PriceCrusher™ Mobile Mall (including the content, appearance, design, functionality and all other aspects thereof) access procedures,merchant verification, tools, documentation, format requirements, communications protocols and services offered. mShopper™ may delay or suspend listing of, or to refuse to list, or to de-list, any or all products in its sole discretion. Without limiting the generality of the foregoing, mShopper™ will have the right to determine the use of any mShopper™ trademarks and any messaging or notice on the Services.

6.2 Acceptance of Merchant for Services. mShopper™ reserves the right to accept or deny Services to any Merchant based on the size of the Merchant, the Merchant's products or content included in either the Mobile Websites and/or PriceCrusher™ Mobile Mall.

6.3 Back-up of Data. mShopper™ is not responsible for the backup of any of Merchant's files or data. Merchant is solely responsible for independent backup of data generated or stored through the use of the Services.

6.4 Transmission of Data. mShopper™ is not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network that mShopper™ or Merchant or Merchant's customers may utilize, including in connection with the provision of the Services.

6.5 Use of Services. Merchant will access and use the Services in accordance with this Agreement and all terms, policies and procedures related thereto set forth on the mShopper™ Site. Merchant may not: (i) reverse engineer, decompile, or disassemble the Services; (ii) modify or create derivative works based upon the Services, in whole or in part; (iii) distribute copies of the Services; (iv) remove any proprietary notices or labels on the Mobile Websites or PriceCrusher™ Mobile Mall; or (v) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to the Services. Merchant will make no representations or warranties on behalf of mShopper™. In addition to any other rights or remedies that mShopper™ may have in law or equity, any use in violation of this Section will immediately terminate Merchant's right to use the Services. mShopper™ may suspend, delay, refuse to offer, or discontinue the offer of any or all Products or the use of any or all Product Information on the Service at any time in its sole discretion.

6.6 Prohibited Products and Content. Merchant will not offer, provide to mShopper™ or use in connection with the Services, any products, services or content in violation of mShopper™'s prohibited content and products policy. The current policy is set forth in Exhibit C, and mShopper™ may change the policy from time to time upon notice to Merchant, which may consist of posting on the mShopper™ Site.

Each party reserves all right, title, and interest in and to its (and its suppliers' and licensors') intellectual property, and except as expressly set forth in this Agreement with respect to Merchant, no right or title to or ownership of any intellectual property is transferred or licensed pursuant to this Agreement. Merchant hereby grants to mShopper™ a royalty-free, non-exclusive, worldwide right and license to use, reproduce, modify, perform, distribute and other exercise all rights in and to any and all Merchant Materials for the purposes of performing and promoting the Services. The license may also be exercised on behalf of mShopper™ by third parties acting on mShopper™'s behalf (e.g. distribution partners and independent contractors).

8.1 Indemnity Obligations. Merchant will hold harmless, defend (if requested by mShopper™) and indemnify mShopper™ and its Affiliates and their respective employees, directors and representatives (collectively "Indemnified Parties") against any and all claims, actions, proceedings and suits and any and all liabilities, losses, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses) incurred or suffered by an Indemnified Party, arising out of or relating to any of the following, provided that Merchant's foregoing obligation to defend shall apply only to claims or actions brought by a third party against an Indemnified Party: (a) any breach of this Agreement by Merchant, including any representations, warranties, covenants or obligations set forth in this Agreement; (b) any Products, Merchant Materials, Transactions or the advertisement, offer, sale or return of any products by Merchant; (c) any actual or alleged infringement of any intellectual property or other rights of any third party by any Products or Merchant Materials; or (d) any Merchant Taxes or the collection, payment or failure to collect or pay Merchant Taxes.

