Welcome to WebMobi, Inc.'s website and mobile application creation platform. Your use of WebMobi, Inc.’s products, software, services and the www.WebMobi.com web site (collectively the “Service”) is subject to these Terms of Service ("TOS"). WebMobi, Inc., its affiliates and subsidiaries (collectively “WebMobi”), reserve the right to update and change the TOS from time to time without notice or acceptance by you. Please read them carefully.
1. ACCEPTANCE OF TERMS
You can accept the TOS by:
(A) clicking to accept or agree to the TOS, where this option is made available to you by WebMobi in the user interface for any Service; or
(B) by actually using the Services. In this case, you understand and agree that WebMobi will treat your use of the Services as acceptance of the TOS from that point onwards. This includes use on a trial basis.
You may not use the Services and may not accept the TOS if you are not of legal age to form a binding contract with WebMobi, under the age of 18, or you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.
Before you continue, you should print or save a local copy of the TOS for your records.
2. DESCRIPTION OF SERVICE
The Service is web-based and allows users that register for an account on the Service (an "Account Holder") to create and update an online web site, mobile application, or tablet application (“Web Site”) on WebMobi.com. Users can use WebMobi Services for Non-Commercial Use or Business Use. Non-Commercial or Personal Use is a free account. Web sites created under a Non-Commercial Use or free account will display third party advertisements. Business Use is a paid account. Web sites created under Business Use paid accounts are for business entities operating a commercial web site. By default, unless you have executed a separate paid contract with WebMobi for Business Use of the Services, we provide the Services for Non-Commercial, Personal Use.
Consumers, visitors, or downstream users, accessing your WebMobi provided Web Site and or mobile or tablet applications, whether the Sites are created under the free or paid platforms, are known as your Guests.
Once registered with the Service, each Account Holder receives his or her own Web Site to post "Content" (as defined in Section 9). Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new WebMobi tools and resources, shall be subject to the TOS.
In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
You also understand and agree that the service may include certain communications from WebMobi, such as service announcements, administrative messages, and that these communications are considered part of WebMobi membership and you will be able to opt out of receiving them. You agree not to access the Service by any means other than through the interfaces that are provided by WebMobi for use in accessing the Service.
In order to use the Service, you must be an Account Holder. Account Holders may create Personal Use or Business Use accounts. Individuals are limited to one Personal Use account per person. Any individual attempting to create multiple Personal Use accounts may have his or her account removed or suspended.
To be an Account Holder with your own Web Site, you must register with WebMobi by providing a valid email address, first and last name, and other information ("Registration Data"). As an Account Holder, you will choose a password and for your Web Sites during the Service's registration process. Your email address is your account designation or identification.
You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account.
You agree to immediately notify WebMobi in writing of any unauthorized use of your password or account or any other breach of security. WebMobi cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 3.
In order to use the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or WebMobi has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, WebMobi has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
No limit at this time but reserve the right to limit at anytime
4. CANCELLATION AND TERMINATION
If you cancel the Service, your cancellation will take effect immediately. After cancellation, you will no longer have access to your Web site and all information contained therein may be deleted by WebMobi. WebMobi accepts no liability for such deleted information or content.
WebMobi, in its sole discretion, may terminate your password, and/or account, and remove and discard any Content within the Service (including, but not limited to your Web Site if you are an Account Holder), for any reason, including and without limitation, the lack of use for greater than 90 days, or if WebMobi believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Any contracts, verbal or written or assumed, in conjunction with your deleted web site (as applicable) and all its parts, at WebMobi's discretion, will be terminated as well. WebMobi may also in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice.
WebMobi may at any time, terminate its legal agreement with you if:
(A) you have breached any provision of the TOS (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the TOS); or
(B) WebMobi is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(C) the partner with whom WebMobi offered the Services to you has terminated its relationship with WebMobi or ceased to offer the Services to you; or
(D) WebMobi is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
(E) the provision of the Services to you by WebMobi is, in WebMobi’s opinion, no longer commercially viable.
When these TOS come to an end, all of the legal rights, obligations and liabilities that you and WebMobi have benefited from, been subject to (or which have accrued over time whilst the TOS have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Section 24 shall continue to apply to such rights, obligations and liabilities indefinitely.
