ACUITY MOBILE TERMS AND CONDITIONS OF SERVICE
Please read these terms and conditions of service carefully before you launch mobile applications provided by Acuity Mobile on your wireless device. Your use of the Acuity Mobile application indicates that you accept these terms and conditions. If you do not accept these terms and conditions, do not launch or otherwise use the Acuity Mobile application.
INTRODUCTION
These terms and conditions of service represent the agreement (“Agreement”) between you and Acuity Mobile, Inc. (“Acuity Mobile”) with respect to the Acuity Mobile application service (the “Acuity Mobile Service” or “Service”). All references herein to “you” and “your” means you, your employees, agents, and contractors, and any other entity on whose behalf you accept these terms and conditions, all of whom shall also be bound by this Agreement.
Acuity Mobile may revise these terms and conditions at any time, with or without notice to you. You should visit http://www.Acuity Mobile.com from time to time to review the then current terms and conditions for the Acuity Mobile Service.
THE ACUITY MOBILE SERVICE
Acuity Mobile provides mobile marketing solutions for well-known brands and enterprises. The Acuity Mobile Service enables a brand or enterprise to interact with you by delivering content, information, promotional offerings, coupons, etc. to your mobile device. The service utilizes multiple mobile data communication modes, including text messaging, mobile web, and downloadable applications. There is no monthly fee associated with the use of this service, however, text messaging and data charges billed by your carrier may apply. A complete description of the Acuity Mobile Service is available at the Products link on Acuity Mobile’s website, located at http://www.acuitymobile.com/products/emap.php.
The Acuity Mobile Service may use data licensed to or provided to Acuity Mobile by Acuity Mobile’s brand or enterprise customers or other third parties. This data is used for the benefit of you and to improve the overall usage experience. Any additional terms and conditions required by Acuity Mobile’s brand or enterprise customers or other third parties will be referred to in the set-up process presented on the mobile phone upon activation this Service.
YOUR LOCATION AND OTHER PERSONAL INFORMATION
Acuity Mobile’s downloadable applications may access GPS, if available, from your device to determine your location. This information is used to provide you with a better user experience and deliver content and information that is relevant to you based on your geographic location. You must provide consent upon the initial start-up of the application to allow the application to use your location.
Additionally, the Acuity Mobile Service may collect Personally Identifiable Information (“PII”). PII is information that can be directly associated with a specific person or entity, and may include your name, mobile phone number, and email address. The Acuity Mobile Service may also collect information about your wireless device type, the name of your wireless carrier, the types of interactions and transactions you invoke in response to the Acuity Mobile Service, and your preferences. This is Non-Personally Identifiable Information (“Non-PII”) and this is used to improve the Service to deliver more relevant content and marketing messages, as well as to measure the effectiveness of information, content, and promotional offers. PII and Non-PII information is subject to Acuity Mobile’s privacy policy located at http://www.acuitymobile.com/help/privacy.php. Your use of the Acuity Mobile Service indicates that you accept the terms of Acuity Mobile’s privacy policy.
SAFE AND LAWFUL USE OF THE ACUITY MOBILE SERVICE
You agree to comply with the following when using the Acuity Mobile Service:
• Do not use the Acuity Mobile Service for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes, or in any manner inconsistent with this Agreement.
• Do not use the Acuity Mobile Service while operating a motor vehicle.
TELEPHONE CHARGES
You are responsible for any fees assessed by your wireless telephone carrier to access the Acuity Mobile Service, including any data plan charges, text messaging charges, tolls, out-of-area roaming, or other telephone connection charges.
TERMINATION
Acuity Mobile reserves the right to terminate your access to the Acuity Mobile Service at any time for any or no reason and without notice to you.
You may terminate the Acuity Mobile Service at any time by notifying Acuity Mobile via (i) an email addressed to care@Acuity Mobile.com, (ii) a letter addressed to Acuity Mobile, Inc., 7852 Walker Drive, Suite 350, Greenbelt, MD 20770, or (iii) a phone call to Acuity Mobile Customer Support at 866-612-7309.
Any such cancellation by you shall become effective when processed by Acuity Mobile.
Upon any termination of your Acuity Mobile Service, Acuity Mobile shall have no liability to you or any further obligations under this Agreement.
SOFTWARE LICENSE
Subject to your compliance with the terms of this Agreement, Acuity Mobile hereby grants to you a personal, non-exclusive, non-transferable, limited license to: (i) download or otherwise copy the Acuity Mobile Software onto your wireless device, and (ii) use the Acuity Mobile Software (in object code form only) on such wireless device in order to access and use the Acuity Mobile Service.
This license shall terminate upon any termination of this Agreement, or upon any suspension, termination or cancellation of your access to the Acuity Mobile Service.
Except for the limited license expressly granted herein, Acuity Mobile and its licensors shall own all right, title and interest in and to the Acuity Mobile Software and the data provided with the Software, including without limitation all intellectual property rights therein.
You agree not to do any of the following:
• Reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change the Acuity Mobile Software, or any part thereof.
• Attempt to derive the source code, audio library or structure of the Acuity Mobile Software without the prior express written consent of Acuity Mobile.
