(individually and collectively with any subsidiary thereof MobileMonetizer)
The Services and This Agreement
1. The user (“You” or “User”) of any MobileMonetizer software, websites, forums, or mediated functionality (individually and collectively – the “MobileMonetizer Services”) agrees that the use of any MobileMonetizer Services, is covered by this agreement (the “Agreement”). Unless explicitly stated otherwise, any new features to the current MobileMonetizer Services, including the release of new MobileMonetizer properties, shall be subject to the Agreement. In addition, when using particular MobileMonetizer Service (whether owned or operated by MobileMonetizer), You and MobileMonetizer shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time. All such guidelines or rules are hereby incorporated by reference into the Agreement. MobileMonetizer may also offer other services that are governed by different Terms of Service.
2. MobileMonetizer provides Users, inter alia, with a toolbar to be implemented in User’s web browser. You also understand and agree that the MobileMonetizer Services may include advertisements and that these advertisements are necessary for MobileMonetizer to provide the Services. You also understand and agree that the MobileMonetizer Services may include certain communications from MobileMonetizer and you will not be able to opt out of receiving them.
3. You are responsible for obtaining access to the MobileMonetizer Services, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, You must provide and re responsible for all equipment necessary to access the MobileMonetizer Services.
4. You understand that the technical processing and transmission of the MobileMonetizer Services, including content provided by You, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
5. Certain MobileMonetizer Services may contain or direct User to adult or mature content, and You must be at least 18 years of age to access and view same.
Provision of the Services
6. As a condition precedent of your use of the MobileMonetizer Services, you represent that you are of legal age to form a binding contract under the laws of any applicable jurisdiction and are not a person barred from receiving the MobileMonetizer Services under the laws of the United States or any other applicable jurisdiction
7. User agrees that MobileMonetizer may use subsidiaries, agents, or third-parties located anywhere in the world, to provide the MobileMonetizer Services.
The User agrees that the provision of the MobileMonetizer Services, their extent, functionality, form and nature may change at the sole and exclusive discretion of MobileMonetizer, all without prior notice to you.
8. User may stop using the MobileMonetizer Services at any time and does not need to provide notice to MobileMonetizer.
9. User understands and agrees that the termination of the MobileMonetizer Services, or changes to the extent, functionality, form or nature of the MobileMonetizer Services may result in loss of information which may include account details, or information User has provided. User agrees to hold MobileMonetizer harmless for any loss or damage arising directly or indirectly from the loss of information contemplated herein or for the termination of MobileMonetizer Services.
10. User agrees that MobileMonetizer may unilaterally edit, modify or delete information or content provided as part of the MobileMonetizer Services.
Use of the Services and User conduct
11. User agrees to use the MobileMonetizer Services addressed by this Agreement, is restricted to ways, and for purposes, allowed by this Agreement and all applicable laws, or regulations in relevant jurisdictions (including any laws regarding the export of data or software to and from relevant countries). User agrees that it will not directly or indirectly engage in any activity that interferes with, or disrupts, the provision of the MobileMonetizer Services.
12. User agrees not to sell, provide, duplicate or otherwise make available the MobileMonetizer Services to anyone other than for its own personal purposes. The User agrees that any use of the MobileMonetizer Services or breach of the terms of this Agreement is the User’s sole responsibility, including, but not limited to, any resulting consequences such as damages or harm MobileMonetizer may suffer due to User’s failure to abide by the Terms of This Agreement. MobileMonetizer EXPLICITLY DISCLAIMS LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING FROM USER’s, OR ANYONE ON ITS BEHLF, USE OF THE MobileMonetizer SERVICES.
13. User agrees not to access (or attempt to access) any of the MobileMonetizer Services by any means other than through the interface that is provided by MobileMonetizer, including, but not limited to, specifically agree not to access (or attempt to access) any of the MobileMonetizer Services through any automated means.
