Last Updated: August 29, 2013
If you accept these Terms on behalf of an entity for whom you are authorized to act, you may use the Service only on behalf of that entity. IF YOU ARE NOT SO AUTHORIZED OR DON’T AGREE TO THESE TERMS, YOU MAY NOT USE THE SERVICE. By using the Service, you are creating a binding agreement between Promoboxx and you, as well as any entity for whom you are acting.
Promoboxx may modify these Terms at any time by notifying users of the changes (which may be accomplished by posting a notice of amendment on the Site). YOUR USE OF THE SERVICE AFTER THE POSTING OF SUCH NOTICE ON THE SITE CONSTITUTES YOUR ACCEPTANCE OF THE MODIFIED TERMS. IF YOU DO NOT AGREE WITH THE MODIFIED TERMS, YOU ARE NOT PERMITTED TO CONTINUE USING THE SERVICE.
The remainder of these Terms is divided into three parts. Part I states general terms and applies to all users of the Service; Part II applies to Brands; and Part III applies to Retailers.
I. GENERAL TERMS APPLICABLE TO ALL USERS
1. License and Restrictions: Subject to these Terms, Promoboxx grants you a personal, non-transferable, non-exclusive, and revocable right and license to access and use the Service. You agree that you may not sell, assign, sublicense, redistribute, resell, or otherwise transfer any right in our Service unless the same is expressly permitted or required by law or has been expressly authorized by Promoboxx in writing.
2. Code of Conduct:
You will not post or distribute any materials that are abusive, libelous, defamatory, vulgar, profane, or obscene; or that are fraudulent or deceptive; or that violate another’s rights (including without limitation copyrights or other intellectual property right); or that violate another’s confidentiality or privacy; or that harass, threaten, annoy, or are otherwise inappropriate, all as determined by Promoboxx in its sole discretion.
You will not post or transmit any improper advertising, such as chain letters and pyramid schemes; post or transmit any file that contains viruses, corrupted files, "Trojan Horses," or other contaminating or destructive features that may damage someone's computer; or take any action that imposes an unreasonably or disproportionately large load on our infrastructure or damages or disrupts the functioning of our systems or Service. We reserve the right to impose charges on any user or account holder whose use of our Service we deem to be excessive.
If you are accessing the Service on behalf of an entity, you will comply with such entity's online conduct and privacy policies.
You will use the Service in compliance with all applicable laws, rules, regulations, and industry standards.
You will comply with the terms of service and policies of any online channel, including any social media outlet, that you use in connection with the Service.
In no event will you upload or use our Service with respect to private or confidential information you are not authorized to use, or which use may violate any laws.
Unauthorized access to our Service is a breach of these Terms and may also violate the law. You agree not to access our Service by any means other than through the interfaces we provide.
You will not falsely identify the source of any communications or materials, deliberately mislead anyone as to your identity (including impersonating a representative of Promoboxx), use the Service to transmit unsolicited email, disclose material, non-public information about any company, or otherwise act contrary to law.
You are responsible for statements made and actions taken through the use of your password. You agree to immediately notify us of any actual or suspected unauthorized use of your user name and password.
You agree that all user feedback, data, comments, suggestions, information, text, data, software, sounds, photographs, audio, audiovisual, video, artwork, graphics, messages and other content of any nature that are created, customized, or transmitted to, via, or in connection with the Service ("Content") are the sole responsibility of the person from which the Content originated. This means that you, and not Promoboxx, are entirely responsible for the Content you create, customize, or transmit through or in connection with the Service. You also understand that by using the Service you may be exposed to Content that is offensive, objectionable or indecent and you agree not to hold us responsible.
4. Uploaded Materials: You represent that you will have the right to post or upload to our Service any Content that you do post or upload, and you hereby license us and other users to make unrestricted and perpetual use of any such Content you make available in a public area of the Service. You will indemnify us and any users who are sued, or who have claims made against them that they reasonably feel compelled to address, because you violate this representation or attempt to revoke this license.
5. Objectionable Content/Copyright Takedown: If you believe your rights have been violated by, or you otherwise object to, any posting, information or other Content on the Service, please contact us promptly so we can evaluate the claim and take appropriate action. If your objection relates to copyright infringement, please observe the following:
Copyright Policy: Without limiting the above, it is Promoboxx’s policy to respond promptly to claims of copyright infringement, to remove, or disable access to, infringing material and to terminate use of our Service, or take other appropriate action, against repeat infringers.
Therefore, if you believe that any of the Content or materials appearing on or transmitted through the Service are infringing, please send a notice to us at the address below. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Promoboxx’s designated agent to receive notification of claimed infringement is Ben Carcio, 500 Harrison Avenue, Studio 3R, Boston, MA 02118, email: , phone: 800-380-7502. This contact information is only for notices relating to copyright infringement; all other notices, comments, or other communications should be sent to the contact stated under "Communications" below.
