Velocity Mobile Marketing, Co.

Terms & Conditions

A. KEYWORDS.  Keywords are based on availability on one of our Short-Codes.  They cannot contain abusive or sexual language.

B. TERM. Services from Velocity Mobile Marketing, Co. are month-to-month but require 30 days written notice before your next billing date in order to cancel your subscription.  Your billing date starts the date and time you placed a successful order. For questions or to cancel your account email us at info@vmmco.com.  If you request a cancellation date less than 30 days in advance of your billing date you will be billed the normal (full) monthly package fee.

C. SETUP Fees. Set up fees are non-refundable.

1. SERVICES. VMMCO will use reasonable efforts to provide services set forth in this agreement including but not limited to secure and non-secure transmission of various data to and from VMMCO by way of the Internet and other computer networks. The services, all related software and intellectual property are hereinafter referred to as the “Services.”

2. FEES. VMMCO will invoice Customer on a Monthly billing cycle. Customer agrees to pre-pay monthly service fees. Customer acknowledges that all overages and late fees are charged in arrears at the rate designated in their existing monthly plan. Customer shall pay all invoices within seven (7) days of the date of invoice by check or money order or via credit/debit on an automatic recurring billing option basis.

2.a LATE FEES. Failure to pay invoices within (14) days from the date of the invoice will result in a $15.00 LATE FEE.  If the invoice is not paid in full within 15 days the account will be suspended.  If the invoice remains unpaid 30 days of the invoice date the account will be terminated.  Suspended accounts will be re-activated subject to the $15 LATE FEE.  Reactivation of a terminated account will require their package’s full Set-Up again to include all related fees and charges.

2.b SET-UP FEES.  A onetime set-up fee is billed with the first month of service. Set-up fees are non-refundable. All charges and fees hereunder are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed for the provision of Services hereunder. Customer shall be liable for and pay all such taxes and other levies, regardless of whether included on any invoice. VMMCO is prohibited from changing the amount, structure, method and/or basis of the fee at any time during the term of this Agreement. Customer has the exclusive right to modify their service plan at anytime with 30 days notice in writing to VMMCO. VMMCO may offer and Customer may purchase monthly management and licensing of various services.

3. GUARANTY. If Customer is unable to utilize services by fault of VMMCO, Customer shall have the right to cancel the affected services and Company will provide Customer a prorated refund for the service outage period. Set-up Fees are non-refundable.  Customer must provide written notice to VMMCO thirty (30) or more days prior to the end of the billing cycle should Customer choose to cancel service.  Said notice must include a detailed basis for the cancellation

4. LICENSE; RESTRICTIONS. a) VMMCO hereby grants Customers in good standing a non-exclusive, non- transferable license to access and use the Services at Customer’s place of business. Customer is prohibited from reselling, loaning or otherwise sharing the Services or divulging any related confidential information including, but not limited to passwords or instructional manuals. Except as expressly permitted in this Section, Customer may not use, reproduce, transfer, share, sublicense or transmit the Services in any form or by any means without the prior written consent of VMMCO. Customer further agrees not to modify, translate, transform, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code from the Services or related software, or to permit or authorize a third party to do so. Title to the Services, and all related software, technical know-how, and intellectual property rights therein are and shall remain the exclusive property of VMMCO. Customer shall not take any action to jeopardize, limit or interfere in any manner with VMMCO ‘s ownership of, and rights with respect to any licensed software and/or Services. b) COMPLIANCE. Customer acknowledges and agrees that, as between Customer and VMMCO, Customer is responsible for compliance with all federal, state or other applicable laws governing the use of the Services, including but not limited to laws applicable to direct  marketing and privacy. Customer further acknowledges and agrees that VMMCO merely provides a routine conveyance,” as that term is defined in 15 U.S.C. § 7702 (CAN SPAM Act), in connection with the transmission of any electronic mail messages on behalf of Customer in connection with the Services. Customer also agrees to comply with VMMCO ‘s polices and rules for use of the Services, including its e-mail transmission services, as made available to Customer and as amended by VMMCO from time to time in its sole discretion.

