Service Agreement
All clients must agree to and abide by these Terms and Conditions:
READ THESE TERMS CAREFULLY BEFORE USING THIS SERVICE ("iVisionMobile, Inc."). BY SIGNING OUR “SERVICE AGREEMENT” YOU REPRESENT THAT YOU, HEREIN REFERRED TO AS “THE CLIENT”, ARE AUTHORIZED TO ENTER INTO BINDING AGREEMENTS EITHER INDIVIDUALLY OR ON BEHALF OF YOUR COMPANY AND ARE NOW COMPLETING SUCH A BINDING AGREEMENT. THIS AGREEMENT AND ATTACHED PRICING ADDENDUM CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND ALL OTHER ADDITIONAL OR CONTRARY DOCUMENTS, OR REPRESENTATIONS, WRITTEN OR ORAL, ARE HEREBY REJECTED AND SHALL NOT BE BINDING.
1. INTRODUCTION
1.1 Introduction
The technology for this message delivery platform is provided by iVisionMobile, Inc. and is furnished "as is" under this Agreement for the fees specified in our pricing plan. You must read this Agreement and agree to its terms before you may create an account for and use iVisionMobile, Inc..
1.2 Modification of This License Agreement
iVisionMobile, Inc. reserves the right to change this License Agreement, and any Additional Terms at anytime, effective upon making the modified provisions available on the iVisionMobile, Inc. web site (www.iVisionMobile, Inc..com). You are responsible for regularly reviewing these terms and conditions. Continued use of iVisionMobile, Inc. after any such changes shall constitute your consent to such changes, including changes in fees. iVisionMobile, Inc. will provide 10 days notice for any changes in the pricing schedule and will not assume any obligation to notify you of any changes to the Terms of Use and Notices, or Additional Terms.
2. LICENSE
2.1 License.
iVisionMobile, Inc. grants you a non-exclusive, nontransferable license to create an account for and use iVisionMobile, Inc. for your organization in accordance with the terms of this Agreement. The information provided on this web site regarding Features and Pricing, Privacy Policy, and Anti-Spam Policy is incorporated herein by reference. You specifically understand and agree that iVisionMobile, Inc. and any associated Documentation are and shall remain the sole and exclusive property of iVisionMobile, Inc., and is copyrighted and licensed, not sold.
2.2 Services Provided
iVisionMobile, Inc. shall provide some or all of the following services, depending on services availability, and the service contract purchased: Account management platform; Email messaging, including bounce reports, subscriber reports, campaign reports, etc…; Text Messaging to National carriers, including 2-way Standard and Premium campaigns (e.g., for contests or polls) and results reports; Multimedia Messaging to mobile phones on enabled carriers, including sending ring-tones, wallpapers, images, audio, and video. iVisionMobile, Inc. guarantees 24 hour access to your database, and 99% uptime of its services and the client's access thereto, subject to the Terms and Conditions set forth herein. If your Service in any given month is interrupted for more than 1% of total uptime as a result of any failure on the part of iVisionMobile, Inc., iVisionMobile, Inc. shall give you a credit for the reasonable value of that downtime. iVisionMobile, Inc. is accountable for providing the foregoing services, but provides said services “as is” and is only responsible for ensuring that the client's messages leave the iVisionMobile, Inc. network. iVisionMobile, Inc. is not and cannot be responsible for the ultimate delivery of the client's messages, and makes no such warranty or guarantee.
2.3 Copyright
iVisionMobile, Inc. and the Documentation, which includes the Privacy Policy provided with iVisionMobile, Inc., contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions. All rights not granted to you herein are expressly reserved by iVisionMobile, Inc.. You may not remove any proprietary notice of iVisionMobile, Inc. from any copy of the web site or the documentation. You are not authorized to use iVisionMobile, Inc. trade secrets such as source code from the object code or methods of message delivery, the iVisionMobile, Inc. company name, logos or any related product, service names, design marks and slogans.
2.4 Confidentiality
You acknowledge that iVisionMobile, Inc. contains valuable trade secrets that are proprietary to iVisionMobile, Inc. and you agree to maintain the confidentiality of any proprietary information that you may obtain. iVisionMobile, Inc. shall maintain as confidential Client's Email, phone, mobile phone, fax, physical mailing addresses, instant message handles and ,pager list(s) to be used exclusively by Client for the benefit or Client. iVisionMobile, Inc. will not compile, buy, sell, rent, rent, or trade Client's Email, phone, fax, physical mailing addresses, instant message handles or pager list(s), or send unauthorized emails, instant messages, wireless text messages (SMS), direct mail, voice messages or faxes to client's list. iVisionMobile, Inc. will not use your customer list or any other customer information for any other purposes than those intended with the service without your express written consent. Your customer information will not be shared with any other parties unless required by law.
