Position Mobile Ltd SEZC Terms of Service
Latest Version as of February 2020
Section 1. This Agreement is Binding on You.
You agree, represent and warrant to us that you have the full right, authority and capacity to enter into these Terms, to perform your obligations hereunder, and to abide by these Terms in their entirety.
Section 2. Your License to Certain Parts of our Products.
To the extent any portion of our Products constitute downloadable software that you can download onto your computer system or mobile device, then, subject to your compliance with these Terms, we hereby grant you a limited revocable, non-sublicensable, non-transferable, non-exclusive license to download, access, install and use such downloadable Products, solely for your individual personal use. You agree that you shall not install any portion of our Products that constitute downloadable software on any computer or mobile device not owned by you or for which you have the permission of the owner of such computer or mobile device.
Section 3. Product Updates We May Provide from Time to Time.
In connection with the rights granted by these Terms, you agree only to use the most recent versions of such Products that we have made publicly available. You also agree that we may update such Products from time to time, in our sole discretion, including to add, remove or change the features and functions of our Product (each an “Update”). You further agree that we shall have the right, but not the obligation, to automatically download such Updates on to your computer system or mobile device. The Products downloaded by you generally have the ability to communicate with our computer systems and servers in order to, among other things, facilitate such automatic Updates. From time to time, we may require that you agree to new Terms in connection with certain Updates or otherwise. To extent your use of our Products is on a mobile network, you agree that you may incur costs related to messaging and data in connection with Updates made to our Products and you shall be solely responsible for such costs.
Section 4. Restrictions on Your Use of Our Products.
Your use of our Products except as provided for in these Terms shall constitute your breach of these Terms and is strictly prohibited. In connection with your use of our Products, you shall not in any way transmit, publish, post, upload, disseminate, or distribute any (i) corrupted files, viruses, trojan horses, worms, spyware, time bombs, cancelbots, or any other similar software or programs; and/or (ii) defamatory, infringing, vulgar, sexually explicit, obscene, indecent, offensive, inappropriate, profane, or unlawful content or any hate speech (i.e., racist/discriminatory speech). You shall also not (i) impair anyone else from using our Products or interfere with the proper functioning of our Products; (ii) access the Products other than by the means we provide to you (which includes a prohibition on you from using any scripts, spiders, robots or other automated mechanisms to access our Products); (iii) misrepresent your identity in any way in connection with your use of our Products; (iv) overburden our computer systems used to provide and service the Products in any way; and/or (v) violate any law, rule or regulation in connection with your use of our Products. You are also prohibited from copying (except for backup purposes), renting, selling, distributing, assigning, licensing, sublicensing and/or leasing any of you Products to any third party or for the benefit of any third party.
Section 5. About Our Products.
Our Products consist of the Apps and the Sites we may make available from time to time. Our Apps are primarily search and discovery mobile applications that allow you to access content, perform Internet searches, discover new services and functions, and to otherwise enhance your digital experience. Our Sites are generally online extensions of our Apps and/or informational resources regarding the features and functions of our Apps.
Certain of the search functionality comprising a part of our Products may be deployed via extensions and browser settings. Depending on the specific search and discovery application you utilize, the search functionality may set your start page, new tab page, browser homepage, and/or default search setting(s), depending on the options you select. In some cases, we provide you with a means to decline and/or opt-out of these settings at your discretion.
Section 6. Third Party Offerings.
Certain of our Products may incorporate content, features, functionality, services, products and software made available from third parties (the “Third Party Offerings”). Depending on the Third Party Offering, we may license it, integrate it into our Products, bundle it with our Products, or simply provide access to it through our Products. The inclusion of Third Party Offerings in any manner shall not be considered an endorsement of such Third Party Offerings and we make no representations or warranties with respect to such Third Party Offerings. Your use of such Third Party Offerings is subject to whatever legal terms the providers of such Third Party Offerings require you to agree to in connection with your use of them. Your use of Third Party Offerings is at your sole and exclusive risk and under no circumstances shall we be responsible or liable to anyone in connection with your use of such Third Party Offerings. If you enter into a transaction with a provider of Third Party Offering, that transaction is between you and them. If you have any questions, issues, claims or complaints with respect to a Third Party Offering, your only recourse is to contact the provider of such Third Party Offering. Certain of our Products contain search functionality, much of which is a Third Party Offering. In connection with your use of Third Party Offerings, you consent and agree to our provision of information about you and your use of our Products to providers of Third Party Offerings.
