The purpose of this Agreement is to set forth the terms and conditions under which, among other things, (i) Mobeo Media will license to You use of certain of Mobeo Media’s technology, software and/or services such that You can utilize the Application through your mobile device, and (ii) You can access and/or use the Website (collectively, the “Purpose “). As stipulated elsewhere in this Agreement, Mobeo Media does not exert any control over any merchants, retailers, commercial ventures or other third parties, and as such is not liable or responsible for any actions taken or omitted to be taken by any such third party.
Mobeo Media hereby grants You a non-transferable, non-exclusive, revocable, limited license to access and use Mobeo Media’s offers, passes, coupons, and/or rewards/loyalty software platform commonly referred to as “Mobeo Rewards” (the “Application “) as made available through its Website located at www.Mobeo.co (the “Website “) and/or via mobile Application during the Term (as defined below) solely for the purpose. Mobeo Media may, from time to time, update or modify the Application, release new versions of the Application or create new modules related to it, each of which may, at Mobeo Media’s discretion, be included within the license described above. You shall not be permitted to sublicense or transfer your rights hereunder, including, without limitation, access to the Application.
3. Certain Restrictions.
You shall not directly or indirectly copy or reproduce all or any part of the Application or the Website, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. You shall use the Application solely for its intended purposes and shall not use the Application for the benefit of any third party except as specifically contemplated under this Agreement. You shall not use the Application to post, transmit, convey, submit, distribute, store or destroy any content, photographs, descriptions, drawings, content, audio materials, text, messages or other information (collectively, “Posted Information “):
- In violation of any applicable law, statute, ordinance, or regulation.
- In a manner that will infringe the intellectual property rights of others.
- That is defamatory, obscene, or trade libelous.
- That contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
- That is false, misleading, or inaccurate in any way.
- In violation of any acceptable use policy or other policy posted at the Website or within the Application from time to time.
You shall not violate or attempt to violate the security of the Application. You shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Application, including, without limitation, any software comprising or in any way making up a part of the Application. Also, You will not export, re-export, or permit any third party to export or re-export, directly or indirectly, the Application where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. You shall defend and indemnify Mobeo Media, at Your sole cost and expense, from and against any claims, damages, liabilities and/or costs arising out of Your breach of any of Your obligations or representations outlined in this Section 3.
4. Certain Responsibilities.
You shall be solely responsible for
- all Posted Information you input into the Application;
- ensuring that all Posted Information is appropriate in tone and is accurate;
- complying with all applicable laws, rules, and regulations at all times; and
- maintaining all passwords and access codes to the Application, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application.
5. Mobeo Media Rights.
Mobeo Media shall be entitled, at its sole discretion, to suspend, restrict and/or terminate, without notice of any kind, Your access to the Application or Your Mobeo Media account for any reason. Notwithstanding the preceding, Mobeo Media shall not be required to review or monitor any Posted Information entered into the Application or otherwise submitted by You. You shall be solely responsible for the veracity and accuracy of all such data, content, and information.
Mobeo Media subscription pricing can be found on its Website.
7. Term and Termination.
This Agreement shall continue in full force until the earlier to occur of (i) either party providing has written or electronic notice of termination to the other party (at which point You shall no longer be entitled to access or use the Application), or (ii) Mobeo Media electing to terminate Your access to the Application, with or without notice (the “Term “). For purposes of clarity, You are entitled to terminate your Mobeo Media account at any time. Upon termination of this Agreement, You shall no longer be entitled to access or use the Application or any other non-public portions of the Website. In addition to the preceding, if Mobeo Media determines, in its sole and absolute discretion, that You have breached this Agreement, threatened to violate this Agreement, committed any fraud or deception, breached any Mobeo Media policy in effect from time to time or otherwise failed to perform to the standards required of Mobeo Media, Mobeo Media shall be entitled, at its discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend Your access to the Application, in each of the preceding cases at any time and for any period. Mobeo Media shall not be responsible for the return of any Posted Information of any kind to You upon any termination of this Agreement or suspension of Your access to the Application, including without limitation any information input into the Application by You. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of this Agreement shall survive any termination of this Agreement.
8. Intellectual Property.
(a) General Ownership.
