Last Updated May 15, 2012 - Version 2.1
These Terms of Use (the "Terms")—together with the other documents referenced and linked below (collectively, the "Agreement")—describe your rights and responsibilities concerning your receipt of services offered by Mobio Technologies, Inc. ("Mobio"), including via software we distribute (collectively, the "Services").
By clicking the "I Accept" button when signing up to use our Services (or by otherwise using the Services) you have indicated your acceptance of the terms of the Agreement. Therefore, please take the time to review the Agreement carefully. If there are any provisions you do not agree with, that you can’t comply with, or that you don’t understand, you may not use the Services.
The Services are provided by Mobio. We can be contacted at 250 - 375 Water Street, Vancouver, British Columbia, Canada V6B 5C6. Questions about our Services, or regarding your rights and responsibilities under the Agreement, can be directed to feedback@mobio.net, or via post to the address listed above. In the Agreement, the words "we", "our" and "us" refer to Mobio.
1. Scope of Agreement. You understand and acknowledge that, in addition to the terms set out below, your use of the Services is also governed by our Privacy Policy, which you have read and understand, and to which you agree. You consent to the collection, use and disclosure of your personal information by us and/or third parties in accordance with the terms of and for the purposes set forth in our Privacy Policy (and in the case of third parties, in their privacy policies), and you agree that the terms of our Privacy Policy are reasonable.
You also agree that your use of the Services will also be subject to such other policies and procedures as may be conveyed to you by us from time to time, including via the Services or on the mobio.net website (the "Website"). Such policies and procedures, together with the Privacy Policy are herein incorporated by reference, mutatis mutandis. Any capitalized terms used herein, but not otherwise defined herein, have the meanings attributed to them in our Privacy Policy.
Finally, our Services (including the software) provides links to our and/or third-party services and websites (collectively and individually, "External Services"). Use of certain third party External Services may require you to accept additional terms of service, over which we have no control and for which we bear no responsibility. We do not endorse or make any representations or warranties regarding, and are not responsible in any manner for any External Services. Your dealings and interactions with, and participation in promotions of, such third parties, together with any terms, conditions, warranties or representations associated therewith, are solely between you and such third party.
2. Amending this Agreement. We reserve the right to unilaterally update or modify (collectively "change") this Agreement at any time and from time to time. We will notify you of any changes to this Agreement by posting notice of such changes on the Website, notifying you via the Services or sending notice to you via email. You agree that we have this right, and that your continued use of the Services following notice of such change means that you agree to and accept the amendments. If you do not agree, you must immediately stop using the Services, and notify us by sending an email to feedback@mobio.net that you are terminating this Agreement.
3. Our Services and Software. We provide software that allows you to earn points when you perform certain actions from within the software, and to redeem those rewards.
4. Service Eligibility:
4.1 Your Eligibility. You hereby represent and warrant that, and you may use the software and create an account to us our s Services only if, you: (a) can lawfully enter into and form contracts in accordance with local laws; and (b) have not previously entered into an agreement relating to the Services that we terminated.
Notwithstanding anything else contained herein, we reserve the right to refuse to permit access to our software, the opening of an account, or the provision of Services, to anyone at any time for any reason.
4.2 Other Equipment and Services. In addition to our software, to access additional services certain equipment (eg. a computing device) and services (eg. internet access) are required. Additionally, certain aspects of our Services may also require that you obtain services from third parties (eg. an account with Twitter). You are responsible for securing, at your own expense, all equipment and other services necessary to use any of our Services at your sole cost.
4.3 Account Sign-Up. Once you download the software, you will be prompted to provide certain information to us so we can confirm your eligibility for our Services. The nature of our service offering depends on the information you provide, so you agree to: (a) provide true, accurate, current and complete information as prompted by all requests and forms provided by us, whether through the Services or otherwise ("Data"); and (b) maintain and promptly update the Data to keep it true, accurate, current and complete. If you provide any Data that is (or which we have reasonable grounds to suspect is) untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of some or all of our services.
4.4 Account Responsibility. You agree and understand that you are responsible for maintaining the confidentiality of all credentials associated with your account; you may not transfer or share your account or those credentials with anyone. Accordingly, you acknowledge that you will be solely responsible for all activities that occur with the use of your account credentials.
