Terms & Conditions

                                                                                          

1.      WELCOME

 

Welcome to the 121Mobile website (the "Site") provided by 121Mobile, Inc. (which will be referred to herein as either “121Mobile”, “we”, “us” or “our”). The Site, and any other services, modules, functions, software or platforms, provide services through which  an Advertiser can easily create its own marketing efforts including, but not limited to, promotional offerings, correspondence, surveys, campaigns and related materials (the "Promotions"), distribute them to its potential customers ("End-Users") and monitor the related results (collectively, the “Services”). These Terms & Conditions (the “Terms”) constitute a set of rules by which we operate such Services. In these Terms, an "Advertiser" shall mean (i) a body which its Promotions are presented to you, if it creates the Promotions by  us, or (ii) a third party that creates the Promotions for such body.

 

By using or accessing the Services, including the use of any Promotion, you acknowledge that you agree to the Terms, and are subject to their binding terms and to our Privacy Policy. IF YOU DO NOT AGREE TO BE FULLY BOUND BY ALL OF THESE TERMS, PLEASE DO NOT ACCESS THE SITE AND DO NOT USE THE SERVICES OR THE PROMOTIONS OR DO NOT OPT IN TO THE SERVICE, OR TEXT STOP TO OPT OUT. Please note that we reserve the right, at our sole discretion, to revise modify or change or remove portions or all of these, at any time.

 

 

2.      OWNERSHIP OF THE SERVICE

 

The underlying platforms of the Services are either the proprietary property of 121Mobile or the proprietary property of our licensors or licensees.

 

Our Site may contain information, content, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, and other materials (collectively, "Site Content") that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights. You acknowledge that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed.

 

All trademarks appearing on the Site are trademarks of their respective owners. “121Mobile” and other 121Mobile trademarks, slogans, service marks, trade names, and trade dress which appear via the Service are proprietary to 121Mobile. Our commercial partners, customer, suppliers, advertisers, sponsors, licensors, contractors and any other third parties may also have additional proprietary rights in the Site Content which are made available on this Site. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Site Content, in whole or in part, unless specifically granted the right to do so herein. Modification of the Site Content or use of the Site Content for any other purpose, including, but not limited to, use of any Site Content in printed form or on any other website or networked computer environment, is strictly prohibited unless you receive our prior written consent.

 

In addition, the Promotions are part of the Services provided to Advertisers and Advertisers may not use Promotions in any printed form or in other way except as part of the Services provided by 121Mobile.

 

3.      MOBILE CARRIERS

 

Please note that the Services are controlled and offered by 121Mobile from our facilities in the United States of America. The Services are supported by the following local US mobile carriers:  AT&T, U.S. Cellular, Verizon Wireless, Sprint, Cricket, Boost, Nextel, and T-Mobile. 121Mobile only provides that the text messages sent through the Services are processed correctly and delivered to the applicable mobile telecommunications network. 121Mobile is not responsible for the final delivery of the message, as this is the responsibility of the mobile carriers.

 

4.      CONTENT AND USE OF SERVICES

 

Advertiser shall provide us with all related material for the creation of the Promotions, including but not limited to the Promotion's details, design and creative ("Content"). As 121Mobile is solely a facilitator of the Services provided to the Advertiser, the Advertiser shall be solely responsible for the Content provided us in connection with the Services, including but not limited to any of the Content created as part of the mobile Promotions creation process, information provided to third-parties through such Promotions or Contact Lists, as defined below. The Content is transformed automatically into Promotions which are sent to End-Users. As the provider of the Content, the Advertiser shall be solely responsible for any undertakings created with End-Users through the distribution of the Promotions and as otherwise related, and 121Mobile shall in no way be liable for any offers made through a Promotion to End-Users.  

                     

Advertiser expressly agrees that any Content provided will not and will not cause a Promotion to: (1) be false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, harmful to minors, or is racially, ethnically, or otherwise objectionable; harassing, defamatory, libelous, abusive, threatening, obscene, coercive or objectionable, including material that is false, misleading or inaccurate, including, without limitation, material which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, or international law; (2) include or use materials for which you do not have requisite rights (e.g. license, copyright, royalties or otherwise); (3) violate applicable laws, orders, codes, regulations and requirements; (4) list or advertise goods and services which Advertiser does not have a license to provide; (5) use third-party social media logos or other branding without an authorization to do so; (6) include or use materials that infringes any patent, trademark, trade secret, copyright, or other proprietary rights; (7) be considered as bulk content or Promotions which would be characterized as “Spam” or “Junk Mail” or other forms of unwanted solicitation; (8) include content from, or links to, services or sites that permit illegal peer-to-peer ‘sharing’ of copyrighted content; (9) (10) be commercially misleading or fraudulent towards End-Users; (11) include the submission of any purposely inaccurate or falsifying information in connection with the Advertiser and its business, or (12) be otherwise inappropriate, unlawful or contradict the MMA Best Practices Guidelines ("MMA") ( http://mmaglobal.com/education/bestpractice) which strict compliance with these practices must be adhered to for continued use of the Services. Advertiser will notify us immediately if any of the above becomes inaccurate.

