This is the Terms of Use and the Privacy Policy (collectively the “TOU”). Within this document, the term “you” or “End User” refers to the individual End User of the Product (and each Merchant as an entity and user of the Product), whereby the terms “we”, “our,” or “us” refers to the developer of the Products (TSYS Acquiring Solutions, LLC and its affiliates), you and us each a “Party” and collectively, the “Parties” to this TOU and accompanying Privacy Policy. The “Product(s)” as used in this TOU and accompanying Privacy Policy includes any web properties associated with the Products.

Terms of Use

You are allowed to use this Product only under the following terms (“Terms”):

1. Eligibility. In order to use this Product, you must be at least eighteen (18) years old or have explicit permission from a parent, guardian, employer, or supervisor to agree to this TOU, and provide true, complete, and up to date contact information. By using the Product you represent and warrant that you meet all of the requirements listed above, and that you will not use the Product in a way that violates any Laws, regulations, or this TOU. We may refuse service, close accounts of any users, and change eligibility requirements at any time. For purposes of this TOU, “Law” means all national, federal, state, provincial, and local: (a) Laws (including common law), ordinances, regulations, and codes; and (b) orders, requirements, directives, decrees, decisions, judgments, interpretive letters, guidance and other official releases of any government, authority, department or agency, or any judicial or regulatory (including self-regulatory) organization having authority, oversight jurisdiction or similar power over any of the Parties.
2. Term Period. The Term Period begins when you sign up for an account and continues for as long as you use the Product. In addition, each time you log into or utilize the Product you've officially ""signed"" this TOU. If you sign up on behalf of another person, you represent and warrant that you have the authority to accept this TOU on their behalf.
3. Closing Your Account. You may terminate this Agreement by terminating your use of the Product according to the agreement maintained with your Provider (your “Provider” is the entity through which you license any of our Products). We may suspend or terminate the Product from your use in accordance with the agreement maintained with your Provider or for a violation or suspected violation of this TOU, or at any time, with or without cause. Once your account is terminated, we may permanently delete it and all of the data associated with it. If you do not log into your account for twelve (12) or more months, we may treat your account as ""inactive"" and permanently delete it and all the data associated with it.
4. Changes. We reserve the right to change any of part of the TOU at any time by posting a revised TOU on our website or within the Product, and/or by sending an email to the last email address you gave us. The new TOU will become effective immediately and apply to any continued or new use of the Product. We may change our website, the Product, or any features of the Product at any time.
5. Account Username and Password. You alone are responsible for keeping your Product, social media, and electronic account usernames and passwords confidential, together with the additional Product usernames and passwords you create for users you authorize. You are also responsible for the use of any account that you have access to, whether or not you authorized the use. You will immediately notify us of any unauthorized use of your accounts. We're not responsible for any losses due to stolen, hacked, lost, or forgotten passwords. We do not have access to your current password, and for security reasons, we may only reset your password.
6. Integration to Third Party Systems. We are not responsible for any maintenance, development, or support related to integration with any third party system.
7. Rights
   1. Proprietary Rights Owned by Us. You expressly agree to respect our proprietary rights in all components comprising the Product. Proprietary rights include, but are not limited to, any patents, trademarks, service marks, copyrights, trade secrets, trade names, and any other intellectual property.
   2. Proprietary Rights Owned by You. You represent and warrant that you either own or have permission to use all of the material you enter into the Product, including but not limited to, your brand, inventory, content, photographs, videos, push notification messages, and all other information you enter into the Product. You retain ownership of the proprietary materials you upload to the Product. We may use or disclose your materials only as we describe in the TOU and Privacy Policy, or as required by Law.
8. Aggregation. We may publish any of your data in an aggregated format in accordance with this TOU.
9. Privacy Policy. We may access, collect, use, and disclose your information according to our Privacy Policy included in this TOU.
10. Right to Review. We may view, copy, and internally distribute content from your account to create algorithms and programs that help us spot problem accounts, improve the Products, offer Services, and aggregate data.
11. General Rules. You expressly agree to the following rules of use for the Product:
    1. You will not send spam or unauthorized or unlawful messages or communications. Further, you will not use the Product to transmit, disseminate, upload, download, or communicate or interact with, in any way, any: indecent, explicit, unlawful, pornographic, terrorism-related, violent, or incendiary content of any nature.
    2. You will not put into the Product any material, including graphics or other content, that is not created by you or that would violate any third party’s copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights.
    3. You will not use any misleading or incorrect names, addresses, email addresses, subject lines, or other information using our Product.
    4. You will not upload or compose content that contains or offers any unlawful or illegal goods or services.
    5. You will not share your password.
    6. You will not use this Product in a way that violates any Law.
    7. By using the Product, Services, or any corresponding website, you agree and consent to the Privacy Policy, and all information we collect, store, disclose, and share.
    8. You will not try to decipher, decompile, disassemble, or reverse engineer the Product
    9. You will not setup multiple accounts for any individual or entity in order to send substantially similar content, unless you are part of a franchise operation or have multiple locations, or unless otherwise authorized by us or within the Product.
    10. You will not import or incorporate Social Security Numbers or sensitive personal information of any kind into the Product.
    11. Any breach of this Section will be considered a material breach of this TOU and may result in suspension or termination of your access to the Products and Services.
12. Compliance with Laws. You represent and warrant that your use of the Product will comply with all applicable Laws and regulations. You are responsible for determining whether the Product is suitable for you to use in light of any regulations like HIPAA, GLB, EU Data Privacy Laws, PCI-DSS, or other Laws. If you are subject to regulations (like HIPAA) and you use our Product, we are not liable if our Product does not meet those regulation requirements.
    