4.5 Your Rights Regarding the Services. Subject to this Agreement, upon appropriate registration of your account you may access and use the Services you have been authorized or licensed by us to access and use, during the term of this Agreement. Unless we have given you specific written permission to do so, you may not assign (or grant a sub-licence of) your rights to use the software or other services, or grant a security interest in or over your rights to use the software or other services, or otherwise transfer any part of your rights to use the software or other services to any third person.
5. Redeeming Points. You may be permitted to earn points when you perform certain actions from within the software, and to redeem those rewards. While this Agreement is in force, you may redeem points through certain designated areas of the software in which we may offer various items with assigned point values. When you select a particular item, provided you have enough points to acquire that item, the points in your account will be reduced by the point value designated for such item. ALL REDEMPTIONS OF POINTS ARE DEEMED FINAL. You acknowledge and agree that redemptions of points are not refundable, in whole or in part. You are fully responsible and liable for all redemptions of points through your account, including, without limitation, any unauthorized redemptions. POINTS HAVE NO VALUE OUTSIDE OF OUR SERVICES, AND YOU HAVE NO CLAIM, RIGHT, TITLE, PROPRIETARY OR OWNERSHIP INTEREST IN ANY POINTS. We shall not be liable in any manner for the destruction, deletion, modification, impairment, hacking of or any other damage or loss of any kind caused to the points you have received (if any), including, but not limited to deletion of points upon the termination or expiration of your account.
6. Submissions. We do not claim any ownership interest in any material or data uploaded or otherwise submitted with your account credentials or that you otherwise submit to us (such material being referred to as "Submissions"). However, you hereby grant to us (and to our affiliated companies and sublicensees) permission to use your Submissions in connection with the delivery of the Services and the operation of our business, including without limitation, a worldwide, royalty-free, sub-licensable and transferable non-exclusive right to store, use, copy, distribute, transmit, communicate by telecommunication, publish, publicly display, publicly perform, reproduce, edit, translate, adapt and reformat your Submissions as required to fulfil our responsibilities to you under this Agreement.
7. Ownership. Aside from your Submissions, the software and all of the content on or made available via the Services, including without limitation all of the page headers, images, footers, links, illustrations, graphics, animations, audio clips, video clips, multimedia clips, interfaces and text (collectively "Material") is the property of us or our licensors—as are all related trade-mark, copyright, patent and/or other intellectual property rights.
The Material is protected under copyright, trade-mark and other laws of the United States, Canada and other countries, and we own all copyright in the selection, co-ordination, arrangement and enhancement of the Material.
MOBIO, INTERACTION, INSIDER, GET IN NOW, IT’S BETTER ON THE INSIDE, and the Mobio Insider Logo are trade-marks and/or trade names of Mobio. All other company names, brand names, trade-marks and logos are the property of their respective owners. No part of the Services will be construed as granting any license or right to use any intellectual property (whether by implication or otherwise), including our trade-marks, except with the express written permission of us or such other party that may be the owner thereof.
8. Permitted Use of the Services. You may only use the Services for your personal, non-commercial use. You may download, print and store selected portions of the Material provided that you: (a) only use these copies of the Material for your own personal, non-commercial use; (b) do not copy or in any way reproduce or post Material, or broadcast or redistribute the Material in any media or through any other channel; (c) do not modify or alter the Material in any way; and (d) do not delete, obscure or change any copyright, trade-mark or other proprietary notice contained in the Material.
9. Prohibitions. Any use of any of the Material or of the Services, whether in whole or in part, is strictly prohibited except only and to the limited extent expressly permitted above and herein.
10. Your Representations and Warranties:
In using the Services, you will at all times act reasonably, and in good faith.
You additionally agree, represent and warrant that you will not: (a) bypass or attempt to bypass any measures we may use to prevent or restrict access to the Services; (b) interfere or attempt to interfere with the proper functioning of the Services; (c) impersonate or attempt to impersonate any person or entity, or falsely state or otherwise misrepresent yourself; or (d) provide false Data or Submissions.
