MOBIDIA TECHNOLOGY INCORPORATED
DISCLAIMER and TERMS OF USE
ONLINE SERVICES
NOTICE TO USER:
PLEASE READ THIS CONTRACT CAREFULLY. THE SERVICES AND MATERIALS OFFERED THROUGH
OR IN ASSOCIATION WITH THE ONLINE SERVICES FEATURE OFFERED BY MOBIDIA (the "Services
and Materials") ARE OFFERED TO YOU SUBJECT TO YOUR ACCEPTANCE OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT. BY USING THE ONLINE SERVICES FEATURE YOU ACCEPT
ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR, THE
LIMITATIONS ON USE, LIABILITY AND WARRANTY SET FORTH BELOW.
1. MODIFICATION. Mobidia reserves
the right to change these Terms of Use without notice to you. You are responsible
for reviewing these Terms of Use each time you use the Online Services feature.
Your continued use of the Online Services feature constitutes your agreement
to the then current Terms of Use.
2. PRIVACY AND PERSONAL INFORMATION.
To learn about how Mobidia protects your personal information, such as
your name and address, refer to the Mobidia General Privacy Policy located at
http://www.mobidia.com/privacy.shtml.
3. MOBIDIA SITES AND SERVICES. The
Online Services feature may rely upon and/or make available web sites and web
pages operated by Mobidia, for example, the web sites and web pages found at
http://www.mobidia.com (collectively,
the "Mobidia Web Sites" (the "Sites"))). Your access to and use of the Mobidia
Web Sites is governed by the Mobidia.com Terms of Use located at
http://www.mobidia.com/disclaimer.shtml,
as well as any other terms, conditions or notices found on such sites. Mobidia
may at any time, for any reason, modify or discontinue the availability of the
Mobidia Web Sites, Third Party Sites and Online Services feature.
4. USE OF WEB SITES INFORMATION. The
information on these Sites is intended to provide general information on the
services, solutions and technology offered by Mobidia Technology Inc. The Sites
may contain other proprietary notices and copyright information, the terms of
which must be observed and followed.
You may download, view, copy and print documents and graphics incorporated in
these documents (the "Documents") from the Sites subject to the following: (a)
the Documents may be used solely for personal, informational, non-commercial
purposes; and (b) the Documents may not be modified or altered in any way. Except
where your use constitutes "fair use" under copyright law, you may not otherwise
use, download, upload, copy, print, display, perform, reproduce, publish, license,
post, transmit or distribute any information from the Site in whole or in part
without the express authorization of Mobidia Technology Inc.
Information may be changed or updated without notice. Mobidia Technology Inc
may also make improvements and/or changes in the products and/or services described
in this information at any time without notice.
Mobidia Technology Inc assumes no responsibility regarding the accuracy of the
information that is provided by Mobidia Technology Inc and use of such information
is at the recipient's own risk. Mobidia Technology Inc provides no assurances
that any reported problems might be resolved with the use of any information
that Mobidia Technology Inc provides. By providing information, Mobidia Technology
Inc does not grant any licenses to any copyrights, patents or any other intellectual
property rights.
5. THIRD PARTY SITES AND SERVICES. The
Online Services feature may also make available web sites and/or web pages operated
by third parties offering material, information and services (the "Third Party
Sites"). Your use of the Third Party Sites and the use of information collected
by the operators of such sites are governed by the terms of use and privacy
policies found at such sites. Third Party Sites are made available only as a
convenience, and the inclusion within the Online Services feature of any link
to a Third Party Site does not imply endorsement by Mobidia of the operator
of such site or any association between Mobidia and such operator. Any dealings
between you and any third party in connection with a Third Party Site, including
the delivery of and payment for goods and services and any other terms, conditions,
warranties or representations associated with such dealings, are solely between
you and the operator of such site. Mobidia will not be responsible or liable
for any part of any such dealings.
6. USE OF SERVICES. You will
not use the Online Services feature, including the Services and Materials, for
any unlawful purpose, or in any manner or for any purpose which is prohibited
by these Terms of Use. In using the Online Services feature, including the Services
and Materials, you will not: (a) disrupt or interfere with any other user's
enjoyment of such services or materials or any affiliated or linked sites, (b)
upload, post or otherwise transmit any viruses or other harmful, disruptive
or destructive files, (c) create a false identity, (d) use or attempt to use
another's account, password, service or system without authorization from Mobidia,
(e) access or attempt to access any service or content which you are not authorized
to access, (f) disrupt or interfere with the security of, or otherwise cause
harm to, any system resources, accounts, passwords, servers or networks connected
to or accessible through such feature or any affiliated or linked sites, (g)
conduct any surveys, contests, pyramid schemes, chain letters, junk email, spamming
or any duplicative or unsolicited messages (commercial or otherwise), (h) threaten,
defame, abuse, harass, stalk or otherwise violate the legal rights (such as
rights of privacy and publicity) of others, (i) publish, post, upload, distribute
or disseminate any defamatory, obscene, or unlawful topic, name, material or
information; (j) upload or otherwise make available files that contain images,
photographs, software or other material protected by intellectual property laws,
including, without limitation, copyright, trademark, privacy and publicity laws
unless you own or control the rights thereto or have received all necessary
consents to do the same, (k) advertise or offer to sell or buy any goods or
services for any purpose, (l) violate any applicable laws or regulations.
