1. Acceptance of Terms
You may view content on the Site without registering for an account, but as a condition of using certain aspects of the Platform Services, including utilizing the messaging functions, you are required to obtain a license and create a Pocketstop account. When creating an account, you shall provide accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms, which may result in immediate termination of your account.
The Platform Services are made available for your internal business use. In entering into these Terms on behalf of a company or other legal entity, you represent that (i) you have the legal authority to bind such entity to these terms, in which case the terms “you” or “your” shall refer to such entity, (ii) no approval or other action by any governmental authority or agency, or any other individual or entity, is required in connection herewith; and (iii) you are engaged in a lawful business and are duly licensed to conduct such business under the laws and regulations of all jurisdictions in which you conduct business. If you do not have such authority or if you do not agree with these Terms, you may not sign up for or use the Services. If after your register for an account we find that you do not have authority to bind the entity for which you ordered, you will be personally responsible for the obligations in these Terms and the order you placed, including without limitation, the payment obligations. We shall not be liable for any loss or damage resulting from our reliance on any instruction, notice, document, or communication reasonably believed by us to be genuine and originating from an authorized representative of your company. If there is reasonable doubt about the authenticity of any such instruction, notice, document, or communication, we may, but are not obliged to, require additional authentication from you.
1.2 SALE AND PURCHASE. Under the terms and conditions of this Agreement, Pocketstop agrees to provide User, on behalf of Client (as further defined below), and User agrees to purchase from Pocketstop a non-exclusive non-transferable license to access and use software that provides the Platform Service(s) in accordance with the Pocketstop Order for Services. The services provided to User shall conform in every respect to this Agreement.
2.1 The term “Order” will be used herein to refer to the Pocketstop Order for Services in which Client has purchased a license to one or more of the nGage platform, the StraighTxt platform, or the RedFlag platform. The Order shall contain the price of the service, the term of the order, the number of User licenses, and the setup and support services in connection with the order.
2.2 The term “Recipient” will be used herein to refer to the end user of the Platform Service, the person who receives the communication from the User.
2.3 The term “Operational Service Providers” will be used herein to refer to independent third parties that provide internal operational support or other related services to Pocketstop.
2.4 The term “Client” will be used herein to refer to the entity or organization on behalf of whom a User is entering into this agreement.
This Agreement will have an initial term as agreed to by the parties in the Order herein, which shall commence from its effective date (the “Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for an additional term as designated in the Order, unless either party cancels this Agreement sixty (60) days prior to the expiration of the Initial Term or the Renewal Period by submitting written notice (including an email notice) to the other party.
4.1 User agrees to pay the total sales order price and applicable taxes as established in the Order in exchange for a license to access and use the Platform Service based on the payment terms outlined in this Agreement. All payments due shall be paid to: Pocketstop LLC, 5646 Milton Street, Suite 100LL, Dallas TX 75206. User understands, acknowledges and agrees that although Pocketstop may establish an installment payment plan as a convenience to User for the payment of the total sales order price pursuant to this Agreement, User is obligated to pay the full fee unless this Agreement is terminated for cause by User due to Pocketstop’s material breach of the Agreement as provided in Section 13 herein. There is no refund of any fees if this Agreement is terminated by Pocketstop due to the User’s material breach of this Agreement as provided in Section 13 herein. If User believes that Pocketstop has billed User incorrectly, User must contact Pocketstop no later than 45 calendar days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
4.2 Pocketstop reserves the right to add or increase current fees during the contract period for additional functionality provided to the Platform Services in the form of materially updated functionality modules. User reserves the right to add new functionality modules to their existing service contract and to refuse adding them if they do not desire the new functionality. Provided, however, that User, on behalf of the Client may, terminate this Agreement upon receipt of notice from Pocketstop of changes to the fees. User’s continued use and access of the Platform Services following the effective date of any changes to the fees means, however, that User accepts those new fees.
4.3 User, on behalf of Client shall provide Pocketstop with a copy of a current tax exemption certificate, if the Client claims any exemption from sales or use taxes.
