SMS Campaigns - Terms and Conditions
Last modified: August 2015
These Standard Terms and Conditions and the Insertion Order (collectively, the "Agreement") are entered into by and between POP SOLUTIONS, LLC d/b/a Ping Mobile ("Ping Mobile"), a California corporation, with its business offices located at 8950 W. Olympic Blvd. Suite 649, Beverly Hills, CA 90211, and the party specified as the Client in the Insertion Order (the "Advertiser") for the term of the advertising campaign stated in the Insertion Order.
Ping Mobile provides access to its proprietary Ping Mobile Marketing Suite of Services and Applications (the "Program"), subject to these Terms of Service ("TOS"). By utilizing all or any aspect of the Program, Advertiser hereby agrees to abide by all the terms and conditions set out below.
Ping Mobile reserves the right to amend, alter, delete or add to any of the provisions of this TOS, at any time at its sole discretion, without advance notice to you. Advertisers continued use of, or participation in, the Program confirms Advertisers irrevocable acceptance of the TOS, as amended from time to time, and subject to Advertisers continued compliance with the terms and conditions herein. IF ANY MODIFICATIONS TO THE TOS ARE UNACCEPTABLE TO ADVERTISER, ITS ONLY RECOURSE AGAINST THE COMPANY IS TO TERMINATE ITS PARTICIPATION IN THE PROGRAM.
1. INTRODUCTION / DESCRIPTION OF PRODUCTS & SERVICE
a. Through Ping Mobile, Advertiser will be provided with an innovative and proprietary method to transmit coupons, marketing campaigns, promotional materials, and other permitted content (collectively, the "Campaign Content") to subscribers (the "Subscribers") via SMS text messaging.
b. Advertiser agrees and acknowledges Ping may deliver to Advertiser and/or Advertisers Subscribers, at any time, certain mandatory communications from wireless network carriers, network providers and content aggregators via the Ping Mobile short code. These communications include service announcements and administrative messages, and that these communications are considered part of Program. Advertiser may not opt out of sending or receiving them.
c. Advertiser is responsible for all third party fees incurred in the creation, management or maintenance of Advertisers mobile marketing campaigns, including without limitation, fees associated with the design, display or delivery of advertisements related to the Campaign Content. In addition, Advertiser is responsible for any and all equipment necessary to access and utilize the Program.
d. Ping Mobile will assign to Advertiser specific and unique keyword(s) that Subscribers will utilize to request the Campaign Content. These keyword are the exclusive property of Ping Mobile and licensed to Advertiser for use while it is a client of Ping Mobile and participating in the Program. Upon termination of the Agreement and/or this TOS for any reason, Advertiser shall no longer have any right to use the keyword(s) and Ping Mobile shall disable the keyword(s) and suspend any further SMS messages from being sent to and from it. Within ten (10) days from the termination of the Agreement, Ping Mobile reserves the right to assign the keyword to another client.
2. LICENSE
a. In accordance with the terms and subject to the conditions set forth in this TOS, the Ping Mobile hereby grants to Advertiser a non-exclusive, non-transferable limited right and license to use and access the Program in strict accordance with the terms and conditions herein and as communicated to Asdvertiser by Ping Mobile from time to time.
b. Except as may be explicitly and expressly permitted under the TOS or as otherwise agreed by Ping Mobile in writing, Advertiser agrees not to save, download, cut and paste, sell, license, rent, lease, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from the Program or any materials, code or content on or within the various applications made available to it through the Program. Systematic retrieval of data or other content from the Program to create or compile, directly or indirectly, a collection, compilation, database or directory of data without written permission from Ping Mobile is expressly prohibited.
c. Advertiser agrees during the term hereof and thereafter to protect the integrity of the Program and thereby not cause or permit the reverse engineering, disassembly, de-compilation, disclosure, deconstruction or modification of any application or aspect of the Program, the underlying source code or any part thereof, without Ping Mobile's prior written consent, such consent to be withheld at Ping Mobile's sole discretion. Additionally, Advertiser is expressly prohibited from using the Program and/or the underlying source code in any manner not specifically authorized or contemplated in this TOS.
d. Under no condition may Advertiser sub-license, assign or otherwise transfer any rights granted hereunder to any third party without the express prior written consent of Ping Mobile, and any purported transfer shall be deemed null and void.
