SocialMob Advertiser Terms and Conditions
Last Modified: May 22, 2018
The website located at http://www.socialmob.com
is provided by Web Value, Inc. d/b/a SocialMob, a California corporation (“SocialMob” or “We”), which allows registered advertisers (“Advertiser”, “You” and “Your”) to upload their offerings onto the SocialMob Advertising Platform (“Advertising Platform”). Clicks will be generated by SocialMob’s network of social media influencers (“SocialMob Influencers”) who are registered with SocialMob’s Advertising Platform. The Advertising Platform connects advertisers with SocialMob Influencers where advertisers can submit campaigns through the SocialMob website located at http://www.socialmob.com
(the “Website”), allowing their campaigns to be promoted and publicized by SocialMob Influencers across a wide variety of pre-approved social media platforms. Signing up for SocialMob’s Advertising Platform does not guarantee that any or all of the campaigns submitted will be accepted by SocialMob or that such campaigns will generate any traffic to Advertiser’s site. SocialMob reserves the right to reject and/or remove any campaigns submitted by Advertisers at any time, with or without cause. You acknowledge and agree SocialMob has no obligation to disclose any information regarding its rejection and/or removal of any campaign submitted by You, and SocialMob has sole discretion over what information it chooses to disclose to You, if any.
Please read this Agreement carefully prior to signing up for an SocialMob advertising account.
This Agreement is subject to change by SocialMob at any time. This Agreement governs Your access to and use of the Website, the Advertising Platform, and any services provided thereunder or in connection therewith as an Advertiser, and constitutes a binding legal Agreement between You and SocialMob. Certain areas of the Website (and Your access to or use of certain areas or portions of the Website or related services) may have different terms and conditions posted or may require You to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and terms and conditions posted for a specific area of the website or related services, the latter terms and conditions will take precedence with respect to Your use of or access to that area of the site or related service, as applicable.
IF YOU RESIDE OUTSIDE THE EUROPEAN ECONOMIC AREA AND/OR ARE NOT SUBJECT TO THE PROTECTIONS OF THE EU GENERAL DATA PROTECTION REGULATION 2016/679 (“GDPR”), THEN YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR “I ACCEPT” BUTTON, OR ACCESSING OR USING THE SOCIALMOB WEBSITE, ADVERTISING PLATFORM, OR RELATED SERVICES, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE WEBSITE, ADVERTISING PLATFORM, OR THROUGH SOCIALMOB’S RELATED SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THE TERMS IN THIS AGREEMENT, WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE WEBSITE. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SOCIALMOB WEBSITE, ADVERTISING PLATFORM, OR RELATED SERVICES.
If You accept or agree to this Agreement on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind that company or other legal entity to this Agreement and, in such event, “You” and “Your” will refer and apply to that company or other legal entity. SocialMob reserves the right, at its sole discretion, to modify this Agreement, at any time and without prior notice. If we modify this Agreement we will post the modification on the Website or provide You with notice of the modification. By continuing to access or use the Website or related services after we have posted a modification on the Website or have provided You with notice of a modification, You are indicating that You agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the website and any related services pursuant to the terms of the Agreement. You may also request to have any data Advertise.com may have obtained to be deleted by contacting Advertise.com’s data protection officer at [email protected]
EU RESIDENTS – Notwithstanding the foregoing, if you are a current resident of, or entity established in the Economic European Area, and subject to the protections of the GDPR, then you acknowledge and agree that by actively consenting to these Terms and Conditions, by clicking the “I AGREE” or “I ACCEPT” button, then you are agreeing to be bound by the terms and conditions of this Agreement. If we modify the Agreement, we will provide notice to you on the Advertise.com website and you must consent to the changes to continue using the Advertise.com website and/or related services. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity. If you do not actively agree to this agreement, then you have no right to access, participate in the Program, or use the Advertise.com website or related services.
In connection with Your use of the Website, Advertising Platform, and related services, and to enable SocialMob to serve Your advertisements via the Website, Advertising Platform, and other third-party publisher websites, email and/or applications, You grant SocialMob an unlimited, non-exclusive, fully-transferable, worldwide, royalty-free, fully-paid right and license to use, reproduce, modify, create derivative works from, distribute, perform, transmit, and display Your advertisements in any format, layout or size. SocialMob disclaims all liability relating to Your advertisements and related content. As between SocialMob and You, You are solely responsible for Your advertisements, any services or products offered through Your advertisements and any websites that are linked to from Your advertisements.
