Last revised April 25, 2013
Acceptance of Terms
The terms and conditions outlined in these Terms govern all matters related to your installation and use of the Mobile App and supersede all other agreements, representations, warranties and understandings with respect to the Mobile App. By entering into these Terms electronically, you agree that these Terms have the same force and effect as an agreement made in writing and that Developer may provide you with any notices and terms about the Mobile App electronically by posting such notice on the Site.
Update and Modification of the Terms
You agree that Developer is not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the Mobile App (each an “Update”). However, in the event Developer decides to offer an Update, you agree that Developer may amend these Terms in connection with such Update without specific notice to you and that your installation and use of the Update is conditioned upon your acceptance of any revised Terms. The current version of these Terms will be posted at www.mobileday.com (the “Site”) and you are responsible for reviewing the version of the Terms available at the Site before installing an Update. By installing an Update, you are representing that you have reviewed the then-current version of the Terms at the Site and agree to be bound by such version. You may not install any Update unless you agree to the then-current version of the Terms.
Ownership Rights and License
As between you and Developer, the Mobile App, and all content (except for Third Party Content as described below) contained within the Mobile App, is and shall remain the sole property of Developer and is subject to protection under U.S. and foreign copyright laws. All third-party information (such as, audio files, music files or other sounds) that you may have access to by using the Mobile App (“Third-Party Content”) may be protected by intellectual property rights that are owned by the individual or entity from which such Third Party Content originated. Developer reserves the right (but has no obligation) to filter or refuse to transmit any Third-Party Content via the Mobile App. You agree, however, that you are solely responsible for the content of all communications made by or to you through your use of the Mobile App and you may be exposed to Third-Party Content that is offensive, indecent or objectionable or which violates the proprietary, intellectual property, or privacy rights of a third party. You agree that your use of the Mobile App to communicate with any third parties is at your own risk.
Developer grants you a personal, revocable, limited, non-transferable license to use the Mobile App on either (a) any iPhone, iPad or iPod Touch as permitted by the Usage Rules set forth in the App Store Terms and Conditions, or (b) any Android-enabled mobile device subject to the Android Market Terms of Service and Policies (the “Usage Rules”). This license does not allow you to copy, disassemble, attempt to derive the source code of, modify, create derivative works of, rent, lease, lend, sell, redistribute or sublicense the Mobile App or any Third-Party Content (either in whole or in part). All Updates will be governed by the version of these Terms published by Developer as of the date you install such Update. Any rights not expressly granted herein are reserved.
User Conduct and Compliance with Laws
You agree that the Mobile App merely provides a software service that enables you to manage connections with third party teleconferencing services, including those teleconferencing services for which you provide dial in and conference meeting numbers and the default third party teleconferencing service made available via the Mobile App (all of which are referred to as “Conferencing Services”). Developer does not provide and is not responsible for any Conferencing Service, including the default Conferencing Service, which is provided by an independent telecommunications service provider. You acknowledge and agree that except for limited contractual rights, Developer has no control over the availability, performance, or any other practices of the Conferencing Services.
As between you and Developer, you are solely responsible for your use of any Conferencing Service and for the content of all communications made by or to you through your use of any Conferencing Service, and for all activity with respect to your use of the Mobile App, including any unauthorized use of a Conferencing Service by any third party.
You shall use the Mobile App and any Conferencing Service available via the Mobile App only in compliance with applicable local, state, federal, and international law and all regulations, policies and procedures of the applicable Conferencing Service. You agree that you will not use the Mobile App or any Conferencing Service to which you connect via the Mobile App, to (a) engage in any communications that are unlawful, harassing, defamatory, offensive, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable, (b) encourage or engage in any criminal conduct, conduct that could give rise to civil liability, or otherwise violate any applicable local, state, national or international law or regulation, (c) gain or attempt to gain unauthorized access to other computer systems, or (d) interfere with any other person’s use and enjoyment of the Mobile App or any Conferencing Service available through the Mobile App.
Payment and Charges
To the extent that a Conferencing Service you choose to use (other than the Default Conferencing Service) imposes any fees, tariffs, charges, or surcharges (“Fees”), for use of its facilities, you agree that, as between you and Developer, you are solely responsible for paying all such Fees. You agree to indemnify, release, defend, and hold harmless developer against any claims related to or arising out of any failure or delay by you in paying any fees to any Conferencing Service you designate.
The Mobile App is designed to enable you to store certain information, including telephone numbers, passwords, passcodes, PINs, and conference IDs for Conferencing Services (“Conference Information”). You agree, and understand that this functionality is provided to you by the Mobile App as a convenience only and not as an archive. Developer shall have no liability to you or any other person for loss, damage, or destruction to any Conference Information submitted to the Mobile App and you are solely responsible for preventing any loss or damage to your Conference Information and for maintaining independent archival and backup copies of your Conference Information. Developer assumes no responsibility for the deletion of or failure to store or deliver any Conference Information.
