Mobivity Terms and Conditions of Service(Version: December 20, 2021)
These Terms and Conditions of Service (hereinafter these “Terms”) shall be deemed effective and deemed integrated into each Mobivity Services Agreement (as defined below) submitted by Client (as defined below) and accepted by Mobivity Holdings Corp., a Nevada corporation (“Mobivity”), upon the date of acceptance of the Client’s Mobivity Service Agreement by Mobivity. The Mobivity Services Agreement (incorporating these Terms) is referred to herein as this “Agreement”.
Mobivity and Client are sometimes each individually referred to herein as a “Party” and collectively as the “Parties”. References herein to this “Agreement
CLIENT’S ACCEPTANCE OF A MOBIVITY SERVICES AGREEMENT AND USE OF THE LICENSED APPLICATIONS INDICATES CUSTOMER HAS READ AND ACCEPTED THESE TERMS IN THEIR ENTIRETY.
Mobivity reserves the right, at its sole discretion, to modify or change these Terms at any time with or without prior notice to Client. Client must visit this page (mobivity.com/terms) to review the current Terms on a regular basis. Client’s continued use of the Licensed Applications following any changes to these Terms constitutes its full acceptance of those changes.
1. DEFINITIONS
1.1 “Affiliates” shall mean, with respect to a Party, any person or other entity of which such Party, directly or indirectly, possesses the power to direct or cause the direction of the actions and/or policies and management of such person or entity, whether by the ownership of stock, by ownership of voting security, by contract, or by any other method.
1.2 “Authorized Point of Sale (“POS”) Terminals” shall mean the number of point-of-sale terminals for which a Client is authorized to use the Mobivity Data Intercept or Receipt product, as indicated in the Client’s Mobivity Services Agreement. Once a point of sale terminal is integrated to interface with the Mobivity Data Intercept or Receipt product, the terminal is considered an Authorized POS Terminal and any substitution or transfer between terminals may result in additional charges.
1.3 "Client” means each person or entity that has submitted a Mobivity Services Agreement to Mobivity that has been accepted by Mobivity for license of the Licensed Applications.
1.4 “Client Content” shall mean all data, text, pictures, sounds, graphics, logos, symbols, Marks, copyright material, video, and other materials utilized by Client in connection with the Client Marketing Activities or supplied by Client to Mobivity for purposes of the Services hereunder.
1.5 “Client Marketing Activities” shall mean Client’s mobile marketing and other marketing campaigns and initiatives using the Licensed Applications.
1.6 “Confidential Information” shall mean all proprietary or confidential information or materials (whether or not reduced to writing or still in development) disclosed by one Party to the other Party, including, without limitation, (i) information related to either Party’s current or proposed business operations, security, finances, technical data, inventions, developments, research, marketing strategies, timelines or development plans (including, without limitation, prospective Marks), customer names or other information related to customers, pricing policies, financial information, business methods concepts, drawings, ideas, specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, processes, procedures, know-how, new product or new technology information, and (ii) information related to the Licensed Applications (including, without limitation, Licensed Application source code or object code, improvements, upgrades, future releases, functionalities or similar information); provided, that Confidential Information shall not include information that a receiving Party can prove by clear and convincing evidence is (i) publicly available, (ii) already in the receiving Party’s possession and not subject to a confidentiality obligation owed either directly or indirectly to the disclosing Party, (iii) lawfully obtained by the receiving Party from third parties without restrictions on disclosure, or (iv) independently developed by the receiving Party without reference to the Confidential Information of the other Party.
1.7 “Documentation” shall mean user guides and reference manuals, whether in printed or electronic form, relating to the Licensed Applications.
1.8 “End User” shall mean any person or entity that receives, uses or accesses a Client Marketing Activity, regardless of whether or not the person or entity purchases products or registers through a Client Marketing Activity.
1.9 “Licensed Applications” shall mean Mobivity’s proprietary applications and/or software products specifically identified in Client’s Mobivity Services Agreement as Licensed Applications, together with all technical corrections, modifications and updates to any such application(s) or software product(s).
