By using the Services you agree to be bound by this Agreement. If you are using the Services on behalf of an organization, you are agreeing to this Agreement for that organization and promising that you have the authority to bind that organization to these terms. In that case, “you” and “your” will refer to that organization.
Section 1 Mobile Solution Builder
1.1 Mobile Page Management System (“MPM”). Company will provide you with access to Company’s web-based mobile page management platform.
1.2 Limited License. In accordance with this Agreement, Company hereby grants you a limited, non-exclusive, non-transferable license to use Company’s MPM system to create and manage mobile pages and mobile websites for yourself and your authorized customers (the “Mobile Pages”). You acknowledge and agree that the purpose of this license is to be used only for providing the you with the ability to offer mobile content management services directly to yourself or your customers/clients. You may not use MPM system for any other purpose, nor may you link or combine the MPM system with any other programs, modify, rent, release, lend, sublicense or otherwise redistribute the MPM system, in whole or in part, to any other person or entity.
1.3 Server. You understand and agrees that: (i) Company’s servers and its authorized affiliates will host the MPM and the Mobile Pages. You will access and utilize the Company’s software over the Internet and the Company contracts to operating and maintaining the software (i.e., “Software as a Service” model).; (ii) you are solely responsible for procuring and managing your own email delivery server; (iii) you will be solely responsible for procuring and maintaining your own domain names and DNS services.
1.4 Company’s Monitoring Rights. You understand and agree that Company has the right to monitor its services for content, message, and user experience visually or electronically at any time and to disclose any information as necessary to satisfy the law or to protect itself and its customers, users, and subscribers. Company reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this Agreement including in response to copyright complaints made by third parties without providing prior notice to you. In compliance with Digital Millennium Copyright Act, Company’s Copyright Agent contact information may be listed in your account’s Terms and Conditions and on the Mobile Page’s terms and conditions, as specified below.
We also reserve the right to cancel, suspend or terminate, in its sole discretion, any client accounts that are the subject of repeat complaints. You understand and agree that Company and its systems are not considered a “secure communications medium” and that you have no expectation of privacy.
1.5 Payment. All paid fees are non-refundable regardless of whether you actually use Company’s services. Past due accounts are subject to account suspension without notice. Company, at its sole discretion, may immediately disable the entire account, certain features or services. The mobile pages, statistical information, contact, customer and other data may be removed from Company databases if the account is past due for over 30 days. A suspended account may be reactivated by Company at its sole discretion only after your account is paid up in full.
1.6 Cancellation. Past due accounts are subject to account suspension or cancellation without notice.
1.7 Data Ownership and Data Retention Policy. Client Data is information added to Mobile Pages by you or your authorized users and customers (including Mobile Page content, text, images, videos), and contact lists collected via forms on Mobile Pages. Company does not own any Client Data. You, not the Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Client Data, and Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data. You agree that Company may perform human and/or automated analysis of Client data for demographic and marketing analysis, security, support and service improvement purposes. You agree and acknowledge that Company is not obligated to retain Client Data for longer than 30 days after termination or cancellation.
1.8 Inappropriate Material. Company reserves the right to decide whether any content on Mobile Pages could be deemed as inappropriate material. You understand and agree that any inappropriate material on Mobile Pages (such as, but not limited to, pornography, obscenity, unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, sexual well-being products, work at home businesses, “get rich quick” offers, network marketing (MLM) offers, credit or finance management, odds making and betting/gambling services, material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity, personally identifying information or private information about children without their consent (or their parents consent in the case of a minor), material that exploits children, or otherwise exploits children under 18 years of age, material that promotes violence), will be removed without prior notice by Company in its sole discretion. Company also reserves the right in its sole discretion to terminate any accounts of any repeat offenders of this or any other provision of this Agreement.
You will not use or allow your customers to use the MPM system in a way that is considered generally objectionable in the Internet community, or degrading to the quality, goodwill, reputation, or provision of the Company’s services.
