Terms and Conditions
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY CLICKING ON THE “DOWNLOAD” BUTTON, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND PROVIDE YOUR EXPRESS CONSENT TO RECEIVE THE SERVICES, AS DESCRIBED BELOW. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK ON THE “DOWNLOAD” BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES. COMPANY’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY COMPANY, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
The web site available at http://www.getmobio.com, and all linked pages ("Site"), are owned and operated by Mobio Networks, Inc. ("Company"), a Delaware corporation, and may only be accessed and utilized by you under the following terms and conditions (the “Agreement"):
1. ACCESS TO SERVICES
Subject to the terms and conditions of this Agreement, Company may offer to provide certain services, as described more fully on the Site, and which may be utilized by you through the processes provided on the Site or through the use of a phone or other communication device ("Services"), solely for your own personal, non-commercial use, and not for the use or benefit of any third party. Services shall include, but not be limited to, lifestyle applications that provide a rich customized mobile user experience and any other services Company performs for or on behalf of you, as well as the offering of any Content (defined below) on the Site or through the use of the Services. Company may change, suspend or discontinue the Services at any time, including the availability of any feature, service, or content. Company may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. Company reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Site, or by sending you a notice via email or other form of written notice. You shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Services by you following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
You certify to Company that if you are an individual (i.e., not a corporation), you are of legal age to form a binding contract. You also certify that you are legally permitted to use the Services and access the Site, and take full responsibility for the selection and use of the Services and access of the Site. This Agreement is void where prohibited by law, and the right to use the Services and access the Site is revoked in such jurisdictions.
You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Site or otherwise use the Services, including, without limitation, hardware devices, software, and other internet, wireless, broadband, phone or other mobile communication device connection services. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services and you shall be responsible for all charges incurred in connection with use of the Services in connection with all such equipment and ancillary services.
2. SITE CONTENT
The Site and its contents and the Services are intended solely for the use of Company’s users and may only be used in accordance with the terms of this Agreement. All materials displayed, distributed or performed on the Site or through the use of the Services (including, but not limited to text, software, scripts, graphics, photos, sounds, music, videos, logos, interactive features and the like, also known as “Content") are protected by copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. Except as expressly permitted herein, you shall abide by all copyright notices and trademark, information, and other restrictions contained in any Content accessed on the Site or through the Services. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided herein), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. You may not utilize the Content in any way other than as expressly provided in this Agreement. You shall not store any significant portion of any Content in any form. Copying or storing of any Content for other than personal, noncommercial use is expressly prohibited without prior written permission from Company, or from the copyright holder identified in such Content’s copyright notice. The Site and Services provided are protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws. Except as expressly permitted herein, you may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in this Section of the Agreement), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.
3. RESTRICTIONS
You are responsible for all of its activity in connection with the use of Services, and accessing the Site. Any fraudulent, vulgar, offensive, harassing, objectionable, abusive, or otherwise illegal activity may be grounds for termination of your right to Services or to access the Site. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation or other “phishing” message designed or intended to obtain password, account, or private information from any user of the Company’s Services. Use of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene, or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Site or through use of the Services, or any processes that run or are activated while you are not logged in. Further, you shall not run any automated calling robot or system or otherwise misuse the Services to violate any third party rights, e.g. “spoofing.”
Company does not promote, recommend or condone use of the Services during certain activities, such as automobile driving, where there is significant risk of accident. You agree not to use the Services during such activities.
4. COMPANY COMMUNICATIONS
By downloading any of the Company’s mobile applications on the Site and/or registering for the Services, you consent and opt-in to receive communications from Company by SMS text message and electronic mail. You agree that any notice, agreement, disclosure or other communications that Company sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You may opt out from receiving further SMS text messages either through the Site or by sending a text message with the word “STOP” to 662466 from your mobile phone, and Company will use commercially reasonable efforts to unsubscribe you from its text message service. You may also opt out from receiving further Company electronic mail messages by unsubscribing through the Site.
5. USE OF SUBMISSIONS
You agree that any comments, information or ideas submitted to Company, whether through use of the Services or contained in any communication you may send to Company, shall be owned exclusively and in perpetuity by Company. Such exclusive ownership means that Company, its parent, subsidiary, and/or affiliated companies have the unrestricted, perpetual, and exclusive right to use, reproduce, modify, translate, transmit, and distribute any and all comments, information, or ideas, and that Company is free to use any such comments, information or ideas without compensation, acknowledgment or payment to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products and services and creating, modifying or improving the Site, Services or other products or services.
6. PRIVACY
Any information that you submit or that Company collects when you use the Site or Services is subject to the Company Privacy Policy, the terms of which are incorporated into this Agreement and a copy of which is available at http://www.getmobio.com.
