Last updated April 2011
MOBILEPAGES
Terms of Use
Welcome, and thank you for your interest in
MobilePages, Inc. (ÒMobilePagesÓ, ÒWeÓ, or ÒUsÓ). MobilePages owns
and operates a web site located at www.mobilepages.com (the ÒSiteÓ) that, along with a software
application for mobile device platforms (each, an ÒAppÓ), enables a variety of innovative features for creating,
posting, and browsing content for mobile devices (the Site and App, together
with any other products and services provided by MobilePages, are collectively
referred to as the ÒMobilePages ServiceÓ). We are pleased to offer you access to
the MobilePages Service conditioned on your acceptance without modification of
the following Terms of Use (the ÒTermsÓ)
and the privacy policy for the MobilePages Service (ÒPrivacy PolicyÓ).
PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY,
AS THEY CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND
MOBILEPAGES. BY ACCESSING OR BROWSING THE SITE, DOWNLOADING OR
INSTALLING THE APP OR OTHERWISE ACCESSING OR USING THE MOBILEPAGES SERVICE, YOU
ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS,
THE PRIVACY POLICY AND OTHER GUIDELINES (AS DEFINED BELOW). IF YOU DO NOT
AGREE TO THE TERMS, THEN YOU MAY NOT USE THE MOBILEPAGES SERVICE.
1.
Eligibility; Registration Information;
MobilePages Service Access.
1.1
THE
MOBILEPAGES SERVICE IS NOT AVAILABLE TO PERSONS UNDER THE AGE OF 13 OR TO ANY
USERS SUSPENDED OR REMOVED FROM THE MOBILEPAGES SERVICE BY MOBILEPAGES. BY
USING THE MOBILEPAGES SERVICE, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF
AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE MOBILEPAGES
SERVICE. If you are older than 13
but younger than 18 years of age (ÒMinor
ChildÓ), you must have parental consent before registering for an account
on the Service and your parent must accept these Terms on your behalf. If you, as a parent or legal guardian,
have agreed to allow your Minor Child to use the Service, you agree that you
shall be solely responsible for: (i) the online conduct of such Minor Child;
(ii) monitoring such Minor ChildÕs access to and use of the Service; and (iii)
the consequences of any use of the Service by such Minor Child.
1.2
If you
are using or opening an account on the MobilePages Service on behalf of a
company, entity, or organization (a ÒSubscribing
OrganizationÓ), then you represent and warrant that you are an authorized
representative of that Subscribing Organization with the authority to bind such
organization to the Terms, and you hereby agree to be bound by the Terms on
behalf of such Subscribing Organization.
1.3
You agree that the information you provide to
MobilePages on registration and at all other times will be true, accurate,
current, and complete. You also agree that you will ensure that this
information is kept accurate and up–to–date at all times. When you
register, you will be asked to provide a phone number to which we will send a
confirmation code via text message or other similar means. As you will be responsible for all
activities that occur under your account, you should keep the confirmation code
confidential. You are solely
responsible for maintaining the confidentiality of your account and for
restricting access to your mobile device, and you agree to accept
responsibility for all activities that occur under your account. We may also, at your
direction, receive information from third party services that provide a
mechanism to expose information you have provided to such third party through
the use of an application program interface (API), such as Facebook
Connect. The information that we
receive from such third party services through an API is governed by your
agreement with those third parties.
1.4
Subject to your ongoing compliance with the Terms,
MobilePages grants you permission to access and use the MobilePages Service as
set forth in the Terms, and consistent with the intended features of the
MobilePages Service.
2.1
Privacy
Policy.
Your privacy is important to us.
The Privacy Policy for the MobilePages Service is hereby
incorporated into the Terms by reference, and is also available from the Menu
tab on the MobilePages App.
Please read the Privacy Policy carefully for information relating to our
collection, use, and disclosure of your personal information.
