TERMS

YOU MUST READ AND AGREE TO THE FOLLOWING TERMS OF USE. YOUR USE OF THE SERVICE INDICATES YOU HAVE READ AND ACCEPTED THESE TERMS IN THEIR ENTIRETY.

This Agreement governs your use of the MOBAUTO Service. By accepting this Agreement, you represent that you have read and understood this Agreement and agree to be bound by its terms and conditions.

MOBAUTO may, from time to time, amend, supplement or modify the terms of this Agreement. If you do not agree to be bound by, or cannot comply with the Agreement as amended, your only remedy is to stop using the Service. You will be deemed to have accepted the Agreement as amended if you continue to use the Service. Any changes in our Terms of Service will be sent to existing customers by email and posted on our site at www.mobauto.net.

DESCRIPTION OF THE MOBAUTO SERVICE

MOBAUTO provides mobile marketing software for car dealers and other businesses to drive consumer engagement through auto-response SMS. Our service may not be used to send ongoing automated, autodialed messages to consumers.

MOBAUTO is an auto-response and information/request-based text messaging platform. Each time a consumer requests information by SMS, the MOBAUTO platform will send a 1X automated text message response containing a link to the information requested. Data collected from each text inquiry, including the information requested, along with the consumer mobile phone number, is captured and delivered to the MOBAUTO business customer for personalized, 1-to-1, non-automated follow-up if and as deemed necessary. Information-based, consumer-initiated SMS autoresponders are compliant with state and federal laws.

The MOBAUTO Service is based on sending and receiving information-based text messages via major telecommunications companies and mobile network operators. The timing of the transmission of these messages falls within the technical constraints imposed upon us by them. While we use commercially reasonable efforts to deliver messages to the applicable network for final delivery as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Mobile network operators assign text messages with a default lifetime. Any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the mobile network operator without notice. We are not liable for any loss incurred by the failure or delay of a message to be delivered. Furthermore, you agree that the message contents are deemed to have zero value.

COMPLIANCE WITH RULES AND LAWS

MOBAUTO represents and warrants that all of the services, apps, websites, products, templates, and features offered by MOBAUTO are in full compliance with all applicable federal, state and local laws. MOBAUTO represents that it maintains all required licenses, registrations, permits, intellectual property rights and permissions necessary to perform and provide the services to our business customers under this Agreement. MOBAUTO represents that it will provide the services only by lawful means. MOBAUTO represents that the services being provided are in full compliance with the Telephone Consumer Protection Act (TCPA).

As a MOBAUTO business customer, unless you independently receive express written consent from the consumer agreeing to receive ongoing automated communication from you, you should not add any phone number collected through your use of the MOBAUTO platform to an automated or computer-based dialing system where messages or phone calls are sent and/or made in an automated or bulk format. This would be considered non-compliant with TCPA laws and could result in excessive fines and legal exposure.

If a consumer asks to be removed from your communication list, whether by text, call or email, you are required to honor that request by law. Both parties agree to maintain a DO NOT CALL List for any consumer who asks not to be called, texted or emailed moving forward. For any consumer that replies “STOP” to any text received, MOBAUTO will permanently and irreversibly remove that number from ever receiving a message in the future from the MOBAUTO platform.

As laws pertaining to this subject matter change on a regular basis, you agree to familiarize yourself with the legalities of any calls or messages made/sent to consumers outside the confines of the MOBAUTO Service. The Telephone Consumer Protection Act (TCPA), The Federal Trade Commission (FTC) The Federal Communication Commission (FCC) and the DNC (Do Not Call) Registry, as well as various state, laws, rules and regulations place restrictions on certain types of phone calls, mobile messages and other forms of communication.

MOBAUTO will in no way attempt to interpret the TCPA or any other state or federal laws, rules or regulations on your behalf. This information is being provided as a courtesy and is not intended to replace your responsibility to familiarize yourself with, and abide by, the legal requirements pertaining to communication with your customers.

You take full responsibility, legal and otherwise, to make your own informed decisions regarding your use of the data and phone numbers collected resulting from your use of the MOBAUTO Service.

As a MOBAUTO customer, you agree to comply with all applicable laws and regulations relating to your use of the Service, including the collection, distribution and use of data, and your obligations under this Agreement. You are responsible for the compliance of your affiliates, employees, agents and consultants (collectively Associates) with the terms of this Agreement and any applicable laws or regulations. You agree to indemnify and hold harmless MOBAUTO and employees, directors, officers and agents, against any loss, damage, award or expense (including reasonable attorney fees) involving a claim that you or your Associates have violated or allegedly violated applicable laws or regulations related to the services provided by this Agreement.

APPROPRIATE SAFEGUARDS

Both you and MOBAUTO will maintain reasonable, physical, electronic, administrative and procedural controls and safeguards to protect any customer information received pursuant to this Agreement from unauthorized access, use or disclosure. These controls include, but are not limited to, the maintenance of appropriate safeguards to restrict access to the customer information received to those employees, agents or service providers who need such information to carry out the purposes for which such customer information was disclosed.