All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between You and Mobeo Media, You shall be deemed to be the sole owner of all Posted Information entered into the Application or otherwise posted by You; and (ii) Mobeo Media is the sole owner of the name “Mobeo Media” as well as the Website, the Application, and all source code, object code, software, content, copyrights, trademarks, patents, and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes, or other communications from You to Mobeo Media regarding the Application or the Website shall, upon submission to Mobeo Media, be owned solely and exclusively by Mobeo Media. Also, Mobeo Media shall be entitled to post feedback at the Website and within the Application (and/or allows others to do so), both positive and negative, regarding any user. You acknowledge and agree that the applicable supplier(s) of any third-party software included within the Application shall own all worldwide rights, title, and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers’ license, if any, of such third party software to Mobeo Media.
(b) Use of Posted Information.
In exchange for Your use of the Website and/or the Application, You as a result of this grant to Mobeo Media an unlimited, perpetual, irrevocable, fully-paid, transferable, assignable, sub-licensable, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, commercially exploit, repurpose, perform and display any Posted Information You post to the Website, submit to Mobeo Media or post through the Application, alone or as part of other works in any form, media or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees, in connection with Mobeo Media performing the services described herein. Finally, You irrevocably waive and cause to be waived, against Mobeo Media and its users any claims and assertions of moral rights or attribution concerning Your Posted Information. Mobeo Media shall be entitled to display advertising and/or any other content at its chosen locations within the Website and/or Application, including without limitation adjacent to Your Posted Information.
9. Confidentiality; Non-Solicitation
You agree to treat as confidential all confidential information of Mobeo Media, not to use such confidential information for any purpose other than to the limited extent necessary to use the Application and not to disclose such confidential information to any third party except as may be reasonably required according to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the preceding, You shall use at least the same degree of care which You use to prevent the disclosure of Your confidential information of like importance to prevent the disclosure of confidential information disclosed by Mobeo Media, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. Also, during the Term and for a period of one year after that, You shall refrain from directly or indirectly soliciting, enticing, persuading or inducing any individual who is then, or has been within the one year before the applicable date, an employee of Mobeo Media to terminate employment with Mobeo Media or to become employed by or enter into contractual relations with any other individual or entity.
(a) No Warranties.
Except as explicitly set forth herein, neither Mobeo Media, its affiliates or any such party’s equity holders, directors, officers, employees, agents, suppliers, licensors, or the like, makes any warranties of any kind, either expressed or implied, including, without limitation:
- Warranties of merchantability or fitness for a particular purpose
- That the Website or the Application will be error-free
- As to a minimum level of uptime for the Application or the Website
- As to the results that You may obtain by entering into this Agreement and/or using the Application
You agree and acknowledge that the Application and Website are licensed and/or provided hereunder on an “as is” basis. In addition, You hereby recognize and acknowledge that
- Mobeo Media shall not be responsible for any actions taken by any other party using the Application or reviewing any of Your Posted Information;
- Mobeo Media does not recommend or endorse any third parties hereunder, and makes no representations or warranties regarding any such third party;
- Mobeo Media is not a party to any transaction between you and any store, retailer or business with which Mobeo Media has a business relationship, and as such, any disputes regarding purchases, coupons, passes, deals, offers, rewards and/or any other aspect of any transaction or other commercial dealings is solely between You and such third party;
- Mobeo Media is not responsible for any other party’s compliance with applicable laws, rules or regulations;
- Mobeo Media’s services are administrative in nature, and Mobeo Media is not responsible for ensuring that any third party honor any coupons, deals, passes, offers, reward, loyalty or other obligations such third party may have towards You;
- Mobeo Media shall not be responsible or liable for content, text, photographs and/or other Posted Information, including any Posted Information which may violate applicable law and/or a third party’s intellectual property rights; and
- the Application and/or Website may not function correctly or as intended at times.
(b) Unavailability of Website or Application.
At your sole cost and expense, you are responsible for providing all equipment necessary to access the Internet, the Website, and/or the Application. While it is Mobeo Media’s objective to make the Website and Application accessible at all times, the Website and/or Application may be unavailable from time to time, including, without limitation, routine maintenance. Also, various portions of the Website or Application may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of Mobeo Media, access to the Website and/or the Application may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the preceding, Mobeo Media shall not be liable in any way for any delay in responding to an inquiry or question forwarded by You or the effects any delay or unavailability may have on You. YOU AGREE THAT MOBEO MEDIA SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR APPLICATION AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE AND/OR APPLICATION.
11. Limitation on Liability.
MOBEO MEDIA SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE APPLICATION OR WEBSITE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, MOBEO MEDIA’S TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50.
