Effective Date: Nov 11, 2024
- Binding Contractual Terms
This Service is operated by The Company LLC (“MBPS,” “Company,” , “the Company“, “us,” “our,” or “we”), a company registered in Delaware with an address of 200 E Van Buren, Floor 4, Phoenix, AZ 85004. These Terms of Use (“Terms“) set forth the terms and conditions under which you are authorized to use our Service” which Includes www.The Company.com, any website where we post these Terms, and any subdomains and mobile versions thereof (the “Website”), as well as The Company platform, mobile application (“Mobile App”), portal, and related client services (the “Platform”), as well as our online products or services, marketing emails, advertisements, or other similar services.
Authorized users of the Platform (“Platform Users”) access the Platform subject to an agreement between us and our Clients (“Client Agreement.”) The Client Agreement controls to the extent of any conflict with these Terms.
We will also collect and process personal data as set forth in our privacy policy. If you do not agree to these Terms do not use our Service.
Note, that these Terms are subject to change from time to time, as described further below. You agree to the most recent Terms through your continued use of our Service.
GENERAL ARBITRATION NOTICE
IF YOU ARE A USER OF OUR WEBSITE (EXCLUDING PLATFORM USERS ACCESSING THE PLATFORM ON BEHALF OF A CLIENT PURSUANT TO AN CLIENT AGREEMENT), THESE TERMS Include AN AGREEMENT TO ARBITRATE, AND YOU WAIVE YOUR RIGHT TO BRING CLAIMS IN COURT, BEFORE A JURY, AND ON A CLASS BASIS OR AS PART OF SIMILAR COLLECTIVE ACTIONS. PLEASE SEE THE “DISPUTE RESOLUTION” SECTION BELOW FOR ADDITIONAL INFORMATION. THIS AGREEMENT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH The Company, NO MATTER WHEN ARISING OR ASSERTED, THROUGH BINDING INDIVIDUAL ARBITRATION (WITH LIMITED EXCEPTIONS). YOU ACKNOWLEDGE AND AGREE THAT YOU AND The Company EACH WAIVE THE RIGHT TO A TRIAL BY JURY, AND THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
- Third Party Services and Content
The Service may contain links to third-party websites and online services (such as Client websites) that are not owned or controlled by The Company. The Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or online services, and you access and use these websites or online services solely at your own risk. These links are not endorsements, sponsorship or recommendation of the material on these third-party websites or online services or any association with their operators.
- Changes to Services
We reserve the right to modify or discontinue the Service (or any portion of the Service), temporarily or permanently, with or without notice to you, and are not obligated to support or update the Service. Unless explicitly stated otherwise, any new features of the Service will be subject to these Terms.
- Changes to our Terms
We may change these Terms at any time by posting an updated version on our Service. Please review the Terms each time you visit the Service. BY USING THE SERVICE, YOU AGREE TO BE BOUND BY THE MOST RECENT VERSION OF THESE TERMS. Any amended version of the Terms supersedes and replaces the prior version of the Terms.
- Your Representations
As a condition of your right to use our Websites, you represent that you must be at least 18 years of age. You warrant that you are not a person barred from accessing the Websites under the laws of the United States or any other country, or pursuant to these Terms.
- Use of our platform
Client Users may be required to create an account and specify a password in order to use certain services or features on our Service. You must provide truthful and accurate information, and update your account to reflect any changes.
Client User accounts may be assigned to you by an administrator, such as your employer. Additional terms may apply to Client Users’ use of our Services, including any Client Agreement. Your administrator may be able to access or disable your account without our involvement.
You may not share Client User account credentials with anyone else. Please keep your password confidential, and do not to use it on other websites. If you believe that your account has been compromised at any time, please notify your system administrator.
Our Platform Includes marketing and artificial intelligence features. You are responsible for your use of these services, including the responsible and compliant uses of artificial intelligence tools, ensuring you have consent to send marketing messages (whether via email, SMS, or otherwise), and other features of the Platform. We may suspend Client User accounts that do not comply with these Terms.
- Restricted activities
When you use the Service, you must comply with all laws, and you may not use the Service in an inappropriate manner, or in a way that will harm us, our Clients, or any third party. You must not (without limitation):
- use the Service for any purpose other than for using the features and functions that are part of your subscription, your access rights, or that we intentionally make available to you;
- copy, download, distribute, reverse engineer, or attempt to derive any source code, algorithm, model, or other non-public proprietary (LLCluding trade secrets) component of the Service (except for Your Content) in any way without the prior written authorization of The Company;
- attempt to extract or retrieve any training data, or other data filtered, blocked, or otherwise not made available through the normal use of the Service;
- alter, modify or make derivative works from any part of the Service (other than Your Content) without the prior written authorization of The Company;
- resell or attempt to license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party, all or any part of the rights granted to you under these Terms, or the Service, in whole or in part;
- modify, copy, distribute, download, scrape, use to train software or artificial intelligence, or transmit in any form or by any means any Content from the Service other than Your Content;
- provide false personal information or create an account for anyone other than yourself without permission;
- create another account without our permission if we have disabled your account;
- share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account;
- assign or transfer your account or login information to anyone;
- use web crawlers, robots, web scutters, ants, automatic indexers, bots, worms, and other such devices in connection with the Service; provided, however, that general-purpose Internet search engines and non-commercial public archives that use tools to gather information for the sole purpose of displaying hyperlinks to the Service are granted a limited exception from the foregoing exclusion, provided that they do so from a stable IP address or range of IP addresses using an easily-identifiable agent;
- post, transmit or submit without authorization any sensitive or confidential information (including social security or alternate national identity numbers, non-public phone numbers or non-public email addresses), or any false, misleading, unlawful, infringing, threatening, abusive, harassing, libelous, defamatory, discriminatory, obscene, inflammatory, scandalous, or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate the law;
- upload, download, post, email or otherwise transmit any material that may infringe copyright, patent, trademark, trade secret, or other intellectual property, proprietary, or privacy rights of any party;
- use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party’s use of the Service;
- obtain or attempt to obtain any content through any means not intentionally made available or provided for through the Service;
- impersonate or misrepresent any person or entity or your affiliation with someone else;
- collect personal information of other users;
- harvest information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications;
- remove, modify, disable, block, obscure or otherwise impair any advertising in connection with the Service;
- solicit other users to join, become members of, or contribute money to any online service or organization other than The Company;
- post or transmit any worms, viruses, Trojans, or other harmful, disruptive, or destructive files, code, or programs to the Service;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
- stalk, bully, or otherwise harass any person or entity; or
- harm minors in any way.