1.9 Rules on Contests, Sweepstakes, Coupons and Specials. You understand and agree that you are solely responsible for enforcing and making publicly available to visitors the rules related to coupons, contests, sweepstakes, promotions, and specials advertised on your Mobile Pages. You also understand and agree that you are solely responsible for disseminating, creating, judging, and awarding any official rules and material promoted by the Mobile Pages to end users.
1.10 Covenants. If you provide your customers or authorized users with access to MPM platform, you shall make every effort to require all your users/customers utilizing the MPM platform to abide by this Agreemnet. In the event you discover that your authorized users/customers are in any way violating this Agreement, you are required to notify Company in writing, immediately.
Section 2 Ownership and Rights
2.1 Intellectual Property
a. Definition. “Intellectual Property” means, wherever existing, (i) all inventions and improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (ii) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (iii) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (iv) all mask works and all applications, registrations, and renewals in connection therewith, (v) all trade secrets, Confidential Information, (vi) all domain names, URLs or Internet websites, (vii) all other proprietary rights, and (viii) all copies, translations and tangible embodiments thereof (in whatever form or medium).
b. IP Owned by Company. You acknowledges that Company (and respective licensors) are the sole owner of any and all Intellectual Property (as defined above in Section 2.2 of the Agreement) in and related to the MPM system including, but not limited to, the MPM technology, software, databases, source code, processes, and all accompanying graphical user interfaces, documents or materials, as well as any modifications, designs, derivative works, changes, enhancements, improvements, the content, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the MPM, conversions, copies, print-outs, or translations thereof). Company does not assign, transfer, convey or grant to you or any third party, expressly or implicitly, all or any part of the Intellectual Property therein. You shall not reverse engineer, reverse assemble, disassemble or decompile the MPM, or otherwise attempt to discover any source code, algorithms, trade secrets or other proprietary rights embedded in or relating to the MPM by any means whatsoever (except and solely to the extent that applicable law prohibits reverse engineering restrictions), nor shall you permit any other person to do so. Except as expressly permitted hereunder, the MPM may not be leased, assigned, sublicensed or otherwise encumbered in whole or in part.
c. IP Owned by you and your customers. You represent and warrant that you are the owner or have a valid license to use any and all your Intellectual Property and Client Data that you add to Mobile Pages including any graphics, trademarks, logos, designs, copyrighted material, text, and other materials and information.
2.2 Limited License. Pursuant to this Agreement, you hereby grant to Company a non-exclusive, royalty-free license to use your and your customers Intellectual Property solely in connection with the Agreement herein.
2.3 No Affect on Validity. You agree that any subsequent change or changes in the duties, or compensation, will not affect the validity of this Agreement, and the termination of Company’s services will not release you from the obligations imposed under this Agreement.
2.4 Disclaimer of Warranties. Company and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the offering or any content. Company does not not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, b) the service will meet your requirements or expectations, c) any stored data will be accurate or reliable, d) the quality of any product, services, information, or other material purchased or obtained by your through the service will meet your requirements or expectations, e) errors or defects will be corrected. The service and all content is provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty or merchantability, fitness for a particular purpose, or non-infringement or third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by company.
2.5 Internet Delays. Company’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Company is not responsible for any delays, delivery failures, or other damage resulting from such problems.
Section 3 Applicable Laws and Remedies
3.1 Governing Law/Forum Selection. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA WHERE ITS PRINCIPAL PLACE OF BUSINESS WITHOUT REGARD TO ITS CHOICE OF LAW OR CONFLICT OF LAWS PROVISIONS. ALL LEGAL ACTIONS IN CONNECTION WITH THE AGREEMENT SHALL BE BROUGHT IN THE STATE OF MINNESOTA.
3.2 Limitation of Liability. In no event shall either party’s aggregate liability exceed the amounts actually paid by and/or due from you in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type of kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this service, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless or cause in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.
Section 4 Termination
4.1 Termination. You may stop using our Services at any time. We reserve the right to suspend or terminate the Agreement at any time, with or without cause, and with or without notice.