1.10 “Loyalty Program” means a program through which a Client offers benefits to its customers for visits, purchases or other incentivized behavior.
1.11 “Marks” shall mean trade names, trademarks and service marks of either Party regardless of whether or not registered with the U.S. Patent and Trademark Office.
1.12 “Materials” shall mean any information, materials, documents, data, or reports that are generated from Licensed Applications or made available to Client through Client’s use of the Licensed Applications.
1.13 “Mobile Message” shall mean any SMS, multimedia messaging service or other message service or application component of phone, web, or mobile communication systems using standardized communications protocols that allow the exchange of messages between fixed or mobile computing devices.
1.14 “Mobivity Services Agreement” means each purchase order request (in the form provided by Mobivity) for licenses of the Licensed Applications submitted by Client and accepted by Mobivity that expressly integrates these Terms.
1.15 “Services” shall mean any services related to the Licensed Applications that may be provided by Mobivity as set forth in Client’s Mobivity Services Agreement.
1.16 “Receipt” means Mobivity’s platform for dynamic couponing and marketing through point-of-sale data or receipts, as further described in Client’s Mobivity Services Agreement.
1.17 “Data Intercept” means Mobivity’s POS solution for capturing receipt data for later processing and reporting, as further described in Client’s Mobivity Services Agreement.
1.18 “SMS” shall mean a text messaging service component of phone, web, or mobile communication systems using standardized communications protocols that allow the exchange of short text messages between fixed line or mobile phone devices.
1.19 “Territory” shall mean the United States of America.
2. LICENSE TO LICENSED APPLICATIONS.
2.1 License Grant. Subject to the terms of this Agreement, Mobivity grants to Client a non-transferable, non-sublicensable, non-exclusive right and license to access and use the Licensed Applications for purposes of administering, deploying and managing Customer Marketing Activities in the Territory. This license to the Licensed Applications includes the right to display electronically, print, copy, download, and store in electronic format all Materials generated or produced through the use of the Licensed Applications in accordance with this Agreement. During the term of this Agreement, Mobivity hereby grants to Client a non-exclusive and non-transferable license under Mobivity’s rights under United States Patent No. 6,788,769 solely to use the Licensed Applications in accordance with this Agreement.
2.2 Access to Licensed Applications. Mobivity will make the Licensed Applications available to Client through a password-protected website accessed through the Internet. Client is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Licensed Applications, and for paying all access charges (e.g. ISP, telecommunications) incurred while using the Licensed Applications. Client may designate certain employees, agents or representatives to access and use the Licensed Applications on behalf of Client in accordance with the terms of this Agreement (“Authorized Users”), provided that such Authorized Users agree to adhere to and be bound by the confidentiality provisions of this Agreement. At Client’s reasonable request, Mobivity shall provide Client with Authorized User passwords from time to time. At Client’s reasonable request, Mobivity shall disable or change any password. Account information and passwords provided to Client for the purpose of accessing the Licensed Applications or any aspect thereof should be treated as Confidential Information.
2.3 Modification of Licensed Applications. The specifications, features and functionalities of the Licensed Applications may vary from time to time in Mobivity’s discretion. Mobivity shall determine whether an improvement or modification to any Mobivity product or application is included in the Licensed Applications licensed under this Agreement.
2.4 Ownership. Subject to the licenses granted to Client herein, all right, title and interest in and to the Licensed Applications (including, without limitation, all standard, optional and custom enhancements, modifications, design changes and software updates for the duration of this Agreement and thereafter in perpetuity) and the Documentation (including, without limitation, all modifications, revisions, updates and supplements for the duration of this Agreement and thereafter in perpetuity) are and shall remain at all times the sole and exclusive property of Mobivity, even if paid for by Client.