2.2
Guidelines. When using the MobilePages Service, you
will be subject to any additional posted guidelines, including without
limitation the Content Posting Guidelines ,
or rules applicable to specific services and features which may be posted from
time to time (together, the "Guidelines"). The All such Guidelines are hereby
incorporated by reference into the Terms.
3.
Prohibited Conduct.
BY USING THE MOBILEPAGES SERVICE YOU PROMISE NOT
TO:
3.1
Upload,
post or otherwise make available copyrighted material that is not your own or
that you do not have the legal right to distribute, display and otherwise make
available to others;
3.2
Harass,
threaten, or defraud other users of the MobilePages Service;
3.3
Upload,
post, send to, or otherwise make available User Postings that violate the
MobilePages Content-Posting Guidelines or
are threatening, embarrassing, hateful, racially or ethnically insulting,
libelous, or otherwise inappropriate content;
3.4
Upload,
post or otherwise make available User Postings that are false, deceptive,
misleading, deceitful, misinformative, or constitute Òbait and switchÓ;
3.5
Impersonate
another person or access another user's account without that person's
permission;
3.6
Share
MobilePages–issued confirmation codes with any third party or encourage any
other user to do so;
3.7
Misrepresent
the source, identity, or content of information transmitted via the MobilePages
Service;
3.8
Use the
MobilePages Service for any unlawful purpose or in violation of any applicable
law or regulation, including without limitation the Fair Housing Act, the
Immigration and Nationality Act and federal, state or local equal employment
opportunity laws;
3.9
Upload
material that is damaging to computer systems or data of MobilePages or other
users of the MobilePages Service (e.g. a virus); or
3.10
Use the
MobilePages Service to advertise any product or service that is prohibited or
regulated by applicable laws or regulations.
4.1
General.
The MobilePages Service provides certain features which enable you and
other users to (i) create web-enabled locations accessible through the
MobilePages Service (ÒMobilePagesÓ);
and (ii) submit, post, and share content with other users on those MobilePages,
which may include without limitation, text and literary works, graphic and
pictorial works, audiovisual works, musical works, sound recordings, or any
other content that you or other users may provide through the MobilePages
Service (collectively with user-created MobilePages, ÒUser PostingsÓ). The MobilePages Service also provides for the
hosting, sharing, reproduction, distribution, public performance, public
display and creation of derivative works of such User Postings. You must register with the MobilePages
Service in order to submit User Postings and create MobilePages. The MobilePages Service provides certain
features that allow you to control access to your User Postings but cannot
guarantee any anonymity or confidentiality with respect to any User Postings, and
strongly recommends that you think carefully about what you choose to post to
the MobilePages Service. You
understand that all User Postings are the sole responsibility of the person
from whom such User Posting originated.
This means that you, and not MobilePages, are entirely responsible for
all User Postings that you upload, post, transmit or otherwise make available
through the MobilePages Service.
4.2
Right to Remove or Edit User Postings. You
acknowledge that MobilePages does not pre-screen or approve User Postings but
that MobilePages makes no representations that it will publish or make
available on the MobilePages Service any User Postings, and reserves the right,
in its sole discretion, to refuse to allow any User Postings on the MobilePages
Service, or to edit or remove any User Postings at any time with or without
notice. Without limiting the
generality of the preceding sentence, MobilePages complies with the Digital
Millennium Copyright Act, and will remove User Postings upon receipt of a
compliant takedown notice (see the ÒDigital Millennium Copyright ActÓ section
below).
4.3
License Grant to MobilePages. You
retain all your ownership rights in original aspects of your User
Postings. By submitting User
Postings to MobilePages, you hereby grant MobilePages and its affiliates,
sublicensees, partners, designees, and assignees of the MobilePages Service
(collectively, the ÒMobilePages
LicenseesÓ) a worldwide, non-exclusive, fully paid-up, royalty-free,
perpetual, irrevocable, sublicensable, and transferable license to use,
reproduce, distribute, and otherwise exploit your User Postings, including your
trademarks and logos included therein, in connection with the MobilePages
Service and MobilePagesÕs (and its successorsÕ) business, including, without
limitation, for marketing, promoting, and redistributing part or all of the
MobilePages Service (and derivative works thereof), in any media formats and
through any media channels now known or hereafter discovered or developed. You also agree to irrevocably waive (and
cause to be waived) any claims and assertions of so-called Òmoral rightsÓ or
attribution with respect to your User Postings.