8. Disclaimer and Limitation of Liability: EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN AN EXECUTED WRITTEN AGREEMENT YOU HAVE ENTERED INTO WITH PROMOBOXX, OUR SERVICE, AND ALL SOFTWARE, CONTENT, SERVICES, TOOLS, PRODUCTS, AND PROPERTIES ARE PROVIDED AS-IS AND NEITHER WE NOR ANY OF OUR AFFILIATES OR PARTNERS MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY OF THEM. WITHOUT LIMITING THE FOREGOING, NEITHER PROMOBOXX NOR ANY OF ITS AFFILIATES OR PARTNERS MAKE ANY WARRANTY THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, CONTENT OR RESULTS THAT YOU PURCHASE OR OBTAIN FROM THE USE OF OUR SERVICE WILL MEET YOUR EXPECTATIONS OR THAT ANY ERRORS WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT YOU AND NOT PROMOBOXX ACCEPT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR SERVICE AND THE ACCURACY, TIMELINESS OR COMPLETENESS OF OUR CONTENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PROMOBOXX DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, RELIABILITY, OPERABILITY, OR AVAILABILITY OF INFORMATION, CONTENT OR MATERIAL IN OR ASSOCIATED WITH THE SERVICE; OR FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELEVERY OF ANY INFORMATION OR MATERIAL; OR FOR ANY HARM RESULTING, INCLUDING FROM DOWNLOWDING OR ACCESSING ANY INFORMATION, CONTENT OR MATERIAL THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, EXCEPT AS REQUIRED BY APPLICABLE LAW, PROMOBOXX SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THE SITE OR SERVICE OR YOUR USE OF THEM.
You agree that Promoboxx and its officers and employees will have no liability to you whatsoever, direct or indirect, for any damage, loss or expense you suffer as a result of your visiting our Site, using our Service or any software, viewing another site from ours, obtaining information, products or services from our affiliates, or otherwise arising from your relationship with us, even if we have been advised of the possibility of such damages. This includes, but is in no way limited to, loss or injury caused in whole or in part by our negligence or by anything beyond our control in creating or delivering any of our Content or Service, unless caused by our willful misconduct. Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, our liability and that of our third party Content providers will be limited to the greatest extent permitted by law.
9. Indemnification. You agree to indemnify and hold harmless Promoboxx and its affiliates, licensors or other partners, and our and their officers, directors, shareholders, employees, and agents, from any claim, demand, or investigation, including reasonable attorneys’ fees, made by any third party due to or arising out of your Content, your Campaign, your use of the Site or Service, your conduct, your alleged violation of these Terms and/or any applicable Promoboxx policy, or your alleged violation of any law, rule, regulation, industry standard or right of another in connection with your Content or use of the Service or Site. Promoboxx reserves the right, at its own expense, to assume exclusive control of any matter otherwise subject to indemnification by you, but doing so will not excuse your indemnity obligations.
10. Account and Passwords: You are responsible for statements made and actions taken on the Service by you or under your account or through the use of your password. You agree to immediately notify us of any actual or suspected unauthorized use of your user name, password or account.
11. Data Storage: We will make reasonable attempts to backup data. However, because the success of this process depends on equipment, software and services over which we have limited control, you agree that Promoboxx has no responsibility or liability for the deletion or failure to store any data or other Content or communications related to a Campaign or otherwise maintained or transmitted by or in connection with the Service. You acknowledge that Promoboxx may have set no fixed upper limit on the number of transmissions you may send or receive through the Service or the amount of storage space used; however, we retain the right, at our sole discretion, to create limits at any time upon thirty (30) days notice.
12. Interruption: Promoboxx may, from time to time, need to interrupt the Service for maintenance and other operational reasons, as determined in its sole discretion. You shall not receive any compensation or refund for such interruptions, and you hereby release and agree to defend, indemnify, and hold harmless Promoboxx and its affiliates, and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors, from and against any and all claims, costs (including without limitation attorneys' fees), injuries, losses, or damages arising in connection with such interruptions.
13. Termination: Upon thirty (30) days written notice to Promoboxx, you may discontinue your use of our Service. However, all fees paid are non-refundable, and, unless you are discontinuing your use of the Service due to Promoboxx’s modification of these Terms as described above, within ten (10) days of providing Promoboxx written notice of your intention to discontinue your use of the Service, to the extent that fees for use of the Service were not prepaid, you shall pay Promoboxx in full for all other fees that would have been due to Promoboxx under the remaining duration of any Promoboxx Payment and Support Addendum (or any other written agreement) you have entered into with Promoboxx.