2.5 Restrictions on Use and Access. Client shall not: (i) copy or distribute the Licensed Applications or the Documentation; or (ii) modify, enhance or change the Licensed Applications or the Documentation; or (iii) merge the Licensed Applications into another program; or (iv) create derivative works from the Licensed Applications or the Documentation; or (v) reverse engineer, disassemble, decompile or make any other attempt to discover the source code of the Licensed Applications; or (vi) sell, assign, transfer, sublicense, rent, lease, or lend any portion of the Licensed Applications or the Documentation to any third party; or (vii) attempt to gain unauthorized access to any servers controlled by Mobivity; or (viii) remove, obliterate or cancel from view any copyright, Mark, confidentiality or other proprietary notice, Mark or legend appearing in any of the Licensed Applications or Documentation. The Licensed Applications and the Documentation are protected by U.S. copyright laws and international treaties.
2.6 Receipt Platform Additional Terms. The additional terms of this Section apply if the Licensed Applications include Mobivity’s Receipt product. The license set forth in Section 3.1 to access and use the Licensed Applications is strictly limited to Authorized POS Terminals and includes the right to install Mobivity’s Receipt point-of-sale terminal application on Authorized POS Terminals. Persistent Internet connectivity is required to access and use the Receipt product, which shall be the responsibility of the Client. Client hereby authorizes Mobivity to access Authorized POS Terminals remotely for maintenance by using industry-standard Internet connectivity protocols. Mobivity will use secure remote connectivity protocols such as HTTPS to connect to Client's Authorized POS Terminals. In the event that Client has an existing protocol for remote connectivity, Mobivity will make its best efforts to utilize Client's protocol, as provided by Client. If attempts fail to access the Authorized POS Terminals using such Client protocol, Client authorizes Mobivity to utilize the above-described methods to access the Authorized POS Terminals.
3. FEES.
3.1 Licensed Applications. In exchange for the use of and access to the Licensed Applications and Services provided by Mobivity hereunder, Client or its designee shall pay Mobivity the fees set forth in Client’s Mobivity Services Agreement. Unless otherwise specified in the applicable Mobivity Services Agreement, all fees during the term of this Agreement must be prepaid in full within three (3) days of the effective date of that particular Mobivity Services Agreement. All fees are non-refundable, subject to Section 9 of this Agreement. Mobivity shall not incur any fees on behalf of Client unless and until payment for that particular Licensed Application and/or Service has been received in full. If Client or its designee fails to timely pay the respective fee, Mobivity shall provide written notice to Client and shall not provide the particular Licensed Applications and/or Services set forth in that particular Mobivity Services Agreement unless and until payment is received in full.
3.2 Reimbursable Expenses. Client or its designee shall reimburse Mobivity for any out-of-pocket expenses that Client approves in writing in advance of both the associated fees and the act itself that Mobivity incurs in the performance of Services hereunder (including, without limitation, travel and lodging expenses, long-distance calls, or unusual material or supply costs). Client shall not be responsible for any expenses not approved in writing in advance. Mobivity shall invoice Client for any such reimbursable expenses on a monthly basis.
3.3 Payment of Fees. All payments by Client to Mobivity hereunder shall be due and payable as provided in Client’s Mobivity Service Agreement. Late payment(s) shall bear interest at the rate of one percent (1.0%) per month, or the highest rate permitted by law, if less. If Client accrues unpaid balance(s) over forty-five (45) days past due, Mobivity, at its sole discretion, may disable Client access to the Licensed Applications and/or discontinue the Services upon prior written notice to Client. Client shall pay Mobivity’s technical administration fee, as then in effect, to reactivate any suspended Licensed Applications and/or Services.
4. CLIENT CONTENT & DATA LICENSES.
4.1. License to Client Content. Client grants to Mobivity a worldwide, non-exclusive, royalty-free, fully-paid, right and license to access, use, reproduce, modify, distribute, create derivate works, publicly perform, publicly display, digitally display, and digitally perform Client Content (including, without limitation, any modifications, enhancements or derivatives thereof) for the sole purposes of providing the Services to Client hereunder.