You further agree, represent and warrant that: (e) all rights in and to the Submissions (including, without limitation all intellectual property and other proprietary rights), are owned by you or you have full authority by way of the necessary licenses, permissions, waivers and consents to (i) use the Submissions, and upload the Submissions for use by you and by other Service users with whom the Submissions are made available, and (ii) to grant us the permissions contained herein; (f) the Submissions do not contain any viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs; (g) the Submissions do not contain any unlawful, hateful, objectionable, harmful, threatening, discriminatory, abusive, harassing, offensive, libelous, defamatory, slanderous, immoral, pornographic, indecent, or obscene material, or material that is otherwise illegal, fraudulent or objectionable; (h) the Submissions do not advocate or describe any illegal activity; (i) you will not use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device; (j) you will not make network connections to any users, hosts, or networks unless you have permission to communicate with them; (k) you will not frame, mirror, scrape, reverse engineer, deconstruct or mine any of the Material except with our prior written consent; (l) you will not (whether directly or indirectly) use any device, software or routine or otherwise to interfere or attempt to interfere with the proper working of the Services; (m) you will not take any action that places a disproportionately large load on the infrastructure of the Services; (n) you will not use the Services to advertise or solicit for any commercial or other purpose competitive with the Services; and (o) your Submissions and their use as contemplated hereunder and otherwise via the Services will not conflict with or violate any other agreement between you and any other party, and do not conflict with or violate any applicable laws (including as relating to intellectual property, confidentiality, personality, privacy or proprietary rights).
You acknowledge that, although we may monitor or review Submissions from time to time, we are under no obligation to do so and we have the right (but not the obligation) to remove or refuse to publish or otherwise provide access to your Submissions to the extent that they do not comply with this Agreement.
11. Confidentiality. Portions of the Services depend on services provided by our technology partners. We have implemented commercially reasonable technical and organizational measures designed to secure the Services, Data and Submissions under our control from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat our precautions or those taken by our partners; similarly, we cannot guarantee that unauthorized third parties will never be able to access or use such information for improper purposes. Transmissions to us (whether effected through the Services or otherwise) may not be secure, and do not create any fiduciary or other relationship or duty of any kind. You acknowledge that you use the Services at your own risk.
12. Support and Reporting. In the event that you have difficulties in using accessing the Website or otherwise using our Services, you can contact us at feedback@mobio.net, or via the "feedback" button in the software, for assistance.
13. Closing Your Account; Agreement Suspension and Termination:
If you wish to close your account and terminate this Agreement, you will be required to contact us at feedback@mobio.net to advise us of your intention. Neither failing to log into the Services, failing to earn or redeem points, failing to upload Submissions or failing to otherwise access or consume services made available to you will, in and of itself, constitute your termination of this Agreement.
We may, at any time and for any reason and in our sole discretion, change, suspend or terminate (whether temporarily or permanently) the Services or the Website (or any part thereof), or terminate this Agreement, without any prior notice or liability to you or any other person. Additionally, your rights under this Agreement will terminate automatically without notice from us if you fail to comply with any term(s) of this Agreement.
If this Agreement is terminated by you or us for any reason, then: (a) this Agreement will nevertheless continue to apply and be binding upon you in respect of your Submissions and use of the Services prior to termination; (b) you may be prevented from using the Services, redeeming rewards points, or accessing the Website, your account details, or any files or other content which is contained or attached to your account, all of which may be deleted by us; (c) we will take steps to remove all of your personally identifiable information will be removed from our production servers; (d) we may continue to use and disclose your Submissions as outlined herein; and (e) you will cease all use of the Services, including the software. We will not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.
14. Disclaimers:
You understand and agree that temporary interruptions of the Services may occur as normal events. You further understand and agree that we have no control over third party networks you may access (or we may rely upon) in the course of your use of (or our delivery of) the Services; therefore, delays and disruption of the Services and any transmissions related thereto are completely beyond our control, and we will have no liability therefore.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MOBIO HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MOBIO DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED BY OR ASSOCIATED WITH THE WEBSITE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR WEBSITE OR THE AVAILABILITY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE, WEBSITE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MOBIO EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. OTHERWISE, THESE LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. Limitation of Liability:
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL MOBIO BE LIABLE FOR PERSONAL INJURY OR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE WEBSITE OR ANY OTHER SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF MOBIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
Notwithstanding the foregoing, in no event will our total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of five Canadian dollars (CAD $5.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
16. Indemnification:
You agree to indemnify and save harmless Mobio, our affiliates, and our respective officers, directors, employees, consultants, representatives, members and agents (in this section 16, "we" and "us") from and against any claim, cause of action, demand, cost, loss, expense or liability, including without limitation reasonable professional fees, brought against or suffered or incurred by us as a result of your use of the Services in breach of this Agreement. Without limiting the foregoing, you assume any and all liability for your Submissions, and you agree to defend, indemnify and hold us harmless from and against any and all third-party claims, actions, proceedings, damages and expenses (including without limitation lawyer fees on a solicitor-client basis) and costs, arising out of the breach or alleged breach of a covenant, representation or warranty in this Agreement.