4.4
User Postings Representations and Warranties. You are solely responsible for your own User
Postings and the consequences of posting or publishing them. In connection with User Postings, you
affirm, represent, and warrant that:
(i) you own, or have the necessary licenses, rights, consents, and
permissions to use and authorize MobilePages to use all patent, trademark,
copyright, or other proprietary rights in and to your User Postings to enable
inclusion and use of your User Postings in the manner contemplated by
MobilePages and the Terms, and to grant the rights and license set forth above,
and (ii) your User Postings, MobilePagesÕs or any MobilePages LicenseesÕ use of
such User Postings pursuant to the Terms, and MobilePagesÕs or any of
MobilePages LicenseesÕ exercise of the license rights set forth above, do not
and will not: (a) infringe,
violate, or misappropriate any third-party right, including any copyright,
trademark, patent, trade secret, moral right, privacy right, right of
publicity, or any other intellectual property or proprietary right; (b)
slander, defame, libel, or invade the right of privacy, publicity or other
property rights of any other person; (c) violate any applicable law or
regulation, including, by way of example and not limitation, laws or
regulations related to false, deceptive, or misleading advertising and promotions;
or (d) require obtaining a license from or paying fees or royalties to any
third party for the exercise of any rights granted in the Terms, including, by
way of example and not limitation, the payment of any royalties to any
copyright owners, including to any agency, collection society or other entity
that licenses or administers rights on behalf of others.
4.5
Inaccurate or Offensive User Postings. You understand
that when using the MobilePages Service, you may be exposed to User Postings
from a variety of sources and that MobilePages does not endorse and is not
responsible for the accuracy, usefulness, safety, or intellectual property
rights of or relating to such User Postings. You further understand and
acknowledge that you may be exposed to User Postings that are inaccurate,
offensive, indecent, or objectionable. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE,
ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST
MOBILEPAGES WITH RESPECT THERETO.
4.6
Feedback. If you provide MobilePages with any
comments, bug reports, feedback, or modifications proposed or suggested by you
to the MobilePages Service (ÒFeedbackÓ),
MobilePages shall have the right to use such Feedback at its discretion,
including, but not limited to the incorporation of such suggested changes into
the MobilePages Service. You hereby grant MobilePages a perpetual, irrevocable,
worldwide, royalty-free, fully paid, nonexclusive license under all rights
necessary to incorporate and use your Feedback for any purpose.
5.
MobilePages App Usage.
5.1
Limited
License. The MobilePages App is licensed, not
sold or otherwise transferred, to you.
Subject to your acceptance of, and ongoing compliance with, the Terms
(including compliance with all license restrictions) and all applicable laws,
MobilePages hereby grants you a limited, non-exclusive, non-transferable,
non-sublicensable, revocable license to install and use one copy of the App in
object code format, solely for your personal use, on only one device that you
own or control. You may not use the
App on any device that you do not own or control, and you may not distribute or
make the App available over a network where they could be used by multiple
devices at the same time. You may
not rent, lease, lend, sell, reproduce, redistribute or sublicense the
App. You may not copy, decompile,
reverse engineer, disassemble, attempt to derive the source code of, modify, or
create derivative works of the App, any updates, or any part thereof (except as
and only to the extent that any foregoing restriction is prohibited by
applicable law). Please note that
we cannot guarantee the quality or availability of the MobilePages
Service. The MobilePages Service
uses mobile networks and there may be disruptions to the Service which will
interfere with the quality of your experience. If your device is lost or stolen, you
must notify us immediately to suspend services.
