Subscription Terms of Service
Last updated July 24, 2015
Please read these Terms of Service very carefully. These Terms of Service control all GeoPoll subscription products and order forms. By signing your Subscription Order Form, you are acknowledging that you are aware of, have read, and agree to be bound by the below Terms of Service.
You may not use the GeoPoll or MAI, as defined below, services and Subscription Products and may not accept the Terms if (a) you are not of legal age to form a binding contract with MAI, or (b) you do not have the necessary authority to enter into agreements on behalf of your organization.
These “Subscription Terms of Service” govern any Order Form for Subscription Products and Subscription Order Forms. If the Subscription Order Form conflicts with these Subscription Terms of Service, these Subscription Terms of Service will take precedence, unless the conflicting term of the Subscription Order Form expressly states that it is intended to supersede these Subscription Terms of Service. The Subscription Order Form, together with these Subscription Terms of Service, are the “Subscription Agreement.” Mobile Accord, Inc. (hereinafter, “MAI”) and the Subscriber identified on the Subscription Order Form are each referred to as a “Party” and collectively as the “Parties”.
Whereas, MAI is a mobile telecommunications platform and data services company, that uses a proprietary technology, referred to as “GeoPoll”, to locate and survey people throughout the world using the mobile phone in order to collect proprietary data;
WHEREAS, Subscriber wishes to access certain of MAI’s data that has been collected using GeoPoll, as such data is identified on the Subscription Order Form (the “Subscription Data”) using MAI’s proprietary subscription delivery services or products (collectively with Subscription Data, the “Subscription Products”);
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
- Purpose and Scope of License. This Subscription Agreement states the terms and conditions under which the Subscriber may use Subscription Products. Subscriber acknowledges that MAI has expended substantial time, effort, resources and funds to create and deliver the Subscription Products, and to compile the Subscription Data, and that all Subscription Products, and any intellectual property therein, are and will continue to be (as between Subscriber and MAI) the exclusive property of MAI.
- Scope of License
- Limited License: During the term of this Subscription Agreement and subject to the terms, conditions and restrictions set forth herein, MAI grants solely to the Authorized Users, a nonexclusive, nontransferable, limited right to access the Subscriber Products and to use the Subscriber Data (as specified in the applicable Subscription Order Form) only for Subscriber’s internal purposes. Subscriber represents warrants and agrees that (i) the Authorized Users are employees of Subscriber and are the only individuals authorized to access the Subscription Products, and (ii) Subscriber understands that no employees or agents of Subscriber may access or use the Subscription Products (on behalf of Subscriber or otherwise) other than the Authorized Users. Notwithstanding the foregoing, each Authorized User is entitled to electronically access the Subscription Products for such Authorized User’s individual use on behalf of Subscriber, and an Authorized User may display a de minimus amount of the Subscription Data on an incidental, infrequent basis for non-commercial purposes to other Authorized Users so long as the Authorized Users are in the same physical location and the mode of display is not through any electronic means or media such as via email, mobile communications, the internet, an intranet or other types of networking communications like LANS or WANS. Except as explicitly permitted herein or in the applicable Subscription Order Form, Subscriber shall not sell, lease, transfer, sublicense, or otherwise make available or permit access to the Subscription Products.
- Prohibited Uses: Without limiting the above Sections 1(a)(1), neither the Subscriber nor Authorized User is permitted, directly or indirectly, to allow any other person to use or share any Authorized User’s login credentials, nor to allow anyone other than the Authorized User(s) set forth on the Subscription Order Form to have access to the Subscription Products (other than the de minimusamount of Subscription Data shared as permitted pursuant to Sections 1(a)(1)). Any breach of this Subscription Agreement may result in the immediate termination of Subscriber’s access to Subscription Products and cause serious damage to MAI. In such an event, money damages may not constitute sufficient compensation to MAI. Subscription Products may not be reproduced, transmitted, broadcasted, published, redistributed, printed or stored in either electronic or print form except in a de minimus amount as expressly provided pursuant to Sections 1(a)(1). Any use of the Subscription Products not specifically permitted by this Subscription Agreement is expressly prohibited. MAI owns the data, software, copyrights, platforms and documentation used to create and deliver the Subscription Products. As between the Parties, MAI retains all right, title and interest in and to the Subscription Products and any intellectual property rights (whether of MAI or its licensors) therein. Neither Subscriber nor any Authorized User shall reproduce, copy, reverse-engineer, create derivative works of, or in any manner violate or attempt to impair the intellectual property rights and/or distribution rights in or related to the Subscription Products.