4.2 Client Ownership of End User Data. Subject to the rights granted to Mobivity herein in Sections 4.3 and 4.4, Client retains all right, title and interest in and to the data captured or obtained through the Client Marketing Activities or Client’s use of Licensed Applications or in connection with Mobivity’s provision of the Services (collectively, “End User Data”).
4.3 Limited License to End User Data. Client grants Mobivity a worldwide, non-exclusive, royalty-fee, fully paid, limited right and license to access, gather, process, use, copy, manipulate, modify and store End User Data for the purposes of providing the Services to Client hereunder.
4.4 Aggregated Blind Data. Mobivity may, from time to time, perform statistical or other analyses of End User Data, and may create aggregated data from these analyses that does not include any personally identifiable information regarding an End User or contain data that would identify Client or the data as having come from Client (“Aggregated Blind Data”). Client grants Mobivity a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, limited right and license to access, gather, process, store, use, copy, manipulate, create derivative works, and modify End User Data for the purpose of creating Aggregated Blind Data. Client acknowledges that all Aggregated Blind Data will be solely owned by Mobivity and may be used by Mobivity for any lawful business purpose, including, without limitation, analyzing and enhancing the Licensed Application and Services.
5. PRIVACY.
The Parties acknowledge that the Client Marketing Activities will collect personally identifiable information from Client’s End Users. Such data shall be collected and used in accordance with a privacy policy to be prepared by Client that will (i) comply with all Laws (as defined below), (ii) be reasonably acceptable to Mobivity and (iii) be predominantly displayed in accordance with all Laws. End Users shall be specifically required to accept the privacy policy terms in order to access or use any part of a Client Marketing Activity in which End Users are asked for personal information. The Parties agree to adhere to the terms of the privacy policy, and not to use or distribute personally identifiable information collected from End Users in any manner that is inconsistent with such privacy policy.
6. LEGAL COMPLIANCE AND TAXES.
6.1 Legal Compliance. Client will comply with all laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities arising from or related to the Client Marketing Activities or its use of the Licensed Applications or End User Data, including (without limitation): the Telecommunications Consumer Protection Act, Telemarketing and Consumer Fraud and Abuse Prevention Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 or the Children’s Online Privacy Protection Act (collectively, "Laws")
6.2. Taxes. All taxes and tax-related costs arising from use of the Licensed Applications and the Services (including, without limitation, all federal, state, county, municipal, or local sales, excise, value-added, import, export, production, registration, duties, and other taxes) shall be paid by Client.
7. TERM.
The initial term of this Agreement shall be as specified in the applicable Mobviity Services Agreement, unless earlier terminated in accordance with Section 8 below or by written agreement of the Parties. This Agreement shall automatically renew for successive one (1) year renewal terms unless a Party notifies the other Party in writing of its desire not to renew this Agreement at least sixty (60) days prior to the expiration of the then-current term.
8. TERMINATION.
8.1 Termination for Cause. This Agreement may be terminated immediately by either Party upon the material breach by the other Party of any term or condition hereof that has not been cured within thirty (30) days after the breaching Party receives written notice thereof.
8.2 Termination for Insolvency. This Agreement may be terminated immediately by either Party if all or a substantial portion of the assets of the other Party are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy, or a proceeding is commenced by or against the other Party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days, or the other Party is adjudged bankrupt.
8.3 Effects. Upon expiration or termination hereof, any amounts owed to Mobivity hereunder shall be immediately due and payable. All licenses granted herein (except for (i) the license for Client to use all Materials generated from Client’s use of the Licensed Applications, and (ii) the license set forth in Section 4.4, which is perpetual and irrevocable) shall immediately terminate. Each Party shall return to the other all Confidential Information of the other Party in its possession or control, and all access to the Licensed Applications and Services and shall be immediately terminated.
8.4 Survival. Sections 2.4, 2.5, 4.4, 5, 6.2 and 10 through 15 of these Terms will survive any termination or expiration of this Agreement.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS.
