of MobiSystems, Inc.
4501 Mission Bay Drive, Suite 3A
San Diego, CA 92109, USA
[email protected]
("us", "we", or "our")
Please read these Terms of Use ("Terms") carefully before using the mobisystems.com, officesuite.com, pdfextra.com, and mobidrive.com websites, the OfficeSuite/ Pro/ Trial, MobiDrive, File Commander, PDF Extra, Oxford Dictionary of English, Oxford Dictionary and Talk & Translate mobile applications for Android and iOS, the OfficeSuite, MobiDrive and PDF Extra software for Windows Desktop, as well as a number of mobile dictionaries and reference sources ("Service"), as they represent a legally binding contract between you and MobiSystems, Inc. We reserve the right to update them, and their current version will be at your disposal at any time on the Service.
In order to access and use the Service, you have to agree to be bound by these Terms as of the first date of such access or use. They apply to all visitors, users, and subscribers to the Service. If you are entering into this contract on behalf of a company, organization, or another legal entity ("Entity"), you are agreeing to these Terms for that Entity and representing to us that you have the authority to bind such Entity to these Terms, in which case the terms "subscriber", "you", "your" shall refer to such Entity.
Please note that the use of our Service is associated with the collection, use, processing, and storage of your personal data, so please also read our Privacy Policy which aims to acquaint you with the main moments related to the processing of your personal data.
I. Free Download
1.1 Some Services or a part of them may be offered for free solely at MobiSystems, Inc.’s own discretion. Please note that in these cases the Service is provided with some limitations. If you want to use the full Service, you must proceed by enrolling in a paid subscription or one-off payment plan, and/ or start the free trial, if available. For example, OfficeSuite and PDF Extra offer a free download for PC, but both Services are provided with limitations on their functionalities. In MobiDrive we offer a certain amount of free cloud space, provided that, you open an account with us ("Account").
1.2 MobiSystems, Inc. reserves the right, at any time and without notice, to: (i) modify these Terms and the conditions of the Service offered, and/ or (ii) cancel the Free Download.
II. Free Trial (valid only if initiated from the above-enumerated websites)
2.1 MobiSystems, Inc. may, at its sole discretion, offer a free trial for a limited period of time ("Free Trial"). In order to sign up for the Free Trial, you will be required to enter your billing information (credit or debit card number or PayPal account credentials).
2.2 By providing your billing data you hereby represent and warrant that: (i) you have the legal right to use them in connection with any subscription/ one-off payment made; and (ii) the data and information you supply to us is true, correct, and complete. As the Service is employing the use of third-party services for the purpose of facilitating payment and the completion of purchases/ subscriptions, by submitting your data and information, you hereby grant us the right to provide your data and information to these third parties subject to our Privacy Policy.
2.3 If you do not enter your billing information, you will not be able to start the Free Trial. If you enter your billing information when signing up for the Free Trial, you will not be charged by MobiSystems, Inc. until the Free Trial has expired. On the last day of the Free Trial period, you will be automatically charged the applicable fee for the type of Service plan you have selected unless you cancel it.
2.4 MobiSystems, Inc. reserves the right, at any time and without notice, to: (i) modify these Terms and the conditions of the Free Trial offer, or (ii) cancel the Free Trial offer.
III. Account
3.1 When you create an Account with us, you guarantee that you are at least eighteen years old or at the age of majority in the state or jurisdiction in which you reside, and that the information you provide us is accurate, complete, and current at all times. This means that you are obliged to update your personal data and information with any changes that may occur as soon as possible. Inaccurate, incomplete, or obsolete information may result in the termination of your Account. You also guarantee that you will use your Account and the Service in compliance with all the applicable laws and regulations, as well as with these Terms, our Privacy Policy, and our End-User License Agreement.
3.2 In order to open your Account you have to enter your true names. You may not use as a username the name of another person or Entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or Entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar, or obscene.