You understand and acknowledge that the SocialMob Platform does not support any live links to Facebook's Instant Article advertising format. You shall not provide SocialMob any links that are currently active with Facebook's Instant Articles. You agree and acknowledge SocialMob shall not be responsible to pay You any funds whatsoever for any links shared through and/or are active using Facebook’s Instant Articles. You agree and acknowledge that you will forfeit any and all funds resulting from a link shared using Facebook’s Instant Articles. Should You choose to enable Facebook's Instant Articles on any link provided to SocialMob, You agree You will notify SocialMob in writing twenty-four (24) hours prior to any Instant Article going live.
You are solely responsible for ensuring all advertisements supplied by You to SocialMob confirm with the proper disclosures required under federal and state in laws regarding endorsements and testimonials, including, but not limited to, the FTC Guidelines Concerning the Use of Endorsements and Testimonials in Advertising
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. SocialMob has no obligation to You and takes no responsibility to review the final form or any content of Your advertisements published by SocialMob Influencers to determine whether it may result in any liability to third parties, Advertiser, or SocialMob. SocialMob does not represent or warrant the quality of traffic delivered to Advertiser nor if any ad, or how much of a an ad, will be displayed across the Advertising Platform. Additionally, the format of Your advertisement may vary and SocialMob makes no representations as to the format of Your advertisement.
III. DATA PRIVACY
Advertiser acknowledges and agrees email communications are generally not an encrypted form of communication, and Advertise.com shall not be responsible for any interception of Data by third parties, that is sent to Advertise.com by way of email or other form of unencrypted electronic communication.
Advertiser shall provide reasonable assistance to Advertise.com immediately upon request to enable Advertise.com to respond to requests from data subject(s) seeking to exercise their rights under GDPR, or similar applicable data protection laws, rules, or regulations.
In no event shall Advertiser send Advertise.com any data that is generally considered highly sensitive or falls under the “special categories of personal data” under the GDPR. This includes, but is not limited to, personal data revealing racial or ethnic origin, religious beliefs, genetic data, data concerning a person’s health, a person’s sexual orientation, trade union membership, or biometric data.
SocialMob requires payment in advance for all Advertiser accounts. Advertisers must initially fund their accounts with at least $1,000.00 in United States currency in order to activate their accounts. All accounts that fall below this funding requirement shall be placed on hold, and all ads shall be removed, until the account is fully funded. Advertiser agrees to pay all applicable charges to the account with respect to the payment method selected in accordance with billing terms in effect at the time the fee becomes payable. Advertiser understands and agrees that their account will be charged for all clicks of Advertiser’s ads published through the Advertising Platform. Advertiser understands and agrees that due to the nature of social/viral traffic, Advertiser shall pay SocialMob for all clicks accrued after a campaign is paused and Advertiser is not released from any payment obligations by pausing a campaign. SocialMob is not responsible for the maintenance of Advertiser’s website. Payments to SocialMob must be made by check, credit card (Visa or Mastercard), wire transfer, 2checkout, Paypal, or net terms (upon approval). Advertiser agrees, warrants, and represents that all information provided for the purpose of enrolling as an Advertiser will be accurate, complete and current. Advertiser’s right to access an account with SocialMob is subject to any limits established by SocialMob, its contractors or by Advertiser’s credit/charge. If payment cannot be charged to Advertiser’s credit facility for any reason, or if there is a charge back for any reason, SocialMob reserves the right, in its sole discretion, with or without notice, to either suspend or terminate Advertiser’s account with SocialMob. SocialMob’s determination of final billing regarding any Campaign shall be conclusively presumed by Advertiser to be accurate and proper. Advertiser waives all rights to challenge or seek to charge-back any billings. Nothing stated herein shall limit rights granted to a cardholder by Visa, MasterCard and/or its issuing bank.