9.1 By Client. Client represents, warrants and covenants as set forth below:
9.1.1 Client will not distribute through any Mobile Message (or otherwise using the Licensed Applications or Services) any Client Content that: (i) infringes on the intellectual property rights of any third party; (ii) violates any federal, state or local law, statute, ordinance or regulation; (iii) is obscene, pornographic, or indecent; (iv) is materially inaccurate; or (v) violates any restriction contained in any agreement between Mobivity and a mobile or fixed line carrier, messaging aggregator or other Mobile Message service provider (collectively referred to herein as a “Mobile Message Provider”), provided that Mobivity provides prior written notice to Client of such restriction.
9.1.2 Client will not import into the Licensed Applications any End User Data.
9.1.3 Client will not transmit or authorize the transmission of any Mobile Message to any person or entity unless the recipient has expressly agreed in writing to receive the Mobile Message and the Client Content contained therein and has not subsequently withdrawn his/her/its consent.
9.1.4 The Client Marketing Activities and Client’s use of the Licensed Applications and Services will not violate any applicable industry guidelines, including, without limitation, the then-current version of the Mobile Marketing Association’s Consumer Best Practices Guidelines and any applicable self-regulatory guidelines applicable to the content or distribution of any Client Marketing Activity (collectively, “Industry Guidelines”).
9.1.5 The Client Marketing Activities and Client’s use of the Licensed Applications and Services (including, without limitation, Client’s use of End User Data and Client Content) will not cause Mobivity to violate any Laws or Industry Guidelines.
9.1.6 To the knowledge of Client, the Client Marketing Activities and Client Content will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party.
9.1.7 To the extent that the Licensed Applications or Services include Mobile Message gateway access or other Mobile Message delivery-related services, Client acknowledges and agrees that: (a) Mobivity’s and Client’s access to a Mobile Message delivery service is subject to the terms and conditions of (and is at the discretion of) the applicable Mobile Message Provider and Mobivity does not guarantee the availability of (or access to) any specific Mobile Message delivery service, (b) Client is responsible for ensuring that the Client Marketing Activities, the Client Content and Client’s use of the Mobile Message delivery services comply with all applicable terms and conditions of the applicable Mobile Message Provider, (c) Mobivity only undertakes to deliver Client’s Mobile Messages to the applicable Mobile Message Provider, (d) Mobivity is not responsible for the final delivery of any Mobile Message and that delivery is the responsibility of the Mobile Message Provider, (e) Mobivity sends and receives Mobile Messages via major telecommunications companies and mobile network operators, and thus Mobivity's influence over the timing of the transmission of Client’s Mobile Messages is within the technical constraints imposed upon Mobivity and Mobivity does not commit to or guarantee a specific maximum delivery time, and (f) mobile network operators and other Mobile Message Providers assign or may assign Mobile Messages with a default lifetime and any Mobile Message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the Mobile Message Provider without any notice.
9.1.8 Each Loyalty Program and related fulfillment shall be in compliance with (a) all applicable laws and regulations, (b) the terms of this Agreement, and (c) the terms of such Loyalty Program.
10. DISCLAIMER OF WARRANTIES.
EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN A MOBIVITY SERVICES AGREEMENT, THE LICENSED APPLICATIONS AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT). MOBIVITY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED APPLICATIONS OR PROVIDED BY THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR WILL OPERATE IN THE COMBINATION THAT CLIENT SELECTS FOR USE. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE LICENSED APPLICATIONS OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE LICENSED APPLICATIONS OR SERVICES WILL BE PROVIDED UNINTERRUPTED, TIMELY OR ERROR-FREE, OR THAT ANY DEFECTS IN THE LICENSED APPLICATIONS WILL BE CORRECTED BY MOBIVITY.
11. LIMITATIONS ON LIABILITY.
EXCEPT WITH RESPECT TO BREACHES UNDER ARTICLE 13 (CONFIDENTIALITY), THE LIABILITY OF MOBIVITY UNDER THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES AND IN NO EVENT SHALL MOBIVITY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION HEREWITH, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF MOBIVITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND. MOBIVITY SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMAND OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE AMOUNT OF THE FEES PAID TO IT UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PROCEEDING THE DATE SUCH CLAIM, DEMAND OR ACTION ARISES.
