MobileUp's Terms of Service
Last Updated: November 10, 2020
MobileUp provides engagement and event technology to organizations and individuals for member management, member communication, meetings, events, and conferences. We require that all end users of our website and mobile applications adhere to the following terms and conditions of use (these “Terms”). These Terms govern your use of our services; any content or information therein, including MobileUp Admin Console, Branded Engage 365 Apps, Container Engage 365 App, Branded Event Apps, Container Event App, and any other website pages on which services are provided by us (collectively, the “Services”). Throughout these Terms, when we write “MobileUp”, “we”, “us”, or “our”, we are referring to Essenza Software, Inc., a Kansas corporation, dba MobileUp Software. Please read these Terms carefully before using the Services. By using the Services, you are agreeing to comply with these terms. If you do not agree to be bound by these terms, do not use the Services.
By accessing and using the Services, you agree, on your own behalf and on the behalf of any corporation or other legal entity that you represent or for which you access the Services (your “Company”), to be bound by and comply with these Terms and to comply with all applicable laws and regulations.
CHANGES TO THESE TERMS AND THE SERVICES
MobileUp may change these terms at any time, and all such changes are effective immediately upon notice, which we may give by any means, including, but not limited to, by posting a revised version of these Terms or other notice on MobileUp’s website. You should view these Terms often to stay informed of changes that may affect you. Your use of the Services constitutes your continuing agreement to be bound by these Terms, as they are amended from time to time. We expressly reserve the right to make any changes that we deem appropriate from time to time to our applications or to any information, text, data, databases, graphics, images, sound recordings, audio and visual clips, logos, software, opportunities, features, services, and other materials within the Services (all such materials, and any compilation, collection, or arrangement thereof, the “Content”).
You understand and agree that we own, or (where applicable) we have lawfully licensed from third parties, all right, title, and interest in and to the Services and all of the Content. You acknowledge and agree that the Content constitutes valuable proprietary information that is protected by applicable intellectual property and other proprietary rights, laws, and treaties of the United States and other countries, and that you acquire no ownership interest by accessing or using the Services or the Content. Such intellectual property and proprietary rights may include, but are not limited to, copyrights, trademarks and service marks, trade dress, and trade secrets, and all such rights are the property of MobileUp or its licensors and Content providers.
End User License and Access and Use
You may access and use the Services only for your personal use (or, if accessing the Services on behalf of a Company, only your Company’s own internal use). Any other access to or use of the Services or the Content constitutes a violation of these Terms and may violate applicable copyright, trademark, or other laws. We make no representation that the Content is appropriate or available for use in your location. A reference to a product or service on our applications or websites does not imply that such product or service is or will be available in your location. The Content, including advertising content, is intended for use and display only where its use and display are permissible in accordance with applicable laws and regulations. Each product or service is void where prohibited by law.
You may not access, use, or copy any portion of our applications, websites, or the Content through the use of bots, spiders, scrapers, web crawlers, indexing agents, or other automated devices or mechanisms. You agree not to remove or modify any copyright notice or trademark legend, author attribution, or other notice placed on or contained within any of the Content. Except as expressly authorized by us in writing, in no event will you reproduce, redistribute, duplicate, copy, sell, resell, or exploit for any commercial purpose any of our applications, websites, or the Content or any access to or use of our applications, websites, or the Content.
No one under the age of 13 may use the Services. By using or attempting to use the Services, you represent that you meet the age requirement.
Restrictions on Access
You represent and agree that all information that you provide to us in connection with your access to and use of the Services is true, accurate, and complete to the best of your knowledge and belief. MobileUp reserves the right, in its sole discretion, to terminate your access to all or part of the Services, without notice or liability, for any reason, including, but not limited to, the breach of any agreement between you and MobileUp, including these Terms. Following any such termination of access, you will continue to be bound hereunder to the fullest extent applicable.
Upon being notified that your access is terminated, you must destroy any materials you have obtained from the Services. You may not access the Services after your access is terminated without our written approval. After terminating your access, MobileUp will retain all rights, including all intellectual property rights, proprietary rights, and licenses retained in these Terms, and the limitations upon your use and treatment of Content will remain in full force.
You are responsible for maintaining the confidentiality of your password and account. You are fully responsible for all uses of your password and account, including any unauthorized use. You agree to: (a) keep your password confidential and not share it with anyone else, and (b) immediately notify us of any unauthorized use of your password or account.
You acknowledge and agree that we are authorized to act on instructions received through use of your password and account, and that we may, but are not obligated to, deny access or block any transaction made through use of your password or account without prior notice if we believe your password and account are bing used by someone other than you, or for any other reason.
End User Supplied Content
You will retain ownership of all Content that you post and permit us to use. You hereby grant MobileUp the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all content, remarks, suggestions, ideas, graphics, or other information communicated to MobileUp through the Services or any Content (together, the “Submission”), and to incorporate any Submission in other works in any form, media, or technology no known or later developed. In the absence of a specific agreement with MobileUp to the contrary, MobileUp will not be required to treat any Submission as confidential, and may use any Submission in its business (including without limitation, for services, products, or advertising) without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future MobileUp operations.