3.3 You are responsible for maintaining the confidentiality of your Account and password, including the access to your computer and/ or Account. You agree to accept responsibility for any and all activities or actions that occur under your Account and/ or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your Account.
3.4 In addition, by creating an Account, you agree and subscribe to newsletters, marketing or promotional materials, and other information we may send. However, you may opt out/ object of receiving any or all of these communications from us by following the unsubscribe link in any email we send, or the instructions provided in our Privacy Policy.
3.5 Please be advised that the deletion of your Account does not represent termination of your subscription to the Service. Therefore, before deleting it (your Account), please cancel your subscription/ s. If your Service is canceled (whether by you or by us) during the Free Trial or the chosen subscription period, your right to access and use the Service upon the expiration of the Free Trial/ the subscription period will be limited to the Free Download terms.
3.6 Should you have any queries referring to your Account and/ or MobiSystems, Inc. Service please do not hesitate to contact us here. MobiSystems, Inc. provides customer support, which is available to you 24/ 7 with a response time of 2 business days on most customer inquiries.
IV. Fees. Fee Changes
4.1 Some Service is offered under a subscription plan. In this case, you will be billed in advance on a recurring and periodic basis ("Billing Cycle"). Billing cycles are set either on a weekly, monthly or annual basis, depending on the type of subscription plan you select when you subscribe. At the end of each Billing Cycle, your subscription will be automatically renewed under the exact same conditions, unless you cancel it or MobiSystems, Inc. cancels it, or if the price of the subscription is increased, you will be notified thereof. The increase will apply to the next payment due from you after the notice. If you do not wish to pay the increased price for a subscription, you may cancel the subscription plan as described in these Terms, and you will not be charged further amounts for the subscription, provided that, you have notified us before the end of the current billing period. Where we increase the price of a subscription plan and consent is required, we, ourselves or via our partners, may cancel your subscription unless you agree to the new price. If your subscription is canceled and you later decide to re-subscribe, you will be charged at the then-current subscription rate. You may cancel your subscription renewal by following the steps described here.
4.2 A valid payment method, including a credit/ debit card or PayPal account credentials, is required to process the payment for your subscription/ s. You are responsible for ensuring that the details you provide us with are always correct and complete, and for timely informing us of any changes to the information you have provided. You can access and update the data and information you have provided us via your Account settings.
4.3 By submitting the above billing information, you automatically authorize MobiSystems, Inc., itself or via third-party service providers, to charge all subscription fees incurred through your Account to any such payment method. Should automatic billing fail to occur for any reason, MobiSystems, Inc. will issue an electronic invoice indicating that you must proceed manually within a certain deadline period, with the full payment corresponding to the billing period as indicated on the invoice. Please note that, if no payment is received from you, Section 5.3 shall apply.
4.4 MobiSystems, Inc., at any time and at its sole discretion, may modify the subscription fees for the Service. Any subscription fee change will become effective at the end of the then-current Billing Cycle under the conditions of item 4.1 above
4.5 Except when required by law, subscription fees paid are non-refundable.
V. Termination/ Close of Account. Service Cancellation
5.1 Your Account will be automatically suspended after 6 months of inactivity. Therefore, if you wish to terminate your Account, you may simply discontinue using the Service. Before closing your Account, we will make reasonable efforts to notify you via the email address you have provided to us with instructions on how to retrieve your data and information in a commonly used and machine-readable format and will keep your Account and files for another 2 months. To continue keeping your files, please sign in to reactivate your Account.
5.2 In case of your Account`s deletion (either by us or by you), you will not be entitled to MobiDrive Service at all, and all your data stored therein will be permanently deleted by us with no liability whatsoever for the loss of your data and information (unless we are required by law to keep it, return it, or transfer it to you or to a third party, identified by you). You must be responsible and have a regular backup plan as we won’t be able to retrieve your data and information once the Service is canceled and/ or your Account is closed.
