Effective Date: August 20, 2016
Recipient or Subscriber – End users that subscribe to or participate in any Platform Service for any purpose whatsoever
All of the terms in this TOU apply to users (“you” or “your”), unless we have stated otherwise. This TOU may be updated from time to time with or without notice depending on the nature of the changes. You will be notified of material changes to this Agreement as detailed below in Section 14. The most current version of the Platform Services TOU can be reviewed at any time through https://pocketstop.com/tou.
1. ACCEPTANCE OF TOU: The words “use” or “using” in this Agreement, means any time you directly or indirectly, with or without the aid of a machine or device, does or attempts to browse, access, interact with, use, display, view, download, print or copy from a Platform Service, transmit, receive or exchange data or communicate with a Platform Service, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of a Platform Service, for any purpose whatsoever.
By using any Platform Service, you understand, acknowledge and agree, without limitation or qualification, that you are bound and governed by this Agreement, including any person that will attempt to or use any Platform Service using your user ID and/or password, whether or not such use was authorized, induced, encouraged, arranged, or known by you. IF YOU DO NOT WISH TO BE BOUND OR GOVERNED BY THIS TOU, DO NOT USE ANY PLATFORM SERVICE.
2. ELIGIBILITY: Unless specified otherwise, you must have reached the age of majority or age 18 (whichever is greater) in your state of residence before using any Platform Services. By your use of a Platform Service, you hereby certify that you are at least 18 years of age and meet any other eligibility and residency requirements. You also understand, acknowledge and agree that our Platform Services are controlled and provided in the U.S. and are governed solely by domestic local, state and federal statutes, rules, regulations, guidelines, and policies (“Applicable U.S. Laws”). We make no claims that the Platform Services are appropriate or available for use in other countries, or comply with any international laws.
5. GENERAL TERMS: You understand, acknowledge and agree that the Platform Services are provided “AS IS” and that Pocketstop assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any Recipient personalization such as delivery methods or preferences.
6. SPECIFIC TERMS FOR INDIVIDUAL PLATFORM SERVICES:
A. The RedFlag Service
- Description. The RedFlag Service facilitates the distribution of a Client’s non-commercial, informational and/or emergency communications to Recipients via varying communication channels including but not limited to email, Short Message Service (AKA text messages), and voice calls. The RedFlag Service may be used to augment First Responder services that have already been notified and deployed for emergencies or public health notices. However, the RedFlag Service is not designed for use in high risk activities or in any other situation where failure of the RedFlag Services could lead to death, personal injury, or damage to property, or where other substantial damage could result if an error occurred. Client’s primary recourse in the event of any actual or potential threat to person or property should be to contact First Responders, such as but not limited to: 911, fire, police, emergency medical, and public health.NOTE: THIS SERVICE IS NOT A REPLACEMENT FOR THE COMMUNICATION TO EMERGENCY SERVICES SUCH AS POLICE, FIRE, EMERGENCY MEDICAL AND PUBLIC HEALTH SERVICES.
- Recipient RedFlag Services Consent Requirements. Recipients may be enrolled in the RedFlag Service electronically via the Client interface or the Recipient interface as designated by the Administrator. As part of the enrollment process, Recipients agree to this TOU and provide prior express consent to receive non-telemarketing, non-advertising, or non-promotional communications via mobile phone (text, prerecorded or voice), home or business phone, email, and/or other channels designated by the Recipient. Recipients have a right to withdraw consent (also called “cancel,” “unsubscribe,” or “opt-out”) from the RedFlag Service at any time and may also change the types of communication channels they wish to receive the RedFlag Service. (See Section 7 below)
- Recipient RedFlag Services Responsibilities. Recipients are solely responsible for providing current and accurate telephone number (wireless or landline), email address or other contact information that the Recipient is authorized to use. Recipients are solely responsible for maintaining the confidentiality of their account(s), user IDs and password(s) and are fully responsible for all activities, charges, and liabilities associated with an account(s). Recipients must immediately notify their Administrator of any unauthorized use of an account(s), and Recipients are responsible for any unauthorized mobile carrier charges generated through use of an account(s) until the Administrator processes such notification. Recipients may not transfer your account(s) to another person. In cases where you have authorized, registered or allowed another individual to use your account(s), you are fully responsible for (i) the online conduct of such user; (ii) controlling the user’s use of the RedFlag Services; (iii) any mobile carrier charges; and (iv) the consequences of any use or misuse.
