Supplemental Mobile Messaging Terms and Conditions | Marigold Engage+ (formerly Cheetah Digital)

Supplemental Mobile Messaging Terms and Conditions (“Mobile Supplement”)

THESE SUPPLEMENTAL MOBILE MESSAGING TERMS AND CONDITIONS (THE “MOBILE SUPPLEMENT”) GOVERN CUSTOMER’S USE OF MOBILE MESSAGING (INCLUDING WITHOUT LIMITATION SMS AND MMS MESSAGING) (COLLECTIVELY, THE “MOBILE MESSAGE(S)”) THROUGH THE CHEETAH SERVICES. CAPITALIZED TERMS THAT ARE NOT DEFINED HEREIN SHALL HAVE THE DEFINITIONS SET FORTH IN THE MASTER SERVICES AGREEMENT (“MSA”).

BY EXECUTING AN ORDER FORM THAT INCLUDES MOBILE MESSAGES, CUSTOMER ACCEPTS AND AGREES TO THIS MOBILE SUPPLEMENT AND AGREES THAT THIS MOBILE SUPPLEMENT SHALL BE INCORPORATED INTO AND FORM A PART OF THE MSA.

In connection with Customer’s use of Mobile Messages through the Cheetah Services:

a) Customer is responsible for:

Providing a dedicated relationship manager and reasonable levels of personnel and resources to oversee the setup and use of Mobile Messaging and reasonably assist in achieving Cheetah’s deliverables and responsibilities;
Providing Cheetah with any feeds for each ad channel with required javascript library, and parameters;
Signing-off on design and user acceptance testing (UAT) within two (2) business days of receipt from Cheetah;
Providing all copy or creative assets for user and consumer call-to-action(s) and supporting materials;
Preparing all Customer content and Customer messages, conducting all marketing campaigns using the Cheetah Services (including sending Customer messages, call- to-action marketing materials at point-of-sale referencing a keyword for any short code used in the Services) in accordance with the MSA and this Mobile Supplement;
the collection of its customer lists, including obtaining legally sufficient prior express written consent from consumers in connection therewith as required under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200) (“TCPA”); and
the distribution of all Customer content and other materials included in Customer messages delivered to consumers and other recipients by and through the Cheetah Services.

Cheetah has not, and does not, direct, influence, or control how Customer achieves any of the foregoing, and only acts as a conduit in connection with Customer’s messaging. Furthermore, Cheetah has not been contracted to, and does not, act as the sender of Customer’s Mobile Messages. Customer is the sender of Mobile Messages. As such, Customer, not Cheetah, is responsible for complying with all applicable laws (including, but not limited to, the TCPA and all laws governing the collection of the consumer lists utilized whether from the use of web forms, calls to action/text to join campaigns, or otherwise) in its use of the Cheetah Services.

b) Customer shall only send Mobile Messages to those recipients who have provided express written consent as required under the TCPA and affirmative consent (i.e. opt-in, double opt- in, as necessary) as defined by the Mobile Marketing Association Consumer Best Practices (“MMA CBP”) to receive mobile messages from Customer. Without limiting the foregoing:

Standard rate location based Mobile Message programs, as well as opt-ins initiated from a web form or any other non-mobile handset, require a Double Opt-In as defined in the MMA CBP.
Opt-in applies only to the specific program a subscriber is subscribed to and should not be used as a blanket approval to promote other programs, products, and services unless subsequent consent has been given.
Consent may not be received or transferred between, or amongst, affiliated companies or third parties unless such transfer is the result of a merger or acquisition whereby a whole transfer of assets related to the mobile messaging program occurs and there is no material change to the said program.
At the time of form-based data collection or handset-originating initiation, users must be presented with: (i) the essential terms of the offer, including key terms and conditions for such use; and (ii) essential disclosures describing the nature of the products and services offered through Mobile Messages, including the key terms and conditions for such use.

c) Customer shall require, as part of the acquisition of express written consent, that each person consenting to receive Mobile Messages affirmatively agree to the Customer’s terms and conditions which shall comply with the TCPA and all applicable law.

d) Each Customer Mobile Message shall clearly identify the Customer’s program and short code (as certified) as the sender

e) Content functionality requirements:

User requests through Mobile Messages for additional messages or information must be responded to within twelve (12) hours or the request (opt-in) for that particular message will be deemed expired.
Customer responses to user requests may be delivered by an alternate common short code, but the relationship to the original request must be identified within the Mobile Message.
Click to call phone numbers must be local or domestic to the country in which the ads are targeting.
Premium click to call destination numbers that would result in a charge that exceeds normal phone call charges to the end user are not permitted unless the terms are fully disclosed to the recipient in the ad.
Landing pages must be viewable in mobile web browsers and only include content that is related to the mobile advertisement and essential terms disclosures.

f) Customer shall create and maintain reasonable, working affirmative consent (ie; opt-in), opt- out (“STOP”), and Customer assistance (“HELP”) mechanisms.

