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 AND THE TERMS OF USE BEING PROVIDED TO YOU IF YOU DO NOT COMPLY WITH THIS AGREEMENT.

IF YOU ARE OR WERE AN EXISTING 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:

  1. Posting notice of the changes and the updated Agreement on mobileStorm’s website (www.mobileStorm.com) (the “Site”); or
  2. Providing notice of the updates and revisions to the email address provided by you to mobileStorm.

We don’t like changing this Agreement any more than you like reading it, but because the world is changing, sometimes it has to happen. So please pay attention to emails from us and 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 us

In order to receive our messaging solution services (the “Service(s)”), you must order Services by calling toll-free 1-866-492-7886 or by placing an order by contacting your Account Manager. All orders shall be subject to mobileStorm’s acceptance and to this Agreement. Subject to the terms of this Agreement, you may cancel or reschedule Services by contacting mobileStorm’s billing department at billing@mobileStorm.com before any billing cycle. All billing cycles, including yours, start on the 1st of each month as more fully set forth below.

Your account

The Software (defined below) and Services allow you to set up user accounts and related user identification numbers and passwords (collectively “User IDs”). You are 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. This means if you make your password available, or a third party accesses your account, and they send a bunch of messages or order new services, it means the same to us as if you did it yourself.

Serving you

We always “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 as well. Support is provided during mobileStorm’s normal business hours.

When using our database

Super (and not so super) 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 sole and exclusive owner of any Database provided to mobileStorm. We won’t sell it, rent it, or use it in any manner inconsistent with these terms of use. 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, you acknowledge and understand that we may utilize the products and services of third parties to satisfy our obligations to you, to perform services for you, to make enhancements to the services, to develop new products or services, to conduct research and analysis, and to offer products and services to you that we may deem appropriate for or of interest to you. In connection therewith, you hereby authorize us to provide Database information, including email addresses and SMS lists, to third parties solely for the foregoing purposes. Prior to sharing any Database information with any third parties, they will be required to agree to restrict their use of the Database information solely to the purposes set forth above, and they will not be authorized to use the Database information to solicit or market to the persons included in the Database.

The Do Not Mail List.

You promise to hastily remove from the 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.

Some people just don’t want to get messages

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 law

We all have to play by the rules. Plain and simple… you agree that it’s your sole responsibility to ensure that your use of the Services requested by you, and transmitted on your behalf by mobileStorm comply with all applicable Laws.

You represent and warrant that the owners of the phone numbers you provide to mobileStorm, to which outbound messages are transmitted through the Services, have consented or otherwise opted-in to the receipt of such messages and broadcasts. You agree that you will include clear opt-out/unsubscribe information on at least every fifth text message you send through mobileStorm’s Services and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association. You further agree that any individual requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and removed from your list of approved contacts used with the mobileStorm Services and the MobileStorm Sites.

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 under your account, including without limitation the content of the messages and broadcasts transmitted through the mobileStorm Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the mobileStorm Services by visiting the following websites:

  1. Federal Trade Commission, http://www.ftc.gov
  2. Federal Communications Commission, http://www.fcc.gov
  3. DoNotCall Registry Info, http://www.donotcall.gov

The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. mobileStorm is in no way attempting to interpret any laws, rules, or regulations. 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 messages, broadcasts and campaigns prior to using the Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.

You accept that the Services are provided for professional use only, and you agree that your use of the mobileStorm Sites or Services shall not include:

  1. Use this Site or the Services for any unlawful purpose or other stuff your mom probably wouldn’t like, which (for most moms) includes: pornography and “adult” products/services
  2. Sending unsolicited marketing messages or broadcasts (i.e. spam);
  3. Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility-related telephone numbers;
  4. Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;
  5. Harvesting, or otherwise collecting information about others, without their consent;
  6. Misleading others as to the identity of the sender of your messages 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;
  7. Express or imply that any statements you make are endorsed by mobileStorm, without our prior written consent;
  8. Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity;
  9. Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs;
  10. Use purchased list or database, or use data from a service that sells co-registration or partner offer data, or a database that includes spam trap seed addresses (e.g., info@, support@, sales@);
  11. Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;
  12. Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
  13. Modify, adapt, sub-license, sell, reverse engineer, decompile or disassemble any portion of this Site or the Services;
  14. Remove any copyright, trademark or other proprietary rights notices contained in the Site or the Services;
  15. “Frame” or “mirror” any part of this Site without our prior written authorization;
  16. Interfering with another’s use and enjoyment of the Services; or
  17. Engaging in any other activity that mobileStorm believes could subject it to criminal liability or civil penalty/judgment.

