SYNTONIC WIRELESS, INC.
FREEWAY CAMPAIGN MANAGER™
TERMS OF SERVICE
February 26, 2017
Syntonic Wireless, Inc. (“Syntonic”) provides products and services (collectively the “Service”) to enable sponsored content delivery on mobile networks. You wish to manage a sponsored data or data reward campaign using the online Freeway Campaign Manager (“Campaign Manager”). You represent and warrant to Syntonic that you have the right, power and authority to enter into these terms and to establish your Service account.
By clicking “agree” or registering on the online Campaign Manager, you agree to the following terms, which form a legal contract between you and Syntonic regarding your use of the Service.
Your Use of the Service.
License Grant. Subject to your compliance with these terms, Syntonic hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable right to use the Service in order to manage your sponsored data program.
Ownership of Service. The Service is owned and operated by Syntonic. The visual interfaces, graphics, design, compilation, information, computer code (including source code and object code) and all other elements of the Service (the “Materials”) are protected by United States copyright, trade dress, patent and trademark laws, international conventions, and other relevant intellectual property and proprietary rights and applicable laws. Except for Content, all Materials contained in the Service are the property of Syntonic or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks and trade names are proprietary to Syntonic or its affiliates and/or third-party licensors. Except as expressly authorized by Syntonic, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
Reservation of Rights. Syntonic reserves all rights not expressly granted in these terms.
Ownership of Content; Representations and Warranties.
Ownership and Responsibility for Your Content. Syntonic disclaims any ownership rights to campaign offer information, apps made available through the Service, app data and metadata transmitted through the Service, personal information or payment information relating to you or any end users and all other information and materials you make available through the Service (“Content”). You are solely responsible for (and that Syntonic has no responsibility to you or to any third party for) all Content that you create, transmit or make available through the Service and for the consequences of your actions (including any loss or damage which Syntonic may suffer) by doing so.
Rights to Content. You are responsible for obtaining any and all rights (and paying all applicable fees) with respect to the use, display, performance and exploitation of Content on the Service. You must ensure that all Content complies with the applicable provisions of the MMA Best Practices and Guidelines for 3rd Party Content Providers (“MMA Guide”) and any carrier-specific guidelines, which will be provided in the Specifications.
Syntonic Does Not Provide Network Connectivity. Syntonic does not control or manage the mobile, internet or other networks used to make the Service available. You understand and agree that Syntonic cannot guarantee the availability of Content to end users.
Appropriate Use of the Service.
You agree not to:
rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials;
post, upload, or distribute any defamatory, libelous, or inaccurate material;
post, upload, or distribute any material that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
impersonate any person or entity, falsely claim an affiliation with any person or entity, misrepresent the source, identity, or content of information transmitted via the Service, or perform any other similar fraudulent activity;
remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service or features that enforce limitations on the use of the Service or Content;
modify, adapt, translate or create derivative works based upon the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or network protocols of the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
intentionally interfere with or damage operation of the Service or any user’s enjoyment of them, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
use the Service to make unsolicited offers, advertisements, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, petitions for signatures or other forms of spam or junk mail;
use the Service for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy; or
use the Service to interfere with, gain unauthorized access to, overload or otherwise violate the integrity or security of any server, network, network access, personal computer or control devices, software or data, or other system, or to attempt to do any of the foregoing.
Regulatory Action. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.
No Removal of Marks. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Service.
Avoidance of Brand Confusion. You will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner of the Service.
Misuse of Service. Syntonic may, in its discretion, restrict, suspend or terminate your access to the Service if Syntonic believes you are misusing the Service or violating the MMA Best Practices and Guidelines for 3rd Party Content Providers (“MMA Guide”), carrier-specific guidelines or Syntonic’s End User Terms of Service. In the event of any such restriction, suspension or termination, you will remain obligated to pay applicable fees incurred prior to the date of restriction, suspension or termination. These remedies are in addition to any other remedies Syntonic may have at law or in equity.
By Syntonic. Syntonic may terminate your account on the Service and remove and discard your Content and other data at any time for any reason, in its discretion. Syntonic may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. Syntonic will not be liable to you or any third party for any such termination.
By You. You may terminate your account at any time.
Effect of Termination. You must cease using the Service immediately on termination of your account for any reason, remove all Syntonic software and pay all fees due through the termination date.
Fees and Payment Terms.
Payments. You must pay Syntonic the fees identified in the Campaign Manager in USD using a valid credit card or other payment mechanism authorized by Syntonic. You will be responsible for all sales, use, value added, excise, property withholding or similar tax and any related tariffs, and similar charges related to your use of the Service, except taxes based on Syntonic’s net income. Syntonic may change pricing in its discretion in accordance with Section 10.1. Syntonic will advise you of any changes through the Campaign Manager.