Section 7. Registration and Supplemental Terms for Certain Products.
Certain of our Products are subject to additional terms and you agree to be bound by those additional terms to the extent you access such Products, all of which shall form a part of this EULA with respect to those Products. If the supplemental terms applicable to a particular Product conflict with these Terms, the supplemental terms shall control in the event of any conflict.
Section 8. Products for which a Fee is Payable.
Most of our Products are provided to you free of charge. However, some Products and/or certain features and functions of our Products require you to pay a fee to use or access them. In such cases, the terms of payment will be provided to you in advance and you will have an opportunity to accept or decline. In addition, some Third Party Offerings may require you to pay a fee to use or access them. By agreeing to such fees and accessing those Products, features, functions and/or Third Party Offerings for which payment is required (collectively, “Paid Features”), you agree to pay all charges and fees incurred by you by using such Paid Features, based on the terms provided to you at the time you seek to access such Paid Features. You agree that we have no responsibility or liability with respect to any transaction between you and a Third Party Offering provider. Unless otherwise noted, all amounts payable for Paid Feature shall be paid by you in United States Dollars. You agree that if you provide us with credit card information to pay for such Paid Features, we can charge your credit card in the amounts and at such frequency as outlined in the supplemental terms for the Paid Features. We will record and retain an electronic copy of your consent for your credit card to be charged as evidence of your acceptance of the charges incurred by you. We reserve the right to change, alter, amend, and/or cease charging a fee for Paid Features upon notice to you. If you do not agree to the modified payment terms, your sole recourse is to terminate your use of the Paid Features.
Section 9. Content Made Available Through Our Products.
All content appearing on and/or accessible through our Products or Third Party Offerings, including without limitation, all images, written word, logos, marks, design treatments, advertising, data, links, articles, videos, music, sound, graphics and any software used within or comprising a part of the Products (collectively, the “Product Content”) is owned by the party providing such Product Content and such party assumes sole responsibility for such Product Content. You agree not to use such Product Content for any reason other than as intended within the Product, unless you first get the written permission of the owner of such Product Content. You acknowledge and agree that you may find certain Product Content to be indecent, offensive or otherwise objectionable to you, but you assume all risks in accessing the Product Content. We make no representations or warranties with respect to Product Content, including the accuracy or completeness of such Product Content. We reserve the right to change, eliminate and/or add Product Content at any time. Product Content originating from third parties, including Third Party Offerings is not an endorsement of such Product Content by us. If you have any questions, claims or complaints against a third party provider of Product Content, you agree to direct same to such third party. Finally, to the extent our Products allow you to transmit, upload, post or otherwise make available content through them, you assume full responsibility for such content and represent and warrant that you have all necessary rights with respect to such content.
Section 10. Intellectual Property Rights.
As between you and us, our Products, including all of our Apps and Sites and any code, Product Content, software, and/or documentation comprising a portion of and/or related to same, as well as all of our names, logos, marks, and all Intellectual Property Rights (as defined below) in all of the foregoing are owned exclusively by us and are subject to protections and proprietary rights available under applicable trademark, copyright, and patent laws of the United States and other jurisdictions. “Intellectual Property Rights” means, collectively, all worldwide copyright, trademark, trade secret rights, and all rights related to issued and pending patents, and all copyright, trademark and patent registrations and applications for registrations (including patent reissues, divisions, continuations, continuations-in-part, renewals and extensions), including, without limitation, moral or similar rights. You agree that you shall not copy, modify, sell, license, transfer, publish, transmit, reproduce, create derivative works of, distribute, publicly perform, publicly display, or in any way exploit any of our Products , including all of our Apps and Sites and any code, Product Content, software, and/or documentation comprising a portion of and/or related to same, as well as our names, logos, marks, and any of our Intellectual Property Rights to any of the foregoing, whether in whole or in part. You agree that you shall not remove, alter, delete or use for any other purpose any trademark, copyright, or other proprietary rights notice we have placed on the Products without our express prior written consent. All rights not expressly granted hereunder are expressly reserved to us and our licensors.