5. INTELLECTUAL PROPERTY RIGHTS. It is the intent of the parties that VMMCO shall own the Services, as well as all patents, copyrights, trademarks, trade secrets and other intellectual property rights associated with or appurtenant to the Services. Neither Customer, nor its subsidiaries, affiliates, agents, or employees shall have any right to use the Services other than for the purposes set forth herein. In all cases, the Services are and shall remain the sole and exclusive property of VMMCO. Customer covenants to take no action nor commit any omission that would be adverse to VMMCO ‘s sole and exclusive ownership of the Services. If Customer, its subsidiaries, affiliates, employees or any third parties obtain any rights of ownership in or use of the Services through operation of applicable law or otherwise, Customer agrees to and hereby transfers, grants, conveys, assigns and relinquishes exclusively to VMMCO any and all right, title and interest it has or may acquire in the Services under patent, copyright, trade secret, trademark or other law relating to intellectual property in perpetuity or for the longest period otherwise permitted by law.

6. CONFIDENTIALITY. a) Customer acknowledges that the Services are the trade secrets of VMMCO. b) Each party agrees to use good faith efforts and at least the same care that it uses to protect its own confidential information of like importance, but in no event less than reasonable care, to prevent unauthorized dissemination or disclosure of the other party’s confidential information both during and after the Term of this Agreement. Each party shall use the other party’s confidential information solely as necessary for the performance of this Agreement. Confidential information will include, but is not necessarily limited to (i) non-public financial information; (ii) information concerning either party’s product line (both current and planned), research, development, customers, and pricing and marketing plans, unless and until publicly announced; and (iii) any information designated as confidential in writing at or prior to disclosure. c) Except as required by law, VMMCO will not disclose to any non-affiliated third party any non-public individually identifiable customer data received from Customer without Customer’s prior approval. VMMCO shall maintain at all times during the Term appropriate and reasonable safeguards to protect such individually identifiable customer data using measures no less rigorous than those used to protect VMMCO ‘s own customers’ individually identifiable data. d) The restrictions in this Section 6 Confidentiality shall not apply to information which: (i) has become publicly known without breach of this Agreement or any other confidentiality obligation by the receiving party; (ii) has been given to the receiving party by a third party with a legal right to so disclose; (iii) was known to the receiving party at the time of disclosure as evidenced by its written records; (iv) was independently developed by the receiving party without reference to the other party’s confidential information; or (v) is necessary to establish the rights of either party under this Agreement; or must be disclosed by the receiving party to comply with any requirement of law or order of a court or administrative body (provided that the receiving party will endeavor to notify the disclosing party of the issuance of such order and reasonably cooperate, at disclosing party’s expense, in its efforts to convince the court or administrative body to restrict disclosure).

7. LIMITED WARRANTY; LIMITATION OF LIABILITY. a) VMMCO PROVIDES THE SERVICES AND SOFTWARE “AS IS”AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, ORAL, IMPLIED OR STATUTORY AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. b) VMMCO, SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR INJURY TO ANY PERSON OR PROPERTY WHATSOEVER RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THE SERVICE OR SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SPECIFICALLY, VMMCO SHALL NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR REVENUE, OR COSTS, INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOSS OF USE OF THE SERVICES OR SOFTWARE, LOSS OF DATA, BUSINESS INTERRUPTION. COST OF RECOVERING SOFTWARE OR DATA, COST OF SUBSTITUTE SOFTWARE OR DATA. OR OTHER SIMILAR COSTS. IN NO EVENT SHALL VMMCO ‘S TOTAL LIABILITY OF ANY KIND, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID TO VMMCO UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.

8. INDEMNIFICATION. a) Customer assumes sole responsibility for all use of the Services and agrees to indemnify, defend and hold VMMCO and its affiliates, and its and their respective officers, directors, employees, agents and representatives harmless from and against any and all claims, causes of action, suits, proceedings, demands, damages, costs, expenses and liabilities of any kind whatsoever, including (without limitation) legal expenses and reasonable attorneys’ fees, from third parties (“Claims”), arising out of or in any way related to (i) Customer’s use of the Services, including without limitation the use or inability to use the same, or any errors or omissions in the same, or (ii) any breach by Customer of this Agreement. b) If a preliminary or final judgment shall be obtained against Customer’s use of the Services by reason of a Claim that the Services infringe or misappropriate the intellectual property rights of a third party or if the Services are likely to become the subject of such a Claim, VMMCO shall at its option and expense either procure for Customer the right to continue to use the Services as provided in this Agreement, or replace or modify the Services with a version of Services that is non-infringing, but performing substantially similar functions. In the event that neither of the foregoing options is commercially reasonable in VMMCO’s sole judgment, VMMCO shall cease providing the Services to Customer and refund to Customer any pre-paid license fees paid by Customer for said services. THE RIGHTS AND OBLIGATIONS IN THIS SECTION 8(b) ARE VMMCO’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.

