Last Updated and Effective September 29, 2020
Welcome to Pocketstop! Pocketstop LLC (together with its parents, subsidiaries, affiliates, agents, representatives, consultants, employees, shareholders, officers, and directors – collectively “Pocketstop,” “we,” “us,” or “our”) is a technology platform that enables the users of our services to deliver action oriented notifications via various channels, including but not limited to, text, voice, social media, and email, regardless of form or how sent (collectively, “Communications”) through our suite of products – RedFlag®, and M360® (collectively, the “Platform Services”) – and associated analytics services (“Analytics Services”). These legally binding terms and conditions for using the Platform Services (“Terms” or “Agreement”) shall govern any person’s access and use (“User,” “you” or “your”) of the Platform Services, Analytics Services and any related iOS and Android application(s) and operating systems, and the website located at www.Pocketstop.com, including all areas accessible through such website (collectively, the “Site”). This Agreement constitutes a binding contract between the User and Pocketstop. In all instances, it shall be construed that the User is acting on behalf of their Client (as defined below) or that User is the actual Client. Therefore, User acknowledges, understands and agrees that all terms and conditions herein will be applicable and binding on their Client as well. Pocketstop and User shall also be collectively called “Parties” and individually, a “Party.”
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 this Agreement, 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 register for or use the Services. If after you register for an account we find that you do not have authority to bind the entity for which you ordered – namely, the Client – you will be personally responsible for the obligations in these Terms and the order(s) you placed, including without limitation, the payment obligations and any legal liability. 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 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 User has purchased a license to any of the Pocketstop Platform Services. The Order shall contain the price of the service(s), 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(s), the person who receives the Communication from the User on behalf of their Client.
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, or the User is the Client itself. The Client is the person who is the official owner and ultimate sender of the Communications.
This Agreement will have an initial term and renewal terms as agreed to by the parties in the Order herein, which shall commence from its effective date (the “Initial Term”).
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 Services 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 total sales order price unless this Agreement is terminated by User 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 forty-five (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 User shall provide Pocketstop with a copy of a current tax exemption certificate, if the User or its Client claims any exemption from sales or use taxes.
5.1 License. Pocketstop hereby grants User 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 or any designated portal located at www.Pocketstop.com (the “Site”), solely for the User’s internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to User are reserved by Pocketstop, its Operational Service Providers, and/or its licensors. The User understands, acknowledges and agrees that Pocketstop is an independent third party business acting as a contractor, vendor, or operational service provider to User and Client, and not as an employee, partner, dealer, licensee, franchisee, joint venturer, or agent to User or Client, except for the solicitation and acceptance of orders for the Platform Service(s) pursuant to the terms and conditions of this Agreement. User further understands, acknowledges and agrees that Pocketstop may add additional features to the current Platform Service(s), change or eliminate features, change nomenclature, and/or make other changes to the Platform Service(s) and/or platform at any time which will be subject to this Agreement with or without advance notice to User. Provided, however, that User may 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, unless further notice or authorization is required by law.
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 Services, 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 User or Client.
5.2.1 Pocketstop hereby grants User a limited, non-exclusive non-transferable license to use the Pocketstop Content for the sole delivery of the Platform Service(s). This Agreement does not grant User or 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(s), Users 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 the Pocketstop Content, in whole or in part.
5.2.2 If applicable to the specific Platform Service purchased by the User as documented in the Order, Pocketstop shall configure Communications sent by User to Recipients such that when received, the Communication(s) will be “white labeled” and configured to reflect that the Client is the ultimate provider of the Communications. To facilitate white labeling, User hereby grants Pocketstop a limited right to use any and all logos, designs, trademarks, content, data, videos, and ideas provided by the User from their Client (“Client Intellectual Property”) to provide white labeling. This limited license shall expire upon the termination of this Agreement; however, the User understands, acknowledges and agrees that Pocketstop has a limited grace period not to exceed 48 hours to transition any Client Intellectual Property from its Platform Services.
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. Users shall not divulge, sublicense, assign or transfer to any third party, including but not limited to their Client, User IDs or passwords established for access to the service. User 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(s) via a different browser, User understands, acknowledges and agrees that a 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 Services 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.