12. INDEMNIFICATION.
Client shall indemnify, defend and hold harmless Mobivity and its officers, directors, employees, stockholders, agents, representatives, subsidiaries, parents and Affiliates (the “Mobivity Indemnified Parties”) from all Costs arising out of or resulting from any third part Claim to the extent that such Claim arises out of: (i) any alleged breach of any representation, warranty or covenant of Client contained in this Agreement, including (without limitation) compliance with the Telecommunications Consumer Protection Act and other Laws; (ii) any negligence or willful misconduct by Client; provided that Client shall not be required to indemnify and hold harmless the Mobivity Indemnified Parties for any Claims to the extent resulting from negligence or willful misconduct of the Mobivity Indemnified Parties or (iii) the Client Content or effects of any Mobile Message that Client transmits (or authorizes the transmission of) using the Licensed Applications or the Services; or (iii) Customer’s use of the Licensed Applications or the Services.
13. CONFIDENTIALITY.
Each Party agrees that at all times during the term of this Agreement and thereafter it will not make use of, disseminate, or in any way disclose the other Party’s Confidential Information to anyone, except as authorized by this Agreement and to the extent necessary for performance hereunder. Each Party agrees that it will disclose Confidential Information only to those of its employees and contractors who need to know such information and who have previously agreed to be bound by the non-disclosure terms and conditions hereof. Each Party agrees that it will treat all Confidential Information of the other Party with the same degree of care as it accords its own Confidential Information, but in no event less than reasonable care. If either Party is directed by court order, subpoena or other legal or regulatory agency’s request or similar process to disclose any Confidential Information of the other Party, the receiving Party shall notify the disclosing Party in writing with a copy of such document attached, in sufficient detail immediately upon receipt of such court order, subpoena, legal or regulatory agency’s request or similar process, in order to permit the disclosing Party to contest such disclosure.
14. INJUNCTIVE RELIEF.
Each Party acknowledges that a violation of Sections 2 or 13 of these Terms would cause irreparable harm to the other party for which no adequate remedy at law exists and each party therefore agrees that, in addition to any other remedies available, the aggrieved party shall be entitled to seek injunctive relief to enforce the terms of Sections 2 or 13.
15. MISCELLANEOUS.
15.1 Relationship of the Parties. This Agreement shall not be construed to create any employment relationship, partnership or joint venture, or otherwise authorize either Party to enter into any commitment binding upon the other Party.
15.2 Publicity, Testimonials and Case Studies. Client will use commercially reasonable efforts to cooperate with Mobivity in the preparation of appropriate press releases, announcements, and other marketing collateral and activity regarding Client’s use of the Licensed Applications and Services. Notwithstanding the foregoing, Mobivity may publicly refer to Client as a client of Mobivity as part of its investor relations and marketing activities (e.g., sample client list or press release). Both Parties agree to a joint, mutually agreeable, press release to be issued within thirty (30) days of execution of this Agreement.
15.2.1 Press Releases. As requested by Mobivity from time to time Client will (and Client will cause each Client Affiliate to) cooperate with Mobivity in the preparation of appropriate press releases, announcements, and other marketing collateral and activity regarding Client’s and Client Affiliates’ use of the Licensed Applications and Services. Notwithstanding the foregoing, Mobivity may publicly refer to Client and each Client Affiliate as a client of Mobivity as part of its investor relations and marketing activities (e.g., sample client list or press release).
15.2.2 Testimonials. Additionally, within six (6) months from date of first installation of a Licensed Application, Client will issue a testimonial to Mobivity. Mobivity may publish that testimonial, together with Client’s name and approved logo, on Mobivity’s website, in Mobivity’s marketing materials, and other media as Mobivity may determine in Mobivity’s sole discretion. Client further agrees that Mobivity may edit the testimonial and publish edited or a partial version of the testimonial. However, Mobivity will never edit a testimonial in such a way as to create a misleading impression of the Client’s views. If Mobivity requests that Client review any edited testimonial, Client will provide Client’s feedback on the edited testimonial within five (5) business days after receipt of the request. Client may terminate the obligation to provide and Mobivity to publish testimonials by providing a thirty (30) day written notice of termination to Mobivity.