5.2
Applicability
to Upgrades. The Terms will
govern any upgrades provided by MobilePages that replace and/or supplement the
original App, unless such upgrade is accompanied by a separate license in which
case that license will govern.
5.3
Access to Services and Hardware. The MobilePages Service requires, or may
require, access to services or hardware on your mobile device, including but
not limited to: UDID or other applicable device id, location, phone state and
identity, internet, SD or memory card contents, SMS/MMS messaging, contacts,
native dialer, camera and WiFi. You
may be able to restrict the MobilePages Service from accessing such services or
hardware on your mobile device; however, you may not be able to access the all
the features of the MobilePages Service as a result.
5.4
Consent
to Use of Data.
You agree that MobilePages may collect and use technical data and
related information, including, but not limited to, technical information about
your handset, device, system and application software, and peripherals, that is
gathered periodically to facilitate the provision of the MobilePages Service,
including software updates, product support and other services to you (if any)
related to the App or MobilePages Service.
MobilePages may use and disclose this and other information you provide
for a variety of purposes. To learn
more about our policies with respect to the collection, use and disclosure of
information, please review our Privacy Policy.
5.5
Third
Party Fees. You
understand and acknowledge that third party fees may apply to your use of the
App, including without limitation fees charged by your mobile service provider
for network access, data transmission, or other similar fees. You are solely responsible for payment
of all such fees and compliance with any and all applicable terms.
6.1 The MobilePages Service may currently or in the future provide features that enable MobilePages to tailor your experience based on your location (ÒLocation-based ServicesÓ) either directly through the MobilePages Service or in connection with a third party application such as Foursquare or Aroundme. For example, MobilePages may utilize your location in connection with your User Postings, in order to customize the User Postings displayed to you, or to permit you to share your location with other users of the MobilePages Service. In order to use Location-based Services, you must allow MobilePages access to your localized position, which MobilePages may access through a variety of means, including, if available, GPS, Internet Protocol (ÒIPÓ) Address, cellular tower, and/or other location identifiers now known or later developed. If you choose to disable Location-based Services, you will not be able to utilize certain features of the MobilePages Service. By authorizing MobilePages to access your location, you agree and acknowledge that (i) any device data we collect from you in connection with the MobilePages Service is directly relevant to your use of the App and (ii) MobilePages may provide Location-based Services related to your then-current location for the duration of your browser session. You acknowledge and agree that MobilePages does not guarantee the accuracy of any location information, including your location information or the location information of other users of the MobilePages Service, and your use of any Location-based Services is at your sole risk.
7.
Phone Services.
7.1 The MobilePages Service provides features that enable users to call or respond to MobilePages without ever having to enter a phone number to contact the other party. These features are intended to allow users to seamlessly connect with users of the MobilePages Service, but are not intended as a replacement for your fixed line telephone or the phone capability of your mobile device. In particular, the MobilePages Service does not allow for calls to emergency services, including but not limited to law enforcement, hospitals, or other types of medical care. You acknowledge and agree that MobilePages, through the MobilePages Service, is not required to offer access to emergency services under any applicable laws, rules or regulations. In the event that an emergency occurs, we recommend that you use the phone capability of your mobile device or seek alternative arrangements for contacting emergency services.
8.
Directory Services and Reverse Search
8.1
The MobilePages Service also includes (i)
MobilePage411 which provides directory services to users without having to use
any numbers; and (ii) MobilePages Real-Time Reverse Search, which allows users
to send out messages for a category in a specific area, zip code, or city and
only receive responses from parties that are immediately available to
respond. Both MobilePages 411
and MobilePages Real-Time Reverse Search provide links to Linked Sites (as
defined in Section 13) offered by third
parties and MobilePages does not endorse or make any express or implied warranties
with regards to the Linked Sites made available through MobilePages 411 and
MobilePages Real-Time Reverse Search or any of the information, material, products or services contained on
those Linked Sites. ACCESS AND USE
OF LINKED SITES MADE AVAILABLE THROUGH MOBILEPAGES 411 OR MOBILEPAGES REAL-TIME
REVERSE SEARCH, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON
THOSE LINKED SITES OR AVAILABLE THROUGH THOSE LINKED SITES, IS SOLELY AT YOUR
OWN RISK.