9. TERMS AND TERMINATION – The termination fee for canceling your subscription is equal to your monthly subscription fee. a) The term of this agreement shall commence upon acceptance herein.  Thereafter, this Agreement shall automatically renew on a month-to-month term unless either party provides written notice to the other party that it will not renew, such notice to be given at least thirty (30) days prior to the expiration of the then-existing Term. b) Either party may terminate this Agreement immediately for any breach of this Agreement by the other party that is not cured within thirty (30) days after receipt of written notice of the breach from the non-breaching party; provided however, such cure period shall not apply if Customer is in breach of Section 4 License; Restrictions of this Agreement, or if either party is in breach of Section 6 Confidentiality, and further provided, however, that the cure period for the breach of an obligation to pay fees when due shall be eight (8) days. VMMCO may terminate this Agreement at any time without cause upon thirty (30) days written notice to Customer. c) This Agreement shall be immediately terminated upon the dissolution or bankruptcy of Customer, the filing of a bankruptcy petition by or against Customer or a general arrangement or assignment by Customer for the benefit of creditors. d) Following expiration or termination of this Agreement for any reason, all rights and licenses granted herein shall terminate and Customer shall immediately cease use of and certify to VMMCO that it has destroyed all copies of the Services and related software. e) Termination or expiration of this Agreement for any reason shall not release any party from any liabilities or obligations set forth in this Agreement that by their nature would be intended to be applicable following any such termination or expiration..

10. INJUNCTIVE RELIEF. Each party acknowledges that the Services are unique property, and that the unauthorized use or disclosure thereof shall cause VMMCO irreparable harm that may not be adequately compensated by monetary damages. Accordingly, in addition to any other remedies available to it at law or in equity, VMMCO will be entitled to injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or disclosure of confidential information or further use of the Services.

11. GOVERNING LAW; DISPUTE RESOLUTION. a) This Agreement will be construed in accordance with and governed by the laws of the State of Illinois, without regard to principles of conflicts of law. Any disputes under this Agreement shall be brought in Cook County, Illinois. In the event that the Dispute Resolution section is invalidated, the parties hereto consent to the jurisdiction of any local, state or federal court in which an action is commenced and located in accordance with the terms of this Section and that is located in Cook County, Illinois. The parties further agree not to disturb such choice of forum, and if not resident in such state, waive the personal service of any and all process upon them, and consent that such service of process may be made by certified or registered mail, return receipt requested, addressed to the parties as set forth herein. b) Any dispute or claim arising hereunder shall be submitted to binding arbitration in Cook County, Illinois, and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA), and the parties expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere. The parties hereunder further agree that: (i) any request for arbitration shall be made in writing and must be made within a reasonable time after the claim, dispute or other matter in question has arisen; provided however, that in no event shall the demand for arbitration be made after the date that institution of legal or equitable proceedings based on such claim, dispute, or other matter would be barred by the applicable statutes of limitations; (ii) the appointed arbitrator must be a former or retired judge or attorney at law with at least ten (10) years experience in the substantive area of this Agreement; (iii) the award or decision of the arbitrator, which may include equitable relief, shall be final and judgment may be entered on such award in accordance with applicable law in any court having jurisdiction over the matter. c) In any action, arbitration, or other proceeding by which one party either seeks to enforce its rights under the Agreement, or seeks a declaration of any rights or obligations under the Agreement, the prevailing party will be entitled to reasonable attorney’s fees and reasonable costs and expenses incurred to resolve such dispute and to enforce any final judgment. In addition, if Customer or Customer’s account is referred to an attorney or collection agency for collection, Customer will pay for all collection fees, costs and expenses incurred by VMMCO, including attorneys’ fees and fees of collection agencies.

