Previous End Use License Agreement
END USER SOFTWARE USE AGREEMENT
Last Updated August 7th 2017
IMPORTANT PLEASE READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE MOBIT SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
From date of order and email delivery of your MOBIT login details and password, the “Customer” has 24 hours by which to notify MOBIT by email or our cancellation page that they do not wish to continue with the subscription or services. If MOBIT does not receive your 'notice to cancel' within this 24 hour period then the following agreement is deemed to have been accepted and is binding against the terms and conditions outlined below.
This End User Software Use Agreement (the "Agreement") governs the use of the MOBIT Mobile Messaging and Marketing Automation Application (“The Application”) and any related services provided by MOBIT Technologies Ltd or MOBIT LLC (a wholly owned subsidiary of MOBIT Technologies Ltd (“The Company”), a registered company having its principal place of business registered at Massey eCentre, Oaklands Road, Albany, Auckland, New Zealand 0632.
You are referred to as the ("Customer”, “You” or “Client”) in this Agreement. On your acceptance of this agreement, use of The Application (Logging in to your account), verbal or written confirmation of order, or if you click "I agree" or take any other affirmative action indicating your acceptance of this Agreement, then you have agreed to these terms. If you are an agent or employee of the intended subscriber or user, you individually represent and warrant to The Company that you are authorized to bind that party to this Agreement. If you do not agree to this Agreement, then you are not authorized to use The Application.
1.Scope/Modification of Agreement
The Agreement constitutes the entire and only agreement between you and us with respect to your use of The Application, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and you should review the Agreement prior to using The Application. By your continued use of The Application, you hereby agree to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
2.Requirements/Necessary Equipment
Access to The Application is available only to individuals who can enter into legally binding contracts under applicable law. The Application is not intended for use by individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age). If you are under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age) and/or you are unable to enter into legally binding contracts under applicable law, you do not have permission to use and/or access The Application.
3.The Application
The Application may or may not be available in all countries of the world. You agree to use The Application in accordance with all applicable guidelines as well as all local, state, national, federal and international laws.The Application includes one or more of the following: (a) a web-based interface located in the designated area of The Application (app.mobit.com "the Application"); (b) access to our text messaging application centre; (c) access to our template designer, library that enable you to access and/or design content such as landing pages and web forms; (d) SMS gateway access; (e) data encryption; (f) data transmission; (g) data access and “client messages” (as defined below); (h) data storage; and (i) if applicable, synchronization software, as well as software maintenance, upgrades and customer support, that enable you to send text messages to recipients designated by you. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access The Application, and for paying all access charges (e.g. ISP, telecommunications) incurred while using The Application.
We endeavour to ensure that Client Messages are processed correctly and delivered by The Application to the applicable network. The Company or The Application is not responsible for the final delivery of any Client Message or other communications, as final delivery is out of our control and is the responsibility of the applicable telecommunications carrier.
The Application transmits and receives text messages via major telecommunications companies and mobile network operators, and thus The Applications influence over the timing of the transmission of your Client Message and broadcasts are within the technical constraints imposed upon The Application. While The Application uses commercially reasonable efforts to transmit your Client Message and broadcasts to the applicable network for final delivery to your designated recipients as fast as possible, The Company cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transportation of your Client Message and broadcasts across the public switched telephone network and/or Internet. You should know that communications carriers assign text messages with a default lifetime and any client message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the applicable communications carrier without any notice. The Company is not liable for any loss incurred by the failure of a Client Message or broadcast to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from The Company for any such non-deliveries. Furthermore, you agree that all client message contents are deemed to have zero value.
4.Related Services and Limited Warranty
The Company warrants for a period of thirty (30) days following their delivery, that all training, coaching and campaign design services (“Onboarding” or “Services”) provided hereunder will be performed in a professional and workmanlike manner, in conformity with the professional standards for comparable Services in the industry. For any breach of this warranty timely reported by You, Your exclusive remedy shall be the re-performance of the deficient Services, and if The Company is unable to re-perform the deficient Services as warranted, You shall be entitled to recover the portion of the Fees paid to The Company for such deficient Services, and such refund shall be The Company’s entire liability. The Customer shall warrant at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations, as well as The Company’s ‘Agreement’, Anti-spam, and privacy policy, in connection with Your use of The Application, and You agree to indemnify and hold The Company harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys' fees), that arise due to Your violation of law or breach of this warranty in Your use of The Company’s Application.