8.2 Indemnity Process. The indemnified party shall provide the indemnifying party written notice of any claim for which it seeks indemnification under this Agreement. The indemnified party shall grant to the indemnifying party, and the indemnifying party will have, the exclusive right to defend any such claim and make settlements thereof at the indemnifying party's own discretion, provided that the indemnified party shall not settle or compromise such claim, except with prior written consent of the indemnifying party. The indemnified party shall give, at the indemnifying party's expense, such assistance and information as the indemnifying party may reasonably require to settle or oppose such claims. The indemnified party may, however, participate in the defense or settlement of such claim at its own expense and with its own choice of counsel.

9.1 Disclaimer of Warranties. The Services are made available by mShopper™ to Merchant "AS IS" and "WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS." Merchant acknowledges and agrees that the features and functionality of the Services may change from time to time or be eliminated at any time in mShopper™'s sole discretion. mShopper™ makes no representation or warranty of any kind, express or implied, as to the condition, character, nature, capability, performance, availability, suitability, title, source or any other characteristic of the Services or any portion thereof. MSHOPPER™ HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR THIS AGREEMENT, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; OR (C) ANY WARRANTY THAT THE SERVICES WILL MEET MERCHANT'S REQUIREMENTS, WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY OR SECURE, OR OPERATE WITHOUT ERROR. MSHOPPER™ DOES NOT GUARANTEE ANY NUMBER OF PRODUCT SALES OR TRANSACTIONS THROUGH THE SERVICES, AND MERCHANT ACKNOWLEDGES AND AGREES THAT MERCHANT HAS NO EXPECTATION THAT IT WILL OBTAIN ANY ANTICIPATED AMOUNT OF SALES OR PROFITS OR OTHER RESULTS BY VIRTUE OF THIS AGREEMENT.

9.2 Limitation of Liability. IN NO EVENT WILL MSHOPPER™ BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING ANY LOSS OF REVENUE, PROFITS, OR DATA, EVEN IF MSHOPPER™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MSHOPPER™'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY OR OTHERWISE, EXCEED THE TOTAL FEES PAID TO MSHOPPER™ UNDER SECTION 5 OF THIS AGREEMENT DURING THE PREVIOUS TWELVE-MONTH PERIOD.

9.3 Independent Allocation of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MSHOPPER™ TO MERCHANT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

9.4 Jurisdictional Limitations. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS WITH RESPECT TO WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO THE EXTENT SO NOT ALLOWED.

10.1 Term. This Agreement will commence on the Effective Date and continue for an initial period of one month (the "Initial Term"). Thereafter, this Agreement will automatically renew for successive monthly periods until terminated as set forth herein.

10.2 Termination by Merchant. At any time after the Initial Term, Merchant may terminate this Agreement by giving mShopper™ notice of termination at least 15 days prior to the start of the next monthly period, and this Agreement will terminate effective as of the end of the next monthly period. In connection with any notice of termination, Merchant may request that mShopper™ suspend the listing of all Products on the Services prior to the effective date of termination, but not less than 15 days after such request, provided that Merchant will not be entitled to any refund or reduction of any Fees due hereunder.

10.3 Termination by mShopper™. At any time after the Initial Term, mShopper™ may terminate this Agreement by giving Merchant notice of termination at least 15 days prior to the start of the next monthly period, and this Agreement will terminate effective as of the end of the next monthly period. In addition, mShopper™ may immediately suspend the Services, in whole or in part, or terminate this Agreement,by any means, if mShopper™ believes in its sole discretion that Merchant has breached any provision of this Agreement.

10.4 Effect of Termination. Upon any termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except that: (a) the rights and obligations of the parties under Sections 3, 4, 5, 6, 7 and 8 hereof with respect to Transactions occurring prior to termination; and (b) the rights and obligations of the parties under Sections 5, 6, 7, 8, 9, 10.4, and 11 hereof generally, will survive the termination of this Agreement.