5. LICENSES, ACCESS AND USE OF THE SERVICE.
5.1 License. Pocketstop hereby grants Client a limited, non-exclusive, nontransferable right to access and use the Platform Service (subject to the payment by User of any and all fees) through the website located at www.Pocketstop.com (the “Site”), solely for the Client’s internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Client are reserved by Pocketstop, its Operational Service Providers, and/or its licensors. The Client understands, acknowledges and agrees that Pocketstop is an independent third party business acting as a contractor, vendor, or operational service provider to Client, and not as an employee, partner, dealer, licensee, franchisee, joint venturer, or agent to Client, except for the solicitation and acceptance of orders for the Platform Service pursuant to the terms and conditions of this Agreement. Client further understands, acknowledges and agrees that Pocketstop may add additional features to the current Platform Service, change or eliminate features, change nomenclature, and/or make other changes to the Platform Service and/or platform at any time which will be subject to this Agreement with or without advance notice to Client. Provided, however, that User may, on behalf of Client, terminate this Agreement upon receipt of notice from Pocketstop of changes to this Agreement. User’s continued use and access of the Platform Services following the effective date of any changes to the fees means, however, that User accepts the modified features or terms.
5.2 Intellectual Property, Trademarks and Copyrights. 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 Service, and any documentation, plus any individual component of the Platform Service(s) 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 Service(s), any portions or copies thereof, any derivative works, and all rights therein as applicable. Pocketstop reserves all rights not expressly granted to Client.
5.2.1 Pocketstop hereby grants Client a limited, non-exclusive non-transferable license to use the Pocketstop Content for the sole delivery of the Platform Service. This Agreement does not grant Client any additional rights not expressly provided herein in connection with any Pocketstop Content. Except as expressly authorized by Pocketstop or as may be posted on the Platform Service, Client may not copy, reproduce, publish, distribute, modify, create derivative works of, rent lease, sell, transfer, display, transmit, compile or collect in a database, or in any manner commercially exploit any part of the Pocketstop Content, in whole or in part.
5.2.2 If applicable to the specific Platform Service purchased by the User on behalf of the Client in the Order, Pocketstop shall configure messages sent by User to Recipients such that when received, the message(s) will be “white labeled” and configured to reflect that the Client is the provider of the message. To facilitate white labeling, Client hereby grants Pocketstop a limited right to use any and all logos, designs, trademarks, content, data, videos, and ideas provided by the User (“Client’s Intellectual Property”) to provide white labeling. This limited license shall expire upon the termination of this agreement.
5.3 Access. Users may access the Site by desktop or mobile device inclusive of both iOS and Android operating systems. Users must have reached the age of majority or age 18 (whichever is greater) in the User’s state of residence. Passwords provided for Platform Service access and use may be used only by Users. Neither Client nor any of its Users shall divulge, sublicense, assign or transfer to any third party, passwords established for access to the service. User, on behalf of Client, is solely responsible for obtaining all equipment and approvals necessary for connection to the Internet and all charges associated with such connection to the Internet. Pocketstop supports the Internet browsers listed at www.Pocketstop.com/support. If User elects to access the Platform Service via a different browser, User understands, acknowledges and agrees that the Platform Service may not be at its optimal use, or certain features may be unavailable.
5.4 Use of Service. User may only use the Platform Service as outlined in this Agreement or any supplemental terms. If Pocketstop determines, at its sole discretion, that the User’s use of the Platform Service is in violation of this Agreement or any supplemental terms or in any other manner that Pocketstop deems to be unreasonable or excessive, then Pocketstop may suspend User’s service, terminate or decline to renew this Agreement, or offer Client a different service plan.
5.5 Operational Service Providers. Pocketstop may, from time to time, in its sole discretion, engage third parties to perform operational support or other related services to Pocketstop.