You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that WebMobi may immediately deactivate or delete your web site, as applicable, and all related information and files. WebMobi reserves the right to bar any further access to such files or the Service. You agree that WebMobi shall not be liable to you or any third-party for any termination of your access to the Service.
You acknowledge and agree that if WebMobi disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
5. CONTINUITY OF SERVICE
As part of this continuing innovation, you acknowledge and agree that WebMobi may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at WebMobi’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform WebMobi when you stop using the Services.
6. USE OF THE SERVICES BY YOU
You agree to use the Services only for purposes that are permitted by (a) the TOS and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by WebMobi, unless you have been specifically allowed to do so in a separate agreement with WebMobi. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services.
You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
Unless you have been specifically permitted to do so in a separate agreement with WebMobi, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
You agree that you are solely responsible for (and that WebMobi has no responsibility to you or to any third party for) any breach of your obligations under the TOS and for the consequences (including any loss or damage which WebMobi may suffer) of any such breach.
8. OWNERSHIP OF WEBSITE ACCOUNT AND SECURITY
You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
Accordingly, you agree that you will be solely responsible to WebMobi for all activities that occur under your account. WebMobi is not responsible for the actions of users of Account Holder’s Web Sites.
If you become aware of any unauthorized use of your password or of your account, you agree to notify WebMobi immediately at [email protected]
9. CONTENT AND CONDUCT RULES AND OBLIGATIONS
You understand that all information (such as data, text, software, music, sound, photographs, graphics, video, messages, goods, flash files, products, services or other materials) ("Content") are the sole responsibility of the person from which such Content originated. You, and not WebMobi, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. WebMobi does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content.
You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will WebMobi be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that WebMobi does not pre-screen Content, but that WebMobi and its designees shall have the right (but not the obligation) in their sole discretion to refuse, move or delete any Content that is available via the Service. Without limiting the foregoing, WebMobi and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable in WebMobi's sole discretion. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by WebMobi or submitted to WebMobi. You acknowledge and agree that WebMobi may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of WebMobi, its users and the public.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Should Content be found or reported to be in violation with, but not limited to, the following terms, it will be in WebMobi's sole discretion as to what action should be taken.
You agree that you will not:
(a) upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a WebMobi representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, or transmit unsolicited commercial email or "spam". This includes unethical marketing, advertising, or any other practice that is in any way connected with "spam", such as (a) sending mass email to recipients who haven't requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your site by posting multiple submissions in public forums that are identical;
(h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) "stalk" or otherwise harass others;
(l) 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. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;
(m) offer for sale or sell any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (c) WebMobi determines, in its sole discretion, is inappropriate for sale through the Service provided by WebMobi;
(n) use the Service as a forwarding service to another website;
(o) solicit passwords or personal identifying information for commercial or unlawful purposes from other users;
(p) exceed the scope of the Service that you have signed up for; for example, accessing and using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other peoples comments or content;
(q) make any automated use of the system.
(r) upload, post or otherwise transmit any Content that is intended to take advantage of a user. Such content may include, but is not limited to, "get rich quick", "get paid to surf", pyramid/MLM, or other dubious schemes.
(s) include more than three ad units per page, or any advertising that greatly reduces the usability of the site.
(t) upload files for the sole purpose of having them hosted by WebMobi and for use outside of a WebMobi-created website.
(u) create a site that provides an injurious user experience with custom programming. Examples include, but are not limited to, extreme flashing banners and excessive animated movement.
(v) upload, post or otherwise transmit any Content that is adult in nature, such as any nudity in a sexual context, any Content revealing exposed genitalia, or any Content with adult themes.
If any user is reported to be in violation with the letter or spirit of these terms, WebMobi retains the right to terminate such account at any time without further warning.
Some of the features on the Service require payment of fees. If you elect to sign up for these features, you shall pay all applicable fees, as described on the Service in connection with such features selected by you. WebMobi reserves the right to change its prices and at any time. You authorize WebMobi directly or through third parties, to make any inquiries it considers necessary to validate your account and financial information.
You represent and warrant that if you are purchasing something from us or from other parties selling products or services on our website, that (i) any credit information you supply is true and complete, (ii) charges incurred by you will be honored by your credit card company, and (iii) you will pay the charges incurred by you at the posted prices, including any applicable taxes.
