Last Updated June 16, 2010 - Version 1.1
This Agreement is between you ("you" or "User") and Mobio Technologies, Inc. ("Mobio" or "we"). By using our Services, you agree to be bound by the terms and conditions contained herein and as amended from time to time.
1. Our Services and Software. Mobio provides Software that helps you submit payments to third parties in a convenient and secure way ("Services"). Mobio is an independent contractor for all purposes. Mobio does not have control of, or liability for, products or services that are paid for with our Services. We do not guarantee the identity of any User or ensure that a Buyer or Seller will complete a transaction.
2. Eligibility and Authorization
2.1. Eligibility. To be eligible for our Services you must be an authorized User of a financial credit card or other valid form of electronic payment supported by the Services. You also must be connected via Smartphone or wireless connection in order to use the Services. Failure to establish a viable connection to the Internet will render the Services unusable.
2.2. Identity Authentication. You must submit complete and accurate information upon registration for the Services. You authorize Mobio, directly or through third parties, to make any inquiries we consider necessary to validate your identity. This may include asking you for additional information; requiring you to take steps to confirm ownership of your email address or financial instruments; ordering a credit report and verifying your information against third party databases or through other sources. You grant Mobio the right to receive and use such information for these purposes.
2.3. License Grant. Upon appropriate registration of your account (and for so long as such account remains active and open), Mobio and its Licensors grant you a limited non-exclusive license to use Mobio Software in accordance with the documentation (including all updates, upgrades, new versions and replacement software) as described herein for your personal use only. You may not rent, lease or otherwise transfer your rights in the software to a third party. You must comply with the implementation and use requirements contained in all Mobio documentation accompanying the Services. If you do not comply with Mobio implementation and use requirements, you will be liable for all resulting damages suffered by you, Mobio and any third parties. You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. You acknowledge that Mobio owns all rights, title and interest in the Mobio Software.
3. Making a payment.
3.1. Payment Services. Upon proper authorization of a payment using the Software, we will use your information to conveniently enable you to make a payment to a Merchant using your Preferred Payment Source (the debit or credit card that you have selected on the Account). While Mobio will pre-populate a payment request form, the payment will not be submitted until you click "Submit" on the pre-populated web page.
3.2. You may modify a Preferred Payment Source through the Settings page within the Mobio Software. If your credit card account numbers change or your credit card expiration date changes, you are required to update your Account.
3.3. Taxes. It is your responsibility to determine what, if any, taxes apply to the payments you make, and it is your responsibility to collect, report and remit the correct tax amount to the appropriate tax authority.
4. Closing Your Account.
4.1. Closing Your Account. You may close your Account at any time by sending an email to: feedback@mobio.net. Following this request, the Services shall be disabled and all of your personally identifiable information will be removed from our servers.
5. Restricted Activities. In connection with your use of our Website, your Account, or the Services, or in the course of your interactions with Mobio, a User or a third party, you will not: Breach this Agreement, the Acceptable Use Policy or any other Agreement that you have entered into with Mobio (including a Policy); Violate any law, statute, ordinance, or regulation; Infringe Mobio copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy; Act in a manner that is defamatory, trade libellous, unlawfully threatening or unlawfully harassing; Provide false, inaccurate or misleading Information; Refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to us; or Use your Account or the Services in a manner that Mobio, Visa, MasterCard, American Express or Discover reasonably believe to be an abuse of the credit card system or a violation of Credit Card Association rules.
6. Disputes
6.1. Disputes by Mobio. If we have reason to believe that you have engaged in any Restricted Activities or otherwise breached any terms of this Agreement, we may take various actions to protect Mobio from liability. Mobio, in its sole discretion, reserves the right to terminate this Agreement, access to its Website, or access to the Services for any reason and at any time upon notice to you.
6.2. Disputed Payment. In the event that a transaction is processed that you have not authorized, you must pursue a Dispute/Claim with your credit card company and pursue your chargeback rights. Mobio is simply enabling a payment and as a result has no rights or ability to reverse charges that have been approved in accordance with Mobio payment procedures.