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 understands, acknowledges, and 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 (collectively, “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.
6.1.1User 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 Services, Site, or the Pocketstop Content in any way; (ii) modify or make derivative works based upon the licensed software, the Platform Services, Site, or the Pocketstop Content; (iii) create internet “links” to the Site or Platform Services or “frame” or “mirror” any content on any other server or wireless or Internet based device; (iv) use the Platform Services or Site in connection with the delivery or transmission of unsolicited messages (commercial or otherwise) or spamming that is in violation of Applicable Laws or Industry Regulations; (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 Services to create or distribute any images, sounds, messages or other materials, which are obscene, harassing, racist, malicious, fraudulent or libelous, nor use the Platform Services for any activity that may be considered or are unethical, immoral, or illegal; (viii) transmit through the Platform Services 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 Services 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 or Industry Regulations pertaining to the call-to-action for a marketing or promotional campaign, the content of User’s Communications or the requisite consent from Recipients that authorize the participation in a campaign and the delivery of any Communications via the Platform Services, 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 Communications sent using the Platform Services (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 other third party platforms; and (iv) retaining the required tangible documentation of any such consent to include date, time, and telephone number or IP address (as applicable).
6.1.3 As a courtesy to its Users and Clients, Pocketstop may provide a sample Mobile Text Club Terms of Service (“TOS”) for Recipients. Users and their Clients understand, acknowledge and agree that Pocketstop does not represent or guarantee that this sample TOS meets all legal requirements in the User and/or Client’s state, nor is it based on the User and/or Client’s own business practices and procedures. Pocketstop recommends that Users and Clients consult with their own legal counsel to delete, modify or enhance any provision in this sample TOS, or to use their own TOS. Users and their Clients understand, acknowledge and agree that a TOS is required to be posted and lawfully maintained on the Client’s website.
6.1.4 Excluding Communications in connection with emergency alerts or emergency response as defined by Applicable Laws, User agrees to schedule Communications to Recipients responsibly and in a manner that is courteous to the Recipients in compliance with Applicable Laws and Industry Regulations pertaining to local, state, national, and international calling times. You are solely responsible for obtaining any rights or licenses to any material, including without limitation sound files, pictures or videos for inclusion in any outbound Communications. If you are unfamiliar or unclear on the legalities of any Communications that you intend to initiate through the Services, you must consult with your attorney prior to your use of the Platform Services.
6.1.5 You agree to provide legally required contact information for Client in any outbound Communications when and where required by Applicable Laws. You further understand, acknowledge and agree that Pocketstop is, under no circumstances, responsible for the contents and/or accuracy of your Communications and Pocketstop will only transmit them on a basis of good faith that you use the Platform Services in accordance with these Terms. You are solely responsible for providing the content of all Communications initiated by you through the Services. You understand, acknowledge and agree that Pocketstop will not be liable for any misuse of the Services by you, your Client or any of your vendors, agents or representatives. You further understand, acknowledge and agree that Pocketstop is not responsible for the views and opinions contained in any of your Communications.
6.1.6 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, legal process or governmental request or inquiry; (ii) enforce this Agreement, 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 employees and other 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 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 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 User, terminate this Agreement with respect to all or part of the Platform Services, and require User to immediately cease any use of the Platform Services or any specified part or feature thereof. THIS SECTION 6.3 SETS FORTH USER’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.
7.2 User represents, warrants and covenants to Pocketstop that User owns or otherwise has and will have the necessary rights and consents in and relating to the Recipient Personal Information 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 Laws. Specifically, except for the RedFlag® Platform, User represents that Client has obtained the required Recipient consent for Pocketstop to send either commercial or non-commercial Communications to Recipients o through any other Platform Service without condition of purchase.
7.3 User understands, acknowledges and agrees that it shall not send any commercial Communications for any reason using the RedFlag® Platform. Commercial Communications include but are not limited to any channel of Communication that is deemed to be or includes an advertising message, telemarketing message, or telephone solicitation as defined by Applicable Laws. For the purpose of this Agreement, a commercial Communication is defined as any email, text message, telephone call (voice, pre-recorded or automatic voice), or any form of message delivered by digital technology: 1) initiated for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services; 2) or advertises the commercial availability or quality of any property, goods, or services; or 3) a Communications sent as part of a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution. This includes but is not limited to a promotional offer, a “Free” offer, a coupon; or an upsell offer or solicitation as part of a transactional message.