15.2.3 Case Studies. Client agrees to cooperate with Mobivity in connection with Mobivity’s preparation of at least two (2) case studies per year during the term of this Agreement. Mobivity will prepare a draft of each proposed case study and Client will (and will cause the applicable Client Affiliates to) provide non-confidential information and data for, comments and feedback regarding each proposed case study within ten (10) business days after receipt of a proposed case study from Mobivity.
15.3 Dispute Resolution. Any dispute, controversy or claim, whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory (a “Dispute”) between Mobivity and Client arising out of or relating to this Agreement, any obligations hereunder or the relationship of the Parties under this Agreement shall be settled by binding arbitration conducted in Phoenix, Arizona in accordance with the then current arbitration rules of JAMS as modified by the following provisions of this Agreement:
(a) Selection of one neutral arbitrator by the Parties shall be from JAMS panel list and shall be chosen by Mobivity and Client together; provided, that if Mobivity and Client are unable to reach agreement with respect to the arbitrator, the arbitrator shall be chosen in accordance with appointment rules of JAMS. The arbitrator shall be experienced in complex business matters.
(b) The arbitration process shall be conducted on an expedited basis by the regional office of JAMS located in Phoenix, AZ. Proceedings in arbitration shall begin no later than 45 days after the filing of the Dispute with JAMS and shall be scheduled to conclude no later than 180 days after the filing of the Dispute (including delivery of the written judgment under clause (f) below). All hearings, unless otherwise agreed to by the parties, shall be held in Phoenix, AZ.
(c) Mobivity and Client may obtain and take discovery, including requests for production, interrogatories, requests for admissions and depositions, as provided by the Federal Rules of Civil Procedure; provided that the arbitrator may, in his or her discretion, set parameters on the timing and/or completion of this discovery and may order additional pre-hearing exchange of information, including, without limitation, exchange of summaries of testimony or exchange of statements of positions.
(d) The arbitration proceedings and all testimony, filings, documents and information relating to or presented during the arbitration proceedings shall be disclosed exclusively for the purpose of facilitating the arbitration process and for no other purpose.
(e) The award of the arbitrator shall be made in a written opinion containing a concise reasoned analysis of the basis upon which the award was made.
(f) A judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(g) The Parties shall share equally the fees and costs of JAMS and the arbitrator. The prevailing Party shall be entitled to recover from the adverse Party its actual reasonable attorneys’ fees and costs incurred in connection with the arbitration and the enforcement thereof.
(h) Either Party may apply to any state or federal court located in Maricopa County, Arizona to: (i) enforce this agreement to arbitrate; (ii) seek provisional injunctive relief so as to maintain the status quo until the arbitration award is rendered or the controversy is otherwise resolved; (iii) avoid the expiration of any applicable limitations period; (iv) preserve a superior position with respect to other creditors; or (v) challenge or vacate any final judgment, award or decision of the arbitrator that does not comport with the express provisions of Section 15.3. Each Party agrees to submit itself to the jurisdiction and venue of such courts for the purposes of any such action. The prevailing Party shall be entitled to recover from the adverse Party its actual reasonable attorneys’ fees and costs incurred in connection with any such proceeding.
(i) The arbitrator is only authorized to, and only has the consent of the parties to, interpret and apply the terms and conditions of this Agreement in accordance with the governing law. The arbitrator is not authorized to, and shall not, order any remedy not permitted by this Agreement and shall not change any term or condition of this Agreement, deprive either Party of any remedy expressly provided hereunder or provide any right or remedy that has not been expressly provided hereunder. In the event that the arbitrator exceeds his or her authority under this Agreement and violates this provision, either Party may petition a court of competent jurisdiction to vacate the arbitration award on the grounds that the arbitrator exceeded his or her authority.