11. ADDITIONAL SOFTWARE
With respect to any additional software or tools that may be made available by WebMobi in connection with the Service, if you elect to download or access such additional software or third party Content made available through the Service, you understand that you may have to agree to additional terms and conditions before you use such software or third party Content.
You also agree that the use of any third party software or Content obtained through the Service does not transfer to you any rights, title or interest in or to the software or such Content, and that you will not use any Content made available to you through the software or the Service except as expressly authorized under that third party provider's terms of service or license. For greater certainty, by downloading software or Content made available through the Service, you are deemed to agree to the terms of service or license agreement posted on the Service, the terms of which are incorporated by reference herein for the benefit of such third party providers. If you do not agree to the terms of service or license agreement, do not download the software or Content.
12. CONTENT LICENSE FROM YOU
WebMobi does not claim ownership of the Content you place on your WebMobi Web Site. You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying Content to WebMobi for inclusion on your WebMobi Web Site, you grant WebMobi a perpetual, irrevocable, world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt, publish, publicly perform, publicly display and distribute any Content which you submit, post, or display solely for the purpose of displaying, distributing and promoting your Web Site on WebMobi's Internet properties. This license exists only for as long as you continue to be a WebMobi customer and shall be terminated at the time your Web Site is terminated.
You acknowledge that WebMobi does not pre-screen Content, but that WebMobi and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, WebMobi and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You understand that WebMobi, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit WebMobi to take these actions.
You confirm and warrant to WebMobi that you have all the rights, power and authority necessary to grant the above license.
14. LICENSE FROM WEBMOBI
WebMobi gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by WebMobi as part of the Services as provided to you by WebMobi. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by WebMobi, in the manner permitted by the TOS.
You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Service or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by WebMobi, in writing.
Unless WebMobi has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service.
15. WEBMOBI'S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by WebMobi or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
You acknowledge and agree that WebMobi (or WebMobi’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by WebMobi and that you shall not disclose such information without WebMobi’s prior written consent.
Unless you have agreed otherwise in writing with WebMobi, nothing in the TOS gives you a right to use any of WebMobi’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
Other than the limited license set forth in Section 12, WebMobi acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these TOS in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with WebMobi, you agree that you are responsible for protecting and enforcing those rights and that WebMobi has no obligation to do so on your behalf.
You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
Unless you have been expressly authorized to do so in writing by WebMobi, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
16. COPYRIGHT AND TRADE MARK POLICIES
(A) Copyright Complaints
WebMobi and its affiliates respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please follow our Notice and Procedure for Making Claims of Copyright Infringement set forth below.
(B) Notice and Procedure for Making Claims of Copyright Infringement
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide WebMobi’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying WebMobi and its affiliates that your copyrighted material has been infringed.
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed upon;
A description of where the material that you claim is infringing is located on the Site, including the auction ID number, if applicable;
Your address, telephone number, and e-mail address;
A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
WebMobi’s Copyright Agent for notice of claims of copyright infringement on its website can be reached as follows:
WebMobi, Inc. Legal Department
ADDRESS: 100 S. Murphy Avenue, Suite 200, Sunnyvale, CA 94086
e-mail: [email protected]
WebMobi, Inc. Legal Department
ADDRESS: 100 S. Murphy Avenue, Suite 200, Sunnyvale, CA 94086
It is WebMobi’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminating the accounts of repeat infringers.
17. INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
You agree to indemnify and hold WebMobi, and its subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content, your use of the Service, your Guests activities, your connection to the Service, your violation of the TOS, or your violation of any rights of another, whether you are a registered user or not. The user is solely responsible for his or her actions when using the Service, including, but not limited to, costs incurred for Internet access.
19. RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by WebMobi.
20. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that WebMobi may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time without notice to you. Specifically WebMobi may limit the number of free Web Sites or applications an Account Holder can create and may impose different usage restrictions than currently offered.
Some of the Services are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
The manner, mode and extent of advertising by WebMobi on the Services are subject to change without specific notice to you.
In consideration for WebMobi granting you access to and use of the Services, you agree that WebMobi may place such advertising on the Services.
22. EXCLUSION OF WARRANTIES
NOTHING IN THESE TERMS, INCLUDING SECTIONS 22 AND 23, SHALL EXCLUDE OR LIMIT WEBMOBI’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE.”