5.Usage Policy
You represent and warrant that the owners of the phone numbers (“Consumer Contacts”), you provide to The Company and The Application, to which outbound Client Message are transmitted by and through The Application have provided all requisite consent under applicable law to receive such messages and broadcasts from you. You agree that you will include clear opt-out/unsubscribe information on EVERY client message that you send through The Application. You represent and warrant that you and your Client Messages will abide, fully, with the then-current guidelines and/or best practices set forth by both the
Mobile Marketing Association (“MMA”) and all participating mobile telephone carriers, and other industry and government rules and regulations that may be in effect now or in the future with respect to mobile marketing (collectively, “Mobile Marketing Laws”).
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations, and are solely responsible for all acts or omissions that occur in connection with your account, including without limitation the content of the Client Message and broadcasts transmitted by and through The Application.
Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through The Application by visiting the following websites:
▪ Federal Trade Commission, http://www.ftc.gov
▪ Federal Communications Commission, http://www.fcc.gov
▪ Canadian Radio-Television and Telecommunications Commission http://crtc.gc.ca ▪ DoNotCall Registry Info, http://www.donotcall.gov
▪ Mobile Marketing Association http://www.mmaglobal.com
▪ The Australian Communications and Media Authority (ACMA), http://www.acma.gov.au ▪ Telecommunications Users Association of New Zealand, TUANZ http://tuanz.org.nz
Without limiting the foregoing, any and all consumer contacts provided by you to The Application shall consist of individuals that have provided “prior express written consent” to receive text messages from you, within the meaning of the Telephone Consumer Protection Act (47 USC § 227) (the “TCPA”),, the Canadian Anti-Spam Legislation (“CASL”) and their implementing regulations as amended from time-to-time to the telephone number(s) provided by such individuals. You agree to fully indemnify and hold The Company harmless from and against any and all liability, claims, judgments, settlement amounts or other costs incurred by The Company (including attorneys’ fees and court costs) in connection with your failure, or suspected failure, to comply with the provisions set forth in this section.
This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your client messages, broadcasts and campaigns prior to using The Application. You are ultimately responsible to make your own informed decisions regarding your Client Messages, broadcasts, and campaigns.
You shall schedule campaigns and the associated Customer Messages responsibly, in a manner that is courteous to the recipients and in full compliance with local, state, national, and international calling time rules and regulations. Other than the content made available to you by The Application, you are solely responsible for obtaining any rights or licenses to any data, including any images or video files, for inclusion in any outbound client messages, and campaigns. If you are unfamiliar or unclear as to the legalities associated with any client message, broadcast or campaign, you should consult with a legal advisor or attorney prior to your use of The Application.
You acknowledge and agree that The Application is provided for professional use only, and you agree that your use of The Application, your Client Messages, your client content (as defined below) and your client feedback (as defined below) shall not include, comprise or consist of:
▪ Sending unsolicited marketing messages or broadcasts (i.e. spam);
▪ Sending any calls or Client Message to life-line services, such as hospitals, fire, police, 911 or utility related telephone numbers;
▪ Using strings of numbers, as it is unlawful to engage two or more lines of a multi-line business;
▪ Harvesting, or otherwise collecting information about others, without their consent; ▪ Misleading others as to the identity of the sender of your Client Message or broadcasts, by creating a
false identity, impersonating the identity of someone/something else or by providing contact details that do not belong to you;
▪ Transmitting, associating or publishing any unlawful, racist, harassing, libellous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;
▪ Transmitting any material that may infringe upon the intellectual property rights of third parties, including trademarks, copyrights or other rights of publicity;
▪ Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs;
▪ Interfering with, or disrupting, networks connected to The Application or violating the regulations, policies or procedures of such networks;
▪ Attempting to gain unauthorized access to The Application, other accounts, computer systems or networks connected to The Application, through password mining or any other means;
▪ Engaging in any other activity that The Company believes could subject it to criminal liability or civil penalty/judgment.
