THESE TERMS AND CONDITIONS (THE “AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU AND MOBACK, INC., AND ITS AFFILIATES (“MOBACK” “US,” “OUR” OR “WE”), THE OWNER AND OPERATOR OF OUR WEBSITE (THE “SITE”), THE SOFTWARE WE PROVIDE (THE “SOFTWARE”) AND ALL RELATED SERVICES (COLLECTIVELY, THE “SERVICE”). THIS AGREEMENT APPLIES TO ALL VISITORS OR USERS OF THE SITE (“USERS”), AND ALL MOBILEAPPLICATION DEVELOPERS WHO USE THE SERVICE (THE “DEVELOPERS”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND SERVICE.
The moBack plans are designed to help you start small, and scale quickly as your app usage grows. Industry standard limits for API calls and push notifications apply. If additional levels of usage limits are required, users may contact us for a custom plan. These limitations are not designed to limit your innovation or complexity of app development. The limits help us contain our costs, and ensure that the platform remains stable for all users in the moBack community.
If you do not pay the fees, including the case of failure of electronic withdrawal, we may suspend or terminate your use of the Service. Also, if you fail to pay the fees due and payable, including the case of failure of electronic withdrawal, you shall be liable for payment of a default penalty at the rate of 14.6% per annum or the highest rate permitted by the applicable governing law, whichever is the lower, on all late payments. To the fullest extent permitted by law, you hereby agree that no refund is available and that even if we refund at our own discretion, such refund will only be in the form of credit for the Service.
You shall obey all federal, state, and local laws, regulations and rules that apply to your activities when you use the Site or Service. moBack reserves the right to terminate your account and to prevent your use of the Site or Service if your account is used to engage in illegal activity or to violate this Agreement.
The software development kit ("SDK") provided on the Site is licensed to you subject to this Agreement and the following:
You shall not do the following for purposes other than the prescribed purpose:
You hereby agree to use the SDK and develop applications only for the Prescribed Purpose and to use the SDK in a manner that is permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You hereby warrant and represent that any applications you develop using the SDK will not infringe the intellectual property right of any third parties. You further agree and acknowledge that:
You shall not violate or attempt to violate the security of the Site or Service. Violations of system or network security may result in civil or criminal liability. We reserve the right to investigate occurrences which may involve such violations and may involve, and cooperate with law enforcement violations.
YOUR USE OF THE SITE AND SERVICE IS AT YOUR SOLE RISK. ALL SITE INFORMATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, OF ANY KIND. YOUR USE OF THE SITE, THE SERVICE AND THE SITE INFORMATION IS ENTIRELY AT YOUR OWN DISCRETION AND RISK, AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, THE SERVICE AND THE SITE INFORMATION. WE, ON BEHALF OF OURSELVES AND OUR PARENT, SUBSIDIARIES, AFFILIATES, LICENSORS, DISTRIBUTORS, AGENTS, REPRESENTATIVES, AND THIRD-PARTY SERVICES PROVIDERS, INCLUDING ANY RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND SUPPLIERS THEREOF, AND ANY OF THE FOREGOING ENTITIES' RESPECTIVE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, PARTNERS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “MOBACK PARTIES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR NONMISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION, CONTENT OR SYSTEM INTEGRATION.
WE(A) DO NOT WARRANT THAT THE SITE WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED; (B) DO NOT REPRESENT OR WARRANT THAT THE SITE, SERVICE, OR ANY CONTENTS THEREIN, WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED, TIMELY, ERROR-FREE OR COMPLETELY SECURE MANNER, OR THAT ERRORS OR DEFECTS WILL BE CORRECTED; (C) DO NOT REPRESENT OR WARRANT THAT THE SITE, SERVICE OR ANY CONTENTS THEREOF WILL MEET YOUR REQUIREMENTS; AND (D) DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, SERVICE OR ANY CONTENT THEREIN, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. Some jurisdictions may not allow the exclusion or limitation of implied warranties or conditions, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. In such event, our warranties and conditions with respect to the Site and Service will be limited to the greatest extent permitted by applicable law in such jurisdiction.