5.3 To cancel your Service plan, please follow the steps described here. Please note that in case of cancellation of the Service you have to reduce your data stored in MobiDrive to the size of the free storage space currently provided by us in the timeframe, specified in the link above, otherwise, we will reduce it unilaterally to this size with no liability whatsoever for the loss of your data and information.
5.4 We may suspend or cancel the Services if we do not receive an on-time, full payment from you. Suspension or cancellation of the Service for non-payment could result in a loss of access to and use of your Account and your data and information. We may disable and bar access to your Account and the Service, at our sole discretion, without prior notice or liability whatsoever, including but not limited to for a breach of these Terms, third party`s rights, or the applicable law. We also reserve the right to cancel orders or refuse Service at our sole discretion.
5.5 Please note that uninstallation of the Service from your devices or your inactivity does not automatically cancel the subscription plan chosen or the Free Trial already started by you.
5.6 All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, confidentiality, and dispute resolution provisions.
VI. Refunds
6.1 If you are not satisfied with our Service, you can request a refund within 30 days as of its activation date ("30-Day Money-Back Guarantee") under the below conditions.
6.2 Plans purchased outside of the MobiSystems, PDF Extra, MobiDrive, or OfficeSuite sites, including, but not limited to, third parties` stores (Google, Apple, Microsoft, Amazon, Samsung, Huawei, etc.), marketplaces, affiliates, resellers, or partners, do not qualify for the 30-Day Money-Back Guarantee. If you have bought our Service outside of the MobiSystems or OfficeSuite sites, please liaise with the marketplace where the purchase is made and ask about their return policy.
6.3 Any refunds will be applied to the same Account, to the same payment method used for the purchase. Service that has been performed or consumed is non-refundable.
VII. Content
7.1 Our Service allows you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material ("Content"). You are responsible for the Content that you make available on or through the Service, including its legality, reliability, and appropriateness.
7.2 By uploading Content on or through the Service, you represent and warrant that: (i) the Content is yours (your own) and/ or you have the right to use it; (ii) that the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other right of any person or Entity whatsoever; (iii) that your Content does not violate any law or regulation, irrespective of the precise subject matter or nature of that law/ regulation; and (iv) your Content is and shall always be in compliance with these Terms.
7.3 By posting Content on or through the Service you agree not to, and not to allow third parties to, use the Service: (A) to violate, or encourage the violation of the legal rights of others (for example, this may include allowing third party to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act); (B) for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website); (C) to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; (D) to interfere with the use of the Service, or the equipment used to provide the Service, by customers, authorized resellers, or other authorized users; (E) to disable, interfere with or circumvent any aspect of the Service; (F) to use the Service, or any interfaces provided with the Service, to access any other product or service in a manner that violates the terms of service of such other product or service; (G) to place an advertisement of any products or services in the Service except with our prior written approval; or (H) use or attempt to use the Service to: (i) upload, download, stream, transmit, copy or store any information, data, or materials, or engage or assist in any activity that may: (a) infringe the intellectual property rights or other rights of any third party; (b) contain any unlawful, harmful, threatening, abusive, defamatory or otherwise objectionable material of any kind, (c) harm or attempt to harm others; (d) have the potential to incite or produce conduct that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically, religiously or sexually discriminatory or otherwise objectionable; (e) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or (f) impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; (ii) in any way violate any applicable local, national or international law or regulation; (iii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the use of the Service; (iv) upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, or chain letters; or (v) collect or store personal data without the knowledge and express consent of the data subject.
