Terms of Service
Last Updated: July 4, 2013
This Terms of Service (the "Agreement") sets forth the terms and conditions that apply to your access and use of the internet website owned and operated by Hypester OU ("Mobtizer", "we", "our" or "us") and located at www.Mobtizer.com (the "Site") and the services available thereon, including without limitation the services that enable you to create, test and host promotion specific custom landing pages for online marketing purposes (the "Services").
BY ACCEPTING THIS AGREEMENT, EITHER BY COMPLETING THE ONLINE APPLICATION PROCESS BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SUBSCRIPTION THAT REFERENCES THIS AGREEMENT (THE "SUBSCRIPTION"), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Ability to Enter into this Agreement
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you in your jurisdiction of residence or otherwise. If you accept this Agreement, you represent that you have the capacity to be bound by it.
Your Profile Information and Account
You agree and understand that you are responsible for maintaining the confidentiality of your password which, together with your email address, allows you to access the Services. That email address and password, together with any or other user information you provide, form your "Profile Information" and allow you to access your account ("Account"). You agree to provide true, accurate, current and complete information about yourself, and you may not misrepresent your Profile Information.
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You agree not to disclose your password to any third party. You are solely responsible for all activities that occur under your Account or under your Profile Information. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying Mobtizer immediately.
By providing us with your e-mail address, you agree to receive all required notices electronically, to that e-mail address. It is your responsibility to update or change that address, as appropriate.
You shall pay all fees specified in any Subscription. We will charge you a monthly fee based on the total traffic you plan to send to your web pages hosted using the Services. Such monthly fees shall be billed in advance for each month and are non-refundable. There will be no refunds or credits for partial months of service or for periods in which your account remains open but you do not use the Services. If the total traffic to your web pages hosted using the Services increases beyond that which you have specified, you will be informed that you have exceeded your traffic limit and you must modify your account settings such that your subscription plan traffic limit accommodates the traffic you have received within the current billing period.
We reserve the right to modify our billing rates at any time upon thirty (30) days written notice by posting such fee changes to the Services or on the Site.
At our discretion, we may offer free or discounted pricing for use of the Services (a "Trial Program"). Once the terms of any Trial Program have expired, you agree that our normal billing rates shall apply. You agree to comply with any additional terms, restrictions or limitations (including limitations on the total amount of usage) we impose in connection with any Trial Program. You may not sign-up for multiple Accounts in order to receive additional benefits under any Trial Programs.
Submission of Content
The Site and the Services available thereon enable you to provide or upload content, including but not limited to text, images, video, data, and other information or content (collectively, "Content"), to Mobtizer for the purpose of providing the Services. You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences for submitting, providing or uploading it.
Mobtizer will use Content you upload solely in connection with providing the Services to you, and for no other reason. You agree that by uploading, or otherwise providing any Content on or through the Site and/or the Services, you grant to Mobtizer a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, display, all or any portion of such Content, solely in connection with providing the Services to you. This license includes the right to host, index, cache or otherwise format your Content in order to provide the Services.
You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to Mobtizer or Mobtizer's use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
Mobtizer retains the right to use or distribute any Aggregated Data generated by our customers or users. "Aggregated Data" means records which have been stripped of information potentially identifying customers, landing pages or end-users, and which have been manipulated or combined to provide generalized, anonymous information.
Intellectual Property Rights
All right, title, interest and ownership and intellectual property rights in and to the Mobtizer trademarks and the Site, including but not limited to its "look and feel" (e.g., text, graphics, images, logos, buttons, icons and the placement and layout thereof), images, video, audio, data, content, software (including html-based computer programs) and other media, material or information, other than your Content, are and will remain the property of Mobtizer or its software or content suppliers.
Subject to the terms and conditions of this Agreement, Mobtizer grants to you, during the term of this Agreement, a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose right to access and use the Services that are subject to a valid Subscription.
You acknowledge that any ideas, suggestions, concepts, processes or techniques which you provide to Mobtizer related to the Services, the Site or Mobtizer or its business ("Feedback") shall become Mobtizer's property without any compensation or other consideration payable to you by Mobtizer, and you do so of your own free will and volition. Mobtizer may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Mobtizer may decide into the Site, its software, services, documentation, business or other products, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to Mobtizer in any Feedback and, as applicable, waive any moral rights.
Mobtizer owns any test results, data information and other output generated by your use of the Site and/or the Services during the term of this Agreement. You may not disclose to any third party any test results or performance information regarding the Site or the Services, whether generated by you, Mobtizer or a third party, except where expressly permitted.
You agree to safeguard, keep secret and not to disclose to any third party, any Confidential Information acquired, learned or provided from Mobtizer during the term of this Agreement or following the expiration or termination of this Agreement. "Confidential Information" means any information marked confidential or that ought reasonably to be considered confidential under the circumstances and includes, without limitation, any business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.
Acceptable Use and Conduct:
You agree that that you will not publish or make available any Content that, or use the Site in a manner that:
(a) infringes, violates or misappropriates any third party's intellectual property or proprietary rights;
(b) contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(d) is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
(e) is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another's privacy;
(f) is harmful to minors in any way;
(g) is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Mobtizer;
(h) impersonates an Mobtizer employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity, or to obtain access to the Site or a portion thereof without proper authorization;
(i) interferes or attempts to interfere with the proper working of the Site or prevents others from using the Site, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site, or that otherwise negatively affects other persons' ability to use the Site, or inadvertently or intentionally disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or any other site or system in use by another user of Mobtizer;
(j) uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy the Site or the content contained therein;
(k) facilitates the unlawful distribution of copyrighted Content;
(l) licenses, sublicenses, rents or leases the Services to third parties, uses the Services for third party training, commercial time-sharing or service bureau use, or otherwise makes the Services available to third parties or otherwise commercially exploits the Services;
(m) includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site to users;
(n) constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
(o) stalks or otherwise harasses anyone on the Site or with information obtained from the Site;
(p) collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
(q) requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of the Site for the purposes of automating logins to the Site;
(r) attempts to gain unauthorized access to the computer systems of Mobtizer or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site;
(s) posts adult or pornographic Content;
(t) decompiles or reverse engineers or attempt to access the source code of the software underlying the Site, the Services or any other Mobtizer technology;
(u) copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Site;
(v) accesses the Site for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in the Site;
(w) accesses the Site for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or
(x) accesses the Site to upload any Content or computer code for the purposes of: (i) causing a breach of security to the Site; (ii) interfering with the proper working, functionality or performance of the Site; or (iii) preventing others from accessing or using the Site.
