• Anti-Spam Policy
  • Privacy Policy
  • Terms and Conditions 
  • MOBIT Terms of Use
  • TCPA (USA only)
  • CASL (Canada)

Mobile anti spam legislationThis MOBIT Mobile Marketing Anti-Text SPAM Policy (“Policy”) establishes rules that govern certain of the marketing activities undertaken in connection with the MOBIT Offerings (as that term is defined in the MOBIT Terms of Use (“Terms”). Please review this Policy carefully.  This Policy, and the marketing activities undertaken in connection with the MOBIT Offerings, shall be governed by all applicable MOBIT agreements including, without limitation, the Terms and MOBIT Privacy Policy (collectively, the “MOBIT Agreements”). This Policy is hereby incorporated into the MOBIT Agreements, and any and all terms and conditions contained therein shall apply to this Policy. Where there is a conflict between the terms and conditions of this Policy and those of the MOBIT Agreements, the applicable MOBIT Agreements shall govern in all respects.  Capitalized terms not defined herein shall have the meaning set forth in the Terms.  IF YOU DO NOT AGREE TO THE TERMS OF THIS POLICY IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR OTHERWISE USE THE MOBIT OFFERINGS.

The Policy / Text SPAM

MOBIT Technologies Ltd. (“MOBIT,” “we,” “our” or “us”), by and through this Policy and the other MOBIT Agreements, establishes strict procedures and requirements to avoid unsolicited, unexpected or unwanted text messages (collectively, “Text SPAM”).  Text SPAM includes text messages that are sent: (a) without obtaining the “prior express written consent” from the applicable Consumer Contacts to receive text messages, within the meaning of the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (the “TCPA”); (b) in violation of other applicable law; (c) in violation of current guidelines and/or Best Practices set forth by both the Mobile Marketing Association (“MMA”) and all participating mobile telephone carriers; and (d) to a Consumer Contact about a subject that the Consumer Contact did not request to be contacted about. 

No Third-Party Databases

Our clients are only permitted to use verified opt-in Customer Contact databases in connection with the MOBIT Offerings.  Our clients are NOT permitted to use any third-party owned lists in connection with the MOBIT Offerings, whether or not legally sufficient consent has been obtained from the Customer Contacts on the applicable third-party owned lists.

Policy Enforcement

We do not tolerate Text SPAM in any way. If we suspect a violation of this Policy, we may, at our sole discretion, immediately suspend or terminate the users Account. Our Terms require clients to agree to the terms and conditions of this Policy.  In addition, upon incorporating a list of Consumer Contacts for use in connection with the MOBIT™ Offerings, clients are required to represent that the list is owned by them, contains only opt-in Consumer Contacts and that they otherwise comply with the terms and conditions set forth herein, as well as the Terms.

Opt-Out / Remove / Stop/ Help/ Unsubscribe

MOBIT endeavors to ensure that all Consumer Contacts that receive Client Messages by and through the MOBIT Offerings can opt-out quickly, easily and permanently from unwanted text communications.  Initially, MOBIT requires that all clients agree to include clear opt-out/unsubscribe information in EVERY Client Message that is sent by and through the MOBIT offerings.  As an additional measure, all Client Messages sent using the MOBIT Offerings can be tracked and, as such, the applicable recipient can be removed, by MOBIT, from the applicable sender list.  Lastly, Consumer Contacts that receive Client Messages can utilize the other options set forth below.  

MOBIT maintains an OPT-OUT list that restricts our clients from adding a mobile number to their list of Consumer Contacts that has previously opted-out.  If you wish to remove yourself from any Consumer Contact list, please visit http://www.mobit.com/spam-complaint and select from the options provided. You also may reply to the Client Message that you received by using the following keyword (STP).

Finally, you may send a text message containing the word "STOP" to the number (72562 for USA), (458 000 500 for Australia), (88444 for United Kingdom), (72000 for Canada), (or 268 for New Zealand) from your mobile phone.

FOR CANADA: The MOBIT OPT OUT service also responds to HELP (AIDE) and STOP (ARRET) when returned by a user wanting to unsubscribe from the service. 

(Example of welcome message:  Bienvenue chez { Campaign Name } Alertes! Les messages standards et les taux des données peuvent s’appliquer { Message frequency } Répondre AIDE pour de l’aide, et ARRET pour annuler.)

For further information and guidelines for marketing in Canada with the MOBIT service and our short code, please review the following links:

https://www.twilio.com/help/faq/short-codes/what-are-the-requirements-for-canada-short-codes

Please report any Text SPAM or other abuse to us directly, and include, if possible: (a) the applicable sender ID in the text message that you received; (b) your mobile telephone number (to be removed); (c) the date and time that you received the text message; and (d) the contents of the message.  You can report Text SPAM or other abuse by e-mailing us at: spam@mobit.com.

LAST UPDATED June 4th 2016

Thank you for accessing the landing page (the “Landing Page”) linked-to from the text message(s) (“MOBIT Messages”) that was/were sent by MOBIT Technologies Ltd. (“MOBIT,” “we,” “our” or “us”) on behalf of the third party advertiser that was/were featured in the MOBIT™ Message(s) and associated Landing Page (“Third Party Advertiser”).  This MOBIT Landing Page Privacy Policy (“Privacy Policy”) outlines the privacy practices associated with the Landing Page and MOBIT Messages.  You agree to this Privacy Policy, in its entirety, when you: (a) access the Landing Page; and/or (b) register via the Landing Page to purchase products and/or services, or to receive information regarding various products and/or services (collectively, the “Third Party Products”), as provided by the featured Third Party Advertiser. If you do not agree to this Privacy Policy in its entirety, you are not authorized to use the Landing Page in any manner or form whatsoever.

REPORT ABUSE/UNWANTED TEXT MESSAGES: You received the MOBIT Message(s) that you used to reach the Landing Page on behalf of the Third Party Advertiser featured on the Landing Page.  MOBIT endeavors to ensure that all consumers that receive MOBIT Messages can opt-out quickly, easily and permanently from unwanted text message communications.  You can opt-out of receiving future text messages from the featured Third Party Advertiser by following the opt-out/unsubscribe instructions within the MOBIT Messages that you received

In addition, you can visit http://www.mobit.com/spam-complaint and select from the options provided. You also may reply to the MOBIT Message(s) that you received by using the following keyword (SPAM). Finally, you may send a text message containing the word "STOP" to the number (72000 for USA), (61 458 000 500 for Australia), (88444 for the United Kingdom), (or 268 for New Zealand) from your mobile phone.

Please report any Text SPAM or other abuse to us directly, and include, if possible: (a) the applicable sender ID in the MOBIT Message(s) that you received; (b) your mobile telephone number (to be removed); (c) the date and time that you received the MOBIT™ Messages; and (d) the contents of the MOBIT™ Message(s).  You can report Text SPAM or other abuse by e-mailing us at: spam@mobit.com.

If you would like further information regarding our MOBIT Mobile Marketing Anti-Text SPAM Policy, please click here.

Personally Identifiable Information Collected

We collect your personally identifiable information when you: (a) register to purchase, or receive information regarding, Third Party Products via the Landing Page; and/or (b) send us an inquiry or complaint.  We may also collect your personally identifiable information when you otherwise agree to the terms of this Privacy Policy, but do not complete the applicable registration process in full.  The types of personally identifiable information that we collect via the Landing Page varies depending on the information requested by the applicable Third Party Advertiser.

Use of Personally Identifiable Information

By submitting your personal information on the Landing Page, you agree that we may share such personal information with the applicable Third Party Advertiser in order to complete your request for information, quotes and/or Third Party Products that you requested via the Landing Page.  You agree that the Third Party Advertiser may use such personal information for any lawful purposes, subject to any restrictions contained herein.  Any information that you supply directly to the Third Party Advertiser shall be governed by the applicable Third Party Advertiser’s privacy policy.

We may use your personal information to contact you electronically, in writing, by telephone or otherwise to provide information about certain products and services offered by MOBIT and its marketing partners that MOBIT thinks might be of interest to you. 

We may also employ other companies and individuals to perform certain functions on our behalf. Examples include sending direct and electronic mail, removing duplicate information from user lists, analyzing data and providing marketing analysis.  The agents performing these limited functions on our behalf shall have access to our users’ personal information as needed to perform their functions for us but we do not permit them to use your personal information for other purposes.

We will also use your personal information for customer service, to provide you with information that you may request and/or to contact you when necessary in connection with transactions entered into by you via the Landing Page.  We may also use your personal information for internal business purposes, such as analyzing and managing our business. We may also combine the information we have gathered about you with information from other sources. We may use third parties to help us operate our business, the Landing Page and the MOBIT Messages or to administer activities on our behalf.