You agree to provide your valid and legally sufficient contact information in connection with any outbound campaign within the initial greeting client message.
You further agree that The Company is, under no circumstances, responsible for the contents and/or accuracy of your Client Message and The Company via The Application will only transmit them on a good faith belief that you use The Application in accordance with the Agreement. You will provide your own content for all outbound campaigns. The Company will not be liable for any misuse of The Application by you. The Company is not responsible for the views or opinions contained in any of your Client Messages.
6.Content Submission / Discussion Areas
You acknowledge and agree that any information or materials that you or individuals acting on your behalf provide to The Application (other than information required for your use of The Application as contemplated herein), and/or include in any Client Message (collectively, “Client Content”) will not be considered confidential or proprietary. By providing any such Client Content to The Application (other than information required for your use of The Application as contemplated herein), you grant to The Company an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of and distribute such Client Content, and you further agree that The Company is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to The Application. In connection with such Client Content, you represent and warrant to The Company that you have all right, title and interest in and to such Client Content necessary to provide such Client Content to The Application for the purposes and uses contemplated hereunder, and that your provision of the Client Content to The Application, and The Company use of same as contemplated hereunder, shall not infringe upon any third party’s proprietary or personal rights including, but not limited to, any trademark, copyright, patent or trade secret.
The Company may, at its option, provide you with access to Interactive Services, which may include one or more areas within The Application for online discussions (e.g. chat). Should you choose to participate in such a forum, you agree NOT to utilize the forum for illegal or inappropriate purposes, and represent that any comments, messages or other feedback submitted by you (“Client Feedback”) will comply with the Agreement, including those restrictions set forth in the Usage Policy section above. The Company reserves the right, but will not be obligated to, edit or delete postings to its forums, as well as Client Feedback, at any time and for any reason. The Company shall also have no responsibility or liability for any Client Feedback or other material created or posted by you or other third parties within any Interactive Services forum.
7.Registration / Username / Password
In order to obtain access to The Application, you must first receive user name and password from The Company. The Company reserves the right, in its sole discretion, to deny access to The Application to anyone at any time and for any reason, whatsoever. The registration data that you must supply in order to obtain access to The Application may include, without limitation, some or all of the following, depending on the method used by you to register: (a) full name; (b) e-mail address; (c) billing address; (d) user name/password; (e) credit card information; and/or (f) any other information requested on the applicable form (collectively, “Registration Data”).
You agree to provide true, accurate, current and complete Registration Data and to update your Registration Data as necessary in order to maintain it in an up to date and accurate fashion. The Company will verify and approve all registrants in accordance with its standard verification procedures.
As part of the registration process, you will be provided with, or must select, a username and/or password. If the user name/password that you request is not available, you will be asked to supply another user name. If The Company provides you with a username/password, you can change that user name and/or password, or the one that you selected during registration, at any time through your account (“Account”) settings. You agree to notify The Company of any known or suspected unauthorized use(s) of your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username/password. You shall be responsible for maintaining the confidentiality of your username/password and account. You agree to accept responsibility for all activities that occur through use of your username/password and account, including any charges incurred there through.
Any fraudulent, abusive or otherwise illegal activity engaged in by you, or any entity or person with access to your username/password and/or Account may be grounds for termination of your Account, in The Company’s sole discretion, and you may be reported to appropriate law-enforcement agencies.
8.Intellectual Property
You are permitted to access The Application, any content provided or made available by The Company (which may include text, images, hosted software, sound files, video or other content, and which may be provided via The Application), The Company hereby grants a limited, non-exclusive, non-transferable license to you to use The Application solely for the purposes contemplated hereunder.
We may have copyrights, trademarks, patents, trade secrets or other intellectual property rights covering subject matter in The Application, including the mobile landing pages made available in connection therewith. Except as expressly provided in these Terms, the availability of The Application does not give you any license to those patents, trademarks, copyrights or other intellectual property. All copyrights, trademarks, patents, trade secrets and other intellectual property rights contained in, or associated with The Application are the sole and exclusive property of The Company or its licensors, as applicable, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of The Application, including any proprietary communications protocol used by the Service, without the express written permission of The Company in each instance. You may not use The Application in conjunction with any other third-party content. You may not exploit any aspect of The Application for any commercial purposes not expressly permitted by The Company.
