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Mobile Savings Terms of Service — United States
Last Updated: May 31, 2017.
About our terms of service
Welcome to Mobile Savings. We developed this mobile promotions service (the “Service”) to make it easy for you to create and easily manage mobile promotions such as coupons, gift cards, and loyalty programs online for your customers so you can focus on your own product or service.
We have tried to draft these Merchant Terms of Service to be readable to people like us. Unfortunately, the realities of the legal world make it a very difficult task. So, should you have any questions or concerns or would simply like to better understand how we do things at Mobile Savings, please do not hesitate to contact us.
Below is a quick description of the sections in this Agreement, but there are important details in the whole document, so you should read it.
The Mobile Savings Service
We provide you with software and a service to create and distribute your online mobile promotions, coupons and loyalty programs; we will respect and protect your privacy, data and personal information. You run your business, service your customers, protect your customers’ data, report & pay taxes, and observe all laws, rules, and regulations.
The Service is structured to serve a single location with a single account registration. Multiple locations require multiple accounts. If you have multiple locations, please register your primary location and contact us to establish the accounts for the additional locations.
Registering for Mobile Savings
You provide us with basic information about your company; we will seek to verify your information (we may work with third parties to do so) and approve your service account unless deemed risky by us. You give us permission to do all this, and to periodically update the information or we otherwise must decline to offer you the service.
Termination and Other Legal Terms
We can terminate this agreement at any time with 30 days written notice (especially if you do something bad). You can also terminate upon 30 days written notice. This section also includes all the legal stuff they make us add (e.g. indemnification, warranties, assignment).
Mobile Savings Terms of Service
The Terms and Conditions described here constitute a legal agreement (“Agreement”) between the sole proprietor or business organization listed as the “Merchant” on the Service registration page (sometimes referred to as “you,” “your”, “user”), and Mobile Savings. (“Mobile Savings”), (collectively with Mobile Savings referred as “we”, “our” or “us”).
Section A: The Mobile Savings Service
Our Service lets you create, distribute and redeem coupons, gift cards, and loyalty programs to your customer’s mobile devices (collectively “Passes”). You will be required to register with Mobile Savings to use the Service.
We provide the Mobile Savings Web Site and other software to enable you to use the Service. We reserve the right to require you install or update any and all software updates to continue using the Service. Our Service also includes software to help you manage your loyalty program. We will ensure the Service properly reflects your management of your programs. You are solely responsible for creating, distributing, tracking and updating the various values of your customer’s gift cards and loyalty passes from issuance to redemption.
The Service is intended for the use by you for a single business location per account. You agree to establish separate accounts for each location you serve using the Service. We reserve the right to terminate your account for any violation of this account structure without our prior written consent.
You are responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Service, including, without limitation, modems, hardware, software, and access to the Internet. You are responsible for ensuring that such equipment or ancillary services are compatible with the Service.
Authorization for Recurring Billing
By accepting this agreement, you authorize us to charge your monthly service fee for using the service by using the bank, debit or credit card account information provided in your registration form. You agree to update this information to ensure that it is valid. We reserve the right to immediately suspend your use of the Service in the event that we are unable to collect your monthly fee based on the information you have provided. Your authorizations set forth herein will remain in full force and effect until your Mobile Savings Account is closed or terminated.
We will provide you with customer service to resolve any issues relating to your Mobile Savings Account and use of our software. You and you alone, are responsible for providing service to your customers for any and all issues related to your Passes, including but not limited to issues arising from the processing of your Passes through the Service.
It is your responsibility to determine what, if any, taxes apply to the sale of your products and services and/or the payments you receive in connection with your use of the Service (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction.
