EFECTIVE DATE: 05/05/2015
These Terms of Service (the “Terms”) are a binding contract between you and Mobidia Technology Incorporated (together with its affiliates, “Mobidia,” “we,” “us,” or “our”). You must agree to and accept all of the Terms in order to use our Apps (defined below), website(s), products and/or services (collectively, the “Services”). If you do not agree to these Terms, please do not install, access or use the Services in any manner or in any form.
You affirm that you are at least 13 years old. If you are under 13 years of age, you may not use the Services.
Mobidia grants you a limited, non-transferable, non-exclusive, non-sublicensable license to access and use the Services for your own internal, personal, non-commercial use (subject to these Terms). All rights not expressly granted remain reserved by Mobidia.
The materials displayed, performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images and illustrations (collectively, the “Content”) may be protected by copyright and/or other intellectual property laws. Mobidia, .wave, SpeedyApp and CUBuddy are trademarks of Mobidia Technology Inc. You promise to abide by all copyright notices, trademark rules, information, and restrictions related to any Content you access through the Services, and agree that you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you: (i) without the prior consent of the owner of that Content or (ii) in a way that violates a third-party’s rights.
You understand that Mobidia owns the Services and has no obligation to compensate you for any suggestions, ideas, enhancement requests, feedback or information provided by you or any other party relating to the Services. You agree not to modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services.
Mobidia does not claim ownership in any Content that you may upload through the Services. However, when you do so, you represent and warrant that you have the right to upload such content.
RESPONSIBILITIES AND ACCEPTABLE USE
You are responsible for all actions you take using or related to the Services, and you represent and warrant you have all rights necessary to take such actions.
If there is a dispute between users of our Service, or between users and any third party, you agree that Mobidia is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Mobidia, its affiliated companies, and the officers, employees, agents, and successors of Mobidia and its affiliated companies from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."
You understand that the Services may monitor and/or modify device characteristics for your benefit (e.g., data usage) and hereby agree to such monitoring and modification.
You represent, warrant, and agree that you will not (directly or through a third-party) use or interact with the Services in a manner that:
- Infringes or violates our (or a third-party’s) intellectual property rights or other proprietary rights;
- Violates any law, regulation or court order;
- Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- Jeopardizes the security of our data or other users’ data;
- Attempts to obtain information from or about other users;
- Violates the security or integrity of any network, computer or communications system, software application, or network or computing device (e.g., you may not distribute viruses, trojans, worms, or other malware);
- Sends commercial email solicitations or advertisements, or violates anti-spamming laws or regulations;
- Places an unreasonable load on our infrastructure or systems or otherwise interferes with the proper working of the Services;
- “Crawls,” “scrapes,” or “spiders” any page, data, or other portion of the Services (through manual or automated means); or
- Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
Violation of any of the foregoing is grounds for termination of your right to use or access the Services.
MODIFICATIONS TO THE SERVICES
We may, at any time, suspend or discontinue any part of the Services, introduce new features, impose limits on certain features or restrict access to part or all of the Services. Similarly, we reserve the right to remove and/or block any Content from the Services at any time for any reason (including, but not limited to, if someone alleges you contributed such Content in violation of these Terms).
TERMINATION AND SURVIVAL
Mobidia may terminate (or suspend) your access to the Services at any time for any reason. Mobidia has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
We reserve the right to charge for part or all of Services at any time. We will notify you before any such fees become applicable.
If you access the Services via a mobile device provided by Apple, Inc. (“Apple”), the following additional terms apply:
- You acknowledge that the Terms are concluded between you and Mobidia only, and not with Apple, and that Apple is not responsible for the Apps or the Content;
- You will only use the Apps in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps;
- In the event of any failure of the Apps to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Apps;
- You acknowledge and agree that Mobidia, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Apps;
- You acknowledge and agree that, in the event of any third-party claim that the Apps, or your possession and use of the Apps, infringes that third party’s intellectual property rights, Mobidia, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You acknowledge and agree that, in your use of the Apps, you will comply with any applicable third-party terms of agreement that may affect or be affected by such use; and
- You acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
THE SERVICES AND CONTENT ARE PROVIDED STRICTLY ON AN “AS-IS” BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY MOBIDIA (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS AND ASSIGNS) AND ITS LICENSORS. WITHOUT DEROGATING THE FOREGOING, MOBIDIA MAKES NO REPRESENTATION, WARRANTY OR GUARANTY THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, BE ERROR-FREE, OPERATE WITHOUT DISRUPTION, DELAYS, OR LIMITATIONS OR BE IMMUNE FROM UNAUTHORIZED ACCESS.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MOBIDIA AND/OR ITS AFFILIATES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF $100, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. APPLICABLE LAW MAY NOT ALLOW CERTAIN LIMITATIONS AND/OR EXCLUSIONS. IN SUCH CASES, MOBIDIA’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You agree to indemnify and hold Mobidia, its affiliates, officers, agents, employees, and partners harmless from and against any and all complaints, claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to third-party claims involving: (a) your use of the Services (including any actions taken by a third party using your account) and (b) your violation of these Terms.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without Mobidia’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
CHOICE OF LAW; ARBITRATION
These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND MOBIDIA ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais. The English version of these Terms will be the version used when interpreting or construing these Terms.
The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Mobidia agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Mobidia and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. All modifications to these Terms must be in a writing signed by both parties (except as otherwise provided herein). You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Mobidia, and do not have any authority to bind Mobidia in any respect whatsoever. These Terms were written in English (US). To the extent any translated version conflicts with the English version, the English version controls.
We reserve the right to update these Terms at any time and encourage you to review them periodically. You agree that continued use of the Services after changes to the Terms have been posted signifies your acknowledgement and consent to such updated Terms. If you do not agree to the updated Terms, you must terminate your use of the Services (see “Termination,” above).