12. Force Majeure.
Mobeo Media shall not be liable to You for failure or delay in performing any obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control.
13. General Terms.
The following terms and conditions govern general use of the Website:
(a) You agree to abide by all restrictions displayed on the Website and/or within the Application, as and when they are updated from time to time, including, without limitation, the rules in this Section 13. Mobeo Media reserves the right to remove any content you post to the Website or within the Application, block the sending of any inquiry or other content Mobeo Media deems inappropriate in its sole discretion and may terminate all access to the Website and/or Application at any time in its sole discretion for any or no reason. While Mobeo Media reserves the right to monitor all postings and/or content posted at the Website and/or within the Application, it has no obligation to do so.
Permitted Uses. You may use the Website only in good faith for the purposes described herein. You may download and print out portions of the content from the Website for non-commercial purposes provided that You follow the rules in this Agreement. You may not use the Website or Application, or any business listings, contact information or other content, to promote another business or commercial venture.
Distribution. Except as expressly permitted under other provisions of this Agreement, You may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any portion of the Website, the content or any information or materials retrieved from either of them, including, without limitation, graphics and logos, in whole or in part, for any purpose.
Derivative Works. You may not create compilations or derivative works of the Website or the Application, the Website or Application content or any other materials from the Website or Application.
Infringement. You may not use the Website, Application, the Website and/or Application content or any other materials from the Website or Application in any manner that may infringe upon any copyright or other intellectual property right, proprietary right, or property right of Mobeo Media or any third party.
Information Distribution. You may not use the Website and/or Application or any communications service, chat room, message board, blog, forum, newsgroup, or other interactive services that may be available to You on or through the Website or Application to transmit, upload, post, distribute or facilitate distribution of, or otherwise make available any information or content, including text, communications, software, images, sounds, data or other information, that:
· is false;
· contains explicit or graphic descriptions or accounts of sexual acts, including, without limitation, sexual language of a violent or
· threatening nature directed at another individual or group of individuals;
· includes any inside information and/or proprietary or confidential information learned or disclosed under non-disclosure agreements;
· You are restricted from using under any law;
· infringes upon the intellectual property rights of any third party; or
· contains software viruses or any other computer code, files or programs designed or intended to disrupt, damage, or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party.
Other Prohibited Uses. You may not use the Website or Application for any purpose that:
· is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, or otherwise violates Mobeo Media’s rules or policies;
· victimizes, harasses, degrades, or intimidates individuals or groups of individuals based on religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
· invades any person’s or entity’s privacy or other rights;
· constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
· misidentifies You or impersonates any person or entity, including, without limitation, any employee or representative of Mobeo Media, or falsely states, implies, or otherwise misrepresents Your affiliation with a person or entity by, for example, pretending to be someone other than You or pretending to represent a company or organization that You are not affiliated with or authorized to serve; or
· could otherwise reasonably be deemed or viewed to be unethical, illegal, or offensive.
Others’ Personal Information. You may not knowingly solicit or collect personal information from a child 12 years old or younger without appropriate prior verifiable parental consent.
Harm to Minors. You may not take any action on the Website or within the Application or use the Website and/or Application content to harm minors.
Solicitation. You may not use the Website or Application or any Website or Application content in a manner that violates any state or federal law regulating commercial email, facsimile transmissions or telephone solicitations.
(b) The Website, the Application, and the Website and Application content may contain and/or provide access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or emailed or otherwise transmitted through the Website or Application (“Third Party Content “) that may include content You find to be offensive, indecent or objectionable. The third-party from whom or which any such Third Party Content originates is solely responsible for it. Mobeo Media assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third Party Content. Accordingly, Mobeo Media has no liability of any kind to You or any other person relating to any Third Party Content, including, without limitation, mistake, misstatement of the law, omission, falsehood, defamation, obscenity, pornography, profanity, opinion, representation and any other content contained in the Third Party Content or for any loss or damage of any kind incurred as a result of the use of any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, unless Mobeo Media expressly states in writing to the contrary, Mobeo Media neither endorses nor adopts as its belief any such statements. Mobeo Media may provide information in articles Mobeo Media posts or links to through the Website only for educational and general informational purposes and not as professional advice. Mobeo Media has not attempted to verify any information contained in any such articles.