(j) The Federal Arbitration Act, 9 U.S.C. Sections 1 through 14 (as amended and including any successor provision), except as modified hereby, shall govern the interpretation and enforcement of this Section 15.3.
15.4 Assignment. Client may not assign its rights or delegate its duties under this Agreement without Mobivity’s prior written consent (which consent shall not be unreasonably withheld), and any purported attempt to do so shall be null and void. Subject to the foregoing, this Agreement binds the heirs, executors, administrators, successors and assigns of the respective Parties with respect to all covenants in this Agreement.
15.5 Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by any court or arbitrator of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision(s) shall be replaced by a mutually acceptable provision(s), which being valid, legal and enforceable, comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision(s).
15.6 Force Majeure. Neither Party shall be responsible for delays or failures in performance resulting from acts beyond its reasonable control and without its fault or negligence. Such excusable delays or failures may be caused by, among other things, riots, rebellions, accidental explosions, floods, storms, acts of nature, terrorism, and similar occurrences. The Party claiming such force majeure condition shall notify the other Party in writing as promptly as practicable after such Party becomes aware of the occurrence of such force majeure condition. If there is any such delay, then the periods for the completion of the Parties’ obligations hereunder shall be automatically extended by the period of such delay. In every case the Party claiming excusable delay shall exercise all commercially reasonable efforts to mitigate the extent of such delay or failure. Notwithstanding the foregoing, Client may terminate this Agreement in the event that Mobivity is unable to fulfill its obligations pursuant to this Agreement because of such excusable delays which continues in effect for ninety (90) consecutive days.
15.7 Governing Law. The validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the Parties shall be governed by the laws of the State of Arizona, without regard to its conflict of laws principles.
15.9 Mobivity Services Agreement. These Terms are incorporated by reference into each Mobivity Services Agreement. In the event of any discrepancies between these Terms and a Mobivity Services Agreement, these Terms shall prevail unless such Mobivity Services Agreement expressly states that it is intended to prevail over these Terms.
15.10 Waivers. All waivers under this Agreement shall be in writing. The failure of either Party to enforce at any time for any period any provision of this Agreement shall not be construed to be a waiver of such provision. No waiver of any right under any provision of this Agreement on any occasion shall be deemed a waiver of any other right or under any other provision or on any other occasion.
15.11 Counterparts. A Mobivity Services Agreement may be executed by facsimile or electronic means and in counterparts. Each counterpart shall be deemed an original, but all of which together shall constitute one and the same instrument.
15.12 Notices. Unless otherwise provided, notices under this Agreement shall be in writing and shall be deemed to have been given and received when delivered by hand, one day after being sent by nationally recognized overnight courier, or three business days after being sent by registered or certified mail, return receipt requested, postage prepaid, and properly addressed, to the address of the respective Parties set forth in the Client’s Mobivity Services Agreement.
15.13 Entire Agreement. Client’s Mobivity Services Agreement (incorporating these Terms) constitutes the entire agreement between the Parties with respect to the subject matter thereof, and supersedes any and all agreements or understandings, whether written or oral, between the Parties with respect to such subject matter. Any capitalized term used but not defined in a Mobivity Services Agreement shall have the meanings set forth in these Terms.
15.14 BY SUBMISSION OF A MOBIVITY SERVICE AGREEMENT, CLIENT ACKNOWLEDGES THAT CLIENT HAS READ ALL OF THESE TERMS AND THAT CUSTOMER ACCEPTS THESE TERMS IN THEIR ENTIRETY. FURTHER, CUSTOMER REPRESENTS AND WARRANTS THAT THE PERSON EXECUTING THE MOBIVITY SERVICE AGREEMENT IS OVER THE AGE OF 18 AND AUTHORIZED BY CUSTOMER TO ENTER INTO THE MOBIVITY SERVICE AGREEEMNT (INCLUDING THESE TERMS). Customer hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