You agree to provide legal contact information in any outbound campaign within the initial greeting message. You further agree that mobileStorm is, under no circumstances, responsible for the contents and/or accuracy of your messages or broadcasts and mobileStorm will only transmit them on a basis of good faith that you use the Services in accordance with these Terms. MobileStorm will not be liable for any misuse of the Services by you.

If mobileStorm reasonably believes that you have been misbehaving based on any of the reasons above, we reserve the right to immediately terminate your right to use the Services, and you will NOT be eligible for a refund of any fees paid to us for the Services (including any fees paid for future use of the Services).

We don’t kiss and tell

You 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.

We’re watching

Yup… 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 us

By 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.

You pay using your Credit Card by setting up an account from which payments for Services and charges are debited. mobileStorm lets you 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 provided. We will provide you a receipt via email.

Commencing with all new Pro level accounts on or after April 1st, 2011, the plan for the Services will not include overage fees and at the end of each month you will be billed for the amount of messaging actually used during the month, unless you are on an unlimited messaging plan. If your agreement expressly excludes overage fees, then the following does not apply. Otherwise, if you have a GO account, you agree to pay applicable overage fees which happen to be $.10 per SMS, $.005 per Email and $.10 per voice and fax message.

mobileStorm maintains a 30-day Notification Cancellation Policy. If you are on a Month to Month contract you may cancel the Services by sending a cancellation request to us at billing@mobileStorm.com at any time but please be aware that cancellation requests that we receive after the 7th of the month will take effect for the month following receipt of request. For instance, if we receive your cancellation request on June 2nd, then your Services will be cancelled as of June 30th (no charge for July 1st and your Account and Services will be Deactivated). But if we receive your cancellation request on June 15th, then your Services will be cancelled on July 31st and you will be charged on July 1st.

As a heads up, mobileStorm charges all clients in full for the Services on the first (1st) of every month, regardless of whether or not a client actually uses the Services during that month. We are a subscription service, which means we’ll make the system available for you whether you use it or not. It is completely up to you – payment is due regardless of whether you actually use the service in a particular month.

T&Cs – For those mobileStorm customers who have been extended credit terms the following penalty will be assessed on all invoice balances older than 30 days. A monthly 1% interest rate will be charged for all invoice balances older than 30 days. Please pay your invoice within 30 days. We truly appreciate your business!

Invoices – Payments not meeting terms – Any unpaid balance exceeding 30 days past due is subject to a monthly interest rate of 1%. Additionally services and access to the mobileStorm account are not guaranteed once an unpaid balance is 30 or more days past due. Please pay your invoice within 30 days. We truly appreciate your business!

Also, mobileStorm does not pro-rate its charges for cancellations made during the month – so if you wish to cancel your account, it is a good idea to do so before the seventh (7th) of the month, to avoid being charged in full for the next month. It’s easy: send an email to billing@mobileStorm.com. We are here for you.

Renewing your agreement is important, unless you’re okay with unnecessarily spending more money. We’re not your mom, so it’s your responsibility to know when your contract runs out. However, we know you’re busy running your business and it might slip your mind, so we do automatically send you a renewal notice on the first (1st) of the month in which your Agreement ends. All you’ve got to do is click on the link to auto-renew, or email us at support@mobileStorm.com before the end of the month so we can update the expiration date on your Agreement, and protect your discounted rates. If you don’t renew before your agreement expires, you’ll be charged on the first (1st) of the month following your expiration date at the higher month-to-month rate, and your new contract pricing may be significantly higher than before your agreement expired.