(c) As a convenience to You and other Website visitors, the Website may contain links to websites owned and operated by third parties that are not affiliated with Mobeo Media. When You use these links, You will leave the Website, and Mobeo Media will have no ability to protect Your interests. You visit linked websites at Your own risk, and it is Your responsibility to take any protective measures to guard against viruses and other destructive elements. Mobeo Media is not responsible for and, unless it expressly states otherwise in writing, makes no warranty or representation regarding and does not endorse any linked website or any service, product or information provided on or through the linked Website.
14. Copyright Infringement.
If You believe that Your intellectual property or work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide Mobeo Media’s Agent for Notice with the following information in English (Your “Notice”):
· an electronic or physical signature of the person authorized to act on behalf of the copyright owner or other intellectual property interest;
· a description of the copyrighted work or other intellectual property that You claim has been infringed;
· a description of where the material you claim is infringing is located on the Website or within the Application;
· Your address, telephone number, and email address;
· a statement by You that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
· a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
In some circumstances, to notify the individual or entity who provided the allegedly infringing content to which Mobeo Media has disabled access, Mobeo Media may forward a copy of a valid Notice including name and email address to such individual or entity. Mobeo Media’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By email email@example.com
Each party shall pay its costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Texas, without reference to conflict of law principles. All disputes arising hereunder or connected with this Agreement, the Website and/or the Application shall be resolved in the appropriate Federal or state court located solely and exclusively in Collin County, Texas. You as a result of this consent to exclusive jurisdiction in Collin County, Texas, and agree not to raise any defense of forum non-covenant or any similar case. The relationship between the parties under this Agreement is that of independent contractors. Neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent, or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of binding upon the parties hereto and their respective successors and assigns. Still, it shall not be assignable by You without Mobeo Media’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.
During the length of the Merchant Agreement, Mobeo Media will provide the Mobeo Media Programs. In the event of any inconsistency among terms and conditions of the Merchant Agreement and these Terms and Conditions (“Agreement”), the order of control shall be: (i) Merchant Terms & Conditions, (ii) Merchant Agreement, and (iii) any other exhibits, addenda or attachments to the Terms & Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Merchant Agreement.
2. Intellectual Property Rights.
- (i) Mobeo Media owns all right, title, and interest in and to any data provided to Mobeo Media by your customer or an end-user to Mobeo Media connected with the Mobeo Media Programs (“Customer Data”).
- (ii) Mobeo Media owns all right, title and interest in and to the Mobeo Media Programs including, without limitation, intellectual property rights and any improvements, modifications, enhancements or refinements to it. Except as outlined in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the Mobeo Media Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.
You: (i) will use the Mobeo Media Programs solely for your internal business purposes, and (ii) will not, for itself, any affiliate of you or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the Mobeo Media Programs; (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the Mobeo Media Programs; (c) copy any tangible versions of the Mobeo Media Programs; or (d) remove from any of the Mobeo Media Programs any language or designation indicating the confidential nature thereof or the proprietary rights of Mobeo Media. You will not export, re-export, or permit any third party to export or re-export, directly or indirectly, the Mobeo Media Programs, where such export or re-export is prohibited by applicable law without appropriate licenses and clearances.
Mobeo Media retains the right to approve, modify, or refuse any Mobeo Media related communications to end-users.
4. Fees; Pricing and Payment Terms; Taxes.
- (i) Mobeo Media’s current fees for the Mobeo Media Programs and its services are outlined in the Merchant Agreement. Mobeo Media reserves the right to amend the charges payable for the Mobeo Media Programs at any time upon thirty (30) days prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Subscription Period.
- (ii) You will be responsible for any sales, use, value-added or import taxes, customs duties, or similar taxes assessed by applicable law concerning the provision of the Mobeo Media Programs.
- (iii) Notwithstanding anything herein to the contrary, Mobeo Media, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use the Mobeo Media Programs, at any time, upon notice to you, if you have not paid all amounts due on or before the payment due date, or for any other material breaches of the Merchant Agreement, Merchant Terms, and Conditions, or any other exhibits, addenda or attachments to the Terms & Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination, including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by Mobeo Media to collect any unpaid amounts owed by you.
- (iv) Mobeo Media provides a standard installation of its Mobeo Media Programs. However, in the event of a complicated installation, such as when a third party or outside technical support is required to complete the installation, Mobeo Media will provide up to one hour of such technical support. Technical support exceeding one hour will be billed at cost to the merchant.