9.Data Protection & Privacy
In order to ensure your compliance with the Agreement and to ensure compliance with national and international laws, we may, from time to time, randomly check the Client Message and constituent Client Content that you send by and through The Application; provided, however, that we undertake no responsibility to monitor or otherwise review your Client Message and/or Client Content. Nonetheless, we are committed to maintaining the privacy of your information, pursuant to our Privacy Policy, located at http://www.mobit.com/privacy-policy. Except as otherwise required for your use of The Application as contemplated hereunder, you must not send any confidential or proprietary information to The Company.
10. Billing Provisions
Your use of The Application is contingent on your paying for such use (whether paid in advance or through the purchase of Credits (as defined below) through The Application or provided to a member of The Company), in the amounts and using the methods indicated on The Company website and/or other area of The Application. Your payment for access to The Application, including access, credits, keywords, usage sensitive fees and/or plans (a portion of which also includes software maintenance and upgrades, as well as customer support) shall be deemed completed when The Company receives the full amount of payment owed for such portion of The Application and service. You are responsible to pay for any Client Message you attempt to send to any Consumer Contacts, regardless of whether the message is actually received by the intended Consumer Contact recipient.
The Company will charge your indicated method of payment (“Payment Method”) for the applicable portion of The Application and service immediately upon your confirming the Payment Method and amount to be charged. The charges will appear on your Payment Method statement, as applicable, through the identifier "DPS". All charges are payable in United States currency. Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions of The Company in effect at any given time. Upon reasonable prior written notice to you (with e-mail or SMS sufficing), The Company reserves the right to change its Billing Provisions whenever necessary, at its sole discretion. Continued use of The Application after receipt of such notice shall constitute consent to any and all such changes; provided, however, that
any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification. Amounts to be charged may include sales and other taxes where applicable and any other amounts indicated on our website.
Your account will be credited within twenty-four (24) hours of The Company verifying receipt of your payment. If you have elected to make a payment by credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by The Company.
The Company cannot readily or accurately ascertain your location when you request to use The Application. You therefore agree that your use of The Application outside the continental United States is not subject to any applicable US federal or state taxes.
To the extent that you are responsible for any additional taxes or fees beyond those collected by The Company, you agree that you will pay them when due to any applicable taxing authority, including any interest or penalties assessed.
The Application shall not be responsible for any errors or transmission failures with regard to the charging and collection of funds through your indicated Payment Method, nor for any actions taken by the provider of the Payment Method you choose (which could include refusal to authorize the charge). In addition to the Agreement, any payments made by you may be subject to the agreement between you and the provider of the applicable Payment Method.
As between You and The Company, you are responsible for all charges related to purchases made using your Account and payment method, whether or not you authorized such purchases. Standard charges apply to any test Customer Message sent originating from your account or initiated using any third party application.
In the event of accidental under-billing in favor of you, or non-payment by You for The Application or Services, The Company shall be entitled to immediately proceed with collection remedies and shall be entitled to recover any and all costs, fees and expenses of such collection efforts including, but not limited to, collection agencies, court costs, filing and service of process fees, attorneys’ fees incurred through use of counsel of The Companies choosing and/or any other costs, fees and expenses incurred in the pursuit of collection on all customer accounts and receivables due and payable under the Agreement.
The Company’s authorization to provide and bill for The Application and other Services is obtained by way of your acceptance of our terms and conditions when you apply for an Application subscription and make payment via an order form from The Company, via physical signature and/or voice affirmation. The Company also obtains your permission for billing by the use of ‘manual orders’ received via telephone where You provide credit card details and verbal confirmation. Once an order is received and paid, this constitutes your acceptance.
11. General Billing
Usage of The Application constitutes customer's acceptance of The Company’s billing policy, and all customers must comply with this billing policy.
▪ Unless otherwise agreed in writing, all accounts are set up on a prepaid basis, and payment must be received by The Company before any billable product or service is provided/activated. Customers are required to keep a valid credit/debit card on file to charge for recurring monthly or annual subscription fees, SMS or MMS charges or any other service fees.