STOP and HELP mechanisms shall be communicated to recipients at the time data is collected and should be managed through the same channel in which it is initially presented. Mobile Message functionality is standard and may be augmented with an additional equally simple mechanism for recipients to opt-out or to seek help (E.g. a customer service telephone number).
Each Customer commercial Mobile Message (distinct from administrative and content Mobile Messages) shall contain such opt-out and assistance information which shall remain operable for at least thirty (30) days following the deployment of such message.

g) In connection with Customer’s use of the Cheetah Services, Customer shall not:

Use the Services to encourage or engage in any illegal, fraudulent, abusive, or other activities that materially interfere with the business or activities of Cheetah or any of its affiliates or subcontractors.
Attempt to bypass or break any security mechanism on any of the Cheetah Services or using the Cheetah Services in any other manner that poses a material security or service risk to Cheetah or any of its other customers.
Reverse-engineer the Cheetah Services in order to find limitations, vulnerabilities, or evade filtering capabilities.
Launch or facilitate, whether intentionally or unintentionally, a denial of service attack on any of the Cheetah Services or any other conduct that materially and adversely impacts the availability, reliability, or stability of the Cheetah Services.
Transmit any material that contains viruses, Trojan horses, spyware, worms or any other malicious, harmful, or deleterious programs.
Use the Cheetah Services in connection with unsolicited, unwanted, or harassing communications (commercial or otherwise), including, but not limited to, phone calls, Mobile Messages, chat, voice mail, video, or faxes.
Use the Cheetah Services to harvest or otherwise collect information about individuals, including email addresses or phone numbers, without their explicit consent or under false pretenses.
Use the Cheetah Services to receive, send or otherwise process Protected Health
Information as defined by the Health Insurance Portability and Accountability Act of 1996 as amended, unless you have signed a Business Associate Agreement with Cheetah or your use of the Cheetah Services fits within the “conduit” or some other exception for requiring a Business Associate Agreement.
Violate or facilitate the violation of any local, state, federal, or foreign law or regulation, including, but not limited to, laws and regulations regarding the transmission of data or software and recording of phone calls and communications.
Use the Cheetah Services to record or monitor a phone call or other communication without securing consent from the participants to the phone call or other communication as required under applicable law (including, as applicable, California’s Invasion of Privacy Act and similar laws in other jurisdictions).
Use the Cheetah Services in a manner that triggers a law enforcement, government, or regulatory agency to request the suspension of the Cheetah Services to you and/or your phone numbers.
Use the Cheetah Services to transmit any material that infringes the intellectual property rights or other rights of third parties.
Use the Cheetah Services to transmit any material that is, facilitates, or encourages libelous, defamatory, discriminatory, or otherwise malicious or harmful speech or acts to any person or entity, including but not limited to hate speech, and any other material that Cheetah reasonably believes degrades, intimidates, incites violence against, or encourages prejudicial action against anyone based on age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, geographic location or other protected category.
Use the Cheetah Services to transmit any material or content that is offensive, inappropriate, pornographic, obscene, illegal, or otherwise objectionable to any person or entity.
Create a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
Have a high volume of unanswered phone calls or phone calls that are too short in duration (i.e., phone calls generally less than twelve (12) seconds in length).
Conduct any unsolicited advertising or marketing activities (for example, any activities that violate anti-spamming laws and regulations including the CAN SPAM Act of 2003, as amended (“CAN-SPAM”), the TCPA and/or the Do-Not-Call Implementation Act);
Use the Cheetah Services in violation of any: (a) hour/time of day restrictions; and/or (b) restrictions applicable to placing calls and/or sending text messages on weekends and/or holidays; and
Offer to any users any services that permit a user to connect with emergency services personnel (e.g., 911 or E911).