5. Term; Termination; Survival.
The Agreement will remain in full force specified in the Merchant Agreement. At the end of any Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will convert to a month-to-month Subscription Plan. This will be ongoing until you choose a new Subscription Plan or provide at least sixty (60) days written cancelation notice, at which time you may be charged a restocking fee. Each party shall have the right to terminate the Agreement upon written notice to the other party:
- Upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution
- Upon the making of an assignment for the benefit of creditors by the other party
- Upon the dissolution of the other party
If your Merchant Agreement specifies that you are entitled to a “30 day Money Back Guarantee” and if, within 30 days of the Installation Date, You desire to have the Mobeo Media Kit uninstalled, you agree to provide written notice to Mobeo Media. Within 30 days of Mobeo Media’s receipt of the Mobeo Media Kit, Mobeo Media will refund You any money collected for the initial monthly subscription fee in the same manner in which the initial payment was paid. All Onboarding, Activation, or Setup fees paid are non-refundable. If, after thirty (30) days from the Installation Date and before the subsequent Subscription Period, You desire to terminate the Mobeo Media Program, You agree to pay an early cancellation fee equal to six (6) months of your monthly subscription fee via the credit card or ACH on file. If you subscribe to a variable subscription fee plan, your early cancellation fee is equal to (6) months at the most recent monthly billed rate. Mobeo Media will cease to collect the monthly subscription fee at the point in time in which Mobeo Media has received your returned Mobeo Media Kit. In the event of termination, all items in the Mobeo Media Kit must be returned to Mobeo Media in specified return packaging provided by Mobeo Media. If you were not previously provided with detailed return packaging, Mobeo Media would provide you with specified return packaging at no cost to you. Otherwise, you will be charged for packaging materials. You are responsible for all return shipping charges and any damage incurred in the shipping process. If any item in the Mobeo Media Kit is not returned, Mobeo Media will charge you for the item’s cost not returned. Mobeo Media will prorate the last monthly subscription fee based on the date Mobeo Media receives the Mobeo Media Kit. Any provision of the Agreement which contemplates performance or observance after any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.
If your Mobeo Media Bites Agreement specifies that you are entitled to a “Money Back Guarantee,” and if, within the specified measurement period, your Mobeo Media Bite campaign does not deliver the specified repeat visit rate, Mobeo Media will refund You all Mobeo Media Bites program payments collected by Mobeo Media for the applicable campaign in the same manner in which the initial fee was paid. In order to qualify for the “Money Back Guarantee,” You must maintain your subscription with Mobeo Media through the end of the specified measurement period, and the Mobeo Media tablet must be online and displayed 90% of Your business hours over the course of the measurement period. You must also honor the program as dictated by any additional terms within the Mobeo Media Bites Agreement. Failure to meet these guidelines will disqualify your eligibility for the “Money Back Guarantee.”
6. Representations and Warranties; Disclaimer.
- (i) Mobeo Media warrants that Mobeo Media has the authority to enter into this Agreement.
- (ii) You represent and warrant to Mobeo Media that: (a) you have the authority to enter into this Agreement; and (b) you will only use the Mobeo Media Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party.
- (iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF MOBEO MEDIA PROGRAMS OR SERVICES, AND THE INTERNET IS AT YOUR SOLE RISK. MOBEO MEDIA PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
7. Confidential Information.
Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and additional similar information provided by a party. For the avoidance of doubt, Customer Data shall be deemed Confidential Information of Mobeo Media. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who need to know such Confidential Information to perform its obligations under the Agreement. To the extent, such directors, officers, or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the commitments outlined in the Agreement. The prohibitions contained in this Section will not apply to information:
- Already lawfully known to the receiving party before such disclosure by the disclosing party
- Independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information
- Disclosed in published materials
- Generally known to the public
- Lawfully obtained from any third party
Also, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party before making such disclosure so that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
8. Dispute Resolution; Governing Law.
In the event of a reward dispute or mistake between a Merchant and User, Mobeo Media may, in its sole discretion, unilaterally make adjustments to User reward points.
To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. The State of Texas governs this Agreement, and you expressly agree to the exclusive jurisdiction for any claim or dispute with Mobeo Media in the federal and state courts within the jurisdiction of the United States District Court for the Eastern District of Texas. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
You will defend, indemnify, and hold Mobeo Media and its affiliates and their respective directors, officers, employees, agents, and representatives harmless from and against any third-party suit, proceeding, assertion against any damages, judgments, liability, costs, and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your material breach of this Agreement, your unauthorized use or misuse of the Mobeo Media Programs or any unauthorized combination of the Mobeo Media with any hardware, software, products, data or other materials not specified or provided by Mobeo Media.