We also reserve the right to release current or past personal information in the event that we believe that the applicable individual is using, or has used, the Landing Page and/or MOBIT Messages: (a) in violation of this Privacy Policy or any other of our operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published by us from time to time; (b) to commit unlawful acts; (c) if such information is subpoenaed or requested pursuant to a judicial or regulatory proceeding or inquiry; provided, however, that, where permitted by applicable law, we shall provide you with e-mail notice, and opportunity to challenge the subpoena, prior to disclosure of any personal information pursuant to a subpoena; (d) if we are sold or acquired; and/or (e) when we deem it necessary or appropriate including, without limitation, sharing your e-mail address with other third parties for suppression purposes in compliance with the CAN-SPAM Act of 2003, as amended from time to time, and Federal Trade Commission implementing regulations.

We may sell, transfer or otherwise disclose user information, including personally identifiable information, to a successor entity in connection with a corporate merger, consolidation, the sale of substantially all assets or other corporate change with respect to MOBIT.  Except as stated in this Privacy Policy, or as otherwise stated at the time personally identifiable information is gathered, MOBIT will not provide personally identifiable information to third parties who are not under the direction and control of MOBIT.

By registering via the Landing Page, you agree that such act constitutes an inquiry and/or application for purposes of the Amended Telemarketing Sales Rule (16 CFR §310 et seq.), as amended from time to time (the “Rule”) and applicable state do-not-call regulations.  As such, notwithstanding that your telephone number may be listed on the Federal Trade Commission’s Do-Not-Call List, and/or on applicable state do-not-call lists, we retain the right to contact you via telemarketing in accordance with the Rule and applicable state do-not-call regulations.

In addition, where you provide “prior express written consent” within the meaning of the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (“TCPA”), you consent to receive text messages and telephone calls, including artificial voice and pre-recorded messages and/or calls delivered via automated technology, to the telephone number(s) that you provided, from: (i) us relating to your use of the Landing Page; and (ii) the applicable Third Party Advertiser relating to the Third Party Products, as applicable.  You understand and agree that this consent applies even if your telephone number is a wireless number.  You further acknowledge and agree that you are not required to consent to the above stated terms to gain access to the Landing Page and/or make a purchase.

Non-Personally Identifiable Information

Cookies

To enhance your experience with the Landing Page, we may use cookies. “Cookies” are alphanumeric identifiers that we transfer to your mobile device through its web browser to enable our systems to recognize your mobile device’s browser and to provide certain Landing Page-usage features.  Cookies, by themselves, do not tell us your e-mail address or other personally identifiable information unless you choose to provide this information to us by, for example, registering on the Landing Page.

We use cookies to understand Landing Page and MOBIT Message usage and to improve same.  Many mobile devices are initially set up to accept cookies, but you can reset your mobile device to refuse all cookies or to indicate when a cookie is being sent. To disable and reject certain Cookies, follow the instructions associated with your mobile device’s Internet browser.  Even in the case where an end-user rejects a cookie, he or she may still use the Landing Page; provided, however, that your ability to utilize certain features of the Landing Page may be impaired.  We reserve the right to retain cookie data indefinitely[JT1] .

Mobile Device, Landing Page Usage and Location

We may collect certain non-personally identifiable information about you and your mobile device when you access the MOBIT Messages and/or Landing Page.  This non-personally identifiable information includes, without limitation, the following information pertaining to your mobile device and your use of the MOBIT Messages and/or Landing Page: mobile device platform type; SDK version; timestamp; API key (identifier for the App); App version; mobile device identifier; iOS Identifier for Advertising; iOS Identifier for Vendors; Media Access Control (MAC) address; International Mobile Equipment Identity (IMEI); the model type, manufacture and iOS version of the mobile device; your MOBIT Messages and/or Landing Page session start/stop time and date; and the actions taken while utilizing the MOBIT Messages and/or Landing Page. 

We use the non-personally identifiable information that we collect to improve the design and content of the MOBIT Messages and/or Landing Page.  We also may use this information in the aggregate to analyze MOBIT Messages and/or Landing Page usage.

Behavioral Tracking

Neither MOBIT, nor any third parties, place cookies or other tracking technology on the Landing Page that tracks users’ activities after they leave the Landing Page.

Third Party Links

The MOBIT Messages and/or Landing Page may contain links to third-party owned and/or operated websites and, where you request products and/or services from Third Party Advertisers, MOBIT may transfer you directly to the websites of such Third Party Advertisers.  MOBIT is not responsible for the privacy practices or the content of such third-party websites including, but not limited to, the websites of our Third Party Advertisers. In some cases, you may be required to provide certain information to register or complete a transaction at such third-party website. These third-party websites have separate privacy and data collection practices and MOBIT has no responsibility or liability relating to them. We do not endorse, nor are we responsible for the accuracy of, the privacy policies and/or terms and conditions of such third-party websites. These third party entities are not affiliated with us in any way.

Third-Party Offers

MOBIT provides its users with the opportunity to receive special offers, products and/or services from third-parties including, but not limited to, Third Party Advertisers. Where you indicate the desire to receive information, quotes, offers, products or services from a third party, your personally identifiable information that was provided during that MOBIT information collection process will be shared with the applicable third party so that such third party may provide the requested material to you.  In addition, your personally identifiable information that was provided during that MOBIT information collection process will be shared with the applicable Third Party Advertiser.

Deleting and Updating Your Information

At your request, we will inform you of what personal information we have on file for you.  In addition, at your request, we will remove personal information that you have provided to us, or that we have collected.  You may do so by contacting us via e-mail at: support@mobit.com; provided, however, that we ask individuals to identify themselves and the information requested to be accessed, corrected or removed before processing such requests, and we may decline to process requests that are unreasonably repetitive or systematic, require disproportionate technical effort, jeopardize the privacy of others or would be extremely impractical (for instance, requests concerning information residing on backup tapes). 

Please be advised that deleting your personal information will only delete the personal information contained in our database.  This deletion will not change or delete personal information which may have already been shared with third parties, all as provided above in this Privacy Policy.  You will need to contact the third parties that contact you directly to change your preferences regarding their use of your personal information.

Please be further advised that, after you delete your personal information, residual copies may take a period of time before they are deleted from our active servers and may remain in our backup systems.

Opt-Out/Unsubscribe

You may at any time choose to stop receiving e-mail advertising, SMS text-based marketing (where and to the extent permitted by applicable law), telemarketing and direct mail marketing from us by following the instructions at the end of the applicable marketing message or e-mail us at: info@MOBIT.com

Notwithstanding the foregoing, we may continue to contact you for the purpose of communicating information relating to your request for information, quotes, products and/or services via the Landing Page, and to respond to any inquiry submitted to us.  To opt-out of receiving Landing Page-related and inquiry response-related messages from us, you must cease requesting material via the Landing Page and cease submitting inquiries to us, as applicable.

When you submit personally identifiable information to MOBIT, you have opted-in to request that we share your personal information with Third Party Advertisers to receive marketing communications. When contacted by any of these Third Party Advertisers, you should notify them directly of your choices regarding their use of your information.

Minors

Individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age) are not permitted to use and/or submit their personal information via the Landing Page.  We do not knowingly solicit or collect information from visitors under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age).  We encourage parents and guardians to spend time online with their children and to participate and monitor the interactive activities of their children.

Security

We endeavor to safeguard and protect our users’ personal information.  When users make personal information available to us, their personal information is protected both online and offline (to the extent that we maintain any personal information offline).  The privacy of your personal information is very important to us.  When our registration process asks users to submit sensitive information (such as credit card information), and when we transmit such sensitive information, that sensitive information is encrypted and is protected with Secure Sockets Layer (“SSL”) encryption software.

Access to your personal information is strictly limited, and we take reasonable measures to ensure that your personal information is not accessible to the public.  The servers that we store personal information on are kept in a secure physical environment.  We also have security measures in place to protect against the loss, misuse and alteration of personal information under our control.  Please be advised, however, that while we take every reasonable precaution available to protect your data, no storage facility, technology, software, security protocols or data transmission over the Internet can be guaranteed to be 100% secure.

Computer hackers that circumvent our security measures may gain access to certain portions of your personal information, and technological bugs, errors and glitches may cause inadvertent disclosures of your personal information; provided, however, that any attempt to breach the security of the network, our servers, databases or other hardware or software may constitute a crime punishable by law.  For the reasons mentioned above, we cannot warrant that your personal information will be absolutely secure.  Any transmission of data at or through the Landing Page is at your own risk.

Only employees or third-party agents who need personal information to perform a specific job are granted access to our users’ personal information.  Our employees are dedicated to ensuring the security and privacy of all user personal information.  Employees not adhering to our firm policies are subject to disciplinary action.  In compliance with applicable federal and state laws, we shall notify you and any applicable regulatory agencies in the event that we learn of an information security breach with respect to your personal information.  You will be notified via e-mail in the event of such a breach.  Please be advised that notice may be delayed in order to address the needs of law enforcement, determine the scope of network damage, and to engage in remedial measures.