9.
Modification of the Terms.
10.
Prohibited Uses.
10.1
Access
to the MobilePages Service from territories where its contents are illegal is
prohibited. The MobilePages Service
is designed for customers in the United States. Those who choose to access the
MobilePages Service do so at their own initiative and are responsible for
compliance with all local rules including, without limitation, rules about the
internet, data, email, or privacy.
You also agree and understand that your data may be transferred to other
jurisdictions for processing.
10.2
As a
condition of your use of the MobilePages Service, you will not use the MobilePages
Service for any purpose that is unlawful or prohibited by these Terms. You may not use the MobilePages Service
in any manner that in our sole discretion could damage, disable, overburden, or
impair it or interfere with any other party's use and enjoyment of the
MobilePages Service. You may not
attempt to gain unauthorized access to the MobilePages Service, or any part of
it, other accounts, computer systems or networks connected to the MobilePages Service,
or any part of them, through hacking, password mining or any other means or
interfere or attempt to interfere with the proper working of the MobilePages
Service or any activities conducted on the MobilePages Service. You may not
obtain or attempt to obtain any materials or information through any means not
intentionally made available through the MobilePages Service. You agree neither
to modify the MobilePages Service in any manner or form, nor to use modified
versions of the MobilePages Service, including (without limitation) for the
purpose of obtaining unauthorized access to the MobilePages Service.
10.3
The
MobilePages Service may contain robot exclusion headers or other systems
designed to restrict or regulate access to the MobilePages Service. You agree that you will not use any
robot, spider, scraper, or other automated means to access the MobilePages
Service for any purpose without our express written permission or bypass our
robot exclusion headers or other measures we may use to prevent or restrict
access to the MobilePages Service.
11.1
By
MobilePages. You agree that MobilePages, in its sole
discretion and for any or no reason, may terminate any account (or any part
thereof) you may have with MobilePages or use of the MobilePages Service and
remove and discard all or any part of your account or any content uploaded by
you, at any time. MobilePages may
also in its sole discretion and at any time discontinue providing access to the
MobilePages Service, or any part thereof, with or without notice. You agree that any termination of your
access to the MobilePages Service or any account you may have or portion
thereof may be affected without prior notice, and you agree that MobilePages
will not be liable to you or any third party for any such termination. Without limiting the generality of the
foregoing, MobilePages does not permit copyright infringing activities on the
MobilePages Service and reserves the right to terminate access to the
MobilePages Service and remove all content submitted by any persons who are
found to be repeat infringers. Any
actual or suspected fraudulent, abusive, or illegal activity may be referred to
appropriate law enforcement authorities.
These remedies are in addition to any other remedies MobilePages may
have at law or in equity.
11.2
By
You. You may terminate your account, this
Agreement and your right to use the MobilePages Service at any time and for any
reason or no reason, by contacting MobilePages customer support at support@mobilepages.com or by using the ÒContact UsÓ feature within
the App, and immediately discontinuing all use of the MobilePages Service,
including any and all Apps.
11.3 Survival. Sections entitled License Grant to MobilePages, User Postings
Representations and Warranties, Inaccurate or Offensive User Postings,
Feedback, Consent to Use of Data, Location-based Services, Phone Services,
Directory Services and Reverse Search, Modification of the Terms, Ownership;
Proprietary Rights; Disputes With Third Parties; Disclaimers; No Warranties,
Limitation of Liability and Damages, Basis of the Bargain, Indemnification,
Dispute Resolution, and Miscellaneous will survive any termination or
expiration of this Agreement.
