Cyntrix, Inc., Mobile Content Position Statement
Cyntrix, Inc., believes that off-deck mobile content offers provide a highly sought-after service to consumers, and that publisher network marketing provides an excellent and cost-effective means of distributing these offers on behalf of our mobile content partners and providers of related mobile products and/or services ("Advertisers"). We insist on compliance with both the letter and spirit of the law, the standards of the industries within which we operate, the standards of the professional organizations which oversee these industries - in this case, the Mobile Marketing Association, the Cellular Telecommunications & Internet Association - and the general public interest. It is only by providing our services in this spirit that the industry can build a sustainable business with the promise of strong revenue opportunities for a long time to come.
Cyntrix, Inc., has made sweeping changes with our advertisers and base of thousands of publishers; and we now introduce to our publishers an industry first, Publisher Marketing AUP for Mobile Content. This AUP sets the standard in the industry for online publisher marketing, not only does it articulate the legal rules of the game, but we are on patrol for violators and will be enforcing the new policies to help maintain a healthy commercial environment for all players in this ecosystem.
Acceptable Use Policy for Off-Deck Mobile Content Services
1. The following Mobile Acceptable Use Policy ("Mobile AUP"), our Publisher Terms and Conditions (the "Terms and Conditions"), the Email AUP, the Adware AUP and the Search AUP, each of which are expressly incorporated herein by reference, collectively constitute and are referred to herein as the "Agreement". The Agreement is the binding legal agreement between AzoogleAds.com, Inc. ("Company") and you ("You" or "Your"), a user of the Company's website (the "Site") and the Company's advertising network service ("Service"). You agree to use the Site, the Service, and any additional products and/or services offered by Company in the future only in accordance with the Agreement. Notwithstanding the foregoing, this Mobile AUP is not an exhaustive recitation of all rules, regulations, standards and legal requirements governing Your conduct:
a) As a Publisher (as that term is defined herein below) of Company; and/or
b) In connection with Your distribution and administration of marketing campaigns in association with Off-Deck Mobile Content Services and Marketing Programs ("MCS Programs").
The Agreement states the minimum standards that You and Your Affiliated Third Parties (as defined below) must adhere to in light of current laws, rules and regulations governing, and industry best practices applicable to, the transmission of mobile content, as well as any and all marketing activities associated therewith. In the event that any state or federal law, rule or regulation governing the transmission of mobile content, as well as any and all marketing activities associated therewith, is enacted or amended setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such subsequently enacted or amended law, rule or regulation shall apply to You and Your Affiliated Third Parties.
2. Company reserves the right to make changes to the Site, the Service and/or the terms and conditions of the Agreement at any time. The latest Agreement will be posted on the Site. Your continued use of the Site and/or Service after any such modification, and posted notification thereof, shall constitute Your consent to such modification. Therefore, You should regularly check the Site for any updates and/or changes. This Mobile AUP applies to and governs Your relationship with the Company in any and all matters associated with the MCS Programs including, without limitation, as a Publisher in connection with your use of Company's Service. For purposes of the Agreement, "Publisher" means the individual or entity registering with Company to use the Service and, without limitation, any parent entities, owners, subsidiaries, affiliates, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same, in connection with distributing marketing campaigns related to MCS Programs. If You do not agree to the terms and conditions contained within this Mobile AUP and the Agreement in their entirety, You are not authorized to use the Service and/or Site in any manner or form whatsoever in connection with the MCS Programs. Any capitalized terms not defined herein shall have the same meaning as set forth in the Terms and Conditions 3. Where authorized by both Company and the applicable Advertiser(s), the following terms shall apply to all MCS Program content transmitted by Publisher on behalf of such Advertiser(s) in connection with any and all MCS Programs ("Mobile Promotional Content"). Company will allow Mobile Promotional Content to be used by Publisher in connection with any and all MCS Programs in which Publisher participates where such Mobile Promotional Content, as well as the marketing practices of Publisher in general, comply with: (a) all applicable federal, state, provincial, foreign and local laws, ordinances, rules, regulations, statutes, court orders, judgments and decrees that govern mobile marketing and/or communications; (b) the most stringent industry standards including, but not limited to, the Mobile Marketing Association's Consumer Best Practices Guidelines for Cross-Carrier Mobile Content Services and the Mobile Marketing Association's Code of Conduct (jointly, the "Mobile Marketing Association Rules"); and (c) any and all applicable Federal Trade Commission regulations. Compliance with the foregoing is determined in the joint discretion of Company and the applicable Advertiser(s). As referenced herein and throughout the Agreement, Company and, where applicable, Advertiser, reserve the right, completely, jointly and exclusively, to establish the test for reasonableness with regards to any conditions as set forth herein. 4. Without limitation, the conditions set forth herein shall apply equally to You, Your parent entities, owners, subsidiaries, predecessors and/or successor entities and any agents, officers, directors, members and/or employees acting on Your behalf, as well as any of Your affiliates, partners, distributors and/or other third parties with whom You do business while governed by the Agreement (collectively, "Affiliated Third Parties").
