2.1. “Licensee Content” shall mean digital promotional and marketing material, including loyalty programs, provided by Licensee for provision of its Promotions via the Services to Subscribers, including any Licensee trade name, trademark, service mark and logos.
2.2. “Promotion” means any loyalty plans, rewards, discounts, and/or promotions of Licensee and other Mobilozophy customers.
2.3. “Services” means Mobilozophy’s online Get-Perked platform, including without limitation the related websites and applications; APIs, software, technology, and documentation; all data and other information collected, obtained, derived or generated through use of the Services; and all content (excluding any Promotion) available on or through the Services.
2.4. “Subscriber” means an individual that has registered to use Mobilozophy’s Get-Perked mobile application to receive Promotions and opted in to receive messages via SMS, beacon or geofence, if applicable.
3.1. Mobilozophy will make Promotions available to Subscribers through the Services.
3.3. Mobilozophy may terminate or suspend any Promotion at any time for any reason, with or without notice.
3.4. Mobilozophy will collect data arising from or relating to Subscribers’ registration and interactions with Promotions (including clicking, viewing, and redemption data). “Subscriber Data” means all such Subscriber data and information collected, generated, derived or obtained by Mobilozophy.
4. Email Support.
4.1. Mobilozophy shall provide email support to Licensee Monday through Friday (holidays excluded) between the hours of 9:00 a.m. and 5:00 p.m., Eastern Standard Time, with respect to questions regarding the Services. Hours of service are subject to change at any time by Mobilozophy without notice.
4.2. Licensee will provide Subscriber support relating to Licensee’s Promotions.
5. License Grant.
5.3. Except as expressly provided herein, neither party will use the other party’s trade name, trademark, service mark and logos (“Marks”) without such party’s prior written consent. Each party agrees to use the other party’s Marks in accordance with such party’s then current trademark usage guidelines. All goodwill associated with a party’s use of the other party’s Marks will inure solely to the benefit of the Mark owner and neither party will take any action to damage the goodwill associated with the other party or its Marks.
6. Requirements and Restrictions.
6.1. Requirements. Licensee represents and warrants that Licensee Content and Licensee Promotions do not contain content that:
a. violates, or encourages conduct that violates, laws, statutes, ordinances, and regulations;
b. violates a third party’s copyrights, trade secrets, trademarks, privacy rights, publicity rights, or other intellectual property or proprietary rights;
c. Licensee does not have the right to disclose under any law, contractual obligation, or fiduciary relationship;
d. is sexually explicit, pornographic, obscene, defamatory, libelous, threatening, harassing, hateful, discriminatory, racially or ethnically offensive, abusive, violent, humiliating to or bullying of other people, or otherwise inappropriate, as deemed by Mobilozophy in its sole discretion;
e. is fraudulent, false, misleading, or deceptive;
f. may create a risk of harm, loss, emotional distress, or physical or mental injury to any person or animal;
g. is harmful to or exploitive of children, or that includes images or videos of children without first obtaining the consent of their parent or guardian;
h. sends, facilitates, or promotes illegal games, contests, spam, surveys, unsolicited advertising or promotional materials, pyramid schemes or chain letters;
i. disseminates malware, spyware, adware, viruses, Trojan horses, trap doors, worms, time bombs, cancelbots, corrupted files or any other similar software, files, or programs that may (i) damage or adversely affect the operation of the software, hardware of systems of any user, or (ii) interfere with, intercept or expropriate any personal information;
j. impersonates another person or entity; or
k. promotes gambling, ammunition and/or firearms, tobacco products, illegal drugs or other illegal activity such as unlicensed pharmaceuticals, unlicensed healthcare providers or services, unlicensed pharmacies and studies or clinical trials that are not conducted pursuant to FDA approval or standards.
6.2. Licensee shall not directly or indirectly, or knowingly permit other persons to distribute, modify, adapt, translate, reverse engineer, decompile or disassemble or attempt to derive the source code for any software used to operate the Services.