As between the you and the owner of any Third Party Offering, the applicable third party owns all rights, title and interest in and to the Third Party Offering, including all Intellectual Property Rights vested therein. Certain of our service providers and partners, including providers of Third Party Offerings, may have similar proprietary and Intellectual Property Rights in the content, code and/or software they make available to you through our Products. You should consult their terms of service for restrictions with respect to your use of same.
As between us and you, you own all right, title and interest in and to any content you provide to us or make available through the Products (“Your Content”). You hereby grant us, our affiliates, and our partners a worldwide, irrevocable, royalty-free, nonexclusive, sub-licensable, license to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish such content and subsequent versions of Your Content and all Intellectual Property Rights therein in any form, medium or technology (whether now known or later developed) for any purpose, including in pursuit of our own business interests, distribution (in any manner) to third parties, and storing it in a remote database accessible by third parties. We reserve the right to remove any of Your Content from our Products at any time and for any reason.
Our Products may contain Open Source Software. Such Open Source Software may be subject to the follow Open Source Software Licenses:
Section 11. Copyright Considerations with Respect to Product Content and Your Content.
We respect and expect that you and all of our Product users will respect the rights of copyright holders. If you believe materials appearing on or within our Products violate your copyrights, you may submit a copyright infringement claim notice to us at email@example.com, provided that you have a good faith belief that Your Content has been copied and made accessible through the Products in violation of your copyrights.
The copyright infringement claims notice must include (the “Claim Elements”):
- The signature (whether physical or electronic) of the person authorized to act on behalf of the owner of the copyright interest;
- Contact information for you, such as your address, phone number, and, if available, an email address;
- A description of the materials you claim infringe upon the copyrights of another, including information sufficient for us to locate it within our Products;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- a demand that such allegedly infringing materials be removed or access disabled; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Pursuant to 17 U.S.C. 512(c)(3), if the above Claim Elements are not met, we may disregard the notice. Pursuant 17 U.S.C. 512(f), be advised that knowingly making a material misrepresentation that online material or activity is infringing or that material or activity was removed or disabled by mistake or misidentification, may subject you to heavy civil penalties. These penalties include monetary damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider who is injured by your misrepresentation.
We may notify you and provide you with contact information for the complaining party if we make a decision to remove Your Content in response to a complaint. In order to contest such a decision, you can write to us at firstname.lastname@example.org. Pursuant to 17 U.S.C. 512(g)(3), your notice of contest must include:
- Your signature or the person authorized to act on behalf of your behalf (whether physical or electronic);
- Contact information for you, such as your address, phone number, and, if available, an email address;
- Your consent to adjudicate your claim in the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are located outside of the United States, for any judicial district in which the service provider may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. 512(c)(1)(C) or an agent of such person;
- A description of the materials that have been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled within our Products; and
- A statement under penalty of perjury, that you that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
Section 12. Your Privacy Rights.
Section 13. Warranty Disclaimers and Limitations on our Liability to You.
OUR PRODUCTS AND PRODUCT CONTENT ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE”. THE ENTIRE RISK ARISING OUT OF YOU USE OF OUR PRODUCTS AND PRODUCT CONTENT RESTS WITH YOU. WE DISCLAIM RESPONSIBILITY FOR AND SHALL UNDER NO CIRCUMSTANCES BE LIABLE TO YOU FOR LOSS, DAMAGE, FAILURE OR OTHER LIABILITY ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE PRODUCTS AND PRODUCT CONTENT. THE PRODUCTS AND PRODUCT CONTENT ARE PROVIDED TO YOU WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO WARRANTY THAT (i) THE PRODUCTS AND PRODUCT CONTENT WILL MEET YOUR REQUIREMENTS, (ii) THE PRODUCTS AND PRODUCT CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS AND PRODUCT CONTENT WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS AND PRODUCT CONTENT WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS WITH RESPECT TO THE PRODUCTS AND PRODUCT CONTENT WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE PRODUCTS AND THE ACCURACY OR COMPLETENESS THE PRODUCT CONTENT. THE FOREGOING WARRANTY DISCLAIMERS AND ACKNOWLEDGEMENTS BY YOU APPLY EQUALLY TO ALL THIRD PARTY OFFERINGS, FOR WHICH WE EXPRESSLY DISCLAIM ALL WARRANTIES.