Security and Fraud Controls
Mobile Savings may provide or suggest security procedures and controls intended to reduce the risk to you of fraud (“Security Controls”). These Security Controls may include processes or applications that are developed by Mobile Savings or by third parties. You agree to review all Security Controls and choose those that are appropriate for your business to protect against unauthorized transactions and, if necessary, use other procedures and controls not provided by us. Disabling or failing to properly use Security Controls increases your exposure to unauthorized transactions. Keep in mind that you are responsible for the use of lost or stolen data that is used to purchase products or services from your business. Mobile Savings will not be liable for losses resulting from use of lost or stolen data with the Service.
Privacy of Others
You represent to Mobile Savings that you are and will continue to be in compliance with all applicable privacy laws. You further represent that you have obtained all necessary rights and consents under applicable law to disclose to Mobile Savings – or allow Mobile Savings to collect, use, retain, and disclose – any Data that you provide to us or authorize us to collect, including information that we may collect directly from your end users via cookies or other means. As between you and Mobile Savings, you are solely responsible for disclosing to your customers that Mobile Savings is providing the Service for you and obtaining Data from such customers.
If you receive information about others, through the use of the Service, you must keep such information confidential and may only use it in connection with the Service. You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive our express consent to do so.
You are required to obey all laws, rules, and regulations applicable to your use of the Service (for example, those governing coupons, gift cards, gift certificates, online services, consumer protections, unfair competition, anti-discrimination, or false advertising). In addition to any other requirements or restrictions set forth in this Agreement, you shall not: (i) utilize the Service for any other use than your own business, (ii) create any pass that will not be honored at its face value, or (iii) submit any Passes for distribution that do not arise from your sale of products or services to your customers, (iv) act as a payment intermediary or aggregator or otherwise resell our services on behalf of any third party, (v) send what you believe to be potentially fraudulent Passes, or (v) use Mobile Savings in a manner that is an abuse of the Service or a violation of the rules.
You further agree not to, nor to permit any third party to, do any of the following: (i) access or attempt to access Mobile Savings systems, programs, or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way material from Mobile Savings; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau, or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service – or decompile, disassemble, or otherwise reverse engineer the Service – except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the normal operation of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; (vii) probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service. User shall not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Service, or any other customer of MOBILE SAVINGS, including any MOBILE SAVINGS account not owned by User, to its source; or (viii) otherwise use the Service except as expressly allowed under this section.
Any breach of these aforementioned constraints, entitle MOBILE SAVINGS to immediately, without the need for any notice of default or judicial intervention, block User’s access to the Service.
Suspicion of Unauthorized or Illegal Use
We reserve the right to not distribute any Passes you submit which we believe is in violation of this Agreement, any other Mobile Savings agreement, or exposes you, other Mobile Savings users, our vendors or Mobile Savings to harm, including but not limited to fraud and other criminal acts. You are hereby granting us authorization to share information with law enforcement about you, your transactions, or your Mobile Savings Account if we reasonably suspect that your use of Mobile Savings has been for an unauthorized, illegal, or criminal purpose.
Pass Network Rules
The Pass Networks, including, but not limited to, Apple and Google have established guidelines, bylaws, rules, and regulations (“Network Rules”) governing their use. You are required to comply with all applicable Network Rules that are applicable to merchants. You can review portions of the Network Rules at Apple and Google. The Pass Networks reserve the right to amend the Network Rules. Mobile Savings reserves the right to amend the Agreement at any time with notice to you as necessary to comply with Network Rules or otherwise address changes in the Service.
Disclosures and Notices
You agree that Mobile Savings can provide disclosures and notices regarding the Service to you by posting such disclosures and notices on our website, emailing them to the email address listed in your Mobile Savings Account, or mailing them to the address listed in your Mobile Savings Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered.
References to Our Relationship
You agree that, from the time you begin using the Service until you terminate your account with us, we may identify you as a customer of Mobile Savings. Neither you nor we will imply any untrue sponsorship, endorsement or affiliation between you and Mobile Savings.
Other Mobile Savings Services
From time to time we may offer you additional features or services (“Additional Services”), which may be subject to additional or different terms of service. As with this Service, you may not use these Additional Services unless you agree to the applicable terms of service. Except where expressly stated otherwise, your use of Additional Services will have no impact on the applicability of this Agreement to the Service.