You agree to indemnify and hold Syntonic and its officers, directors, employees, shareholders, agents (collectively “Agents”), licensors, subcontractors, affiliates, partners, licensors and suppliers (“Affiliates”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these terms, or any breach of the representations, warranties, and covenants made by you herein. Syntonic reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Syntonic, and you agree to cooperate with Syntonic’s defense of these claims. Syntonic will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
Disclaimers; No Warranties.
Service Provided As Is. You expressly agree that the use of the Service is at your sole risk. The Service and any information, third party software, services or applications made available in conjunction with or through the Service are provided on an “as is” and “as available”, “with all faults” basis and without warranties or representations of any kind either express or implied.
No Express or Implied Warranties. Syntonic and its Affiliates do not warrant that any features of the Service will be uninterrupted, or free of errors, viruses or other harmful components and do not warrant that any of the foregoing will be corrected. Syntonic and its Affiliates do not warrant or make any representations regarding the use or the results of the use of the Service in terms of correctness, accuracy, reliability, or otherwise.
Disclaimer. To the fullest extent permissible pursuant to applicable law, Syntonic and its Agents and Affiliates disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. No advice or information, whether oral or written, obtained by you from Syntonic or through the Service will create any warranty not expressly stated herein.
Limitation of Liability and Damages.
Limitation of Liability. Under no circumstances will Syntonic or its successors, Agents or Affiliates be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation damages arising from any unsuccessful court action or legal dispute, lost business, lost revenues or loss of anticipated profits or any other pecuniary or non-pecuniary loss or damage of any nature whatsoever) arising out of or relating to these terms or that result from your use or your inability to use the Service or any other online or offline interaction facilitated through use of the Service, even if Syntonic has been advised of the possibility of such damages.
Limitation of Damages. The aggregate cumulative liability of Syntonic and its successors, Agents or Affiliates for damages, losses, and causes of action arising out of or relating to these terms or your use of the Service or your online or offline interaction facilitated through use of the Service (whether in contract, tort including negligence, warranty, or otherwise) will not exceed the fees paid or payable by you to Syntonic during the 12 months preceding the date of any claim.
Basis of the Bargain. You acknowledge and agree that Syntonic has offered its products and services and entered into these terms in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and Syntonic, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and Syntonic. Syntonic would not be able to provide the Service to you on an economically reasonable basis without these limitations.
Modification of These Terms. Syntonic may amend these terms from time to time by posting an amended version on the Service. Syntonic will also send you written notice of any material changes. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”). If you object to any such changes, your sole recourse will be to discontinue use of the Service. Your continued use of the Service following the Proposed Amendment Date shall constitute your acceptance of such changes.
Waiver. The failure of Syntonic to exercise or enforce any right or provision of these terms will not constitute a waiver of such right or provision. Any waiver of any provision of these terms will be effective only if in writing and signed by Syntonic.
Dispute Resolution by Binding Arbitration; Class Action Waiver. You and Syntonic agree to resolve any claims relating to these terms through final and binding arbitration without giving effect to any principles of conflicts of law. The parties agree that, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate. You may opt out of this agreement to arbitrate. If you do so, neither you nor Syntonic can require the other to participate in an arbitration proceeding. To opt out, you must notify Syntonic in writing within 30 days of the date that you first became subject to these terms. Your notice must include your name and address, the email address for your account on the Service (if any), and a clear statement that you want to opt out of this arbitration agreement. You must send your notice to the address in section 10.9 below.
Arbitration Procedures. The American Arbitration Association will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The AAA rules will govern payment of all arbitration fees.
Exceptions to Agreement to Arbitrate. Either you or Syntonic may assert claims, if they qualify, in small claims court in King County, WA or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
Class Action Waiver. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Neither you nor Syntonic will participate in a class action or class-wide arbitration for any claims covered by these terms. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Syntonic is a party to the proceeding.
Judicial Forum for Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Syntonic agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of King County, WA. Both you and Syntonic consent to venue and personal jurisdiction there.
Severability. If any provision of these terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
Assignment. These terms and any rights and licenses granted hereunder, may be transferred or assigned by you only with Syntonic’s prior written consent. Any assignment attempted to be made in violation of these terms shall be void.
Survival. Upon termination of these terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 3, 3.2, 5, 7, 8, 9 and 10.
No Third Party Beneficiaries. The parties specifically disavow any desire or intention to create a third party beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.
California Required Disclosures. The services are offered by Syntonic, Inc., located at: 119 First Avenue South, Suite 100, Seattle, WA 98104 and email: firstname.lastname@example.org. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.