- Users who violate the Terms
The Company may, at its sole discretion, disable, partially disable, or terminate the accounts of any users who violate these Terms, including, (without limitation) if: (1) Your Content infringes copyrights, trademarks, rights of publicity, or other intellectual property rights, especially if they do so repeatedly, (2) you or a Client fail to pay any applicable fees, (3) you provide false or inaccurate account or payment information; (4) you breach these Terms; (5) you violate our policies applicable to the Services or those of any Client; and (6) users who misuse or challenge The Company’s rights in the Your Content.
- Content
You or may provide or make available to the Service certain content or material, e.g. prompt, text, interactions, ratings, reactions, seeds, profile information, images, or similar inputs (“Inputs”). The service will automatically generate text or content derived from your Inputs (“Outputs” and together with Inputs “Your Content”). We are not responsible for Inputs submitted through your account, including verifying that you have all rights to the inputs and other licenses, rights, title, or interest in and to the Inputs as necessary for us to use the Inputs as specified in these Terms, and to grant the licenses herein or by any Client Agreement. Subject to the licenses granted herein, any Client Agreement, and applicable law, as between you and Company, you (or the client on whose behalf you use our Service) retain ownership of Your Content. You acknowledge that your Output: (i) may not be copyrightable; (ii) Outputs generated by the Service may be the same or similar for different users, and your rights to Outputs granted by these Terms are neither exclusive, nor do they grant you any rights in or to any other user’s Outputs or Inputs, or modify the rights to any such content set forth in a Client Agreement.
Your Content must not: (1) violate the copyright, trade secret or other third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner of sufficient rights to grant The Company all of the licenses and rights granted herein; (2) Include defamatory content, falsehoods, misrepresentations or other content that could damage The Company or any third party; or (3) Include material that is in violation of these Terms.
- Intellectual Property
Everything you see, hear, or otherwise, experience on the Service, including but not limited to the graphics, videos, audio recordings, text, software, photographs, scripts, software screens, design elements, artwork, templates, layout designs, interactive features and the like, the concepts and ideas underlying the Service, and all statistical, analytical, and other data captured by or through the Service other than Your Content, together with the trademarks, service marks and logos contained therein (“Marks”) (collectively, “Our Content”), are owned by or licensed to The Company, subject to copyright and other intellectual property rights under the United States and international laws and conventions. The Company owns the copyright in the selection, coordination, arrangement and enhancement of Our Content. Any unauthorized use of any materials on the Service or use of the Marks may violate copyright, trademark, and other laws. The Company and the Company logo are (without limitation) The Company’s Marks.
Except for the rights we expressly grant to you in these Terms or any Client Agreement, the Service and Our Content may not be copied, downloaded, modified, reproduced, distributed, published, performed, streamed, transmitted, broadcasted, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. The Company reserves all rights not expressly granted in and to the Service and Our Content. You agree not to use, copy, download, or distribute any of the Content other than as expressly permitted herein, including any use, copying, downloading, making derivative works from, or distribution of Our Content of third parties obtained through the Service for any commercial purposes. You may not LLCorporate Our Content into or stream or transmit the Content via any hardware or software application or make it available via frames or in-line links unless expressly permitted by The Company in writing. In all cases where you may use Our Content or the Service, you must retain all copyright and other proprietary notices. You may not circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of Our Content or enforce limitations on use of the Service or Our Content, nor may you scrape or use any extraction methods to obtain Our Content or data from the Service.
- Errors, Inaccuracies, and Omissions
Occasionally there may be information on the Service that contains typographical errors, inaccuracies or omissions. WE UNDERTAKE NO OBLIGATION TO UPDATE, AMEND OR CLARIFY INFORMATION ON THE SERVICE OR ON ANY RELATED WEBSITE, INCLUDING WITHOUT LIMITATION, PRICING INFORMATION, EXCEPT AS REQUIRED BY LAW. No specified update or refresh date applied in the Service or on any related website should be taken to indicate that all information in the Service or on any related website has been modified or updated.
- Disclaimers
YOU AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. The Company, ITS OFFICERS, DIRECTORS, AFFILIATES, LICENSORS, CONTRACTORS, EMPLOYEES AND AGENTS (“COMPANY PARTIES”) GIVE NO WARRANTY AND MAKE NO REPRESENTATION IN RELATION TO THE SERVICE, OUR CONTENT, YOUR CONTENT, AND ANY THIRD PARTY SOFTWARE, SERVICES OR CONTENT.
The Company PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW AND YOU WAIVE ANY REPRESENTATION OR WARRANTY ON THE PART OF THE Company PARTIES RELATING TO THE SERVICE, OUR CONTENT, OR YOUR CONTENT, WHETHER EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE IN CONNECTION WITH THE SERVICE, ANY SOFTWARE OR SERVICES ACCESSED, LICENSED OR PROVIDED TO YOU BY THE The Company PARTIES OR A THIRD PARTY THAT MAY BE IMPLIED BY THESE TERMS, BY CUSTOM, OR BY LAW OR OTHERWISE, UNLESS EXPRESSLY STATED HEREIN. The Company PARTIES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF AVAILABILITY OF THE SERVICE, NON-DISRUPTION, SECURITY, ACCURACY, THE USE OF REASONABLE CARE AND SKILL, QUALITY, MERCHANTABILITY, TITLE OR ENTITLEMENT, FITNESS FOR A PARTICULAR PURPOSE, ABILITY TO ACHIEVE A PARTICULAR RESULT OR FUNCTIONALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, THE The Company PARTIES DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE SERVICE OR ON ANY WEBSITES OR APPS LINKED TO THE SERVICE IS ACCURATE, COMPLETE OR CURRENT; THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR ERROR; THAT THE QUALITY, SAFETY OR LEGALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE OR AGREEMENTS YOU ENTER WITH THIRD PARTIES OR ADVERTISERS WILL MEET YOUR EXPECTATIONS; OR THAT SERVICE ERRORS WILL BE CORRECTED.
