Last Updated: June 3, 2016
The following terms and conditions (the “Agreement”) govern all use of the “Mobcrush” mobile application (“Application”), any and all Mobcrush websites, and any other Mobcrush products and services (collectively, the “Service”). The Service is provided to you by Mobcrush, Inc. (“Mobcrush”, “Us”, “We, or “Our”). The Service is subject to your (“You” or “Your”) acceptance without modification of all of the terms and conditions contained herein. This Agreement also includes our Community Guidelines – which we strongly suggest you review.
BY USING OR ACCESSING ANY PART OF THE SERVICE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.
Special features provided by Mobcrush may be subject to different or additional terms or conditions. To the extent they conflict with this Agreement, such different or additional terms and conditions will control.
Mobcrush reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. You will be notified of such changes by email, account notification, or a notice posted on the Service. Your continued use of the Service following the posting of any changes to this Agreement constitutes acceptance of those changes.
You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Service and gotten your parent or guardian to agree to this Agreement on your behalf). If you’re agreeing to this Agreement on behalf of an organization or entity, you represent and warrant that you are authorized to agree to this Agreement on that organization or entity’s behalf and bind them to this Agreement (in which case, the references to “you” and “your” in the Agreement, except for in this sentence, refer to that organization or entity).
The Service is a game video management and streaming platform that allow for authorized streaming and distribution of game video content.
You may be required to sign up for an account, and select a password and user name (“Mobcrush User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Mobcrush User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You will only use the Service for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Service is prohibited by applicable laws, then you aren’t authorized to use the Service. We can’t and won’t be responsible for your using the Service in a way that breaks the law.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
You shall not, nor permit anyone else to, directly or indirectly: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Service (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (ii) modify or create derivatives of any part of the Service; (iii) rent, lease, or use the Service for any direct commercial purpose (such as charging other users to engage with the Service in any manner); (iv) remove or obscure any proprietary notices on the Service; (v) use the Service for any unlawful purpose; (vi) access any part of the Service in a manner not explicitly permitted by these terms; (vii) send unwanted messages or emails (i.e.,“spam”) to Mobcrush’s users or otherwise via the Service; (viii) use domain names or web URLs in Your username without our prior written consent; (ix) interfere or disrupt the Service in any way; or (x) access the Service via any automated means including without limitation scripts, bots, spiders, crawlers, or scrapers. As between the parties, Mobcrush shall own all title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof.
In the event You submit any information to the Service (such as during the registration process), You represent and warrant that You have full right and authority to do so – and that such information is complete and accurate. You are responsible for all activity that occurs on Your Service account (and You must not share Your log-in details with anyone).
For clarity, You must also comply with all of Our Community Guidelines.
The Service permits You to stream video game play sessions, upload past game play, submit text and images, and otherwise share content with the Mobcrush community (“User Content”). Except for the licenses You grant below - User Content submitted by You (“Your Content”) is owned by You. By submitting Your Content, You grants Mobcrush the following rights and licenses:
By submitting Your Content in a manner that is publicly accessible on the Services, You hereby grant Mobcrush a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform Your Content in connection with the Service and Our (and our successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also grant Mobcrush the worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use Your user name and other information You make available to the Mobcrush community – in connection with the foregoing purposes (such as in marketing materials).
The above licenses granted by You for Your Content which is video or still images shall terminate within a commercially reasonable time after you remove or delete Your videos from the Service. The above licenses granted by You in user comments You submit are perpetual and irrevocable. Notwithstanding the foregoing, all licenses will survive to the extent the content, user name or other information is already being used in any marketing or promotional materials prior to termination.
Notwithstanding the foregoing, You understand and agree that it may not be possible to completely delete that content from Our networks and systems, and that Your Content may remain viewable elsewhere to the extent that they were copied or stored by other users. In addition, Your Content that may be downloaded or saved by other users - such Your Content that You send in a text message to a friend - may be retained by the recipient users to the extent so downloaded.
If You provide Us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Service (“Feedback”), then You grant Mobcrush a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute and otherwise fully exploit such Feedback for any purpose.
Finally, You understand and agree that Mobcrush, in performing the required technical steps to provide the Service to Our users (including You), may need to make changes to Your Content to conform and adapt such content to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
You must not submit any content that is in violation of our Community Guidelines.
In connection with Your Content, You affirm, represent, and warrant that (and that You can and will demonstrate to Mobcrush’s full satisfaction upon its request that): (i) You have all necessary rights, licenses, consents and waivers to grant all of the rights and licenses You grant above, (ii) Your Content does not violate any laws or regulations, and (iii) Your Content does not infringe or otherwise violate any third party rights (including, without limitation, intellectual property rights, and the rights of publicity and privacy).