5. All Affiliated Third Parties must be approved by Company prior to their assisting You in connection with any MCS Program governed by the Agreement. Company reserves the right to reject Your request to work with any Affiliated Third Parties and may restrict Your right to use any previously approved Affiliated Third Parties at any time and for any reason. You are responsible for ensuring that any and all such Affiliated Third Parties agree, in writing, to terms and conditions no less restrictive than those contained herein, and You must submit all such written representations to Company if requested by Company. All such agreements must contain provisions that require Your Affiliated Third Parties to fully and completely indemnify Company for all damages arising from their breach of any of the provisions set forth herein and You must have the ability to terminate distribution with or procurement by Affiliated Third Parties immediately. Notwithstanding the foregoing, You shall be solely responsible for any breach of the provisions of the Agreement by Affiliated Third Parties.
6. All Mobile Promotional Content transmitted by Publisher in connection with any and all MCS Programs must, at a minimum, comply with the Mobile Marketing Association Rules, all applicable laws relating to such Mobile Promotional Content and, as applicable, Company's Email AUP, Search AUP and/or Adware AUP. In addition, Publisher must adhere to the following obligations, as determined by Company and, where applicable, Advertiser, in their joint and exclusive discretion:
a) Required Disclosures/Prohibited Offers.
(i) If Mobile Promotional Content transmitted by You includes any potentially misleading terms including, but not limited to, "free," "complimentary," "no charge," "zero cost" and "no fee," then such Mobile Promotional Content must clearly and conspicuously and in a font size of equal prominence and proximity disclose, prior to the consummation of the sale or other transaction: (1) , that such content is only free when the end-user consumer ("User") makes a purchase and/or agrees to a subscription program; and (2) all of the pricing, payment and other program related terms set forth in 6(b) below.
(ii) Company strictly forbids the display of terms transmitted by You via Mobile Promotional Content that represent or imply that an MCS Program is limited to certain geographical areas. (E.g., "Offer only valid to residents of New Jersey.")
(iii) Mobile Promotional Content must be available via all carriers unless You otherwise conspicuously disclose, prior to the consummation of the sale or other transaction, which content is available through which carriers.
(iv) Mobile Promotional Content must be available via all wireless devices unless You otherwise conspicuously disclose, prior to the consummation of the sale or other transaction, the specific makes and models for which content is available.
(v) All Mobile Promotional Content distributed by You must clearly and conspicuously disclose the following: (1) any initial and recurring charge, and the amount and frequency of any recurring charge; (2) whether any additional charges apply; and (3) if there is a recurring charge, that the User will be charged automatically until he/she cancels the applicable plan.
(vi) You may not condition subscription to any MCS Program upon the User's agreement to receive advertising or promotional messages delivered electronically to such User's mobile device via text messaging, e-mail or otherwise,
b) Consistency of Disclosures.
Without limiting any of the foregoing, all Mobile Promotional Content transmitted by You in connection with an MCS Program must contain a link to the applicable terms and conditions of the applicable MCS Program, as well as all material terms of the applicable MCS Program ("Material Terms") displayed clearly and conspicuously immediately adjacent to any and all applicable mobile device and/or P.I.N code "submit" field(s) or other button(s) that indicate(s) consent as each appear in the applicable order path (each, a "Submit Field"). Material Terms include, but are not limited to the following: (i) program availability on a carrier-by-carrier basis; (ii) the cost of the product or service including, as applicable, whether other charges may apply if the User chooses to obtain such product or service; (iii) whether the charge(s) will be billed on the User's wireless phone bill or deducted from his/her prepaid balance, and how the charge(s) will appear on the wireless phone bill; (iv) whether the MCS Program is offered via a subscription and if so, the length of the subscription term, the billing cycle for that subscription (e.g., weekly, monthly, yearly, etc.) and whether the User will be billed automatically at the commencement of each such billing cycle until cancelled; (v) the name and toll free number or email address of the applicable sender; (vi) any minimum age requirement; (vi) the cancellation policy; and (vii) that the User must be eighteen (18) years of age or older. All Material Terms of an MCS Program must be consistent across that MCS Program from the Creative to the corresponding landing page(s), confirmation page(s) and/or other web pages that are linked to such Creative so as not to be misleading. Company shall have final say in determining the Material Terms for any and all MCS Programs, and whether such Material Terms as presented across a particular MCS Program are consistent.
c) User Consent to Terms and Conditions of an MCS Program.
