Mobivity SMS User Agreement

Mobivity, ("the Company," "we," or "us,") provides the registered users of the website www.Mobivity.com as well as registered users of our clients’ websites (each, a "Site") with certain services ("Services"). This Mobivity User Agreement is the legal agreement ("Agreement") between you and Mobivity governing your use of these Services. Please read this Agreement carefully. Mobivity is willing to provide the Services to you only on the condition that you accept all of the terms and conditions contained in this Agreement. You accept the terms and conditions of this Agreement by registering for and using the Services. If you are unwilling to accept this Agreement, do not use the Services.

1. DESCRIPTION OF SERVICES. Subject to your compliance with the terms and conditions of this Agreement, Mobivity will provide the Services to you after you have successfully and voluntarily opted in to one or more keyword campaigns administered through Mobivity or an Mobivity client. Upon Mobivity’s acceptance of your opt-in SMS text message for participation in the Services, Mobivity will send you an SMS text message containing a response administered by Mobivity or one of our clients. The communication standards for the Services include, but are not limited to: SMS and web-based browser technology, provided that in order to use the Services, you must maintain an active account with a carrier of electronic communications through mobile devices (each, a "Carrier"), and you may not use a prepaid cellular phone contract to access the Services. Mobivity offers our clients the ability to lease keywords under the Mobivity / 95495 short code. The Company’s clients will then administer individual SMS text message campaigns based upon their own discretion. These campaigns may include, but are not limited to:
   
   Autoreply text campaigns: These campaigns will simply return a predetermined text message to the end user based upon their keyword entry to short code 95495. This may be a coupon for discounts on services or products or other information pertaining to the client’s business operations, such as the client’s business or organizational announcements – e.g. “This Thursday, Concert Venue X will be hosting a surprise performance by Band Z.” The autoreply may also include the client’s contact information, such as a phone number or email address.
   