You understand that we may, but shall not be obligated to, use your Content. You understand that we may remove Content from any use or material for any reason and at any time, without notice. You understand we cannot be responsible for any third party use of your Content, event if that use is derived from our use.
By posting any Content through our Services, you provide your consent for MobileUp to process any of your personal data contained in such posts.
End User Conduct
In connection with your access and use of the Services and that of any person authorized by you to access and use the Services, you are responsible for complying with all applicable laws, regulations, and policies of all relevant jurisdictions, including all applicable local rules regarding online conduct.
You may not post, send, submit, publish, or transmit in connection with the Services or any Content any material that:
- Advocates illegal activity or discusses an intent to commit an illegal act;
- Is vulgar, obscene, pornographic, racist or indecent;
- Threatens, abuses, libels, defames, invades the privacy of, stalks, or harasses others;
- Seeks to exploit or harm children by exposing them to inappropriate content or by asking for personally identifiable information;
- You do not have the right to transmit, including proprietary material of any third party;
- Infringes any intellectual property or other right of any entity or person, including violating anyone’s copyrights or trademarks or their rights of publicity;
- Violates any law or may be considered to violate any law;
- Impersonates or misrepresents your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;
- Solicits funds, advertisers, or sponsors;
- Includes programs that contain viruses, worms, and/or 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;
- Violates any policy or regulations established from time to time regarding use of the Services or any networks connected to our applications and websites; or
- Contains links to other services or websites that contain content that falls within the descriptions set forth above.
MobileUp takes such commercially reasonable measures as it deems appropriate to secure and protect information transmitted to and from its applications and websites. Nevertheless, we cannot and do not guarantee that any such transmissions are or will be totally secure. You are responsible for maintaining the confidentiality of any information about you, including any username and any password user in connection with your use of the Services. You agree to notify MobileUp immediately if you discover loss or access to such information by another party not under your control or supervision. MobileUp will not be liable for any loss or damage arising from the unauthorized use of your username and password.
Disclaimer of Warranties
THE SERVICES, INCLUDING ALL CONTENT AND CLIENT CONTENT INCORPORATED IN THE SERVICES AND TECHNOLOGY USED TO PROVIDE THE SERVICES (INCLUDING ANY TECHNOLOGY, SOFTWARE, OR HARDWARE PROVIDED BY A THIRD PARTY), ARE PROVIDED “AS-IS” AND “WITH ALL FAULTS.” MOBILEUP DOES NOT MAKE AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT WITH RESPECT TO THE SERVICES AND ANY TECHNOLOGY, SOFTWARE, OR HARDWARE PROVIDED BY A THIRD PARTY. MOBILEUP DOES NOT WARRANT THAT THE USE OR OPERATION OF THE SERVICES WILL BE WITHOUT INTERRUPTION, SECURE OR ERROR-FREE.
Limitation of Liability
MOBILEUP, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES WILL NOT BE LIABLE FOR ANY LOSSES, DAMAGES, COSTS, OR EXPENSES RELATING TO (A) CONTENT CREATED OR SUBMITTED BY YOU OR YOUR COMPANY, (B) THE RESULTS THAT MAY BE OBTAINED OR DECISIONS MADE USING ANY PART OF THE SERVICES, (C) ANY DAMAGES RESULTING FROM UNAUTHORIZED THIRD PARTY MISUSE OF THE SERVICES, OR (D) ANY DAMAGES CAUSED BY YOUR FAILURE TO PERFORM YOUR RESPONSIBILITIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL MOBILEUP BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RELATED TO LOSS OF DATA OR INFORMATION OR LOST PROFITS, RE-LATING TO OR ARISING FROM THIS AGREEMENT, INCLUDING THE USE OF, OR INABILITY TO USE ANY OF THE SERVICES, OR ACTION OR INACTION WITH RESPECT TO THE SERVICES, EVEN IF MOBILEUP IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY. MOBILEUP’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED FIFTY-PERCENT (50%) OF THE TOTAL AMOUNT PAID BY CLIENT TO MEMBERCLICKS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES. ALL LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. IF NO FEE IS PAID TO MOBILEUP, MOBILEUP DOES NOT RETAIN ANY LIABILITY.
You agree to defend and indemnify MobileUp, its officers, directors, employees, or affiliates against all claims, demands, suits, or other proceedings, and all resulting loss, damage, liability, cost, and expense (including reasonable attorneys’ fees), made by any third party arising out of: (a) your access to and use of the Services, the Content, and other materials, products, and services available on or through the Services and MobileUp parties; (b) your violation of these Terms; (c) your violation of any rights of any third party; and (d) your website. We reserve, and you grant us, the right to assume the exclusive defense and control of any matter subject to indemnification by you.
These Terms are governed by and will be construed in accordance with the laws of the State of Kansas. The federal and state courts encompassing Overland Park, Kansas shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of the Agreement, and you expressly consent to the personal jurisdiction of such courts, and service of process being affected upon you by registered mail.
No Third-Party Rights
These Terms are not intended to and do not confer any rights, benefits, or remedies upon any person other than the you and MobileUp.
If you have entered into a separate agreement with MobileUp with respect to your use of the Services or any Content, that agreement will supersede these Terms to the extent they are in conflict.