B. Specific Terms for the SMS Platform Service
- The SMS Platform Service uses short message codes to advertise and/or promote a Client’s property, goods or services, including special events, contests or sweepstakes, or other types of campaigns via text messages. The advertising/promotional campaign may be advertised and promoted via various advertising vehicles such as but not limited to radio, television, magazine, newspaper, website, Wi-Fi, email and/or in-store signage.
- Recipient SMS Platform Service Consent Requirements. Recipients that text the designated key word to a short code in response to a specific call-to-action delivered via an advertising vehicle, a Recipient provides his or her prior express written consent to receive a telemarketing or advertising message to his or her wireless device as promoted in the call-to-action. Federal law allows an electronic signature via email, online form, text message, keypress, or a voice recording. Such text messages could contain a promotional offer, coupon or solicitation. Messages sent via the SMS Platform Service can be a single-message program (“on demand” reply messages), or a recurring-message program (subscription-based campaign). Recurring message programs are subject to a double-opt-in to confirm consent. Recipients have a right to withdraw consent (also called “cancel,” “unsubscribe,” or “opt-out”) from the SMS Platform service at any time. (See Section 7 below)
- Recipient SMS Platform Service Responsibilities. Recipients are solely responsible for providing a current and accurate mobile device number that the Recipient is authorized to use.
C. Specific Terms for the nGage Platform Service
- The nGage service facilitate the distribution of inbound communication from an SMS message to recipients via varying communication channels including but not limited to long code SMS and email. The nGage Service may be used to alert staff members of situations or issues that either members of the public, internal employees or other citizens can report by texting a message to a designated long code.
- Recipient nGage services Consent requirements. Recipients may be enrolled in the nGage Service electronically via the Client interface. As part of the enrollment process, recipients agree to this TOU and provide prior express consent to receive non-telemarketing, non-advertising, or non-promotional communications via mobile phone (text) or email. Recipients have a right to withdraw consent (also called “cancel,” “unsubscribe,” or “opt-out”) from the nGage Service at any time and may also change the types of communication channels they wish to receive the nGage Service. (See Section 7 below)
- Recipient nGage services Responsibilities. Recipients are solely responsible for providing current and accurate mobile phone number and email address. Recipients must immediately notify their Administrator of any unauthorized use of an account(s), and Recipients are responsible for any unauthorized mobile carrier charges generated through use of an account(s) until the Administrator processes such notification. Recipients may not transfer your account(s) to another person. In cases where you have authorized, registered or allowed another individual to use your account(s), you are fully responsible for (i) the online conduct of such user; (ii) controlling the user’s use of the nGage Services; (iii) any mobile carrier charges; and (iv) the consequences of any use or misuse.
7. RECIPIENT SUPPORT ISSUES, CANCELLING PLATFORM SERVICES OR CHANGING A CHANNEL OF COMMUNICATIONS:
- Recipient Support Issues.
The Platform Services are supported by all major carriers, including AT&T, Verizon Wireless, T-Mobile, Sprint, Nextel, ALLTEL, US Cellular, Boost Mobile, Dobson, and Virgin Mobile USA. For a complete list of carriers, click here. We do not promise that the Platform Services will be compatible with carriers that are not listed.We do not guarantee that the Platform Services will be error free or uninterrupted, that all mobile communication devices used by Recipients will be able to handle the Platform Services. Pocketstop only provides that its Platform Services are processed correctly and delivered to the applicable communications network. You understand, acknowledge and agree that we are not responsible for the final delivery of any communication initiated through the Platform Services, as this is out of our control and is the sole responsibility of the communications carrier.You further understand, acknowledge and agree that the Platform Services may include certain communications from Pocketstop, including service announcements and administrative messages, and that these communications are considered part of your registration, and you will not be able to opt out of receiving them unless you cancel your subscription or terminate your participation in full.
- Cancelling Platform Services and Changing a Channel of Communication.