We abide by this renewal policy whether your dog ate your email, it went to your Spam folder or you happen to be a friend of our CEO. We’re pretty fond of him around here too, but he’s just so awesome he’s made friends with everyone he’s ever met – so no matter how long you’ve been a friend or mobileStorm client we will still have to honor our agreement expiration policies.

What’s ours is ours

Ah, yes… that coveted word “ours”. All worldwide rights, 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. 16530 Ventura Blvd, Suite 502, Encino, CA 91436 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.

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 DISCLAIMER

MOBILESTORM 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 LIABILITY

IN 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.

Indemnification

You agree to indemnify, defend and hold harmless mobileStorm and its 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 mobileStorm 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: (i) your breach of the above warranties; or (ii) any use by you, or an account or computer owned by you, of the Services. 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. You acknowledge and agree to be held liable for any and all damages caused to mobileStorm by you as a direct result of a violation of local, state, national or international laws and regulations, including but are not limited to those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by mobileStorm to you. You further agree that your obligation to indemnify, defend and hold mobileStorm harmless, as outlined above, will continue regardless of the termination or expiration of our Services.

Raster

If you work with Raster Media, LLC (“Raster”) to help with your website development or any other professional services, we will assist you and work with Raster, as necessary for you to receive the Services, but please understand that you will also need to agree to Raster’s terms and conditions for their services.

Sorry about all that. We needed to say it all in order to be able to continue to provide legendary customer service to our clients ( including you).

Now, if you’re still awake, it’s time to order Services and get started toward marketing mogul-hood!

One final thing – we work with EchoSign, Inc. to get our agreements executed quickly and efficiently, often directly through Salesforce. You agree that if you execute your agreement with us with the help of EchoSign, Inc. (e.g. including signature via “Esign”) that the agreement is binding on you or your company.

Governing Law and Choice of Forum

mobileStorm is located in the State of California. Our Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of laws principles. Except as hereinafter provided, any claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity) arising from or relating to the Agreement or the relationships which result from this Agreement, including the existence of the Agreement as between you and mobileStorm or the validity or enforceability of this arbitration provision, any part thereof or the entire Agreement (“Claim”), shall be decided by binding arbitration in Los Angeles, California in accordance with the provisions of the Federal Arbitration Act, 9 U.S.C. §§1-16, as amended (the “Federal Arbitration Act”), to the exclusion of state laws inconsistent therewith.

It is the intent of you and mobileStorm to require Claims to be submitted to arbitration on an individual basis only. CLAIMS SUBJECT TO THIS ARBITRATION PROVISION MAY NOT BE JOINED OR CONSOLIDATED IN ARBITRATION WITH ANY CLAIM OF ANY OTHER PERSON OR BE ARBITRATED ON A CLASS BASIS, IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ON BEHALF OF ANY OTHER PERSON, UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.

The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (“Rules”), except to the extent they conflict with the express provisions of this paragraph. A single independent arbitrator shall conduct the arbitration. The parties shall endeavor to select the independent arbitrator by mutual agreement. If such agreement cannot be reached within thirty (30) days after a dispute has arisen which is to be decided by arbitration, the selection of the arbitrator shall be made in accordance with the Rules as then in effect. The arbitrator may, in his/her discretion, award to any party specific performance or injunctive relief (the foregoing is not intended to limit mobileStorm’s access to the courts to the extent provided below). The arbitrator may not change, modify, or alter any express condition, term, or provision of this Agreement or the extent the scope of their authority is expressly limited. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding upon the parties and no appeal of any kind may be taken. Judgment may be entered thereon in any court having jurisdiction thereof. Each party shall be entitled to inspect and obtain a copy of non-privileged relevant documents in the possession or control of the other party. All such discovery shall be in accordance with procedures approved by the arbitrator. Unless otherwise provided in the award, each party shall bear its own costs of discovery. The parties shall bear equally the cost of the arbitration, except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator. The statute of limitations applicable under California law to the commencement of a lawsuit shall apply to the commencement of arbitration hereunder.

Anything in the foregoing paragraph to the contrary notwithstanding, Company may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of this Agreement.

 
 

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