- Security: Subscriber shall be solely responsible for the confidentiality of, and solely liable for the use of and access to, the Subscription Products by its Authorized Users and any login credentials utilized or granted to the Authorized Users. Subscriber agrees to immediately notify MAI if it becomes aware of any loss or theft of any login credentials or any unauthorized use of the Subscription Products.
- Liquidated Damages: In each circumstance that Subscriber exceeds the license rights granted hereunder, or breaches its obligations under this Section 1, Subscriber shall pay to MAI, as liquidated damages and not as a penalty, an amount equal to $100,000 USD. Subscriber waives its right to dispute the effectiveness and enforceability of this provision. The Parties agree that quantifying the losses arising from Subscriber’s infringement or breach is inherently difficult insofar as its breach of this Section may impact MAI’s reputation, MAI’s ability to perform services or provide offerings for other customers and diminish the value and revenue possibilities for MAI and the Subscription Products for the relevant country market. The Parties further stipulate that the agreed upon sum is not a penalty, but rather a reasonable measure of damages, based upon the Parties’ experience in data collection and use, and given the nature of the losses that may result to MAI as a result of Subscriber’s infringement or breach.
- Scope of License
- Fees, Invoicing and Payment
- Fees: Throughout the term of this Subscription Agreement, Subscriber agrees to pay the fees set forth on the Subscription Order Form (“Fees”), including any Platform Fee and Revenue Share.
- Payment Terms: All Fees are stated and due in U.S. dollars and exclude any applicable taxes. All such Fees are guaranteed, nonrefundable and not subject to set off by Subscriber. In the event of late or nonpayment, MAI reserves the right to suspend the provision of the Subscription Products until such time as any outstanding amount due is received by MAI. MAI may assess interest on any Fees or other amounts owing to MAI that remain unpaid when such become due at a rate equal to the greater of (i) 2% per month, compounded monthly, or (ii) the maximum rate allowable under applicable law (such higher amount, the “Interest Rate”), from the date the payment was due until the date MAI receives the payment.
- Audit Rights: MAI will have the right during the term of this Subscription Agreement and for three (3) years thereafter, to audit, or cause an independent third party to audit, Subscriber’s books and records to ensure compliance with this Subscription Agreement. Any such audit shall be during business hours and upon reasonable notice. Subscriber shall cooperate fully in connection with the audit and shall assist MAI or its designees as requested. If such audit determines that Subscriber is noncompliant with this Subscription Agreement in any respect, including the payment of any Fees, liquidated damages or other amounts due to MAI, or if such audit identifies any other underpayment to MAI, Subscriber shall promptly reimburse MAI for all costs associated with the audit, along with any discrepancies discovered (including any underpayments and liquidated damages) plus interest, at the Interest Rate as set forth above.
- MAI: MAI may, in its sole discretion, provide Subscriber with additional data and reports detailing audience ratings and similar information related to the Subscription Products that may be shared with Subscriber’s agents, employees and clients that are not Authorized Users (“GeoPoll Market Reports”). Unless and until MAI expressly grants Subscriber the right to share such GeoPoll Market Reports, all such reports will be considered a Subscription Product and subject to the restrictions set forth in this Agreement.
- Subscriber: Subscriber shall, as requested by MAI, provide its internal reports underlying any Platform Fee calculations and permit MAI to review Subscribers books and records to validate and verify any such calculations. Any reports provided by Subscriber under this Section 2(d) shall be viewed as confidential and will be used only for the limited purposes herein.