▪ Subscription billing is based on availability of The Application, not based on usage. However, certain fees may be usage-based such as SMS and MMS usage. Disabled applications will incur monthly subscription fees, regardless of availability of product in the case of a breach of online terms including but not limited to delinquent accounts.
▪ The Customer is responsible for keeping all credit/debit card details and contact information current. This can be done online via 'Settings' in the customer Application account. To access 'Settings', customers should log into The Application, click on "Settings" and then click "My Account".
▪ All recurring monthly or annual subscriptions are automatically invoiced and charged to the credit/debit card on file at the anniversary period of the subscription.
▪ You are required to provide 30 days notice of cancellation of your subscription prior to the next billing date. If notice of cancellation is not received during this period, the amount of your subscription (monthly or annual) will be billed against the credit card on file. The Company will notify the customer via the email address on file, seven (7) days prior to the 14 day notice period that the customer subscription will bill against the credit card on file.
▪ If the Customer fails to notify The Company of their intention to cancel, the subscription due will automatically bill to the credit card on file. Post the billing period, and within 14 days only, the customer may request a "partial credit" of the amount paid on the credit card. The Company will deduct 20% of the total amount billed to the credit card as towards costs of administration and assistance with this credit payment. The balance will be returned to the Customer credit card on file within 14 days. There is no refund of any payment made after the 14 day "grace period".
▪ Payment receipts are available to customers upon request or through the "transaction history" area on the Application "My Account" page.
12. SMS/MMS (Message) Credits
For purposes of the Agreement, “Credits” are for the sole of purchasing SMS and MMS messages via The Application. These message credit rates vary country by country. The rates for each country messaging (SMS and MMS) can be viewed on The Company website (https://www.mobit.com/global-message-rates). The chosen route, as well as the destination of a Client Message, causes the amount of Credits required to either increase or decrease but, in either case, will always be made known beforehand through the Pricing Page on the Site. The submission of a seemingly valid Client Message will cause an associated quantity of Credits to be debited from your Account and you can obtain the real-time status of your Account at any time through the online interface.
(a) Outbound Messages. Message rates for outbound SMS and MMS messages vary per country. The current table of rates are available on our pricing page (https://www.mobit.com/global-message-rates). These rates may vary from time to time. Published message rates are also shown in The Customer Application account settings (https://app.mobit.com/settings).
(b) Inbound Messages. Inbound messages include all messages sent to the Application short code relating to The Customers Application account (e.g. text NAME to 72000). This also includes all offline marketing material with a call-to-action that prompts a text-in action (e.g. text NAME to 72000). The Customers Inbound messages are non-chargeable to accounts that have 'active campaigns'. All inbound messages are required to have an associated and ‘active response message'.
In the event that The Customer marketing material is still active against a ‘non active’ Application campaign, the user will be charged at the current outbound message rate (less 50%) for every inbound message received to any mobile keyword associated with the users Application account when the associated Application campaign is ‘not active’. In all cases and without exception, The Company accepts no responsibly whatsoever to manage The Customers Application account and manage the ‘status’ (active or non-active) of campaigns.
13. Expiration of Credits
Credits purchased as a part of a package or monthly plan, and not used within the month of purchase automatically roll-over to the next billing month. Individual anytime, non-monthly plan Credits purchased through your Application, or for orders accepted and processed manually by Company staff, expire after eighteen (18) months from the date of purchase (or most recent date of The Application subscription recharge), at which point such Credits shall expire automatically, unless otherwise stated at the time of purchase. Additionally, the value of Credits may change over time as the cost of transmission changes, and thus you acknowledge that the number of Credits needed to utilize The Application may change correspondingly. No Credit refunds will be given for non-used message Credits.
Any unused value associated with your Credits shall be forfeited upon expiration or termination of your Account. All prices, per-message rates, and billing increments are subject to change at any time due to fluctuations in market conditions, subject to the restrictions on modification to the Billing Provisions set forth herein.