3. ADVERTISER'S ACCOUNTS & CAMPAIGNS
a. Once Advertiser has signed insertion order that has been approved and accepted by Ping Mobile, Advertiser may begin to use the various services and applications in the Program. All new campaigns as well as renewals on any existing campaigns shall be at Ping Mobile's sole discretion. In addition, pricing of new or renewed campaigns is subject to change by Ping Mobile. The Campaign Content must comply with the guidelines established and implemented by Ping Mobile as well as the Federal Trade Commission, the Federal Communications Commission, the Mobile Marketing Association, and any other applicable authority.
b. Advertiser acknowledges that each message delivered through the Program from within the Campaign Content must: (i) clearly state the sender's full name, (ii) current and accurate terms of the specific offer and the expiration date, if any, (ii) comply with the provisions of Section 5 herein, if requested to do so, Ping Mobile may provide Advertiserwith unique codes.
c. Advertiser understands and agrees that the operation and processing of the Program, and the delivery of the Campaign Content, may involve and require: (i) transmissions over various networks, and (ii) certain non-substantive changes to be made to the Campaign Content by Ping Mobile in order to conform and adapt the same for the Program, mobile marketing best practices or applicable law. In addition, upon commencement of a campaign or promotion of any kind, such campaign or promotion may not be terminated by Advertiser before the scheduled end date unless approved by Ping Mobile in writing.
d. Ping Mobile shall adhere to the provisions of its Privacy Policy with respect to its use of Subscriber data. As provided therein, Ping Mobile will not solicit or re-solicit any of Advertiser's Subscribers with other offers and promotions, nor will Ping make available Advertiser's Subscriber list to any other use of the Program without Advertisers express prior written consent. The foregoing notwithstanding and as set forth herein, Ping Mobile reserves the right to send to Advertisers Subscribers, without advance notice: (i). messages that are mandated by any of the wireless carriers, network providers or aggregators, or (ii), other messages, promotions or content which a respective Subscriber has separately and of its own action opted to receive from other advertisers.
e. Any technical problems associated with the Program should be sent to support@pingmobile.com
f. Advertiser agrees that Ping Mobile may issue a joint press release announcing the partnership and campaign/s of Advertiser with Ping Mobile, as well as case studies to the media.
4. FEES FOR USE
a. The pricing in effect on each campaign shall be set forth in the Insertion Order between Ping Mobile and Advertiser. Any changes to campaigns that are requested by Advertiser which require services to be rendered by Ping Mobile beyond the scope of the Program shall incur additional charges at Ping Mobile's hourly rates then in effect.
5. ADVERTISER CODE OF CONDUCT
a. Advertiser expressly agrees and acknowledges that it is solely responsible for all Campaign Content and other materials in its account which are made available to Subscribers through the Program. For example, Advertiser is solely responsible for ensuring all messages do not contain libelous or otherwise illegal content. Ping Mobile has no obligation whatsoever to review the Campaign Content, and disclaims all liability therefore.
b. Advertiser agrees to fully honor each and every promotion, coupon, sweepstakes and/or event set forth within the SMS messages delivered to Subscribers through the Program, based on the Campaign Content provided by Advertiser.
c. Legal and Regulatory Obligations. Advertiser must ensure that use of the Program by Advertiser comply with all relevant data and consumer protection legislation or such similar laws or regulations in all jurisdictions in which Subscribers reside.