Disclaimer of Warranties
YOUR USE OF THE SITE AND ALL CONTENT FORMING PART OF OR RELATED TO THE SITE, INCLUDING ANY CONTENT YOU UPLOAD OR SUBMIT AND ANY THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MOBTIZER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT.
MOBTIZER DISCLAIMS ANY WARRANTY THAT THE SITE OR ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT FROM TIME TO TIME MOBTIZER MAY REMOVE THE SITE FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU. YOUR ACCESS AND USE OF THE SITE MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SITE OR OTHER ACTIONS THAT MOBTIZER, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE. MOBTIZER MAKES NO GUARANTEE REGARDING: (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON THE SITE; OR (B) THE COMPATIBILITY OF YOUR SOFTWARE, HARDWARE OR CONTENT WITH THE SITE.
MOBTIZER IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY MOBTIZER, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY MOBTIZER.
YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR CONTENT IS COMPATIBLE WITH THE SITE. MOBTIZER DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR ANY UNAUTHORIZED USE OF YOUR CONTENT BY THIRD PARTIES OR OTHER USERS OF THE SITE AND IS NOT RESPONSIBLE FOR PROTECTING YOUR CONTENT.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOBTIZER OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
THE SITE IS OFFERED AND CONTROLLED BY MOBTIZER FROM ITS FACILITIES IN ESTONIA. MOBTIZER MAKES NO REPRESENTATIONS THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
Third Party Sites and Content
The Site may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. These other websites are not under Mobtizer's control, and you acknowledge that Mobtizer is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Mobtizer or any association with its operators. You further acknowledge and agree that Mobtizer shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such website or resource. Access and use of third party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.
Limitation of Liability
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, SHALL MOBTIZER OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF MOBTIZER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR YOUR INABILITY TO USE THE SITE, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY SUBSCRIPTION. MOBTIZER'S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE LESSER OF: (A) $100; AND (B) THE TOTAL AMOUNTS YOU PAID TO MOBTIZER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, MOBTIZER'S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
THE FOREGOING LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY CONTENT OR SERVICES PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN MOBTIZER AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SITE OR RECEIVED BY YOU ON ANY THIRD PARTY SITES. YOU ALSO AGREE THAT MOBTIZER WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SITE.
Mobtizer reserves the right to modify, suspend or discontinue the Site and/or Services, or any portion thereof, with or without notice at any time and for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. Mobtizer shall have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result of any such modification, suspension or discontinuance.
You agree to indemnify, defend, and hold harmless Mobtizer, and its subsidiaries, affiliates, co-branders, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys' fees) arising out of or relating to this Agreement or the Site, including but not limited to in relation to: (a) your use, non-use or misuse of, or connection to the Site, the Services and any Content, including without limitation your Content and any third party Content, forming part of the Site; (b) your breach or alleged breach of this Agreement; and (c) your violation of any rights, including intellectual property rights, of a third party. Mobtizer reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Mobtizer and you agree to cooperate with Mobtizer's defense of these claims. You agree not to settle any matter without the prior written consent of Mobtizer. Mobtizer will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Cancellation and Termination
You may downgrade your account to the 'Free' subscription level at any time. To do this, log in to Mobtizer, go to the 'Manage Subscription' tab of the 'Account' section, click 'Change Your Plan' and select 'Downgrade to the Free Plan.'
At the 'Free' subscription level you will not be billed but your pages will remain intact and you can still access your account. To ensure that you no longer receive traffic to your pages you must make sure they are in an 'Unpublished' condition.
You will remain liable for all charges accrued on your Account up to the time that you downgrade, including full monthly fees for the month in which you downgraded your Account. Mobtizer is under no obligation to store your Content and may delete your Account and your Content immediately upon cancellation or after your account has been downgraded to the 'Free' subscription level. Mobtizer may keep your Account and your Content indefinitely following cancellation or after your account has been downgraded to the 'Free' subscription level.
Mobtizer reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. Mobtizer reserves the right to terminate any portion of the Site at any time, for any reason, with or without notice.
If there is any dispute between you and Mobtizer about or involving this Agreement, the Site or the Services, you hereby agree that the dispute shall be governed by and construed in accordance with the laws of the Republic of Estonia, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in Republic of Estonia with respect to any claim, proceeding or action relating to or otherwise arising out of this Agreement, the Site or the Services, howsoever arising, provided always that Mobtizer may seek and obtain injunctive relief in any jurisdiction.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
You agree that this Agreement is specifically enforceable by injunctive relief and other equitable remedies without proof of monetary damages.
You agree that if Mobtizer does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Mobtizer has the benefit of under any applicable law), this will not be taken to be a formal waiver of Mobtizer's rights and that those rights or remedies will still be available to Mobtizer.
The sections of "Submission of Content", "Intellectual Property Rights", "Confidential Information", "Disclaimer of Warranties", "Third Party Sites and Content", "Limitation of Liability", "Indemnity" and "Miscellaneous" will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.