- Term and Termination:
- Term: This Subscription Agreement shall remain in effect as set forth on the Subscription Order Form.
- Termination for Breach: Either Party may terminate this Subscription Agreement upon notice to the other Party in the event the other Party materially breaches this Subscription Agreement and such breaching Party does not cure such breach within thirty (30) days after its receipt of notice of such breach from the non-breaching Party. For the avoidance of doubt, such material breach may include Subscriber’s nonpayment.
- Effect of Termination: Upon the termination of this Subscription Agreement for any reason, all rights and obligations of the Parties under this Subscription Agreement shall be extinguished, except that: (i) all accrued payment obligations (if any) hereunder shall survive such termination or expiration and shall be due and paid in accordance with the payment terms set forth herein; and (ii) the rights and obligations of the Parties under those sections which by their meaning the Parties intend them to endure, shall survive. In the event of any termination of the Subscription Agreement, Subscriber will cease using the Subscription Products, including any Subscription Data, and shall immediately return or destroy and certify the destruction and return of any and all Confidential Information. Without prejudice to the foregoing, within three (3) business days after the termination of this Subscription Agreement, Subscriber shall delete any Subscription Products from any and all systems under its control.
- Confidentiality, Proprietary Rights and Trademarks:
- Confidential Information: Subscriber agrees to keep any and all information it receives from or on behalf of MAI, including this Subscription Agreement and the Subscription Products (all such information, the “Confidential Information”) in confidence, except as otherwise expressly permitted by this Subscription Agreement. Without limiting any other provision of this Subscription Agreement, Subscriber agrees to protect the Confidential Information, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. Subscriber shall notify MAI promptly in writing in the event Subscriber learns of any unauthorized use or disclosure of any Confidential Information, and (in addition to any other obligations as set forth in this Subscription Agreement) will cooperate in good faith to remedy such occurrence to the extent reasonably possible. Subscriber acknowledges that breach of this Section would result in irreparable harm to MAI, for which money damages may be an insufficient remedy, and therefore that MAI shall be entitled to seek injunctive relief to enforce the provisions of this Section.
- Subscriber Trademarks: Subscriber grants to MAI a limited, non-exclusive, royalty-free, non-transferable, non-sub licensable license, during the Term, to reproduce and display the Subscriber trademarks to (i) identify Subscriber as a “supported Subscriber” in a list of all supported Subscribers on MAI’s HTML and/or WML websites, (ii) on other supported social media sites including but not limited to Twitter, Facebook, and the like, and (iii) in connection with MAI’s promotion of MAI’s products and service offerings, including but not limited to the Subscription Products. For the avoidance of doubt, MAI shall be entitled to maintain references to the Subscriber on its websites or other social media sites after the expiry or termination of this Subscription Agreement.
- Reservation of Rights: Except as expressly set forth herein, nothing in this Subscription Agreement shall be deemed to transfer or license any rights in or ownership of the MAI property or intellectual property rights, including the Subscription Data, Subscription Products, or MAI trademarks. MAI reserves the right to modify all such items at any time.
- DISCLAIMER OF WARRANTIES. MAI MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE SUBSCRIPTION DATA OR SUBSCRIPTION PRODUCTS, OR ANY MEDIA USED TO DELIVER OR ACCESS THE SAME (COLLECTIVELY, THE “MAI PRODUCTS”). MAI EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT POSSIBLE UNDER LAW, ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND TITLE. MAI DOES NOT GUARANTEE THE ACCURACY, CONTENT, COMPLETENESS, ADEQUACY OR TIMELINESS OF INFORMATION OF THE MAI PRODUCTS. MAI MAKES NO WARRANTY OR REPRESENTATION REGARDING, AND WILL NOT BE LIABLE TO SUBSCRIBER FOR, THE QUALITY, RELIABILITY, TIMELINESS, SECURITY, AVAILABILITY OR SERVICES OF ITS THIRD PARTY PROVIDERS OR THAT THEY WILL BE ERROR-FREE AND UNINTERRUPTED.