V. CREDIT CARD
Advertisers opting to pay by credit card will be responsible for ensuring their account maintains a balance over $100 at all times, or SocialMob may suspend or terminate Your account with or without notice. Advertiser agrees to pay all charges to its account in accordance with SocialMob’s terms. Advertiser acknowledges that the payment obligation hereunder is based solely on the number of clicks and not on Advertiser’s ability to convert clicks to sales or any other criteria. Advertiser warrants and represents that all payment information provided to SocialMob will be accurate, complete, and current. In the event that SocialMob is unable to charge Advertiser’s credit card, SocialMob may, in its sole discretion with or without notice, suspend or terminate the Advertiser’s participation in the Advertising Platform.
NOTICE OF LOST OR STOLEN CARD/FRAUDULENT USE OF CARD
Advertisers must promptly inform SocialMob of any and all of the following: loss or theft of the credit card used in relation to this program; changes in the expiration date of the credit card; changes in home or billing address; apparent breaches of security with the account, such as loss, theft, unauthorized disclosure or use of an ID or password; and any and all other changes pertaining to the credit card account which may affect the ability of SocialMob to expeditiously obtain payments due to SocialMob or its billing agent.
You agree that if You ever have overdue payment, SocialMob may engage in collection efforts to recover such amounts from You. These collection efforts may involve contacting You directly, submitting Your information to a collections agency, or legal action. SHOULD YOU FAIL TO PAY, SOCIALMOB MAY UNILATERALLY DECIDE TO IMPOSE REASONABLE FEES ON YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO, THE COST OF COLLECTIONS OR OTHER LEGAL ACTIONS AND PUNITIVE FEES IN EXCESS OF OUR INCURRED COSTS.
All payments will be made based on clicks generated as determined by SocialMob’s tracking.
If Advertiser is dissatisfied with SocialMob or the terms and conditions herein, Advertiser’s sole and exclusive remedy is to terminate the account. Advertiser may suspend or cancel participation in the SocialMob Advertising Platform by providing forty-eight (48) hours written notice to SocialMob. SocialMob may cancel Advertiser’s participation in the Advertising Platform at any time with or without cause and with or without notice. SocialMob reserves the right, at its sole discretion, to modify, discontinue, or terminate the Website or any related services, including without limitation, the Advertising Platform, at any time and without prior notice. Advertisers will forfeit any deposited funds if they are terminated due to a breach in the rules of advertising on the platform outlined in the Advertiser’s Rights and Responsibilities section. All unused credits or promotional credits will expire after 6 months. Credits or promotional credits will be applied toward traffic after the initial deposit is used and are nonrefundable. It is agreed between the Parties that SocialMob shall have the right to delete advertising campaigns that have not received traffic and/or been selected by SocialMob Influencers within a reasonable amount time. SocialMob reserves the right to delete accounts that have been inactive.
VIII. OWNERSHIP OF INTELLECTUAL PROPERTY
SocialMob retains all right, title and interest in and to its trademarks, service marks, trade names, service names, logos and copyrights, as well as its content and technology worldwide (“Intellectual Property”). By entering into this Agreement, Advertiser acknowledges that such Intellectual Property is the exclusive property of SocialMob and that all usage of such Intellectual Property and any goodwill established by the use of such Intellectual Property shall inure to the benefit of SocialMob and that this Agreement does not confer any goodwill or other interests in such Intellectual Property to Advertiser. Advertiser shall not adopt or attempt to register any Intellectual Property that is confusingly similar to SocialMob’s Intellectual Property. Advertiser agrees to allow SocialMob a limited right to use Advertiser ‘s logo and name on SocialMob website and marketing materials.
IX. INDEMNIFICATION OBLIGATIONS
Advertiser agrees to indemnify and hold SocialMob and its officers, directors, agents, affiliates, licensors and employees harmless from and against any and all claims, actions, liabilities, losses, expenses, damages, and costs, whether based on active negligence, passive negligence or gross negligence (including without limitation all attorneys’ fees and costs of every kind, including expert fees and not limited to statutory costs) arising out of or relating to (i) Advertiser’s use of and participation with the SocialMob Website and related services, including the Advertising Platform, (ii) Advertiser’s advertisements, websites or any related content, including any links from Advertiser’s websites (iii) any claim of libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third Party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with Advertiser’s advertisements, websites or any related content, including any links from Advertiser’s websites (iv) any breach by Advertiser of any duty, representation, warranty under any Agreement with SocialMob, or (v) any claim relating to a contaminated file, virus, worm, Trojan horse, or other device that could impair or injure any person or entity emanating from Advertiser’s advertisements, websites or any related content. Advertisers are solely responsible for defending any claim, and for payment of damages or losses resulting from the foregoing to both a third Party and to SocialMob.