The Company PARTIES WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER (LLCLUDING, WITHOUT LIMITATION, DATA LOSS OR CORRUPTION), RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (3) UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION, CONTENT, AND INFORMATION STORED THEREIN, (4) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (5) BUGS, VIRUSES, TROJAN HORSES, DESTRUCTIVE COMPUTER CODES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, (6) LOSS OR DAMAGE OF ANY KIND LLCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE; OR (7) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (3) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
- Indemnity
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE The Company PARTIES FROM AND AGAINST ANY CLAIM, LOSS, OBLIGATION, DEMAND, DAMAGE, COST, LIABILITY, EXPENSE, AND ATTORNEY’S FEES ARISING TO ANY OF THE The Company PARTIES AS A RESULT OF ANY CLAIM, DEMAND OR PROCEEDINGS BROUGHT OR THREATENED AGAINST THE The Company PARTIES IN CONNECTION WITH (1) YOUR USE OF, ACCESS TO, OR MISUSE OF THE SERVICE; (2) YOUR BREACH OF ANY OF THESE TERMS; (3) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, INTELLECTUAL OR PHYSICAL PROPERTY RIGHTS, OR PRIVACY RIGHT; (4) YOUR CONTENT; (5) ANY TRANSACTION YOU CONDUCT AS A RESULT OF THE CONTACT FACILITATED BY THE SERVICE; OR (6) ANY ACTIVITY RELATED TO YOUR ACCOUNT, OR YOUR OR ANY OTHER PERSON’S ACCESS TO THE SERVICE USING YOUR ACCOUNT.
IF The Company PARTIES DO TAKE ANY LEGAL ACTION AGAINST YOU AS A RESULT OF YOUR VIOLATION OF THESE TERMS, THE The Company PARTIES WILL BE ENTITLED TO RECOVER FROM YOU, AND YOU AGREE TO PAY, ALL REASONABLE ATTORNEYS’ FEES AND COSTS OF SUCH ACTION, IN ADDITION TO ANY OTHER RELIEF GRANTED TO THE The Company PARTIES.
TO THE EXTENT YOU REQUEST THAT WE SEND A MESSAGE TO ANOTHER USER THROUGH THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE OBTAINED ALL CONSENTS NECESSARY TO SEND SUCH MESSAGES, LLCLUDING SENDING MESSAGES VIA EMAIL OR VIA AUTOMATED MEANS, USING A RANDOM/SEQUENTIAL NUMBER DIALER, AND FOR TO The Company’S MARKETING OR PROMOTIONAL PURPOSES, AND YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE The Company PARTIES FROM AND AGAINST ANY CLAIM, LOSS, OBLIGATION, DEMAND, DAMAGE, COST, LIABILITY, EXPENSES, AND ATTORNEY’S FEES ARISING AS A RESULT OF ANY CLAIM, DEMAND OR PROCEEDINGS BROUGHT OR THREATENED AGAINST THE The Company PARTIES IN CONNECTION WITH YOUR FAILURE TO OBTAIN PROPER CUSTOMER OR POTENTIAL CUSTOMER CONSENT TO INPUTTING PERSONAL INFORMATION INTO THE SERVICE OR SENDING TEXT MESSAGES, EMAILS, OR OTHER NOTIFICATIONS THAT ARE SENT VIA THE SERVICE, INCLUDING BUT NOT LIMITED TO, CLAIMS ARISING UNDER THE TELEPHONE CONSUMER PROTECTION ACT AND THE CAN-SPAM ACT.
- LIMITATIONS of Liability
IN NO EVENT SHALL THE The Company PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING FROM OR RELATING TO THE SERVICE, ANY THIRD PARTY PRODUCTS OR SERVICES, OR OTHERWISE UNDER THESE TERMS, EVEN IF THE The Company PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
The Company PARTIES’ MAXIMUM AGGREGATE LIABILITY ARISING UNDER OR IN RELATION TO THESE TERMS OR IN RELATION TO YOUR USE OR OUR PROVISION OF THE SERVICE TO YOU, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, MISREPRESENTATION, NEGLIGENCE, OR OTHER THEORY OF LAW WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “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.”
THE LIMITATIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Claims limitations
Any claims relating to use of the Service must be bought within one (1) year from the date the cause of action arose. Claims brought after such period are VOID. Those who access or use the Service do so at their own volition and are responsible for compliance with local and all other applicable laws, restrictions, and regulations.
- Equitable Relief
If you violate these Terms, we may seek injunctive relief or other equitable relief.
- Third Party Beneficiaries
All The Company Parties are intended third-party beneficiaries of these Terms and may enforce these Terms against you.
- Force Majeure
A party will not be in breach of these Terms, nor liable for any failure or delay in performance of any of its obligations under these Terms where such failure or delay arises from or is attributable to acts, events, omissions or accidents beyond its reasonable control LLCluding an act of God, fire, flood, earthquake, windstorm or other natural disasters, explosion or accidental damage, war, the threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion or riots, shortage of raw materials or supplies, industrial action or strike, power outages, or electronic or communication network breakdowns (“Force Majeure Events”). In the event of a Force Majeure Event affecting the provision of the Service by The Company, The Company will use reasonable efforts to notify users through the Service or through its website or by email communication.
- Dispute Resolution
Except for Client Users who use our Platform pursuant to a Client Agreement (where disputes shall be resolved pursuant to the Client Agreement with respect to the use of the Platform) any dispute arising out of or relating in any way to your use of our Services or any products, services, or information you receive through our Services, shall be submitted to confidential, binding arbitration in San Francisco, California, USA pursuant to the American Arbitration Association’s Commercial Arbitration Rules. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. No arbitration under these Terms of Use may be joined with another arbitration related to the subject matter hereof. Notwithstanding the foregoing arbitration requirement, with regard to any actual or potential violation of our intellectual property rights, we may seek injunctive or other appropriate relief in the courts of San Francisco, California, USA and you hereby consent to the exclusive jurisdiction of such courts and waive all objections thereto. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, you waive your right to bring or participate in a class action lawsuit and we each waive any right to a jury trial.
The following processes shall govern the arbitration process:
- Before commencing an arbitration, you agree to inform us of the nature of the claim and the relief you seek by sending an email to team@mbps.com
- Within 10 days, The Company will contact you and thereafter you and we will attempt to resolve the claim or issue in a satisfactory way.
- If, following these attempts at exploring a resolution, you intend to proceed with an arbitration claim, we will collectively seek to reach an agreement on the selection of an arbitrator to hear and decide the dispute and how it will be heard, LLCluding whether to submit the dispute to the arbitrator only in written form, by proceedings conducted via video or in-person.