7. LICENSE TO MOBIDIA; REPRESENTATIONS.
You hereby grant Mobidia, its affiliates and sub-licensees the right
to copy, display, transmit, modify and distribute the files you upload containing
images, photographs, software or other materials, only for the purpose of operating
the Online Services feature. You warrant and represent that (a) you are the
copyright owner of such files or the copyright owner of such files has granted
you permission to use such files and any content and/or images contained in
such files consistent with the manner of your and your licensees' use, (b) you
have the rights necessary to grant the licenses and sublicenses described herein
and (c) each person depicted in such files has provided consent to the use of
the files consistent with the manner of your and your licensees' use.
8. NO WARRANTY. EXCEPT AS EXPRESSLY
PROVIDED OTHERWISE IN A WRITTEN AGREEMENT BETWEEN YOU AND MOBIDIA OR YOU AND
A THIRD PARTY WITH RESPECT TO SUCH PARTY'S MATERIALS OR SERVICES, AND EXCEPT
FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE
SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR
JURISDICTION, THE ONLINE SERVICES FEATURE, AND ALL MATERIALS AND SERVICES OFFERED
THROUGH OR IN ASSOCIATION WITH SUCH FEATURE, ARE PROVIDED "AS IS" WITHOUT WARRANTY
OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY
OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MOBIDIA AND ITS SUPPLIERS
MAKE NO WARRANTY THAT (a) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS,
(b) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
(c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES AND MATERIALS
WILL BE EFFECTIVE, ACCURATE OR RELIABLE, (d) THE QUALITY OF ANY PRODUCTS OR
THE SERVICES AND MATERIALS WILL MEET YOUR EXPECTATIONS AND (e) ANY ERRORS IN
ANY SOFTWARE OBTAINED FROM OR USED THROUGH THE SERVICES AND MATERIALS, OR ANY
DEFECTS IN THE SERVICES AND MATERIALS, WILL BE CORRECTED.
THE ONLINE SERVICES FEATURE AND THE SERVICES AND MATERIALS COULD INCLUDE TECHNICAL
OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. MOBIDIA MAY MAKE CHANGES
TO THE ONLINE SERVICES FEATURE AND THE SERVICES AND MATERIALS, INCLUDING THE
PRICES AND DESCRIPTIONS OF ANY PRODUCTS, AT ANY TIME WITHOUT NOTICE. THE SERVICES
AND MATERIALS MAY BE OUT OF DATE, AND MOBIDIA MAKES NO COMMITMENT TO UPDATE
SUCH SERVICES OR MATERIALS.
YOU UNDERSTAND AND ACKNOWLEDGE THAT (i) MOBIDIA DOES NOT CONTROL, ENDORSE OR
ACCEPT RESPONSIBILITY FOR ANY SERVICES OR MATERIALS OFFERED BY THIRD PARTIES,
(ii) MOBIDIA MAKES NO REPRESENTATION OR WARRANTIES WHATSOEVER ABOUT ANY SUCH
THIRD PARTIES, THEIR CONTENT, PRODUCTS OR SERVICES, (iii) ANY DEALINGS YOU MAY
HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK AND (iv) MOBIDIA WILL NOT
BE LIABLE OR RESPONSIBLE FOR ANY CONTENT, PRODUCTS, OR SERVICES OFFERED BY THIRD
PARTIES.
THE USE OF THE SERVICES AND MATERIALS IS MADE AT YOUR OWN DISCRETION AND RISK
AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
YOUR COMPUTER SYSTEM OR MOBILE DEVICE, LOSS OF DATA, OR OTHER HARM THAT RESULTS
FROM SUCH ACTIVITIES. MOBIDIA ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR
OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER IN CONNECTION
THE ONLINE SERVICES FEATURE OR SERVICES AND MATERIALS. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOBIDIA WILL CREATE ANY WARRANTY
NOT EXPRESSLY STATED IN THESE TERMS OF USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY
TO YOU.
9. LIMITATION OF LIABILITY. IN
NO EVENT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, WILL MOBIDIA, ITS SUBSIDIARIES,
AFFILIATES, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR SUPPLIERS BE
LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES
OF ANY KIND, OR THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR
NOT MOBIDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY
THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR THE
INABILITY TO USE THE ONLINE SERVICES FEATURE OR THE MATERIALS AND SERVICES,
THE STATEMENTS OR ACTIONS OF ANY THIRD PARTY ON OR THROUGH THE ONLINE SERVICES
FEATURE, ANY DEALINGS WITH VENDORS OR OTHER THIRD PARTIES, ANY UNAUTHORIZED
ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, ANY INFORMATION THAT
IS SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY FAILURE TO STORE OR LOSS OF
DATA, FILES OR OTHER CONTENT, ANY SERVICES AVAILABLE THROUGH THE ONLINE SERVICES
FEATURE THAT ARE DELAYED OR INTERRUPTED, OR ANY WEB SITE REFERENCED OR LINKED
TO FROM THE ONLINE SERVICES FEATURE.