7.4 In addition to the above, you hereby agree not to even try to do any of the following in connection with the Service/s: (i) probe, scan, or test the vulnerability of any system or network; (ii) breach or otherwise circumvent any security or authentication measures; (iii) access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you haven't been invited to; (iv) interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services; (v) access, search, or create accounts for the Services by any means other than our publicly supported interfaces (for example, "scraping" or creating accounts in bulk); (vi) send altered, deceptive or false source-identifying information, including "spoofing" or "phishing"; (vii) promote or advertise products or services other than your own without appropriate authorization; (viii) abuse referrals or promotions to get more storage space than deserved or to sell storage space received from referrals or promotions; (ix) sell the Services unless specifically authorized to do so; (x) publish, share, or store materials that constitute child sexually exploitative material (including material which may not be illegal child sexual abuse material but which nonetheless sexually exploits or promotes the sexual exploitation of minors), unlawful pornography, or are otherwise indecent; (xi) publish, share, or store content that contains or promotes extreme acts of violence or terrorist activity, including terror propaganda; (xii) advocate bigotry or hatred against any person or group of people based on their race, religion, ethnicity, sex, gender identity, sexual orientation, disability, or impairment; harass or abuse our personnel or representatives or agents; (xiii) use the Services to back up, or as infrastructure for, your own cloud services; (xiv) use the storage space provided by the Services as the basis for cryptographic proof-of-space or proof-of-storage, or any similar proof system.
7.5 You retain all your rights to any Content you submit, upload, or display on or through the Service and you are responsible for protecting those rights. Solely for the purposes of providing, operating, and improving the Services, and for performing our obligations hereunder, when you upload Content to the Service, you grant us a nonexclusive, worldwide, fully paid-up, and royalty-free, perpetual, unlimited, irrevocable, sublicensable, and transferrable license to use, reproduce, publicly display, distribute, modify (so as to better showcase your Content, for example), publicly perform, translate, encrypt, cache, index, and otherwise exploit it in any manner whatsoever.
7.6 We take no responsibility and assume no liability whatsoever for the Content you or any third-party posts on or through the Service, because MobiSystems, Inc. is not moderating, monitoring, modifying of anyhow (neither via algorithmic decision-making review, nor via human review) interfering with your Content, therefore, it will not have actual knowledge of illegal activity in your Content and will not be aware of facts or circumstances from which the illegal activity in your Content is apparent. Upon obtaining such knowledge or awareness, we will act expeditiously to remove or to block/ disable access to the illegal Content.
7.7 In addition to the above, we kindly ask you to report to us any illegal Content you have become aware of, including but not limited to: (i) an explanation of the reasons why you consider the information in question to be illegal; (ii) a clear indication of the electronic location of that information, in particular the exact URL or URLs, and, where necessary, additional information enabling the identification of the illegal Content; (iii) your name and electronic mail address, except in the case of information considered to involve one of the offenses referred to child sexual abuse, exploitation, pornography, etc. under the Directive 2011/93/EU; (iv) a statement confirming your good faith belief that the information and allegations contained therein are accurate and complete. Notices that include the above elements shall be considered to give rise to our actual knowledge or awareness in respect of the specific item of information concerned and we commit to act swiftly. Where the notice contains your electronic mail address, we shall promptly send you a confirmation of its receipt. We shall also, without undue delay, notify you of our decision in respect of the information to which the notice relates.
7.8 MobiSystems, Inc. reserves the right to remove or to block/ disable access to any Content deemed unacceptable as per the applicable law and/ or these Terms, as well as to close Accounts of repeat offenders. When we decide to remove or block/ disable access to your Content or specific items of information, we will make reasonable efforts to inform you of this decision and the reasons behind it, and the available redress possibilities to contest the decision, in view of the negative consequences that any such decision may have for you, including as regards the exercise of your fundamental rights. To this end, we have implemented an internal complaint-handling system (available here) and we handle complaints submitted to our customer support in a timely, diligent, and objective manner.
7.9 Where we become aware through, in particular, our own-initiative investigations or notices, submitted to us by individuals or entities, of any information giving rise to a suspicion that a serious criminal offense involving a threat to the life or safety of persons has taken place, is taking place or is likely to take place, we shall promptly inform the law enforcement or judicial authorities of the country concerned of our suspicion and provide all relevant information available.
VIII. Intellectual Property
8.1 The Service and its original content (excluding the Content provided by you), its features, and functionalities are and will remain at all times the exclusive property of MobiSystems, Inc. and its licensors. All rights to the Service, including all associated copyrights, patents, trade secret rights, trademarks, and other intellectual and industrial property rights, are reserved by MobiSystems, Inc.
