Terms of Sevices
Welcome, and thank you for your interest in MYMOBSTR Inc. ("MYMOBSTR”, "we,” or "us”), our application for your mobile device (the "App”), our Web site at mymobstr.com (the "Site”), and our related web sites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), and other services provided by us and on which a link to these Terms of Service is displayed (together with the App and Site, our "Service”). The Service provides an online marketplace for media content contributors (the "Contributors”) to upload or submit a variety of content, including without limitation photographs, pictures, images, moving images, videos, or other media, so that the same may be licensed to third parties, such as media organizations, who can search, view, request, purchase, and/or download such content (the "Customers”).
As provided in greater detail in the Terms (and without limiting the express language of the Terms below), you agree and acknowledge that the Terms include the following material terms:
- the App is licensed, not sold to you, and you may use the Service only as set forth in these Terms;
- your use of the Service may be subject to separate third party terms of service and fees, including without limitation your mobile network operator's (the "Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- the Service is provided "as is” without warranties of any kind and MYMOBSTR's liability to you is limited;
- all disputes between you and MYMOBSTR will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the "Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with MYMOBSTR;
- the App may require access to a variety of services on your mobile device, including UDID, MAC address, or other applicable device identifier, phone state and identity, internet and data services, and such other services that we may describe in our documentation , and;
- if you are using the App on an iOS-based device, you agree to and acknowledge the "Notice Regarding Apple”, below.
- Eligibility. You must be at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (13) years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
- License to the App. The App is licensed, not sold, to you for use only under the terms of this license. MYMOBSTR reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with these Terms, MYMOBSTR hereby grants you a personal, limited, revocable, non-transferable license to use the App on a single compatible device that you own or control, solely for your own use. You may not modify, alter, reproduce, distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or third party terms), nor attempt to disable or circumvent any security or other technological measure designed to protect the App or any content available through the App. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. These Terms will govern any updates provided to you by MYMOBSTR that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
- Ownership; Proprietary Rights. The Service is owned and operated by MYMOBSTR. Unless otherwise indicated, all of the content featured or displayed on the Service, including without limitation text, graphics, data, images, moving images, video, visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Service (the "MYMOBSTR Content”) provided by MYMOBSTR is owned by MYMOBSTR or its licensors, including its third party content contributors. All elements of the Service, including the MYMOBSTR Content, are protected by intellectual property and other laws. Except as expressly authorized by MYMOBSTR or otherwise permitted by applicable law, you may not make use of the MYMOBSTR Content. MYMOBSTR reserves all rights to the MYMOBSTR Content not granted expressly in these Terms or in a separate written agreement between you and MYMOBSTR.
- Use of the Service and the MYMOBSTR Content. Your rights to use the Service are expressly conditioned on the following:
- You agree and understand that the Service, including the MYMOBSTR Content, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information or materials;
- Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service, including the MYMOBSTR Content, and unless expressly authorized as between you and MYMOBSTR or otherwise permitted by applicable law, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service, including the MYMOBSTR Content;
- You agree not to bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine any content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;
- You agree not to use the Service for any illegal purpose or in violation of any local, state, national, or international law;
- You agree not to perform any fraudulent activity, including impersonating any person or entity, accessing any other Service account without permission, or falsifying your age;
- Except to the extent that the activity is permitted by applicable law, you agree not to decipher, reverse engineer, decompile or disassemble the Service, including the MYMOBSTR Content therein, or the software used to provide the Service or the MYMOBSTR Content therein, in whole or in part, or authorize, direct, or cause a third party to do so;
- You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service or the MYMOBSTR Content, or any portion thereof, unless and solely to the extent MYMOBSTR makes available the means for embedding any part of the Service or the MYMOBSTR Content therein;
- You agree not to access, tamper with, or use non-public areas of the Service, MYMOBSTR's (and its hosting company's) computer systems and infrastructure, or the technical delivery systems of MYMOBSTR's providers;
- You agree not to use the Service in any way that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate, and that MYMOBSTR is not in any way responsible for any such use by you;
- You agree that your use of the App may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier's terms of service, and you agree to pay all such fees and abide by all such terms;
- You agree not to interfere with the operation of the Service or any user's enjoyment of the Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
- You agree not to sell or otherwise transfer the access granted under these Terms or any MYMOBSTR Content (as defined in Section 4) or any right or ability to view, access, or use any MYMOBSTR Content; or
- You agree not to do any of the acts described in this Section 5, or to assist or permit any person in engaging in any of the acts described in this Section 5.
- Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending MYMOBSTR or our employees any ideas for products, services, features, modifications, enhancements, refinements, technologies, content offerings, promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, computer code, or other materials (collectively "Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to MYMOBSTR, you agree that:
- MYMOBSTR has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and MYMOBSTR is not under any obligation to keep any Feedback you send confidential or to refrain from using it in any way; and
- You irrevocably grant MYMOBSTR and its successors and assigns perpetual and unlimited permission to use, reproduce, modify, and distribute, display, and perform Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback whether in whole or in part, and whether as provided or as modified.
- Digital Millennium Copyright Act.