12.
Ownership; Proprietary Rights.
12.1
The
MobilePages Service is owned and operated by MobilePages. The visual interfaces, graphics, design,
compilation, information, computer code (including source code or object code),
products, software, services, and all other elements of the MobilePages
Service, including any Apps, (the ÒMaterialsÓ)
are protected by United States copyright, trade dress, patent, and trademark
laws, international conventions, and all other relevant intellectual property
and proprietary rights, and applicable laws. Except for any content uploaded by You,
all Materials contained on the MobilePages Service are the property of
MobilePages or its subsidiaries or affiliated companies and/or third party
licensors. All trademarks, service
marks, and trade names are proprietary to MobilePages or its affiliates and/or third
party licensors. Except as
expressly authorized by MobilePages, You agree not to sell, license,
distribute, copy, modify, publicly perform or display, transmit, publish, edit,
adapt, create derivative works from, or otherwise make unauthorized use of the
Materials. Software made available for download is subject to the Terms, and
may be further subject to the provisions of any End User License Agreement
specific to such software download.
MobilePages reserves all rights not expressly granted in the Terms.
13.
Linked Sites, Products and Services; Links.
13.1 The MobilePages Service, including MobilePages 411 and MobilePages Real-Time Reverse Search, and User Postings available through the MobilePages Service, may include links to other web sites or services (including advertisers) solely as a convenience to users ("Linked Sites") MobilePages does not endorse any User Postings or Linked Sites or the information, material, products or services contained on other linked sites or accessible through User Postings or Linked Sites. Furthermore, MobilePages makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
13.2 Your correspondence or business or other
dealings with advertisers, other users of the MobilePages Service, or other
third party service providers encountered on or through the MobilePages
Service, including payment and delivery of goods and services, is solely
between you and such third party.
YOU AGREE THAT MOBILEPAGES WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY
LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS
THE RESULT OF THE PRESENCE OF SUCH THIRD PARTIES ON THE MOBILEPAGES SERVICE.
14.
Disputes with Third Parties.
14.1
If you
have a dispute with another user of the MobilePages Service, or the provider of
any Linked Site, or any other third party arising in connection with your use
of the App or the MobilePages Service, you release us (and our officers,
directors, agents, subsidiaries, joint ventures and employees) from claims, demands
and damages (actual and consequential) of every kind and nature, known and
unknown, arising out of or in any way connected with such disputes. If you are
a California resident, you waive California Civil Code ¤1542, which says:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor."
15.
Notice.
15.1
Except
as explicitly stated otherwise, legal notices will be served on MobilePages at
MobilePages, Inc., 366 Cambridge Avenue, Suite 210, Palo Alto, CA 94306. Due to the nature of the MobilePages
Service, legal notices will be served to you through notifications on the
MobilePages Service or by messages to your mobile device. Notice will be deemed given 24 hours
after the notification or message is sent, unless the sending party is notified
that the message was not received.
16.
Disclaimers; No Warranties.
16.1
THE
MOBILEPAGES SERVICE, INCLUDING THE APP, AND ANY DATA, USER POSTINGS,
INFORMATION, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE
MOBILEPAGES SERVICE ARE PROVIDED ON AN ÒAS ISÓ AND ÒAS AVAILABLEÓ BASIS. TO THE FULLEST EXTENT PERMISSIBLE
PURSUANT TO APPLICABLE LAW, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN,
MOBILEPAGES AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS EXPRESSLY
DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR
PURPOSE, AND NON-INFRINGEMENT.
MOBILEPAGES DOES NOT WARRANT THE DATA, CONTENT, ANALYTICS, FEATURES, OR
INFORMATION PROVIDED THROUGH THE MOBILEPAGES SERVICE, INCLUDING WITHOUT LIMITATION
USER POSTINGS OR OTHER DATA PROVIDED BY OTHER USERS, TO BE UNINTERRUPTED,
ACCURATE, USEFUL, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. YOU ARE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR EQUIPMENT, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR
USE OF THE MOBILEPAGES SERVICE.