14. No Refund Policy
The Company has a no refund policy. This applies to all subscriptions (monthly or annual) and includes any pre-paid services for training and consulting which have been delivered or part delivered by Company staff. We also no not refund any SMS or MMS charges for usage as outlined in 12(a) and 12(b). These services are NOT refundable. Please do not use The Application at any time if you do not agree with our refund policy. Use of or access to The Application in any way confirms your acceptance of our refund policy.
15. Fees
▪ Late Fees: The Company may assess a $50.00 late fee for any payment that is 15 days past due. ▪ Charge backs: If a customer initiates a charge-back, which against the terms and conditions outlined above, The Company may apply a $50.00 processing fee for each individual charge back. ▪ Returned Checks: The Company may assess a $50.00 processing fee on each returned check. ▪ Collections Fee: In the event an account is submitted to a third-party collections service, a $45.00 processing fee may be assessed to the existing account balance. This fee is in addition to any other fees previously assessed on the account.
▪ Interest: Any charges not paid when due are subject to interest at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month; or (ii) the maximum interest rate allowed by applicable law.
16. No Warranty / Disclaimers
The Company reserves the right to modify, suspend, or discontinue any products and services at any time for any reason without prior notice. Further, while The Company utilizes electronic and physical security measures to reduce the risk of improper access to or manipulation of Client Content, Client Message and
other data during transmission and storage, it cannot guarantee the security or integrity of such information and shall have no liability for breaches of security or integrity or third-party interception in transit, nor for any damage which may result to your computer or other property by your use of The Application. You acknowledge that Customer Messages (inbound and outbound) are transmitted in unencrypted formats and that eavesdropping on communications by third parties is possible. The Company recommends that you ensure that sensitive and valuable information is communicated by a protected and/or encrypted method. The Company shall use commercially reasonable efforts to make access to The application available through the required access protocols, but makes no warranty or guarantee that: (a) The Application will be available at any particular time; or (b) you will be able to access The Application at any particular time or from any particular location. The Company will not be liable for: (i) any act or omission of any other company or companies furnishing a portion of The Application or Company services (including, without limitation, telecommunications carriers or ISPs); (ii) any act or omission of a third party, including those vendors participating in service made available to you; (iii) equipment that it does not furnish; and/or (iv) damages that result from the operation of customer-provided systems, equipment, facilities or services that are interconnected with The Application. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE COMPANY APPLICATION AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THE AGREEMENT, THE COMPANY DOES NOT WARRANT THAT THE USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING, BUT NOT LIMITED TO, ANY INTERRUPTIONS TO THE APPLICATION CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., “HACKING”), NOR SHALL MOBIT BE RESPONSIBLE FOR ANY CLIENT CONTENT AND/OR REGISTRATION DATA LOSS, OR THE LOSS OF ANY INFORMATION IN YOUR ACCOUNT, REGARDLESS OF THE CAUSE.
FURTHERMORE, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APPLICATION OR THAT THE APPLICATION WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS.
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE APPLICATION INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
To the extent permissible by applicable law, you further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver. You waive and relinquish all rights and benefits which you have or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or non statutory law of any other jurisdiction (including, without limitation, the states of Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits.
17. Limitation of Liability
THE COMPANY SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THE AGREEMENT AND/OR THE APPLICATION, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF THE CUSTOMERS USE OF THE APPLICATION RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA, THE COMPANY IS NOT RESPONSIBLE FOR THOSE COSTS. THE COMPANY'S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE APPLICATION FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEES PAID BY YOU TO THE COMPANY HEREUNDER. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY. ACCESS TO THE APPLICATION AND/OR ANY OTHER CONTENT, PRODUCTS AND/OR SERVICES OFFERED IN CONNECTION WITH THE FOREGOING WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND, IN SUCH JURISDICTIONS, MOBIT’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. Indemnification
You agree to indemnify and hold harmless The Company, its subsidiaries, parents and affiliates, and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages,
special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by The Company in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (a) your breach of the Agreement; (b) your Client Content, Client Message and/or Feedback; (c) any violation of any applicable local, state, national or international laws and/or regulations including, without limitation, the Mobile Marketing Laws and MMA guidelines; or (d) any use by you of The Application, or use of The Application by a third party by and through an Account or computer owned by you.
You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you.