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material or content posted on the Service, you may contact our Designated Agent at the following address:
MYMOBSTR UKRAINE LLC.
Kharkivske shose, 65
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
A. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
B. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
C. a description of the material that you claim is infringing and where it is located on the Service;
D. your address, telephone number, and email address;
E. a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
F. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
- Repeat Infringers. MYMOBSTR will promptly terminate without notice the accounts of users that are determined by MYMOBSTR to be "repeat infringers.” A repeat infringer is a user who has been notified of infringing activity or has had Contributor Content removed from the Service at least twice.
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material or content posted on the Service, you may contact our Designated Agent at the following address: MYMOBSTR UKRAINE LLC.
- Third Party Services and Linked Websites. MYMOBSTR may provide tools through the Service that enable you to export information to third party services, including [to third party payment processors] or through features that allow you to link your account on MYMOBSTR with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as "like” or "share” buttons). By using one of these tools, you agree that we may transfer that information, to the applicable third party service. Third party services are not under our control, and we are not responsible for any third party service's use of your exported information. The Service may also contain links to third party websites. Linked websites are not under our control, and we are not responsible for their content.
- Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms or the terms of any other agreement with us, your permission from us to use the Service will terminate automatically. In addition, MYMOBSTR may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at email@example.com. If you terminate your account, you remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service, such as the rules that are applicable to a particular feature or content on the Service, [including but not limited to the MYMOBSTR Contributor Agreement,the MYMOBSTR Submission Guidelines and the MYMOBSTR Customer License Agreement or such other agreement that may be entered into between MYMOBSTR and any Customer from time to time] (the "Additional Terms”), subject to Section 12 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we will use reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register an account, through a pop-up window on the Service, or other similar mechanism . Any material modifications to these Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from posting of such change. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. If you do not agree to the modified Terms, your sole and exclusive remedy is to terminate your account and you may no longer use the Service.
- Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify MYMOBSTR and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "MYMOBSTR Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
- Disclaimer. THE SERVICE, INCLUDING WITHOUT LIMITATION THE MYMOBSTR CONTENT, IS PROVIDED "AS IS" AND THE MYMOBSTR ENTITIES EXCLUDE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. THE MYMOBSTR ENTITIES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICE OR THE MYMOBSTR CONTENT, OR THE UNAVAILABILITY OF THE SAME, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. THE FUNCTIONS EMBODIED ON OR IN THE MATERIALS OF THIS SERVICE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR. YOU, NOT MYMOBSTR, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO YOUR USE OF THIS SERVICE OR THE MYMOBSTR CONTENT. WE MAKE NO WARRANTY THAT THE SITE OR THE MYMOBSTR CONTENT IS FREE FROM INFECTION BY VIRUSES OR ANYTHING ELSE THAT HAS CONTAMINATING OR DESTRUCTIVE PROPERTIES. MYMOBSTR uses reasonable efforts to ensure the accuracy, correctness and reliability of the MYMOBSTR Content, but we make no representations or warranties as to the MYMOBSTR Content's accuracy, correctness or reliability. MYMOBSTR may offer a search feature within the Service. MYMOBSTR explicitly disclaims any responsibility for the content or availability of information contained in our search index or directory. MYMOBSTR also disclaims any responsibility for the completeness or accuracy of any directory or search result. SOME US STATES AND FOREIGN COUNTRIES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. THEREFORE, SOME OR ALL OF THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU TO THE EXTENT THEY ARE PROHIBITED OR SUPERSEDED BY STATE OR NATIONAL PROVISIONS.
- Limitation of Liability. IN NO EVENT WILL THE MYMOBSTR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY MYMOBSTR ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.
- Governing Law. If a lawsuit or court proceeding is permitted under these Terms, then, unless another location is expressly specified in these Terms, you and MYMOBSTR agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located Kyiv County, Ukraine for the purpose of litigating any dispute. We operate the Service from our offices in Kyiv, and we make no representation that the Service is appropriate or available for use in other locations.
- Dispute Resolution and Arbitration.
- Generally. In the interest of resolving disputes between you and MYMOBSTR in the most expedient and cost effective manner, you and MYMOBSTR agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MYMOBSTR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 18.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- No Class Actions. YOU AND MYMOBSTR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and MYMOBSTR agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. If MYMOBSTR makes any future change to this arbitration provision (other than a change to MYMOBSTR's address for Notice), you may reject the change by sending us written notice within 30 days of the change to MYMOBSTR's address for Notice, in which case your account with MYMOBSTR will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
- Enforceability. If Section 18.6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16 will govern any action arising out of or related to these Terms.
- Contact Information. The Service is offered by MYMOBSTR UKRAINE LLC. located at Ukraine, Kyiv, Kharkivske shose, 65. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
- Obtaining a Copy of These Terms. You may have these Terms mailed to you electronically by sending a letter to the address in Section 20 with your electronic mail address and a request for a copy of these Terms.
- NOTICE REGARDING APPLE. You acknowledge that these Terms are between you and MYMOBSTR only, not with Apple, and Apple is not responsible for the Service or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service or your possession and use of the Service infringes that third party's intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If MYMOBSTR provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version shall prevail.