16.2
SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE
EXCLUSIONS MAY NOT APPLY TO YOU.
YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND
JURISDICTION TO JURISDICTION.
17.
Limitation of Liability and Damages.
17.1 UNDER NO CIRCUMSTANCES WILL MOBILEPAGES OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OR RELATED TO THE MOBILEPAGES SERVICE, EVEN IF MOBILEPAGES OR A MOBILEPAGES AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MOBILEPAGESÕS OR ITS AFFILIATESÕ, CONTRACTORSÕ, EMPLOYEESÕ, AGENTSÕ, OR THIRD PARTY PARTNERSÕ OR SUPPLIERSÕ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE TERMS OR YOUR USE OF THE MOBILEPAGES SERVICE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS.
17.2
Disclaimer of Liability for Emergency Services. THE MOBILEPAGES SERVICE IS NOT INTENDED
TO SUPPORT OR CARRY OUT EMERGENCY CALLS TO ANY EMERGENCY SERVICES. UNDER NO CIRCUMSTANCES WILL MOBILEPAGES OR ITS AFFILIATES, CONTRACTORS,
EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS BE LIABLE WHETHER IN
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY
FOR ANY CLAIM, DAMAGE, OR LOSS, (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS
OR CAUSES OF ACTION), ARISING FROM OR RELATING TO THE INABILITY TO USE THE
MOBILEPAGES SERVICE TO ACCESS ENERGENCY SERVICES OR MAKE CALLS TO EMERGENCY
PROVIDERS.
17.3
Limitations
by Applicable Law. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
18. Basis of the Bargain.
18.1 YOU ACKNOWLEDGE AND AGREE THAT MOBILEPAGES HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MOBILEPAGES, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MOBILEPAGES. MOBILEPAGES WOULD NOT BE ABLE TO PROVIDE THE MOBILEPAGES SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
19.
Indemnification.
19.1
You (and
your Subscribing Organization, if applicable) agree to indemnify, defend, and
hold MobilePages, its affiliates, contractors, employees, agents and its
affiliates, suppliers, licensors, and partners harmless from any claims,
losses, damages, liabilities, including legal fees and expenses, arising out of
your use or misuse of the MobilePages Service, your communications,
transactions, or dealings with third parties initiated through the MobilePages
Service, your violation of the Terms or any law or regulation, your posting and
subsequent disclosure to third parties of your personal information on the
MobilePages Service, or any breach of the representations, warranties, and
covenants made by you in the Terms.
MobilePages reserves the right, at your expense, to assume the exclusive
defense and control of any matter for which you are required to indemnify
MobilePages, and you agree to cooperate with our defense of these claims. MobilePages will use reasonable efforts
to notify you of any such claim, action, or proceeding upon becoming aware of
it.
20.
Digital Millennium Copyright Act Compliance.
20.1
If you
are a copyright owner or an agent thereof, and you believe that any content
hosted on the MobilePages Service infringes your copyrights, you may submit a
notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Designated
Copyright Agent with the following information in writing (see 17 U.S.C.
¤ 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on
behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been
infringed, or, if multiple copyrighted works on the MobilePages Service are
covered by a single notification, a representative list of such works at the
MobilePages Service;
(iii) Identification of the material that is claimed to be infringing
or to be the subject of infringing activity and that is to be removed or access
to which is to be disabled, and information reasonably sufficient to permit
MobilePages to locate the material;
(iv) Information reasonably sufficient to permit MobilePages to contact
the complaining party, such as an address, telephone number, and, if available,
an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that
use of the material in the manner complained of is not authorized by the
copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate,
and under penalty of perjury, that the complaining party is authorized to act
on behalf of the owner of an exclusive right that is allegedly infringed.