Changes to Privacy Policy

We reserve the right to change or update this Privacy Policy at any time by posting a notice on the Landing Page that we are changing our Privacy Policy.  If the manner in which we use personal information changes, we will notify users by: (a) sending the modified policy to our users via email; and/or (b) by any other reasonable means acceptable under applicable state and federal law.  You will have a choice as to whether or not we use your information in this different manner and we will only use your information in this different manner where you opt-in to such use.

Contact Us

If you have any questions regarding this statement, or would like more information on our privacy practices, please e-mail us at info@mobit.com or call us at USA (866) 662 4876 during business hours.

REPORT A PRIVACY VIOLATION   

LAST UPDATED JUNE 6th, 2016

Thank you for visiting the MOBIT website located at www.mobit.com (the “Site”).  The Site is an Internet property of MOBIT Technologies Ltd. (“MOBIT,” “we,” “our” or “us”). The Site provides end-users with: (a) access to certain mobile messaging-based content (“Content”); (b) a means to apply for, and an interface to utilize, the MOBIT mobile messaging services (“Services”); (c) register to receive the MOBIT newsletter (“Newsletter”); and (d) where MOBIT permits it, interactive areas of the Site that enable end-users to interact on message boards, blogs and other similar venues (“Interactive Services,” and together with the Site, Content, Services and Newsletter, the “MOBIT Offerings”). 

The following MOBIT Terms of Use (“Terms”) are inclusive of the MOBIT Privacy Policy (“Privacy Policy”), the MOBIT SPAM Policy and any and all other applicable MOBIT operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the “Agreement”).  By using and/or accessing the MOBIT™ Offerings, you are agreeing to comply with and be bound by the Agreement in its entirety.  Please review the following terms of the Agreement carefully.  If you do not agree to the Agreement in its entirety, you are not authorized to use the MOBIT Offerings in any manner or form.

Scope/Modification of Agreement

The Agreement constitutes the entire and only agreement between you and us with respect to your use of the MOBIT Offerings, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same.  We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification.  The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the MOBIT Offerings.  By your continued use of the MOBIT Offerings, you hereby agree to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable). 

Requirements/Necessary Equipment

The MOBIT Offerings are available only to individuals who can enter into legally binding contracts under applicable law. The MOBIT Offerings are not intended for use by individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age). If you are under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age) and/or you are unable to enter into legally binding contracts under applicable law, you do not have permission to use and/or access the MOBIT Offerings.  

The MOBIT Offerings

The Services and Content may or may not be available in all countries or regions of the world, may be available under different trademarks/trade names in different countries and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.  You agree to use the MOBIT Offerings in accordance with all applicable guidelines as well as all local, state, national, federal and international laws that your use of the MOBIT Offerings are subject to.

The MOBIT Offerings include one or more of the following: (a) a web-based interface located in the designated area of the Site; (b) access to our text messaging application center; (c) access to our template designer, library and store that enable you to access and/or design Content such as landing pages and web forms; (d) SMS gateway access; (e) data encryption; (f) data transmission; (g) data access and Client Message (as defined below) tracking; (h) data storage; and (i) if applicable, synchronization software, as well as software maintenance and upgrades and customer support, that enable you to send text messages to recipients designated by you.  In addition, in connection with Offerings (“Client Messages”) through different routes; provided, however, that the level of reliability and support for special features varies according to the route.  You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access to the MOBIT Offerings, and for paying all access charges (e.g. ISP, telecommunications) incurred while using the MOBIT Offerings.

We endeavor to ensure that Client Messages are processed correctly and delivered by MOBIT to the applicable network.  MOBIT is not responsible for the final delivery of any Client Messages or other communications initiated through the Services, as final delivery is out of our control and is the responsibility of the applicable telecommunications carrier.

MOBIT transmits and receives text messages via major telecommunications companies and mobile network operators, and thus MOBITs influence over the timing of the transmission of your Client Messages and broadcasts is within the technical constraints imposed upon MOBIT.  While MOBIT uses commercially reasonable efforts to transmit your Client Messages and broadcasts to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time.  Such times depend on various network and system-related factors among the various entities involved in the transportation of your Client Messages and broadcasts across the public switched telephone network and/or Internet.  You should know that communications carriers assign text messages with a default lifetime and any Client Message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the applicable communications carrier without any notice.  MOBIT is not liable for any loss incurred by the failure of a Client Message or broadcast to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from MOBIT for any such non-deliveries.  Furthermore, you agree that all Client Message contents are deemed to have zero value.

Usage Policy

You represent and warrant that the owners of the phone numbers you provide to MOBIT, to which outbound Client Messages are transmitted by and through the Service (“Consumer Contacts”), have provided all requisite consent under applicable law to receive such messages and broadcasts from you.  You agree that you will include clear opt-out/unsubscribe information on EVERY Client Message that you send through the Services.  You further agree that any individual requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and removed from your list of approved contacts as used with the MOBIT Offerings.   You represent and warrant that you and your Client Messages will abide, fully, with the then-current guidelines and/or Best Practices set forth by both the Mobile Marketing Association (“MMA”) and all participating mobile telephone carriers, and other industry and government rules and regulations that may be in effect now or in the future with respect to mobile marketing (collectively, “Mobile Marketing Laws”).

You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur in connection with your account, including without limitation the content of the Client Messages and broadcasts transmitted by and through the MOBIT Offerings.  Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the MOBIT Offerings by visiting the following websites:    

  • Federal Trade Commission, http://www.ftc.gov
  • Federal Communications Commission, http://www.fcc.gov
  • DoNotCall Registry Info, http://www.donotcall.gov
  • The Australian Communications and Media Authority (ACMA), http://www.acma.gov.au/ 
  • Telecommunications Users Association of New Zealand, TUANZ http://tuanz.org.nz/ 

Without limiting the foregoing, any and all Consumer Contacts provided by you to MOBIT shall consist of individuals that have provided “prior express written consent” to receive text messages from you, within the meaning of the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (the “TCPA”), to the telephone number(s) provided by such individuals.  You shall retain the records of each individual’s “prior express written consent” (“Consent Records”) for a minimum of seven (7) years following creation of same, and shall provide such Consent Records to MOBIT within three (3) business days of receipt of a MOBIT request at any time.  The Consent Records shall include, at a minimum, the Consent Language, the IP address of the source of the Consumer Contact data and the date and time stamp indicating the time that the Consumer Contact data was collected.  You agree to fully indemnify and hold MOBIT harmless from and against any and all liability, claims, judgments, settlement amounts or other costs incurred by MOBIT (including attorneys’ fees and court costs) in connection with your failure, or suspected failure, to comply with the provisions set forth in this section. 

The TCPA, the Amended Telemarketing Sale Rule (“ATSR”), 16 CFR 310 et seq, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of text messages.  MOBIT is in no way attempting to interpret, or offer advice with respect to, any laws, rules, or regulations.  This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your Client Messages, broadcasts and campaigns prior to using the MOBIT Offerings.  You are ultimately responsible to make your own informed decisions regarding your Client Messages, broadcasts, and campaigns.

You shall schedule campaigns responsibly, in a manner that is courteous to the recipients and in full compliance with local, state, national, and international calling time rules and regulations.  Other than the Content made available to you by MOBIT, you are solely responsible for obtaining any rights or licenses to any data, including any images or video files, for inclusion in any outbound Client Messages, and campaigns.  If you are unfamiliar or unclear as to the legalities associated with any Client Message, broadcast or campaign, you must consult with a legal advisor or attorney prior to your use of the MOBIT Offerings.

You acknowledge and agree that the MOBIT Offerings are provided for professional use only, and you agree that your use of the MOBIT Offerings, your Client Messages, your Client Content (as defined below) and your Client Feedback (as defined below) shall not include, comprise or consist of:

  • Sending unsolicited marketing messages or broadcasts (i.e. spam);
  •  Sending any calls or Client Messages to life-line services, such as hospitals, fire, police, 911 or utility-related telephone numbers;
  • Using strings of numbers, as it is unlawful to engage two or more lines of a multi-line business;
  • Harvesting, or otherwise collecting information about others, without their consent;
  • Misleading others as to the identity of the sender of your Client Messages or broadcasts, by creating a false identity, impersonating the identity of someone/something else or by providing contact details that do not belong to you;
  • Transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;
  • Transmitting any material that may infringe upon the intellectual property rights of third parties, including trademarks, copyrights or other rights of publicity;
  • Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs;
  • Interfering with, or disrupting, networks connected to the MOBIT Offerings or violating the regulations, policies or procedures of such networks;
  • Attempting to gain unauthorized access to the MOBIT Offerings, other accounts, computer systems or networks connected to the MOBIT Offerings, through password mining or any other means;
  • Interfering with anothers use or enjoyment of the MOBIT Offerings; or
  • Engaging in any other activity that MOBIT believes could subject it to criminal liability or civil penalty/judgment. 