8.2 Nothing contained in our Service may be used in connection with any other product or service without the prior written and explicit consent of MobiSystems, Inc. You may not copy, distribute, modify, reverse engineer, transmit, reuse, download, repost, or use our Service and its original content, whether in whole or in part, for commercial purposes or for personal gain, without prior written permission from MobiSystems, Inc.
8.3 MobiSystems, Inc. shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Service, or otherwise use any suggestions, enhancement requests, recommendations, or other feedback we receive from you, or other third parties acting on your behalf. MobiSystems, Inc. also reserves the right to seek intellectual property protection for any features, functionality, or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations, or other feedback we receive from you, or other third parties acting on your behalf.
IX. License. Noncommercial Use
9.1 The Service is licensed, not sold, and MobiSystems, Inc. reserves all rights to the Service not expressly granted herein, whether by implication, estoppel, or otherwise. Nothing in these Terms will be construed or interpreted as granting you any rights of ownership or any other proprietary right in and on the Service.
9.2 The Service is for your personal and noncommercial use, unless you are a family, team, or business plan subscriber, or have commercial use rights under a separate agreement. For certain devices, such Service may be pre-installed for your personal, non-commercial use.
9.3 Under these Terms and our End-User License Agreement, with which you will be required to agree when you download and install the Service, we grant you the right to use one copy of the Service per device for the number of devices, defined in your plan, on a worldwide, non-exclusive basis for the agreed period, including any extensions or renewals of this period. Any reproduction or redistribution or merchandise not in accordance with the relevant license terms, usage rules, and applicable law is expressly prohibited and may result in severe civil and criminal penalties. Violators risk prosecution to the maximum extent permitted by the law.
9.4 This license does not give you any right to, and you may not: (i) use any activation code and/ or license key for more than the number of devises, specified as per your plan, nor circumvent or bypass any technological protection measures in or relating to the Service; (ii) separate components of the software or Service for use on different devices; (iii) transfer, redistribute, or sublicense the Licensed Service (iv) decompile, reverse engineer, dissemble, attempt to derive the source code of, or decrypt the Service; (v) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Service; (vi) violate any applicable laws, rules or regulations in connection with your access or use of the Service; (vii) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Licensor or its affiliates, partners, or licensors; (viii) use the Service for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (ix) make the Service available over a network or other environment permitting access or use by multiple users at the same time; (x) use the Service for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by the Licensor; (xi) use the Service to send automated queries to any website or to send any unsolicited commercial email; or (xii) use any proprietary information or interfaces of Licensor or other intellectual property of Licensor in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Service, unless explicitly authorized to do so. (xiii) enable access to the Service by an unauthorized third party; (xiv) circumvent storage and/ or traffic limits.
9.5 Except as expressly provided under these Terms, MobiSystems, Inc. does not grant you a license or any other right of any type under any patent, copyright, trade secret, trademark, or other intellectual property, owned or controlled by MobiSystems, Inc. or any related Entity, including but not limited to any trade name, trade dress, logo, or equivalent.
9.6 For more information on the license and the noncommercial use of the Service we provide please consult our End-User License Agreement, which is incorporated herein by reference.
9.7 Service may contain or be provided with components that are subject to the terms and conditions of “open source” software licenses ("Open-Source Software"). If your use of the Service subjects you to the terms of any license governing the use of Open-Source Software, then information concerning such Open-Source Software and the applicable license is incorporated or referenced herein. To the extent required by the license to which the Open-Source Software is subject, the terms of such license will apply in lieu of these Terms and of the terms of the End-User License Agreement with respect to such Open-Source Software.
X. Links to Other Web Sites and/ or Services
10.1 Our Service may contain links to third-party websites or services that are not owned or controlled by MobiSystems, Inc. MobiSystems, Inc. has no control over and assumes no responsibility for the content, privacy policies, or practices of any third-party websites or services. We do not warrant the offerings of any of these Entities/ individuals or their websites.