5.6 Third Party Licensors. The Platform Services may operate, interface or be delivered with software or other technology that is licensed from and owned by third parties (“Third-Party Licensors”). User agrees that (i) it will use third party material in accordance with this Agreement, (ii) no Third-Party Licensor makes any representation or warranty to User concerning the Platform Services, and (iii) no Third-Party Licensor will have any obligation or liability to User as a result of this Agreement or User’s use of the Platform Services.
5.7 Prohibited Use. User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform Services or any software, documentation or data related to the Platform Services (“Software”); modify, translate, or create derivative works based on the Platform Services or any Software (except to the extent expressly permitted by Pocketstop or authorized within the Platform Services); use the Platform Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
6. REPRESENTATIONS AND WARRANTIES.
6.1.1 User further represents and warrants that it shall not, nor shall it knowingly permit others to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the licensed software, the Platform Service, Site, or the Pocketstop Content in any way; (ii) modify or make derivative works based upon the licensed software, the Platform Service, Site, or the Pocketstop Content; (iii) create internet “links” to the service or “frame” or “mirror” any content on any other server or wireless or Internet based device; (iv) use the Platform Service or Site in connection with the delivery or transmission of unsolicited messages (commercial or otherwise) or spamming that is in violation of applicable Laws; (v) create a false identity, or forged email address, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message; (vi) impersonate any other person or entity or misrepresent User’s affiliation with any other person or entity; (vii) use the Platform Service to create or distribute any images, sounds, messages or other materials, which are obscene, harassing, racist, malicious, fraudulent or libelous, nor use the Platform Service for any activity that may be considered or are unethical, immoral, or illegal; (viii) transmit through the Platform Service unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature; (ix) transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity, and privacy; (x) send or store any material that contains software viruses, Trojan horses, worms, or any other harmful computer code, files, scripts, agents or programs; or (xi) disrupt the integrity or interfere with the operations or performance of the Platform Service or Site, including Pocketstop’s servers, terminals, equipment, systems or networks, or violate the regulations, policies or procedures of any telecommunications carrier.
6.1.2 User also understands, acknowledges and agrees that although Pocketstop may offer suggestions or information regarding compliance with applicable Laws pertaining to the call-to-action for a marketing or promotional campaign, the content of User’s message or the requisite consent from Client’s Recipients that authorize the participation in a campaign and the delivery of any Platform Service message, the User represents and warrants that it is solely responsible and fully liable for: (i) the content of any call-to-action and publication of the call-to-action via print, broadcast, or any other communications medium; (ii) the content of any message sent using the Platform Service (including any disclosures and required commands such as STOP or HELP); (iii) securing the proper scope of consent from its Recipients via the appropriate mechanisms or platforms; and (iv) retaining the required tangible documentation of any such consent.
6.1.3 Excluded messages in connection with emergency alerts or emergency response, User agrees to schedule messages to Recipients responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, pictures or videos for inclusion in any outbound messages. If you are unfamiliar or unclear on the legalities of any message that you intend to initiate through the Services, you must consult with your attorney prior to your use of the Platform Services.
6.1.4 You agree to provide legally required contact information in any outbound message when and where required by any applicable local, state, national or international law or regulation. You further agree that Pocketstop is, under no circumstances, responsible for the contents and/or accuracy of your messages and Pocketstop will only transmit them on a basis of good faith that you use the Services in accordance with these Terms. You are solely responsible for providing the content of all messages initiated by you through the Services. Pocketstop will not be liable for any misuse of the Services by you. Pocketstop is not responsible for the views and opinions contained in any of your messages or broadcasts.
6.1.5 Pocketstop also reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce the Terms, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to User support requests; or (v) protect the rights, property or safety of Pocketstop, our Users and the public.
6.3 If any of the Platform Services are, or in Pocketstop’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party intellectual property right, or if Client’s or any User’s use of the Platform Services is enjoined or threatened to be enjoined, Pocketstop may, at its option and sole cost and expense: (a) obtain the right for Client or User to continue to use the Platform Services as contemplated by this Agreement; (b) modify or replace the Platform Services, in whole or in part, to seek to make the Platform Services (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute Platform Services, as applicable, under this Agreement; or (c) by written notice to Client, terminate this Agreement with respect to all or part of the Platform Services, and require Client to immediately cease any use of the Platform Services or any specified part or feature thereof. THIS SECTION 6.3 SETS FORTH CLIENT’S SOLE REMEDIES AND POCKETSTOP’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
6.4 The provisions in this Section 6 are material terms to this Agreement and shall survive termination or expiration for any reason.
