If you are prone to falling asleep while reading legal documents, mobileStorm recommends you drink a triple espresso before proceeding any further.MOBILESTORM, INC. (“mobileStorm”) PROVIDES ALL SERVICES SUBJECT TO THIS AGREEMENT SO PLEASE READ IT. BY ORDERING SERVICES FROM MOBILESTORM, YOU (INCLUDING YOUR EMPLOYER AND ANY AFFILIATES AND ITS OR THEIR EMPLOYEES, CONTRACTORS AND AGENTS) (“you” or “your”) ACCEPT AND WILL FOLLOW THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, IF YOU ARE NOT OVER THE AGE OF 18 (EVEN IF YOU ARE MATURE FOR YOUR AGE), OR IF YOU ARE OTHERWISE UNABLE BY LAW TO BE A PARTY TO THIS AGREEMENT, PLEASE DO NOT ORDER SERVICES FROM MOBILESTORM. MOBILESTORM RESERVES THE RIGHT TO IMMEDIATELY DISCONTINUE SERVICES BEING PROVIDED TO YOU IF YOU DO NOT COMPLY WITH THIS AGREEMENT. IF YOU ARE A MOBILE PRO CUSTOMER, YOU MAY HAVE A WRITTEN AGREEMENT WITH MOBILESTORM. (IT’S NOT A PUNISHMENT, WE PROMISE!) TO THE EXTENT THIS AGREEMENT IS INCONSISTENT WITH OR CONFLICTS WITH ANY OF THE TERMS OF A WRITTEN AGREEMENT BETWEEN YOU AND MOBILESTORM, THE TERMS OF YOUR WRITTEN AGREEMENT WITH MOBILESTORM WILL CONTROL WITH RESPECT TO THOSE CONFLICTING OR INCONSISTENT TERMS. Rules. Rules. Rules.Well . . . first off, mobileStorm reserves the right to change the terms and conditions of this Agreement at any time by:
mobileStorm doesn’t like changing this Agreement any more than you like reading it, but sometimes it happens, so please check for changes regularly. Continued use of the Services after any such changes means you agree with the changes, including changes in fees. Ordering stuff from usmobileStorm and/or mobileStorm’s licensors offer a wide range of messaging solution services (the “Service” or “Services”). In order to receive Services, you must register under one of the mobileStorm plans: mobile-Go or mobile-Pro. If you’re a mobile-Go customer, you may order Services by completing an on-line order at http://app.mobilestorm.com/signup/ (an “order”) using your User ID or by calling toll-free 1-866-492-7886. If you’re a mobile-Pro customer, you may place an order by contacting your account representative identified in your written agreement with mobileStorm. All orders shall be subject to mobileStorm’s acceptance and to this Agreement. You may cancel or reschedule Services by contacting mobileStorm’s billing department at billing@mobilestorm.com before any billing cycle which starts on the 1st of each month. Your accountThe Software (defined below) and Services allow you to set up user accounts and related user identification numbers and passwords (collectively “User IDs”). You shall be responsible and liable to mobileStorm for all uses of such User IDs and all fees incurred for Services ordered under your User IDs, whether or not authorized by you. Serving youAll we ever do is “try our best”, so subject to the terms of this Agreement, mobileStorm will use commercially reasonable efforts to provide the Services to you as set forth in the orders accepted by mobileStorm. The Services are for your internal and business use, and not for resale to or use by any third party. mobileStorm provides online support at support@mobilestorm.com and telephone support at 1-866-492-7886 (inside the US) and 1-323-785-6333 (international). Support is provided during mobileStorm’s normal business hours. When using our databaseCertain secret stuff . . . otherwise known as proprietary data may be provided by you to mobileStorm for use in the ordinary fulfillment and delivery of Services, including your subscriber database (collectively, “Database”). Rest assured that you will be the owner of any Database provided to mobileStorm. Your Database must be provided to mobileStorm in the form and format specified by mobileStorm. A la “cloak and dagger,” mobileStorm will keep your Database confidential and will not sell or rent your Database to anyone. However, we may use your email addresses and SMS lists to conduct analysis for your benefit, which may include general, anonymous determinations of location, gender, business affiliations, etc. In order to help conduct this analysis, you give us the right to conduct such analytics and to provide your email addresses and SMS lists to third parties solely for the purpose of conducting such analysis for your benefit. We will provide to you the results of the analysis. The Do Not Mail List.You will hastily be removed from the Database (kinda like when you try to smoke in a movie theater) all data and information of any person who has previously stated verbally and/or in writing that he or she does not wish to receive Services made by or on behalf of you. You agree to update the Database or any contact lists delivered to mobileStorm hereunder prior to commencement by mobileStorm Services on your behalf. If you do provide us a list of email addresses and/or cell phone numbers, you will ensure that they do not contain email addresses or cell phone numbers of any person that has previously opted-out of receiving emails, SMS or other communications. In case you get hot feetYes . . . there’s always a way out. mobileStorm maintains and owns a Global Permanent Removal List which contains addresses and domains which it will not allow any customer to add to a database. You understand and agree that mobileStorm has full discretion to block the uploading of any e-mail address which it has placed on such a list, and will not be liable for the blocking of any such address from any customer database. By clicking on the Unsub tab or on mobileStorm’s footer or who sends an email to mobileStorm at abuse@mobilestorm.com any message recipient can opt-out of receiving any further communications from you through mobileStorm. You agree that mobileStorm can place people on the Global Permanent Removal List should that happen. Let’s obey the lawWe all have to play by the rules. Plain and simple . . . you agree that it’s your sole responsibility to ensure that the Services requested by you and performed by mobileStorm comply with all applicable Laws. We don’t kiss and tellYou agree to follow our privacy policy at http://www.mobilestorm.com/privacy/ (the “Privacy Policy”). When ordering Services and providing Content to subscribers in your Database, you shall establish, maintain and administer a privacy policy that is substantially similar to the Privacy Policy. If you do not have a privacy policy in place, just ask and we will provide one to you. Respect your Database. We do. Behave yourselvesTreat others the way that you want to be treated. In other words, you agree not to:
Us keeping an eye on youYup . . . we’re keeping an eye on you. mobileStorm has the right, but not the obligation, to monitor, listen in on and otherwise review, at any time, all Content to make sure you’re complying with this Agreement and the Laws; but mobileStorm is not responsible or liable for your Content. Stuff about you paying usBy using mobileStorm’s Services, you agree that mobileStorm is permitted to bill you (that’s right . . . we get paid for what we do) the applicable fees and any other charges for the Services provided by mobileStorm. Whether you’re a mobile-Go or -Pro customer, you pay using your Credit Card by setting up an account from which payments for Services and charges are debited. mobileStorm permits you to set up an automated payment system by establishing a credit card account from which payments for Services and charges are debited. mobileStorm will charge your credit card for any recurring monthly charges at the beginning of the month during which Services will be performed. If your monthly usage exceeds the included monthly usage on the plan you selected when you signed up, then you agree to pay applicable overage fees which happen to be $.10 per SMS, $.005 per Email and $.10 per voice and fax message. What’s ours is oursAh, yes . . . that coveted word. All worldwide right, title and interest in and to the Services, and all components thereof, including without limitation the software (the “Software”) used to receive orders and information from you for Services and to provide the Services to you, shall be and remain the sole and exclusive property of mobileStorm or its third party licensors, as applicable. There are no implied licenses. Also, don’t try to get into your lab and reverse engineer our technology. You can bet your bottom dollar that you’d have to ask us to do that first. We’ll probably say “NOOOO”. Is something yours?The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials we are hosting infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Company to locate the material on the Site; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed by against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices should be sent to mobileStorm Inc. 6565 Sunset Blvd. Ste. 200 Los Angeles, CA 90028 c/o Jared Reitzin We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA. What you’re on the hook forUnless you are currently under contract with mobileStorm and if you’re a mobile-Go customer who signed up after August 17th 2009, your Agreement will be on a month-to-month basis and will continue until it’s terminated as described herein. Ok, now for the fun stuff . . . OUR LAWYER TELLS US THE NEXT TWO PARAGRAPHS NEED TO BE CAPITALIZED, AND WE DON’T WANT TO PAY TO ARGUE WITH OUR LAWYER. IF THE TRIPLE ESPRESSO WE INITIALLY RECOMMENDED HAS WORN OFF, HAVE ANOTHER BEFORE READING THE REST OF THIS AGREEMENT. NO WARRANTY AND DISCLAIMERMOBILESTORM MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. MOBILESTORM MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE RESULTS TO BE ACHIEVED BY YOU AFTER PERFORMANCE OF THE SERVICES. MOBILESTORM DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. YOU’RE NOT AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION CONCERNING THE SERVICES. mobileStorm does not warrant the accuracy or reliability of the results obtained through the Services or any data or information downloaded or otherwise obtained or acquired through or in connection with the Services. You acknowledge that any data or information downloaded or otherwise obtained or acquired through or in connection with the Services are at your sole risk and discretion and mobileStorm will not be liable or responsible for any damage to you or your property in connection therewith. LIMITATION OF LIABILITYIN NO EVENT WILL MOBILESTORM’S CUMULATIVE AGGREGATE LIABILITY RELATED TO SPECIFIC SERVICES PROVIDED TO YOU EXCEED THE AMOUNTS RECEIVED FROM YOU WITH RESPECT TO SUCH SERVICES REGARDLESS OF THE FORM OF ACTION WHETHER BREACH OF CONTRACT, TORT, NEGLIGENCE OR OTHER CLAIM. IN NO EVENT SHALL MOBILESTORM BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, NON-COMPENSATORY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. THE LIMITATIONS IN THIS SECTION (I) ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES AND SHALL SURVIVE AND (II) APPLY NOTWITHSTANDING THE VALIDITY OF THE LIMITED REMEDIES PROVIDED FOR IN THE AGREEMENT OR IF ANY SUCH LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IndemnificationYou Agree To Indemnify And Hold mobileStorm, Inc., Its Parents, Subsidiaries, Affiliates, Officers, Partners And Employees, Harmless From Any Claim Or Demand, Including Reasonable Attorneys’ Fees, Made By Any Third Party Due To Or Arising Out Of Your Use Of The Service, Use Of Your Account By Any Third Party, The Violation Of The Terms Of Use By You, Or The Infringement By You, Or Any Third Party Using Your Account, Of Any Intellectual Property Or Other Right Of Any Person Or Entity. Are you still awake? Great! Order some Services and watch yourself become a marketing mogul! |
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