7. WARRANTY DISCLAIMERS
Company has no special relationship with or fiduciary duty to you. You acknowledge that Company has no control over, and no duty to take any action regarding: which users gains access to the Site; what Content you access or receive via the Site or Services; what effect the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Company from all liability for you having acquired or not acquired Content through the Site or Services. The Site or Services may contain, or link or otherwise direct you to sites containing, or you may receive Content containing information that some people may find offensive or inappropriate. Company makes no representations concerning any Content contained in or accessed through the Site or any Services provided, and Company will not be responsible or liable for the accuracy, transmission, copyright compliance, legality or decency of material contained in or accessed through the Site or Services. ALL USE OF THE SERVICES, CONTENT, SITE, AND ANY SOFTWARE ASSOCIATED THEREWITH SHALL BE AT YOUR OWN RISK AND ALL OF THE FOREGOING ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THAT THE USE OF THE SITE AND THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 USC 2701-2711): COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEB-SITE LINKED TO THE SITE OR THROUGH ANY USE OF THE SERVICES. Company will not be liable for the privacy of e-mail addresses, phone or communication device numbers, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company’s equipment and transmitted over networks accessed by the Site, or otherwise connected with your use of the Services.
8. REGISTRATION AND SECURITY
As a condition to using Services, you may be required to register with Company and select a pin and/or password and a username ("Company User ID"). You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; or (ii) use as a Company User ID a name subject to any rights of a person other than you without appropriate authorization. Company reserves the right to refuse registration of, or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your Company password. Company will not be liable for any losses caused by unauthorized use of your Company User ID, but you may be liable for the losses of Company or others due to such unauthorized use.
9. INDEMNITY
You will indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services (including the receipt of Content), the violation of this Agreement by you, or the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY BE LIABLE WITH RESPECT TO THE SITE OR THE SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, AND NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF COMPANY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE USE OF THE SERVICES OR U.S. $5.00. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
11. FEES
While Company does not currently charge any fees for the use of the Services or Site, some of the Services or use thereof may require you to pay certain third-party fees. You shall be responsible for all applicable fees associated with use of the Services, including without limitation, any connection or usage fees incurred for the transmission, receipt, or delivery of Content or Services. Company shall have no liability to you for any fees incurred in connection with the Services.
12. TERMINATION
Either party may terminate the Services at any time by notifying the other party by any means. Company may also terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your rights to use the Services, and access the Site and any Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, warranty disclaimers, and limitations of liability.
13.Third-Party Legal Notices
Some of the data included and used in the Services is provided to the Company by its licensors, and the use of such licensed data is subject to the following additional terms and conditions set by such licensors:
(a) Mapping, Routing and Directions Data. The mapping, routing and directions data included in the Services ("Map Data"), is provided for your personal use only and not for resale. It is protected by copyright, and is subject to the following terms and conditions which are agreed to by you, on the one hand, and Company and its licensors (including their licensors and suppliers) on the other hand.
Map Data is provided all or in part by the following licensors:
© 2006 NAVTEQ. All rights reserved.
The Data for areas of Canada includes information taken with permission from Canadian authorities, including: © Her Majesty the Queen in Right of Canada, © Queen’s Printer for Ontario, © Canada Post Corporation, GeoBase®. NAVTEQ holds a non-exclusive license from the United States Postal Service® to publish and sell ZIP+4® information. ©United States Postal Service® 2005. Prices are not established, controlled or approved by the United States Postal Service®. The following trademarks and registrations are owned by the USPS: United States Postal Service, USPS, and ZIP+4.
Personal Use Only
You agree to use the Map Data together with the Services for the solely personal, non-commercial purposes for which you were licensed, and not for service bureau, time-sharing or other similar purposes. Accordingly, but subject to the restrictions set forth in the following paragraphs, you may copy the Map Data only as necessary for your personal use to (i) view it, and (ii) save it, provided that you do not remove any copyright notices that appear and do not modify the Data in any way. You agree not to otherwise reproduce, copy, modify, decompile, disassemble or reverse engineer any portion of the Map Data, and may not transfer or distribute it in any form, for any purpose, except to the extent permitted by mandatory laws.
Restrictions
Except where you have been specifically licensed to do so by Company, and without limiting the preceding paragraph, you may not (a) use the Map Data with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management or similar applications; or (b) with or in communication with any positioning devices or any mobile or wireless-connected electronic or computer devices, including without limitation cellular phones, palmtop and handheld computers, pagers, and personal digital assistants or PDAs.
Warning
The Map Data may contain inaccurate or incomplete information due to the passage of time, changing circumstances, sources used and the nature of collecting comprehensive geographic data, any of which may lead to incorrect results.