10. Limitation of Liability.
Mobeo Media’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the number of fees paid by you to Mobeo Media under the Agreement during the twelve (12) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will Mobeo Media be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or concerning the Agreement or the use of the Services, however, caused and regardless of theory of liability. Also, Mobeo Media will not be liable for damage (physical or otherwise) incurred by the merchant upon any asset or property from the installation or removal of any Mobeo Media product or add-on in-store. It will not be responsible for the replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable, and you have been advised or are aware of the possibility of such damages.
Except where explicitly provided otherwise, any notice required or permitted hereunder will be delivered to the contact person listed on the Order Information as follows (with notice deemed given as indicated):
- By personal delivery when delivered personally
- By established overnight courier upon written verification of receipt
- By facsimile transmission when receipt is confirmed orally
- By certified or registered mail, return receipt requested, upon confirmation of receipt
- By electronic delivery when receipt is confirmed orally
You may not, without the prior written consent of Mobeo Media, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs, and assigns.
13. No Third-Party Beneficiaries.
The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
14. Amendment; Waiver.
This Agreement may be changed only by a written agreement signed by both Mobeo Media and you. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches. The refusal of any breach will not operate as a waiver of subsequent breaches.
Suppose any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable. In that case, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of the Agreement will remain in full force and effect.
16. Force Majeure.
Suppose either party is prevented from performing any of its obligations under the Agreement due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to Mobeo Media provided before the force majeure event.
17. Independent Contractor.
The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
18. Compliance with Laws.
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
19. Entire Agreement.
The Agreement will constitute the entire Agreement between Mobeo Media and you concerning the subject matter hereof, and all prior oral or written agreements, representations, or statements concerning such subject matter are superseded as a result of this.
DATE LAST MODIFIED: August 11, 2020
Importance of Your Privacy.
- as authorized by you,
- as described in the relevant portion of Mobeo Media’s Website (the “Website”),
- in connection with providing various products and/or services to you (the “Services”),
- to the extent, you make any use of Mobeo Media’s mobile software application commonly referred to as “Mobeo Media Rewards” or any other Mobeo Media mobile application (the “Application”), to merchants with which Mobeo Media has a business relationship,
as may be required by law or court order, or
- as otherwise set forth herein.
A Special Note About Children.
Relevant Categories of Information for you to Know:
- 1.1. Who we are
- 2.2. Information we may collect at the Website or through the Application
- 3.3. How your information is used
- 4.4. Altering the information you submit through the Website and/or Application
1. Who We Are.
Mobeo Media operates a website at www.Mobeo.co, and the Application through which specific coupons, deals, offers, passes, rewards, and/or loyalty programs may be administered.
2. Information We Collect.
There are several areas on the Website and/or within the Application where you may be asked to enter both personal and non-personal information including, by way of example and without limitation, your name, address, phone number, credit card information, birthday, Facebook and/or Twitter usernames, and information regarding your cell phone and/or other mobile devices. Also, when you use the Application Mobeo Media automatically receives and records information on our server logs from your browser or mobile platform, including your IP address and location. Mobeo Media also collects and uses information from users such as transaction location, purchase activity, Application open date and time, idle time, and all clicks and/or swipes within the Application (together with time and order). Mobeo Media may also collect information posted by users on social media sites that have opted to connect to or otherwise link Mobeo Media with social media accounts, including Facebook, LinkedIn, Instagram, YouTube, and Twitter. We treat this data as non-personal information for providing the Services, except where we are required to treat it as personal information under applicable law. We DO NOT sell or share any personal information about you to or with any person or organization except
- as authorized by you,
- as outlined in the relevant portion of the Website, Application or within any agreement between us,
- in connection with providing various products or Services to you (either directly or through one or more third parties),
as may be required by law or court order, or
- as otherwise set forth herein.
In particular, and not in limitation of the preceding, information you enter at the Website and/or Application (i) will be shared with the merchants or third-party service providers with which Mobeo Media has entered into a business relationship to provide the Services, and (ii) may be shared with various third parties in connection with making available to you certain offers (which offers may be based on or related to your location at the time the offer is made available to you). Also, Mobeo Media may sell, disclose, or otherwise use information gathered on the Website or within the Application to third parties on an aggregated basis.