Recipients have a right to cancel communications received via the RedFlag Service, nGage Service or SMS Service Platform at any time, and to change a channel of communication for the RedFlag Service. To exercise this right, please follow the instructions in the Pocketstop, LLC Platform Services Recipient Cancellation and Change Channel Instructions (“Instructions”) available here. The Instructions are incorporated by reference into this TOU and are part of a Recipient’s terms and conditions for use of any Platform Services. Any capitalized terms used in the Instructions have the same meaning as used in this TOU.Please follow the Instructions, as any other means used to contact your Administrator or Pocketstop does not provide the ability to verify your identity and contact information, and identify what specific Platform Service or Client campaign communication you received. The methods detailed in the Instructions are built and integrated into our platforms and operational systems, so that your cancellation or change request can be accurately and quickly implemented.IMPORTANT: By cancellation (also called unsubscribing or opting out) of any Platform Service, you understand, acknowledge and agree that you have provided your prior express consent to receive an automated text, prerecorded or email message that confirms your cancellation in accordance with Applicable U.S. Laws.
8. FEES: Recipients are not charged to use or participate in the Platform Services by Client or Pocketstop. However, standard messaging charges may apply from your wireless carrier. Data charges may also apply if you click on links / URLs embedded in text messages. Please consult your wireless carrier for applicable text messaging fees and data plan rates. Recipients understand, acknowledge and agree that under no circumstances will Pocketstop or its Clients be responsible for wireless carrier’s fees or charges.
9. INTELLECTUAL PROPERTY RIGHTS: You understand, acknowledge and agree that all rights, titles, interests, trademarks and copyrights in and to the software, material, information, logos, text, graphics, audio, video, photos, service names, training materials, and other data, any underlying technology used in connection with the Platform Services, and any documentation, plus any individual component of the Platform Services including short codes, and any copies thereof (collectively “Pocketstop Content”) are owned by Pocketstop, its suppliers, licensors and/or Operational Service Providers. Pocketstop, its suppliers, licensors and/or Operational Service Providers retain ownership of the software and the Platform Services, any portions or copies thereof, any derivative works, and all rights therein as applicable. We reserve all rights not expressly granted to you.
10. OTHER CONTENT: You acknowledge that Pocketstop is not obligated to pre-screen any content from a Client or a Recipient that it does not control or own (“Other Content”) but that Pocketstop shall have the right (but not the obligation) in its sole discretion to refuse or remove Other Content. Without limiting the foregoing, Pocketstop has the right to remove any Other Content that violates this TOU or is otherwise objectionable. You understand, acknowledge and agree that Pocketstop may retain Other Content and may disclose the Other Content if required to do so by law or in the good faith belief that any such retention or disclosure is reasonably necessary to comply with legal process, enforce the TOU, respond to claims that any content violates the rights of third parties or to protect the rights, property or personal safety of Pocketstop employees, its users and the public.
The Platform Services may also provide offers from Clients or other third parties. These offers can be redeemed through the participating Client or third party. You understand, acknowledge and agree that Pocketstop is not responsible for the content and redemption policies of these offers. Please contact the appropriate Client or third party if you have any questions concerning the offer, its presentation, or its redemption terms.
11. THIRD PARTY LINKS: Some links on the Platform Services lead to websites or online services posted by independent website/online service owners. Because we have no control over these websites/online services, you understand, acknowledge and agree that these links are provided solely as a convenience to you and not as an endorsement by Pocketstop of the content, advertising or business practices (including the privacy policies) of such third party websites or services, whether Pocketstop’s logo or name is on the third party website or service. These third party websites or services may have different privacy policies and business practices than we do. Therefore, we do not endorse, verify, make any representations, or take responsibility for the content, truthfulness, accuracy, quality or completeness of the content or activities conducted on such websites or services. Therefore, you understand, acknowledge and agree that Pocketstop, and its officers, directors, shareholders, employees, licensors, representatives, agents, and Operational Service Providers and the successors and assigns of any of them (collectively, the “Pocketstop-Related Entities”) will not, under any circumstances, be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on the content, advertising or business practices of linked third party sites. IF YOU DECIDE TO ACCESS AND USE LINKED THIRD PARTY WEBSITES, YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT YOU DO SO AT YOUR OWN RISK.
12. MODIFICATIONS, SUSPENSION, DISCONTINUANCE AND/OR TERMINATIONS OF THE PLATFORM SERVICES: Pocketstop reserves the right at any time and from time to time at its discretion to add, modify, suspend, discontinue, or terminate, temporarily or permanently, any Platform Service (or any part thereof), any features, nomenclature, and/or make any other changes that will be subject to this Agreement with or without advance notice to you. You understand, acknowledge and agree that Pocketstop will not be liable to you or to any third party for any modification, suspension, discontinuance, and/or termination of the Platform Services.