6.3. Licensee shall not reproduce, copy, duplicate, alter, tamper with, sell, resell, rent or trade the Services.
6.4. Licensee shall be solely responsible and liable for the accuracy, integrity, and validity of Licensee’s Promotions.
7. SMS Terms. Licensee desires Mobilozophy to (i) transmit Licensee Content to wireless devices of Subscribers via SMS, and (ii) receive from Subscribers SMS reply or mobile origination messages where agreements with telecommunication network services (each a “Carrier”), billing capabilities and connections allow.
7.1. Licensee Content Delivery and Opt-Out Message Receipt Limitations: Mobilozophy does not guarantee Licensee Content delivery to Subscribers, and will bear no liability to Licensee or any third party for failing to deliver. In no event shall Mobilozophy be responsible for limitations on Licensee Content by Carriers or Licensee Content not-approved by Carriers. Mobilozophy does not control delivery of ‘Opt-Out’ messages from Subscribers and will not be responsible or liable for the delivery of SMS to any Subscriber unless and until Mobilozophy actually receives the ‘Opt-Out’ message from the Subscriber.
7.2. Licensee Content Rejection, Conduit, Disclaimer: Mobilozophy may at its sole discretion reject sending all or part of any Licensee Content to Subscribers. Mobilozophy will not be liable for rejecting any Licensee Content. Licensee agrees that Mobilozophy is acting as a passive conduit for the delivery of Licensee Content provided by Licensee. Licensee is solely responsible for contents and the distribution and publication of Licensee Content. Mobilozophy is not responsible for the accuracy, completeness, or correctness of any Licensee Content.
7.3. Licensee’s Communications: Licensee acknowledges that an internet connection is required to access the Products to create, edit and deliver Licensee Content and review and download reports, as well as integrating the redemption of Licensee Content with Licensee’s point-of-sale system, if applicable. Licensee shall be solely responsible for its internet connection, including all associated costs and expenses, and Licensee shall deal directly with the service provider for service recovery issues should Licensee’s internet connection fail. Licensee will be responsible for maintaining security for connectivity between Licensee and Mobilozophy.
7.4. Content Standards: Licensee will adhere to Mobilozophy’s Content Standards, a current copy of which can be found on Mobilozophy’s web site. Mobilozophy reserves the right to make reasonable changes and additions to its Content Standards. If Licensee fails to comply with the Content Standards, Mobilozophy, in addition to all other remedies available to it at law and equity, may: (a) suspend performance of its obligations under this Agreement, until Licensee’s breach has been cured; or (b) terminate this Agreement without further liability, obligation or penalty.
7.5. Compliance with Laws, Regulations and Carrier Guidelines: Each party will comply with all applicable laws, rules, regulations, directives, statements, codes of practice and applicable Carrier guidelines with respect to the Services, and Mobile Marketing Association (MMA), Telephone Consumers Protection Act (TCPA) and CTIA best practices guidelines and/or code of ethics in general and otherwise in connection with performing its obligations under this Agreement. Furthermore, SMS Services pursuant to this Agreement shall be subject to modification in a manner applicable to all customers of the SMS Services, including as a result of changes made by the relevant Carrier(s) to the corresponding services provided by the Carrier(s). If any such change has any effect on the rights and obligations of either party, then (i) Mobilozophy shall use commercially reasonable efforts to notify Licensee in writing of the relevant changes as soon as reasonably practical, and (ii) such change shall be automatically binding on Licensee.
7.6. Subscriber Information: Licensee will use and handle all Subscriber information subject to all laws, rules, regulations, codes, guidelines, Carrier policies and directives in force and applicable to confidentiality and personal data protection. Licensee will not disclose Subscriber information to any third party, under any circumstance.