No Warranty
The Map Data is provided to you “as is,” and you agree to use it at your own risk. Company and its licensors (and their licensors and suppliers) make no guarantees, representations or warranties of any kind, express or implied, arising by law or otherwise, including but not limited to, content, quality, accuracy, completeness, effectiveness, reliability, fitness for a particular purpose, usefulness, use or results to be obtained from the Map Data, or that the Map Data or server will be uninterrupted or error-free.
Disclaimer of Warranty
COMPANY AND ITS LICENSORS (INCLUDING THEIR LICENSORS AND SUPPLIERS) DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Some States, Territories and Countries do not allow certain warranty exclusions, so to that extent the above exclusion may not apply to you.
Disclaimer of Liability
COMPANY AND ITS LICENSORS (INCLUDING THEIR LICENSORS AND SUPPLIERS) SHALL NOT BE LIABLE TO YOU: IN RESPECT OF ANY CLAIM, DEMAND OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION ALLEGING ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT FROM THE USE OR POSSESSION OF THE INFORMATION; OR FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS OR SAVINGS, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIS INFORMATION, ANY DEFECT IN THE INFORMATION, OR THE BREACH OF THESE TERMS OR CONDITIONS, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF COMPANY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some States, Territories and Countries do not allow certain liability exclusions or damages limitations, so to that extent the above may not apply to you.
Export Control. You agree not to export from anywhere any part of the Map Data provided to you or any direct product thereof except in compliance with, and with all licenses and approvals required under, applicable export laws, rules and regulations.
Entire Agreement
These terms and conditions constitute the entire agreement between Company (and its licensors, including their licensors and suppliers) and you pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between us with respect to such subject matter.
Governing Law
The above terms and conditions shall be governed by the laws of the State of Illinois, without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. You agree to submit to the jurisdiction of the State of Illinois for any and all disputes, claims and actions arising from or in connection with the Map Data provided to you hereunder.
Government End Users
If the Map Data is being acquired by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United States government, this Map Data is a “commercial item” as that term is defined at 48 C.F.R. ("FAR") 2.101, is licensed in accordance with these End-User Terms, and each copy of Map Data delivered or otherwise furnished shall be marked and embedded as appropriate with the following “Notice of Use,” and shall be treated in accordance with such Notice:
If the Contracting Officer, federal government agency, or any federal official refuses to use the legend provided herein, the Contracting Officer, federal government agency, or any federal official must notify NAVTEQ prior to seeking additional or alternative rights in the Map Data.
Canadian Map Data End-User Terms
The Map Data may include or reflect data of licensors, including Her Majesty and Canada Post. Such data is licensed on an “as is” basis. The licensors, including Her Majesty and Canada Post, make no guarantees, representations or warranties respecting such data, either express or implied, arising by law or otherwise, including but not limited to, effectiveness, completeness, accuracy or fitness for a particular purpose.
The licensors, including Her Majesty and Canada Post, shall not be liable in respect of any claim, demand or action, irrespective of the nature of the cause of the claim, demand or action alleging any loss, injury or damages, direct or indirect, which may result from the use or possession of the data or the Map Data. The licensors, including Her Majesty and Canada Post, shall not be liable in any way for loss of revenues or contracts, or any other consequential loss of any kind resulting from any defect in the data or the Map Data.
You shall indemnify and save harmless the licensors, including Her Majesty the Queen, the Minister of Natural Resources of Canada and Canada Post, and their officers, employees and agents from and against any claim, demand or action, irrespective of the nature of the cause of the claim, demand or action, alleging loss, costs, expenses, damages or injuries (including injuries resulting in death) arising out of the use or possession of the data or the Map Data.
(b) Weather Data.
The weather-related data included in the Services ("Weather Data") is provided by CustomWeather, Inc. Weather Data Copyright 2006, CustomWeather, Inc.
ALL WEATHER DATA IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, COMPANY AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, COMPANY AND ITS LICENSORS DO NOT WARRANT THAT THE WEATHER DATA WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIM ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. COMPANY AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, COMPANY AND ITS LICENSORS’ CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING OR DELIVERING WEATHER DATA, EXCEPT FOR COMPANY OR ITS LICENSORS’ GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
(c) Directory Listing Data.
The directory listing data included in the Services ("Directory Listing Data") is provided by infoUSA Inc.
Data by infoUSA. © 2007. All Rights Reserved.
You will not use the infoUSA Database or the information or data obtained therefrom in part or whole as a factor in (a) establishing an individual’s eligibility for credit or insurance, (b) connection with underwriting individual insurance, (c) evaluating an individual for employment or for promotions, reassignment or retention as an employee, (d) connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental instrumentality, (e) connection with any sweepstakes, contest game or similar promotional devices, (f) connection with any pornographic product or service or other product or service which caters to prurient interests or, (g) connection with criminal investigations or other law enforcement purposes.
14. MISCELLANEOUS
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company’s prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to the conflict of laws provisions thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever.
Revised 6.23.07