14. Modifications: We reserve the right at any time and from time to time to temporarily modify or discontinue, our Service (or any part of thereof) with or without notice. You agree that Promoboxx shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Service.
15. Intellectual Property: The Site and Service are protected by our copyrights, trade secret rights and other intellectual property laws. We own all intellectual property associated with the Site and Service (except certain in-licensed code), which you agree not to use without our consent, except solely in conjunction with your authorized use of the Service as permitted by these Terms. If you create derivative works of our Site or Service without our consent, you agree that we will own the intellectual property rights in those works and you hereby assign all such intellectual property rights to us.
16. Feedback, Aggregate Data, and Use of Name and Marks: You acknowledge that any ideas, suggestions, concepts, processes or techniques which you provide to Promoboxx related to the Service, or Promoboxx or its business ("Feedback") shall become the property of Promoboxx without any compensation or other consideration payable to you by Promoboxx, and you do so of your own free will and volition. Promoboxx may, in its sole discretion, use or incorporate the Feedback in whatever form or derivative into the Site, Service, its business or other products. You hereby assign all rights in any Feedback to Promoboxx and, as applicable, waive any moral rights. You further hereby grant Promoboxx a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully paid up, sublicensable right and license to collect, retain, use, copy, modify, publicly perform, publicly display and create derivative works of all aggregate data concerning your activity (and that of your consumers) on or in connection with the Service (without reference to your name or the entity on whose behalf you are acting) for any lawful purposes, including without limitation, benchmarking, development of best practices, product and services development, and research and statistical purposes without reimbursement or notification to, or consent or authorization from you. You also hereby grant to Promoboxx a worldwide, perpetual, non-exclusive, royalty-free, fully paid up, sublicensable right and license to use, copy, publicly perform, and publicly display your trade name, trademark, and/or service mark in order to identify you on our website and in collateral marketing materials as a representative user of our Service.
17. Communications: All communications (except as noted under Copyright Policy) should be sent to: .
18. Miscellaneous: These Terms are governed by the internal laws of Massachusetts, which shall have jurisdiction over any disputes. You may not assign or sublicense these Terms, but you recognize our right to assign these Terms to a third party. These Terms inure to the benefit of Promoboxx’s successors, assigns and licensees. No agency, partnership or joint venture is created by these Terms. At our election, disputes are subject to mediation and/or arbitration in the Boston area. If any provision of these Terms is invalid, illegal or unenforceable in any respect, the validity, legality and enforceability in every other respect of such provision and of the remaining provisions shall not in any way be affected or impaired thereby. If a court determines that any provision herein is invalid, illegal or unenforceable, for any reason, such provision shall be deemed amended to the extent necessary to comply with such determination, and such provision, as so amended, shall be valid and binding as though the invalid, illegal or unenforceable portion had not been included herein.
II. ADDITIONAL TERMS FOR BRANDS
1. Compliance with Laws and Retailer Agreement(s): You acknowledge and agree that the Promoboxx Service merely helps you develop and share your Campaigns online with your Retailers and that the Service provides no safeguards that ensure that you operate (or that Retailers participate in, customize, or share with consumers) your Campaign properly or legally. You specifically acknowledge and agree that ALL TOOLS AND RESOURCES ARE MADE AVAILABLE THROUGH THE SERVICE FOR YOUR CONVENIENCE AND REFERENCE, BUT WITHOUT ANY WARRANTY THAT USING THEM WILL COMPLY WITH THE LAW. TO THE CONTRARY, THE LAWS REGARDING MARKETING CAMPAIGNS AND ADVERTISING VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY; IT IS YOUR RESPONSIBILITY TO CONSIDER THE LAWS IN THOSE JURISDICTIONS IN WHICH YOU WILL OPERATE YOUR CAMPAIGN TO ENSURE THAT IT MEETS APPLICABLE LEGAL REQUIREMENTS.
You represent, warrant, and covenant that in using the Service and in creating, advertising, marketing and operating your Campaign(s), you will comply with all applicable laws, rules, regulations, and industry standards, including without limitation the CAN-SPAM Act and the standards of the Mobile Marketing Association, and (except to the extent that these violate applicable law) your agreements with any Retailer. You further acknowledge and agree that PROMOBOXX HAS NO RESPONSIBILITY WHATSOEVER REGARDING A CAMPAIGN’S COMPLIANCE WITH THE LAW.