10.2 You hereby acknowledge and agree that MobiSystems, Inc. shall not be held responsible or liable, directly, or indirectly, for any damage or loss, caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services, available on or through any such third-party websites or services. We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.
10.3 Any third-party terms do not modify any of these Terms. You are solely responsible for your dealings with third parties. MobiSystems, Inc. does not license any third-party intellectual property right to you and is not responsible or liable to you or others for information or services provided by any third party.
XI. Promotions
Any contests, sweepstakes, or other promotions (collectively, "Promotions") made available through the Service may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will prevail, and they may vary per marketplace or region.
XII. Updates, Availability, Errors, and Inaccuracies
We are constantly updating our Service and/ or implementing some new features and/ or functionalities. From time to time and without your separate permission or consent, we may deploy an upgrade or update of, or replacement for, any Service (“Update”). Sometimes these updates are delivered automatically to you, but it is possible to turn them off. We may experience delays in updating information on the Service and in our advertising on other websites. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Some features and/ or functionalities may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service. Some Services may be unavailable from time to time or may be offered for a limited time. Availability can be affected by region. We, therefore, reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice. We also reserve the right to stop offering some Service in case of product takedowns and/ or legal takedowns (the latter could be due to: (i) an allegation of infringement, or actual infringement, of any third-party IP right; (ii) an allegation of, or actual violation of, third party rights; or (iii) an allegation or determination that the Service does not comply with the applicable law).
XIII. Indemnification
13.1 If our Service has become, or, in our opinion, is likely to become, subject of legal takedown, we may, at our discretion and expense: (i) procure for you the right to continue using the Service under certain conditions; (ii) replace or modify a Service; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by MobiSystems, Inc., terminate your plan to the Service and repay you, on a pro-rata basis, any fees previously paid to MobiSystems, Inc. for the corresponding period after the termination. We will have no liability or obligation hereunder with respect to any legal takedown if such is caused in whole or in part by: (a) anyone other than MobiSystems, Inc. or MobiSystems, Inc. personnel; (b) modifications to the Service not provided by us; (c) combination, operation or use of the Service with other hardware or software where a Service would not be infringing itself; or (d) use of the Service in breach of these Terms and/ or End-User License Agreement. The provisions of this Section 13.1 state the sole, exclusive, and entire liability of MobiSystems, Inc. to you and constitute your sole remedy with respect to a legal takedown.
13.2 You agree to defend, indemnify and hold harmless MobiSystems, Inc. and its licensees, licensors, employees, directors, officers, agents, and contractors, from and against any and all claims, actions, proceedings, and suits brought by a third party, and any and all damages, obligations, losses, liabilities, costs or debts, and expenses (including but not limited to attorney's fees), resulting from or arising out of: (i) your use and access to the Service by you or by any person, using your Account and password; (ii) a breach of these Terms, and the End-User License Agreement, or (iii) your Content uploaded on or through the Service.
XIV. Limitation of Liability
14.1 IN NO EVENT SHALL MOBISYSTEMS, INC., NOR ITS DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, OR PARTNERS, BE LIABLE FOR PERSONAL INJURY OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA AND INFORMATION (INCLUDING ANY CORRUPTION, DEGRADATION OR UNAVAILABILITY), GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (II) ANY CONDUCT, CONTENT OR ANY EXTERNAL SERVICE OF ANY THIRD PARTY ON THE SERVICE; (III) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND EVEN IF MOBISYSTEMS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THESE LIMITATIONS AND EXCLUSIONS APPLY TO ANYTHING, OR ANY CLAIMS RELATED TO THESE TERMS, THE SERVICE, OR THE SOFTWARE RELATED TO THE SERVICE.