Section B: Registering for Mobile Savings
The Mobile Savings Service is only made available under this Agreement to persons in the United States that operate a business selling products or services, and the Mobile Savings Service is not made available to persons to issue Passes for personal, family, or household purposes. To use Mobile Savings to issue Passes, you will first have to register. When you register for Mobile Savings, we will collect basic information including your name, company name, location and number of locations, email address, tax identification number, and phone number. If you have not already done so, you will also be required to provide an email address and password for your Mobile Savings Account.
You may choose to register as an individual (sole proprietor) or as a business organization. If you register as a business organization, you must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business and have the authority to bind the business to this Agreement. To sign up a business to use the Service, you must agree to this Agreement on behalf of the business. If you have so agreed, the term “you” will mean you, the natural person, as well as the business organization that you represent.
As part of your registration, you must provide the name under which you do business, which may be the business’s legal name or a DBA. To avoid confusion and transaction disputes, you must enter a description that clearly identifies your business.
To verify your identity, we may require additional information including your business EIN, Tax ID or social security number, driver’s license number, and date of birth. We may request for your permission to do a physical inspection at your place of business and to examine books and records that pertain to your compliance with this Agreement. Your failure to comply with any of these requests within five (5) days may result in suspension or termination of your Mobile Savings Account.
Section C: Using the Service
Logging into the Service
After registering for the Service we will create an account for you to manage the creation, distribution and redemption of Passes. You are solely responsible for the security of your login information, access to your Mobile Savings account, and any Passes or programs created by any use of your login information. Mobile Savings is not responsible for any misuse of your account that results from a failure by you to limit access to your account by your employees or others that may have access. We provide an easy method for changing the account password and strongly recommend that you monitor your account and change your password on a regular basis and as required to ensure its security.
Creating and Distributing Passes
You can create Passes and Campaigns after you create an account and login to the Mobile Savings management dashboard. You are solely responsible for the content and duration of all Passes and any campaigns, promotions, or discounts that you create and distribute. You can create and terminate Passes as you will to suit your business needs. We are not responsible for the content or duration of Passes, or the promotions, campaigns, or loyalty programs that you create and distribute with the Service.
Redemption of Passes
The redemption of Passes can be done on the mobile device or through a Point-of-Sale terminal device. You are solely responsible for honoring and redeeming all Passes issued using your account and establishing and confirming the values of any gift cards, gift certificates, or loyalty rewards values you may establish using the Service.
Reconciliations and Errors
Your Pass Transaction History will be available to you when you login to the Mobile Savings management dashboard. Except as required by law, you are solely responsible for reconciling your Transaction History with your actual Pass Transactions. You agree to notify us of any discrepancies arising from such reconciliation and verification. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover.
If you submit or cause us to process pass transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover.
Mobile Savings Fees
You agree to pay the Fees (“Fees”) assessed by us to you for providing the Service. These fees will be calculated pursuant to the Fee Schedule linked to here and incorporated into this Agreement by reference. We reserve the right to revise our Fees at any time, subject to a thirty (30) day notice period to you.
Our Collection Rights
To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from the Bank Account or credit card registered in your Mobile Savings Account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
Section D: License, Termination, and Other General Legal Terms
Your License to Use the Service; Our Trademarks
During the Term of this Agreement, Mobile Savings grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to create, distribute and mange Passes in a manner consistent with this Agreement and documentation provided to you. The Service includes our website, any software, programs, documentation, tools, Internet-based services, components, images, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by Mobile Savings. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when Mobile Savings makes these updates available. Mobile Savings may terminate this license at any time in the event that you use the Service in a manner inconsistent with this License.
We may also periodically make available certain Mobile Savings logos, trademarks or other identifiers for your use (“Mobile Savings Marks”). If we do so, you will use them subject to and in accordance with Mobile Savings’ then current Mobile Savings Marks Usage Agreement. Mobile Savings may limit or revoke your ability to use Mobile Savings Marks at any point. All rights not provided in the Mobile Savings Marks Usage Agreement are expressly reserved by Mobile Savings.