X. RIGHT TO REJECT
All requested URL links, and descriptions are subject to SocialMob’s approval. SocialMob reserves the right to reject, cancel or remove any URL link and/or descriptions at any time for any reason whatsoever.
Advertisers may only submit advertisement campaigns to SocialMob’s Advertising Platform that are relevant to Advertiser’s submitted websites or to those web pages contained in Advertiser’s websites. If any information provided on Advertiser’s websites is changed, the advertisement campaign must be updated to be both current and accurate. All advertisement campaigns submitted are subject to relevancy review by SocialMob, and are subject to removal or rejection at any time and for any reason.
XII. ACCOUNT ACCESS AND RESPONSIBILITIES
After Advertiser’s registration with SocialMob, Advertiser will be granted access to an advertiser account, which shall only be used by Advertiser and for Advertiser’s sole and personal use. Advertisers shall be solely responsible for their account manager’s conduct regarding maintenance of Advertiser’s account and ensuring all information provided is true and correct. Advertiser may log in to the Advertiser account at any time to update campaigns, settings, or account information. If account user information changes throughout the lifetime of an account, it is Advertiser’s responsibility to obtain login credentials and update the account contact information as needed. Any changes made to a live campaign are subject to approval by SocialMob in its sole discretion and will only take effect after such approval by SocialMob. Other than the mutually agreed upon account manager, Advertiser may not authorize others to use Advertiser’s SocialMob account, and may not assign or otherwise transfer the account to any other person or entity. Advertisers shall not, under any circumstances, have the right to transfer or assign the account, any personal identification numbers or password to any other person or Party who has not been preapproved and authorized for access by SocialMob. Any such attempted transfer or assignment shall be void and shall constitute a material breach of this Agreement on Advertiser’s part. In addition, Advertisers must promptly inform SocialMob of any apparent breach of security, such as loss, theft, or unauthorized disclosure or use of Advertiser’s account, personal identification number or password.
XIII. ADVERTISER’S RIGHTS AND RESPONSIBILITIES
Advertiser may submit material for SocialMob Platform advertisements by logging into his/her account from Our homepage. SocialMob reserves the right to reject or remove any advertisement materials You submit at its sole discretion. Advertiser represents and warrants that: (i) You are the owner or are licensed to use the advertisements and all subject matter contained therein; (ii) Your advertisements are and will be free of any worm, virus, or other device that could impair or injure any person or entity; (iii) You are generally familiar with the laws and regulations governing the Internet and You will comply with all applicable laws and regulations including those that may apply to the display of the advertisements on third-party publisher websites and/or applications (including, without limitation, the FTC Guidelines Concerning the Use of Endorsements and Testimonials in Advertising
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) and Your advertisements will not violate any law or regulation, including, but not limited to, laws governing privacy, false or deceptive advertising, sweepstakes, comparative advertising, or trade disparagement; (iv) Your advertisements do not and will not (a) contain any misrepresentations or content that is defamatory, (b) violate any rights of privacy or publicity, (c) contain content that is violent, obscene, or offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive, or (d) promote or support gambling, unless You have obtained prior authorization in writing by SocialMob, sweepstakes, or contests; (v) Your advertisements do not and will not infringe any intellectual property or proprietary right of any third Party; (vii) Your advertisements will comply with any advertising guidelines provided to you by SocialMob; and (viii) You will not nor will You authorize third parties to (a) generate fraudulent, automated, or otherwise invalid information, data, or actions related to Your advertisements; (b) use robots, other automated query tools, computer-generated search requests and/or any other similar results-optimization methods unless authorized by SocialMob; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice in any state or country where Your advertisements are displayed or served.
SocialMob, in its sole discretion, may not approve an Advertiser’s advertisement or any materials submitted by You for the Advertising Platform. No reason is required to be given to the Advertiser why the advertisement or related materials has or has not been approved. All decisions made by SocialMob in this matter will be final.
