GET★PERKED Advertiser Terms of Use

You (referred to herein as “Licensee”) have registered an online account with Mobilozophy, LLC (“Mobilozophy”, “we”, or “us”) to deliver your loyalty plans, rewards, discounts, and/or promotions to individuals through Mobilozophy’s Services (defined below).  To agree to these Terms of Use, click “I ACCEPT”.  If you do not agree to these terms, or if you do not have the authority to enter into these Terms of Use, do not click “I ACCEPT”, and do not use the Services.

 

1.     Terms of Use.  Mobilozophy’s agreement to transact business with Licensee is subject to Licensee’s agreement to all of the terms herein without modification.  Mobilozophy reserves the right to change these Terms of Use at any time, effective immediately upon posting on its website.  If Licensee violates these Terms of Use, Mobilozophy may immediately terminate Licensee’s use of the Services, and/or take appropriate legal action against Licensee.

2.     Definitions.

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.     Promotions.

3.1.   Mobilozophy will make Promotions available to Subscribers through the Services.

3.2.   If Licensee fails to comply with the Terms of Use, Mobilozophy, in addition to all other remedies available to it at law and equity, may: (a) suspend performance of its obligations under these Terms of Use, until Licensee’s breach has been cured; or (b) terminate these Terms of Use without further liability, obligation or penalty.

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.

5.1.   Subject to the terms and conditions of these Terms of Use, Mobilozophy hereby grants to Licensee a limited, non-exclusive, non-sublicenseable, non-transferable, revocable license within the United States during the term of these Terms of Use solely to access and use the Services to (i) manage and maintain Licensee’s account; (ii) implement Licensee’s Promotions in accordance with these Terms of Use; and (iii) send and receive notifications, reports, and other information to and from Mobilozophy;

5.2.   Subject to the terms and conditions of these Terms of Use, Licensee hereby grants to Mobilozophy a non-exclusive, non-sublicenseable, non-transferable, royalty-free license during the term of these Terms of Use to (i) serve Licensee’s Promotions, including Licensee Content, to Subscribers via the Services; and (ii) use Licensee’s trade name, trademark, service mark and logos in connection with Licensee’s Promotions and in presentations, marketing materials, financial reports, and general listings of customers.

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.

6.5.   Mobilozophy may provide Licensee with certain Subscriber Data pertaining solely to Subscriber interactions with Licensee’s Promotions.  Licensee warrants that it shall at all times comply with Mobilozophy’s privacy policy and all applicable laws, rules and regulations with respect to all Subscriber Data and any use thereof.

6.6.   Licensee shall not use any Promotion, or any part thereof, in any communication, including electronic and text messages, unless (a) Licensee obtains express prior consent from the intended recipients to receive such communications; and (b) Licensee complies with its privacy policy and all applicable laws, statutes, and regulations, including but not limited to CAN SPAM and the Telephone Consumer Protection Act. In no event shall any such communication identify Mobilozophy or any Licensee as a sender or sponsor of such communication.

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.

9.1.   Term.  The term of these Terms of Use shall commence on the date Licensee accepts these Terms of Use and continue for the term elected by Licensee at the time registration.  Thereafter, the term will automatically renew for subsequent renewal periods equal in time to the original service period elected at the time of registration.  Either party may forego automatic renewal of these Terms of Use by giving the other party at least fifteen (15) days written notice of termination prior to the expiration of the then-current term.  If Mobilozophy does not receive written notice of Licensee’s intent to not renew these Terms of Use, Licensee understands and agrees that it shall remain liable for the payment of all fees for the renewal term. 

9.2.   Termination.  These Terms of Use may be terminated: (i) immediately where the other party breaches any term or provision of these Terms of Use and fails to cure such breach within thirty (30) days after written notice of such beach; provided that any payment default shall be cured by Licensee within ten (10) days after written notice of such default, or (ii) immediately if either party enters into insolvency, bankruptcy, reorganization, dissolution, or liquidation proceedings or makes any assignment in bankruptcy.  Reactivation of the Services may result in a reactivation charge payable by Licensee.  Immediately upon any termination or expiration of these Terms of Use (a) Licensee shall pay to Mobilozophy any and all outstanding fees, charges, payments and expenses due pursuant to these Terms of Use, and (b) Mobilozophy may cease performance of all of Mobilozophy’s obligations hereunder without liability.

9.3.   Effect of Cessation of Service or Termination.  Immediately upon any termination, cancellation or expiration of these Terms of Use for any reason, (i) all rights and licenses granted to Licensee under these Terms of Use shall cease and terminate and Licensee shall have no right thereafter, directly or indirectly, to use the Services for any purpose, and (ii) Mobilozophy may cease performance of all of Mobilozophy's obligations hereunder without liability, including but not limited to the delivery of Licensee’s Promotions to Subscribers.

9.4.   Survival.  The provisions of Sections 8, 9, 10, 11, 13, 14 and 15 shall survive the termination, cancellation or expiration of these Terms of Use for any reason.

10.   Ownership.

10.1. Mobilozophy Ownership.  Licensee hereby acknowledges and agrees that, as between Licensee and Mobilozophy, Mobilozophy and its licensors own all right, title and interest in and to the Services, Subscriber Data and all applicable intellectual property rights thereto. These Terms of Use confer no ownership interest in the Services or Subscriber Data to Licensee.