(a) Information we receive from you. To use certain of Mobeo Media’s Services and/or to access the Application, you’ll need to provide certain personal information which may include, without limitation, your name, address, birthday, phone number, credit card information, Facebook and/or Twitter user names, email address, information regarding your cell phone or mobile device and other information.
(b) Technical information we collect. For Mobeo Media to ensure that we provide the best possible consumer experience on the Website and within the Application, we collect and track certain user information. When you visit the Website, our Web server may send a cookie to your computer. This cookie would be intended to store a limited amount of information about your site visit. The cookie tracks aggregate information on how our site is being used, including session counts, navigation patterns, pages visited, etc. However, these cookies do not store any personally identifiable information such as your name, email address, or phone number as you browse the site. When you submit a question, we store your cookie identification in our system. This cookie allows our Website to recognize you when you return. Mobeo Media may also utilize Web Logs to track aggregate information about how our site and/or the Application is being used. Web Logs track anonymous user information, including the number of visitors to the Website, operating systems, Internet Provider addresses (if publicly available), and browser type. Unlike cookies, Web Logs are maintained only on Mobeo Media servers and do not store or place anything on the user’s computer.
If you come to the Mobeo Media Website from an online banner ad, an anonymous identification number may be passed to the Website. This information cannot be used to gather any personally identifiable information about you. It will only allow us to track the overall effectiveness of our online advertising, marketing, and banner advertisement campaigns.
(c) Other information we get from your use of the Services. We may collect information about the Services that you use and how you use them. This information includes:
We may collect device-specific information (such as your hardware model, operating system version, unique device identifiers, and mobile network information, including phone number).
When you use the Service or access the Application, we may collect and process information about your actual location. We may also use various technologies to determine location, some of which may be made available through third-party licensors.
(d) Information from surveys. You may have the option of completing an online survey at the Website or within the Application from time to time. Participation in surveys is entirely voluntary, and it is your choice whether or not you wish to disclose your personal information to us in connection with any such study.
(e) Information from the “Contact Us” section of the Website or Application. You may contact Mobeo Media through the “Contact Us” feature. Participation in this area is entirely voluntary, and it is your choice whether or not you wish to disclose your personal information to us.
(f) Information collected other sections of the Website or Application. Mobeo Media may, from time to time, make various resources available to you at the Website or within the Application. At times we may collect personal information in connection with providing such services.
3. How Your Information Is Used.
In addition to the uses of the information described above, Mobeo Media may, from time to time, collect purchasing information and/or data from other sources. Mobeo Media may collect this information for purposes of performing analytics and conducting consumer research. This information may be used to communicate and provide additional information that may be of interest to you and our merchants.
Also, Mobeo Media may disclose account or other personal information when we have reason to believe that disclosing this information is necessary to identify, contact or bring legal action against someone who may be causing injury to or interference with Mobeo Media’s rights or property, other Website or Application users or anyone else that could be harmed by such activities.
4. Altering Information You Submit.
(a) Deleting your information. Federal and state regulations may require that we store questions or submissions for various periods. To comply with these regulations, we may be unable to delete information from our databases.
(b) Altering Information. Mobeo Media may amend, modify, or delete any information you submit to the Website or through the Application if it believes, in its sole discretion, it is necessary or desirable to do so.
(c) Request to stop receiving emails from us. Periodically, Mobeo Media may send you emails to alert you to various opportunities or offers available at the Website or within the Application. If you do not wish to receive any of these offers, please send an email to support@MobeoMedia.com to remove yourself from our mailing list.
Mobeo Media uses extensive and sophisticated secure technology to protect your data and transmissions between you and Mobeo Media. Transmission between browsers and our web server is implemented using either Secure Sockets Layer (SSL) technology or Mobeo Media’s proprietary mobile Application that utilizes SSL-encrypted communication. This technology requires an SSL-capable browser. Although Mobeo Media has taken these reasonable and appropriate measures to ensure that your personal information is delivered and disclosed only by your instructions, Mobeo Media can not guarantee that the personal information you provide will not be intercepted by others and decrypted.
In the future, we may sell or otherwise transfer some or all of our assets or equity to a third party. Your personally identifiable information and other information we obtain from you via the Website or the Application may be disclosed to any potential or actual third party purchasers of such assets or equity and may be among the assets transferred.
PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.