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Mobileoke Terms of Service This website, apps and related material is owned and controlled by Mobileoke, a d/b/a of playdatabse.com, LLC ("Mobileoke"). In order for you to use the Mobileoke website, apps and related materials (collectively referred to as “Products”), Mobileoke must have an agreement with you so we can agree on a common set of rules governing your use of the Products. This document, when combined with all of the other documents mentioned below, describe the “Agreement” between you and Mobileoke. Although we may attempt to notify you when major changes are made to this Agreement, you should periodically review the most up-to-date version (http://www.mobileoke.com/terms.asp) and related locations. Mobileoke may, in its sole discretion, modify or revise this Agreement and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. Your use of the Products constitutes your acceptance of the terms in this Agreement. If you do not want to comply with the terms in this Agreement, please do not use the Products. With this in mind, you agree to and acknowledge the following:1. Privacy: Your participation is governed by the Mobileoke Privacy Policy located at http://www.mobileoke.com/privacy.asp, which is incorporated into this Agreement by reference.
2. Fees and Payments: If you have agreed to pay a subscription fee for the use of any of the Products, you agree to pay the subscription fees and any other charges incurred in connection with your user name and password for the Products (including any applicable taxes) at the rates in effect when the charges were incurred. If your subscription includes access to areas containing premium content or services, your access to such areas may be subject to additional fees, terms and conditions, which will be separately disclosed in such areas. Mobileoke will bill all charges automatically to you through Google Checkout (or any other service selected by Mobileoke in the future). Subscription fees will be billed at the beginning of your subscription or any renewal. Unless we state in writing otherwise, all fees and charges are nonrefundable. We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance. If you believe someone has accessed a Product using your user name and password without your authorization, you must follow the procedures outlined in the Help section of the Service. You are responsible for any fees or charges incurred to access a Product through an Internet access provider or other third-party service.
3. Renewal: Your subscription will renew automatically, unless we terminate it or you notify us by telephone, mail, or e-mail (receipt of which must be confirmed by email reply from us) of your decision to terminate your subscription. For annual subscriptions, we will notify you of the pending renewal of your subscription at least 30 days prior to the date your subscription renews, except as otherwise required by law. You must cancel your subscription before it renews in order to avoid being billed for further subscription fees for the renewal term. You can cancel through Google Checkout.
4. Mobileoke's Ownership Rights: Mobileoke and its licensors own all right, title and interest, including without limitation all worldwide intellectual property rights in the Products and all such rights to all derivative works or enhancements of, in and to, or relating to, the Products. By entering into this Agreement or by your use of the Products, you will not acquire any intellectual property or similar rights in the Products or related materials and services owned and/or controlled by Mobileoke. You agree you will not (i) remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Products and/or related products and services; or (ii) use Mobileoke's name, logo, trademark, trade names or service marks except as expressly permitted in this Agreement without Mobileoke's prior written consent.
5. Mobileoke Termination: Mobileoke may immediately terminate this Agreement for any reason at any time.
6. Prohibition on Infringing Activity: You will not use the Products for any purpose or in any manner that infringes the copyrights of any third party, nor will you upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Products any content, that infringes the copyrighted works or violates the intellectual property rights of any third party.
7. Notices: Mobileoke may provide notices to you by email to the email address you provided and is deemed received when sent. Any notices to Mobileoke must be sent either: (i) via first class or air mail or overnight courier to Mobileoke 10256 Sunland Blvd, Sunland, CA 91040, attention Jim Sabo; or (ii) via email to notices@mobileoke.com; with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt.
8. Your Authority: You represent and warrant to Mobileoke that: (i) You have all requisite power and authority, corporate or otherwise, to enter into this Agreement, conduct yourself and your business and to execute, deliver, and perform all of your obligations under this Agreement; (ii) you have provided, and will continue to provide, information that is correct and current; (iii) you are the owner—or the authorized agent of the owner—of your Content and your Member Comments (if You are a Community Member) and have full technical and editorial control of the same; (iv) You have the right to grant the licenses granted under this Agreement; (v) Your performance under this Agreement and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which You are currently bound or will become bound in the future; (vi)Your performance under this Agreement will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; (vii) You will Participate solely for the purposes intended and expressly permitted.
9. Your Actions: You represent and warrant that you will not, and will not authorize or encourage any third party to, directly or indirectly: (i) obtain any information or materials relating to the Products through any means not intentionally made available by Mobileoke to you, or attempt to gain unauthorized access to Mobileoke's database, technology, computer systems or networks associated with the Products; or (ii) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of or impairs the functionality of the Products.
10. Cooperation: You agree to cooperate fully with Mobileoke to investigate any suspected or actual activity that is in breach of this Agreement. You acknowledge that any violation of any representations, warranties or agreements made by you in this Agreement may be a material breach of this Agreement and that Mobileoke may pursue any and all applicable legal and equitable remedies against you, including an immediate suspension of this Agreement and the pursuit of all available civil or criminal remedies. Mobileoke reserves the right to investigate, at its own discretion, any activity that Mobileoke suspects may violate this Agreement..
