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