- LIMITATIONS ON LIABILITY: UNDER NO CIRCUMSTANCES WILL MAI, ITS PARENTS, SUBSIDIARIES, AGENTS, LICENSORS OR AFFILIATES, BE LIABLE TO SUBSCRIBER, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, LOSS OF REVENUE, LOST DATA OR LOST BUSINESS) ARISING FROM THE SUBJECT MATTER OF THIS SUBSCRIPTION AGREEMENT, REGARDLESS OF THE TYPE OF CLAIM, EVEN IF MAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MAI’S MAXIMUM AGGREGATE LIABILITY FOR ANY CLAIM OR CLAIMS ASSERTED PURSUANT TO THIS SUBSCRIPTION AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID TO, AND RECEIVED BY, MAI DURING THE FIRST SIX MONTHS THIS SUBSCRIPTION AGREEMENT IS IN EFFECT.
- Non-Solicitation and Non-Compete: During the term of this Subscription Agreement and for a period of one (1) year thereafter, (i) Subscriber shall not employ, solicit, or seek to employ any person who is, or was during the previous twelve (12) months, an employee of MAI or its subsidiaries or affiliates, and (ii) Subscriber shall not, and will cause its affiliates, parent and subsidiaries to not, directly or indirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management, operation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent contractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with MAI. Subscriber hereby acknowledges that the scope of prohibited activities and the time duration of the provisions set forth in this Section 7(a) are reasonable and are no broader than are necessary to protect MAI’s legitimate business interests.
- Independent Contractors: MAI shall not be considered an agent or franchisee of Subscriber and nothing in this Subscription Agreement shall be construed to create a partnership, joint venture, or franchise between Subscriber and MAI. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will attempt to create any warranty or other obligation, express or implied, on behalf of the other Party.
- Assignment: Neither Party may assign any of its rights nor delegate any of its duties under this Subscription Agreement without the other Party’s prior consent, provided, however, that MAI may, (i) without the other Subscriber’s consent, assign this Subscription Agreement to an affiliate, or to a successor in interest as a result of a change of control, a sale of all or substantially all of its assets, or a merger, acquisition, public offering or other corporate reorganization, and (ii) subcontract any of its obligations or duties as set forth in this Subscription Agreement.
- Change in Laws and Practical Usage: Upon reasonable notice to Subscriber, MAI may withdraw or decline to provide to Subscriber any MAI Products in order to comply with any requirements imposed by any applicable international, federal, state or local law, rule or regulation, judicial or administrative decision, or industry self-regulatory guideline or in the event Subscriber’s use results in significant adverse consumer reaction. Subscriber acknowledges that the Subscriber Data has not been collected for credit purposes and is not intended to be indicative of any consumer’s credit worthiness, credit standing, credit capacity or similar characteristics. Subscriber shall use the MAI Products in strict accordance with (i) all applicable international, federal, state and local laws, regulations, rules and judicial and administrative decisions, (ii) relevant industry guidelines (including the Direct Marketing Association Guidelines), and (iii) Subscriber’s own policies, including its privacy policies. Subscriber shall indemnify MAI, its affiliates and its and their officer, directors, employees, agents and shareholders, and hold each of the foregoing harmless from any third party claims arising out of or resulting from Subscriber’s use of the MAI Products.
- Force Majeure: If either Party is unable to perform any of its obligations under this Subscription Agreement because of unforeseen circumstances beyond such Party’s reasonable control, including acts of God, war, riot, embargoes, acts of civil or military authorities, fire, flood or earthquake (a “Force Majeure”), then such Party will be excused from performance of such obligation to the extent and for the duration of such prevention, restriction or delay. If an event of Force Majeure occurs and a Party is unable to perform for a period exceeding ninety (90) days, the other Party may terminate this Subscription Agreement upon thirty (30) days’ prior notice.