MOBAUTO agrees to provide dealer/client with notice of any request for information (IE subpoena) and allow dealer/client a reasonable opportunity to object to such disclosure at client/dealer expense.

USE OF SERVICE

To use the Service for marketing purposes, you must register and provide certain information to MOBAUTO. You agree that you will use the Service only in the country or territory where your business currently resides. You agree to provide current, complete and accurate information at the time of registration.

You agree to indemnify and hold MOBAUTO, LLC, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, harmless for your improper, unauthorized or illegal uses of the Service or the consumer data collected therefrom.

In select instances, you may be granted a password and a user name to the MOBAUTO back-end administration dashboard. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for all activities that occur under your account. You agree to notify MOBAUTO immediately of any unauthorized use of your account or any other breach of security. MOBAUTO will not be liable for any loss that you may incur resulting from someone else using your password or account, either with or without your knowledge. The Service subscription is not transferable, such that you may not authorize other persons to use your account. Any distribution by you of your account name and password my result in cancellation of your subscription without refund and in additional charges based upon unauthorized use.

You may use the Service only in accordance with the terms and conditions of this Agreement and any amendments. You understand and agree that you may not transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Service.

You may not attempt (or authorize, encourage or support others’ attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service. You agree to advise MOBAUTO promptly of any such unauthorized use(s) or attempt(s).

MOBAUTO may in its sole discretion terminate this Agreement or suspend your account at any time for non-compliance. If MOBAUTO terminates this Agreement for non-compliance, it shall have no liability or responsibility to you, and MOBAUTO will not refund any portion of your service fees.

You assume total responsibility and risk for your use of this Service. To the extent permitted by law, MOBAUTO provides all Services on an “AS IS” basis.

MOBAUTO does not claim ownership or accuracy of the content, data or materials you provide (or are provided on your behalf) for MOBAUTO to post, upload, input or submit for review by the public, or by the members of any public or private community. You are granting MOBAUTO permission to use said content, data or materials in association with the operation of the MOBAUTO business.

As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Service in any manner that could damage, disable, overburden, or impair the Service, or network, connected to the Service, or interfere with any other party’s use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, accounts, computer systems or networks connected to the Service, through any means. MOBAUTO reserves the right to disclose any information as MOBAUTO deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part.

Upon client request, MOBAUTO may present links to other third-party websites not owned or operated by MOBAUTO to enhance the end consumer experience. Examples may include, but are not limited to, links to Carfax reports, Kelly Blue Book values, client websites ETC. These links are provided only as a convenience at your request. Neither MOBAUTO nor its business partners are responsible for the availability of these outside sites or their contents. You understand and agree that neither MOBAUTO nor its business partners are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in association with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third-party sites to those sites’ administrators.

MOBAUTO reserves the right at any time and from time to time to modify, discontinue, temporarily or permanently, the service (or any part thereof) with or without notice to you. You agree that neither MOBAUTO nor its affiliates or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

PRICING TERMS, TRIAL PERIODS AND TERMINATION

The monthly price and any initial start-up fees will be specified at the time of order. By purchasing use of the Service, you warrant that you are the authorized purchaser and that the billing information provided is correct and accurate. MOBAUTO will not issue refunds based upon inaccuracies represented by the purchaser. By approving the purchase of the Service, you authorize MOBAUTO to charge you for the purchase.

The Agreement term begins on the date of activation (Effective Date) and continues until terminated by either party, with or without cause, upon at least 30 days written notice. We reserve the right to terminate the Agreement if you do not comply with your obligations under the Agreement, including but not limited to, any failure to pay amounts due past or present, for reasons relating to any applicable state or federal laws or if we no longer make the service available.

In select instances, MOBAUTO may, at their discretion, extend a limited trial of the MOBAUTO platform. In such cases, all trials will automatically convert to paid accounts at the conclusion of the stated trial period unless cancelled in writing prior to conversion.

All paid accounts require a 3-month minimum commitment and a 30-day written notice to cancel. MOBAUTO issues invoices monthly in advance of service and can be paid by check on receipt of invoice or processed automatically each month to a credit card on-file.

RESTRICTIONS

You may not use the Service to upload, post, transmit, display, perform or otherwise make available to other subscribers, members or third-parties any messages, content or materials that are illegal, obscene, threatening, defamatory or invasive of privacy; violate (intentionally or unintentionally) a contractual, fiduciary or confidentiality obligation or duty you have to any third party; infringe intellectual property or other third-party rights; harm minors in any way; comprise or contain software viruses or other computer code designed to interfere with the functionality of any computer systems, software or hardware; interfere with or disrupt the Service or any networks or servers connected to or by the Service; constitute unsolicited bulk email, political campaigning, commercial solicitation, chain letters, pyramid schemes, mass mailings, or any form of spam; or violate (intentionally or unintentionally) any applicable local, state, national or international law. In addition, you may not use a false email address, impersonate any person or entity (including but not limited to other subscribers, members and employees of MOBAUTO, its affiliates or licensors), or otherwise mislead other subscribers, members or third parties as to your identity or to the origin of a message or content. You understand and agree that any loss or damage of any kind that occurs resulting from the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility.

