The website located at http://www.MoberApp.com (the “Site”) is a copyrighted work belonging to MOBER, Inc., a Delaware corporation (“MOBER”, “us”, and “we”). Certain features of the Site or its Services may be subject to additional guidelines, terms, or rules, which will be posted on the Site or its Services in connection with such features. To the extent such terms, guidelines, and rules conflict with these terms of use, these terms of use shall govern.These terms of use (“Agreement”) set forth the legally binding terms for your use of the Site, App and/or Services. By accessing, browsing, using and/or registering for the MOBER website (the “Site”), the MOBER application(s) (the “App” or “Application”) and/or any other mobile or web services or applications available on the Site or otherwise from MOBER (collectively, the “Services”), you are acknowledging that you have read this Agreement, are accepting this Agreement, and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. You may not access or use the Site, App or Services if you do not agree with all of the provisions of this Agreement and if you are not at least 18 years old. MOBER grants you a limited license to use the Services in accordance with this Agreement and the instructions and guidelines posted on the Site and/or communicated through the App.
1. Introduction.
MOBER provides an online platform that caters to customers who wish to interact with other like-minded people. Although MOBER’s Services are provided for free, additional data charges may apply to you for use of the Services through your mobile device and/or internet service provider. MOBER reserves the right to charge for any or all portions of their service in the future, with proper notice to you.
2. Important Disclaimers and Release.
(a) You should make whatever investigation you feel necessary or appropriate before proceeding with any interaction or transaction with any other client, user, customer, service provider, individual and/or subscriber (“Client(s)”). Your interactions with other Clients are solely between you and such Clients and MOBER will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Client, we are under no obligation to become involved. MOBER does not conduct criminal or other background checks on its Clients, but reserves the right to do so at any time.
(b) You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and release each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage) that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or transactions of you with our Site, App and Services, or act or omission of you in relation to other Clients, including Third Party Sites & Ads.
(c) You understand that your use of the Services may involve known and unanticipated risks that could result in injury or illness, including, but not limited to, dangers that may be caused by the acts of other Clients or other third parties, or occurrences beyond the control of MOBER. By using the Services, you assume all such risks and dangers and all responsibility for any losses and/or damages. You voluntarily release, waive, discharge and hold harmless MOBER from any and all claims, demands or causes of action for bodily injury, property damage, wrongful death, sickness, other health issues, loss of services or claims that in any way arise from or are related to your use of the Services. The Services are intended only as personal, location-based services for individual use.
(d) If you are a California resident, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
(e) Notwithstanding the foregoing, MOBER will use commercially reasonable efforts to provide all the Services described in this Agreement.
3. Accounts.
In order to use the Service, you must register for an account with MOBER (“Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that all required registration information you submit is truthful and accurate, and that you will maintain the accuracy of such information. Without limiting the generality of the foregoing, you agree to provide MOBER with proper identification documents which MOBER may request from you in regards to a dispute or other violation(s) of this Agreement or otherwise required by law for the purposes of verifying your identity. You may delete your Account at any time, for any reason, by contacting MOBER. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify MOBER of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security which is based on your negligence. MOBER cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. We reserve the right to remove any Clients and delete their accounts if they are interacting with other Clients in a manner deemed to be inappropriate or contrary to the primary purpose and spirit of the app in the sole discretion of MOBER.
4. Client Content.
(a) “Client Content” means any and all information and content that a Client submits to, or uses with, the Site, App or Services. Client Content can include all text, photos, videos, sounds, posts, links, reviews, testimonials and any and all other information provided by any Client. You are solely responsible for your Client Content. You assume all risks associated with use of Client Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your Client Content that makes you or any third party personally identifiable. You hereby represent and warrant that your Client Content does not violate the Acceptable Use Policy (defined below in Section
5). You may not state or imply that your Client Content is in any way provided, sponsored or endorsed by MOBER. Because you alone are responsible for your Client Content (and not MOBER), you may expose yourself to liability if your Client Content violates applicable rules and regulations such as the Acceptable Use Policy. MOBER is not obligated to remove any Client Content from the Site unless required by applicable Law, but retains the right to remove, screen, edit or reinstate any Client Content in its sole discretion. MOBER may, but is not obligated to, backup any Client Content, and Client Contentmay be deleted at any time. You are solely responsible for creating backup copies of your Client Content if you desire.