You agree to provide your valid and legally sufficient contact information in connection with any outbound campaign within the initial greeting Client Message.  You further agree that MOBIT is, under no circumstances, responsible for the contents and/or accuracy of your Client Messages and MOBIT will only transmit them on a good faith belief that you use the MOBIT Offerings in accordance with the Agreement.  You will provide your own files for all outbound campaigns.  MOBIT will not be liable for any misuse of the MOBIT Offerings by you.  MOBIT is not responsible for the views or opinions contained in any of your Client Messages.

Content Submission / Discussion Areas

You acknowledge and agree that any information or materials that you or individuals acting on your behalf provide to MOBIT (other than information required for your use of the MOBIT Offerings as contemplated herein), and/or include in any Client Messages (collectively, “Client Content”) will not be considered confidential or proprietary.  By providing any such Client Content to MOBIT (other than information required for your use of the MOBIT Offerings as contemplated herein), you grant to MOBIT an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of and distribute such Client Content, and you further agree that MOBIT is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to MOBIT.  In connection with such Client Content, you represent and warrant to MOBIT that you have all right, title and interest in and to such Client Content necessary to provide such Client Content to MOBIT for the purposes and uses contemplated hereunder, and that your provision of the Client Content to MOBIT, and MOBIT use of same as contemplated hereunder, shall not infringe upon any third party’s proprietary or personal rights including, but not limited to, any trademark, copyright, patent or trade secret.

MOBIT may, at its option, provide you with access to the Interactive Services, which may include one or more areas within the MOBIT Site for online discussions (e.g. message boards, wikis, chat rooms or blogs).  Should you choose to participate in such a forum, you agree NOT to utilize the forum for illegal or inappropriate purposes, and represent that any comments, messages or other feedback submitted by you (“Client Feedback”) will comply with the Agreement, including those restrictions set forth in the Usage Policy section above.  MOBIT reserves the right, but will not be obligated to, edit or delete postings to its forums, as well as Client Feedback, at any time and for any reason.  MOBIT shall also have no responsibility or liability for any Client Feedback or other material created or posted by you or other third parties within any Interactive Services forum.

Registration / Username / Password

In order to obtain access to the MOBIT Offerings, you must first submit the applicable registration form to MOBIT for review and approval.  MOBIT reserves the right, in its sole discretion, to deny access to the MOBIT Offerings to anyone at any time and for any reason, whatsoever.  Visitors may register for access to the MOBIT Offerings by and through the Site.  The registration data that you must supply in order to obtain access to the MOBIT Offerings may include, without limitation, some or all of the following, depending on the method used by you to register: (a) full name; (b) e-mail address; (c) billing address; (d) user name/password; (e) credit card information; and/or (f) any other information requested on the applicable form (collectively, “Registration Data”).  

You agree to provide true, accurate, current and complete Registration Data and to update your Registration Data as necessary in order to maintain it in an up to date and accurate fashion.  MOBIT will verify and approve all registrants in accordance with its standard verification procedures.  

As part of the registration process, you will be provided with, or must select, a username and/or password.  If the user name/password that you request is not available, you will be asked to supply another user name.  If MOBIT provides you with a username/password, you can change that user name and/or password, or the one that you selected during registration, at any time through your account (“Account”) settings.  You agree to notify MOBIT of any known or suspected unauthorized use(s) of your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username/password.  You shall be responsible for maintaining the confidentiality of your username/password and Account.  You agree to accept responsibility for all activities that occur through use of your username/password and Account, including any charges incurred there through.  Any fraudulent, abusive or otherwise illegal activity engaged in by you, or any entity or person with access to your username/password and/or Account may be grounds for termination of your Account, in MOBIT’s sole discretion, and you may be reported to appropriate law-enforcement agencies.

Intellectual Property

You are permitted to access the Service, any Content provided or made available by MOBIT (which may include text, images, hosted software, sound files, video or other content, and which may be provided via the MOBIT Offerings or otherwise), the Site and the Newsletter solely for the purpose of receiving information about MOBIT’s business and products, purchasing and utilizing the MOBIT Offerings, communicating with MOBIT or otherwise as expressly authorized by MOBIT.  MOBIT hereby grants a limited, non-exclusive, non-transferable license to you to use the MOBIT Offerings solely for the purposes contemplated hereunder.

We may have copyrights, trademarks, patents, trade secrets or other intellectual property rights covering subject matter in the MOBIT Offerings, including the mobile landing pages made available in connection therewith.  Except as expressly provided in these Terms, the availability of the MOBIT Offerings does not give you any license to those patents, trademarks, copyrights or other intellectual property.  All copyrights, trademarks, patents, trade secrets and other intellectual property rights contained in, or associated with, the MOBIT Offerings are the sole and exclusive property of MOBIT or its licensors, as applicable, each of whom reserves all rights with regard to such materials.  You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the MOBIT Offerings, including any proprietary communications protocol used by the Service, without the express written permission of MOBIT in each instance.  You may not use the MOBIT Offerings in conjunction with any other third-party content.  You may not exploit any aspect of the MOBIT Offerings for any commercial purposes not expressly permitted by MOBIT (including the bundled sale of such MOBIT Offerings).  Systematic retrieval of MOBIT Offerings-related, or user-related, content by automated means or any other form of scraping or data extraction in order to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from MOBIT is strictly prohibited. 

Data Protection & Privacy

In order to ensure your compliance with the Agreement and to ensure that MOBIT complies with national and international laws, we may, from time to time, randomly check the Client Messages and constituent Client Content that you send by and through the MOBIT Offerings; provided, however, that we undertake no responsibility to monitor or otherwise review your Client Messages and/or Client Content.  Nonetheless, we are committed to maintaining the privacy of your information, pursuant to our Privacy Policy, located at http://www.mobit.com/privacy.html.  Except as otherwise required for your use of the MOBIT Offerings as contemplated hereunder, MOBIT does not want you to, and you should not, send any confidential or proprietary information to MOBIT.

Billing Provisions

Your use of the Service is contingent on your paying for such use (whether paid in advance or through the purchase of Credits (as defined below) through the MOBIT Offerings), in the amounts and using the methods indicated on the Site and/or other area of the MOBIT Offerings. Your payment for access to the MOBIT Offerings, including access to the Service, Credits, keywords, MOBIT mobile landing page templates, usage-sensitive fees and/or plans (a portion of which also includes software maintenance and upgrades, as well as customer support) shall be deemed completed when MOBIT receives the full amount of payment owed for such portion of the MOBIT Offerings. You are responsible to pay for any Client Message you attempt to send to any Consumer Contacts, regardless of whether the message is actually received by the intended Consumer Contact recipient. 

MOBIT will charge your indicated method of payment (“Payment Method”) for the applicable portion of the MOBIT Offerings immediately upon your confirming the Payment Method and amount to be charged. The charges for will appear on your Payment Method statement, as applicable, through the identifier "DPS".  All charges are payable in United States currency.  Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions of MOBIT in effect at any given time.  Upon reasonable prior written notice to you (with e-mail sufficing), MOBIT reserves the right to change its Billing Provisions whenever necessary, in its sole discretion.  Continued use of the MOBIT Offerings after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification.  Amounts to be charged may include sales and other taxes where applicable and any other amounts indicated on the Site.  Your account will be credited within twenty-four (24) hours of MOBIT verifying receipt of your payment. If you have elected to make a payment by credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by MOBIT.

MOBIT cannot readily or accurately ascertain your location when you request to use the MOBIT Offerings.  You therefore agree that your use of the MOBIT Offerings outside the continental United States is not subject to any applicable federal or state taxes.  To the extent that you are responsible for any additional taxes or fees beyond those collected by MOBIT, you agree that you will pay them when due to any applicable taxing authority, including any interest or penalties assessed.

MOBIT shall not be responsible for any errors or transmission failures with regard to the charging and collection of funds through your indicated Payment Method, nor for any actions taken by the provider of the Payment Method you choose (which could include refusal to authorize the charge). In addition to the Agreement, any payments made by you may be subject to the agreement between you and the provider of the applicable Payment Method.

As between you and MOBIT, you are responsible for all charges related to purchases made using your Account and payment method, whether or not you authorized such purchases. Standard charges apply to any test call sent originating from your account or initiated using your API key.