IN PARTICULAR, WEBMOBI, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WEBMOBI OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
WEBMOBI FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WEBMOBI DOES NOT WARRANT THAT THIS SITE, ITS SERVERS, OR E-MAIL SENT FROM www.WebMobi.com ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SWAP WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING IN ANY WAY FROM (A) ANY ERRORS IN OR OMISSIONS FROM THE SITE OR ANY SERVICES OR PRODUCTS OBTAINABLE FROM THE SITE, (B) THE UNAVAILABILITY OR INTERRUPTION OF THE SITE OR ANY FEATURES OF THE SITE, (C) YOUR USE OF THE SITE OR WITH THE DELAY OR INABILITY TO USE THE SITE, (D) THE CONTENT CONTAINED ON THE SITE, OR (E) ANY DELAY OR FAILURE IN PERFORMANCE BEYOND OUR CONTROL.
23. LIMITATION OF LIABILITY
SUBJECT TO OVERALL PROVISION IN SECTION 22, YOU EXPRESSLY UNDERSTAND AND AGREE THAT WEBMOBI, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
(II) ANY CHANGES WHICH WEBMOBI MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(III) YOUR FAILURE TO PROVIDE WEBMOBI WITH ACCURATE ACCOUNT INFORMATION;
(IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
THE LIMITATIONS ON WEBMOBI’S LIABILITY TO YOU IN THIS SECTIONSHALL APPLY WHETHER OR NOT WEBMOBI HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
24. GENERAL LEGAL TERMS
Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the TOS does not affect your legal relationship with these other companies or individuals.
The TOS constitutes the whole legal agreement between you and WebMobi and governs your use of the Services (but excluding any services which WebMobi may provide to you under a separate written agreement), and completely replaces any prior agreements between you and WebMobi in relation to the Services (including, but not limited to, any prior versions of the TOS).
You agree that WebMobi may provide you with notices, including those regarding changes to the TOS, by email, regular mail, postings, or by displaying notices or links to notices to you generally on the Services.
You agree that if WebMobi does not exercise or enforce any legal right or remedy which is contained in the TOS (or which WebMobi has the benefit of under any applicable law), this will not be taken to be a formal waiver of WebMobi’s rights and that those rights or remedies will still be available to WebMobi.
The TOS, and your relationship with WebMobi under the TOS, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and WebMobi agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from the TOS. Notwithstanding this, you agree that WebMobi shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this TOS is invalid, then that provision will be removed from the TOS without affecting the rest of the TOS. The remaining provisions of the TOS will continue to be valid and enforceable.
If any provision of the TOS or incorporated agreements are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You acknowledge and agree that each member of the group of companies of which WebMobi is the parent shall be third party beneficiaries to the TOS and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the TOS which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the TOS.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
WebMobi RESELLER AGREEMENT
This Reseller Agreement (“Agreement”) is made effective as of the undersigned date by WebMobi located at 1250, Oakmead Parkway Suit-210 Sunnyvale, CA-94085(USA) (“WebMobi”) and _____________________ (“Reseller”). This Agreement sets out the terms and conditions under which Reseller may utilize the WebMobi AppTools as defined below.
WHEREAS, WebMobi provides Mobile Smart Phone Apps and related goods and services available in several package structures (“WebMobi AppTools”).
WHEREAS, WebMobi wishes to retain Reseller to assist in marketing its WebMobi AppTools to persons or entities wishing to purchase the Business Plan AppTools from WebMobi
WHEREAS, Reseller is an online media development provider able to bundle the Business Plan AppTools with other online media tools for resale under Reseller’s own brand name.
WHEREAS, Customers shall be any persons or entities purchasing the Business Plan AppTools product through Reseller.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Appointment and Service.
(a) Subject to the terms and conditions of this Agreement, WebMobi hereby appoints Reseller as an independent reseller of the WebMobi AppTools. Using Reseller’s own marketing plan and system, Reseller shall interact with entities and individuals in order to obtain relevant information and documentation from them as to whether they are interested in purchasing the Business Plan AppTools.