(b) You hereby grant, and you represent and warrant, that you have the right to grant, to MOBER an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license for all the duration of the intellectual property rights to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your Client Content, and to grant sublicenses of the foregoing, solely for the purposes of including your Client Content in the Site, App and Services; provided that MOBER will only use your Client Content in accordance with MOBER’s privacy policy. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Client Content.
(c) Video content will be limited to one minute, or to any length as restricted by the video storing and displaying technology utilized or under the sole discretion of MOBER. No Client Content found on the Services may be re-posted anywhere else by any Client without express written permission from MOBER.
(d) Clients desiring to revise or remove Client Content should contact MOBER at support@moberapp.com.
5. “Acceptable Use Policy”.
(a) You agree that you will only use the information and Client Content made available to you only for the purposes of use of the Services. You must not use the information and any Client Content for any other purpose, including for marketing purposes. You represent and warrant that you will comply with applicable privacy laws and data protection laws in relation to the storage, use and transfer of all information. You agree not to use or permit others to use the Services while driving a motor vehicle. You agree to use the Services or the location information provided, if any, thereby only for lawful purposes. You will not use any location based information in any unlawful manner in violation of this Agreement and MOBER reserves the right to misdirect, hide, or veil Client location information to protect the privacy of its Clients.
(b) You agree not to use the Site, App or Services with any Client Content (or to provide any Client Content, products or services) that: (a) violates 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) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, considered “stalking”, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e. g. , material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) is illegal or in violation of any local, state, national, or international laws, obligations or restrictions imposed by any third party, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control.
(c) You agree not to use the Site, App or Services to: (1) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (2) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (3) harvest, collect, gather or assemble information or data regarding other Clients, including e-mail addresses, without their consent; (4) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, App or Services or violate the regulations, policies or procedures of such networks; (5) attempt to gain unauthorized access to the Site, App or Services, other computer systems or networks connected to or used together with the Site, App or Services, through password mining or other means; (6) harass or interfere with another Client’s use and enjoyment of the Site, App or Services; (7) introduce software or automated agents or scripts to the Site, App or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site, App or Services; (8) impersonate any person or entity or falsify or misrepresent yourself or your affiliation with any person or entity; or (9) display, mirror, or frame the Site.
(d) We reserve the right (but have no obligation) to review any Client Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your Client Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
(e) Clients agree to help build a community of trust and safety by not only abiding by the rules and regulations herein, but by protecting the safety and integrity of the community and the Site, App and Services by reporting any improper use, harassment or other violations by other Clients.
6. Site, Application and Services.
(a) The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, customize, or otherwise commercially exploit the Site, App or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site, App or Services; (c) you shall not access the Site, App or Services in order to build or promote a similar or competitive service; and (d) except as expressly stated herein, no part of the Site, App or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site, App or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site, App or Services content must be retained on all copies thereof. MOBER reserves the right, at any time, to modify, suspend, or discontinue the Site, App or Services or any part thereof with or without notice. You agree that MOBER will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site, App or Services or any part thereof. You acknowledge and agree that MOBER will have no obligation to provide you with any support or maintenance in connection with the Site, App or Services.
(b) If you provide MOBER any feedback or suggestions regarding the Site, App or Services (“Feedback”), you hereby assign and agree to assign upon our request to MOBER all rights in the Feedback and agree that MOBER shall have the right to use such Feedback and related information in any manner it deems appropriate. MOBER will treat any Feedback you provide to MOBER as non-confidential and non-proprietary. You agree that you will not submit to MOBER any information or ideas that you consider to be confidential or proprietary.