In consideration of your payment and your acceptance of this Agreement, MOBAUTO grants you a non-exclusive, non-transferable, single-user right to use the Service.

This license may not be assigned without the written consent of MOBAUTO, which right may be withheld by MOBAUTO in its sole discretion.

INDEMNIFICATION

You agree to indemnify and hold harmless MOBAUTO and its agents, employees, representatives, licensors, affiliates, parents, reseller partners and subsidiaries from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your improper and non-compliant use of the Service and data collected from use of the Service (collectively Claims), and to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including reasonable attorney fees and court costs) as a result of any Claims.

UNDER NO CIRCUMSTANCES SHALL MOBAUTO AND/OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (MOBAUTO PARTIES) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE ACCURACY OF OR INABILITY TO USE THE SERVICE, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MOBAUTO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

(USA ONLY) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

 

THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS AGREEMENT.

UNDER NO CIRCUMSTANCES SHALL MOBAUTO AND/OR THE MOBAUTO PARTIES, AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE.

MOBAUTO agrees to fully defend, indemnify, and hold dealer/client and its principals, members, managers, officers, directors, employees, shareholders, customers, agents and successors harmless from and against any and all loss, damages, costs, claims, expenses, settlements or other liability (including reasonable attorney fees and the expenses of other professionals) arising from or relating to any intentional and unlawful acts or omissions of MOBAUTO, MOBAUTO’s direct violation of the TCPA, and any breach or alleged breach by MOBAUTO of this Agreement.

MISCELLANEOUS

You understand and agree that any unauthorized use of the Service may result in irreparable injury to MOBAUTO and/or its affiliates or licensors for which money damages would be inadequate, and in such event MOBAUTO its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that MOBAUTO, its affiliates and/or licensors may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.

This Agreement shall be governed by the laws of the State of California, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Los Angeles County, California to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.

This Agreement contains the complete Agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous Agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Content licensed hereunder shall be of no effect. The failure or delay of MOBAUTO to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach.

No MOBAUTO dealer, business customer, distributor, agent or employee is authorized to make any amendment to this Agreement. This Agreement supersedes all prior agreements, discussions and negotiations between you and MOBAUTO, and it sets forth the entire agreement and understandings between the parties as to the subject matter of this Agreement. Neither of the parties shall be bound by any terms, conditions, definitions, waivers, warranties or representations with respect to the subject matter of this Agreement other than as expressly provided in this Agreement or duly set forth on the date hereof in a writing signed by a proper and duly authorized representative of whichever of the parties is to be bound thereby.

If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.

The headings contained in this Agreement are for convenience only and are not intended to have any substantive significance interpreting this Agreement.

Any correspondence, notice or request permitted to be given under or in association with this Agreement or the subject matter hereof shall be sent by prepaid, certified, first class mail, or courier service with receipt of delivery obtained directly to MOBAUTO | BOX 131 | Palos Verdes Estates, CA | 90274.

PART 2

SHORT CODE INFORMATION AND CONSUMER ENGAGEMENT PROCESS

 

MOBAUTO allows consumers to send a text message and get an automatic response with a mobile web link to information requested. For example – a consumer might see a text call-to-action for vehicle information from a car dealer. If the consumer chooses – they can text to receive information on that vehicle delivered instantly back to their phone – and we will automatically return a mobile link to the info requested. MOBAUTO will not send any further text messages to the consumer. This is an information/request-based system.

 

Short Code: 59262

Example: Consumer TEXTS [ABC125] To: 59262 For Vehicle Info

 

Consumer Receives The Following Response: Welcome To ABC Motor Company. Click Link For INFO Requested. Text STOP to Stop. HELP For Help. LINK HERE

 

Consumer Clicks Link For Vehicle Information

 

No Further Texts Are Sent To Consumer By MOBAUTO Unless They Request Additional Information By Sending An Additional Text Inquiry

 

Message frequency of 1 message/request

 

WE DO NOT SEND ONGOING TEXT CAMPAIGNS TO CONSUMERS. WE ARE AN INFORMATION-BASED SYSTEM ONLY.

 

Consumer TEXTS [STOP] To: 59262

Consumer Receives The Following STOP Response: Your STOP Request Has Been Received. No Further Text Messages Will Be Sent Unless You Request Additional Information. Text HELP For Help.

 

Consumer TEXTS [HELP] To: 59262

Consumer Receives The Following HELP Response: For Help Using Our Mobile Platform, Please Email Questions To GOMO@MOBAUTO.NET or Visit Us Online At WWW.MOBAUTO.NET

 

Does this cost me anything? MSG & Data Rates May Apply.

 

Participating Carriers – These short codes are open to subscribers of Alltel, Boost, AT&T, T-Mobile, Dobson, Verizon Wireless, Sprint, U.S. Cellular, Cellular South, Virgin, MetroPCS and Others.

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