UNDER NO CIRCUMSTANCES SHALL WE OR ANYONE ACTING THROUGH, FOR OR ON BEHALF OF US, INCLUDING WITHOUT LIMITATION, ANY OF OUR AFFILIATES, PARTNERS, OR OPERATORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS AND PRODUCT CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ALL CIRCUMSTANCES, YOU AGREE THAT OUR LIABILITY TO YOU ARISING OUT OF ANY CLAIM OR CAUSE OF ACTION SHALL BE LIMITED TO $50 OR TO THE GREATEST EXTENT PERMITTED BY LAW, WHICHEVER IS MORE. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 13 COMPRISES A FUNDAMENTAL ALLOCATION OF RISKS AMONGST YOU AND US AND THAT WITHOUT THIS SECTION 13, WE WOULD NOT HAVE ENTERED INTO THESE TERMS WITH YOUR OR MADE THE PRODUCTS AVAILABLE TO YOU.
Section 14. Your Indemnity Obligations to Us.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD US HARMLESS, INCLUDING OUR PARENTS, AFFILATES, SUBSIDIARIES, AND ALL DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS AND AGENTS OF ANY OF THE FOREGOING FROM ANY AND ALL THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES) ARISING FROM YOUR USE OF THE PRODUCTS AND PRODUCT CONTENT, YOUR VIOLATION OF THESE TERMS; AND YOUR VIOLATION OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. OR YOUR INFRINGEMENT, OR INFRINGEMENT BY ANY OTHER USER OF YOUR ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. NOTWITHSTANDING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT WE MAY ASSUME AND CONTROL THE DEFENSE OF ANY CLAIM FOR INDEMNITY ARISING HEREUNDER AND YOU AGREE TO PAY FOR OUR COSTS INCURRED IN CONNECTION WITH DOING SO AND TO FULLY COOPERATE WITH US IN THE DEFENSE OF ANY SUCH CLAIMS.
Section 15. Terminating Our Agreement.
We reserve the right in our sole and exclusive discretion to terminate, modify, suspend, or otherwise restrict access to the Products without liability to you. You agree to the foregoing and hereby waive any claims you may have against us should we choose to exercise the foregoing rights. You agree to indemnify us should you take any action against us in connection with our exercise of the foregoing rights. You may terminate your use of our Products at any time in your sole discretion by ceasing to use such Products and removing our Products from your computer system or mobile device. Your foregoing termination right shall be your sole and exclusive remedy for termination of these Terms. Our rights to Your Content and other rights under these Terms shall survive the termination of these Terms by either you or us.
Section 16. Age Restrictions.
If you are under the age of 13 (or under the age of 16 if you are a resident of the EEA), you are prohibited from using or installing our Products. If you are over the age of 13 (or 16 for EEA residents), you may only use and install our Products with the content of your parent or legal guardian, who should review these Terms and agree to them on your behalf prior to your use and/or installation of same. If you are the parent or guardian of an individual under the age of 18, but 13 or older (or 16 or older for EEA residents), you agree on behalf of such individual to be bound by these Terms and to assume all responsibility for such individual’s use of our Products under these Terms. If you do not agree to these Terms, you and the individual for whom you are parent or legal guardian, you and they are prohibited from using our Products. If you believe an individual is using or has downloaded our Products in violation of the foregoing, please contact us immediately.
Section 17. Limited Rights to Government Users.