In the event of accidental under-billing in favor of you, or non-payment by you for any MOBIT Offerings, MOBIT shall be entitled to immediately proceed with collection remedies and shall be entitled to recover any and all costs, fees and expenses of such collection efforts including, but not limited to, collection agencies, court costs, filing and service of process fees, attorneys’ fees incurred through use of counsel of MOBIT’s choosing and/or any other costs, fees and expenses incurred in the pursuit of collection on all customer accounts and receivables due and payable under the Agreement.

MOBIT’s authorization to provide and bill for the MOBIT Offerings is obtained by way of your electronic signature or, where applicable, via physical signature and/or voice affirmation.  Once an electronic signature is submitted, this electronic order constitutes an electronic letter of agency.  MOBIT’s reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively.  Both laws specifically preempt all state laws that recognize only paper and handwritten signatures.

Credits

For purposes of the Agreement, “Credits” are paperless vouchers that you purchase and which facilitate use of the MOBIT Offerings by you.  The chosen route, as well as the destination of a Client Message, causes the amount of Credits required to either increase or decrease but, in either case, will always be made known beforehand through the Pricing Page on the Site.  The submission of a seemingly-valid Client Message will cause an associated quantity of Credits to be debited from your Account and you can obtain the real-time status of your Account at any time through the online interface.

Expiration of Credits and Prepaid Minutes

Credits purchased as a part of a package or monthly plan, and not used within the month of purchase automatically roll-over to the next billing month.  Individual anytime, non-monthly plan Credits purchased through your Account expire after eighteen (18) months from the date of purchase (or most recent date of Account recharge), at which point such Credits shall expire automatically, unless otherwise stated at the time of purchase.  Additionally, the value of Credits may change over time as the cost of transmission changes, and thus you acknowledge that the number of Credits needed to utilize the MOBIT™ Offerings may change correspondingly. No Credit refunds will be given.  Any unused value associated with your Credits shall be forfeited upon expiration or termination of your Account.  All prices, per-minute rates, and billing increments are subject to change at any time due to fluctuations in market conditions, subject to the restrictions on modification to the Billing Provisions set forth herein.

No Refund Policy

MOBIT has a no refund policy. This applies to all subscriptions (monthly or annual) and includes any pre-paid services for training and consulting which have been delivered my MOBIT staff. These services are NOT refundable.

No Warranty / Disclaimers

MOBIT reserves the right to modify, suspend, or discontinue any of the MOBIT Offerings at any time for any reason without prior notice.  Further, while MOBIT utilizes electronic and physical security measures to reduce the risk of improper access to or manipulation of Client Content, Client Messages and other data during transmission and storage, it cannot guarantee the security or integrity of such information and shall have no liability for breaches of security or integrity or third-party interception in transit, nor for any damage which may result to your computer or other property by your use of the MOBIT Offerings.  You acknowledge that text messages (SMS and MOBIT landing page messages) are transmitted in unencrypted formats and that eavesdropping on communications by third parties is possible.  MOBIT recommends that you ensure that sensitive and valuable information is communicated by a protected and/or encrypted method.  MOBIT shall use commercially reasonable efforts to make access to the MOBIT Offerings available through the required access protocols, but makes no warranty or guarantee that: (a) the MOBIT Offerings will be available at any particular time; or (b) you will be able to access the MOBIT Offerings at any particular time or from any particular location.  MOBIT will not be liable for: (i) any act or omission of any other company or companies furnishing a portion of the MOBIT Offerings (including, without limitation, telecommunications carriers or ISPs); (ii) any act or omission of a third party, including those vendors participating in the MOBIT™ Offerings made available to you; (iii) equipment that it does not furnish; and/or (iv) damages that result from the operation of customer-provided systems, equipment, facilities or services that are interconnected with the MOBIT Offerings.  NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE MOBITOFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED.  NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THE AGREEMENT, MOBIT DOES NOT WARRANT THAT THE USE OF THE MOBIT OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING, BUT NOT LIMITED TO, ANY INTERRUPTIONS TO THE MOBIT OFFERINGS CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., “HACKING”), NOR SHALL MOBIT BE RESPONSIBLE FOR ANY CLIENT CONTENT AND/OR REGISTRATION DATA LOSS, OR THE LOSS OF ANY INFORMATION IN YOUR ACCOUNT, REGARDLESS OF THE CAUSE.  FURTHERMORE, MOBIT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MOBIT OFFERINGS OR THAT THE MOBIT OFFERINGS WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS.  MOBIT MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE MOBIT OFFERINGS INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

To the extent permissible by applicable law, you further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.  You waive and relinquish all rights and benefits which you have or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or non-statutory law of any other jurisdiction (including, without limitation, the states of Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits.

Limitation of Liability

MOBIT SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THE AGREEMENT AND/OR MOBIT OFFERINGS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IF YOUR USE OF THE MOBIT OFFERINGS RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA, MOBIT™ IS NOT RESPONSIBLE FOR THOSE COSTS.  MOBIT'S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE MOBIT OFFERINGS FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEES PAID BY YOU TO MOBIT HEREUNDER.  THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND MOBIT.  ACCESS TO THE MOBIT OFFERINGS AND/OR ANY OTHER CONTENT, PRODUCTS AND/OR SERVICES OFFERED IN CONNECTION WITH THE FOREGOING WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.  SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND, IN SUCH JURISDICTIONS, MOBIT’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Indemnification

You agree to indemnify and hold harmless MOBIT, its subsidiaries, parents and affiliates, and each of their respective officers, directors, shareholders, employees, agents, contractors,  representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by MOBIT in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (a) your breach of the Agreement; (b) your Client Content, Client Messages and/or Feedback; (c) any violation of any applicable local, state, national or international laws and/or regulations including, without limitation, the Mobile Marketing Laws and MMA guidelines; or (d) any use by you of the MOBIT Offerings, or use of the MOBIT Offerings by a third party by and through an Account or computer owned by you. You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you.  

Termination, Cancellation and/or Suspension by MOBIT™

If at any time you breach the Agreement, we may elect to suspend, terminate and/or cancel your use of the MOBIT Offerings and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination or cancellation.  We reserve the right to suspend your Account and/or access to the MOBIT Offerings at any stage for any reason we may deem necessary to continue to provide our MOBIT Offerings in a way that may be hindered by your status as being our client, your financial status or the Client Content and/or Client Messages originating from you.

Upon any such termination, cancellation and/or suspension, you are still responsible for any obligations then accrued.  Your obligation to pay all amounts accrued and owed shall continue even after any suspension or cancellation of your access to the MOBIT Offerings (in whole or in part).  Upon termination, for any reason, you agree to immediately cease using the MOBIT Offerings and MOBIT shall have no obligation to you after any termination or cancellation of your Account and/or termination of your access to the MOBIT Offerings.

Should such a termination take place when you still have Credits in your Account, you shall receive back, at our discretion, a fair monetary value for such Credits, save any expenses that may be incurred by MOBIT including, without limitation, for payment of transfer duties, legal costs, third-party costs or penalties.

The provisions regarding ownership, payments, warranties and indemnifications will survive any suspension, termination, or cancellation of your use of the MOBIT Offerings.

Termination/Cancellation by the User

You are free to terminate or cancel your use of the MOBIT Offerings at any time, and for any reason.  Cancellation requests must be submitted at https://www.mobit.com/policies/cancellations . MOBIT will not suspend or cancel an account via any other means. Notwithstanding the foregoing, in no event shall MOBIT be obligated to refund to you the value of any unused credits previously purchased by you.

On return notification of cancellation, your MOBIT account will be deleted from the server within 60 days and keywords registered on your MOBIT account will not longer be active after this time. All login details, contacts and campaigns (including templates) will be deleted at this time and not be recoverable.

Copyright Policy/DMCA Compliance

MOBIT reserves the right to terminate the Account of any client who infringes upon third-party copyrights.  If you believe that a copyrighted work has been copied and/or posted via the Site and/or other MOBIT Offerings in a way that constitutes copyright infringement, you should provide MOBIT with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location on the Site (or other MOBIT Offerings) of the copyrighted work that you claim has been infringed upon; (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) your name and contact information, such as telephone number or e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for MOBIT’s Copyright Agent for notice of claims of copyright infringement is as follows:

MOBIT Technologies Ltd.
Attn: DMCA/Copyright Agent
P.O Box 300 548
Albany 0752
Auckland, New Zealand

Links to other Websites

The MOBIT Offerings may contain links to third party websites.  These links are provided solely as a convenience to you and not as an endorsement by MOBIT of the content of such third-party websites.  MOBIT is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites.  If you decide to access linked third-party websites, you do so at your own risk.

MOBIT cannot ensure that you will be satisfied with any products or services that you purchase from a third party website that links to or from the MOBIT Offerings, since these websites are owned and operated by independent third parties.  MOBIT does not endorse any of the products/services, nor has MOBIT taken any steps to confirm the accuracy or reliability of any of the information contained on such third party websites.  MOBIT does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) that you might be requested to provide to any third party, and you hereby irrevocably waive any claim against us with respect to such websites.  MOBIT strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third parties.