    If you are located in the European Economic Area (EEA) or send Messages to anyone in the EEA, you represent and warrant that you:
    1. Will clearly describe in writing how you plan to use any data collected. You will get express consent to transfer data to the Product as part of this process, and you will otherwise comply with whatever privacy policy you have posted.
    2. Have complied, and will comply, with all regulations, as well as data protection, electronic communication, and privacy Laws applicable to the countries where you are sending any messages from the Product.
    3. Have collected, stored, used, and transferred all data relating to any individual in compliance with all data protection Laws and regulations. You have permission to allow the Product to receive and process data and send communications to that individual on your behalf.
    4. Agree to indemnify and hold us harmless from any losses, including attorney fees that result from your breach of any part of these warranties.
    5. US Export Controls. The software that supports the Products is subject to United States export controls and follows all guidelines of the ECR Initiative. No parts of the Products may be downloaded or otherwise exported or re-exported in violation of United States export Laws.
13. Reporting Violations. If you become aware that anyone is in violation of this TOU, please notify us immediately.
14. Limitation of Liability.
    IN NO EVENT SHALL WE (OR OUR THIRD PARTY SUPPLIERS) BE LIABLE TO YOU, OR ANY PERSON OR PARTY SEEKING A CLAIM OR ACTION THROUGH YOU, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, BUSINESS INTERUPTION, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF WE OR THE DEVELOPER OF THE SOFTWARE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, YOU EXPRESSLY AGREE AND UNDERSTAND THAT OUR LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE PREVIOUS SIX (6) MONTHS OF FEES PAID BY YOU TO YOUR PROVIDER.
15. No Warranties. Location data as well as any maps data provided by the Product or software is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environment damage. Neither we or nor any of our licensors guarantees the availability, accuracy, completeness, reliability, or timeliness of location data or any other data or information displayed by the Product. All sales, use, and other tax information are estimates only, may not be accurate, and should not be relied upon for any purpose. You are responsible for the payment of all local, state, and federal taxes, and should consult a tax professional when calculating your taxes. All time clock, time tracking, and wage information are estimates generated by the Product, may not be accurate, and are not to be relied upon in any fashion, whether for internal accounting, payroll, tax, or any other purposes.
    
    Messages and notifications are for basic informational purposes only and are not intended to be relied upon in situations where such information is needed or where lost, erroneous, inaccurate or incomplete notification may lead to death, personal injury, property or environment damage. We do not guarantee the availability, accuracy, completeness, reliability, or timeliness of any data or information displayed by the Product. Further, we do not guarantee or represent any specific result or outcome as a result of you utilizing the Product in any way.
    
    ALL PRODUCTS, SERVICES, AND SYSTEMS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR OBLIGATION TO UPGRADE OR ENHANCE OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE (AND OUR THIRD PARTY SUPPLIERS) DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (I) ANY IMPLIED WARRANTIES AND CONDITIONS OF ACCURACY, END USERABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND (II) THAT ANY SOFTWARE OR SYSTEM WILL FUNCTION WITH ANOTHER SOFTWARE OR SYSTEM, OR THAT IT WILL FUNCTION UNINTERRUPTED OR ERROR-FREE. WE DO NOT REPRESENT THAT ANY OF OUR PRODUCTS, SOFTWARE, SERVICES, OR SYSTEMS OF ANY KIND WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUS, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND EXPRESSLY DISCLAIM ANY LIABILITY RELATING THERETO.
    