14.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, MOBISYSTEMS, INC.’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THESE TERMS AND/ OR THE SERVICE IN NO EVENT SHALL EXCEED THE PROPORTIONATE PART OF THE FEE PAID THAT CORRESPONDS TO THE UNUSED PERIOD OF YOUR PLAN, WITHIN WHICH THE FIRST EVENT GIVING RISE TO SUCH LIABILITY OCCURS. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED.
XV. Disclaimer
15.1 YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. MOBISYSTEMS, INC. AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND PARTNERS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO THE SERVICE, THIRD PARTY CONTENT, AND ANY EXTERNAL SERVICES. WE PROVIDE THE SERVICES ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE". TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, WE DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, QUIET ENJOYMENT, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MOBISYSTEMS, INC. OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. FURTHERMORE, MOBISYSTEMS, INC. AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND PARTNERS DO NOT GUARANTEE THE SERVICE WILL BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON'T OCCUR, NOR DO THEY GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM THE COMPUTER NETWORKS.
15.2 IN ADDITION TO THE ABOVE, MOBISYSTEMS, INC. AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND PARTNERS, DO NOT WARRANT THAT: A) THE SERVICE WILL FUNCTION UNINTERRUPTED, SECURE, OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; B) ANY ERRORS OR DEFECTS WILL BE CORRECTED; C) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS.
XVI. Exclusions
16.1 YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS IF THEY ARE APPLICABLE.
16.2 Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for personal injury, or consequential or incidental damages, so the limitations above may not apply to you. IN THESE JURISDICTIONS, THE MOBISYSTEMS, INC.’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
XVII. Confidential Information
17.1 As a principle, electronic communications data is confidential and there is a prohibition of any interference with electronic communications content and metadata (i.e., listening to, scanning, reading, storing, monitoring, and processing by human intervention or by machine) without the consent of the communicating parties. Therefore, your Confidential Information comprises both your Content and metadata of electronic communications, provided that, they are not publicly known or made generally available through not our fault.
17.2 The Confidential Information of MobiSystems, Inc. comprises of valuable trade secrets and other proprietary information, including but not limited to, the structure, organization, and computer code of any software making up the Service.
17.3 Each рarty to these Terms hereby agrees to protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as each рarty protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each рarty may use the other party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms.
17.4 Each party will promptly notify the other party if it becomes aware of any unauthorized use or disclosure of the other party`s Confidential Information.
17.5 You hereby explicitly agree MobiSystems, Inc. to disclose your Confidential Information: (a) solely to the employees and/ or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by standards of confidentiality not less stringent than those provided herein; (b) as necessary for ensuring the integrity of the communications services, identifying malware or viruses, (c) as necessary to comply with a legal obligation, an order or subpoena of any administrative agency or court of competent jurisdiction; (d) for preventing threats to us, our employees or partners, the Service, other Users, or to public security, or (e) as reasonably necessary to comply with any applicable laws or regulations.
XVIII. Governing Law and Jurisdiction
18.1 In the event of a dispute, you must provide MobiSystems, Inc. with a notice of dispute, which is a written statement of your name, email address, and/ or other contact information, the facts giving rise to the dispute, and the relief requested by you. You must send any notice of a dispute to MobiSystems, Inc. customer support. We will do the same if we have a dispute with you. You and MobiSystems, Inc. will attempt to resolve any dispute through informal negotiations within 60 days from the date of receipt of any notice of dispute. If after the expiration of these 60 days the dispute is unresolved, the below provisions shall apply.
18.2 These Terms shall be governed and construed in accordance with the laws of California, United States, without regard to its conflict of law provisions. These Terms will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is hereby expressly excluded. Any disputes under these Terms shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to the exclusive jurisdiction of this court for the purpose of resolving any dispute relating to these Terms or access or use of the Service.
18.3 Notwithstanding the foregoing, nothing in these Terms will diminish any rights you may have under existing consumer protection legislation or other applicable laws in your jurisdiction that may not be waived by contract.