MOBIT consents to links to the MOBIT Offerings which conform to the following: the appearance, position, and other aspects of any link to the MOBIT Offerings may neither create the false appearance that an entity or its activities or products are associated with or sponsored by MOBIT nor be such as to damage or dilute the goodwill associated with the name and trademarks of MOBIT or its affiliates.  MOBIT reserves the right to revoke this consent to link at any time in its sole discretion, without notice.

Security Rules

You are prohibited from violating or attempting to violate the security of the MOBIT Offerings and from using the MOBIT Offerings to violate the security of other websites, individuals or entities by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the MOBIT Offerings, host or network including, without limitation, via means of submitting a virus to the MOBIT Offerings, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”; (d) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (e) forging any MOBIT packet header or any part of the header information in any e-mail, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability.  MOBIT may investigate violations of the Agreement, and may involve and cooperate with law enforcement authorities in prosecuting users of the MOBIT Offerings who are involved in such violations.

Force Majeure

MOBIT shall not be liable for any failure or delay in performing its obligations hereunder, where such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications or Internet facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of MOBIT.  In addition, MOBIT shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material product and/or service necessary for the performance of the Service.

Dispute Resolution Provisions

In any action or proceeding to enforce rights under the Agreement, MOBIT will be entitled to recover costs and attorneys' fees if it substantially prevails.

The following Dispute Resolution Provisions apply to Clients that reside in Australia or New Zealand:

The Agreement shall be governed by and construed in accordance with the laws of New Zealand.  Except as hereinafter provided, any dispute arising under the Agreement shall be settled and determined by binding arbitration in New Zealand in accordance with the Judicature (High Court Rules) Amendment Act 2008 (2008 No 90). The parties however shall endeavor to select an independent arbitrator by mutual agreement.  If such agreement cannot be reached within thirty (30) days after a dispute has arisen which is to be decided by arbitration, the selection of the arbitrator shall be made in accordance with the High Court Rules as then in effect.  The arbitrator shall be a member of the New Zealand law society engaged in the practice of law in New Zealand or a retired member of the New Zealand judicial system.  The award of the arbitrator shall be based on the evidence admitted and the substantive law of New Zealand and shall contain an award for each issue and counterclaim.  The award shall be made within thirty (30) days following the close of the final hearing and the filing of any post-hearing briefs authorized by the arbitrator, and such award shall set forth in writing the factual findings and legal reasoning for such award.  The arbitrator may, in his/her discretion, award to any party specific performance or injunctive relief (the foregoing is not intended to limit MOBIT’s access to the courts to the extent provided below).  The arbitrator may not change, modify or alter any express condition, term, or provision of the Agreement, or the extent or scope thereof, and the arbitrator’s authority is hereby expressly limited.  The arbitration award will be final and binding upon the parties and no appeal of any kind may be taken.  Judgment may be entered thereon in any court having jurisdiction thereof.  Each party shall be entitled to inspect and obtain a copy of non-privileged relevant documents in the possession or control of the other party.  All such discovery shall be in accordance with procedures approved by the arbitrator.  Unless otherwise provided in the award, each party shall bear its own costs of discovery.  

Anything in the foregoing paragraph to the contrary notwithstanding, MOBIT may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of the Agreement.

The following Dispute Resolution Provisions apply to Clients that reside in the United States:

The Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles).  Should a dispute arise concerning the MOBIT Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found at http://mobit.com/Contact/Initial-Dispute-Notice.  We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”).  If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute, you can submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration, which is also available on the Site at
http://mobit.com/Contact/Initial-Dispute-Notice.  For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions.  If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration.  Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction.  Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration.  Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.

To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against MOBIT and/or its employees, officers, directors, members, representatives and/or assigns.  You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit.  You agree to pay the attorney’s fees and court costs that MOBIT™ incurs in seeking such relief.  This provision preventing you from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement.  You may opt-out of these Dispute Resolution Provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Site.

Miscellaneous

The failure of either party to exercise, in any respect, any right provided for hereunder will not be deemed a waiver of any further rights hereunder.  If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect.

No agency, partnership, joint venture or employment relationship is created as a result of the Agreement and you do not have any authority of any kind to bind MOBIT in any respect whatsoever.  

The Agreement shall constitute the complete agreement between the parties.  No terms and conditions stated in or attached to your communications to MOBIT are applicable to the Agreement in any way and are not to be considered your exceptions to the provisions of the Agreement.

All notices required hereunder shall be in writing and will be deemed to have been duly given: (a) when received, if personally delivered; (b) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; (c) the day after they are sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.  MOBIT may give notice to you by means of a general notice posted by and through the MOBIT™ Offerings, electronic mail to your e-mail address on record in MOBIT’s Account information, or by written communication sent by personal delivery, fax, overnight courier, or certified or registered mail to your address on record with MOBIT.

 

LAST UPDATED JUNE 6th, 2016

Thank you for accessing the landing page (the “Landing Page”) linked-to from the text message(s) (“MOBIT Messages”) that was/were sent by MOBIT Technologies Ltd. (“MOBIT,” “we,” “our” or “us”) on behalf of the third party advertiser that was/were featured in the MOBIT Messages and associated Landing Page (“Third Party Advertiser”).  You agree to the following MOBIT Landing Page Terms and Conditions (“Terms and Conditions”) in their entirety, when you: (a) access the Landing Page; and/or (b) register via the Landing Page to purchase products and/or services, or to receive information regarding various products and/or services (collectively, the “Third Party Products”), as provided by the featured Third Party Advertiser.  The MOBIT Landing Page Privacy Policy (“Privacy Policy”) and any and all other applicable MOBIT rules, policies and other supplemental terms and conditions and/or documents that may be published from time to time, are expressly incorporated herein by reference (collectively, the “Agreement”).  

You agree to the terms and conditions outlined in the Agreement with respect to your use of the Landing Page.  Please review the Agreement carefully.  If you do not agree to the terms and conditions contained within the Agreement in its entirety, you are not authorized to access and/or use the Landing Page in any manner or form whatsoever.

REPORT ABUSE/UNWANTED TEXT MESSAGES: You received the MOBIT Messages that you used to reach the Landing Page on behalf of the Third Party Advertiser featured on the Landing Page.  Standard text message and data rates may apply, as per the terms of the agreement between you and your mobile carrier. MOBIT endeavors to ensure that all consumers that receive MOBIT Messages can opt-out quickly, easily and permanently from unwanted text message communications.  You can opt-out of receiving future text messages from the featured Third Party Advertiser by following the opt-out/unsubscribe instructions within the MOBIT Messages that you received.  

In addition, you can visit http://mobit.com/Contact/SPAM-Complaint and select from the options provided. You also may reply to the MOBIT Messages that you received by using the following keyword (SPAM). Finally, you may send a text message containing the word "STOP" to the number (72000 for USA), (or 458 000 500 for Australia), (88444 for the United Kingdom) or (268 for New Zealand) from your mobile phone.

Please report any Text SPAM or other abuse to us directly, and include, if possible: (a) the applicable sender ID in the MOBIT Messages that you received; (b) your mobile telephone number (to be removed); (c) the date and time that you received the MOBIT Messages; and (d) the contents of the MOBIT Messages.  You can report Text SPAM or other abuse by e-mailing us at: spam@mobit.com.

1. Requirements and application access

The Landing Page is available only to individuals who can enter into legally binding contracts under applicable law. The Landing Page is not intended for use by individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age). If you are under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age) and/or you are unable to enter into legally binding contracts under applicable law, you do not have permission to use and/or access the Landing Page.

Upon receipt of payment for your MOBIT subscription, the user account under which the MOBIT subscription was created will receive a 'double-opt-in' email from MOBIT to the email address supplied. On receipt of double-opt-in confirmation email, the administrator (account under which subscription was created) will receive the access URL to the MOBIT application including user name and password.  

2. Description of Landing Page. 

The Landing Page provides users with an opportunity to apply for various Third Party Products, as well as to request information and quotes associated with such Third Party Products, all as offered by MOBIT’s Third Party Advertisers.  

Please be advised that MOBIT does not itself provide the Third Party Products, or any other comparable products and/or services, and the ultimate terms and conditions of any product or service featured in the Landing Page will be determined by the applicable Third Party Advertiser(s).  

You understand and agree that MOBIT is not responsible or liable in any manner whatsoever for: (a) any text messages you received in error and/or without your prior express written consent; (b) your use of, or inability to use and/or qualify for, any Third Party Products or other Third Party Advertiser sponsored products and/or services; and/or (c) any dispute between you and any Third Party Advertisers. You understand and agree that MOBIT shall not be liable to you or any third party for any modification, suspension or discontinuation of any Third Party Product or other product, service or promotion offered by any Third Party Advertisers.  You understand and agree that refusal to use the Landing Page is your sole right and remedy with respect to any dispute with MOBIT.  The Agreement only governs your use of the Landing Page.