UNDER NO CIRCUMSTANCES WILL THE MOBACK PARTIES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE OR ANY CONTENT OR SERVICES THEREIN, EVEN IF A MOBACK PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF A MOBACKPARTY IS FOUND TO BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGE OR LOSS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE, OR ANY CONTENT OR SERVICES THEREIN, THE RELEVANT MOBACK PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID US FOR YOUR USE OF THE SITE, SERVICE AND ANY CONTENT THEREIN; OR (B) THE SUM OF ONE HUNDRED US DOLLARS (USD $100). To the maximum extent permitted by law, under no circumstances will we be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within any third party hyperlinked sites. Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential, or other damages, so the above limitations or exclusions may not apply to you. In such event, our liability for such damages with respect to the Site and Service will be limited to the greatest extent permitted by applicable law in such jurisdiction.
You agree to indemnify, defend and hold harmless, moBack, our affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers to the Site or Service from and against any and all claims or liability, including costs and attorneys fees, arising from or in connection with your violation of this Agreement and your use of the site or Service. We reserve the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
In order to use the Site or Service you must be at least 13 years of age or older. You affirm that you are either: (a) at the age of majority under the applicable law and are fully able and competent to enter into and comply with the terms and conditions of this Agreement; or (b) if you are at the age of minor under the applicable law but at least 13 years old, that you have your parent’s permission to enter into this Agreement and are fully able to comply with the terms and conditions of this Agreement.
You agree that we, in our sole discretion, may terminate your use of the Site or Service, and remove and discard your Developer-Generated Content, for any reason, if we believe that you have or may have violated or acted inconsistently with the letter and spirit of this Agreement. We may also in our sole discretion and at any time discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site or Service, under any provision of this Agreement, may be effected without prior notice to you, and acknowledge and agree that we may bar any further access to the Site or Service. Further, you agree that we shall not be liable to you or any third-party for any termination of access to the Site or Service. In the event that we discontinue the Site or Service, we may, at our sole discretion, either (i) continue to provide to you the Service for the have already paid, or (ii) provide you with a refund on a pro-rata basis.
Where permitted by law, you and we agree that any cause of action arising out of or related to the Site or any Site Information must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
This Agreement constitutes the entire agreement between you and moBack with respect to the subject matter contained herein and supersedes all prior agreements between you and us regarding the subject matter contained herein. If any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible, and the other provisions contained herein will remain in full force and effect. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. Nothing in this Agreement shall be construed as creating or constituting a partnership, joint venture, agency or other like relationship between you and us or any of the moBack Parties. The failure of us to insist upon performance of any of the terms and conditions of this Agreement, or the waiver of any breach of, or the decision to not exercise any of its rights under, any of the terms or conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, or any other terms and conditions of this Agreement. Any waiver must be in writing and signed by us.
This Agreement and all claims or issues regarding the Site or Service shall be governed according to the laws of (i) the State of California, in the USA, if the server mainly used for the Service which is designated by subscribers to the Service upon subscription and accepted by us (the “Designated Server”) is located in the USA. Any disputes that may arise concerning the formation, interpretation or performance of this Agreement shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce in force on the date, in California, the USA, if the Designated Server is located in the USA and you are a US citizen or a US entity. If the above arbitration clause is not enforceable, except in those cases where contractual attribution of jurisdiction is not enforceable on the User or Developer as a consumer, any disputes that may arise concerning the formation, interpretation or performance of this Agreement, shall be brought in the courts of California, the USA, if the Designated Server is located in the United States and you are a US citizen or a US entity, TO THE EXTENT NOT OTHERWISE PROHIBITED BY APPLICABLE LAW, THE PARTIES HERETO AGREE TO WAIVE TRIAL BY JURY WITH RESPECT TO ANY MATTERS ARISING UNDER OR RELATING TO THIS AGREEMENT WHICH ARE NOT RESOLVED BY ARBITRATION.
Any questions or comments about the Site or Service should be directed to us at http://www.moback.com/contactus (http://www.moback.com/contactus).