You are solely responsible for Your Content and the consequences of posting or publishing or sharing. You agree that Mobcrush has no liability with respect to any of User Content, including, without limitation, Your Content, and You hereby irrevocably release Mobcrush and its officers and directors, employees, agents, representatives and affiliates, from any and all liability arising out of or relating to any and all User Content.
Mobcrush reserves the right to decide whether User Content is inappropriate or violates this Agreement. Mobcrush may remove any User Content at any time – in its discretion – with or without notice.
You agree that the Service contains information and other content specifically provided by Mobcrush or its partners or suppliers and that such content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. For example, Mobcrush, the Mobcrush logos and any other product or service name or slogan contained in the Service are trademarks of Mobcrush or its partners or suppliers. Except as expressly authorized by Mobcrush in writing, You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such content. Reproducing, copying or distributing any such content, including any materials or design elements on the Service, for any purpose is strictly prohibited without the express prior written permission of Mobcrush. Any authorized use of such content must be in accordance with any guidelines that Mobcrush may provide you from time to time.
Some product or services of the Service may require payment of fees. User shall pay all applicable fees, as described by the Service in connection with such for-fee products/services purchased by You. You agree that You alone are responsible for all data charges You incur through Your use of the Service.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT. MOBCRUSH AND ITS LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET YOUR EXPECTATIONS. IN ADDITION, MOBCRUSH AND ITS LICENSORS MAKE NO WARRANTIES WITH RESPECT TO ANY USER CONTENT. YOU ACCESS, ENGAGE WITH, DOWNLOAD AND USE USER CONTENT AT YOUR OWN RISK. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. MOBCRUSH MAKES NO REPRESENTATION OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCTS OR SERVICES AVAILABLE THROUGH, OR ADVERTISED ON, THE SERVICE (SUCH AS, THIRD PRODUCT PROMOTIONS).
IN NO EVENT SHALL MOBCRUSH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) THE LOSS OF ANY DATA OR OTHER TECHNICAL ISSUES, OR DAMAGES TO YOUR MOBILE DEVICE OR OTHER HARDWARE OR SOFTWARE THAT IS CAUSED BY THE SERVICE OR ANY OF MOBCRUSH’S SYSTEMS, APPLICATIONS, CODE, PROCESSES OR METHODS, (IV) ANY DAMAGES CAUSED BY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, OTHER USERS, (V) ANY DAMAGES CAUSED BY MATTERS BEYOND MOBCRUSH’S REASONABLE CONTROL (SUCH AS ACTS OF GOD OR TELECOMMUNICATION FAILURES), (VI) ANY DAMAGES CAUSE BY ANY USER CONTENT, OR (VII) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $50.00 (U.S.). IN ADDITION, MOBCRUSH SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY USER CONTENT. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. MOBCRUSH HAS NO LIABILITY IN CONNECTION WITH ANY THIRD PARTY PRODUCTS OR SERVICES AVAILABLE THROUGH, OR ADVERTISED ON, THE SERVICE (SUCH AS, THIRD PARTY PRODUCT PROMOTIONS).
You shall indemnify and hold harmless Mobcrush, its affiliates, its partners, and each of its, and its affiliates, and its partners, employees, contractors, directors, suppliers and representatives from all liabilities, losses, damages, claims, and expenses, including reasonable attorneys' fees, that arise from or in connection with (i) Your breach of this Agreement, (ii) any of Your Content (including, without limitation, with respect to the violation of any third party intellectual property rights, or rights of privacy or publicity) or (ii) any disputes or other issues you have or may have with any other Mobcrush users. Mobcrush reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully assist and cooperate with Mobcrush in asserting any available defenses.