SocialMob does not guarantee that Advertiser’s advertisement campaign will be available or displayed or posted on social media by a SocialMob Influencer. SocialMob reserves the right to not place Advertiser’s advertisement campaign in the SocialMob Advertising Platform. The format of Advertiser’s advertisement campaign may vary and SocialMob makes no representations as to the format of the advertisements. Traffic delivered to advertisers originates from a variety of sources including but not limited to postings on blogs, news gathering websites such as Reddit, and social media platforms such as Twitter, Facebook, LinkedIN, Pinterest, and Instagram . For a link to be billable, a user must click the link provided by You to Us through the Advertising Platform and the source of traffic must be non-fraudulent. Our Advertising Platform offers tens of thousands of unique traffic sources. Advertisers have the ability to block and whitelist sources based on each advertisers individual performance goals.
During the Term of this Agreement and for a one (1) year period following the termination or expiration of this Agreement, whichever is earlier, Advertiser shall not, either directly or indirectly, either on Advertiser’s own behalf or on behalf of another person, business, firm, company, or other entity, engage in, assist others in, or take any action to: (1) recruit, solicit, or entice away, or attempt to recruit, solicit, or entice away, any SocialMob Influencer or person under contractual business dealings with SocialMob; (2) induce or solicit, or attempt to induce or solicit, any actual or prospective SocialMob Influencer or cause any SocialMob Influencer to cease doing business, in whole or in part, with SocialMob; or (3) interfere with the relationship between SocialMob and any actual or prospective SocialMob Influencer, customer, licensee, licensor, or other business relation of SocialMob.
Advertiser recognizes that breach of this Section XIV will cause irreparable injury to SocialMob, such that monetary damages would not provide an adequate or complete remedy. Accordingly, in the event of any actual or threatened breach of the provisions of this Section XIV, SocialMob, in addition to all other rights, shall be entitled to an injunction restraining Advertiser from breaching this Section XIV, and to recover from Advertiser the reasonable attorneys’ fees and costs SocialMob incurs in obtaining such remedies.
XVI. WARRANTY DISCLAIMER
THE ADVERTISER EXPRESSLY AGREES THAT THE USE OF THE WEBSITE, ADVERTISING PLATFORM, AND ANY RELATED SERVICE PROVIDED BY SOCIALMOB IS AT THE ADVERTISER’S OWN RISK. SOCIALMOB’S WEBSITE, ADVERTISING PLATFORM, AND RELATED SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER SOCIALMOB NOR ANY OF ITS LICENSORS, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE WEBSITE, ADVERTISING PLATFORM, ANY INFORMATION, SERVICES, OR PRODUCTS PROVIDED, OR AVAILABLE THROUGH, OR IN CONNECTION WITH WEBSITE ,OR ADVERTISING PLATFORM, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. SOCIALMOB HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ALL INFORMATION PROVIDERS, LICENSORS AND/OR LICENSEES OF ANY AND ALL WARRANTIES INCLUDING, WITHOUT LIMITATION: ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF THE WEBSITE, ADVERTISING PLATFORM, AND/OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH SOCIALMOB; AND ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO THE ADVERTISER. THIS LIMITED WARRANTY GIVES THE ADVERTISER SPECIFIC LEGAL RIGHTS, AND THE ADVERTISER MAY ALSO HAVE OTHER RIGHTS, WHICH MAY VARY FROM STATE TO STATE.
XVII. LIMITATION OF LIABILITY
SOCIALMOB SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE WEBSITE, ADVERTISING PLATFORM, AND/OR ANY OVER SERVICES RELATED TO SOCIALMOB, OR FOR ANY BREACH OF WARRANTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE ADVERTISER. THE ADVERTISER AGREES THAT SOCIALMOB WILL NOT BE HELD RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO SOCIALMOB INFLUENCERS, IN CONNECTION WITH SOCIALMOB AND/OR SITES LINKED TO SOCIALMOB, INCLUDING, WITHOUT LIMITATION, THOSE WITH WHOM SOCIALMOB CONTRACTS TO OPERATE VARIOUS PORTIONS OF THE WEBSITE, ADVERTISING PLATFORM, AND RELATED SERVICES.