MOBIDIA WILL HAVE NO LIABILITY RELATED TO YOUR FILES CONTAINING IMAGES, PHOTOGRAPHS,
SOFTWARE OR OTHER MATERIALS ARISING UNDER LAWS OF COPYRIGHT, LIBEL, PRIVACY,
OBSCENITY OR OTHERWISE. MOBIDIA ALSO DISCLAIMS ALL LIABILITY WITH RESPECT TO
THE MISUSE, LOSS, MODIFICATION OR UNAVAILABILITY OF SUCH FILES.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL
OR INCIDENTAL DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH
ABOVE MAY NOT APPLY TO YOU.
Nothing contained in these Terms of Use limits Mobidia's liability to you in
the event of death or personal injury resulting from Mobidia's negligence or
from the tort of deceit (fraud). Mobidia is acting on behalf of its subsidiaries,
affiliates, agents, officers, directors, employees, partners and suppliers for
the purpose of disclaiming, excluding and/or limiting obligations, warranties
and liability as provided in these Terms of Use, but in no other respects and
for no other purpose.
10. INDEMNITY AND LIABILITY. You
agree to indemnify and hold Mobidia, and its subsidiaries, affiliates, officers,
agents, co-branders or other partners, employees and suppliers harmless from
any claim or demand, including reasonable attorneys' fees, made by any third
party due to or arising out of (a) files or other material containing images,
photographs, software or other material you upload, submit or otherwise transmit,
(b) your use of the Online Services feature or Services and Materials, (c) your
violation of these Terms of Use or the Mobidia.com Terms of Use or (d) your
violation of any law, rule or regulation or the rights of any other person or
entity.
11. GOVERNING LAW AND JURISDICTION.
These Terms of Use and all matters relating to your access to, and use
of, the "Mobidia Web Sites", shall be governed by the laws of British Columbia,
Canada. Any legal action or proceeding relating to your access to, or use of,
the Site shall be instituted in the courts of British Columbia, Canada. You
and Mobidia Technology Inc agree to submit to the jurisdiction of, and agree
that venue is proper in, these courts in any such legal action or proceeding.
12. LANGUAGE; TRANSLATION. It
is the express wish of the parties that the Terms of Use 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 of Use will be the version used
when interpreting or construing these Terms of Use.
13. COPYRIGHT/TRADEMARK INFORMATION.
Copyright © 2005 and 2006 Mobidia Technology Inc. All rights reserved.
Mobidia, .wave, SpeedyApp, are trademarks of Mobidia Technology Inc. Other names
appearing on the Site may be trademarks of their respective owners. Mobidia
Technology Inc will take all appropriate legal action necessary to fully and
effectively enforce its rights, whether such rights are in respect of a trademark,
service mark, copyright or any other intellectual property right or other right
of Mobidia Technology Inc under applicable law, as set out in these Terms.
14. GENERAL. These Terms of Use
and any other guidelines, licenses, rules and disclaimers posted on the Mobidia
Web Sites constitute the entire agreement between Mobidia and you with respect
to your use of the Online Services feature and the Services and Materials, and
supersede any prior representations, discussions, undertakings, communications
or advertising relating thereto. If for any reason a court of competent jurisdiction
finds any provision of these Terms of Use or portion thereof, to be unenforceable,
that provision will be enforced to the maximum extent permissible so as to effect
the intent of the parties as reflected by that provision, and the remainder
of these Terms of Use will continue in full force and effect. Any failure by
Mobidia to enforce or exercise any provision of these Terms of Use or related
right will not constitute a waiver of that right or provision. The section titles
used in these Terms of Use are purely for convenience and carry with them no
legal or contractual effect. Nothing in these Terms of Use is intended to be,
or will be construed as, altering, revising, modifying or otherwise amending
any agreement, arrangement or understanding between you and Mobidia or its affiliates,
licensees or suppliers with respect to any matter other than the Online Services
feature and the Services and Materials, including, without limitation, the end-user
license agreement governing your use of the Software. These Terms of Use will
not prejudice the statutory rights of any party dealing as a consumer. For example,
for consumers in New Zealand who use the Online Services feature for personal,
domestic or household use (not business purposes), these Terms of Use may be
subject to the Consumer Guarantees Act.
15. CONTACT INFORMATION. If you
have any questions regarding these Terms, or if you have any other questions
regarding the Sites, please contact Mobidia Technology Inc. at
info@mobidia.com.
For other inquiries regarding this web site please contact Matt ArjMandi at Pen Pix Design, Inc.
Email:
webmaster@mobidia.com
Phone: +1 604.771.9355
www.penpix.com