To purchase Third Party Products, or receive information regarding Third Party Products, you must first fully complete the applicable registration form located on the Landing Page (“Landing Page Registration Form”), as well as the registration form set forth on the applicable Third Party Advertiser’s website (“TP Registration Form” and together with the MOBIT Registration Form, the “Full Registration Form”).  The information that you must supply on the various Landing Page Registration Form varies, but may include various items of personally identifiable information (collectively, the “Landing Page Registration Data”).  MOBIT’s use of the Landing Page Registration Data shall be governed by the Privacy Policy.  To access the Privacy Policy please Click Here.  

Upon entering your Landing Page Registration Data and clicking on the applicable submission button associated with the Landing Page, you may be redirected to the website of a Third Party Advertiser.  MOBIT will also transfer your Landing Page Registration Data to the applicable Third Party Advertiser in connection with facilitating the processing of your purchase or information request.  The information that you must supply on the TP Registration Form shall be determined by the applicable Third Party Advertisers (the “TP Registration Data” and, together with the Landing Page Registration Data, the “Registration Data”).  Any information that you supply to any Third Party Advertiser shall be governed by that Third Party Advertiser’s privacy policy.  Third Party Product application approval, and the ultimate terms and conditions of any product, service, quote or other information provided by the Third Party Advertiser, will be determined by the Third Party Advertisers.

Unless explicitly stated otherwise, any future offer(s) made available to you through the Landing Page that augment(s) or otherwise enhance(s) the current features of the Landing Page shall be subject to the Agreement. If MOBIT terminates the Agreement for any reason, MOBIT shall have no liability or responsibility to you.   

3. Modification of Agreement. 

The Agreement constitutes the entire and only agreement between you and MOBIT with respect to your use of the Landing Page, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to the Landing Page.  We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that any amendment or modification to the arbitration provisions, prohibition on class actions provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification.  The latest Agreement will be posted on the Landing Page, and you should review the Agreement prior to using the Landing Page.  By your continued use of the Landing Page, you hereby agree to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, which shall be governed by the Dispute Resolution Provisions in effect at the time of the subject dispute).  Therefore, you should regularly check the Agreement for any updates and/or changes.

4. License Grant.

 As a user of the Landing Page, you are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Landing Page and associated content in accordance with the Agreement.  MOBIT may terminate this license at any time for any reason.  You may use the Landing Page for your own personal, non-commercial use.  No part of the Landing Page may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical.  You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Landing Page, Landing Page content or any portion thereof.  MOBIT reserves any rights not explicitly granted in the Agreement.  Systematic retrieval of material from the Landing Page by automated means or any other form of scraping or data extraction in order to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from MOBIT™ is prohibited.  You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Landing Page.  You may not take any action that imposes an unreasonable or disproportionately large load on MOBIT infrastructure.  Your right to use the Landing Page is not transferable. 

5. Proprietary Rights. 

The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to the Landing Page are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights.  The copying, redistribution, publication or sale by you of any part of the Landing Page is strictly prohibited.  You do not acquire ownership rights in or to the Landing Page or any content, document, software, services or other materials viewed at or through the Landing Page.  The posting of information or material on and/or through the Landing Page by MOBIT does not constitute a waiver of any right in or to such information and/or materials.

6. Editing, Deleting and Modification. 

We reserve the right in our sole discretion to edit and/or delete any documents, information or other content appearing on and/or via the Landing Page. 

7. Indemnification.

You agree to indemnify and hold MOBIT, its parents, subsidiaries and affiliates, and each of their respective members, officers, directors, employees, agents, co-branders and/or other partners, harmless from and against any and all claims, expenses (including reasonable attorneys’ fees), damages, suits, costs, demands and/or judgments whatsoever, made by any third party due to or arising out of: (a) your use of the Landing Page and/or Third Party Products; (b) your breach of the Agreement; (c) any dispute between you and any Third Party Advertiser; and/or (d) your violation of any rights of another individual and/or entity.  The provisions of this Section 7 are for the benefit of MOBIT, its parents, subsidiaries and/or affiliates, and each of their respective officers, directors, members, employees, agents, shareholders, licensors, suppliers and/or attorneys.  Each of these individuals and entities shall have the right to assert and enforce these provisions directly against you on its own behalf.

8. Disclaimer of Warranties. 

THE LANDING PAGE AND MOBIT MESSAGES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, MOBIT MAKES NO WARRANTY THAT: (A) THE LANDING PAGE AND MOBIT MESSAGES WILL MEET YOUR REQUIREMENTS; (B) THE LANDING PAGE AND MOBIT MESSAGES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) YOU WILL QUALIFY FOR THIRD PARTY PRODUCTS FROM OUR THIRD PARTY ADVERTISERS; OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LANDING PAGE AND MOBIT MESSAGES WILL BE ACCURATE OR RELIABLE.  THE LANDING PAGE AND MOBIT MESSAGES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.  WE WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING MOBILE CONNECTION ASSOCIATED WITH THE LANDING PAGE AND MOBIT MESSAGES.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOBIT, ITS THIRD PARTY ADVERTISERS OR OTHERWISE THROUGH OR VIA THE LANDING PAGE AND/OR MOBIT MESSAGES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.

9. Limitation of Liability.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT MOBIT SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MOBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR THE INABILITY TO USE THE LANDING PAGE, MOBIT MESSAGES, THIRD PARTY PRODUCTS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY APPLY FOR THROUGH USE OF THE LANDING PAGE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION AND/OR SERVICES PURCHASED OR OBTAINED FROM, OR TRANSACTIONS ENTERED INTO THROUGH, USE OF THE MOBIT MESSAGES AND/OR LANDING PAGE; (C) THE FAILURE TO QUALIFY FOR THIRD PARTY PRODUCTS FROM OUR THIRD PARTY ADVERTISERS; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA; AND (E) ANY OTHER MATTER RELATING TO THE LANDING PAGE, MOBIT MESSAGES, THIRD PARTY PRODUCTS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY APPLY FOR THROUGH USE OF THE LANDING PAGE.  THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND ANY AND ALL OTHER TORTS.  YOU HEREBY RELEASE MOBIT FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN.  IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF MOBIT™ TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00).  THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND MOBIT.  THE LANDING PAGE, MOBIT MESSAGES, THIRD PARTY PRODUCTS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY APPLY FOR THROUGH USE OF THE LANDING PAGE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.

10. Third Party Websites.

The Landing Page and/or MOBIT Messages may provide links, and/or refer you, to third party Internet websites and/or resources including, but not limited to, the websites of Third Party Advertisers.  Because MOBIT has no control over such third party websites and/or resources, you hereby acknowledge and agree that MOBIT is not responsible for the availability of such third party websites and/or resources.  Furthermore, MOBIT does not endorse, and is not responsible or liable for, any terms and conditions, privacy policies, content, advertising, services, products and/or other materials at or available from such third party websites or resources, or for any damages and/or losses arising therefrom.

11. Privacy Policy/User Information.

Use of the MOBIT Registration Data and/or other information or materials that you submit through or in association with use of the Landing Page and/or MOBIT Messages, is subject to our Privacy Policy.  We reserve the right to use all information regarding your use of the MOBIT Messages and/or Landing Page, and any and all other personally identifiable information provided by you, in accordance with the terms of our Privacy Policy. 

12. Legal Warning. 

Any attempt by any individual, whether or not a MOBIT customer, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Landing Page and/or MOBIT Messages, is a violation of criminal and civil law and MOBIT will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.

13. Dispute Resolution Provisions. 

The Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles).  Should a dispute arise concerning the Landing Page, MOBIT Messages the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution before a reputable arbitration organization as mutually agreed upon by the parties; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found at http://www.mobit.com/Contact/Initial-Dispute-Notice.  We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”).  If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute, you can submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration, which is also available at http://www.mobit.com/Contact/Initial-Dispute-Notice.  For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions.  If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration.  Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction.  Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration.  Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.

To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against MOBIT and/or its employees, officers, directors, members, representatives and/or assigns.  You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit.  You agree to pay the attorney’s fees and court costs that MOBIT incurs in seeking such relief.  This provision preventing you from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement.  You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the MOBIT Messages and/or Landing Page, whichever occurs first.

14. Miscellaneous.

Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.  To the extent that anything in or associated with the Landing Page and/or MOBIT Messages is in conflict or inconsistent with these Terms and Conditions, these Terms and Conditions shall take precedence.  Our failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement.

15. Contact Us.

Click the link below if you would like to contact us about our application terms of use.

