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, 2006, 2007, 2008, 2009 Mobidia Technology Inc. All rights reserved. Mobidia, .wave, SpeedyApp and CUBuddy 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 us at info@mobidia.com

 

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