7.1 Pocketstop does not own any data, information or material pertaining to the end user of the Platform Service that the User submits via the Platform Service platform in the course of using the Platform Service (“Recipient Data”). Recipient Data includes, but is not limited to, a Recipient’s personally identifiable information such as name, postal address, email address, mobile telephone number, IP Address, and any information associated with or linked to the aforementioned personally identifiable information, or if directly associated with or reasonably linked to a Recipients account, computer or device (collectively, “Recipient Personal Information”). Ownership of all Recipient Data shall remain vested in Client and Client shall have sole and exclusive ownership of all rights, titles, and interests in and to the Recipient Data. Client hereby grants to Pocketstop and its Operation Service Providers the non-exclusive, non-transferable right during the Term of this Agreement to access and use Recipient Data only as necessary for Pocketstop’s performance under this Agreement. Pocketstop shall not sell, lease or disclose to any unauthorized third party or use the Recipient Data except solely for the performance of the Platform Services. User shall have the sole responsibility for the input, accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Recipient Data. Pocketstop shall not be responsible or liable for its or User’s deletion, correction, destruction, damage loss or failure to store any Recipient Data. User shall maintain a copy(ies) of all Recipient Data. User is solely responsible for adherence to any privacy act or regulation regarding such Recipient Data and Pocketstop has no responsibility with respect to the same, except for Pocketstop’s obligation to reasonably protect any such Recipient Data in its possession or when providing the Platform Service. Regarding any self-registration portal tool licensed by User through Pocketstop, User shall assume all duties, obligations and compliance with any applicable Laws regarding its use, including but not limited to the gathering, storage and dissemination of such Recipient Data. User understands, acknowledges and agrees that these duties and obligations are non-delegable by Client to Pocketstop.
7.2 User, on behalf of Client, represents, warrants and covenants to Pocketstop that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Recipient Data so that, as received by Pocketstop and used in accordance with this Agreement, Pocketstop does not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law. Specifically, Client represents that Client has obtained recipient consent for Pocketstop to send communications to recipients on behalf of Client through the Platform Services without condition of purchase.
8.DATA SECURITY POLICY AND HOSTING CENTER POLICY.
8.1 Pocketstop’s Data Security Policy and Hosting Center Policy are available upon request. Pocketstop reserves the right to modify these policies in its reasonable discretion from time to time to reflect updated business practices, the use of new technology or adoption of new Laws. Note that because the Platform Services are hosted, online applications, Pocketstop may need to notify all Users of the Platform Service of important announcements regarding the operation of the service and will use Users information for that purpose.
8.2 User has and will retain sole responsibility for: (a) all Client Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Client or any User in connection with the Platform Services; (c) Client’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by User or through the use of third-party services (“Client Systems”); (d) the security and use of Client’s and its Users’ access credentials; and (e) all access to and use of the Platform Services directly or indirectly by or through the Client Systems or its Users’ access credentials, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.9
9. SETUP, TRAINING, AND SUPPORT SERVICES.
Support: Subject to this Agreement and provided that Client pays all applicable fees related to the Platform Service, Pocketstop shall provide Client with support as outlined at http://Pocketstop.com/support.
10. ADDITIONAL OBLIGATIONS REGARDING PLATFORM SERVICE PERFORMANCE.
10.1 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform Services, including, without limitation, modems, mobile communication devices, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, User account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of User account or the Equipment with or without Client’s knowledge or consent.
10.2 Client shall at all times during the Term: (a) set up, maintain and operate in good repair all Client Systems on or through which the Platform Services are accessed or used; and (b) provide all cooperation and assistance as Pocketstop may reasonably request to enable Pocketstop to exercise its rights and perform its obligations under and in connection with this Agreement.