The MobilePages Designated Copyright Agent to
receive notifications of claimed infringement can be reached as follows:
Copyright Agent at MobilePages, Inc., 366 Cambridge Avenue, Suite 210, Palo
Alto, CA 94306., or by email at: copyright@mobilepages.com.
For clarity, only DMCA notices should go to the MobilePages Designated
Copyright Agent. Any other
feedback, comments, requests for technical support or other communications
should be directed to MobilePages customer service through support@mobilepages.com.
You acknowledge that if you fail to comply with all of these
requirements, your DMCA notice may not be valid.
21.1
Claims. We are committed to providing you a
means of resolving disputes that arise between you and MobilePages quickly and
cost effectively. Accordingly, the
parties agree that we will resolve any claim or dispute that arises out of this
Agreement or in connection with your use of the MobilePages Service (a "Claim")
in accordance with one of the subsections below. As in many circumstances we are able to
resolve disputes with users amicably, we strongly encourage you to first
contact us directly to seek a resolution before escalating to one of the
options below. We will consider
reasonable requests to resolve the dispute through alternative dispute
resolution procedures, such as mediation or arbitration, as alternatives to
litigation.
21.2 Law and Forum for Disputes. This Agreement shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against MobilePages must be resolved exclusively by a state or federal court located in the Northern District of California, except as described in the Arbitration Option section below. You agree to submit to the personal jurisdiction of the courts located within Northern District of California for the purpose of litigating all Claims that arise between you and MobilePages.
21.3 Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
21.4 Improperly Filed Claims. All claims you bring against MobilePages must be resolved in accordance with this section. All claims filed or brought contrary to the procedures set forth in this section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes section, MobilePages may recover attorneys' fees and costs up to $1000, provided that MobilePages has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
22.
Miscellaneous.
22.1
If any
provision of the Terms shall be unlawful, void, or for any reason
unenforceable, then that provision will be reformed to the minimum extent
necessary to make it valid and enforceable, or, if not capable of reformation,
will be deemed severable from the Terms, and will not affect the validity and
enforceability of any remaining provisions. The Terms, and any rights and licenses
granted hereunder, may not be transferred or assigned by you, including by operation
of law or otherwise, but may be assigned by MobilePages without
restriction. The heading references
herein are for convenience only, do not constitute a part of the Terms, and
will not be deemed to limit or affect any of the provisions hereof. The Terms (including the Privacy Policy
and any and all Guidelines) are the entire agreement between you and
MobilePages relating to the subject matter herein and will not be modified
except in writing, signed by both parties, or by a change to the Terms or
Guidelines made by MobilePages as set forth in Section 0 above.
Failure by MobilePages at any time to require performance of any
provision of the Terms will in no manner affect our right to enforce the same at
a later time.
22.2
The
services hereunder are offered by MobilePages, Inc., located at: MobilePages,
Inc., 366 Cambridge Avenue, Suite 210, Palo Alto, CA 94306. MobilePages may be contacted by email at
support@mobilepages.com
or by using the ÒContact UsÓ feature within the App. If you are a California
resident, you may have this same information emailed to you by sending a letter
to the foregoing address with your email address and a request for this
information.
23. [ONLY REQUIRED FOR IOS DEVICES] Notice Regarding Apple.
23.1 You acknowledge that these TOS are between you and MobilePages only, not with Apple, and Apple is not responsible for the Mobile Pages Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the MobilePages Service. In the event of any failure of the MobilePages Service to conform to any applicable warranty, then you may notify Apple and if applicable, Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the MobilePages Service. Apple is not responsible for addressing any claims by you or any third party relating to the MobilePages Service or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the MobilePages Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the MobilePages Service or your possession and use of any App infringes that third partyÕs intellectual property rights. You agree to comply with any applicable third party terms, when using the MobilePages Service. Apple, and AppleÕs subsidiaries, are third party beneficiaries of these TOS, and upon your acceptance of these TOS, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOS against you as a third party beneficiary of these TOS. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a Òterrorist supportingÓ country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.