ANY LIABILITY OF SOCIALMOB, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE OR INFORMATION, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF SOCIALMOB’S RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL NOT EXCEED AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT ALREADY PAID TO SOCIALMOB IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
XVIII. ALLOCATION OF RISKS
YOU ACKNOWLEDGE AND AGREE THAT (A) THE REMEDIES, EXCLUSIONS, LIMITATIONS OF LIABILITY, AND LIMITATION OF DAMAGES HEREIN, REFLECT A REASONBLE ALLOCATION OF RISKS; (B) THAT ADVERTISER AND SOCIALMOB WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE EXCLUSIONS, LIMITATIONS OF LIABILITY, AND ALL OTHER TERMS IN THIS AGREEMENT. ADVERTISER ACKOWLEDGES THAT THE TERMS CONTAINED IN THIS AGREEMENT ARE A FAIR ALLOCATION OF RISKS BETWEEN ADVERTISER AND SOCIALMOB.
Any dispute arising out of or related to this Agreement shall be resolved by arbitration before a single arbitrator. Arbitration shall be conducted in accordance with California Code of Civil Procedure section 1280 et. seq. All arbitration-related hearings shall be conducted in Los Angeles, CA before ADR Services, Inc.. The arbitrator shall be from the Southern California area and the arbitrator will be selected by the mutual agreement of the parties. If the parties cannot agree on a single arbitrator, then the arbitrator shall be selected in accordance with the then in effect rules of ADR Services, Inc. Once selected, the Arbitrator shall be empowered to hear and resolve any and all issues related to, arising from, based upon or in any way related to the dispute, whether based in law or equity. The Arbitrator shall issue rulings, decisions, orders, judgments and permanent injunctions as applicable and appropriate. The prevailing party in said arbitration shall be awarded, Attorney’s fees and costs as well of the costs of the arbitrator. If a party is files a motion or petition to compel arbitration, then the prevailing party in said motion or petition shall be awarded interim attorney’s fees and costs related to the motion or petition.
XX. CHOICE OF LAW
This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of the Parties. The Parties consent to arbitrate exclusively in Los Angeles, California for all actions arising out of or related to this Agreement. The parties hereby agree to waive their right to a jury trial.
XXI. ASSIGNMENT; CHANGE OF CONTROL
Advertiser shall not assign any of its rights or obligations under this Agreement, in whole or in part, without SocialMob’s written consent. SocialMob may at any time assign, in whole or in part, its rights or obligations under this Agreement without the consent of and without prior notification to Advertiser.
Any notice or other communication to be given hereunder will be in writing and will be (as elected by the Party giving such notice): (i) personally delivered; (ii) sent by prepaid overnight delivery services such as FedEx or USPS Express Mail, with delivery confirmation and/or return receipt; or (iii) by email, which is effective upon delivery confirmation. If the email is to SocialMob, the email address is [email protected]
. If the email is to SocialMob Influencer then the email address is the one provided in the Site registration information. Unless otherwise provided herein, all notices will be deemed to have been duly given on the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally. Either Party may change its address for purposes hereof on not less than three (3) business days prior notice to the other Party.
XXIII. FORCE MAJEURE
Any delay in or failure of performance by either Party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such Party including, but not limited to, acts of God, power outages and governmental restrictions.
XXIV. EXPORT CONTROL
The Advertising Platform may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-Party list, and You shall not permit third parties to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
XXV. SEVERABILITY AND WAIVER
In the event that any of the provisions of this Agreement are held by to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect. Failure of either Party to require strict performance by the other Party of any provision shall not affect the Party’s right to require strict performance thereafter. Waiver by either Party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
XXVI. ENTIRE AGREEMENT
This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and terminating all previous communications, representations or Agreements, whether written or oral between the Parties relating to the services provided hereunder.
XXVII. INDEPENDENT CONTRACTORS
The Parties are independent contractors and not co-venturers. Neither Party shall be deemed to be an employee, agent, or legal representative of the other Party hereto for any purpose and neither Party hereto shall have any right, power or authority to create any obligation or responsibility on behalf of the other Party hereto nor shall this be deemed an exclusive or fiduciary relationship. This Agreement will not be construed to create or imply any partnership, agency or joint venture.