- Governing Law: This Subscription Agreement shall be construed in accordance with and governed by the laws of the State of Colorado, USA, without regard to its principles regarding conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded from application to this Agreement.
- Equitable Relief: Other than as expressly stated in this Subscription Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party under this Subscription Agreement, at law or in equity. Subscriber acknowledges that its breach of this Subscription Agreement, or infringement of the MAI Products, may result in irreparable and continuing damage to MAI for which monetary damages may not be sufficient, and agrees that, in the event of any such breach or infringement (and notwithstanding Section 7(h)), MAI shall be entitled to seek in, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, without the necessity of posting bond or other security, and such further relief as may be proper from any court of competent jurisdiction.
- Arbitration: Subject to Sections 7(f) and 7(g), any dispute arising out of or relating to this Subscription Agreement, including the interpretation of any provision of this Subscription Agreement or the breach, termination or invalidity of this Subscription Agreement that cannot reasonably be resolved by the Parties shall be settled exclusively and finally by binding arbitration administered by the American Arbitration Association (“AAA”) using the International Arbitration Rules of the AAA in effect on and as of the Effective Date (“AAA Rules”), except as such AAA Rules are modified pursuant to this Section. The arbitration shall be conducted in Denver, Colorado, United States. The arbitration shall be conducted in English; provided that either Party, at its cost, may provide for the simultaneous translation of the arbitration into a language other than English. The arbitrators shall issue a written opinion stating the findings of fact and the conclusions of law upon which the decision is based. The decision of the arbitrators shall be final and binding. Neither Party shall resort to any local courts in order to obstruct the arbitral process. Judgment on such award may be entered in any court of appropriate jurisdiction, or application may be made to that court for a judicial acceptance of the award and an order of enforcement, as the Party seeking to enforce that award may elect. Any arbitration award pursuant to this Section shall be subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR ITS INTERPRETATIONS.
- Waiver: No waiver of any breach of any provision of this Subscription Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
- Notices: Any notices, consents, approvals or other communications required or permitted to be given hereunder shall be given (i) if by Subscriber to MAI, then in writing and delivered in person, or sent via certified mail or reputable overnight international carrier, and properly addressed and stamped with the required postage, to MAI at the address listed on the Subscription Order Form (or such other address as MAI may notify Subscriber in accordance with this Section, and shall be deemed effective upon receipt, or (ii) if by MAI to Subscriber, then in writing and delivered either via the Subscription Products, or in person, or sent via email, fax, certified mail or reputable overnight international carrier (postage prepaid) to the Subscriber’s contact information set forth on the Subscription Order Form, and shall be deemed effective the date following its delivery.
- Severability: In the event any provision of this Subscription Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. If any provision of this Subscription Agreement shall, for any reason, be determined by a court of competent jurisdiction to be excessively broad or unreasonable as to scope or subject, such provision shall be enforced to the extent necessary to be reasonable under the circumstances and consistent with applicable law while reflecting as closely as possible the intent of the Parties as expressed herein.
- Interpretation: The headings, subheadings, and other captions in this Subscription Agreement are for convenience and reference only and will not be used in interpreting, construing, or enforcing any of the provisions of this Subscription Agreement. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms. Each Party acknowledges that it has had the opportunity to review this Subscription Agreement with legal counsel of its choice, and there shall be no presumption that ambiguities will be construed or interpreted against the drafter, and no presumptions made or inferences drawn because of the inclusion of a term not contained in a prior draft or the deletion of a term contained in a prior draft.
- Integration: This Subscription Agreement sets forth the entire agreement and understanding between the Parties relating to the subject matter hereof and supersedes any and all prior agreements and understandings to the extent inconsistent therewith. No alteration, modification, or cancellation of any of the provisions of this Subscription Agreement, including the Subscription Order Form or amendments thereto, shall be binding unless made in writing and signed by properly authorized representatives of the Parties.
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Denver, CO, 80212
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