12. GENERAL. a) Press Releases. VMMCO reserves the right to issue press releases and other marketing and promotional material describing the relationship created by this Agreement. Pricing will not be released.  b) Notices. All notices and other communications to each party must be in writing and sent to the party at the address specified in this Agreement or to such alternative address as either party may furnish in writing to the other from time to time. If to VMMCO, Attention: Legal Department. Unless otherwise agreed, notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt from courier, (iii) upon verification of receipt of registered or certified mail, or (iv) upon verification of receipt via facsimile. c) Force Majure. Neither party shall be liable or deemed to be in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including but not limited to acts of God, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, Internet failure, transportation facilities shortages, fuel or materials or for failures of equipment, telecommunications facilities or third party software programs. d) Severability. If any term or condition hereof is found by a court or administrative agency to be invalid or unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. e) Waiver. The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. A party’s remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of a party’s exercise of any other remedy. f) Entire Agreement. This Agreement and related exhibits and attachments represent the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and al prior agreements and understandings. There are no representations, warranties, promises, covenants or undertakings, except as described herein. g) Service Enhancements. VMMCO reserves the right to add or delete programs or services as part of our continued enhancement of the Services. VMMCO will give Customer thirty (30) days notice of any such changes and any fee increases or decreases related thereto. h) Amendment. Except where otherwise provided herein, this Agreement may not be amended or otherwise modified except by an Addendum signed by the parties hereto. i) Assignment. Customer may not sell, mortgage, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, without the express written consent of VMMCO. Page 3 VOID IF ALTERED – Rev: 01/21/09 j) Aggregate Reports. Notwithstanding anything to the contrary contained in this Agreement, VMMCO may track, analyze, and/or create reports related to aggregate activity in connection with Customer’s use of the Services and share such information with its affiliated companies. VMMCO and such companies may utilize such information to create, market, and sell products and services. Customer has the right to grant VMMCO and such companies the foregoing rights. k) Independent Contractors. The relationship of the parties will be that of independent contractors. Neither of the parties will have, and will not represent that it has, any power to bind the other or to create any obligation on behalf of the other. Nothing stated in this Agreement shall be construed as constituting or as creating the relationships of employer/employee, fiduciary, principal/agent, partnership, joint venture or representative of the other. l) Third Party Beneficiaries. This Agreement is not intended to benefit any third party and the parties do not intend to create any third party beneficiary rights under this Agreement. m) Precedent. The preprinted terms and conditions of any purchase order or other document issued by Customer in connection with this Agreement shall not be binding on VMMCO and shall not be deemed to modify this Agreement. n) Ownership of Data:  Databases collected via text, web, or paper are the sole and exclusive property of Customer.  This data can be downloaded and used by Customer only, and cannot be sold, transferred, used, or disseminated by any other party without the express written permission from Customer.

13. NOTICES. a) Do not accept this contract before you read it IN WITNESS WHEREOF, the parties have caused this Agreement to be accepted by their duly authorized representative.

14. MOBILE SUBSCRIPTION. A) By signing this agreement gives VMMCO the express written permission to send sms, mms, or email to users and their subscribers. VMMCO can send up to 10 text messages per month to your user database.  These come with the ability to opt-out of the database at any time by replying STOP to the message.  Notifications might take the form of MMS, SMS, or even video feeds that pertain to mobile marketing, your account, or other products and services offered by VMMCO.  Message and Data rates may be applied by wireless carriers.

Customer Initials indicated they have read all pages and agree to the terms and conditions set forth above.

See the Disclaimer/Consent Agreement that is required by the Telephone Consumer Protection Act here.

By accepting these terms you agree to conform to the following Telephone Consumer Protection Act rules and regulations:

The campaign shall ensure that any lists of recipients sent to Velocity Mobile Marketing Co. (VMMCO) will comport with the Telephone Consumer Protection Act (TCPA).  TCPA requires that each recipient contacted using VMMCO’s text services must have a clear and conspicuous disclosure that he/she will receive future contact via text message. A clear and conspicuous disclosure must include:

 

 

  1. Notice to the recipient that they are not required to sign the authorization or agree to enter into it as a condition of purchasing any property, goods, or services.
  1. The recipient’s signature or acknowledgement that they authorize The Campaign to deliver marketing text messages to their specifically designated phone number.

The recipient’s signature can be obtained in any manner that complies with state or federal law. This includes e-mail, website form, text message, telephone key press, or a voice recording. Such consent should be maintained for at least four years.  This disclosure is required even if The Campaign previously contacted a recipient or had a previous business relationship with the recipient; the Failure to obtain a clear and conspicuous disclosure can result in The Campaign being fined of up to $1,500 for each and every non-compliant message sent. 

 

By sending VMMCO your list of recipients you agree that it adheres to any and all TCPA regulations including those outlined above.  Velocity will not be held liable for any actions taken by or against any of The Campaign, its affiliates or assigns that result from noncompliance with the TCPA rules. VMMCO encourages you to consult an attorney for legal advice regarding the TCPA as nothing VMMCO provides to you should be considered legal advice. 

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