7.4 The Platform Services provide Users with a number of controls that Users may use to retrieve, correct, delete or restrict Recipient Personal Information, which Users may use to assist it in compliance with Applicable Laws, including its obligations relating to responding to requests from Recipients. To the extent that User is unable to independently access the relevant Recipient Personal Information within the Platform Services, User should request assistance by sending an email to firstname.lastname@example.org. Pocketstop shall provide reasonable cooperation to assist User to respond to any requests from Recipients relating to the processing of Recipient Personal Information under the Agreement. In the event that any such request is made to Pocketstop directly, Pocketstop shall not respond to such Recipient’s request directly except as appropriate (for example, to direct the Recipient to contact User) or legally required, without User’s prior authorization. If Pocketstop is required to respond to such a request, Pocketstop shall promptly notify User and provide User with a copy of the request unless Pocketstop is legally prohibited from doing so.
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 or amended Applicable Laws. Note that because the Platform Services are hosted, Internet applications, Pocketstop may need to notify all Users of the Platform Service of important announcements regarding the operation of the service and will use User’s information for that purpose.
8.2 User has and will retain sole responsibility for: (a) all Client Intellectual Property,; (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 (collectively, “Client Systems”); (d) the security and use of its and their Client’s access credentials and Client Intellectual Property; and (e) all access to and use of the Platform Services directly or indirectly by or through the Client Systems. User’s or Client’s 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.
Support: Subject to this Agreement and provided that User pays all applicable fees related to the Platform Services, Pocketstop shall provide User with support as outlined at https://Pocketstop.com/support.
10.1 User 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, “User Equipment”). User shall also be responsible for maintaining the security of the User Equipment, User account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of User account or the User Equipment with or without User’s knowledge or consent.
10.2 User shall at all times during the Term: (a) set up, maintain and operate in good repair all User Equipment 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 Services shall not constitute a breach of this Agreement; (ii) in the event that Pocketstop discovers a material error or problem with User Equipment or interface which substantially affects User’s use of the Platform Services, Pocketstop shall use reasonable measures to restore access to the Platform Services, provided that such error or problem has not been caused by incorrect use, abuse or corruption of the Platform Services software or by improper use of the Platform Services 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 User’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 Communications initiated by you through the Platform 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 Communications is within the technical constraints imposed upon Pocketstop. While Pocketstop shall use commercially reasonable efforts to transmit your Communications 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 Communications across the public switched telephone network and/or Internet. You should know that telecommunications carriers assign Communications with a default lifetime and any Communications that cannot be delivered successfully within the lifetime assigned to it will be discarded by the telecommunications carrier without any notice. Pocketstop is not liable for any loss incurred by the failure of a Communications 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 the contents of any Communications 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 SERVICES. 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 USER’S, 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. GIVEN THAT NO COMMUNICATIONS IS 100% SECURE WHEN USING THE INTERNET OR THE PUBLIC SWITCHED NETWORK, POCKETSTOP MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATIONS OR INFORMATION TRANSMITTED ON THE PLATFORM SERVICES OR ANY WEBSITE LINKED TO THE PLATFORM SERVICES.
10.7 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 User Equipment or Client Systems; (ii) failure of any portion of User Equipment or Client Systems to function in accordance with manufacturers’ specifications; (iii) failure of User to follow Pocketstop’s most current instructions for proper use of User Equipment and Client Systems with Pocketstop’s Software and the Platform Services; (iv) abuse, negligence, or misconduct of User or any person using User’s account and/or passwords to access or use the Platform Services; (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, any “Force Majeure Event” as defined herein. A Force Majeure Event includes without limitation: (1) act of God; (2) act of local, county, state, federal or other government in its sovereign or contractual capacity; (3) act of public enemy or of war, terrorism, sabotage, civil disorder or riot; (4) flood or adverse weather conditions, including solar flare or sun outage; (5) pandemic, epidemic or quarantine; (6) labor strike, lock-out or other labor disturbance; (7) fire, explosion, power failure or blackout; (8) damage, degradation or destruction of equipment, transmission lines or telecommunications net; (9) unavailability of right-of-way, equipment or materials; (10) or any other cause beyond a Party’s reasonable control. Changes in economic, business or competitive conditions shall not be considered a Force Majeure Event.