The Service is licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We own all interest, title, and other worldwide IP Rights (as defined below) in the Service and all copies of the Service.
For the purposes of this Agreement, “IP Rights” means all patent rights; copyright, including rights in derivative works; moral rights; rights of publicity; trademark, trade dress and service mark rights; goodwill; trade secret rights; and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction. Use of IP Rights Data for any purpose not expressly permitted in the Terms and Conditions or agreed to by the parties in writing is prohibited. Any rights not expressly granted in the Terms and Conditions are reserved.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Mobile Savings under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Mobile Savings does not waive any rights to use similar or related ideas previously known to Mobile Savings, or developed by its employees, or obtained from sources other than you.
The Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Service or until terminated by you or Mobile Savings.
You may terminate this Agreement upon 30 days written notice and closing your Mobile Savings Account by following the instructions on our website in your Mobile Savings Account profile. We may terminate this Agreement and close your Mobile Savings Account at any time upon 30 days written notice for any reason effective upon providing you notice in accordance with Section A.14 above. We may suspend your Mobile Savings Account and your access to the Service, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Service because of significant credit or fraud risk, or for any other reason; (ii) you do not comply with any of the provisions of this Agreement; or (iii) upon request of a Pass Network Provider.
Effects of Termination
Upon termination and closing of your Mobile Savings Account, we will immediately discontinue your access to the Service. You will not be refunded the remainder of any Fees that you have paid for the Service if your access to or use of the Service is terminated or suspended.
Upon termination you agree to (i) immediately cease your use of the Service, (ii) discontinue use of any Mobile Savings or other trademarks licensed under this Agreement, and (iii) immediately remove any Mobile Savings references and logos from your site. In addition, upon termination you understand and agree that (iv) the license granted under this Agreement shall end, (v) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, (vi) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Service, or any termination or suspension of the Service or deletion of your information or account data.
You are responsible for all liabilities arising out of or relating to your use of the Service and your breach of this Agreement. You are responsible for the issuance and use of Passes to purchase products or services from your business. You agree to reimburse your customer, Mobile Savings, and any third party designated by Mobile Savings for any and all such liability.
Mobile Savings will have the final decision-making authority with respect to Claims, including without limitation any claims that are filed with Mobile Savings by you or your customers. You will be required to reimburse Mobile Savings for your liability. You will not receive a refund of any fees paid to Mobile Savings.
Without limiting the foregoing, you agree to defend, indemnify, and hold harmless Mobile Savings, and their respective employees and agents (collectively “Disclaiming Entities”) from and against any claim, suit, demand, loss, liability, damage, action, or proceeding arising out of or relating to (i) your breach of any provision of this Agreement; (ii) your use of the Service, including without limitation any Claims, fines, fees, penalties and attorneys’ fees; (iii) negligence or willful misconduct of your employees, contractors, or agents; and (iv) all third-party indemnity obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any Pass Network or Pass issuer).
If you are liable for any amounts owed to Mobile Savings, Mobile Savings may immediately engage in collections efforts to recover such amounts from you at your cost and expense.
Representation and Warranties
You represent and warrant to us that: (a) if you are a natural person, you are at least eighteen (18) years of age or, if you are under eighteen (18) years of age, you’ve obtained the consent of your parent or legal guardian to your execution of this Agreement and use of the Mobile Savings Services in the manner prescribed by Mobile Savings; (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell products and services; (d) any transaction submitted by you will represent a bona fide transaction for permitted products or services; (e) any Passes created by you will accurately describe the products or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each customer for which you create Passes and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; and (h) you will not use the Service, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner so as to interfere with the normal operation of the Service.