 

Advertiser furthermore agrees, to the fullest extent permissible by law, that with respect to the Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM)  and any regulations promulgated thereunder, that Advertiser, and not 121Mobilr, is the "sender" of any electronic Promotion sent on its behalf. Advertiser agrees that as the provider of the Content of any Promotion, that all  Promotions shall be in compliance with any applicable federal, state, and local laws and regulations, including those relating to advertising, sales or promotional practices, redemptions, refunds and provision of its products or services, laws that govern false, unfair and deceptive practices, coupons, alcohol or tobacco, health or safety, laws that govern lotteries, sweepstakes, contests and promotions, and laws that govern the collection of donations and charitable giving. Advertiser agrees to utilize the Services only for lawful purposes, and to refrain from creating Promotions that are not appropriate for children under 18 years of age.

 

We reserve the right to monitor some, all, or no areas of the Promotions for adherence to proper use of the Services or for any other purpose. You acknowledge that we are acting as a passive channel for the distribution of the Promotions and we are not undertaking any obligation or liability relating to any Promotions created from Content. Although we reserve the right to remove, without notice, any Content for any reason, we have no obligation to review the Content prior to the Promotion’s distribution or to delete any Content (or any part of it) that may be found objectionable, offensive or incompliant with these Terms. We are not responsible for maintaining a copy of any material we remove, and we are not liable for any loss you incur in the event that Content is been removed.

 

121Mobile is not responsible for the content of messages with the Promotions sent through the Services, and does not verify, validate, endorse offers, or guarantee that an offer sent by Advertiser will be honored. Advertiser shall be solely responsible to update us if a Promotion should expire or otherwise expected not to be honored. Advertiser shall hold 121Mobile harmless against any claims with respect to the validity of a Promotion.

 

If you find any content published through the Services questionable, please email us immediately at support@my121mobile.com or call  (609) 759-1423

 

5.      END-USER CONSENT AND PRIVACY

 

121Mobile Services allow Advertiser to provide End-Users with Promotions through text messages. In order to receive a Promotion, an End-User may opt to subscribe to the regular or periodic text messages sent through the Services, by sending a text message in the form of that merchant's opt-in code or keyword from the End-User's mobile phone or mobile device to us and assenting in writing or by replying yes via text which shall express its expressed consent. Promotions shall be sent only to mobile numbers from End-Users that have opted into the text Promotions, from a designated number that the text messages are provided from. End-Users' mobile numbers cannot be used for any other use then receiving Promotions from such number. As part of our Services, Promotions shall not be delivered to End-Users that didn't provide their express consent.

 

Furthermore, Promotions must comply with the rules and regulations published by the MMA and other accepted industry guidelines for opting into a text marketing program and must be in compliance with all applicable laws and regulations including the Telephone Consumer Protection Act and others. Therefore, Promotions shall not be sent to mobile number of End-Users that wish to stop receiving any Promotions from a designated Advertiser or opt out to such Promotions. End-User may remove their number through the Service at any time by reply STOP to the Promotion text. Advertiser acknowledges and agrees that, should an End-User directly contact it to request they be removed from Contact List, that Advertiser shall instruct them to text the reply STOP and remove their number through the Service, and that they will receive no further Promotions. End-User acknowledges and agrees that if it opts out from Promotion of a designated Advertiser, such End-User can still receive Promotions of other Advertisers through the Services. End-User may opt out from any additional Advertiser's Promotions at any time by reply STOP to such Promotion text.

 

Advertiser agrees to abide by all the applicable local, state and national laws and regulations regarding text marketing and is solely responsible for all acts or omissions that occur through your use of the Service, including without limitation the content of messages transmitted through the Services. Without limiting the foregoing, Advertiser promises to acquaint itself with the rules and regulations governing text messaging by reviewing the following laws and visiting the following websites

·        Telephone Consumer Protection Act (TCPA)

·        Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM)

·        Mobile Marketing Association: http://mmaglobal.com/education/bestpractice

·        Federal Trade Commission: http://www.ftc.gov

 

Advertiser promises to utilize our Services only in conformance with these standards and Advertiser agrees, to the fullest extent permissible by law, that with respect to the Telephone Consumer Protection Act of 1991, 47 U.S.C § 227, and its Regulations, 47 C.F.R. § 64.1200, (TCPA) that Advertiser, and not 121Mobile, initiates or causes to be initiated any "telephone call" that results in the delivery of a mobile message to any cellular telephone service, when such mobile phone number was used to send a message with a Promotion.