- In the event that you and we cannot agree on an arbitrator, the process set forth in California Civil Code Section 1281.6 will be followed. That process allows for a court to select an arbitrator.
- Governing Law
These terms shall be governed by and construed in accordance with the laws of the state of California and the United States, without giving effect to any principles of conflicts of law. with the exception of any matters subject to arbitration as described above, you agree that any action at law or in equity arising out of or relating to these terms shall be filed only in the state or federal courts located in San Francisco, California, USA and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties.
- Class action Waiver
WITHOUT LIMITATION OF SECTION 19, ALL DISPUTE RESOLUTION PROCEEDINGS (WHETHER ARBITRATED AS PROVIDED IN SECTION 19 OR OTHERWISE) WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION. YOUR ACCESS AND CONTINUED USE OF THE SERVICE SIGNIFIES YOUR EXPLICIT CONSENT TO THIS WAIVER.
- Subpoena Fees
If The Company has to provide information in response to a subpoena related to your account, then we may charge you for our costs. These costs may include attorney and employee time spent retrieving records, preparing documents, and participating in a deposition.
- Export Control
Software and the transmission of applicable technical data, if any, in connection with the Service may be subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States and the country in which you reside.
- Assignment
The Terms, and any rights and licenses granted hereunder, may be transferred or assigned by you only with The Company’s prior written consent but may be assigned by The Company without restriction and without notice to you.
- General
These Terms constitute the entire agreement between the parties and supersede all other agreements, statements, and other arrangements between the parties in relation to the subject matter hereof. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction, to be invalid, void, or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms shall remain in full force and effect. Each party acknowledges that it has not relied on or been induced to enter these Terms by a representation other than those expressly set out in these Terms.
Except for the intended third party beneficiaries specified herein, The Company and you do not intend to confer, and these Terms will not be construed as conferring, any right, remedy, obligation or liability of any kind on any person other than The Company, you, and each party’s successors and assigns. No modification, alteration or waiver of any of the provisions of these Terms will be effective unless in writing and signed on behalf of each of the parties. No waiver of any of these Terms shall be deemed a further or continuing waiver of such term or any other term, and The Company’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
- SUPPLEMENTAL TERMS
Apple Required Terms
- Acknowledgment: The Company and you acknowledge that the Terms are concluded between The Company and you only, and not with Apple, and The Company, not Apple, is solely responsible for the Mobile App and the content thereof.
- Scope of License: The license granted to you for the Mobile App is limited to a non-transferable license to use the Mobile App on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Use, except that the Mobile App may be accessed, acquired, and used by other accounts associated with you via Family Sharing or volume purchasing.
- Maintenance and Support: As between Apple and The Company, The Company is solely responsible for providing maintenance and support, if any, with respect to the App, as specified in the Terms, or as required under applicable law. The Company and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- Warranty: As between Apple and The Company, The Company 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 the Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the relevant application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be The Company’s sole responsibility.
- Product Claims: The Company and you acknowledge that The Company, not Apple, is responsible for addressing any claims by you or any third party relating to the Mobile App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights: The Company and you acknowledge that, in the event of any third party claim that the Mobile App or your possession and use of the Mobile App infringe that third party’s intellectual property rights, to the extent a warranty of non-infringement is not validly disclaimed, The Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance: You 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.
- Developer Name and Address: The Company may be contacted as follows in connection with any questions, complaints or claims with respect to the Mobile App : team@mbps.com
- Third Party Terms of Agreement: You must comply with third party terms of agreement when using the Mobile App.
- Third Party Beneficiary: The Company and you acknowledge and agree that Mobile Apple, and Mobile Apple’s subsidiaries, are third party beneficiaries of the Terms, and that, upon your acceptance of the Terms, Mobile Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary thereof.
Additional Terms Relevant to Google LLC.
- These Terms constitute a license agreement in lieu of any license grant provided by Google to use the Mobile App on a Supported Device. A “Supported Device” is a combination of a mobile device running Android software and an Android software version(s) that is supported by the Mobile App . These Terms are made between you and The Company only, and not with Google. The Company is solely responsible for the Mobile App.
- The Google Play marketplace is owned and operated by Google LLC. Your use of Google Play is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/Terms) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html and together with the Google Terms of Service called the “Terms”). The Google Play Terms of Service and Google Terms of Service shall take precedence in that order in the event of a conflict between them, to the extent of such conflict.
- The Company is solely responsible for providing, and Google has no obligation to provide, maintenance and support for the Mobile App. Support requests, as well as questions, complaints or claims regarding the Mobile App, may be directed to the address below.
- To the maximum extent permitted by applicable law, Google will have no warranty obligation whatsoever with respect to the Mobile App, and will not be liable for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
- Google shall not be responsible for addressing any claims by you or any third party relating to the Mobile App or your possession and/or use of the Mobile App, LLCluding but not limited to (i) product liability claims, (ii) any claim that the Mobile App fails to conform to any legal or regulatory requirement, or (iii) claims arising under consumer protection or similar legislation.
- Google shall not be responsible for the investigation, defense, settlement or discharge of any claim that the Mobile App or your possession and use thereof infringes a third party’s intellectual property rights.
- You represent and warrant that (i) the Mobile App will not be downloaded or used in, or transported to, a country that is subject to a United States Government embargo or has been designated by the United States Government as a “terrorist-supporting” country, and (ii) you are not listed on any United States Government list of prohibited or restricted parties.
- For the improvement of Google Play, Google may collect certain usage statistics from Google Play and your Supported Device, including but not limited to, information on how Google Play and your Supported Device are being used. The data collected is examined in the aggregate to improve Google Play for users and developers and is maintained in accordance with Google’s Privacy Policy. We can neither control nor are responsible for the privacy practices of Google. To ensure the improvement of the Mobile App, limited aggregate data may be available from Google to The Company upon The Company’s written request.
- Removal of Mobile App. The Company or Google LLC. may, at any time and without notice, restrict, interrupt or prevent use of the Mobile App, or delete the Mobile App from your Supported Device, without entitling you to any refund, credit or other compensation from The Company or any third party (including, but not limited to, Google LLC. or your network connectivity provider).
- Our use and transfer to any other app of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements.