19. Termination, Cancellation and/or Suspension
If at any time you breach the Agreement, we may elect to suspend, terminate and/or cancel your use of The Application and your account and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination or cancellation. We reserve the right to suspend your Application Account and/or access to The Application at any stage for any reason we may deem necessary to continue to provide The Application in a way that may be hindered by your status as being our client, your financial status or the Client Content and/or Client Message originating from you.
Upon any such termination, cancellation and/or suspension, you are still responsible for any obligations then accrued. Your obligation to pay all amounts accrued and owed shall continue even after any suspension or cancellation of your access to The Application account (in whole or in part). Upon termination, for any reason, you agree to immediately cease using The Application and MOBIT shall have no obligation to you after any termination or cancellation of your Account and/or termination of your access to The Application.
Should such a termination take place any Application Credits in your Account, be forfeited. The Company does not refund unused Credits in any instance.
The provisions regarding ownership, payments, warranties and indemnifications will survive any suspension, termination, or cancellation of your use of The Application.
20. Termination/Cancellation by the User
You are free to terminate or cancel your use of The Application at any time, and for any reason. Cancellation requests must be submitted at https://www.mobit.com/cancellations . The Company will not suspend or cancel an account via any other means.
Notwithstanding the foregoing, in no event shall The Company be obligated to refund to you the value of any unused credits previously purchased by you. On return notification of cancellation, your Application account will be deleted from the server within 60 days and keywords registered on your Application account will not longer be active after this time. All login details, contacts and campaigns (including templates) will be deleted at this time and not be recoverable.
21. Copyright Policy/DMCA Compliance
The Company reserves the right to terminate the Account of any client who infringes upon third-party copyrights. If you believe that a copyrighted work has been copied and/or posted via the Site and/or The Application in a way that constitutes copyright infringement, you should provide The Company with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location of the campaign content within The Application account of the copyrighted work that you claim has been infringed upon; (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) your name and contact information, such as telephone number or e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for The Company’s Copyright Agent for notice of claims of copyright infringement is as follows: MOBIT Technology Ltd.
Attn: DMCA/Copyright Agent
P.O Box 300 548
Albany
Auckland 0632
New Zealand
22. Links to other Websites
The Application may contain links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by The Company of the content of such third-party websites.
The company is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.
The Company cannot ensure that you will be satisfied with any products or services that you purchase from a third party website that links to or from The Application, since these websites are owned and operated by independent third parties. The Company does not endorse any of the products/services, nor has The Company taken any steps to confirm the accuracy or reliability of any of the information contained on such third party websites. The Company does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) that you might be requested to provide to any third party, and you hereby irrevocably waive any claim against us with respect to such websites. The Company strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third parties.
The Company consents to links to The Application which conform to the following: the appearance, position, and other aspects of any link to The Application may neither create the false appearance that an entity or its activities or products are associated with or sponsored by The Company nor be such as to damage or dilute the goodwill associated with the name and trademarks of The Company or its affiliates. The Company reserves the right to revoke this consent to link at any time in its sole discretion, without notice.
23. Security Rules
You are prohibited from violating or attempting to violate the security of The Application and from using The Application to violate the security of other websites, individuals or entities by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of The Application, host or network including, without limitation, via means of submitting a virus to The Application, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”; (d) sending unsolicited text messages, including promotions and/or advertising of products or services; or (e) forging any packet headers from The Company or any part of the header information in any e-mail, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability. The Company may investigate violations of the Agreement, and may involve and cooperate with law enforcement authorities in prosecuting users of The Application who are involved in such violations.
24. Force Majeure
The Company shall not be liable for any failure or delay in performing its obligations hereunder, where such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications or Internet facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of The Company. In addition, The Company shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material product and/or service necessary for the performance of The Application.
25. Choice of law, mandatory arbitration and venue
(a) Governing Law / Jurisdiction. Unless otherwise required by a mandatory law, the Agreements (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of New Zealand, without regard to choice or conflicts of law principles.
