THIS MOBOLIZE TERMS OF SERVICE AGREEMENT (“AGREEMENT”) GOVERNS USE OF MOBOLIZE APP (THE “APP”) AND ANY RELATED CONTENT AND ONLINE SERVICES PROVIDED TO YOU BY MOBOLIZE (THE APP AND SUCH SERVICES TOGETHER REFERRED TO IN THIS AGREEMENT AS THE “MOBOLIZE SERVICES”). AS USED IN THIS AGREEMENT, THE TERM “MOBOLIZE” MEANS MOBOPHILES, INC. D/B/A MOBOLIZE.
IF YOU ARE NOT AT LEAST 13 YEARS OF AGE YOU MAY NOT INSTALL, ACCESS OR USE THE MOBOLIZE SERVICES.
4. Reservation of Rights. Except for the limited rights expressly granted to You in this Agreement, Mobolize reserves all rights, title and interest, including all intellectual property rights, in and to the Mobolize Services, and all suggestions, ideas, enhancement requests, feedback, recommendations or other information You may provide to Mobolize concerning the features, functionality or operation of the Mobolize Services. No right or license is granted in this Agreement or otherwise in any Mobolize name, trademark, service mark, or logos, and Mobolize reserves all rights therein.
5. Restrictions and Responsibilities. You are responsible for all access to and use of the Mobolize Services through Your account, whether by You or anyone acting on Your behalf. You shall comply with all applicable local, state, national and foreign laws and regulations in connection with Your use of the Mobolize Services, including without limitation those related to data privacy, international communications and the transmission of technical or personal data. You shall not, and shall not permit any third party to, (i) use the Mobolize Services for any unlawful purpose, in violation of any applicable laws or regulations, or in any manner or for any purpose which is prohibited by this Agreement; (ii) modify, copy, display, republish or create derivative works based on the Mobolize Services; (iii) reverse engineer, decompile or disassemble the App; (iv) access the Mobolize Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services; (v) use the Mobolize Services in any way that breaches any code of conduct, terms of service or other policy applicable to the Mobolize Services; (vi) interfere with or disrupt the integrity, functionality or performance of the Mobolize Services, the data contained therein, or any third party site; (vii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Mobolize Services available to any third party; (viii) use the Mobolize Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; or (ix) attempt to gain unauthorized access to the Mobolize Services or their related systems or networks or any services or accounts You are not authorized to access.
MOBOLIZE MAY MONITOR, DETECT AND TAKE ACTION TO PREVENT MISUSE OF THE MOBOLIZE SERVICES. MOBOLIZE MAY USE SUCH MEASURES AND THE DATA COLLECTED THROUGH THEM, IN ORDER TO ENFORCE THIS AGREEMENT AND ADDRESS SUCH VIOLATIONS, INCLUDING WITHOUT LIMITATION PROVIDING SUCH INFORMATION TO RELEVANT AUTHORITIES.
6. Termination. Mobolize may terminate this Agreement, or terminate or suspend Your access to the Mobolize Services, at any time, without notice, for any reason or for no reason, without any liability to You. Upon such termination or suspension, Your right to use the Mobolize Services will immediately cease. You may discontinue Your use of the Mobolize Services for any reason and at any time by deleting the App from Your device(s). Mobolize shall have no responsibility in connection with the termination of the Mobolize Services’ operations and loss of any data as a result. The provisions of the Privacy, Reservation of Rights, Restrictions and Responsibilities, Termination, Disclaimer of Warranties, Limitation of Liability, Indemnification, Governing Law, Disputes and Arbitration, Class Action Waiver, Severability, Venue and Limitation of Action, Contact and Miscellaneous sections shall survive the termination or expiration of the Agreement.
7. Disclaimer of Warranties. THE MOBOLIZE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY MOBOLIZE AND ITS LICENSORS.
WITHOUT LIMITING THE FOREGOING, MOBOLIZE AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY THAT THE MOBOLIZE SERVICES WILL MEET YOUR REQUIREMENTS OR THE REQUIREMENTS OF YOUR DEVICE, OR WILL BE UNINTERRUPTED, TIMELY, RELIABLE, ACCURATE, VIRUS-FREE OR ERROR-FREE OR SECURE FROM UNAUTHORIZED ACCESS, OR THAT ANY ERRORS IN THE APP OR ANY DEFECTS IN THE MOBOLIZE SERVICES WILL BE CORRECTED. MOBOLIZE MAY MAKE CHANGES TO THE MOBOLIZE SERVICES, INCLUDING THE PRICES, FEATURES, FUNCTIONALITY AND TERMS AT ANY TIME WITHOUT NOTICE. MOBOLIZE ASSUMES NO LIABILITY FOR YOUR USE OF ANY CONTENT PROVIDED THROUGH THE MOBOLIZE SERVICES, OR ANY SUPPORT SERVICES PROVIDED BY MOBOLIZE.
MOBILIZE DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY WEBSITES, SOFTWARE, SERVICES OR CONTENT OFFERED BY THIRD PARTIES, WHETHER OR NOT SUCH THIRD PARTY WEBSITES, SOFTWARE, SERVICES OR CONTENT ARE LINKED TO BY, OR ACCESSED THROUGH USE OF, THE MOBOLIZE SERVICES. MOBOLIZE MAKES NO REPRESENTATION OR WARRANTIES WHATSOEVER ABOUT ANY SUCH THIRD PARTIES, OR THEIR WEBSITES, SOFTWARE, SERVICES OR CONTENT, AND ANY DEALINGS YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK, AT YOUR OWN DISCRETION, AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DEVICE, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. WITHOUT LIMITING THE FOREGOING, MOBOLIZE ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR OTHER MALICIOUS CODE THAT IS DOWNLOADED TO YOUR COMPUTER SYSTEM OR DEVICE IN CONNECTION WITH YOUR USE OF THE MOBOLIZE SERVICES.