11. Indemnity: You will indemnify, defend and hold Mobileoke and its officers, directors, employees, shareholders, successors, agents, affiliates, subsidiaries and applicable third parties (e.g., relevant content creators, advertisers, syndication partners, referral partners, service providers, licensors, licensees, consultants and contractors) (collectively, the "Mobileoke Entities") harmless from and against any claims, liabilities, losses, costs, damages or expenses (including reasonable attorneys' fees and costs) directly or indirectly arising out of or in any way relating to: (i) Your gross negligence or willful misconduct; (ii) any information or material you submit during your registration or use of the Products; (iii) your conduct, including your use of Products or any other related actions; (iv) any actual violation or breach of this Agreement, or allegation of such violation or breach by a third party, including breach of any representation made by you hereunder; or (v) the alleged or actual violation or infringement of any intellectual property, privacy, publicity, confidentiality or proprietary rights of any third-party as a result of any action or Participation by you (collectively, the "Claims"). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Mobileoke Entities. [Mobileoke shall have the right to withhold any payments due to you, if any, to offset liabilities and expenses covered hereunder.] Mobileoke shall have the right, in its sole discretion, to select its own legal counsel to defend Mobileoke from any Claims (but by doing so shall not excuse your indemnity obligations) and you shall be solely responsible for the payment of all Mobileoke's reasonable attorneys' fees incurred in connection therewith. You shall notify Mobileoke immediately if you become aware of any actual or potential claims, suits, actions, allegations or charges that could affect your or Mobileoke's ability to fully perform their respective duties or to exercise its rights under this Agreement. You shall not, without the prior written approval of Mobileoke, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for Mobileoke.
12. No Guarantees: Mobileoke makes no guarantees regarding the availability, operation, maintenance, timing or delivery of the Products. Without limiting the generality of the foregoing or any other disclaimers in this Agreement, Mobileoke is not responsible for any loss of business that you believe is caused by any outage or unavailability of the Products.
13.
Warranty
Disclaimers: Your use of the Products is
at your sole discretion and risk. The Products and all materials, information,
products and services included therein, are provide on an "AS IS" and
"AS AVAILABLE" basis without warranties of any kind. THE MOBILEOKE
ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, RELATING TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION THE
WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF
PERFORMANCE. 14. Additional Disclaimers: Mobileoke disclaims any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the Products; (ii) regarding the goods, services, advise, information or links provided by any other entities; (iii) that the Products will meet your requirements; or (iv) that the Products will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by you from Mobileoke, shall create any warranty not expressly stated in this Agreement. Mobileoke assumes no responsibility for: (i) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication; and (ii) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or of any of the Products. Under no circumstances shall Mobileoke be responsible for any loss or damage, including personal injury or death, resulting from your use of the Products or from the conduct of any users of the Products, whether online or offline. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you. THE MOBILEOKE ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT MOBILEOKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MOBILEOKE'S LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MOBILEOKE FOR THE RIGHT TO USE THE PRODUCTS. Some states or jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
15. Waiver; Severability: The failure to require performance of any provision shall not affect Mobileoke's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of this Agreement is found to be unenforceable, such portion will be modified to reflect the parties' intention and only to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect.
16. Relationship: You and Mobileoke are independent contractors, and this Agreement, including but not limited to submission or distribution of any Content will not, in whole or in part, establish any relationship of partnership, joint venture, employment, franchise or agency between the you and Mobileoke. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. Neither party is authorized to act as an agent or representative of the other or for or on behalf of the other party in any capacity other than as expressly set forth in this Agreement. Neither party shall in any manner advertise, represent or hold itself (or any of its agents) out as so acting or being authorized so to act, or incur any liabilities or obligations on behalf of, or in the name of, the other party, unless specifically provided for in this Agreement. Moreover, each party shall be solely responsible for the payment of all of its own taxes, assessments and all other similar withholdings from or assessments on any monies paid hereunder or in connection with the transactions contemplated hereby.
17.1. If you are a copyright owner or an agent thereof and believe that any material defined as Products above infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): 17.1.1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; 17.1.2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; 17.1.3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; 17.1.4. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; 17.1.5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and 17.1.6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
17.2. Mobileoke's designated “Copyright Agent” to receive notifications of claimed infringement is: Jim Sabo, email: copyright@mobileoke.com. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Mobileoke customer service through feedback@mobileoke.com. You acknowledge that if you fail to comply with all of the requirements of this Section 17, your DMCA notice may not be valid.
17.3. If you believe that your content which has been removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your content, you may send a counter-notice containing the following information to the Copyright Agent:
17.3.1. Your physical or electronic signature; 17.3.2. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; 17.3.3. A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and 17.3.4. Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
17.4. If a counter-notice is received by the Copyright Agent, Mobileoke may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Mobileoke's sole discretion.
18. Ability to Accept Terms of Service: You affirm that you are either more than 18 years of age (or the age of majority wherever you live), or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Products are not intended for children under 13. If you are under 13 years of age, then please do not use the Products.
19. Assignment: These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Mobileoke without restriction.
20. General: You agree that: (i) your use of the Products shall be deemed solely based in California; and (ii) your use of the Products shall not give rise to personal jurisdiction over Mobileoke, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Mobileoke that arises in whole or in part from your use of the Products shall be decided exclusively by a court of competent jurisdiction located in Los Angeles County, California. These Terms of Service, together with the Privacy Policy at http://www.mobileoke.com/privacy.asp and any other legal notices published by Mobileoke on the Products, shall constitute the entire agreement between you and Mobileoke concerning the Products. The Website is controlled and offered by Mobileoke from its facilities in the United States of America. Mobileoke makes no representations that the Products are appropriate or available for use in other locations. Those who access or use the Products from other jurisdictions do so at their own volition and are responsible for compliance with local law. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Mobileoke's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Mobileoke reserves the right to amend this Agreement at any time and without notice, and it is your responsibility to review this Agreement for any changes. Your use of the Products following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND MOBILEOKE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE PRODUCTS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS WAIVED BY YOU AND PERMANENTLY BARRED.
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