• Remove from the Acuity Mobile Software, or alter, any of Acuity Mobile’s or its suppliers’ trademarks, trade names, logos, patent or copyright notices, or other notices or markings.
• Distribute, sublicense or otherwise transfer the Acuity Mobile Software to others.
• Use the Acuity Mobile Software while driving a motorized vehicle.
DISCLAIMERS
To the fullest extent permissible pursuant to applicable law, in no event will Acuity Mobile, its licensors and suppliers, or agents or employees of any of the foregoing, be liable for any decision made or action taken by you or anyone else in reliance on the information provided by the Acuity Mobile Service or the Acuity Mobile Software. You are responsible for the entire risk arising out of your use of the Acuity Mobile Service and the Acuity Mobile Software.
The Acuity Mobile Service and the Acuity Mobile Software are provided “as is” and without warranties of any kind either express or implied. Acuity Mobile disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, non-infringement and fitness for a particular purpose.
Applicable law may not allow certain warranty exclusions, so one or more of the above disclaimers may not apply to you.
OTHER QUALIFICATIONS
You understand and agree that the Acuity Mobile Software is downloaded to your wireless device at your own discretion and risk and that you will be solely responsible for any damages to your wireless device, or loss of data, that results from the download or operation of such software.
Acuity Mobile does not warrant that the Acuity Mobile Service or the Acuity Mobile Software will not infringe on third party intellectual property rights.
Acuity Mobile also does not warrant that your use of the Acuity Mobile Service will be uninterrupted or error-free. Rather, temporary interruptions of the Acuity Mobile Service may occur from time to time (such as when you drive into an area that has no cell phone coverage or when the Acuity Mobile Service or your carrier’s network is undergoing maintenance). Acuity Mobile will exercise reasonable efforts to attempt to limit or prevent such occurrences, but in no event will Acuity Mobile be liable for any financial or other damages due to such interruptions.
Acuity Mobile also does not warrant the accuracy of maps, location, or other data used for the Acuity Mobile Service. Acuity Mobile has technological and operational security policies and procedures to protect your information from loss, misuse, alteration, or unintentional destruction, but Acuity Mobile makes no representations or warranties regarding the security of the Acuity Mobile Service or the transmission of data or information to and from Acuity Mobile and your wireless device. Acuity Mobile will not be liable to you or anyone else in the event of any unauthorized infiltration of any of its systems.
LIMITATION OF LIABILITY
To the extent permitted under applicable law, under no circumstances shall Acuity Mobile or its licensors (or their licensors and suppliers) be liable to you or anyone else for any loss, injury, or damages (including but not limited to any compensatory, punitive, special, incidental, indirect, exemplary or consequential damages) arising out of or in connection with the use by you or anyone else of the Acuity Mobile Service or the Acuity Mobile Software, any defects in the Acuity Mobile Service or the Acuity Mobile Software, or any breach of this Agreement, even if Acuity Mobile or its licensors have been advised of the possibility of such damages.
Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above exclusion may not apply to you.
INDEMNIFICATION
To the extent permitted by applicable law, you agree to indemnify, defend and hold Acuity Mobile and its licensors (including their respective licensors, suppliers, assignees, subsidiaries, affiliated companies, and the respective officers, directors, employees, shareholders, agents and representatives of each of them) free and harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense, or claim of any kind or character, including but not limited to attorney’s fees, arising out of or in connection with your use of the Acuity Mobile Service or the Acuity Mobile Software.
ARBITRATION AND GOVERNING LAW
You agree that any dispute, claim or controversy arising out of or relating to this Agreement, the Acuity Mobile Service, or the Acuity Mobile Software, shall be settled by independent arbitration involving a neutral arbitrator and administered by the American Arbitration Association. The arbitrator shall apply the Commercial Arbitration Rules of the American Arbitration Association, and the judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction. Note that there is no judge or jury in an arbitration proceeding and the decision of the arbitrator shall be binding upon both parties.
This Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State of Maryland, this is good without giving effect to its conflict of laws provisions. You agree to submit to the exclusive jurisdiction of the courts of the County of Baltimore, Maryland.
MISCELLANEOUS
This Agreement constitutes the entire agreement between Acuity Mobile and you with respect to the subject matter hereof.
Acuity Mobile’s or your failure to require performance of any provision shall not affect that party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
If any provision herein is held unenforceable, then such provision will be modified to reflect the intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Acuity Mobile. Notwithstanding the foregoing, Acuity Mobile may assign this Agreement to any affiliate or successor company at any time without notice.
By using the Acuity Mobile Service, you consent to receive from Acuity Mobile all communications, including notices, agreements, legally required disclosures or other information in connection with the Acuity Mobile Service (collectively, “Notices”) electronically. Acuity Mobile may provide such Notices by posting them on Acuity Mobile’s website or by downloading such Notices to your wireless device. If you desire to withdraw your consent to receive Notices electronically, you must discontinue your use of the Acuity Mobile Service.
If you have any questions regarding the terms of this Agreement, please contact Acuity Mobile by sending an email to care@Acuity Mobile.com, by writing to Acuity Mobile Customer Service, 7852 Walker Drive Greenbelt, MD 20770, or by calling Acuity Mobile Customer Support at 866-612-7309.