11.1 Assignment. Merchant may not assign or delegate this Agreement or any of its rights or obligations hereunder without mShopper™'s prior written consent. Any attempt by Merchant to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void. mShopper™ may assign or delegate this Agreement or any of its rights or obligations hereunder freely and without necessity of obtaining Merchant's consent. Subject to the foregoing restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

11.2 Choice of Law; Arbitration. This Agreement will be governed by the laws of the State of Colorado, without reference to its choice of laws rules. The parties agree that the courts of Boulder County, Boulder, Colorado shall have sole and exclusive jurisdiction with respect to any dispute, claim, or controversy arising out of or relating to this Agreement. The parties agree that parties' rights and obligations are not governed by the United Nations Convention on Contracts for the International Sale of Goods. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Boulder, Colorado before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

11.3 Force Majeure. mShopper™ will not be liable for any delay or failure to perform any of its obligations hereunder by reason of fire, explosions, earthquakes, storms, flood, wind, drought and acts of God or the elements; court orders; acts, delays and failures to act by civil, military or other governmental authority; failures of suppliers, service providers or other third parties; strikes, lockouts, labor disputes, riots, insurrections, terrorism, sabotage and war; breakdown or destruction of, or damage or casualty to, any equipment, facilities or other property not caused by mShopper™, unavailability of materials, supplies, parts, equipment, personnel or other necessary items on commercially reasonable terms; interruption, suspension, curtailment or other disruption of utilities; or other matters beyond mShopper™'s reasonable control.

11.4 Headings; Construction. Whenever used in this Agreement, unless otherwise specified: (a) the terms "includes", "including", "e.g.", "for example", "for instance" and other similar terms are deemed to include the term "without limitation" immediately thereafter; and (b) the terms "$" and "dollars" mean United States dollars. The headings of sections and subsections of this Agreement are for convenience of reference only and are not intended to affect the interpretation or construction of any provision of this Agreement. In resolving any dispute or construing any provision hereunder, there will be no presumptions made or inferences drawn because: (y) one of the parties (or its representatives) drafted this Agreement; or (z) of the drafting history of this Agreement; and each party hereby waives application of, or any rights under, any law that would require the interpretation of any ambiguities in this Agreement against the party that drafted it.

11.5 Independent Contractors. The parties are independent contractors, and this Agreement will not be construed to create a partnership, joint venture or employment relationship between them. Merchant will not represent itself to be an employee or agent of mShopper™, and will not enter into or purport to enter into any agreement or legally binding commitment on the behalf of or in the name of mShopper™ or mShopper™'s Affiliates.

11.6 Notices. Any notice or other communication under this Agreement given by one party to the other will be effective if: (a) sent via email to email address specified in its registration for Services or to any other email address provided by parties in this Agreement; or (b) posted on the mShopper™ Site (and Merchant is responsible for reviewing the mShopper™ Site for any such notices and communications). To be effective, any notice or other communication under this Agreement given by Merchant to mShopper™ must be in writing and must be sent to, and delivered by, mShopper™ by either (a) personal delivery, (b) internationally recognized courier, or (c) certified mail, return receipt requested, postage prepaid at the applicable address set forth in this Section 11.7. mShopper™ may change its address for receipt of notice by notice to Merchant in accordance with this Section.

11.7 Merchant Representations; Compliance with Laws. Merchant hereby represents and warrants to mShopper™ that: (a) Merchant has the full right, power and authority to enter into this Agreement and perform its obligations hereunder, and that its performance under this Agreement shall not violate any agreement between Merchant and any third party, any obligation owed by Merchant to any third party, or the rights of any third party; (b) neither the Merchant Materials, nor mShopper™'s use thereof as permitted under this Agreement, will violate, misappropriate or infringe any right of any third party; (c) all Products and Merchant's performance under this Agreement will comply with all applicable laws, rules and regulations, (d) Merchant will not redirect any customers or prospective customers from the Services into any other sales channel and will not use the Services for any purpose other than the offering or sale of Products as contemplated hereunder, and (e) if Merchant is an individual, he or she is at least 18 years of age.