MBPS TERMS OF USE
Effective Date: April 16, 2024
- Binding Contractual Terms
This Service is operated by MBPS AI, Inc. (“MBPS,” “Company,” “us,” “our,” or “we”), a company registered in Delaware with an address of 200 E Van Buren, Floor 3, Phoenix, AZ 85004. These Terms of Use (“Terms“) set forth the terms and conditions under which you are authorized to use our Service” which includes: www.MBPS.com, and any website where we post these Terms, and any subdomains and mobile versions thereof (the “Website”), as well as the MBPS platform, mobile application (“Mobile App”), portal, and related client services (the “Platform”), as well as our online products or services, marketing emails, advertisements, or other similar services.
Authorized users of the Platform (“Platform Users”) access the Platform subject to an agreement between us and our Clients (“Client Agreement.”) The Client Agreement controls to the extent of any conflict with these Terms.
We will also collect and process personal data as set forth in our privacy policy. If you do not agree to these Terms do not use our Service.
Note, these Terms are subject to change from time to time, as described further below. You agree to the most recent Terms through your continued use of our Service.
GENERAL ARBITRATION NOTICE
IF YOU ARE A USER OF OUR WEBSITE (EXCLUDING PLATFORM USERS ACCESSING THE PLATFORM ON BEHALF OF A CLIENT PURSUANT TO AN CLIENT AGREEMENT), THESE TERMS INCLUDE AN AGREEMENT TO ARBITRATE, AND YOU WAIVE YOUR RIGHT TO BRING CLAIMS IN COURT, BEFORE A JURY, AND ON A CLASS BASIS OR AS PART OF SIMILAR COLLECTIVE ACTIONS. PLEASE SEE THE “DISPUTE RESOLUTION” SECTION BELOW FOR ADDITIONAL INFORMATION. THIS AGREEMENT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH MBPS, NO MATTER WHEN ARISING OR ASSERTED, THROUGH BINDING INDIVIDUAL ARBITRATION (WITH LIMITED EXCEPTIONS). YOU ACKNOWLEDGE AND AGREE THAT YOU AND MBPS EACH WAIVE THE RIGHT TO A TRIAL BY JURY, AND THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
- Third Party Services and Content
The Service may contain links to third party websites and online services (such as Client websites) that are not owned or controlled by MBPS. MBPS has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or online services, and you access and use these websites or online services solely at your own risk. These links are not endorsements, sponsorship or recommendation of the material on these third-party websites or online services or any association with their operators.
- Changes to Services
We reserve the right to modify or discontinue the Service (or any portion of the Service), temporarily or permanently, with or without notice to you, and are not obligated to support or update the Service. Unless explicitly stated otherwise, any new features of Service will be subject to these Terms.
- Changes to our Terms
We may change these Terms at any time by posting an updated version on our Service. Please review the Terms each time you visit the Service. BY USING THE SERVICE, YOU AGREE TO BE BOUND BY THE MOST RECENT VERSION OF THESE TERMS. Any amended version of the Terms supersedes and replaces the prior version of the Terms.
- Your Representations
As a condition of your right to use our Websites, you represent that you must be at least 18 years of age. You warrant that you are not a person barred from accessing the Websites under the laws of the United States or any other country, or pursuant to these Terms.
- Use of our platform
Client Users may be required to create an account and specify a password in order to use certain services or features on our Service. You must provide truthful and accurate information, and update your account to reflect any changes.
Client User accounts may be assigned to you by an administrator, such as your employer. Additional terms may apply to Client Users’ use of our Services, including any Client Agreement. Your administrator may be able to access or disable your account without our involvement.
You may not share Client User account credentials with anyone else. Please keep your password confidential, and do not to use it on other websites. If you believe that your account has been compromised at any time, please notify your system administrator.
Our Platform includes marketing and artificial intelligence features. You are responsible for your use of these service, including the responsible and compliant uses of artificial intelligence tools, ensuring you have consent to send marketing messages (whether via email, SMS or otherwise), and other features of the Platform. We may suspend Client User accounts that do not comply with these Terms.
- Restricted activities
When you use the Service, you must comply with all laws, and you may not use the Service in an inappropriate manner, or in way that will harm us, our Clients, or any third party. You must not (without limitation):
- use the Service for any purpose other than for using the features and functions that are part of your subscription, your access rights, or that we intentionally make available to you;
- copy, download, distribute, reverse engineer, or attempt to derive any source code, algorithm, model, or other non-public proprietary (including trade secrets) component of the Service (except for Your Content) in any way without the prior written authorization of MBPS;
- attempt to extract or retrieve any training data, or other data filtered, blocked, or otherwise not made available through the normal use of the Service;
- alter, modify or make derivative works from any part of the Service (other than Your Content) without the prior written authorization of MBPS;
- resell or attempt to license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party, all or any part of the rights granted to you under these Terms, or the Service, in whole or in part;
- modify, copy, distribute, download, scrape, use to train software or artificial intelligence, or transmit in any form or by any means any Content from the Service other than Your Content;
- provide false personal information or create an account for anyone other than yourself without permission;
- create another account without our permission if we have disabled your account;
- share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account;
- assign or transfer your account or login information to anyone;
- use web crawlers, robots, web scutters, ants, automatic indexers, bots, worms, and other such devices in connection with the Service; provided, however, that general purpose Internet search engines and non-commercial public archives that use tools to gather information for the sole purpose of displaying hyperlinks to the Service are granted a limited exception from the foregoing exclusion, provided that they do so from a stable IP address or range of IP addresses using an easily-identifiable agent;
- post, transmit or submit without authorization any sensitive or confidential information (including social security or alternate national identity numbers, non-public phone numbers or non-public email addresses), or any false, misleading, unlawful, infringing, threatening, abusive, harassing, libelous, defamatory, discriminatory, obscene, inflammatory, scandalous, or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate the law;
- upload, download, post, email or otherwise transmit any material that may infringe copyright, patent, trademark, trade secret, or other intellectual property, proprietary, or privacy rights of any party;
- use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party’s use of the Service;
- obtain or attempt to obtain any content through any means not intentionally made available or provided for through the Service;
- impersonate or misrepresent any person or entity or your affiliation with someone else;
- collect personal information of other users;
- harvest information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications;
- remove, modify, disable, block, obscure or otherwise impair any advertising in connection with the Service;
- solicit other users to join, become members of, or contribute money to any online service or organization other than MBPS;
- post or transmit any worms, viruses, Trojans, or other harmful, disruptive, or destructive files, code, or programs to the Service;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
- stalk, bully, or otherwise harass any person or entity; or
- harm minors in any way.