(a) General Obligations. Advertiser's collection, access, use and disclosure of Subscriber information shall comply with all applicable foreign, federal, state, and local laws, rules and regulations as they may be amended from time to time, including without limitation (i) the Federal Communications Commission's Customer Proprietary Network Information rules and regulations implementing 47 USC § 222, (ii) the California Online Privacy and Disclosure Act of 2003, and (iii) laws governing marketing by telephone, direct mail, e-mail, wireless text messaging, fax , and any other mode of communication (collectively, "Privacy Laws"). Advertiser shall at all times perform its obligations hereunder in such a manner as not to cause Ping Mobile to be in material violation of any applicable laws or regulations, including any Privacy Laws. For purposes of its obligations hereunder, the acts or omissions of Advertiser's marketers, agents and employees (and such marketer's or agent's employees, agents, representatives, contractors, or subcontractors) shall also be deemed the acts or omissions of Advertiser. Advertiser shall not transmit any Campaign Content that:
1. violates the requirements of any Network Operator that transmits Campaign Content;
2. is false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;
3. does not comply with all applicable laws and regulations related to advertisements directed to children, is directed to children under the age of 13 and is not age appropriate, and take into account the level of knowledge, sophistication and maturity of the audience to which the message is primarily directed;
4. Advertiser does not have a right to make available under any law or under contractual or fiduciary relationship;
5. infringes any patent, trademark, trade secret, copyright, or other proprietary rights or rights of publicity or privacy of any party;
6. is unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," or any other forms of solicitation;
7. violates the standards of practice set forth by the Mobile Marketing Association or CTIA;
8. interferes with or disrupts the Program or Network Operators' networks connected to the Program, or disobeys any requirements, procedures, policies, or regulations of networks connected to the Program;
9. contains any (i) viruses, worms, Trojan horses, or other code that might disrupt, disable, harm, erase memory, or otherwise impede the operation, features, or functionality of any software, firmware, hardware, wireless device, computer system or network, (ii) traps, time bombs, or other code that would disable any software based on the elapsing of a period of time, advancement to a particular date or other numeral, (iii) code that would permit any third party to interfere with or access the Subscriber Information, and (iv) Content that causes disablement or iMarketer Participation Agreementirment;
10. intentionally or unintentionally violates any applicable local, state, national or international law, or any regulations having the force of law;
11. collects or stores personal data about Subscribers in connection with the prohibited conduct and activities set forth hereinabove.
12. Employs false email addresses, impersonates any person or entity (including, without limitation, Ping Mobile, its affiliates and licensors), or otherwise misleads any potential subscribers in any manner; or
13. Contains software designed to block, alter, direct or redirect, substitute, insert, or append itself to, or otherwise intercept or interfere in any manner with, any SMS other message-based transaction that originates from another retailer utilizing the Program;
b) Security. Advertiser will, at its own expense, take all security measures necessary to (i) protect the Program from unauthorized access, copying or use; and (ii) prevent third party access to Advertiser's password(s) to the Program. Any password issued to Advertiser is subject to cancellation or suspension by Ping Mobile at any time if Advertiser breaches this Code of Conduct and fails to cure such breach in accordance with the Agreement. Advertiser will promptly inform Ping Mobile if Advertiser becomes aware of any possible or actual unauthorized use or misuse of the Program.
c) Opt-Out. The Service enables Advertiser to obtain opt-in approval from each Subscriber before sending any SMS or MMS messages or other content to such Subscriber. Advertiser must give Subscribers the ability to opt-out of receiving Campaign Content. Advertiser will stop sending Messages to a Subscriber who has opted-out from receiving messages in accordance with applicable regulatory entity or regulation. Advertiser will, within 24 hours of receiving a written request from Ping Mobile, provide Ping Mobile with proof of Subscriber's opt-in requests, opt-out requests and/or Advertiser's response time for discontinuing the provision of messages to Subscribers who have opted-out to Ping's reasonable satisfaction. Advertiser agrees to keep such records during the term of this Agreement and for 1 year thereafter.
d) Prior Consent. Permission to communicate with a Subscriber must be solicited in advance in a form that is easily understandable. Detailed terms and conditions may be provided elsewhere, such as by referring to a website. No Content may be sent unsolicited or without the Subscriber's express consent. Affirmative Subscriber action is required to provide express consent. When inviting individuals to subscribe to receive Content, Advertiser must clearly explain what such individual is agreeing to receive. If additional Content is subsequently introduced, Advertiser shall invite Subscribers to subscribe to the new Content unless a Subscriber has specifically agreed in advance to receive all/any such additional Content. Subscribers having given their permission should not be sent Messages that they should not reasonably expect to receive.
d. Advertiser understands Ping Mobile has no obligation to resolve or mediate any dispute(s) by and between two or more users of the Program.
e. Advertiser acknowledges, consents and agrees that Ping Mobile may access, preserve, and disclose Adsvertiser account information and Campaign Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:
(i) Comply with legal process
(ii) Enforce the TOS
(iii) Respond to claims that any content violates the rights of third-parties
(iv) Respond to Advertiser requests for customer service, or
(v) Protect the rights, property, or personal safety of Ping Mobile, its users and the public.
f. Advertiser understands the Program and software embodied therein may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by Ping Mobile and/or content providers who provide content to the Program. Advertiser may not attempt to override or circumvent any of the usage rules embedded into the Program. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Program, in whole or in part, is strictly prohibited.
g. Please report any violations of the TOS to our Customer Service department at clientservices@pingmobile.com.