Section 5 User Content and Prohibited Activity for Mobile Marketing Campaigns
All information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials (“Content”) are the sole responsibility of the person from whom such Content originated. This means that as a user, you are entirely responsible for all Content that you upload, post, transmit or otherwise make available using the Service via short message service (SMS), medium message service (MMS), voice messages, live conversations, the website, the Internet or any other medium. Company does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Company be liable in any way for any Content. Further, Company and any of its Marketers have the right to use, edit, reproduce, distribute, display, or perform any Content you submit to the Service in any manner whatsoever.
You agree that you will not use the Service to upload, post, transmit or otherwise make available any Content:
That is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
That contains nudity, violence, profanity, or offensive subject matter or contains a link to an adult website;
That harasses or advocates harassment of another person;
That you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
That infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
That contains unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
That furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone’s privacy, or creating and/or distributing computer viruses;
That contains software viruses, worms, Trojan horses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
or that is fraudulent or deceptive.
You further agree that you will not use the Services to:
Harm or threaten anyone in any way;
Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
Violate any applicable local, state, national or international law, and any regulations or self-regulatory scheme having the force of law;
Provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; or
Collect or store personal data about other users.
You acknowledge, understand and agree that Company may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Terms; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Company, its users and the public.
Section 6 Moderation of Content
You acknowledge, understand and agree that Company and its designees shall have the right in their sole discretion to moderate, pre-screen, or refuse any Content that is available via the Service. We cannot guarantee that Content found in the Service will not include unintended or objectionable Content, and we assume no responsibility for the Content of any kind provided through the Service. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge, understand and agree that you may not rely on any Content created by Company.
Section 7 Use of Service
For all mobile marketing campaigns, message and data rates may apply. Text STOP the appropriate shortcode to opt out of a campaign at any time. Text HELP to the appropriate shortcode for more information. Messages sent from automated system. Consent not required for purchase. Message frequency depends on the program and all clients should use best practices when sending and fulfilling campaign messsages. Campaigns may not work with all carriers.
Section 8 Sweepstakes and Promotions
Company sometimes assists advertisers and marketers with the set-up and administration of sweepstakes and promotions. By participating in such a sweepstakes or promotion, you are agreeing to abide by the rules of that sweepstakes and/or promotion. In addition, by participating in such a sweepstakes, you are acknowledging that Company accepts no liability for any claim related to compliance with sweepstakes laws and makes no representation or warranty that any sweepstakes complies with applicable law, and you release Company from any liability related to such a claim.
Section 9 Miscellaneous
9.1 Severability. If any provision of this Agreement is held to be unenforceable, this Agreement will be considered divisible and such provision will be deemed inoperative to the extent it is deemed unenforceable, and in all other respects, the Agreement will remain in full force and effect; provided, however, that if any such provision may be made enforceable by limitation thereof, then such provision will be deemed to be so limited and will be enforceable to the maximum extent permitted by applicable law.
9.2 Indemnification. You agree to indemnify, defend, and hold harmless Company and its representatives, successors, licensors, and assigns of any of the foregoing from and against any and all demands, claims, losses, costs, and liabilities (including without limitation, payment of reasonable attorneys’ fees and other legal costs and expenses), or claims caused by or resulting indirectly from your use of Services, without limitation or exception, including your violation of any third-party’s rights, (including, without limitation, infringement of any copyright trademark, service mark, logo, designs, trade secrets, right of privacy or publicity or any other third party right).
9.3 Ownership Disputes and DMCA. The Company does not resolve intellectual property disputes between members or third parties. If you believe your work has been copied and posted on the Mobile Pages in a way that constitutes copyright infringement, please send the Company’s designated agent (the “Copyright Agent”) a notice properly describing the infringement:
Identify the copyrighted work that you claim has been infringed, including the URL of the link and the exact location where such work may be found.
Provide your company name and contact information, mailing address, telephone number, and email address.
Include both of the following statements in the body of the Notice:“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.”“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
9.4 Contact information.If you have any questions or suggestions regarding this Agreement, please contact us at firstname.lastname@example.org.