 

You acknowledge that privacy of information transmitted via a mobile network cannot be guaranteed, and you accordingly agree that we will not be liable to Advertiser, or to End-Users for any lack of privacy or security experienced when using the Services, nor responsible for any related damages.

You also acknowledge, that to the extent permitted by law, applicable mobile network operators have the right to intercept and disclose any transmissions over their facilities in order to protect their rights or property, including without limitation, to protect the efficient operation of their networks or to comply with governmental authorities.

 

Notwithstanding the foregoing, in the event that an End-User shall opt-in to Promotion through Advertiser's website, the data collected by Advertiser from End-Users must be made subject to standard privacy policies. At a minimum, Advertiser privacy policy will disclose: (i) what personally identifiable information is collected and how it will be used; (ii) the identity of the party collecting the personally identifiable information; (iii) whether the personally identifiable information is shared with third parties; (iv) the use of any tracking technology; and (v) what security measures are in place to protect the personally identifiable information. 121Mobile shall collect data only in accordance with our Privacy Policy.

 

In light of the foregoing, you explicitly agree that 121Mobile shall not be responsible if a Promotion sent to an End-User shall (1) create or transmit bulk content or Promotions which would be characterized as “Spam” or “Junk Mail”  or other forms of unwanted solicitation; (2) be used to transmit or disseminate "unsolicited bulk email,"  or other advertising material or communications to persons or entities that have not specifically agreed (i.e. via an accepted ‘opt-in’ method) to receive messages;  (3) include the collection or storage of personal data about End-Users in connection with the prohibited conduct and activities set forth hereinabove or by law; (4) introduce malicious programs into any network or submit or utilize any (i) viruses, worms, Trojan horses, or other code that might disrupt, disable, harm, erase memory, or otherwise impede the operation, features, or functionality of any software, firmware, hardware, wireless device, computer system or network, (ii) traps, time bombs, or other code that would disable any software based on the elapsing of a period of time, advancement to a particular date or other numeral, (iii) code that would permit any third-party to interfere with or surreptitiously access End-User personal information, and (iv) content to cause disablement or impairment.

 

Any disputes between Advertiser and End-Users shall be solely resolved between them, and 121Mobile will not be a party to any such conflicts.

 

 

SPECIFIC TERMS WITH RESPECT TO CONTACTS LISTS

Mobile phone numbers of End-Users to which Promotions are distributed to may be used only to receive Promotions from a designated number as a result of our Services ("Contact Lists"). Per Advertiser request, we shall provide Advertiser with the Contact List relevant to its Promotions. Contact List allowed to be used only in connection with the Services.

 

Without derogating from any other provision herein contained, the terms of this Section shall specifically apply to such Contact Lists. Advertiser expressly represents, warrants and acknowledges that (1) Advertiser will not use the Contact Lists for sending any promotions not through the Services without the End-Users consent; (2) Advertiser will not use a Contacts List in any way which violates, or may violate, privacy under applicable law; (3) Contacts Lists will include only individuals or entities who provided their consent to receive Promotions, in accordance with all applicable laws; (4) Promotions are distributed to Contact Lists as a technological solution only and 121Mobile has no obligation to monitor and/or check the content of the Contact Lists Advertiser hereby irrevocably authorizes 121Mobile to remove and/or block Promotions sending to any contact in your Contact List, at any time the company finds appropriate, without giving any notification to the Advertiser.

 

6.      ADDITIONAL CHARGES  AND REQUIRED WORDING

 

 Advertiser acknowledges that the Promotions transmitted via the Services may include additional wording. Such wording includes, but is not limited to:

-         STOP instructions in BOLD lettering,

-         HELP instructions in BOLD lettering,

-         Program sponsor information, if applicable

-         Name or brand associated with the campaign

-         For standard rate programs: “Msg&Data Rates May Apply”.

-         "Powered by 121Mobile" attribute 

 

Furthermore, Advertiser acknowledges that at the time of request, the End-User requesting the End-User Messages will be notified (“Notice Requirement”) (i) that the End-User has the right to opt-out from receiving future End-User Messages from the Service, and (ii) how End-User can provide such notice to the Service. 121Mobile will honor any opt-outs made via SMS (e.g. an MO with STOP) immediately. In the event that alternative opt-out requests cannot be actioned immediately, the End-User will be opted out within a maximum of 1 day from receipt (and we will inform End-User of the amount of time that it may take to honor any such requests). We will also provide End-Users with the ability to opt-out of receiving further messages, including the ability to opt-out of receiving marketing communications through the Services. Additional requirements may be added in the future as per applicable laws.