6. THIRD PARTY CONTENT
a. Ping Mobile is a distributor (and not a publisher) of content supplied by third parties like Advertiser. Accordingly, Ping Mobile has no more editorial control over such content than does a library or bookstore. Any information or content distributed or made available via the Program which is supplied by third parties are those of the respective submitters, and not of Ping Mobile. As a result of the foregoing, Ping Mobile cannot and does not guarantee the accuracy, completeness or usefulness of such content, nor its merchantability or fitness for a particular purpose.
b. Notwithstanding the foregoing, Advertiser acknowledges that Ping Mobile (or its designee(s)) shall have the right, but not the obligation in its sole discretion to pre-screen, refuse, or move any content that Advertiser wishes to make available via the Program. Without limiting the foregoing, Ping Mobile (and/or its designee) shall have the right to remove any Campaign Content that violates the TOS or is otherwise objectionable, in its sole discretion, without prior notice. Advertiser agrees that it is its sole responsibility to evaluate the nature of its content, and bears all risks associated therewith, including any reliance on the accuracy, completeness, or usefulness of such content.
7. INTELLECTUAL PROPERTY
a. The Program, including without limitation, any and all features, tools, content and applications therein, are the property of Ping Mobile and are protected by copyrights, moral rights, trademark, service marks, patents, trade secrets and other proprietary rights and laws in the United States and abroad. Advertiser rights with respect to use of the same are governed by all the terms and conditions of this TOS, all applicable laws, including but not limited to intellectual property laws, and any applicable end-user license agreements. For the avoidance of doubt, Advertiser use of the Program is solely and exclusively under the limited license granted herein and Advertiser will not obtain any ownership interest therein through this Agreement or otherwise.
b. All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Program are either the property of Ping Mobile, Ping and/or their respective affiliates, licensors and/or licensees. Ping Mobile grants Advertiser permission to use the Ping Rewards logo in advertising brochures, table tents, takeout menus and other marketing campaigns. All other uses are expressly prohibited without the prior written approval of Ping Mobile.
c. Under no circumstances shall Advertiser assert or contest any ownership rights in and to the Program and/or Ping Mobile's intellectual property in any action or proceeding of whatever kind or nature, nor shall Advertiser take any action that may prejudice, render generic, weaken or diminish the good will associated with Ping Mobile's intellectual property rights. Ping Mobile retains the right to rescind and terminate the limited license granted hereunder at any point, for any reason. Upon termination of this TOS, the license shall also terminate and all rights shall revert to Ping Mobile without the taking of action on the part of either party.
d. All rights not expressly granted herein by Ping Mobile to Advertiser are fully reserved by Ping Mobile, its advertisers and licensors.
8. INDEMNITY
d. All rights not expressly granted herein by Ping Mobile to Advertiser are fully reserved by Ping Mobile, its advertisers and licensors.Advertiser agrees to indemnify and hold Ping Mobile, and their respective officers, directors, employees, sub-contractors, subsidiaries, affiliates, agents, co-branders or other partners and representatives, harmless from any claim or demand, including reasonable attorneys' fees and costs, made by any third party due to or arising out of the Campaign Content or any other materials Advertiser submits, posts, transmits or makes available through the Program, Advertiser use of the Program, its connection to the Program, its violation of the TOS, and/or its violation of any rights of another.9. MODIFICATIONS TO SERVICE
Ping Mobile reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Program (or any part thereof) with or without notice. Advertiser agrees Ping Mobile shall not be liable to Advertiser or to any third party for any modification, suspension or discontinuance of Advertisers participation in or access to the Program.
10. TERM & TERMINATION
a. The terms and conditions of this TOS will commence when Advertiser completes and submits the campaign insertion order and it is officially accepted by Ping Mobile.
b. Except as stated otherwise herein, the term of this TOS will be ongoing unless and until either party terminates this TOS, which it may do at any time on sixty (60) days prior written notice, in accordance with the provisions of this Section 10. Upon termination of this TOS by either party, it will be considered to be terminated immediately following such notice period. In addition, Advertiser agrees that Ping Mobile may, under certain circumstances and without prior notice, immediately terminate Advertisers PingRewards account and access to the Program. Cause for such termination shall include, but not be limited to (i) breaches or violations of the TOS or other incorporated agreements or guidelines, (ii) requests by law enforcement or other government agencies, (iii) a request by Advertiser (self-initiated account deletions), (iv) discontinuance or material modifications to the Program (or any part thereof), (v) unexpected technical or security issues or problems associated with the Program, (vi) Advertiser engagement in fraudulent or illegal activities, as determined by Ping and/or Ping Mobile in its sole discretion, and/or (vii) nonpayment of any fees owed by Advertiser in connection with the Program.