(b) WebMobi does not require Reseller to operate under a marketing plan or system prescribed by WebMobi. WebMobi will provide the Business Plan AppTools directly to Reseller. In doing so, WebMobi shall use commercially reasonable efforts to provide the portion of the Business Plan AppTools that WebMobi provides under this Agreement and maintain them in a manner consistent with its best commercially reasonable efforts. However, the Parties acknowledge that the Business Plan AppTools is a computer network based service, which may be subject to outages, data loss and delay occurrences. In such an event, WebMobi shall use commercially reasonable efforts to diligently and promptly remedy any and all material interruptions. Nonetheless, WebMobi will not be liable in any manner for any data losses, interruptions, outages or other delay occurrences relating to the plan by WebMobi or its vendors. WebMobi will agree to back up all data regularly, in the event of an occurrence of loss data; WebMobi should be able to provide Reseller with the most recent backup data. Data will be backed up no less than every 24 hours
(c) WebMobi makes no, and specifically disclaims, any representation that (i) Reseller will earn, is likely to earn, or can earn an amount in excess of any initial payment paid by Reseller to WebMobi in connection with this Agreement, or (ii) there is a market for Business Plan AppTools.
(d) Reseller will receive its own branded "portal" from WebMobi. WebMobi will provide Reseller with an IP address to which Reseller can point its branded “portal”.
(f) Reseller will be responsible for customer support and customer service. WebMobi may offer certain functions of customer support and/or app submission function on a paid basis (upon mutual agreement between Reseller and WebMobi).
(g) The Merchant Account is distinct from Customer profiles and accounts. In the Merchant Account, Reseller shall provide all requisite details including, but not limited, to accurate contact information and credit card information.
(h) Reseller shall target small and medium size businesses as well as enterprise businesses as direct Customers of the Business Plan AppTools product. Small and medium size businesses include all businesses with less than $1,000,000 revenue. Each Customer shall create an individual customer account through Reseller’s “portal”.
(i) All data will be retained on WebMobi’s servers. AppTools will reside on WebMobi’s servers. Reseller will direct Customers to access Business Plan AppTools through its branded portal. WebMobi will track Customers by the portal from which they access the Business Plan AppTools and calculate Reseller’s payments accordingly. WebMobi shall provide Reseller with an Administrative Portal through which Reseller shall manage and create Customer accounts.
(j) Limitations on Rights Granted. Except as expressly provided to the contrary in this Agreement, Reseller shall not, and shall not knowingly cause or permit any non-party, to use or reproduce the Business Plan AppTools. Reseller shall not, and shall not knowingly cause or permit any non-party, to disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Business Plan AppTools, or otherwise apply any procedure or process to the Business Plan AppTools in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Business Plan AppTools or any algorithm, process, procedure or other information contained in Business Plan AppTools. Except as expressly authorized herein, Reseller may not rent, lease, assign, sublicense, transfer, modify, alter, or time-share the Business Plan AppTools. Reseller may not sell the Business Plan AppTools to other resellers but only to end-users. Nothing in this Agreement shall be construed as giving Reseller any rights to use WebMobi’s name, brand, trademarks, logo, service marks or the like either on Reseller’s “portal”, advertising, or promotional materials.
(k) Compensation. WebMobi will charge Reseller fees as detailed in Exhibit A as may be amended from time-to-time. All payments must be received within five (5) days of invoicing. If payment is not received within said time, Reseller’s merchant account and branded “portal” shall be suspended until payment obligations are fulfilled.
2. Independent Contractors.
The relationship of WebMobi and Reseller is that of independent contractors. Neither Reseller nor Reseller’s employees, consultants, contractors or agents are agents, employees, licensees, franchisees, partners or joint ventures of WebMobi, nor do they have any authority to bind WebMobi by contract or otherwise to any obligation. Reseller shall not use any of the WebMobi’s names or trademarks without the written consent of WebMobi, including, but not limited to, incorporating the WebMobi names or trademarks into any URLs, Reseller’s name or any marketing materials.
3. Terms and Termination.
The term of this Agreement is one (1) year and shall automatically renew at the end of each year unless notice termination is provided in writing at least fifteen (15) days prior to the end of the year. Either party may terminate this Agreement at any time by providing fifteen (15) days written notice to the other party. Either party may terminate this Agreement immediately, if the other party commits a material breach of this Agreement that is not cured within fifteen (15) days of written notice. Upon termination, WebMobi will shut down Reseller’s branded “portal” and Administrative Portal. Reseller shall pay WebMobi any outstanding fees and continue to make payments until Customers no longer use the Business Plan AppTools.