10.8 The provisions in this Section 10 are material terms to this Agreement and shall survive termination or expiration for any reason.
EXCEPT FOR OBLIGATIONS OF INDEMNIFICATION HEREIN, IN NO EVENT WILL POCKETSTOP AND ITS OPERATIONAL SERVICE PROVIDERS, LICENSORS, , AND THE SUCCESSORS AND ASSIGNS OF ANY OF THEM (COLLECTIVELY “POCKETSTOP-RELATED PARTIES”) BE LIABLE TO USER OR 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 A FORCE MAJEURE EVENT, 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 User shall indemnify, defend, and hold harmless Pocketstop-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 User, User’s use of the Platform Services that violates the rights of a Recipient or another third party, and any material breach of this Agreement by User or by any person using User’s account, User ID and/or passwords. Pocketstop shall indemnify, defend and hold harmless User, its affiliates and each of their respective directors, officers, shareholders, employees, licensors, representatives, and agents, and the successors and assigns of any of them (collectively “User 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 User 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.
This Agreement may be terminated or suspended as follows:
13.1 User may terminate this Agreement without cause within thirty (30) calendar days of the initial purchase, by sending written notification to email@example.com and receive a full refund less any applicable set up fees.
13.2 If User 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 Services until such payment is made. The Agreement’s term(s) will continue to run and renew as provided in Section 3.
13.3 Notwithstanding anything to the contrary contained in this Agreement, Pocketstop may temporarily suspend the Platform Services 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 Services 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 13.3 does not limit any of Pocketstop’s other rights or remedies, whether at law, in equity or under this Agreement.
13.5 In the event of Pocketstop’s termination of this Agreement for cause, User 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.
13.6 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, except for material breaches as defined herein, 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 User’s compliance with Applicable Laws and Industry Regulations, and the security and protection of Recipient Personal Information in Section 6.I; (ii) User’s use and protection of the Platform Services in Section 6.1.1; and (iii) Pocketstop’s compliance with Applicable Laws and Industry Regulations, and the security and protection of Recipient Personal Information in Section 6.2 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.
13.7 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.
13.8 Upon termination and satisfaction of all payments due, Pocketstop shall return all Recipient Personal Information in a secured manner at no charge to User upon request. Otherwise, Recipient Personal Information will be destroyed in a secure manner ninety (90) days after termination or expiration of this Agreement.
13.9 Upon termination for any reason, all SMS/MMS 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.
13.10 Sections 4, 5, 6, 7, 8, 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 User or their Client’s use of the Platform Services, and create various forms of collateral materials, including brochures, website content and related materials, provided, Pocketstop complies with Client’s intellectual property use policy.
There may be instances when you feel that Pocketstop has not fulfilled its obligations under this Agreement 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) calendar days of the Platform 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) calendar days after Pocketstop’s receipt of your written description of the problem or dispute.
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 User 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 Platform Services. Such rights and obligations shall supersede any terms to the contrary otherwise contained in these Terms.
16.4 User understands, agrees and acknowledges that any breach of this Agreement or infringement of Pocketstop Content as defined in Sec. 5.2 herein 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 User shall not assign its rights under this Agreement, unless with the written approval of Pocketstop, which shall not be unreasonably delayed or denied. This Agreement shall be binding on and inure to the benefit of the Parties, their permitted successors, 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.
16.10 If you have any questions regarding this Agreement, 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.
USER HEREBY ACKNOWLEDGES THAT USER’S DULY APPOINTED REPRESENTATIVE HAS READ, UNDERSTANDS AND CONSENTS TO THIS AGREEMENT. USER’S USE OF THE PLATFORM SERVICES AND SITE IS AN ACKNOWLEDGMENT OF THIS AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
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