c. Termination of Advertiser account includes: (i) removal of access to all offerings within the Program, (ii) deletion and/or disabling of Advertiser password, keyword and all related information, text associated to codes, activity reports and content associated with or inside Advertiser account (or any part thereof), and (iii) barring further use by Advertiser of the Program in any manner. Further, Advertiser agrees that all terminations for cause shall be made in Ping Mobile's sole discretion and that Ping Mobile shall not be liable to Advertiser or any third-party for any termination of Advertiser account or access to the Program.
11. DISCLAIMER OF WARRANTIES
Advertiser expressly understands and agrees that:
a. ADVERTISERS USE OF THE PROGRAM IS AT ITS SOLE RISK AND THE PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
b. THE PROGRAM IS DEPENDENT ON VARIOUS THIRD PARTY PROVIDERS BEYOND THE CONTROL OF THE COMPANY, INCLUDING WITHOUT LIMITATION, WIRELESS SERVICE PROVIDERS, NETWORK PROVIDERS, BILLING AND CONTENT AGGREGATORS, AND MORE;
c. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, PING MOBILE AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIES, THIRD PARTY CONTENT PROVIDERS AND/OR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OTHER THAN THOSE LAWS INCAPABLE OF EXCLUSION.
d. PING MOBILE MAKES NO WARRANTY THAT (i) THE PROGRAM WILL MEET ADVERTISERS REQUIREMENTS AND EXPECTATIONS, (ii) THE PRORAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PROGRAM WILL BE ACCURATE OR RELIABLE, (v) ADVERTISERS MESSAGES WILL BE DELIVERED IN A TIMELY AND ACCURATE MANNER, AND (vi) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
e. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISERFROM PING MOBILE, THROUGH, FROM OR RELATED TO THE PROGRAM, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
12. LIMITATION OF LIABILITY
a. ADVERTISER EXPRESSLY UNDERSTANDS AND AGREES THAT PING MOBILE SHALL NOT BE LIABLE TO ADVERTISER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PING MOBILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE PROGRAM; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PROGRAM; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF ADVERTISERS TRANSMISSIONS OR DATA; OR (iv) ANY OTHER MATTER RELATING TO THE PROGRAM.
b. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER THEORY OR CAUSE OF ACTION.
c. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 11 AND 12 MAY NOT APPLY TO ADVERTISER. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, PING MOBILE SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED $100.
13. MISCELLANEOUS
a. Notice. Ping Mobile may provide Advertiser with notices, including those regarding changes to the TOS, by email, regular mail, or postings on or through the Program.
b. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a cause beyond the reasonable control of and is not the fault of such party, including but not limited to labor disputes, strikes, industrial disturbances, acts of God, acts of terrorism, floods, lightning, utility or communications failures, earthquakes or other casualty. If a force majeure event occurs, the non-performing party is excused from whatever performance is prevented by the force majeure event to the extent prevented.
c. Choice of Law and Forum. The TOS and the relationship between Advertiser and Ping Mobile shall be governed by the laws of the State of New Jersey without regard to its conflict of law provisions. Advertiser and Ping Mobile agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Bergen, New Jersey.
d. Third Party Beneficiary. This TOS will be binding on, inure to the benefit of, and enforceable against Advertiser, and its respective successors and permitted assigns.
e. Relationship of the Parties. Nothing contained in this TOS, nor any action taken by any party to this Agreement, shall be deemed to constitute either party (or any of such party's employees, agents, or representatives) an employee, or legal representative of the other party, nor to create any partnership, joint venture, association, or syndication among or between the parties, nor to confer on either party any express or implied right, power or authority to enter into any agreement or commitment on behalf of (nor to impose any obligation upon) the other party.
f. Waiver and Severability of Terms. The failure of Ping Mobile to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
g. Statute of Limitations. Advertiser agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Program or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.
h. Entire Agreement. The TOS constitutes the entire agreement between Advertiser and Ping Mobile and governs Advertisers use of the Program, and supersedes any prior agreements between Advertiser and Ping Mobile with respect to the Program.