- Users who violate the Terms
MBPS may, at its sole discretion, disable, partially disable, or terminate the accounts of any users who violate these Terms, including, (without limitation) if: (1) Your Content infringes copyrights, trademarks, rights of publicity, or other intellectual property rights, especially if they do so repeatedly, (2) you or a Client fail to pay any applicable fees, (3) you provide false or inaccurate account or payment information; (4) you breach these Terms; (5) you violate our policies applicable to the Services or those of any Client; and (6) users who misuse or challenge MBPS’s rights in the Your Content.
- Content
You or may provide or make available to the Service certain content or material, e.g. prompt, text, interactions, ratings, reactions, seeds, profile information, images, or similar inputs (“Inputs”). The service will automatically generate text or content derived from your Inputs (“Outputs” and together with Inputs “Your Content”). We are not responsible for Inputs submitted through your account, including verifying that you have all rights to the inputs and other licenses, rights, title, or interest in and to the Inputs as necessary for us to use the Inputs as specified in these Terms, and to grant the licenses herein or by any Client Agreement. Subject to the licenses granted herein, any Client Agreement, and applicable law, as between you and MBPS, you (or the client on whose behalf you use our Service) retain ownership of Your Content. You acknowledge that your Output: (i) may not be copyrightable; (ii) Outputs generated by the Service may be the same or similar for different users, and your rights to Outputs granted by these Terms are neither exclusive, nor do they grant you any rights in or to any other user’s Outputs or Inputs, or modify the rights to any such content set forth in a Client Agreement.
Your Content must not: (1) violate the copyright, trade secret or other third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner of sufficient rights to grant MBPS all of the licenses and rights granted herein; (2) include defamatory content, falsehoods, misrepresentations or other content that could damage MBPS or any third party; or (3) include material that is in violation of these Terms.
- Intellectual Property
Everything you see, hear, or otherwise experience on the Service, including but not limited to the graphics, videos, audio recordings, text, software, photographs, scripts, software screens, design elements, artwork, templates, layout designs, interactive features and the like, the concepts and ideas underlying the Service, and all statistical, analytical, and other data captured by or through the Service other than Your Content, together with the trademarks, service marks and logos contained therein (“Marks”) (collectively, “Our Content”), are owned by or licensed to MBPS, subject to copyright and other intellectual property rights under United States and international laws and conventions. MBPS owns the copyright in the selection, coordination, arrangement and enhancement of Our Content. Any unauthorized use of any materials on the Service or use of the Marks may violate copyright, trademark, and other laws. MBPS and the MBPS logo are (without limitation) MBPS’s Marks.
Except for the rights we expressly grant to you in these Terms or any Client Agreement, the Service and Our Content may not be copied, downloaded, modified, reproduced, distributed, published, performed, streamed, transmitted, broadcasted, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. MBPS reserves all rights not expressly granted in and to the Service and Our Content. You agree not to use, copy, download, or distribute any of the Content other than as expressly permitted herein, including any use, copying, downloading, making derivative works from, or distribution of Our Content of third parties obtained through the Service for any commercial purposes. You may not incorporate Our Content into or stream or transmit the Content via any hardware or software application or make it available via frames or in-line links unless expressly permitted by MBPS in writing. In all cases where you may use Our Content or the Service, you must retain all copyright and other proprietary notices. You may not circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of Our Content or enforce limitations on use of the Service or Our Content, nor may you scrape or use any extraction methods to obtain Our Content or data from the Service.
- Errors, Inaccuracies, and Omissions
Occasionally there may be information on the Service that contains typographical errors, inaccuracies or omissions. WE UNDERTAKE NO OBLIGATION TO UPDATE, AMEND OR CLARIFY INFORMATION ON THE SERVICE OR ON ANY RELATED WEBSITE, INCLUDING WITHOUT LIMITATION, PRICING INFORMATION, EXCEPT AS REQUIRED BY LAW. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
- Disclaimers
YOU AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. MBPS, ITS OFFICERS, DIRECTORS, AFFILIATES, LICENSORS, CONTRACTORS, EMPLOYEES AND AGENTS (“MBPS PARTIES”) GIVE NO WARRANTY AND MAKE NO REPRESENTATION IN RELATION TO THE SERVICE, OUR CONTENT, YOUR CONTENT, AND ANY THIRD PARTY SOFTWARE, SERVICES OR CONTENT.
THE MBPS PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW AND YOU WAIVE ANY REPRESENTATION OR WARRANTY ON THE PART OF THE MBPS PARTIES RELATING TO THE SERVICE, OUR CONTENT, OR YOUR CONTENT, WHETHER EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE IN CONNECTION WITH THE SERVICE, ANY SOFTWARE OR SERVICES ACCESSED, LICENSED OR PROVIDED TO YOU BY THE MBPS PARTIES OR A THIRD PARTY THAT MAY BE IMPLIED BY THESE TERMS, BY CUSTOM, OR BY LAW OR OTHERWISE, UNLESS EXPRESSLY STATED HEREIN. THE MBPS PARTIES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF AVAILABILITY OF THE SERVICE, NON-DISRUPTION, SECURITY, ACCURACY, THE USE OF REASONABLE CARE AND SKILL, QUALITY, MERCHANTABILITY, TITLE OR ENTITLEMENT, FITNESS FOR A PARTICULAR PURPOSE, ABILITY TO ACHIEVE A PARTICULAR RESULT OR FUNCTIONALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, THE MBPS PARTIES DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE SERVICE OR ON ANY WEBSITES OR APPS LINKED TO THE SERVICE IS ACCURATE, COMPLETE OR CURRENT; THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR ERROR; THAT THE QUALITY, SAFETY OR LEGALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE OR AGREEMENTS YOU ENTER WITH THIRD PARTIES OR ADVERTISERS WILL MEET YOUR EXPECTATIONS; OR THAT SERVICE ERRORS WILL BE CORRECTED.