   At no time will Mobivity or the Company’s clients charge a “premium” fee nor solicit any type of payment, such as a bank account number or credit card number, from an end user via SMS text messaging. Mobivity and Mobivity clients will only engage in “standard” text messaging campaigns which will only be subject to the standard text messaging fees charged by the end user’s wireless carriers.
2. AVAILABILITY OF SERVICES. You acknowledge and agree that the availability of SMS, the internet, and your ability to use the Services is on an "AS IS" and "AS AVAILABLE" basis. You acknowledge that delivery of SMS messages and availability of web-based browsing is not guaranteed. You acknowledge that the Services may differ depending on the Carrier with whom you maintain an account and that Carrier’s ability to support the Services. Mobivity is not responsible for the act or omission of any Carrier, any limitations imposed by such Carrier, or such Carrier’s ability or inability to support the Services. In addition, Mobivity is not responsible for any limitations of the internet. In the event your Carrier fails to deliver any communication to Mobivity or a provider of any Product in timely fashion, due to, but not limited to, mobile network failure or non-compatibility of your phone model with the Services, you acknowledge and agree that Mobivity shall not be liable for any loss or damage. In addition and without limiting the foregoing, in no event will Mobivity be liable for any error by you in using the Services, including submission of an order or other message to an incorrect allocated number or short code.
3. MODIFICATION OF SERVICES. Mobivity reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including by removing, adding, or modifying Products and/or third-party vendors from the active client list. Mobivity shall have no liability to you for any modification or discontinuation of the Services. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with the Services as so modified.
4. PAYMENT & BILLING. You agree to pay all fees charged by your Carrier in connection with your use of the Services. You acknowledge and agree that these rates depend on the applicable Carrier and your personal subscription package with that Carrier. Mobivity nor the Company’s clients will charge premium fees above and beyond your standard text messaging rates consistent with your Carrier’s SMS text messaging rate schedule.
5. LIMITATIONS ON YOUR USE OF THE SERVICES. You may not attempt, or authorize, encourage, or support others’ attempts, to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service. You agree to advise Mobivity promptly of any such unauthorized use(s) or attempt(s). You acknowledge and agree that the Services are for your personal use only. You acknowledge and agree that you may not copy, distribute, sell, resell, or exploit for any commercial purposes any portion of the Services, or any products accessible through the Services. Mobivity is not liable for any claims, actions, damages, or other liability incurred as a result of any unauthorized use of your account or the Services, and you agree to be fully liable for any such unauthorized access.
6. MODIFICATION OF AGREEMENT. Mobivity may amend, supplement, or modify this Agreement from time to time by posting the amended Agreement on the Sites, and you agree to be bound by any such amendment or modification. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following posting of any such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Agreement, inclusive of such changes.
7. PRIVACY. As part of the registration process, your cell number will be captured and stored in a database. Mobivity and the Company’s clients have an unrestricted right to collect and use any personal information you provide in connection with the Services, provided that any such use shall be in accordance with our Privacy Policy available at www.Mobivity.com, which is hereby incorporated by reference. By using these services, you are accepting the terms and conditions of our Privacy Policy. If you do not agree to have your information used in any of the ways described in the Privacy Policy, you must discontinue use of the Sites and/or the Services.
8. SUPPORTED CARRIERS. Alltel, AT&T Mobility, Boost Mobile , Cincinnati Bell , Cellular One, Cellular South, Nextel, Sprint, T-Mobile, Virgin Mobile and Verizon Wireless.
9. TERMINATION. Mobivity may suspend your ability to use the Services or may terminate this Agreement effective immediately and without notice to you if Mobivity believes you have violated or acted inconsistently with the letter or the spirit of this Agreement. YOU AGREE THAT Mobivity SHALL NOT BE LIABLE TO YOU FOR ANY TERMINATION OF THIS AGREEMENT OR OF YOUR ACCESS TO THE SERVICES. You may discontinue your participation in and access to the Services at any time by delivering notice to Mobivity at findus@Mobivity.com, or by sending a text message to the Mobivity shortcode (95495) with any of the following messages: "STOP" + keyword, "CANCEL" + keyword, "UNSUBSCRIBE" + keyword, "QUIT" + keyword, or "END" + keyword.
10. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Mobivity EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. Mobivity MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. Mobivity DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT ANY PRODUCTS YOU OBTAIN THROUGH USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND Mobivity MAKES NO WARRANTY REGARDING ANY DEALINGS WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE SERVICES. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORTS AND RESULTS TO BE OBTAINED THROUGH THE USE OF THE SITES OR THE SERVICES IS WITH YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Mobivity OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
11. LIMITATION OF LIABILITY. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL Mobivity OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR RELATED TO YOUR USE OF THE SITES OR THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 10 REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. THE AGGREGATE LIABILITY OF Mobivity TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITES OR THE SERVICES IS LIMITED TO ONE HUNDRED DOLLARS ($100). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under such applicable law.
12. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Mobivity, its agents, employees, representatives, licensors, affiliates, officers, directors, and partners, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) resulting or arising from any third-party claim in connection with (a) any information you submit or transmit through the Services, (b) your use of or access to the Services, (c) your violation of this Agreement, (d) your violation of any rights of any third party, or (e) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful or deleterious programming routines input by you into the Services.
13. INTELLECTUAL PROPERTY. The Services and the Sites contain or comprise copyrighted and/or proprietary subject matter that is owned by Mobivity and/or its licensors. All such material is protected by relevant intellectual property laws, including copyright and/or trade secret laws. Without limiting anything herein, the material may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, publicly performed, publicly displayed, or redistributed in any way without our prior written permission and the prior written permission of any applicable third-party entity. You must abide by all copyright notices, information or restrictions contained in or attached to any communication between you and Mobivity. In addition and without limiting the foregoing, all trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin ("Marks") that appear on or in connection with the Services are the property of Mobivity and/or its affiliates, partners, licensors and/or licensees. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therein remains with us or those other entities.
14. MISCELLANEOUS. This Agreement and the relationship between you and Mobivity shall be governed by the laws of the State of New Jersey, without giving effect to any choice of laws or principles that would require the application of the laws of a different country or state. Any legal action, suit, or proceeding arising out of or relating to this Agreement, or your use of the Services, must be instituted exclusively in the federal or state courts located in the state of New Jersey and in no other jurisdiction. You further consent to personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. Mobivity may provide you with notices, including those regarding changes to this Agreement, by email or by posting changes on the Sites. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The Agreement constitutes the entire, exclusive and final statement of the agreement between you and Mobivity with respect to the subject matter herein, superseding any prior agreements or negotiations between you and Mobivity with respect to the Services