13. TERMINATION OR SUSPENSION OF YOUR ACCOUNT OR USE OF THE PLATFORM SERVICES: You understand, acknowledge and agree that Pocketstop may terminate, suspend or block your account or your use of all or part of the Platform Services, at its discretion and without prior notice, for any reason and without refund, including, without limitation, if we believe you have engaged in conduct prohibited by this TOU. You agree that upon your termination or suspension for any reason, we may delete all information related to you on the Platform Services.
14. NOTIFICATION OF MATERIAL CHANGES TO THIS TOU: We will post a notice of any material changes to this TOU on the Pocketstop website. Your continued use of the Platform Services after such posting will indicate that you agree to any such changes. If you do not agree to any such changes, your only option is to terminate your use of the Platform Services.
15. DISCLAIMER OF WARRANTIES: YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PLATFORM SERVICES IS AT YOUR OWN RISK. NEITHER POCKETSTOP NOR THE POCKETSTOP-RELATED ENTITIES WARRANT THAT THE PLATFORM SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM SERVICES, OR ABOUT THE SUITABILITY, ACCURACY, RELIABILITY, LEGITIMACY, LEGALITY, VALIDITY, CORRECTNESS, RELIABILITY, QUALITY, STABILITY, COMPLETENESS, OR CURRENTNESS OF ANY CONTENT OR INFORMATION CONTAINED ON THE PLATFORM SERVICES. THE PLATFORM SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AUDIENCE, AND NON-INFRINGEMENT.
16. LIMITATION OF LIABILITY: IN NO EVENT WILL POCKETSTOP OR THE POCKETSTOP-RELATED ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DIRECT, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (EVEN IF POCKETSTOP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE PLATFORM SERVICES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOST BUSINESS, LOST DATA, COMPUTER FAILURE OR MALFUNCTION, PERSONAL INJURY, DEATH OR ANY AND ALL OTHER DAMAGES OR LOSSES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO RECIPIENT DATA RECORDS, PROGRAMS, OR SERVICES.
TO THE EXTENT THAT ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE U.S. LAW, THEN WE WILL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY. NOTWITHSTANDING THE FOREGOING, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL POCKETSTOP OR THE POCKETSTOP-RELATED ENTITIES BE LIABLE FOR ANY AGGREGATE DAMAGES OR LIABILITY ARISING UNDER THIS TOU OR YOUR USE OF THE PLATFORM SERVICE THAT EXCEED $500 U.S.
THE REDFLAG SERVICE IS INTENDED TO MERELY SUPPLEMENT ANY EMERGENCY NOTICE WHICH SHOULD BE ORDINARILY GIVEN. THERE IS NO GUARANTEE THAT ALL PERSONS INTENDED TO BE CONTACTED WILL BE CONTACTED USING THE REDFLAG SERVICE. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT POCKETSTOP ACCEPTS NO RESPONSIBILITY FOR ANY FAILURE OF THE REDFLAG SERVICE TO CONTACT ANY PERSON OR PERSONS, AND NEITHER POCKETSTOP NOR THE POCKETSTOP-RELATED ENTITIES ARE RESPONSIBLE FOR ANY DAMAGE OR INJURY THAT RESULTS FROM FAILURE TO CONTACT ANYONE.
17. INDEMNIFICATION: You agree to indemnify and hold Pocketstop and the Pocketstop-Related Entities harmless from any claims, actions, costs, losses, penalties, fines or forfeitures, demands, damages, including reasonable attorney’s fees and costs, made by any third party due to or arising out of Other Content submitted, posted to, emailed, or otherwise transmitted through the Platform Services, your use of the Services, your breach of this TOU, or your violation of any law or the right of another party.
18. GOVERNING LAWS: This TOU and its validity, construction and performance will be governed in all respects by the laws in the State of Texas, without regard to its choice of law provisions. You irrevocably submit to the exclusive jurisdiction of the state and federal courts having jurisdiction in the State of Texas, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
19. NON-WAIVER OF RIGHTS: The failure of Pocketstop to exercise its rights under this TOU will not be construed as a waiver of such rights, nor will it in any way affect the validity of this Agreement.
If you have any questions or comments, or wish to report and abuse of the Platform Services, please contact email@example.com, or call 877.840.2444