2.5 Restrictions
iVisionMobile, Inc. maintains 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 iVisionMobile, Inc. has full discretion to block the uploading of any email 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.
You may not: 1) use or copy iVisionMobile, Inc., or the Documentation except as provided in this Agreement; 2) modify or merge iVisionMobile, Inc. or the Documentation; 3) publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on iVisionMobile, Inc., the Documentation or any part thereof, or otherwise make available, the Documentation, in whole or in part, to any other person or entity; 4) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on iVisionMobile, Inc. or the Documentation; 5) reverse engineer, decompile, translate, adapt, or dissemble iVisionMobile, Inc., nor shall you attempt to create the source code from the object code for iVisionMobile, Inc.; or 6) sublicense or assign the license for iVisionMobile, Inc. or the Documentation; and 7) copy this terms and conditions or license agreement for your own use. You must include subscribe/unsubscribe information (as well as a physical address for the CAN SPAM act and an abuse link to our abuse system) provided by iVisionMobile, Inc. in each message you send using iVisionMobile, Inc.. You must also honor in a timely manner all unsubscribe requests sent directly to you from those who elected not to use iVisionMobile, Inc.'s automated subscribe/unsubscribe features, regardless of how harsh or unpleasant the unsubscribe request may be. You may not use iVisionMobile, Inc. to:
Although iVisionMobile, Inc. has no obligation to monitor the content provided by you or your use of the Services, it may do so and may remove any such content or prohibit any use of the Services it believes may, be or is alleged to be in violation of the foregoing.
2.6. "No Spam" and Privacy Policies
You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws, including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation. This includes all applicable best practices as set forth by the Mobile Marketing Association (0Hwww.mmaglobal.com). In the event you use the service to conduct telemarketing activities, You warrant to us that you will take all required actions necessary to comply with applicable state and federal DO NOT CALL and TELEMARKETING registration statutes and regulations, and you will not use the Service in a manner which will result in a violation of any laws or regulation respecting such Service, including but not limited to the federal Telephone Consumer protection Act, 27 U.S.C. § 227, et seq..
You may use iVisionMobile, Inc. only for "opt-in" lists, lists in which the recipient has voluntarily signed up to be on your list and has not requested to be unsubscribed. Any messages sent to users who did not request to be on your lists, whether purchased or otherwise obtained without the recipients consent, will be deemed as "Spam" and may result in termination of your account without refund and legal action, including the pursuit of damages, against you for violating our "No Spam" policy. You also agree to abide by and display a Privacy Policy or link to a Privacy Policy on your list signup page. You must either 1) use the Privacy Policy provided by iVisionMobile, Inc. or 2) use a Privacy Policy that contains the same provisions as the Privacy Policy that is provided by iVisionMobile, Inc.. Any violation of this Privacy Policy may result in termination of your account without refund and legal action against you. You agree to indemnify and hold iVisionMobile, Inc. harmless from any damages and claims arising from any violation of this policy. iVisionMobile, Inc. is compliant with the CAN-SPAM laws http://www.spamlaws.com/federal/108s877.html) and the Mobile Marketing Association best practices and enforces such practices for all of its clients. The company also works closely with the major anti-spam organizations such as Mail Abuse Prevention System (MAPS), SpamCop, Spamhaus, and Spam Prevention Early Warning System (SPEWS) to ensure that all of its clients are not in violation of spamming policies. You understand that Emails that you send through the Service may generate abuse complaints from recipients. As a matter of privacy, iVisionMobile, Inc. does not have to share with you the email addresses, instant message handle, phone numbers, pager numbers or fax numbers of those who complain about your campaigns.
2.7. Addressing Spam Complaints
You are responsible for ensuring that your campaigns do not generate a number of abuse complaints in excess of industry norms, which may result in termination of services on your behalf. iVisionMobile, Inc., in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. In the event that your use of the Services results in your being listed on SpamCop or any other anti-spam organization, iVisionMobile, Inc. reserves the right to require that you utilize a “double opt in” service which will require newly added users to verify their assent to receiving your communications after they have been added to your database(s).