THE SERVICE AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE SERVICE IS AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SERVICE OR FROM (I) MOBILE SAVINGS OR WELLS FARGO; (II) THE PROCESSORS, SUPPLIERS OR LICENSORS OF MOBILE SAVINGS OR WELLS FARGO; OR (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES” AND INDIVIDUALLY A “DISCLAIMING ENTITY”) WILL CREATE ANY WARRANTY FROM ANY DISCLAIMING ENTITY TO YOU. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER MOBILE SAVINGS NOR ITS SERVICE PROVIDERS HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PROMOTED WITH THE SERVICES, AND NEITHER MOBILE SAVINGS NOR ITS SERVICE PROVIDERS CAN ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR IS AUTHORIZED TO DO SO.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT THE SERVICE WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK – YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A PASS TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER MOBILE SAVINGS NOR IT SERVICE PROVIDERS WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
Limitation of Liability and Damages
IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED IN SECTION 8 ABOVE) BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES (AS DEFINED IN SECTION 8 ABOVE) BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR MOBILE SAVINGS ACCOUNT OR THE INFORMATION CONTAINED THEREIN, OR YOUR FAILURE TO USE OR IMPLEMENT SECURITY CONTROLS THAT ARE APPROPRIATE FOR YOUR BUSINESS.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE; (E) ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (F) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THS SECTION 9, THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO MOBILE SAVINGS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF MOBILE SAVINGS OR WELLS FARGO HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION 9 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Service is controlled and operated from facilities in the United States. Mobile Savings makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign and local laws and regulations, including but not limited to export and import regulations. You may not use the Service from a country embargoed by the United States, or if you are a person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
Disputes; Choice of Law; Jurisdiction and Venue
You agree that any disputes arising out of or relating to this Agreement or the Service shall be resolved in accordance with this Section 10.
This Agreement is governed by the laws of the State of California (without regard to its choice of law provisions). The exclusive venue for any actions or claims arising under or related to this Agreement shall be in the appropriate state or federal court located in ALAMEDA County, California. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. Our delay or failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
Right to Amend
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service or software with notice that we in our sole discretion deem to be reasonable in the circumstances, such as on our website or any other website maintained or owned by us. Any use of the Service or software after our publication of any such changes shall constitute your acceptance of this Agreement as modified.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without consent or other restriction.
Change of Business
You agree to give us at least thirty (30) days prior notification of your intent to change your current product or services types, or your trade name. You agree to provide us with prompt notification if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding.
This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
Third-Party Services and Links to Other Web Sites
No party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations under Section 10, including without limitation, Claims, fines, fees, refunds or unfulfilled products and services.
Responding to Legal Process
Mobile Savings may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order (“Legal Process”) that we believe to be valid. Where permitted, we will use reasonable efforts to provide you notice of such Legal Process by sending a copy to the email address we have on file for you. Mobile Savings is not responsible for any losses, whether direct or indirect, that you may incur as a result of our complying with Legal Process.
This Agreement and all policies and procedures that are incorporated herein by reference constitute the entire agreement between you and Mobile Savings with respect to the provision of the Service. In the event of a conflict between this Agreement and any other Mobile Savings agreement or policy relating to the subject matter herein, this Agreement shall prevail. Except as expressly provided herein, these terms and conditions describe the entire liability of Mobile Savings and our vendors and suppliers (including processors), set forth your exclusive remedies with respect to the Service, and define your access and use of the Service. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: A(6) (“Taxes”), A(7) (“Security and Fraud Controls”), A(9) (“Privacy of Others”), C(5) (“Mobile Savings Fees”), C(6) (“Our Collection Rights”), D(2) (“Ownership”), D(5) (“Effects of Termination”), D(6) (“Your Liability”), D(8) (“No Warranties”), D(9) (“Limitation of Liability and Damages”), D(10) (“Disputes; Choice of Law; Jurisdiction and Venue”), D(14) (“Parties”), D(17) (“Responding to Legal Process”), D(18) (“Entire Agreement”), and D(19) (“Survival”).