Mobcrush has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Service. In addition, Mobcrush will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Service, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Mobcrush shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
You are solely responsible for Your interactions with other Service users (for example, in chat forums or engagement during game play). Mobcrush reserves the right, but has no obligation, to monitor disputes between Our users. If You have a dispute with one or more users of the Service, You shall and hereby do release Mobcrush (and its officers, directors, agents, subsidiaries, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. To the extent We assist in the resolution of any dispute between You and any other Service users, such assistance is only a courtesy and, therefore, You acknowledge that Mobcrush shall not be responsible or liable for such assistance or the results thereof. You are solely responsible for Your interactions with other Service users (for example, in chat forums or engagement during game play). Mobcrush reserves the right, but has no obligation, to monitor disputes between Our users. If You have a dispute with one or more users of the Service, You shall and hereby do release Mobcrush (and its officers, directors, agents, subsidiaries, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. To the extent We assist in the resolution of any dispute between You and any other Service users, such assistance is only a courtesy and, therefore, You acknowledge that Mobcrush shall not be responsible or liable for such assistance or the results thereof. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
If You want to terminate this Agreement – You must cancel Your Service account. You can cancel Your account by going selecting the ‘delete this Mobcrush Account’ on Your profile page within the Application. Your personal data will then be removed within 48 business hours. If You do not have an account, You can terminate this Agreement by ceasing to use the Service. Mobcrush may terminate or suspend Your access to the Service at any time, with or without cause. Upon termination, You will no longer access (or attempt to access) the Service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, all warranty disclaimers, limitations of liability and disputes resolutions provisions.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Service or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at email@example.com.
Mobcrush’s takes the protection of intellectual property rights very seriously. If You believe that any content on the Services is infringing any copyright Your own or control, please refer to Our Copyright Policy . The policy sets out clear procedures for You to follow to request that such content be removed from the Service.
In the event You are using the Application in connection with a device provided by Apple, Inc. (“Apple”), the following shall apply:
Both You and Mobcrush’s acknowledge that this Agreement is concluded between You and Mobcrush’s only, and not with Apple, and that Apple is not responsible for the Application or any content available thru the Application;
You will only use the Application in connection with an Apple device that You own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, You may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to You will be to refund to You the purchase price, if any, of the Application;
You acknowledge and agree that Mobcrush’s, and not Apple, is responsible for addressing any claims You or any third party may have in relation to the Application;
You acknowledge and agree that, in the event of any third party claim that the Application or Your possession and use of the Application infringes that third party’s intellectual property rights, Mobcrush’s, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties;
Both You and Mobcrush’s acknowledge and agree that, in Your use of the Application, You will comply with any applicable third party terms of agreement, which may affect or be affected by such use; and
Both You and Mobcrush acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon Your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as the third party beneficiary hereof.
Let's Try To Work It Out. Ideally, if You have any concerns or complaint against Mobcrush, We would like to resolve the issue without resorting to formal court or arbitration proceedings. Therefore, before filing a claim against Mobcrush, You agree to try to resolve the dispute informally by contacting firstname.lastname@example.org. Mobcrush will attempt to resolve the dispute informally (and will contact You via email). If a dispute is not resolved within 15 days of submission, You may bring a formal proceeding.
Arbitration. Any disputes that are not settled informally shall be settled by binding arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). The arbitrator shall be selected by joint agreement between You and Mobcrush. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court. The arbitration proceeding shall take place in San Francisco, California using the English language. Notwithstanding the foregoing, either party may bring claims for equitable or injunctive relief before a court (see the “General” section below) at any time.Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by notifying Mobcrush in writing within 30 days of the date that You first become bound by this Agreement. Your opt-out request must be sent to:
Mobcrush, Inc. (ATTN: Arbitration Opt-out)
301 Arizona Ave, Ste 200
Santa Monica, CA 90401
No Class Actions. You may only resolve disputes with Mobcrush on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed. This paragraph will not apply to the extent prohibited by applicable law.
Going to Court. Subject to the arbitration provision above, You agree that the exclusive jurisdiction and venue for all disputes arising in connection with this Agreement shall be in the state and Federal courts located in San Francisco, California. You hereby submit to such jurisdiction and venue.
Limitation on Liability:
If you are a consumer resident in the European Union, neither Mobcrush, or its officers, directors, employees, agents or licensor, nor you (if you are an individual customer), will be liable for any: (i) losses that were not caused by any breach on their or your part; (ii) any indirect or consequential losses (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure); or (iii) any indirect or consequential losses that were not foreseeable by both you and Mobcrush when this Agreement was entered or updated (as applicable).
Intellectual Property Infringement:
If you believe that any copyright you own has been infringed by content on the Service, and right is not subject to US law and jurisdiction, then you should let Mobcrush know via the procedure set in Mobcrush’s US Digital Millennium Copyright Act.
To the extent you are a consumer resident of the European Union, the provisions of this Agreement (such as the limitation on liability and warranty disclaimers) may be limited by applicable law.
If you have any concerns regarding this Agreement, please contact us at email@example.com
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Mobcrush shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Mobcrush’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by You except with Mobcrush’s prior written consent. Mobcrush may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement.
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