If Customer is in violation of any of the above restrictions, and does not take immediate required action to cure such violation, Cheetah may suspend access to the Cheetah Services until the violation is resolved to Cheetah’s reasonable satisfaction.

h) Customer shall record, collect, store and maintain the prior written consents required by the TCPA, whether as a sound recording (where received verbally) or in written form, as applicable (collectively, “Consent Records”), for a period of five (5) years after the date that Customer collected each applicable Consent Record. Customer shall provide such Consent Records to Cheetah within ten (10) business days of a request for same. To the extent Customer is migrating existing consumer lists from another service provider (“Migrated Consumers”), Customer shall ensure that it has the necessary consents under the TCPA and applicable law to send Mobile Messages to Migrated Consumers prior to sending any Mobile Messages through the Cheetah Services.

i) Cheetah Indemnity. Cheetah shall indemnify, defend and hold harmless Customer and its officers, directors, and employees from and against any and all third party claims, damages, losses, liabilities, costs or expenses, including reasonable costs and attorneys’ fees (“Claims”), to the extent arising as a result of any: (i) direct infringement by Cheetah of any United States patent, copyright, trade secret, or other intellectual property right resulting from Cheetah’s provision of the Cheetah Services; or (ii) breach of Cheetah’s representations and warranties set forth in this Mobile Supplement. Should Cheetah’s provision of the Cheetah Services furnished under an Order Form become, or in Cheetah’s opinion be likely to become, the subject of a third party claim for infringement, Cheetah shall have the right to modify the Cheetah Services to make it non-infringing.

j) Customer Indemnity. Customer shall indemnify, defend and hold harmless Cheetah and its officers, directors, and employees from and against any and all Claims arising as a result of any: (i) infringement by Customer of any patent, copyright, trade secret, or other intellectual property right resulting from Customer’s use of the Cheetah Services or the provision of Customer’s content and consumer lists to Cheetah; or (ii) a breach of Customer’s representations and warranties set forth in this Mobile Supplement including, without limitation, any breach of Customer’s obligations set forth in Sections (a), (g), and (h).

k) Customer hereby grants Cheetah the right to use Customer Data, and send Customer Data to Cheetah’s mobile partner (as applicable) for use, solely as necessary to: (i) provide the Cheetah Services including, without limitation, detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Cheetah Services; (ii) respond to any technical problems or Customer queries and ensure the proper working of the Cheetah Services; (iii) to protect Cheetah, its other customers, and the public from harm or illegal activities in connection with the Cheetah Services; (iv) respond to an emergency which is reasonably believed by Cheetah, in good faith, to require disclosure of Customer Data to assist in preventing a death or serious bodily injury; or (v) comply with any applicable Law, regulation, legal process or government request.

l) Phone Number Porting. Unless otherwise required by applicable Law, Cheetah, in its sole discretion, reserves the right to refuse Customer to port away any phone number ported into Cheetah or purchased from Cheetah (or an affiliate). Furthermore, phone numbers are “locked” by default (i.e., Cheetah will dispute port-away requests unless clear notice is provided of Customer’s intent to port the number away from Cheetah) solely to prevent phone numbers from being ported away maliciously or mistakenly from Cheetah.

m) If Cheetah informs Customer of a request to port a phone number away from Cheetah and you have resold or re-provisioned that phone number to a third party, then Customer agrees to promptly validate the port-away request with such third party. If such third party approves the port-away request, then Customer agrees to: (x) inform Cheetah of such third party’s approval for the port-away request and (y) not take any action to prevent the execution of such port-away request.

n) Short Codes. If Customer uses a short code with Cheetah, then Customer will not change a short code use case (e.g., a campaign) approved by the telecommunications providers without first working with Cheetah to have the new short code use case approved by such telecommunications providers;

Customer agrees that each short code application or request for a short code submitted by Customer or on Customer’s behalf by Cheetah (each, a “Short Code Application”) is subject to approval from the applicable telecommunications provider. Cheetah has no control over the telecommunications provider approval process for short codes and will bear no liability if a Short Code Application is rejected by a telecommunications provider. Furthermore, if a telecommunications provider rejects a Short Code Application, then Cheetah has no obligation to refund any short code-related fees paid by Customer to Cheetah prior to the telecommunications provider’s rejection of the Short Code Application.

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