11.8 Press Releases and Confidentiality. Unless the respective parties agree in writing and in advance, neither party will issue any press releases or otherwise make any public statements or communications disclosing or concerning: (a) this Agreement, its terms, or the relationship of the parties; (b) any information relating to mShopper™, its Affiliates or the Services; (c) any nonpublic information disclosed or made available by mShopper™ or its Affiliates to Merchant, in written, oral, electronic or other tangible or intangible form, whether or not designated as confidential, including information relating to the Services, any released or unreleased features or functionality,marketing or promotional activities, business policies or practices, customers, potential customers, suppliers, software, code, documentation, technology, any other business, financial or technical information of mShopper™ and any information received from others. mShopper™ is obligated to treat as confidential (information described in (a), (b) and (c), collectively "Confidential Information"). Merchant shall hold in strict confidence, shall not use or disclose to any third party, and shall take all necessary precautions to secure any Confidential Information of mShopper™. In accordance with this provision, Merchant shall maintain at least the same precautions as it takes in regard to its own confidential information. Merchant's disclosure of Confidential Information shall be restricted solely to employees, agents, consultants and representatives who have been advised of their obligation with respect to Confidential Information. Merchant acknowledges and agrees that any breach or threatened breach of this Section 11.9 shall cause irreparable harm for which there is no adequate remedy at law and that mShopper™ shall be entitled to immediate injunctive relief without posting a bond, in addition to any other remedy available under this Agreement, in law or equity.

11.9 Severability. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to effectuate the purpose and intent of this Agreement, and the invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of any such provision in any other jurisdiction.

11.10 Remedies. Except as may be otherwise expressly provided herein: (a) the rights, remedies and obligations of the parties hereunder are cumulative and are not intended to be exclusive of any other right, remedy or obligation now or hereafter provided hereunder or by law or in equity; and (b) the election of any one or more available remedies by either of the parties will not constitute a waiver of the right of such party to other available remedies. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.

11.11 Waiver. Any failure or delay by either party to exercise or partially exercise any right, power or privilege hereunder shall not be deemed a waiver of any of the rights, powers or privileges under the Agreement. No term or condition of this Agreement shall be held to be waived, modified or deleted except by a written instrument signed by the parties hereto. Waiver of any breach of any term or condition of this Agreement shall not be deemed a waiver of any prior or subsequent breach.

11.12 Entire Agreement. This Agreement, including all Exhibits and all terms, policies and procedures related to the Services set forth on the mShopper™ Site, which are hereby incorporated by reference, is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between mShopper™ and Merchant relating to the subject matter of this Agreement, including any prior agreement. mShopper™ reserves the right to changes any of the terms and conditions of this Amendment and any terms, policies or procedures related to the Services on the mShopper™ Site at any time, effective upon thirty (30) days notice to Merchant. MERCHANT'S CONTINUED USE OF THE SERVICES AFTER MSHOPPER™'S EMAILING AND/OR POSTING OF ANY REVISED TERMS, CONDITIONS, POLICIES, PROCEDURES OR ANY NOTICE THEREOF, WILL CONSTITUTE MERCHANT'S ACCEPTANCE THEREOF, IF MERCHANT DOES NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, MERCHANT MUST NOT CONTINUE TO USE THE SERVICES.

2. Revenue Share: Merchant shall pay to mShopper™ a per Transaction fee equal the Merchant's published 'affiliate' rates, with a 5% minimum.

3.Trnasaction Processing Fee: Merchant shall pay to mShopper™ a Transaction processing fee of the greater of$2.00 per transaction processed through mShopper's Busines Process Center or the Revenue Share.  A fully integrated Merchant who has integrated the Order Processing API so that orders are integrated directly into the merchant's ecommerce shopping cart will only pay the Revenue Share.

4.GetFirstDibs™ or SMS Text Alert Per Message Fees: Merchant shall pay to mShopper™ a fee per message for each SMS alert transmitted by Merchant in conjunction with its use of the mShopper™ GetFirstDibs™ or SMS Text Alert marketing program. Such fees shall be paid by merchant in advance of any message transmission in accordance with the schedule below.