7.7. Compatible Carriers: ACS Wireless, Aio Wireless, Alltel, Appalachian Wireless, AT&T, Bluegrass Cellular, Boost, Cable Vision/Optimum Mobile, Carolina West, Cellcom, Cellsouth, Cellular One of East Central Illinois, CellularONE SLO, Chariton Valley, Chat Mobility, Copper Valley, Coral Wireless, Cox Wireless, Cricket, Cross (Sporocket), Crossroads, DTC Wireless, Duet IP, Element Mobile, Epic Touch, Flat Wireless, GCI Communications, Golden State, Hawkeye (Chat Mobility), Illinois Valley Cellular, Inland Cellular, iWireless, Keystone Wireless, Leaco, LongLines, MetroPCS, Mosaic, Next-Tech Wireless, Northwest Missouri Cellular, nTelos, Panhandle Telecommunications, Peoples Wireless, Pine Cellular, Pioneer, Plateau, Revol, Rina, SouthernLINC, Sprint, SRT Wireless, Thumb Cellular, T-Mobile, Unicel, Union Wireless, United, U.S. Cellular, Verizon Wireless, Viaero Wireless, Virgin Mobile and West Central Wireless. Compatible Carriers is subject to change without notice.
8. Fees and Charges. Licensee shall pay Mobilozophy the non-refundable fees set forth when registering for the Services in advance, as well as any applicable taxes. Licensee represents and warrants that the billing and contact information is true and accurate and that Licensee is authorized to use the payment method. Licensee must promptly update account information with changes that may occur, including a change in billing address or credit card number, if applicable.
9. Term and Termination.
10.2. Licensee Ownership. Mobilozophy hereby acknowledges and agrees that, as between Mobilozophy and Licensee, Licensee owns all right, title and interest in and to the Licensee Content.
11. Confidential Information.
11.2. Injunctive Relief. Each party specifically agrees that any breach of Section 10.1 will result in irreparable injury to the other party and the other party shall be entitled (without the necessity of posting any bond or establishing the inadequacy of damages as a remedy) to seek specific performance and injunctive relief to correct and/or enjoin any such breach or threatened breach in addition to all other remedies which might be available. In the event any such action is brought, the parties hereby agree that the United States District Court for the Middle District of Florida, Tampa Division shall have exclusive jurisdiction to hear and determine any such action.
13. Disclaimer of Warranties. MOBILOZOPHY DOES NOT WARRANT OR GUARANTEE THE DELIVERY OF PROMOTIONS TO SUBSCRIBERS, AND WILL BEAR NO LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR FAILING TO DELIVER. MOBILOZOPHY IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, OR CORRECTNESS OF ANY CONTENT SUPPLIED BY LICENSEE, OR ANY MISTAKES OR INACCURACIES IN LOYALTY PLANS, DISCOUNTS, PROMOTIONS, OR REWARDS CREATED OR MADE AVAILABLE THROUGH THE SERVICES. THE SERVICES ARE BEING PROVIDED BY MOBILOZOPHY HEREUNDER ON AN “AS IS” BASIS TO LICENSEE, AND MOBILOZOPHY SPECIFICALLY AND EXPRESSLY DISCLAIMS, AND LICENSEE EXPRESSLY RELEASES AND WAIVES, ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE AND PURPOSE OR ANY WARRANTY ARISING UNDER STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
15.3. Publicity. Both parties may agree in writing to include a reference to the other party and its logo on its website, marketing and promotional materials (in any medium) subject to the compliance by each party with the applicable trademark guidelines of the other party. The parties may agree to issue a joint press release in a form mutually agreeable to both parties, provided such press release is mutually agreed to by the parties prior to publication. Each party may re-publish information contained in a previously approved press release, including on a party’s website and in marketing materials.
15.7. Waiver. All waivers of any failure of a party to comply with any obligation, provision or condition herein must be in writing and signed by the party granting the waiver, but such waiver is not a waiver of, or estoppel with respect to, any subsequent or other failure.
15.9. Attorneys’ Fees and Costs of Enforcement. The parties hereto agree that should it become necessary for any party hereto to employ an attorney to enforce or interpret any of its rights hereunder against any other party hereto, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to reimbursement from the non-prevailing party of all costs and expenses, including reasonable attorneys’ fees, costs of arbitration and court costs, at all levels of litigation, appeal and post-judgment relief.