7. Dispute Resolution.
7.1. Contact Mobio First. If a dispute arises between you and Mobio, our goal is to learn about and address your concerns and if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Disputes between you and Mobio regarding our Services may be reported by providing notice to: feedback@mobio.net
7.2. Arbitration. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000.00 CDN, the party requesting relief may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. If a party elects arbitration, that party will 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 and 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; c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
7.3. Law and Forum for Disputes. Except as otherwise agreed upon by the parties or as described in section 7.2 above, you agree that a court located in Vancouver, British Columbia must resolve any claim or dispute you may have against Mobio. You agree to submit to the personal jurisdiction of the courts located within Vancouver, British Columbia for the purpose of litigating all such claims or disputes. This Agreement shall be governed in all respects by the laws of Canada without regard to conflict of law provisions.
7.4. Improperly Filed Litigation. All claims you bring against Mobio must be resolved in accordance with this Agreement. All claims filed or brought contrary to this Agreement shall be considered improperly filed and a breach of this Agreement. Should you file a claim contrary to section 7, Mobio may recover attorney’s fees and costs (including in-house attorneys and paralegals) provided that Mobio has notified you in writing of the improperly filed claim and you have failed to promptly withdraw the claim.
7.5. No Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
8. Liability.
8.1. Limitations of Liability. IN NO EVENT SHALL WE, OUR PARENT, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR WEB SITE, OUR SERVICE, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). If for any reason the limitation above is not enforceable, OUR LIABILITY, AND THE LIABILITY OF OUR PARENT, EMPLOYEES AND SUPPLIERS, TO YOU ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF THE ACTUAL AMOUNT OF DIRECT DAMAGES OR ONE HUNDRED CDN DOLLARS.
8.2. No Warranty. MOBIO, OUR PARENT, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR SERVICES AS IS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. MOBIO, OUR PARENT, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Mobio does not have any control over the products or Services that are paid for with our Service and Mobio cannot ensure that a buyer or a seller you are dealing with will actually complete the transaction or is authorized to do so. Mobio does not guarantee continuous, uninterrupted or secure access to any part of our Service, and operation of our site may be interfered with by numerous factors outside of our control. Mobio will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner but Mobio makes no representations or warranties regarding the amount of time needed to complete processing because our Service is dependent upon many factors outside of our control, such as delays in the banking system or the U.S. or international mail service.
8.3. Indemnification. You agree to defend, indemnify and hold Mobio, its Parent, Officers, Directors and Employees harmless from any claim or demand (including attorneys fees) made or incurred by any third party due to, or arising out of, your breach of this Agreement and/or your use of the Services.
8.4. Release of Mobio. If you have a dispute with one or more Merchants, you release Mobio (and our Officers, Directors, Agents, Joint Ventures and Employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
9. Miscellaneous.
9.1. Your Privacy. Protecting your privacy is very important to Mobio. Please review our Privacy Policy in order to better understand our commitment to maintaining your privacy as well as our use and disclosure of your information.
9.2. Trademarks/Copyrights. "Mobio" and all related logos, products and services described on our Website are either Trademarks or Registered Trademarks of Mobio or its Licensors. You may not copy, imitate or use them without prior written consent from Mobio. In addition, all page headers, custom graphics, button icons, and scripts are Service Marks, Trademarks, and/or Trade Dress of Mobio. All right, title and interest in and to the Mobio Website and any content thereon is the exclusive property of Mobio and its Licensors.
9.3. Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without prior written consent from Mobio. Mobio reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
9.4. Notices to You. You agree that Mobio may provide notice to you by posting it on our Website, emailing it to the email address listed in your Account, or mailing it to the street address listed in your Account. Such notice shall be considered to be received by you within 24 hours of the time it is posted to our website or email to you unless we receive notice that the email was not delivered.
9.5. Notices to Mobio. Notice to Mobio must be sent by electronic mail to: feedback@mobio.net
9.6. Complete Agreement. This Agreement sets forth the entire understanding between you and Mobio with respect to the Services. Sections 1, 2, and 5-9 will survive the termination of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.