When we are threatened with a suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us as provided above; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. In addition, in the event we are made a party to any claim, suit or action relating to or arising from any services offered by us that is: (a) initiated by you, which is unsuccessful; or (b) initiated by a third party, who is suing you; you will reimburse us at a reasonable rate for all personnel time and expenses expended by us in response to such claim, suit or action including without limitation, all attorney fees and expenses incurred by us with respect to such response. This defence and indemnification obligation will survive this Agreement and your cessation of use of the Services.
17. Further Assurances. Upon our request and at our cost, you agree to provide such information and documents, do such additional things, and sign such further documents connected with the licenses, releases and waivers contemplated by this Agreement.
18. Resolving Disputes:
18.1 Contact Mobio First. If a dispute arises between you and us, 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 must be reported by providing notice to: feedback@mobio.net
18.2 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 of its choice; however, the ADR provider and the parties must comply with the International Arbitration Rules of Procedure of the BCICAC, excepting: 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.
18.3 Forum for Disputes. Except as otherwise agreed upon by the parties or as described in section 18.2 above, you agree that only a court located in Vancouver, British Columbia may resolve any claim or dispute you may have against us. You irrevocably 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. However, you agree that nothing herein precludes our application for injunctive remedies or other urgent legal relief in any jurisdiction.
18.4 Governing Law. This Agreement shall be governed in all respects by the laws of the Province of British Columbia (and the laws of Canada applicable therein) excluding its conflict of laws rules and all private international laws. You further agree that despite being available from a variety of jurisdictions, the Services (including access to the software and the Website) will be deemed solely based in the Province of British Columbia, Canada; and that the Services and the Website will be deemed to be passive in nature and not giving rise to personal jurisdiction over Mobio in jurisdictions other than the Province of British Columbia.
18.5 Timing of Claims. You agree that any claim or cause of action you may have arising from, connected with, or relating to this Agreement or the Services must be commenced in a court of competent jurisdiction in the Province of British Columbia within six (6) months after the claim or cause of action arises, after which time the claim or cause of action is forever barred.
18.6 Improperly Filed Claims. All claims you bring against us 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 this Section 18, 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.
19. Severability. The terms of this Agreement are severable. If any provision of this Agreement is determined to be unenforceable or invalid, then such provision will be enforced to the fullest extent permitted by applicable law, and such determination will not affect the validity and enforceability of any other remaining provisions.
20. Other Jurisdictions. Use of the Services is unauthorized in jurisdictions that do not give effect to this Agreement or where access to or use of the Services may be illegal or prohibited. Those who choose to access the Services from such locations do so on their own initiative, at their own risk and are responsible for compliance with local laws, if and to the extent local laws are applicable.
21. Waiver. No consent or waiver by either party to or of any breach or default by the other party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that party. No consent or waiver will be effective unless in writing and signed by both parties.
22. Enurement. The provisions of this Agreement will enure to the benefit of and be binding upon each of us and our successors and assigns and related persons, and you and your heirs, executors, administrators, successors, permitted assigns, and personal representatives. You may not assign this Agreement or your rights and obligations under this Agreement without our express prior written consent which may be withheld in our sole discretion. We may assign this Agreement and its rights and obligations under this Agreement without your consent or notice to you.
23. Survival. The provisions of Sections 5—7, 10, 11 and 13—24 will survive termination of the Agreement, howsoever occasioned.
24. Entire Agreement. This Agreement, together with those documents incorporated or referred to herein, constitute the entire agreement between you and us relating to your use of the Services and Submissions, and supersedes any prior understandings or agreements (whether electronic, oral or written) regarding the subject matter, and cannot be amended or modified except by our express and explicit agreement to modify this Agreement in writing, or by us making such amendments or modifications available to you pursuant to a modification of this Agreement as permitted herein. No Mobio employee or agent has the authority to vary this Agreement. In the event of a conflict between the provisions of these Terms and the provisions of any other document or agreement incorporated or referenced herein, these Terms will govern to the extent of the inconsistency.