 

 

7.      RIGHTS TO USE THE PROMOTIONS AND RELATED DATA

 

By providing Content and launching Promotions, Advertiser grants us a royalty-free, perpetual, irrevocable, non-exclusive right (including any moral rights) and license (as well as consent) to use, reproduce, publish, translate, distribute, communicate to the public, and display any Promotions or related Content worldwide. Advertiser also permits any End-User to access, display, view, and store any Promotion that was sent to him via the Service for commercial use. Except as provided in our Privacy Policy, the Promotions themselves shall not be subject to any obligation of confidentiality on our part, and we shall not be liable for any use or disclosure of any Promotions.

 

8.      UNSOLICITED IDEAS

 

While we welcome any feedback or comments from you, please note that any unsolicited ideas, feedback or suggestions pertaining to our business, such as ideas for new or improved products or technologies, website or tool enhancements, processes, materials, marketing plans or new product names, will automatically upon submission become the property of 121Mobile, without any compensation to you. While under no obligation to review such submissions or to keep such submissions confidential, 121Mobile may use or redistribute any such submission and its contents for any purpose and in any way it deems. To provide such feedback, please email us at support@my121mobile.com or call us at (609) 759-1423

 

9.      THIRD PARTY LINKS AND INFORMATON PROVIDED

 

The Services and Site may contain information in the form of, but not limited to, articles, advertisements, endorsements, third-party opinions and links to third party websites that – all which are not owned or controlled by 121Mobile. 121Mobile does not endorse any such third-party information and such information is solely provided as a convenience to our users and visitors. As such, 121Mobile also assumes no responsibility for the content, privacy policies, or practices of any third party. By accessing our Site and using the Services, you expressly relieve 121Mobile from any and all liability arising from your use of any third-party website or information.

 

10.   DENY OR LIMIT ACCESS, REMOVE CONTENT

 

121Mobile reserves the right to remove any Content, which is abusive, illegal, disruptive, or that otherwise fails to conform to our standards, and to limit or revoke your access in full or in part to the Services, in its sole discretion, at any time, and for any reason, including, but not limited to technical difficulties or violation of these Terms.

 

11.   NO WARRANTY 

 

YOU ACKNOWLEDGE, THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT THE SERVICES PROVIDED TO YOU UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" BASIS. USE OF THE SERVICES IS DONE SOLELY AT YOUR OWN RISK. 121MOBILE DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICES, THEIR CONTENT AND OTHER MATERIALS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER 121MOBILE NOR ANY OF 121MOBILE’S LICENSORS MAKES ANY WARRANTY THAT THE CONTENT IN THE 121MOBILE SYSTEM SATISFIES ANY FDA OR GOVERNMENT REGULATIONS.

 

WE DO NOT WARRANT THAT ANY CONTENT OR THE SERVICES PROVIDED WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT OUR SYSTEM WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

12.   LIABILITIES AND INDEMNITIES

 

Advertiser shall indemnify and save harmless 121Mobile and its directors, officers, employees, representatives and agents ("Related Parties") against all demands, claims, actions, liabilities, losses, costs, damages or expenses whatsoever (including reasonable attorneys' fees) ("Damages") asserted against, imposed upon or incurred by 121Mobile and/or any of its Related Parties resulting from or arising out of any violation of these Terms by Advertiser or arising and related to any End-User claim as a result from Content provided by Advertiser .

 

THE CUMULATIVE LIABILITY OF 121MOBILE FOR ALL CLAIMS RELATING TO THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, INTELLECTUAL PROPERTY INFRINGEMENT, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID TO 121MOBILE FOR THE SERVICES IN CONNECTION WITH THE RELEVANT PROMOTION.

 

121MOBILE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR SIMILAR DAMAGES, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE MATERIALS CONTAINED ON THIS SITE WHETHER THE MATERIAL IS PROVIDED OR OTHERWISE SUPPLIED BY 121MOBILE OR ANY THIRD PARTY.  

 

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF USE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

 

 

13.   PRIVACY

 

To learn more about what information is collected during 121Mobile's performance of the Services and how we protect it, please refer to the 121Mobile Privacy Policy.  

 

14.   MISCELLANEOUS

 

(a) These Terms constitute the entire agreement between all the parties concerning the subject matter hereof, replacing any prior agreements; (b) You affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms; (c) Failure to enforce any provision will not constitute a waiver of that provision. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose. (d) These Terms shall be governed by the laws of the State of New Jersey, without giving effect to any principles of conflicts of laws thereof, and the eligible courts of New Jersey, shall have exclusive jurisdiction over all disputes between the parties. Nothing in this agreement limits a party's ability to seek equitable relief.

 

Version: October 2018

 

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