18.4 If you are a consumer and have a habitual residence in the European Union, Norway, Iceland, or Lichtenstein, you may be entitled to address your dispute through an internet platform for online dispute resolution established by the European Commission (the “ODR Platform”). The ODR Platform is intended to facilitate out-of-court resolutions relating to online purchases of goods and services to consumers based in the European Union, Norway, Iceland, and Lichtenstein. You will find the ODR Platform by following this link: http://ec.europa.eu/consumers/odr/
XIX. U.S. Government Restricted Rights
Our Services qualify as “commercial items,” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R.12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire such Service and related documentation with only those rights set forth in these Terms that apply to non-governmental customers. Use of such Service and related documentation constitutes agreement by the U.S. Government entity that the computer software and computer software documentation is commercial and constitutes acceptance of the rights and restrictions set forth in these Terms.
XX. Export Compliance and Use Restrictions
The Service and other MobiSystems, Inc. technology, and derivatives thereof, may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. You agree to comply with all such laws and regulations as they relate to access to the Service. Without derogating from the generality of the foregoing, you hereby represent, warrant, and undertake that: (i) you are not a member of any of the denied persons list, unverified list, entity list, specially designated nationals list, debarred list, or any other lists published by the U.S. Government; and (ii) you will not use, export or re-export any Service in, or to, territories, destinations, companies or individuals in violation of U.S. and E.U. embargoes or trade sanctions. You will indemnify, defend, and hold MobiSystems, Inc. and its licensee, licensors, employees, contractors, agents, officers, and directors, harmless from and against any claim, demand, suit, or proceeding, and all damages, liabilities, costs, and expenses (including but not limited to attorney's fees) arising from your failure to comply with these restrictions.
XXI. Force Major
MobiSystems, Inc. will not be liable for any failure or delay in performance, due in whole or in part, to utility failures (including power), failure of the internet, failure of telecommunications or information technology services, failure of telecommunications or information technology equipment, strikes or other labor disturbances (including without limitation a strike or other labor disturbance arising in respect of MobiSystems, Inc. or any its subsidiaries, affiliates or partners), acts of war or terror, denial of service attacks or other information technology attacks or breaches affecting MobiSystems, Inc. or any of its subsidiaries, affiliates or partners, floods, sabotage, fire, other natural disasters or Acts of God, or any other cause beyond MobiSystems, Inc. or its subsidiaries, affiliates or partners’ reasonable control.
XXII. Change of ownership
MobiSystems, Inc. may at any time, without explicit notice, change the company ownership, be subject to merger or sale, partnership, or else. In the case of such change of ownership, merger, sale, or other, we only undertake to notify you by updating the present Terms and/ or other relevant documents. Such an action will in no way affect your use of the Service, or your Account or plans.
XXIII. Miscellaneous
23.1 We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign your rights or obligations under these Terms or transfer any rights to use the Service.
23.2 Nothing in these Terms, express or implied, is intended to or will confer upon any person other than you, any right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. No person other than you or MobiSystems, Inc. may bring a cause of action pursuant to these Terms.
23.3 This is the entire agreement between you and MobiSystems, Inc. for your use of the Service. It supersedes any prior agreements between you and MobiSystems, Inc. regarding your use of the Service.
23.4 Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights.
23.5 All parts of these Terms apply to the maximum extent permitted by the applicable law. If a court or arbitrator holds that we can't enforce a part of these Terms as written, we may replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms won't change.
23.6 These Terms were originally prepared in the English language. Although MobiSystems, Inc. may provide one or more translated versions for your convenience, the English language version of these Terms will be the governing version in case of any conflict or discrepancy.
XXIV. Amendments
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will provide you with notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Service after any revisions become effective, you agree to be bound by the updated Terms. If you do not agree to the new Terms, you are no longer authorized to use the Service.
Contact Us
If you have any questions about these Terms, please contact us.
MobiSystems, Inc.
4501 Mission Bay Drive, Suite 3A
San Diego, CA 92109, USA
Email: [email protected]