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1. About Mobile Update Me. JPB Enterprise, LLC, d/b/a Mobile Update Me, a New Mexico Limited Liability Company (“MUM”), operates the Mobile Update Me website (http://www.mobileupdate.me) and mobile application (collectively referred to as the “Service”) to aid in the ability of buyers, sponsors, organizations, employers or other entities (“Entity” or “You”) to broadcast communications to employees of Entity, or other persons who have been entered into the Service to receive alerts from Entity (collectively referred to as “Users”). Entity enters alerts (“Submissions”) into the Service whereby those Users who have subscribed to receive that Entity’s alerts receive the Submissions. UNDER NO CIRCUMSTANCES SHALL MUM BE LIABLE IN ANY WAY FOR ANY DISPUTES RELATING TO USER ACCEPTANCE RELATING TO THE SERVICE.
5. Effective Date. The Effective Date of this Agreement shall be the date you create your account.
6. Users of the Service. Users of the Service shall be any individuals identified by Entity to be included in the Service. Entity is responsible for all Submissions to the Service under Entity’s account. Only the Primary Director and Secondary Director can create, send, and manage Submissions. Entity ONLY has rights to submit Submissions updating Users. Entity shall designate a person or persons to have full rights over the Service as it relates to this Agreement (the “Primary Director”). The Primary Director is in charge of adding all Users to the Service. When User is entered into the Service, Primary Director shall enter the email addresses said User. The Primary Director may add Secondary Director(s) to the Service.
7. Security. Entity acknowledges that the Internet is inherently insecure and MUM and cannot guarantee that the Service is secure. MUM does not warrant that the Service is secure or “hacker proof.” Entity uses the Service solely at its own risk.
8. Submissions to the Service. Only Primary Director or Secondary Director shall make Submissions to the Service, and Entity is responsible for all Submissions to the Service. UNDER NO CIRCUMSTANCES SHALL MUM BE LIABLE IN ANY WAY FOR ANY SUBMISSIONS POSTED ON OR MADE AVAILABLE THROUGH THE SERVICE. MUM does not control, has no obligation to monitor, and is not responsible for what is contained in the Submissions and is not responsible for any offensive, inappropriate, obscene, unlawful, infringing or otherwise objectionable or illegal Submissions. No Submissions may be submitted that:
a) Violate any copyright, trademark rights, patent rights, trade secret rights, privacy or publicity rights, confidentiality rights, contract rights, or any other rights of any individual or legal entity;
b) Are harmful, hateful, threatening, abusive, harassing, defamatory or libelous; sexually explicit, vulgar, lewd, obscene, or pornographic; racially, ethnically or otherwise objectionable or offensive; inappropriate, or inflammatory;
c) Entity knows, or reasonably should know, are false, deceptive or misleading;
d) Contain personal information such as social security numbers, credit card, bank account or other financial information, driver’s license numbers, security codes or passwords;
e) Link to materials or other content, directly or indirectly, to which you do not have a right to link or that violates these restrictions;
f) Violate any applicable local, state, national, or international law; or
g) Are inconsistent with the values or the spirit of MUM.
9. License to Use Submissions. By posting Submissions, Entity is granting a non-exclusive, worldwide, royalty-free license for the term of this Agreement to edit, modify, adapt, translate, exhibit, publish, transmit, copy, prepare derivative works from, distribute, perform, display and use any Submissions in connection with the Service and/or MUM’s performance of the Service. Upon termination of this Agreement, all licenses granted herein shall be automatically terminated and all Submissions made by Entity shall be removed from the Service within a reasonably commercial time. Termination of this license does not terminate MUM’s right to preserve, access and disclose your Submissions if required to do so by law or in a good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Submission violates the rights of third-parties; or (d) protect the rights, property, or personal safety of MUM, its users and/or the public.