10.3 Client understands, acknowledges and agrees that: (i) the Platform Service is run by software that is designed to be active 24 hours per day, 365 days per year; however, software in general is not error-free and the existence of any errors in Pocketstop software used to deliver the Platform Service shall not constitute a breach of this Agreement; (ii) in the event that Pocketstop discovers a material error or problem with Client’s equipment or interface which substantially affects Client’s use of the Platform Service, Pocketstop shall use reasonable measures to restore access to Client’s service, provided that such error or problem has not been caused by incorrect use, abuse or corruption of the Platform Service software or by improper use of the Platform Service by Client with other software or on equipment which it is incompatible, or by a third party or unauthorized person accessing the service through the Client’s passcodes.
10.4 Pocketstop only provides that the Platform Services are processed correctly and further transmitted by Pocketstop to the applicable downstream network. Pocketstop is not responsible for the final delivery of any communication initiated by you through the Services, as this is out of our control and is the responsibility of downstream communications carriers. Pocketstop transmits and receives voice, SMS, and MMS messages via other major telecommunications companies and mobile network operators, and thus Pocketstop’s influence over the timing of the transmission of your messages is within the technical constraints imposed upon Pocketstop. While Pocketstop shall use commercially reasonable efforts to transmit your messages and broadcasts to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of your messages across the public switched telephone network and/or Internet. You should know that communications carriers assign messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. Pocketstop is not liable for any loss incurred by the failure of a message to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from Pocketstop for any such non-deliveries. Furthermore, you agree that message contents are deemed to have zero value.
10.5 IF POCKETSTOP’S SERVICE IS USED IN EMERGENCY SITUATIONS, THEN THE SERVICE IS INTENDED TO ONLY INCREASE THE NOTICE WHICH SHOULD BE ORDINARILY GIVEN. THERE IS NO GUARANTEE THAT ALL PERSONS INTENDED TO BE CONTACTED WILL BE CONTACTED USING THE PLATFORM SERVICE. CLIENT UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT POCKETSTOP ACCEPTS NO RESPONSIBILITY FOR ANY FAILURE OF POCKETSTOP’S SERVICE TO CONTACT ANY PERSON OR PERSONS AND IS NOT RESPONSIBLE FOR ANY DAMAGE OR INJURY THAT RESULTS FROM FAILURE TO CONTACT ANYONE.
10.6 Disclaimer of Warranties: EXCEPT FOR THE EXPRESS WARRANTIES CONTAINTED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS IS” AND POCKETSTOP HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND POCKETSTOP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, POCKETSTOP MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
10.7 Electronic Communications Privacy Act Notice (18 USC §2701-2711): POCKETSTOP MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SERVICES OR ANY WEBSITE LINKED TO THE SERVICES. Pocketstop will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other content stored on the Pocketstop’s equipment, transmitted over networks accessed by the Services, or otherwise connected with your use of the Services.
10.8 The warranties in this Section 10 will not apply to any defects or problems caused in whole or in part by: (i) defects in any Client equipment; (ii) failure of any portion of Client equipment to function in accordance with manufacturers’ specifications; (iii) failure of Client to follow Pocketstop’s most current instructions for proper use of Client’s equipment with Pocketstop’s licensed software and the Platform Service; (iv) abuse, negligence, or misconduct of Client or any person using Client’s account and/or passwords to access or use the Platform Service; (v) delayed transmission or delivery of messages, service failures; or any actions taken by a wireless carrier or network; and (vi) causes beyond the reasonable control of Pocketstop, including but not limited to, flood, riot, fire, judicial or government action, labor dispute, or acts of God .
10.9 The provisions in this Section 10 are material terms to this Agreement and shall survive termination or expiration for any reason.