Reseller agrees to indemnify, defend, and hold harmless WebMobi, its employees, referral partners and agents from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by Reseller or any employee, agent or affiliate of Reseller to comply with the terms of this Agreement; (ii) any warranty or representation made by Reseller being false or misleading; (iii) any representation or warranty made by Reseller or any employee or agent of Reseller to any third person other than as specifically authorized by this Agreement, (iv) any claims related to the Business Plan AppTools, (v) negligence of Reseller or its subcontractors, agents or employees, or (vii) any alleged or actual violations by Reseller or its subcontractors, employees or agents of any card association rules, governmental laws, regulations or Rules.
5. Disclaimer of All Warranties.
THE BUSINESS PLAN APPTOOLS IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. WEBMOBI DISCLAIMS ALL WARRANTIES (WHETHER EXPRESS, IMPLIED OR STATUTORY) TO RESELLER AND ANY THIRD PARTIES AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WEBMOBI OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF WEBMOBI’S OBLIGA TIONS.
6. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BUSINESS PLAN APPTOOLS, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OTHER THAN IN THE CASE OF BREACH OF OBLIGATIONS OF CONFIDENTIALITY. UNDER NO CIRCUMSTANCES SHALL WEBMOBI’S TOTAL LIABILITY TO RESELLER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY RESELLER TO WEBMOBI DURING THE PRECEEDING 12 MONTHS REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE, UNLESS DAMAGES ARE A RESULT OF WEBMOBI’S WILLFUL NEGLIGENCE OR MISCONDUCT.
7. Non-Solicitation of Customers.
(a) Without WebMobi’s prior written consent (which consent may be withheld in WebMobi sole and absolute discretion), Reseller shall not knowingly cause or permit any of their employees, agents, principals, affiliates, subsidiaries or any other person or entity to solicit or otherwise cause any customer that has been accepted directly by WebMobi or its vendors to terminate its participation in any of the Business Plan AppTools. This section shall apply during the term of this Agreement and for three (3) years after any termination, cancellation or expiration of this Agreement.
(b) During the period that this Agreement is in effect and for the three (3) year period immediately following termination of this Agreement, Reseller shall not directly or indirectly through another entity (i) call on, solicit or service any customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation of WebMobi or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with WebMobi, its vendors, or its subsidiaries, or in any way interfere with the relationship between any such customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation and WebMobi, its vendors, or its subsidiaries (including, without limitation, making any negative statements or communications about WebMobi, its vendors or its subsidiaries); or (ii) call on, solicit, or take away or attempt to call on, solicit, or take away any of WebMobi’ customers, referral partners, affiliates, agents and vendors on whom Reseller called or with whom Reseller became acquainted during its contractual relationship with WebMobi, either on its behalf or that of other person, firm, or corporation.
8. Confidential Information.
The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Business Plan AppTools and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the "Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party's obligations under this section or by breach of a third party's confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party's confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party's Confidential Information; (ii) not use the disclosing party's Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party's express prior written consent; (iii) disclose the disclosing party's Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party's internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure.
9. Successors and Assigns.
This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Reseller may not assign this Agreement without the written consent of WebMobi. WebMobi may assign this
Agreement in its sole discretion without the written consent of Reseller. This Agreement sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement may be amended by WebMobi by sending reseller any modifications in writing, and requesting a deadline for acceptance.
10. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in the State of California. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts. In any action arising from the alleged breach of this Agreement, or to enforce this Agreement, the final prevailing party will recover its reasonable attorneys' fees, costs and expenses.
11. No Waiver.
The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement, shall not be construed as a waiver of that conduct or any future breach or subsequent wrongful conduct. If any part, term, or provision of this Agreement is declared and determined by any court or arbitrator to be illegal or invalid, such declaration and determination shall not affect the validity of the remaining parts, terms or provisions.
The various headings in this Agreement are inserted for convenience only and shall not affect this Agreement or any portion thereof. This Agreement may be executed in two or more counter-parts, online by electronic signature, or by fax, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 1, 4, 5, 6, 7, 8, 9, 10 and 11 shall survive termination of this Agreement.