Further, the Customer and The Company agree to the jurisdiction of the New Zealand High Court to resolve any dispute, claim, or controversy that arises in connection with the Agreement (and any non-contractual disputes/claims arising out of or in connection with them). In some cases, that jurisdiction will be “exclusive”, meaning that no other countries’ courts can preside over the matter; have jurisdiction; in other cases, the jurisdiction is “non-exclusive”, meaning that other countries’ courts may have jurisdiction as well. The Company does not accept any codes of conduct as mandatory in connection with the services provided under this Agreement.
(b) Class Action Waiver. WHERE PERMITTED UNDER THE APPLICABLE LAW, THE CUSTOMER AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both The Customer and The Company agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
(c) Arbitration. If you are located in, are based in, have offices in, or do business in a jurisdiction in which this Section 25a is enforceable, the following mandatory arbitration provisions apply to you:
(d) Dispute resolution and arbitration. The Customer and The Company agree that any dispute, claim, or controversy between the Customer and The Company arising in connection with or relating in any way to this Agreement or to your relationship with The Company as a user of The Application (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise
during or after the termination of the Agreements) will be determined by mandatory binding individual arbitration. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreements.
(e) Exceptions. Notwithstanding clause (25d) above, the Customer and The Company both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in small claims court, (2) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (3) seek injunctive relief in a court of law, or (4) to file suit in a court of law to address intellectual property infringement claims.
(f) Arbitration rules. Either the Customer or The Company may start arbitration proceedings. Any arbitration between you and The Company will be finally settled under the Rules of Arbitration of the New Zealand Dispute Resolution Centre1(the “NZDRG”) then in force (the “NZDRG Rules”) by one or more arbitrators appointed in accordance with the NZFRG Rules, as modified by these Agreements, and will be administered by the New Zealand Dispute Resolution Centre. Any arbitration will be conducted in the English language. The law to be applied in any arbitration shall be the law of the New Zealand, without regard to choice or conflicts of law principles.
(g) Time for filing. Any arbitration must be commenced by filing a demand for arbitration within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
(h) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). The Company’s address for Notice is: MOBIT Technologies Ltd, Attn: General Counsel, P.O Box 300548 Albany, AUCKLAND 0632, NEW ZEALAND. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought ("Demand").
We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, the Customer or The Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by the Customer or The Company shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, The Company shall pay you (1) the amount awarded by the arbitrator, if any, (2) the last written settlement amount offered by The Company in settlement of the dispute prior to the arbitrator’s award; or (3) USD$1,000.00, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law. Except as required to enforce the arbitrator’s decision and award, neither the Customer nor The Company shall make any public announcement or public comment or originate any publicity concerning the arbitration, including, but not limited to, the fact that the parties are in dispute, the existence of the arbitration, or any decision or award of the arbitrator.
(i) Modifications. In the event that The Company makes any future change to this arbitration provision (other than a change to The Company’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to The Companies address for Notice, in which case your Application account with The Company shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
1 https://www.nzdrc.co.nz/
(j) Enforceability. If the class action waiver at Section 25b is found to be unenforceable in arbitration or if any part of this Section 25c is found to be invalid or unenforceable, then the entirety of this Section 24c shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 25a shall govern any action arising out of or related to the Agreements.
26. Miscellaneous
The failure of either party to exercise, in any respect, any right provided for hereunder will not be deemed a waiver of any further rights hereunder. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect.
No agency, partnership, joint venture or employment relationship is created as a result of the Agreement and you do not have any authority of any kind to bind The Company in any respect whatsoever.
The Agreement shall constitute the complete agreement between the parties. No terms and conditions stated in or attached to your communications to The Company are applicable to the Agreement in any way and are not to be considered your exceptions to the provisions of the Agreement.
All notices required hereunder shall be in writing and will be deemed to have been duly given: (a) when received, if personally delivered; (b) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; (c) the day after they are sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested. The Company may give notice to you by means of a general notice posted by and through The Application, electronic mail to your e-mail address on record in The Company’s Account information, or by written communication sent by personal delivery, fax, overnight courier, or certified or registered mail to your address on record with The Company.
Please contact usif you have any questions relating to our End User Software Use Agreement. Please do not login or use our Application if you are unclear of the terms and conditions. Access to our Application constitutes full acceptance of our End User Software Use Agreement.