    WE AND OUR THIRD PARTY SUPPLIERS DO NOT GUARANTEE YOU, AND SHALL NOT BE HELD LIABLE FOR, ANY LOSS OF REVENUE, LEVEL OF EXPOSURE, DOWNLOADS, SALES, SATISFACTION, SUCCESSFUL IMPLEMENTATION, OR INSTALLATIONS WITH RESPECT TO ANY PRODUCT OR SERVICE.
16. Arbitration Agreement. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE BOTH PARTIES TO AGREE TO RESOLVE SOME DISPUTES THROUGH BINDING ARBITRATION.
    1. Applicability of Arbitration Agreement. Both Parties agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to this TOU or the use of the Products or Services (whether brought against us or any of our third party suppliers) will be resolved by binding arbitration on an individual basis, or any dispute in which either Party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” also includes claims and disputes that arose between us before the Effective Date of this TOU.
    2. Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, available here as of the date of this TOU, or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the Parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with this TOU. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
    3. Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the Party initiating the arbitration. The arbitration will not involve any personal appearance by the Parties or witnesses unless the Parties mutually agree otherwise.
    4. Fees. Each Party shall be responsible for an equal fifty percent (50%) share of the costs of any arbitration proceeding under this arbitration agreement.
    5. Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and us. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under Law, the arbitral forum’s rules, and this TOU. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon both Parties.
    6. Waiver of Jury Trial. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between the Parties over whether to vacate or enforce an arbitration award, BOTH PARTIES WAIVE ALL CONSTITUTIONAL AND STATUTORY RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
    7. Any rights and limitations set forth in this arbitration agreement may be waived by the Party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
    8. Opt-out. You may opt out of this arbitration agreement. If you do so, neither Party can force the other to arbitrate. To opt out, you must notify us in writing no later than thirty (30) days after first becoming subject to this TOU. Your notice must include your name and address, your business name, email address you used to set up your provision of the Products or Services, and an unequivocal statement that you want to opt out of this arbitration agreement. You must either mail your opt-out notice to this address: TSYS Acquiring Solutions, LLC, ATTN: Legal, 8505 Baycenter Rd., Jacksonville, FL 32256, or email the opt-out notice to legal@imobile3.com.
    9. Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with us or your Provider.
17. Indemnity. You agree to indemnify and hold us harmless from any losses (including attorney fees) that result from any claims you make that are not permitted under the terms of this TOU due to a ""Limitation of Liability"" or other provision. You also agree to indemnify and hold us harmless from any losses (including attorney fees) that result from any claims that you or someone using your password or accessing your account behaved in a way that allegedly violated any local, state, or federal law, or any of provision of this TOU.
18. Attorney Fees. If we file an action against you claiming you breached this TOU and we prevail, we're entitled to recover reasonable attorney’s fees and any damages or other relief we may be awarded.
19. Third Parties. We are not responsible for the behavior or accuracy of any advertisers, linked websites, customers or consumers, or other End Users.
20. Equitable Relief. If you breach any of your obligations under these Terms, then we may seek injunctive or other equitable relief.
21. Assignments. You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at any time, at our discretion.
22. Choice of Law. The State of Florida's Laws, except for conflict of laws rules, will apply to any dispute related to this TOU or the Product. Any dispute related to this TOU, the Privacy Policy, or the Service itself, unless provided otherwise by Law, will be decided by the state and federal courts located in Duval County, Florida and each Party will be subject to the jurisdiction of those courts.
23. Force Majeure. We will not be liable for any delay, failure in performance, loss or damages or for any failure of the Product because of circumstances beyond our control. Such circumstances may include, but are not limited to: a natural disaster, act of war or terrorism, riot, labor condition, governmental action, power outage, or internet disturbance.
24. Severability. If it turns out that a section of this Agreement is not enforceable, that section will be removed or edited, and the rest of the TOU will remain valid.
25. Headings. The headers and sidebar text are provided only to make this agreement easier to read and understand.
26. No Changes in Terms at Request of End User. Because we have so many end users of the Product, we cannot change these Terms for any one end user or group of end users.
27. SMS messages. By using the Product, you agree to receive SMS text messages relating to the Product, Services, our website properties, and other services, products, advertisements, offers, and solicitations offered by our affiliates, customers, from us, our customers who license the Product, and other third parties.
28. Obligations. You will provide all documents and take any actions necessary to meet your obligations under this TOU.
29. Notification of Security Breach. In the event of a security breach that may affect you, we will notify you of the breach and provide a description of what happened. If we determine, and notify you, that you need to forward all or part of that description to any additional party, you agree to promptly forward such information.
30. Notices. Any notice to you will be effective when we send it to the last email or physical address you gave us or posted in our Product. Any notice from you to us will be effective when delivered to us along with a copy to our Chief Legal Counsel.
31. Entire Agreement. The Terms of Use and Privacy Policy, and any additional terms from any additional documentation you've agreed to, embody the entire agreement and understanding of the Parties, and supersede all prior agreements, representations, and understandings. As it relates to the Products and Services, in the event of any conflict, ambiguity or inconsistency between this TOU and any other document, the terms of this TOU shall govern, unless otherwise stated therein.