2. Additional Indemnity: You agree to indemnify, defend and hold harmless Promoboxx and its affiliates, and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors, from any and all third-party claims, losses, liability, damages and/or costs (including attorneys' fees and costs) arising from your use of the Service, your violation of these Terms or any other agreement between you and Promoboxx, your actual or alleged violation of any law, rule, regulation, or industry standard associated with your Campaign(s), your actual or alleged violation of any Retailer agreement, and/or infringement by you (or Retailers participating in, customizing, or sharing with consumers your Campaign(s)) of any intellectual property or other rights of any person or entity. Promoboxx will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable cooperation, at your expense, in defending any such claim, loss, liability, damage or cost.
3. Access to Information and Data: By using the Service and/or participating in a Campaign, you agree that Promoboxx may share with the respective Retailer(s) associated with your account campaign information that you have approved for distribution to such Retailer(s), the analytical ranking of respective Retailer(s) in comparison to other Retailer(s) associated with your account (assuming that you have enabled the Retailer(s) to view these analytics), divisional analytics (assuming that you have enabled the Retailer(s) to view these analytics), and aggregate Brand(s) performance benchmarking. In addition, you agree that Promoboxx may show a Brand its respective performance benchmarked against other Brand(s) using the Service. For the avoidance of doubt, any data or information provided, sourced, input, and/or created by Promoboxx with respect to any Brand or Retailer may be freely shared and/or used by Promoboxx.
III. ADDITIONAL TERMS FOR RETAILERS
1. Compliance with Laws and Brand Agreement(s): You acknowledge and agree that the Promoboxx Service merely helps you participate in, customize (as permitted by the respective Brand), and share with consumers the Campaigns of your associated Brands online and that the Service provides no safeguards that ensure that Brands operate (or that you participate in, customize, or share with consumers) a Campaign properly or legally. You specifically acknowledge and agree that ALL TOOLS AND RESOURCES ARE MADE AVAILABLE THROUGH THE SERVICE FOR YOUR CONVENIENCE AND REFERENCE, BUT WITHOUT ANY WARRANTY THAT USING THEM WILL COMPLY WITH THE LAW. TO THE CONTRARY, THE LAWS REGARDING MARKETING CAMPAIGNS AND ADVERTISING VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY; IT IS YOUR RESPONSIBILITY TO CONSIDER THE LAWS IN THOSE JURISDICTIONS IN WHICH YOU WILL PARTICIPATE IN OR CUSTOMIZE A CAMPAIGN TO ENSURE THAT IT MEETS APPLICABLE LEGAL REQUIREMENTS.
You represent, warrant, and covenant that in using the Service and in participating in, customizing (as permitted by the respective Brand), and sharing with consumers the Campaigns of your associated Brands, you will comply with all applicable laws, rules, regulations, and industry standards, including without limitation the CAN-SPAM Act and the standards of the Mobile Marketing Association, and (except to the extent that these violate applicable law) your agreements with any Brand(s). You further acknowledge and agree that PROMOBOXX HAS NO RESPONSIBILITY WHATSOEVER REGARDING A CAMPAIGN’S COMPLIANCE WITH THE LAW.
2. Additional Indemnity: You agree to indemnify, defend and hold harmless Promoboxx and its affiliates, and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors, from any and all third-party claims, losses, liability, damages and/or costs (including attorneys' fees and costs) arising from your use of the Service, your violation of these Terms or any other agreement between you and Promoboxx, your actual or alleged violation of any law, rule, regulation, or industry standard associated with a Campaign(s) in which you are participating or which you are customizing or sharing with consumers, your actual or alleged violation of any Brand agreement, and/or infringement by you of any intellectual property or other rights of any person or entity. Promoboxx will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable cooperation, at your expense, in defending any such claim, loss, liability, damage or cost. These Terms inure to the benefit of Promoboxx’s successors, assigns and licensees.
3. Additional Right to Terminate: In addition to the termination rights specified in section I.3 above, we can terminate your access to the Service, at any time, without prior notice and at our sole discretion for any reason.
4. Access to Information and Data: By using the Service and/or participating in, customizing, and/or sharing with consumers a Campaign, you agree that Promoboxx may share with the respective Brand(s) associated with your account all information and data concerning you and your activity, and that of your consumers, as such information and data pertains to such respective Brand(s), on or in connection with the Service. In addition, Promoboxx may show a Brand its respective performance benchmarked against other Brand(s) using the Service. To the extent that, in connection with the Service, you receive information and/or data from a Brand or concerning the activity of a Brand (collectively, "Brand Data"), you agree that you shall hold such Brand Data in confidence and that you shall not disclose or use on another’s behalf such Brand Data unless expressly permitted in writing by the Brand as to which such Brand Data relates. For the avoidance of doubt, any data or information provided, sourced, input, and/or created by Promoboxx with respect to any Brand or Retailer may be freely shared and/or used by Promoboxx.