10. Use License. Permission is granted to use the Service for the purposes described in Section 1 of this Agreement. This is the grant of a license, not a transfer of title, and under this license you may not: attempt to decompile or reverse engineer the Service, including any future enhancements and revisions, or any related software on or associated with the MUM website. Further, Entity may not print, reproduce, copy, distribute, store or in any other fashion re-use content from the Service for any purposes without express written permission to do so by MUM. This license shall automatically terminate if Entity violates any of these restrictions. Upon terminating the license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
11. Warranties Regarding Submissions. With respect to Submissions made by Entity, Entity represents and warrants that the posting of any Submission does not violate this Agreement or applicable laws. MUM does not, and has no obligation to, monitor Submissions after posting or review Submissions prior to posting, and therefore, MUM does not guarantee the accuracy, integrity, or quality of Submissions. MUM reserves the right to review any or all Submissions and may, in its sole discretion, remove any Submission, in whole or in part. It is solely the Entity’s duty to ensure that all Submissions comply with applicable laws, and ensure that any necessary permission from applicable copyright holders is obtained. UNDER NO CIRCUMSTANCES SHALL MUM BE LIABLE IN ANY WAY FOR ANY SUBMISSIONS POSTED ON OR MADE AVAILABLE THROUGH THE SERVICE BY ENTITY. MUM does not control, has no obligation to monitor, and is not responsible for what Entity posts on or through the Service and is not responsible for any offensive, inappropriate, obscene, unlawful, infringing or otherwise objectionable or illegal Submissions.
12. Downtime. MUM will use its reasonable commercial efforts to ensure the continuous availability of the Service, but MUM makes no commitments regarding any particular uptime level due to periodic maintenance and/or factors which are beyond the control of MUM such as mechanical, telecommunication, software, hardware and third-party vendor failures, etc. MUM cannot predict or control the occurrence of such ‘downtime’ and cannot control the duration of such “downtime.” MUM shall not be held liable for such ‘downtime’ that may occur.
13. Restrictions on use of the Service. Entity agrees that the Service will not be used for any of the following purposes:
a) For any purposes other than updating Users and sending out emergency notifications to Users;
b) In a manner that is misleading, deceptive, fraudulent, or otherwise illegal or promotes illegal activities; or
c) To disseminate a virus or other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
14. Ownership of the Service and Submissions. The Service, including all of the software and code comprising or used to operate the Service, is owned by MUM or by third parties who have licensed their rights to MUM. No right, title, or interest in the Service or any MUM content is transferred herein. MUM does not claim ownership of the copyrights of Submissions. All information contained in Submissions shall be considered Non-Confidential and Non-Proprietary.
15. Trademarks. All tradenames, trademarks, and service marks displayed on the MUM websites are the registered or unregistered trademarks of MUM or its licensors, or other third parties (collectively, the “Trademarks”) and are protected by U.S. and international trademark laws and treaties. Entity may not use any Trademarks displayed in conjunction with the Service without the prior express written permission of MUM or the trademark owner.
16. Other Post-Termination Obligations. Entity will not malign, defame or disparage the reputation, character, image, products or services of MUM.
17. Non-Solicitation. During the term of this Agreement, and for a period of three (3) years thereafter, Entity agrees not to, directly or indirectly, solicit, recruit or employ any employee of MUM without the prior written consent of MUM.
18. Assignment and Transfer. Entity may not assign, directly or indirectly, all of part of its rights or obligations under this Agreement without the prior written consent of MUM which consent shall not be unreasonably withheld or delayed.
19. Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, MUM DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, WARRANTIES WITH RESPECT TO THE SERVICE, ANY CONTENT (INCLUDING SUBMISSIONS) ON THE SERVICE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
20. Disclaimer. MUM makes no representations or warranties as the accuracy, correctness, reliability, completeness, or usefulness of any Submissions, or any other content, appearing on this Service. Furthermore, the Submissions do not necessarily reflect the views or opinions of MUM.
21. Indemnification. Entity will indemnify and hold MUM and its members, managers, officers, directors, shareholders, employees, and agents, whether or not then serving in that capacity, harmless from any claims, damages, liabilities, costs, and expenses, including reasonable attorney fees, arising from the Services or any Submissions. This provision shall survive the termination of this Agreement.