Certain jurisdictions do not allow the exclusion of implied warranties, so certain limitations set forth above may not apply to You.
8. Limitation of Liability. IN NO EVENT WILL MOBOLIZE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, SUCCESSORS AND ASSIGNS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, SPECIAL, PUNITIVE, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR RESULTING FROM LOSS OF USE, DATA OR PROFITS OR LOST BUSINESS OPPORTUNITY, WHETHER OR NOT MOBOLIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, ARISING OUT OF, IN CONNECTION WITH OR RELATED IN ANY WAY TO THE MOBOLIZE SERVICES OR THIS AGREEMENT, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Some states don’t allow the types of limitations in this section, so certain exclusions set forth above may not apply to You.
9. Indemnification. You agree to indemnify, defend and hold harmless, Mobolize, its affiliates, officers, directors, employees, agents, licensors, successors and assigns (collectively, the “Mobolize Indemnified Parties”), from any liability, damage, settlement, loss, or expense (including, without limitation, attorneys’ fees and costs) incurred in connection with any claim, demand or action (“Claim”) brought or made against any of the Mobolize Indemnified Parties arising out of or relating to (a) any violation by You of any of the terms of this Agreement or any other terms, laws, rules or regulations applicable to the Mobolize Services, (b) any act or omission by or on behalf of You or arising out of Your use of the Mobolize Services, (c) any information, content or materials provided or made available by You through or to the Mobolize Services, or (d) Your violation or infringement of any other person’s or entity’s rights. If You are required to indemnify any of the Mobolize Indemnified Parties under this section, Mobolize and/or the relevant Mobolize Indemnified Party will have the right to control the defense, settlement, and resolution of any Claim at Your sole expense. You may not settle or otherwise resolve any Claim without Mobolize’s prior express written permission.
10. Governing Law. This Agreement and all matters relating to Your access to, and use of, the Mobolize Services and any other dispute, claim or controversy that may arise between You and Mobolize, shall be exclusively governed by the laws of California, United States, without regard to the conflict of laws provisions thereof.
11. Disputes and Arbitration. Before filing a claim against Mobolize, You agree to try to resolve the dispute informally by contacting firstname.lastname@example.org. Mobolize will contact You via email to attempt to resolve the dispute informally. If a dispute is not resolved within 15 days of submission, You or Mobolize may bring a formal proceeding.
Except for any claim relating to Mobilize’s or Your intellectual property, such as trademarks, trade dress, domain names, trade secrets, copyrights and patents, or claims solely for injunctive relief to stop unauthorized use or abuse of the Mobolize Services (“Exceptions to Arbitration”), You and Mobolize agree to resolve through final and binding arbitration any claim between You and Mobolize (whether or not such dispute also involves a third party), arising out of or in connection with this Agreement and all matters relating to Your access to, and use of, the Mobolize Services and any other dispute, claim or controversy that may arise between You and Mobolize (each, a “Dispute”). If You cannot resolve a Dispute with us informally after good faith efforts, then, except with respect to Exceptions to Arbitration, You and Mobolize agree to submit the Dispute to a single arbitrator at the American Arbitration Association (AAA) under its then-current Commercial Arbitration Rules, including the Supplementary Procedures for Consumer-Related Disputes. The arbitration will be held in the United States county where You live or work, Santa Monica, CA, or any other location You and Mobolize mutually agree upon. The location of the arbitration and the allocation of fees and costs for such arbitration shall be determined in accordance with the AAA rules, except that Mobolize will reimburse You for all AAA administrative fees in Disputes that are subject to the Supplementary Procedures for Consumer-Related Disputes, unless the arbitrator determines that a claim or counterclaim was filed for purposes of harassment or is patently frivolous. The arbitrator will have the authority to decide whether the Dispute can be arbitrated pursuant to the Federal Arbitration Act. You can decline the agreement to arbitrate set forth in this Section 11 by sending us notice of Your election to opt out in a writing postmarked within 30 days of the date You first became subject to this Agreement, addressed to Mobophiles, Inc., ATTN: Arbitration Opt-Out, 2800 28th St., Suite 160, Santa Monica, CA 90405.
12. Class Action Waiver. You may only resolve disputes with Mobolize on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are prohibited. You and Mobolize agree not to participate in a class action, a class-wide arbitration, claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Mobolize is a party to the proceeding. You and Mobolize agree not to combine a claim that is subject to arbitration under this Agreement with a claim that is not eligible for arbitration under this Agreement.
13. Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained in Section 12 (Class Action Waiver) above is found to be unenforceable, then all of Section 12 will be null and void as to that Dispute. If any other provision of this Agreement is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.
14. Venue and Limitation of Action. In case of any Exceptions to Arbitration or any Disputes that are otherwise not subject to arbitration pursuant to Section 11 (Arbitration), You and Mobolize agree to resolve such Dispute exclusively in the state or federal courts located in Los Angeles County, California, USA and to submit to venue and personal jurisdiction of the courts located in Los Angeles County, California, USA for purpose of litigating all such Disputes and Excluded Disputes. You agree that any claim You have against Mobolize must be commenced or filed within one year after such claim arose; otherwise, Your claim is permanently barred.
15. Contact. All requests for information from Mobolize should be directed to: email@example.com. You acknowledge and agree that provision of false, incorrect, or outdated contract information may prevent You from registering for the Mobolize Services and impair Mobolize’s ability to contact You, and You are fully accountable for any outcome resulting from Your failure to provide true, accurate and complete details in the course of the registration process, and for any use or misuse of Your account.