(c) Subject to the language of 4(b), each Client owns its own Client Content. Excluding your Client Content, you acknowledge that all the Intellectual Property Rights (“IPR” which means all trade secrets, copyrights, trademarks, mask work rights, patents and other intellectual property rights recognized by the laws of any country) in the Site, App and Services are owned by MOBER or MOBER’s licensors. The provision of the Site, App and Services does not transfer to you or any third party any rights, title or interest in or to such IPR unless specified by a separate written agreement. MOBER and its suppliers reserve all rights not granted in this Agreement. All content included on the Services, such as text, graphics, logos, software and the compilation of all such content, is the property of MOBER and it, and any other MOBER IPR, may not be used without prior, express written permission from MOBER.
(d) If you believe that your protected content has been made available through the Services in a way that constitutes copyright infringement, please provide MOBER with the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and e-mail address; (e) a statement by you that you have 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 (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Our Agent for Notice of Copyright Claims can be reached at: support@moberapp.com.
7. Indemnity.
You agree to indemnify and hold MOBER (and its officers, employees, and agents) harmless, including reasonable costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Site, App or Services; (ii) your Client Content as defined above; (iii) your interaction with any other Client; or (iv) your violation of this Agreement or any applicable laws. MOBER reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of MOBER. MOBER will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
8. Third Party Sites & Ads.
The Site might contain links to third party websites, services, geo-contextual push promotions, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of MOBER and MOBER is not responsible for any Third Party Sites & Ads. MOBER provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads. MOBER and its licensees may publicly display advertisements and other information on the Site, App and Services and adjacent to your Client Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you. You allow your location and geo-contextual information to be used by MOBER and its partners, affiliates and agents in an anonymous manner for ad-based purposes. Any deals, offers, coupons, or other goods/services provided in any Third Party Sites &Ads will be redeemed at the client’s own risk, and MOBER will not to be held accountable for the failure of any Third Party to honor such deals or cause further issues and damages resulting from such ads and deals.
9. Term and Termination.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site, App or Services. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for a legitimate purpose, including for any use of the Site, App or Services in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Site, App and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your Client Content associated therewith from our live databases. However we reserve the right to continue to use your Client Content to the extent permitted under applicable law. MOBER will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your Client Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2, 4, 7, 10, 11 and 12.
10. No Warranty and Limitation of Liability.
MOBER PROVIDES THE MOBER SERVICES ON AN "AS IS" AND “AS AVAILABLE” BASIS. MOBER DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, INTEGRATION, INTEROPERABILITY OR QUIET ENJOYMENT. MOBER MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE INFORMATION CONTAINED ON THE MOBER SITE, APP AND SERVICES OR ANY INFORMATION PROVIDED. MOBER DOES NOT WARRANT THAT THE FUNCTIONS OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
You understand and agree that you use the Services at your own discretion and risk and that you will be solely responsible for any damages that arise from such use. In no event shall we be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or your use of, or inability to use, the Site, App or Services, even if we have been advised of the possibility of such damages. Access to, and use of, the Site, App or Services are at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data resulting therefrom. Some jurisdictions do not allow the exclusion of liability for incidental or consequential damages, so the above exclusions may not apply to you.
11. Disputes.
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of
California without giving effect to any law that would result in the application of the law of another jurisdiction. Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and MOBER arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of MOBER’s Site, App or Services. You agree that by entering into this agreement, you and MOBER are each waiving the right to trial by jury or to participate in a class action. You and MOBER agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Any arbitration will take place on an individual basis; class arbitrations and class actions are not permitted. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and MOBER must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) will take place in Los Angeles, CA, unless otherwise mutually agreed upon by both parties. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Los Angeles County, California. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in Los Angeles County, California.
12. General.
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site, App or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site, App or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. This Agreement constitutes the entire agreement between you and us regarding the use of the Site, App or Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means “including without limitation”. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to MOBER is that of a Client and/or consumer of services and will never be construed to be that of an employee, agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without MOBER’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees. Copyright © 2015, MOBER, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.