11. LIMITATION OF LIABILITY.
EXCEPT FOR OBLIGATIONS OF INDEMNIFICATION HEREIN, IN NO EVENT WILL Pocketstop NOR ITS AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, OPERATIONAL SERVICE PROVIDERS, LICENSORS, REPRESENTATIVES, AND AGENTS, AND THE SUCCESSORS AND ASSIGNS OF ANY OF THEM (COLLECTIVELY “Pocketstop-RELATED PARTIES”) BE LIABLE TO CLIENT FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, (EVEN IF Pocketstop HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE OR SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR ARISING OUT OF OR RELATED TO THIS AGREEMENT. POCKETSTOP’S TOTAL LIABILITY TO CLIENT HEREUNDER, IF ANY, WILL IN NO EVENT EXCEED THE TOTAL AMOUNT DUE TO POCKETSTOP HEREUNDER DURING THE INITIAL TERM OF THE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
12.1 Client shall indemnify, defend, and hold harmless Pocketstop and it’s related parties, from and against all liabilities, claims, actions, losses, costs, penalties, fines or forfeitures, expenses (including without limitation reasonable attorneys’ fees), and any damages resulting from, incident to, or in connection with any negligent acts, omissions or misconduct by Client, Client’s use of the Platform Service that violates the rights of a Recipient or another third party, and any material breach of this Agreement by Client or by any person using Client’s account and/or passwords. Pocketstop shall indemnify, defend and hold harmless Client, its affiliates and each of their respective Users, directors, officers, shareholders, employees, licensors, representatives, and agents, and the successors and assigns of any of them (collectively “Client Indemnified Parties”), from and against all liabilities, claims, actions, losses, costs, penalties, fines or forfeitures, expenses (including without limitation reasonable attorneys’ fees), and damages resulting from, incident to, or in connection with any claims that the licensed software or Pocketstop Content infringes on the rights of others, or any negligent acts or misconduct by Pocketstop, or any material omission by Pocketstop relied upon by Client to enter into this Agreement, and any material breach of this Agreement.
12.2 Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 12.1. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 12.2 will not relieve the Indemnitor of its obligations under this Article 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12.3 The Indemnitee reserves the right to assume the defense and control of any matter subject to indemnification by the Indemnitor, in which event the Indemnitor will cooperate with the Indemnitee in asserting any available defenses. The Indemnitee shall not settle or compromise any such third party claim without the consent of the Indemnitor, which consent shall not be unreasonably withheld, denied, or delayed.
12.4 The provisions in this Section 12 are material terms to this Agreement and shall survive the termination or expiration of this Agreement for any reason.
13. TERMINATION AND SUSPENSION.
This Agreement may be terminated or suspended as follows:
13.1 If Client fails to pay the full amount due as agreed to by the parties in the Order herein to Pocketstop within ten (10) business days after receiving written notice of such failure from Pocketstop, Pocketstop may suspend the delivery of the Platform Service until such payment is made. The Agreement’s term(s) will continue to run and renew as provided in Section 3.
13.2 Notwithstanding anything to the contrary contained in this Agreement, Pocketstop may temporarily suspend the Platform Service immediately, without notice, if: (i) the suspension is in accordance with an order, instruction, or request from a law enforcement agency, emergency service entity, or any other governmental entity having appropriate jurisdiction; and (ii) if interruption of the Platform Service is necessary to prevent or protect against fraud or otherwise protect Pocketstop or its licensors and Operational Service Providers, or personnel, facilities, systems, or networks. The suspension shall be without prejudice to any other right or remedy Pocketstop may have arising out of this Agreement. This Section 13.2 does not limit any of Pocketstop’S other rights or remedies, whether at law, in equity or under this Agreement.
13.4 In the event of Pocketstop’s termination of this Agreement for cause, Client will pay Pocketstop for all fees due, including any expenses and services provided up to the date of termination within seven (7) calendar days of notice of termination of the Agreement.
13.5 Except as otherwise provided herein, this Agreement may be terminated by either party for cause at any time with thirty (30) days written notice to the other party provided that the non-terminating party has an opportunity to cure any such breach within ten business (10) days after receipt of such written notice. Material breaches subject to immediate termination are: (i) the representations and warranties related to the security and protection of Recipient Personal Information by both parties, and Client’s protection of the Platform Service as detailed in Sections 6.1.1(ix) and 6.1.1. (x) herein; and (ii) compliance with applicable Laws in Section 6.1 herein. For such material breaches that are not subject to a cure period, the non-breaching party shall have the discretion to immediately terminate the Agreement with written notice to the other party.