These Terms are effective until terminated by you or Developer. Your rights under these Terms will terminate automatically without notice from Developer if you fail to comply with any term(s) of this license. Upon termination of these Terms you shall cease all use of the Mobile App, and delete all copies, full or partial, of the Mobile App.
You expressly acknowledge and agree that your use of the Mobile App and the default Conferencing Service is at your sole risk and that, to the maximum extent permitted by applicable law, the Mobile App and any content or information provided by the Mobile App, including access to the default Conferencing Service, are provided “as is” and “as available”, with all faults and without warranty of any kind, and developer hereby disclaims all warranties and conditions with respect to the Mobile App and any content or information provided by the Mobile App, including access to the default Conferencing Service, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. Developer does not warrant that the Mobile App or any content provided by the Mobile App, including the default Conferencing Service, will meet your requirements, that the operation of the Mobile App will be uninterrupted or error-free, or that defects in the Mobile App will be corrected, or that the default Conferencing Service will be available. No oral or written information or advice given by Developer or its authorized representatives shall create a warranty.
Limitation of Liability
To the extent not prohibited by law, in no event shall Developer be liable for personal injury, or any incidental, special, punitive, exemplary, direct, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of data, business interruption, property damage or injury to any person, or any other commercial damages or losses, arising out of or related to your use or inability to use the Mobile App or the default Conferencing Service, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if Developer has been advised of the possibility of such damages. In no event shall Developer’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Arbitration; Applicable Law
This agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. Please read this carefully. It affects your rights.
Except for a claim by Developer of infringement or misappropriation of Developer’s patent, copyright, trademark, or trade secret, any and all disputes between you and Developer arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Mobile App.
You agree that by entering into this agreement, you and Developer are each waiving the right to trial by jury or to participate in a class action. You and Developer 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. Any arbitration will take place on an individual basis; class arbitrations and class actions are not permitted.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Developer must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in Denver, CO. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Denver, Colorado. Claims of infringement or misappropriation of Developer’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in Denver, Colorado.
The laws of the State of Colorado, excluding its conflicts of law rules that would result in the laws of a State other than Colorado, govern this license and your use of the Mobile App.
Developer and you acknowledge that this Agreement is concluded between Developer and you only, and not with Apple, Inc., or Google, Inc. Developer, not Apple or Google, is solely responsible for Mobile App and the content thereof. To the extent this Agreement provides for usage rules for Mobile App that are less restrictive than the Usage Rules set forth for Mobile App in, or otherwise is in conflict with, the App Store Terms of Service, or any similar policy published by Google, the more restrictive or conflicting Apple or Google term, as applicable, applies.
Scope of License
The license granted to you for Mobile App is limited to a non-transferable license to use Mobile App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service any similar policy published by Google from time to time.
Maintenance and Support
Developer is solely responsible for providing any maintenance and support services with respect to Mobile App, as specified in this Agreement (if any), or as required under applicable law. Developer and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Mobile App.
Developer is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of Mobile App to conform to any applicable warranty, you may notify Apple or Google, as applicable, and Apple or Google will refund the purchase price for Mobile App to you; and to the maximum extent permitted by applicable law, neither Apple nor Google will have any other warranty obligation whatsoever with respect to Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Developer’s sole responsibility.
Developer and you acknowledge that Developer, not Apple or Google, is responsible for addressing any claims of you or any third party relating to Mobile App or your possession and/or use of Mobile App, including, but not limited to: (a) product liability claims; (b) any claim that Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Developer’s liability to you beyond what is permitted by applicable law.
Intellectual Property Rights
Developer and you acknowledge that, in the event of any third party claim that Mobile App or your possession and use of Mobile App infringes that third party’s intellectual property rights, Developer, and neither Apple nor Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address
Developer’s contact information for any end-user questions, complaints or claims with respect to Mobile App is [email protected]
Third Party Beneficiary
You acknowledge and agree that Apple and Google, and their subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple or Google, as applicable will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
You agree to indemnify, defend, release, and hold harmless Developer, its partners, licensors, affiliates, contractors, officers, directors, employees and agents from all damages, losses and expenses arising directly or indirectly from (a) any negligent acts, omissions or willful misconduct by you, (b) your use of the Mobile App or any Conferencing Service, (c) any breach of these Terms by you, and/or (d) your violation of any law or of any rights of any third party.
You hereby agree that if the terms of this Agreement are not specifically enforced, Developer will be irreparably damaged, and therefore you agree that Developer shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any of this Agreement, in addition to any other available remedies.