14. User agrees not to restrict, discourage or inhibit any person from using the MobileMonetizer Services, disclose personal information of others through the MobileMonetizer Services or obtained through the MobileMonetizer Services, collect information about users of the Services, “stalk” or otherwise harass another user, reverse engineer, disassemble or decompile any section or technology of or in the MobileMonetizer Services, or gain unauthorized access to the MobileMonetizer Services, to other users’ accounts, names or personally identifiable information, or to other computers, software or websites connected or linked to the MobileMonetizer Services;
15. User agrees not to, with respect to the MobileMonetizer Services, a) launch or use any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that access the MobileMonetizer Services in a manner that sends more request messages to MobileMonetizer servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser; b) send or otherwise transmit to or through the MobileMonetizer Services chain letters, unsolicited messages, so-called “spamming” or “phishing” messages, or messages marketing or advertising goods and services; c) post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment; d) violate any applicable laws or regulations; or e) assist or permit any persons in engaging in any of the activities described above.
16. User understands that all information and content, whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such content originated. This means that You are entirely responsible for all content that you upload or otherwise make available via the MobileMonetizer Services. MobileMonetizer does not control the content posted via the MobileMonetizer Services. You understand that by using the MobileMonetizer Services, You may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will MobileMonetizer be liable in any way for any content, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise made available via the MobileMonetizer Services.
17. User agrees to not use the MobileMonetizer Services to upload, post. email transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable
18. User agrees to not use the MobileMonetizer Services to harm minors in any way
19. User agrees to not use the MobileMonetizer Services to impersonate any person or entity.
20. You agree to not upload, post. email transmit or otherwise make available via the MobileMonetizer Services any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements or any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights);
21. You agree to not provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States or any other applicable government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act or any similar law;
Intellectual Property Rights and Trademark information
22. User acknowledges and agrees that MobileMonetizer owns all legal right, title and interest in and to the MobileMonetizer Services, including any intellectual property rights which subsist in the MobileMonetizer Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). User further acknowledge that MobileMonetizer Services may contain information which is designated confidential by MobileMonetizer and that User shall not disclose such information without MobileMonetizer’s prior written consent. User agrees that data generated in performance of the MobileMonetizer Services is the sole and exclusive property of MobileMonetizer, its users or its licensors with all rights reserved. Except as expressly authorized by MobileMonetizer, You agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the MobileMonetizer Services.
23. User is granted a limited license to access and use the MobileMonetizer Services and to download or print a copy of any portion of the MobileMonetizer Services to which it has properly gained access solely for its personal, non-commercial use, provided that all copyright or other proprietary notices are maintained intact. Such license is subject to this Agreement and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods.
24. Any use of the MobileMonetizer Services other than as specifically authorized herein, without the prior written personal permission of MobileMonetizer, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license granted hereunder is revocable by MobileMonetizer at any time without notice and with or without cause.
25. User agrees that all of MobileMonetizer`s trademarks, trade names, service marks and other MobileMonetizer logos and brand features, and product and service names are trademarks and the property of MobileMonetizer Inc. (the “MobileMonetizer Marks”). Without MobileMonetizer’s prior written permission, You agree not to display or use in any manner the MobileMonetizer Marks.
License to Use
26. MobileMonetizer grants to User a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software forming part of the MobileMonetizer Services, if any, provided by MobileMonetizer as part of the MobileMonetizer Services (“Software”). This license is for the sole purpose of enabling User to use and enjoy the benefit of the MobileMonetizer Services as provided by MobileMonetizer, in the manner permitted by this Agreement and subject to any applicable law.
27. User agrees not to (and not to permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless the user has been authorized by MobileMonetizer in writing.
28. User may not assign (or grant a sub-licence of) its rights to use the Software, grant a security interest in or over User’s rights to use the Software, or otherwise transfer any part of its rights to use the Software.
29. The terms of the Agreement will continue to apply until terminated by MobileMonetizer, as contemplated herein.
You agree that MobileMonetizer may, without any prior notice, immediately terminate, limit your access to or suspend your MobileMonetizer account, and/or access to the MobileMonetizer Services, at its sole discretion, with no need to explain the cause for such termination. Further, You agree that MobileMonetizer shall not be liable to You or any third party for any termination of your account or access to the MobileMonetizer`s Services.
30. Upon termination, all of the legal rights, obligations and liabilities that have accrued to User and MobileMonetizer which are expressed, contemplated or by their nature must continue indefinitely, shall be unaffected by this termination.