If a customer gets blocked, iVisionMobile, Inc. may charge $10 per incident for the service, unless the block was the fault of iVisionMobile, Inc.. If your account is flagged as being a potential spammer, iVisionMobile, Inc. will generally take the following steps:
2.8 Enforcement
You acknowledge that upon your breach of Sections 2.3, 2.4, 2.5, or 2.6 iVisionMobile, Inc. shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief and you further agree to waive any right or claim to which you may be entitled to immunity or exemption from liability. iVisionMobile, Inc. may also seek damages as a result of such breach.
2.9 Term and Termination
You understand that your Agreement is effective from the date you create an account with iVisionMobile, Inc. and shall continue until the contract is complete or the account is terminated either by you or by iVisionMobile, Inc.. iVisionMobile, Inc. WILL CHARGE A $1,000 EARLY TERMINATION FEE FOR ANY CONTRACTS TERMINATED PRIOR TO THE CONTRACT END DATE. iVisionMobile, Inc. MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OF THIS LICENSE. YOU WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED. iVisionMobile, Inc. may terminate this Agreement immediately if: i) you fail to comply with the terms of this Agreement, ii) your account is dormant for a period of 60 consecutive days, iii) the iVisionMobile, Inc. service is discontinued, or iv) you have an overdue balance for any non-free services or products purchased on or through www.iVisionMobile, Inc..com. If we do so, you must immediately stop using iVisionMobile, Inc. and associated Documentation, including sample documents provided within iVisionMobile, Inc., and all copies you made of them.
2.10 Non-Payment
Any fees not paid in full within 30 days of the date of invoice will incur a $50 late fee. Any fees not paid in full within 60 days of the date of an invoice will incur a $100 late fee in addition to termination of the account. Said late fees shall continue to accrue until past due amount is paid in full. All past due fees shall also accrue interest at 10% or the maximum rate allowed by law, whichever is higher. The prevailing party in any dispute shall be entitled to recover its reasonable attorney, professional, and collection fees and costs. Checks returned for insufficient funds or any charge backs initiated will incur a fee of $25 per incident. Charges over 30 days old cannot be disputed nor contested.
2.11. Risks
iVisionMobile, Inc. and it's Mobile Messaging platform may have errors and may produce unexpected results. You agree that any use of iVisionMobile, Inc. will be entirely at your own risk. You agree to backup data and take other appropriate measures to protect programs and data. You may not allow a third party to use your iVisionMobile, Inc. account and agree to indemnify and hold iVisionMobile, Inc. harmless from any damages or claims arising from such use by any third party. You specifically understand that you assume all risk of your messages actually reaching their destination, and that iVisionMobile, Inc. does not and cannot guarantee ultimate delivery of your messages. With respect to carrier message delivery.
3. DISCLAIMER OF WARRANTIES AND REMEDIES
3.1 Disclaimer of Warranty
iVisionMobile, Inc. IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY LAW, iVisionMobile, Inc. DISCLAIMSALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIEDWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. iVisionMobile, Inc. DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN iVisionMobile, Inc. WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT iVisionMobile, Inc. WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN iVisionMobile, Inc. WILL BE CORRECTED, OR THAT iVisionMobile, Inc. IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. YOU SPECIFICALLY UNDERSTAND THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF iVisionMobile, Inc., THAT EMAILS and TEXT MESSAGES MAY NOT REACH THEIR INTENDED RECIPIENTS, AND UNDERSTAND THAT iVisionMobile, Inc. CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF YOUR BLASTS.
If you receive a claim that the use of iVisionMobile, Inc. infringes a patent, copyright or other intellectual property right, you must promptly notify iVisionMobile, Inc. in writing. iVisionMobile, Inc., at its own expense and option, may (i) defend and settle such claim, (ii) procure you the right to use iVisionMobile, Inc., (iii) modify or replace iVisionMobile, Inc. to avoid infringement; or (iv) refund the license fees you paid, if applicable. These are your sole and exclusive remedies for any and all claims you may have against iVisionMobile, Inc. arising out of or in connection with iVisionMobile, Inc., whether made or suffered by you or another person and whether based in contract or tort.
3.2 Limitations of Liability
TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL iVisionMobile, Inc. BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT,
SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE iVisionMobile, Inc., OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF iVisionMobile, Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT iVisionMobile, Inc. IS FOUND LIABLE FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF CONSTANT CONTACT TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES.