THE MBPS PARTIES WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DATA LOSS OR CORRUPTION), RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (3) UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION, CONTENT, AND INFORMATION STORED THEREIN, (4) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (5) BUGS, VIRUSES, TROJAN HORSES, DESTRUCTIVE COMPUTER CODES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, (6) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE; OR (7) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (3) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
- Indemnity
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE MBPS PARTIES FROM AND AGAINST ANY CLAIM, LOSS, OBLIGATION, DEMAND, DAMAGE, COST, LIABILITY, EXPENSE, AND ATTORNEY’S FEES ARISING TO ANY OF THE MBPS PARTIES AS A RESULT OF ANY CLAIM, DEMAND OR PROCEEDINGS BROUGHT OR THREATENED AGAINST THE MBPS PARTIES IN CONNECTION WITH (1) YOUR USE OF, ACCESS TO, OR MISUSE OF THE SERVICE; (2) YOUR BREACH OF ANY OF THESE TERMS; (3) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, INTELLECTUAL OR PHYSICAL PROPERTY RIGHTS, OR PRIVACY RIGHT; (4) YOUR CONTENT; (5) ANY TRANSACTION YOU CONDUCT AS A RESULT OF THE CONTACT FACILITATED BY THE SERVICE; OR (6) ANY ACTIVITY RELATED TO YOUR ACCOUNT, OR YOUR OR ANY OTHER PERSON’S ACCESS TO THE SERVICE USING YOUR ACCOUNT.
IF THE MBPS PARTIES DO TAKE ANY LEGAL ACTION AGAINST YOU AS A RESULT OF YOUR VIOLATION OF THESE TERMS, THE MBPS PARTIES WILL BE ENTITLED TO RECOVER FROM YOU, AND YOU AGREE TO PAY, ALL REASONABLE ATTORNEYS’ FEES AND COSTS OF SUCH ACTION, IN ADDITION TO ANY OTHER RELIEF GRANTED TO THE MBPS PARTIES.
TO THE EXTENT YOU REQUEST THAT WE SEND A MESSAGE TO ANOTHER USER THROUGH THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE OBTAINED ALL CONSENTS NECESSARY TO SEND SUCH MESSAGES, INCLUDING SENDING MESSAGES VIA EMAIL OR VIA AUTOMATED MEANS, USING A RANDOM/SEQUENTIAL NUMBER DIALER, AND FOR TO MBPS’S MARKETING OR PROMOTIONAL PURPOSES, AND YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE MBPS PARTIES FROM AND AGAINST ANY CLAIM, LOSS, OBLIGATION, DEMAND, DAMAGE, COST, LIABILITY, EXPENSES, AND ATTORNEY’S FEES ARISING AS A RESULT OF ANY CLAIM, DEMAND OR PROCEEDINGS BROUGHT OR THREATENED AGAINST THE MBPS PARTIES IN CONNECTION WITH YOUR FAILURE TO OBTAIN PROPER CUSTOMER OR POTENTIAL CUSTOMER CONSENT TO INPUTTING PERSONAL INFORMATION INTO THE SERVICE OR SENDING TEXT MESSAGES, EMAILS, OR OTHER NOTIFICATIONS THAT ARE SENT VIA THE SERVICE, INCLUDING BUT NOT LIMITED TO, CLAIMS ARISING UNDER THE TELEPHONE CONSUMER PROTECTION ACT AND THE CAN-SPAM ACT.
- LIMITATIONS of Liability
IN NO EVENT SHALL THE MBPS PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING FROM OR RELATING TO THE SERVICE, ANY THIRD PARTY PRODUCTS OR SERVICES, OR OTHERWISE UNDER THESE TERMS, EVEN IF THE MBPS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
THE MBPS PARTIES’ MAXIMUM AGGREGATE LIABILITY ARISING UNDER OR IN RELATION TO THESE TERMS OR IN RELATION TO YOUR USE OR OUR PROVISION OF THE SERVICE TO YOU, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, MISREPRESENTATION, NEGLIGENCE, OR OTHER THEORY OF LAW WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “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.”
THE LIMITATIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Claims limitations
Any claims relating to use of the Service must be bought within one (1) year from the date the cause of action arose. Claims brought after such period are VOID. Those who access or use the Service do so at their own volition and are responsible for compliance with local and all other applicable laws, restrictions, and regulations.
- Equitable Relief
If you violate these Terms, we may seek injunctive relief or other equitable relief.
- Third Party Beneficiaries
All MBPS Parties are intended third party beneficiaries of these Terms and may enforce these Terms against you.
- Force Majeure
A party will not be in breach of these Terms, nor liable for any failure or delay in performance of any of its obligations under these Terms where such failure or delay arises from or is attributable to acts, events, omissions or accidents beyond its reasonable control including an act of God, fire, flood, earthquake, windstorm or other natural disaster, explosion or accidental damage, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion or riots, shortage of raw materials or supplies, industrial action or strike, power outages, or electronic or communication network breakdowns (“Force Majeure Events”). In the event of a Force Majeure Event affecting the provision of the Service by MBPS, MBPS will use reasonable efforts to notify users through the Service or through its website or by email communication.
- Dispute Resolution
Except for Client Users who use our Platform pursuant to a Client Agreement (where disputes shall be resolved pursuant to the Client Agreement with respect to the use of the Platform) any dispute arising out of or relating in any way to your use of our Services or any products, services, or information you receive through our Services, shall be submitted to confidential, binding arbitration in San Francisco, California, USA pursuant to the American Arbitration Association’s Commercial Arbitration Rules. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. No arbitration under these Terms of Use may be joined with another arbitration related to the subject matter hereof. Notwithstanding the foregoing arbitration requirement, with regard to any actual or potential violation of our intellectual property rights, we may seek injunctive or other appropriate relief in the courts of San Francisco, California, USA and you hereby consent to the exclusive jurisdiction of such courts and waive all objections thereto. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, you waive your right to bring or participate in a class action lawsuit and we each waive any right to a jury trial.
The following processes shall govern the arbitration process:
- Before commencing arbitration, you agree to inform us of the nature of the claim and the relief you seek by sending an email to team@MBPS.com.
- Within 10 days, MBPS will contact you and thereafter you and we will attempt to resolve the claim or issue in a satisfactory way.
- If, following these attempts at exploring a resolution, you intend to proceed with an arbitration claim, we will collectively seek to reach an agreement on the selection of an arbitrator to hear and decide the dispute and how it will be heard, including whether to submit the dispute to the arbitrator only in written form, by proceedings conducted via video or in-person.