CONTACT US   

New Telephone Consumer Protection Act (TCPA) - USA ONLY

The Federal Communications Commission (“FCC”) in the United States introduced new rules under the Telephone Consumer Protection Act (“TCPA”) that went into effect on October 16, 2013. The TCPA makes it unlawful for a person to “initiate” a telephone call to a residential line and to wireless numbers for non-emergency purposes without the prior express written consent of the called party.  In lay terms, for people using the MOBIT or any other text service for marketing, this means you must adhere to the new rules when marketing in the USA via text/SMS. The TCPA applies to both voice and short message service (SMS) text messages, if they are transmitted for marketing purposes. The TCPA provides for a private right of action with damages ranging from $500.00 to $1,500.00 per unsolicited call/message.

What's new

The new rules require marketers to:

Obtain prior express written consent before sending SMS/text marketing messages. Consent must be unambiguous, meaning:The consumer must receive a clear and conspicuous disclosure that he/she will receive future text messages on behalf of a specific marketer; and his/her consent is not a condition of purchase; and he/she much designate a phone number to which messages will be delivered (which should not be auto-populated by the marketer in an online form).

Obtain express written consent, even if you had a prior business relationship with the consumer. Therefore, for example, phone numbers gathered at the point of sale or purchase without express written consent for SMS opt-in are not approved for ongoing promotional use. The prior business relationship exception under the TCPA no longer applies.

How is “consent” defined?

The FCC has determined that written agreements obtained in compliance with the E-SIGN Act will satisfy the requirements of the rule, such as, for example, agreements obtained via text message, website form, and other valid forms (see FCC link for more info: http://www.fcc.gov/document/telephone-consumer-protection-act-1991).

Are any types of messages excepted from these regulations?

All marketing messages are required to comply with these express written consent regulations. Some small exceptions exist, including messages sent by schools, cellular carriers, and healthcare-related messages. Purely transactional messages (e.g. account alerts, travel updates, shipping notifications, etc.) are also exempt so long that they do not include any promotional content.

What you must do to comply:

If you don’t have express written consent for all, or some, consumers on your marketing list—or you’re not sure—you are now required to re-opt-in those numbers before if they did not do so before October 16, 2013. Example one-time campaign: “[Company] would like to continue to send you SMS @ this number. 2msgs/mnth. Text HELP for help. STOP to end. Msg&data rates may apply. Reply KEYWORD to confirm today.”

Remove any auto-population of phone numbers on any online web form collecting consent for sending SMS marketing messages (the consumer must enter his/her phone number into the form in order to comply).

How MOBIT helps you to comply

Although the TCPA applies to the United States only, MOBIT have adopted these process as best practice and recommends that our international clients outside the USA  adhere to these guidelines in order to provide the best and most professional experience to their audience. 

In compliance with MOBIT's best practices and guidelines (in addition to contractual obligations), you are required to confirm that all phone numbers used for promotional SMS/text have been collected with express written consent. There are three ways with MOBIT that you can do this, these are:

  • You complete our opt-in permission form when importing your contacts into MOBIT. A valid and approved permission method accepted by the TCPA is to have a voice recording of your contacts opt in confirmation. This recording must state the number of messages your contact anticipates to receive and outline the process and numbers for them to opt out. The voice message must be saved for a period of five (5) years.
  • Your contact responds to your KEYWORD campaign. MOBIT automatically send these contacts an approved TCPA opt-in message for them to accept. Once they do so, their permission is recorded in our database and held for a period of five (5) years as legal proof. If the same contact 'unsubscribes' or opts-out of your marketing then this is recorded against their contact record and MOBIT will not allow any messages to be sent to this contact. The only way this can be changed is for your contact to opt back in via the web widget form we provide for your website or by texting in your opt in KEYWORD.
  • MOBIT provide you with a web widget form that you can customize for branding purposes and place on your website. This form has all the required TCPA wording and automatically enters the contact details and permission into MOBIT when completed.

Each and every MOBIT landing page template includes predefined and TCPA compliant links to our Terms and Conditions, Anti spam and Privacy Policies. We also provide a clearly highlighted UNSUBSCRIBE button where users can opt-out to your messages at any time.

Additional Information:

If you are unsure of how this new legislation effects you in your specific country then please be sure to consult with your legal counsel and review the full country specific anti spam legislation at the links below.

For USA - http://www.fcc.gov/document/telephone-consumer-protection-act-1991
For New Zealand - http://www.dia.govt.nz/services-anti-spam-index
For Australia - http://www.comlaw.gov.au/Series/C2004A01214
For United Kingdom https://ico.org.uk/for-organisations/guide-to-pecr/electronic-mail  

The information here is provided for informational purposes only. It is neither legal advice nor a substitute for obtaining legal advice from your attorney. We recommend that you consult your legal council before engaging in mobile marketing activities..

CONTACT US IF YOU HAVE QUESTIONS ABOUT THE TCPA   

Canada's Anti-Spam Law (CASL) is one of the toughest laws of its kind in the world, making its application and interpretation rather tricky.

This article outlines some of the highlights of the new legislation. This is not legal guidance, and you should consult your own counsel for legal advice on how to interpret CASL. You can also read more about CASL on fightspam.ga.ca.

What Activities CASL Covers:

CASL covers the sending of 'commercial electronic messages' that may be accessed by a computer in Canada (which usually just means cases where the recipient is in Canada). CASL covers more than just email -- it also covers texts, IMs, and automated cell phone messages sent to computers/phones in Canada.

Who Can you Send Messages To?

CASL requires you to get explicit consent before sending someone a message. However, there are limited exceptions to the 'explicit consent' rule. There are three situations where 'implied consent' -- meaning you don't have a reason to believe you shouldn't send the email -- should be okay:

1) You have an active business relationship with the recipient.

An active business relationship exists if you have sold something to the recipient within the past 2 years, or the recipient has made an inquiry about your products at any point within the 6 months before you sent the email in question.

2) The recipient published his or her mobile number to a public website with no caveats about terms of being contacted.

For instance, if someone puts their email address or mobile number on their website, but doesn't include a caveat like "but don't send me anything" or "no spam, please".

3) Someone whose 'business activities' are relevant to the message you're sending has given you their contact info without indicating they don't want to receive your messages.

It's important to note that CASL provides some other exceptions that we don't go into here because they're less relevant to an average business situation.

There is a 36 month transition period ending June 30, 2017, during which time consent may be implied if the recipient has not explicitly withdrawn consent AND the recipient has either:

  • Purchased something from you in the past, or
  • Has made an inquiry of you at some point in the past

Note: This is the same idea as a business relationship explained above except that the time limits have been removed.

What 'Explicit Consent' Means.

All requests for consent must touch on the following three points:

1)Purpose(s): You must specify exactly why you want the consent (e.g., "We'd like to send you newsletters and occasional special offers").
2)Information: You must give your identifying/contact information as well as the contact info of anyone else you're getting the consent on behalf of. This includes name, mailing address, and a phone number or email for contact.
3)That they can "un-consent": You must tell them that if they want to withdraw their consent, they can.

You can get this in writing or verbally, but you should keep a record of when/how you obtained consent.

It's important to note that the recipient has to manually 'opt in,' so pre-checked checkboxes are not okay for getting consent. One that the users check themselves is okay, as is a box that the users type their email addresses into with a submission button next to it that users hit, but those must also be accompanied with something explaining why you want their consent (the purpose), who you are (information), and that they can un-consent. Additionally, you can't just put "... and I consent to receive emails" into your website's legal copy.

What You Have to Include in Your SMS Messages

All messages you send must include the following three points:

1): Identity: You must identify yourself as the sender of the message, and give the identity of anyone you're sending it on behalf of.

2): Contact Info: You must provide contact information that lets the recipient easily contact you.

3): Unsubscribe Mechanism: You must give the recipient a free and easy way to unsubscribe via a link to a website. That link has to be valid for at least 60 days, and you have to make sure the unsubscribe request is honored within 10 days.

Your Obligations and Ours

Ultimately, as the message-sender, you have to understand your obligations and determine how to be in compliance. You should review the CASL with your own counsel. If you use MOBIT for your mobile messaging and marketing, you have the tools you need to run a CASL-compliant mobile messaging program, though it is still solely your responsibility to ensure compliance with CASL.

You can learn more about CASL on their website -- fightspam.ga.ca.

Legal Disclaimer

This article has provided information about the law designed to help our users better understand the legal issues surrounding mobile messaging and marketing. But legal information is not the same as legal advice -- the application of law to an individual’s specific circumstances. Although we have conducted research to better ensure that our information is accurate and useful, we insist that you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is accurate. To clarify further, you may not rely upon this information as legal advice, nor as a recommendation or endorsement of any particular legal understanding, and you should instead regard this article as intended for entertainment purposes only.