To the extent you desire to use and/or download any of our Products and you are acting in your capacity as a representative of the United States Government and/or any agency or instrumentality thereof (the “Federal Government”), your rights to the Products and Product Content is limited as “commercial Items” (See 48 C.F.R. §2.101) and specifically “Commercial Computer Software” and “Commercial Computer Software Documentation” (as defined and used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable). Pursuant to Federal Acquisition Regulation 12.212 (48 C.F.R. §12.212), the Federal Government shall have no greater rights than as are set forth in these Terms and shall have no rights to (i) technical information that is not customarily provided to the public or to (ii) use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as specified herein. The Federal Government’s use, duplication, and/or disclosure of the Products are subject to restrictions, as specifically set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
Section 18. Restrictions on Exports of the Products.
Under no circumstances may the Products or any component thereof, including any code and/or software comprising a portion of the Products, be used, downloaded, exported and/or re-exported to (i) any country with which the Federal Government currently has an embargo or (ii) any person currently on the list of Specially Designated Nationals of the U.S. Treasury Department or the U.S. Commerce Department’s Table of Deny Orders. You represent and warrant to us that you are not located in, under the control of, or national or resident of any such country or on either of the foregoing lists.
Section 19. Governing Law and Arbitration.
THIS SECTION MAY MATERIALLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT, TO HAVE A JURY HEAR YOUR CLAIMS, AND TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING AGAINST US TO THE EXTENT ARISING HEREUNDER – YOU ARE ENCOURAGED TO READ IT CAREFULLY.
Your use of the Products, these Terms, and any disputes arising directly or indirectly hereunder, shall be governed by and construed in accordance with the laws of the State of New York, without regard to its choice of law provisions.
Any controversy or claim arising out of or relating to these Terms and/or the Products shall be resolved by binding arbitration. The arbitration shall be conducted in Manhattan, New York, USA, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Any arbitration undertaken pursuant to these Terms shall be undertaken in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. By selecting arbitration, you are giving up your right to have your claims against us heard and decided by a jury trial and to participate in a class action or other class proceeding against us.
You must file a claim or cause of action arising out of these Terms and/or your use of the Products within one (1) year of such claim or cause of action arising or be forever barred.
Notwithstanding the foregoing, either you or we may seek any interim or preliminary relief from a court of competent jurisdiction in Manhattan, New York, USA, necessary to protect the rights or the property of you or the Company (or its agents, suppliers, and subcontractors), pending the completion of arbitration. In the event that the arbitration provisions of this Section are held by a court of competent jurisdiction not to be enforceable, you agree that any litigation against us (except for small-claims court actions) may only be commenced in the federal or state courts located in Manhattan, New York, USA. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
Section 20. General Provisions.
We may modify these Terms at any time, in our sole discretion, by posting such modified Terms on the Products. If you continue to use our Products after the date such modified Terms are posted, you agree that you are unconditionally agreeing to be bound by such modified Terms. Our failure to enforce these Terms or any rights we have hereunder shall not constitute a waiver of that or any other right or provision. We may assign this agreement with you at any time and to any person without limitation. These Terms constitute a personal agreement with you and you agree that you shall not and shall have to rights to assign any rights or obligations arising under the Terms for any reason. These Terms and all policies and supplemental terms that are made a part of these Terms, constitute the entire agreement between you and us and govern your use of the Products and supersedes any prior agreements that you may have with us with respect to the subject matter hereof. If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in full force and effect without alteration.
Section 21. Communications to You.
Our Products include, in some cases, the ability to communicate to you, such as via email, text message, and push notifications. You hereby consent to our use of all means of communication available to us to contact you. These communications may include messages from us, as well as communications from providers of Third Party Offerings and other of our third party partners. You may opt out of receiving communications by emailing us at email@example.com or by clicking the “unsubscribe” link to the extent available in a communication you receive from us. We do not control and shall have no responsibility for communications from third parties.
If we are required by state or federal law to notify you of certain events, you agree that the posting of such notice on the Products or delivering them to you through an electronic communication in accordance with these Terms shall be sufficient for all such purposes. You may update your communication preferences by visiting the Products where you have provided contact information. If you do not provide us with accurate information, we cannot be held liable if we fail to notify you
Position Mobile Ltd SEZC
Address: PO Box 10008, Willow House
Grand Cayman KY1-1001