22. Limitation of Liability. IN NO EVENT SHALL MUM OR ANY OF ITS MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS BE LIABLE TO ENTITY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF LIFE, LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THE SERVICES AND THE SUBMISSIONS, THIS AGREEMENT AND/OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF MUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ENTITY’S USE OF OR INABILITY TO USE THE SERVICE, INCLUDING ANY LOSS OR DAMAGE DUE TO VIRUSES THAT MAY AFFECT ENTITY’S COMPUTER EQUIPMENT, SOFTWARE, DATA OR OTHER PROPERTY ON ACCOUNT OF ENTITY’S USE OF THIS SERVICE OR ENTITY’S DOWNLOADING OF ANY MATERIAL FROM THIS SERVICE. MUM’S TOTAL LIABILITY (INCLUDING ATTORNEY FEES) FOR DAMAGES HEREUNDER OR ANY CAUSE WHATSOEVER RELATING TO THE SERVICES OR ANY APPLICATIONS THEREIN, SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY ENTITY TO MUM HEREUNDER FOR SUCH SERVICES. NOTHING IN THESE TERMS AND CONDITIONS SHALL LIMIT OR EXCLUDE LIABILITY FOR LOSSES OR DAMAGES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
23. Force Majeure. Neither party hereto shall be deemed in default of this Agreement to the extent that performance of its obligations (other than an obligation of payment) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, civil disturbance, terrorism, acts or omissions of suppliers and other third parties, act of government, strikes, unavailability of material, facilities, telecommunications services or supplies or any other cause beyond the reasonable control of such party (each, a “Force Majeure Event”).
24. Liquidated Damages. Both parties agree that it would be impracticable and extremely difficult to ascertain the amount of actual damages caused by material breaches of this Agreement. Therefore, the parties agree that, in the event it is established, in accordance with Section 27 of this Agreement, that Entity has violated this Agreement, Entity shall pay to the MUM as liquidated damages, ten thousand dollars ($10,000) for each breach. The parties further agree that this liquidated damages provision represents reasonable compensation for the loss which would be incurred by MUM due to any such breach. Entity also agrees that nothing in this Section is intended to limit MUM’s right to obtain injunctive and other relief as may be appropriate.
25. Default. If either party defaults under any provision of this Agreement and such default is not cured within fifteen (15) days after receipt from non-defaulting party of written notice of such default, the non-defaulting party may terminate this Agreement with the defaulting party. The parties agree that non-defaulting shall be entitled to reasonable attorney fees incurred in the enforcement of this Agreement.
(a) Nothing in this Agreement creates a joint venture, partnership, or Entity-employee relationship between MUM and Entity.
(b) Governing Law and Alternative Resolution. All matters relating to the interpretation, construction, application, validity, and enforcement of this Agreement will be governed by the laws of the State of New Mexico without giving effect to any choice or conflict of law provision or rule, whether of the State of New Mexico or any other jurisdiction, that would cause the application of laws of any jurisdiction other than the State of New Mexico. The parties agree that if any dispute between the parties arises, all such disputes shall be submitted to arbitration in the State of New Mexico.
(c) No Adequate Remedy at Law. Entity hereby acknowledges that the provisions of this Agreement are reasonable and necessary to protect the legitimate interests of MUM and that any violation of this Agreement by Entity will cause substantial and irreparable harm to MUM to such an extent that monetary damages alone would be an inadequate remedy therefore. Accordingly, in the event of any actual or threatened breach of any such provisions, MUM will, in addition to any other remedies it may have, be entitled to injunctive and other equitable relief to enforce such provisions, and such relief may be granted without the necessity of proving actual monetary damages.
(d) Entire Agreement. This Agreement contains the entire agreement of the parties and supersedes all prior agreements and understandings with respect to such subject matter. The parties hereto have made no agreements, representations, or warranties relating to the subject matter of this Agreement that are not set forth herein.
(e) Amendments. MUM may modify or amend this Agreement at any time. Your use of the Service after the date this Agreement was last modified or amended will be your consent to the changed terms. If you do not agree to any of the changes, you can cancel this Agreement at any time.
(f) Severability. To the extent that any portion of any provision of this Agreement is held invalid or unenforceable, it will be considered deleted here from and the remainder of such provision and of this Agreement will be unaffected and will continue in full force and effect.
(g) Survival. The provisions of this Agreement that by their terms or implication extend beyond the Term of this Agreement, shall survive the termination of this Agreement.
(h) Captions and Headings. The captions and section headings used in this Agreement are for convenience of reference only and will not affect the construction or interpretation of this Agreement or any of the provisions hereof.
(a) All users of any Entity will remain the exclusive property of MUM upon termination and may be used for any future use deemed necessary by MUM.
(b) MUM may at its discretion, at any time, elect to broadcast to all Entity’s and its users certain relevant, related and important information deemed such by MUM.