10.2. Licensee OwnershipMobilozophy 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. 

11.1. Each party may be receiving information related to the other party's business operations or which is designated as proprietary or confidential by the other party (“Confidential Information”).  The party receiving any such Confidential Information (the “Receiving Party”) shall hold such Confidential Information in strictest confidence, for the exclusive use of the Receiving Party, and the Receiving Party will not take any action in derogation of such confidentiality.  The Receiving Party shall take all reasonable steps to insure that the Confidential Information is not used by or made available or furnished or disclosed to any other party (other than the Receiving Party's employees directly concerned with the performance of these Terms of Use and who need such disclosure for the conduct of their ordinary responsibili­ties), including, but not limited to, taking all steps it takes to protect information, data or other tangible and intangible property of its own that it regards as proprietary or confidential.  Information shall not be deemed “Confidential Information” which (i) is or has become publicly known or is used in the industry in question as of the date of receipt by the Receiving Party other than through disclosure by the Receiving Party; (ii) is already in the possession of, or actually and demonstrably is known to, the Receiving Party at the time of disclosure; (iii) is rightfully received by the Receiving Party from a third party without breach of any duty of nondisclosure; or (iv) is approved for public release by written authorization from the party disclosing any 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.

12.   IndemnificationLicensee, at its own expense, will defend Mobilozophy, its affiliates, officers, members, shareholders, agents, insurers, attorneys, successors and assigns (collectively, the “Indemnified Parties”) against all claims, suits, actions or proceedings initiated by third parties based on or relating to: (i) any breach by Licensee of any of its representations and warranties in these Terms of Use; (ii) an allegation that all or any part of the Licensee Content violates any third party intellectual property rights, (iii) an allegation that all or any part of a Licensee Promotion violates any local, state or federal law, rule, or regulation, or (iv) an allegation that Licensee failed to satisfy any of its obligations pursuant to any Licensee Promotion (“Claims”).  Licensee will indemnify and hold the Indemnified Parties harmless from and against any costs, damages and fees reasonably incurred, including, without limitation, the fees of attorneys and other professionals that are attributable to Claims. Mobilozophy will notify Licensee of Claims under this section, and will permit Licensee to assume the defense of Claims.  Mobilozophy, however, will have the right to employ separate counsel and participate in the defense of Claims.  Licensee will not be responsible for any settlement of Claims made by Mobilozophy without Licensee’s written consent; provided, that such written consent will not be unreasonably delayed or denied.  Licensee, on the other hand, may not settle Claims on Mobilozophy’s behalf without first obtaining Mobilozophy’s written consent.  In the event the parties agree to settle Claims, Licensee agrees not to publicize the settlement without first obtaining Mobilozophy’s written permission.

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.

14.   Limitation of Liability.        IT IS UNDERSTOOD AND AGREED THAT MOBILOZOPHY'S TOTAL LIABILITY, IF ANY, UNDER THESE TERMS OF USE FOR ANY DAMAGES SUFFERED BY LICENSEE, ANY PARTY CLAIMING ON BEHALF OF OR THROUGH LICENSEE, OR ANY OTHER THIRD PARTY, WHETHER IN CON­TRACT, IN TORT, UNDER ANY WARRANTY THEORY, IN NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED TO DIRECT MONEY DAMAGES ACTUALLY INCURRED AND SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO MOBILOZOPHY BY LICENSEE FOR THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCUR­RENCE GIVING RISE TO ANY SUCH CLAIM. LICENSEE UNDER­STANDS THAT UNDER NO CIRCUM­STANCES SHALL MOBILOZOPHY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLA­RY, PUNITIVE OR CONSE­QUENTIAL DAMAGES SUFFERED BY LICENSEE, ANY PARTY CLAIMING ON BEHALF OF OR THROUGH LICENSEE, OR ANY OTHER THIRD PARTY RESULTING FROM OR ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR THE PERFOR­MANCE OR BREACH THEREOF, INCLUDING LOSS OF BUSINESS OR PROFITS, OR BUSINESS INTERRUPTION EVEN IF MOBILOZOPHY HAS BEEN PREVIOUS­LY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NO ACTION, REGARD­LESS OF FORM OR BASIS, ARISING OUT OF THE TRANSACTIONS UNDER THESE TERMS OF USE MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER LICENSEE KNEW OR SHOULD HAVE KNOWN OF THE OCCURRENCE OF THE EVENT(S) WHICH GAVE RISE TO SUCH ACTION.

15.   Miscellaneous.

15.1. Force Majeure.  Neither party is responsible for any failure to perform its obligations under these Terms of Use (other than obligations to pay money) if such failure is caused by acts of God, strikes, revolutions, lack or failure of electrical or telecommunications facilities, including, without limitation, failure of the public Internet, laws or governmental regulations or other causes that are beyond the reasonable control of such party; provided, however, that the party suffering the delay provides written notification to the other party within 30 days of the Force Majeure event.

15.2. Relationship of the Parties.  Nothing in these Terms of Use shall be construed as creating any agency, partnership, joint venture other form of enterprise, employment or fiduciary relationship between Licensee and Mobilozophy, and neither Licensee or Mobilozophy shall have the authority to contract for or bind the other in any manner. 

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.

15.4. Governing Law and Venue.  These Terms of Use shall be governed by, and construed and enforced in accordance with the laws of the State of Florida without regard to the choice of law provisions in that State.  Licensee agrees to submit to the jurisdiction of the courts of Hillsborough County, Florida for any and all disputes, claims and actions arising from or in connection with these Terms of Use.

15.5. Severability.  If any one or more provisions of these Terms of Use shall be held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or void, the remainder of these Terms of Use shall remain in full force and effect.

15.6. Assignment.  Mobilozophy may assign these Terms of Use, in whole or in part, at any time with our without notice to Licensee.  Licensee may not assign or transfer any part of this agreement without the written consent of Mobilozophy.

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.

15.8. Entire Agreement.  With respect to the Services provided under these Terms of Use, these Terms of Use constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements and understandings of the parties.

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.