Exclusion Of Warranties and Limitations of Liability
31. USER EXPRESSLY UNDERSTANDS AND AGREES THAT ITS USE OF THE MobileMonetizer SERVICES IS AT ITS SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND ‘AS AVAILABLE ” BASIS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MobileMonetizer SERVICES IS DONE AT USER’S DISCRETION AND RISK AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM MobileMonetizer OR THROUGH OR FROM THE MobileMonetizer SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
MobileMonetizer FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THE MobileMonetizer SERVICES.
IN PARTICULAR, MobileMonetizer, ITS AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO USER THAT:
(i) USE OF THE MobileMonetizer SERVICES WILL MEET ANY USER’S REQUIREMENTS,
(ii) USE OF THE MobileMonetizer SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
(iii) ANY INFORMATION OBTAINED BY USER AS A RESULT OF ITS USE OF THE MobileMonetizer SERVICES WILL BE ACCURATE OR RELIABLE, OR
(iv) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO USER AS PART OF THE MobileMonetizer SERVICES WILL BE CORRECTED.
32. IN NO EVENT WILL MobileMonetizer OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO USER OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM USER’S USE OF SOFTWARE, THE MobileMonetizer SERVICE, ANY PLATFORM APPLICATIONS OR ANY OF WEB BASED INTERFACE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED USING THE MobileMonetizer SERVICES, EVEN IF MobileMonetizer IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MobileMonetizer’S LIABILITY TO USER FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY USER TO MobileMonetizer FOR THE MobileMonetizer SERVICE DURING THE TERM, BUT IN NO CASE WILL THE MobileMonetizer’S LIABILITY TO THE USER EXCEED $200. USER ACKNOWLEDGES THAT IF NO FEES ARE PAID BY IT TO MobileMonetizer FOR THE SERVICE, USER SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM MobileMonetizer, REGARDLESS OF THE CAUSE OF ACTION.
33. WITHOUT DEROGATING FROM THE PROVISION IN THIS SECTION 7 ABOVE, USER EXPRESSLY UNDERSTANDS AND AGREES THAT MobileMonetizer, ITS AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO USER FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY IT AS A RESULT OF: (i) ANY CHANGES WHICH MobileMonetizer MAY MAKE TO THE MobileMonetizer SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE MobileMonetizer SERVICES, OR ANY PART THEREOF OT FEATURES WITHIN THE MobileMonetizer SERVICES; (ii) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH ITS USE OF THE MobileMonetizer SERVICES; (iii) USERן¿½S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
34. IF AND TO THE EXTENT THAT ANY LIMITION OF MobileMonetizer’S WARRANTY OR LIABILITY IS EXCLUDED OR LIMITED BY APPLICABLE LAW, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN THE USER’S JURISDICTION WILL APPLY TO THE USER AND MobileMonetizer LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY SUCH APPLICABLE LAW.
Privacy and Personal Information
35. Information on MobileMonetizer’s personal information protection polices and practice can be found at the MobileMonetizer website, www.Mobilemonetizer.net. The User agrees that these policies apply to this Agreement and are incorporated herein as an integral part thereof, the provision of MobileMonetizer Services and the information User provides through use of the MobileMonetizer Services.
37. User agrees to indemnify, defend and hold MobileMonetizer and its directors, officers, employees, agents and contractors harmless from and against any and all claims, damages, losses, costs (including without limitation reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from (i) User’s breach of any provision of this Agreement; or (ii) User’s activities in connection with the MobileMonetizer Services.
38. This Agreement contains the complete agreement concerning the access, use and provision of the MobileMonetizer Services between the parties and shall, as of the date hereof, supersede all other agreements or arrangements between the parties with regard to the subject matter hereof.
39. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.
40. No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence of any proceeding, arbitration, or litigation between the parties hereto arising out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid.
41. The failure of MobileMonetizer to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
42. User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the MobileMonetizer Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred
43. All agreements and covenants contained herein are severable. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect
44. The captions and headings in this Agreement, have been inserted for convenience only and shall not be deemed to limit or otherwise affect any of the provisions of this Agreement.
45. It is the intention of the parties hereto that this Agreement and the performance hereunder be construed in accordance with, under and pursuant to the laws of the State of Israel without regard to the jurisdiction in which any action or special proceeding may be instituted.