3.3 Indemnification
Reciprocal?? You, at your own expense, will indemnify, defend and hold harmless iVisionMobile, Inc., its Affiliates and their employees, representatives, agents and affiliates, against any claim, suit, action, or other proceeding brought against iVisionMobile, Inc. or an Affiliate based on or arising from your use of iVisionMobile, Inc., including but not limited to a claim that any content or material you or your organization distributed using iVisionMobile, Inc. or any use of iVisionMobile, Inc. by you or your organization that violates any of the Restrictions or Terms, such as violation of the Privacy Policy or using iVisionMobile, Inc. to send Spam, as set forth in this Agreement infringes in any manner any Intellectual Property Right of any third party or contains any material or information that is obscene, defamatory, libelous, slanderous, that violates any person's right of publicity, privacy or personality, or has otherwise resulted in any tort, injury, damage or harm to any person; provided, however, that in any such case: (i) iVisionMobile, Inc. provides you with prompt notice of any such claim as soon as it is discovered ; (ii) iVisionMobile, Inc. permits you to assume and control the defense of such action, with counsel chosen by you who shall be reasonably acceptable to iVisionMobile, Inc.; and (iii) you do not enter into any settlement or compromise of any such claim without iVisionMobile, Inc.' prior written consent, which consent shall not be unreasonably withheld. You agree to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by iVisionMobile, Inc. or an Affiliate in connection with or arising from any such claim, suit, action or proceeding. It is understood and agreed that iVisionMobile, Inc. does not intend and will not be required to edit or review for accuracy or appropriateness any content or material that you or organization distribute using iVisionMobile, Inc..
3.4 Damages
You understand that the sending of unsolicited messages may result in fines, penalties, and the blocking of servers by spam filters and other spam preventing measures, and you shall reimburse iVisionMobile, Inc. for any fines or penalties assessed against, and shall be liable for damages caused to any iVisionMobile, Inc. server which is blocked as a result of your use of the Services covered herein. In addition to penalties which iVisionMobile, Inc. may impose if your campaign results in a server being blocked, iVisionMobile, Inc. shall have the right to charge your account for any time spent by its agents or employees addressing issues arising out of the unlawful use (or use in any manner inconsistent with the terms of this Agreement) of the Services, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
4. MISCELLANEOUS
4.1 Miscellaneous
This license and the rights granted under this Agreement may not be transferred or assigned by you or your company without the express written consent of iVisionMobile, Inc.. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, without regard to its principles of conflict of laws. The parties consent to the jurisdiction of the courts of the State of California and the federal courts located within the State of California, and any disputes shall be litigated solely in those courts. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees. If any clause, sentence or other provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining clause, sentence, or other provisions shall remain in full force and effect. Neither of the parties shall be liable for failures due to causes beyond their control, including, but not limited to, acts of God, acts of government, fire, flood, strikes, or acts or omissions of carriers. You warrant that you will comply with all applicable laws and regulations that relate to the performance of this Agreement. ARBITRATION
4.2 No Agency
No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind iVisionMobile, Inc. in any respect whatsoever.
THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF iVisionMobile, Inc. OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA . YOU SHALL NOT EXPORT iVisionMobile, Inc., THE DOCUMENTATION, OR INFORMATION ABOUT iVisionMobile, Inc., AND THE DOCUMENTATION WITHOUT CONSENT OF iVisionMobile, Inc. AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. This Agreement constitutes the entire Agreement, supersedes all prior agreements, and changes are only effective when in writing and signed by both parties.
4.3 Records
You will ensure that anyone in your organization or affiliated entities who uses iVisionMobile, Inc. (accessed either locally or remotely) does so only for your authorized use and complies with the terms of this Agreement.
4.4 Assignment of Accounts
iVisionMobile, Inc. reserves the right to assign its IP and/or client's accounts and data to another company of equal or greater capabilities and capacity to handle client's account. In the event that iVisionMobile, Inc. merges with or is acquired by another company or companies, all of its client accounts shall be automatically transferred to said new company or companies, but this contract shall remain valid and enforceable. Reword for client
5. COMPENSATION
Client agrees to pay iVisionMobile, Inc. in accordance with the attached Pricing Addendum, for all email and mobile messaging services provided, and expenses provided or incurred hereunder, and for sales, use or similar tax, if any,.
6. SERVICE AGREEMENT & ACCEPTANCE
iVisionMobile, Inc.
By: ___________________
Print: ___________________
Title: ___________________ Date: ___________________
Client: __________________
By: ___________________
Print: ___________________
Title: ___________________ Date: ___________________
This agreement was last updated on 2/14/2007.