(i) You must ensure that the phrase "terms and conditions" is clearly visible (via most major Internet Browsers) and linked to on every landing page or similar web page used in connection with an MCS Program, as well as any and all Submit Fields appearing on any page in the order path, such that the User is provided with notice of, and the ability to access, such terms and conditions without having to scroll down on the applicable pages.
(ii) Company strictly forbids the use of pre-checked boxes to indicate acceptance of the terms and conditions for any MCS Program. Users must indicate their acceptance of an MCS Program by affirmatively consenting to the terms and conditions for that MCS Program.
Where applicable, Publisher must comply with then current Mobile Marketing Association Rules regarding consumer opt-in requirements for the applicable MCS Program.
(i) Single opt-in is required for standard rate MCS Programs; and
(ii) Double opt-in is required for premium rate MCS Programs.
d) Appropriate Mobile Promotional Content.
Company strictly forbids the display of sexually-explicit materials via Mobile Promotional Content transmitted by You, which includes, but is not limited to, Mobile Promotional Content from Company. No Mobile Promotional Content may display content that fails to satisfy all of the requirements of Section 2 of the Terms and Conditions. As an Publisher, You represent and warrant that Your Mobile Promotional Content programs will not contain objectionable content (including, but not limited to, content that is misleading, libelous, defamatory, obscene, offensive, violent, bigoted, hate-oriented, illegal and/or that promotes illegal goods, services or activities). Company will have final approval on all Mobile Promotional Content. Any and all email marketing campaigns delivered by You to mobile devices must strictly comply with the terms and conditions of our Email AUP
You shall disclose all Internet Protocol ("IP") addresses that You utilize in conducting any and all transactions, business and operations as a part of Your Publisher relationship with Company.
Company strictly forbids You to transmit Mobile Promotional Content to anyone under the age of eighteen (18). Notwithstanding the foregoing, You shall distribute only such Mobile Promotional Content that complies with all applicable laws associated with children and marketing including, but not limited to, the Children's Online Privacy Protection Act ("COPPA"), rules promulgated pursuant thereto and regulations regarding age restrictions for particular products. This includes, but is not limited to, Mobile Promotional Content containing cartoons or other images that might be considered tailored or attractive to children.
g) Social Media.
Company strictly forbids the use of social media profiles (e.g., MySpace, Facebook, Tribe) to advertise or distribute Mobile Promotional Content. This does not preclude You from purchasing banner advertisements on social media websites to advertise and distribute Mobile Promotional Content.
h) Intellectual Property.
(i) Your distribution of Mobile Promotional Content in connection with any and all MCS Programs must not: (1) infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right of any third party; (2) otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; or (3) result in any consumer fraud, product liability or breach of contract to which You are a party.
(ii) You shall not use Company or its represented Advertisers' names (including any abbreviation thereof) or any trademark, trade name, service mark, logo or other Company-identifying information in any part of any Mobile Promotional Content transmission unless otherwise directed by Company in writing.
(iii) Other than where disclosure of availability on a carrier-by-carrier basis is required, You shall not represent or imply that You are affiliated with any carriers, or otherwise improperly use carrier names (including any abbreviation thereof) or any carrier's trademark, trade name, service mark, logo or other carrier-identifying information in any part of any Mobile Promotional Content transmission unless otherwise directed by Company in writing.
(iv) You shall not falsely represent or imply that You are certified by any third-party in any part of any Mobile Promotional Content transmission. This includes but is not limited to falsely representing that Your website has been "certified by TRUSTe," or falsely representing that You are an "Official Partner" of a carrier or other large corporation.
i) A Clear History.
You must have a strong track record of compliance with the terms and conditions of this Mobile AUP, as well as applicable laws, rules, regulations and industry standards governing the marketing and promoting of consumer goods at all times, both prior to, and after, the commencement of Your relationship as an Publisher. You shall immediately alert Company in the event that any litigation or investigation ensues concerning You, Your parent entities', subsidiaries', Your affiliates' and/or Affiliated Third Parties' Mobile Promotional Content practices (regardless of whether such litigation relates to Your relationship with Company).
You must be clear, complete and forthcoming in all statements directed at and concerning Company, its Advertisers and recipients of Mobile Promotional Content.
Company will strictly enforce a zero tolerance policy with respect to the publication of Mobile Promotional Content programs and services, as well as any and all marketing activities associated therewith. Company reserves the right to shut down or disable any MCS Program, as well as any Publisher's participation therein, at any point if it appears that a violation of this Mobile AUP and/or the Agreement has occurred in Company's sole and absolute discretion.