- In the event that you and we cannot agree on an arbitrator, the process set forth in California Civil Code Section 1281.6 will be followed. That process allows for a court to select an arbitrator.
- Governing Law
These terms shall be governed by and construed in accordance with the laws of the state of California and the United States, without giving effect to any principles of conflicts of law. with the exception of any matters subject to arbitration as described above, you agree that any action at law or in equity arising out of or relating to these terms shall be filed only in the state or federal courts located in San Francisco, California, USA and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties.
- Class action Waiver
WITHOUT LIMITATION OF SECTION 19, ALL DISPUTE RESOLUTION PROCEEDINGS (WHETHER ARBITRATED AS PROVIDED IN SECTION 19 OR OTHERWISE) WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION. YOUR ACCESS AND CONTINUED USE OF THE SERVICE SIGNIFIES YOUR EXPLICIT CONSENT TO THIS WAIVER.
- Subpoena Fees
If MBPS has to provide information in response to a subpoena related to your account, then we may charge you for our costs. These costs may include attorney and employee time spent retrieving records, preparing documents, and participating in a deposition.
- Export Control
Software and the transmission of applicable technical data, if any, in connection with the Service may be subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States and the country in which you reside.
- Assignment
The Terms, and any rights and licenses granted hereunder, may be transferred or assigned by you only with MBPS’s prior written consent but may be assigned by MBPS without restriction and without notice to you.
- General
These Terms constitute the entire agreement between the parties and supersede all other agreements, statements, and other arrangements between the parties in relation to the subject matter hereof. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction, to be invalid, void, or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms shall remain in full force and effect. Each party acknowledges that it has not relied on or been induced to enter these Terms by a representation other than those expressly set out in these Terms.
Except for the intended third party beneficiaries specified herein, MBPS and you do not intend to confer, and these Terms will not be construed as conferring, any right, remedy, obligation or liability of any kind on any person other than MBPS, you, and each party’s successors and assigns. No modification, alteration or waiver of any of the provisions of these Terms will be effective unless in writing and signed on behalf of each of the parties. No waiver of any of these Terms shall be deemed a further or continuing waiver of such term or any other term, and MBPS’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
- SUPPLEMENTAL TERMS
Apple Required Terms
- Acknowledgment: MBPS and you acknowledge that the Terms are concluded between MBPS and you only, and not with Apple, and MBPS, not Apple, is solely responsible for the Mobile App and the content thereof.
- Scope of License: The license granted to you for the Mobile App is limited to a non-transferable license to use the Mobile App on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Use, except that the Mobile App may be accessed, acquired, and used by other accounts associated with you via Family Sharing or volume purchasing.
- Maintenance and Support: As between Apple and MBPS, MBPS is solely responsible for providing maintenance and support, if any, with respect to the App, as specified in the Terms, or as required under applicable law. MBPS and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- Warranty: As between Apple and MBPS, MBPS 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 the Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the relevant application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be MBPS’s sole responsibility.
- Product Claims: MBPS and you acknowledge that MBPS, not Apple, is responsible for addressing any claims by you or any third party relating to the Mobile App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights: MBPS and you acknowledge that, in the event of any third party claim that the Mobile App or your possession and use of the Mobile App infringe that third party’s intellectual property rights, to the extent a warranty of non-infringement is not validly disclaimed, MBPS, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance: You 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.
- Developer Name and Address: MBPS may be contacted as follows in connection with any questions, complaints or claims with respect to the Mobile App : team@MBPS.com.
- Third Party Terms of Agreement: You must comply with third party terms of agreement when using the Mobile App.
- Third Party Beneficiary: MBPS and you acknowledge and agree that Mobile Apple, and Mobile Apple’s subsidiaries, are third party beneficiaries of the Terms, and that, upon your acceptance of the Terms, Mobile Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary thereof.
Additional Terms Relevant to Google Inc.
- These Terms constitute a license agreement in lieu of any license grant provided by Google to use the Mobile App on a Supported Device. A “Supported Device” is a combination of a mobile device running Android software and an Android software version(s) that is supported by the Mobile App . These Terms are made between you and MBPS only, and not with Google. MBPS is solely responsible for the Mobile App.
- The Google Play marketplace is owned and operated by Google LLC. Your use of Google Play is governed by a legal agreement between you and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/Terms) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html and together with the Google Terms of Service called the “Terms”). The Google Play Terms of Service and Google Terms of Service shall take precedence in that order in the event of a conflict between them, to the extent of such conflict.
- MBPS is solely responsible for providing, and Google has no obligation to provide, maintenance and support for the Mobile App. Support requests, as well as questions, complaints or claims regarding the Mobile App, may be directed to the address below.
- To the maximum extent permitted by applicable law, Google will have no warranty obligation whatsoever with respect to the Mobile App, and will not be liable for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
- Google shall not be responsible for addressing any claims by you or any third party relating to the Mobile App or your possession and/or use of the Mobile App, including but not limited to (i) product liability claims, (ii) any claim that the Mobile App fails to conform to any legal or regulatory requirement, or (iii) claims arising under consumer protection or similar legislation.
- Google shall not be responsible for the investigation, defense, settlement or discharge of any claim that the Mobile App or your possession and use thereof infringes a third party’s intellectual property rights.
- You represent and warrant that (i) the Mobile App will not be downloaded or used in, or transported to, a country that is subject to a United States Government embargo or has been designated by the United States Government as a “terrorist-supporting” country, and (ii) you are not listed on any United States Government list of prohibited or restricted parties.
- For the improvement of Google Play, Google may collect certain usage statistics from Google Play and your Supported Device, including but not limited to, information on how Google Play and your Supported Device are being used. The data collected is examined in the aggregate to improve Google Play for users and developers and is maintained in accordance with Google’s Privacy Policy. We can neither control nor are responsible for the privacy practices of Google. To ensure the improvement of the Mobile App, limited aggregate data may be available from Google to MBPS upon MBPS written request.
- Removal of Mobile App. MBPS or Google Inc. may, at any time and without notice, restrict, interrupt or prevent use of the Mobile App, or delete the Mobile App from your Supported Device, without entitling you to any refund, credit or other compensation from MBPS or any third party (including, but not limited to, Google Inc. or your network connectivity provider).
- Our use and transfer to any other app of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements.
- Contact Us
MBPS LLC
200 E Van Buren, Floor 4
Phoenix, AZ 85004
team@MBPS.com