13.6 Upon expiration or termination for any purpose, the parties agree that they will meet, negotiate and agree upon the terms and conditions of a ramp-down and/or transition process, and timeframe that will be completed and implemented no later than the effective termination date of the Agreement as stated in the notice of termination, or provided in this Agreement.
13.7 Upon termination and satisfaction of all payments due, Pocketstop shall return all Recipient Data in a secured manner at no charge to Client upon request. Otherwise, Recipient Data will be destroyed ninety (90) days after termination or expiration of this Agreement.
13.8 Upon termination for any reason, all SMS short codes automatically revert to Pocketstop. Client understands, acknowledges and agrees that it has no rights, titles, or interests in any short code provided by Pocketstop.
13.9 Sections 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, and 16 will survive termination or expiration of this Agreement for any reason.
Pocketstop may issue one or more press releases announcing and promoting Client’s use of the Platform Service, and create various forms of collateral materials, including brochures, website content and related materials, provided, Pocketstop complies with Client’s trademark use policy.
15. DISPUTE RESOLUTION.
It is Pocketstop’s goal that the Services meet your expectations and live up to our promises to you. However, there may be instances when you feel that Pocketstop has not fulfilled its obligations or you may have a different type of problem or dispute that needs special attention. In those instances, Pocketstop is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with Pocketstop, you acknowledge and agree that you will first give Pocketstop an opportunity to resolve your problem or dispute. In order to initiate this dispute resolution process, you must first send us a written description of your problem or dispute within thirty (30) days of the Services being performed by sending an email to: support@Pocketstop.com or by mail to Pocketstop, LLC, 5646 Milton Street, Suite 100LL Dallas, TX 75206. You then agree to negotiate with Pocketstop in good faith about your problem or dispute for at least sixty (60) days after Pocketstop’s receipt of your written description of it.
16.2 Except as otherwise provided in Section 13, notice shall be provided as follows:
Notice to Pocketstop should be addressed to Pocketstop LLC, 5646 Milton Street, Suite 100LL Dallas, TX 75206.
We may give notice by means of a general notice on the Site, electronic mail to the email address linked to your account, or by written communication sent by first class mail or pre-paid post to your address in your account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or text). You may give notice to us, with such notice deemed given when received by us, at any time by first class mail or pre-paid post to the address set forth above or at such other address as we may advised from time to time, pursuant to this provision.
16.3 This Agreement shall be construed in accordance with the laws of the State of Texas without regard to its conflict of laws provisions. Pocketstop and Client shall submit to the jurisdiction of the State and Federal courts located in Dallas County, Texas.
There may be additional state specific rights and obligations relating to the provision of the Services. Such rights and obligations shall supersede any terms to the contrary otherwise contained in these Terms.
16.4 Client understands, agrees and acknowledges that any breach of the provisions regarding ownership contained in this Agreement shall cause Pocketstop irreparable harm and Pocketstop may obtain injunctive relief as well as seek all other remedies available to Pocketstop in law and in equity.
16.5 Client shall not assign its rights under this Agreement, unless with the written approval of Pocketstop. This Agreement shall be binding on and inure to the benefit of the parties, their successors, and permitted assigns and legal representatives. Pocketstop may assign, transfer, or delegate any of its rights and obligations hereunder without consent.
16.6 The failure of Pocketstop to exercise its rights under this Agreement will not be construed as a waiver of such rights, nor will it in any way affect the validity of this Agreement.
16.7 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
16.8 This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
16.9 If you have any questions regarding these Terms, please contact us at support@Pocketstop.com or by mail at Pocketstop LLC, Attention: Pocketstop Customer Support, 5646 Milton Street, Suite 100LL Dallas, TX 75206.
May 16, 2017