Effective Date: June 19, 2018
Last Updated Date: June 19, 2018
This agreement, including the Binding Arbitration provision contained in Section 17, is a contract between you and JNJ Mobile, Inc. ("MocoSpace", "we" or "us") and governs your use of mocospace.com (the "Website"), along with our mobile application(s) (the "App") and the services provided by us through the Website and the App (collectively, the "Service"). By using the Services, you agree to be bound by the following terms and conditions (the "Terms of Service"), whether or not you register as a member ("Member"). Your use of, and participation in, certain Services may be subject to additional terms ("Supplemental Terms") and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental service. If the Service are inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the "Terms."
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY MOCOSPACE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, MocoSpace will make a new copy of the Terms of Service available on the Services and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the "Last Updated" date at the top of the Terms of Service. If we make any material changes, and you have registered with us as a Member, we will also notify you via the Service. Any changes to the Terms will be effective immediately on the Website and in the App unless the Terms or the notice state otherwise. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS.
MocoSpace reserves the right to remove any Member for any reason or no reason with or without prior notification. You acknowledge and agree that MocoSpace may store removed information at its sole discretion. You acknowledge and agree that MocoSpace is not liable for any lost or intentionally deleted data or information.
1. Use of the Services and the MocoSpace Properties. The App, the Website, the Services, and the information and content available on the Services (as these terms are defined herein) (collectively, the "MocoSpace Properties") are protected by copyright laws throughout the world. Subject to the Terms, MocoSpace grants you a limited license to reproduce portions of the MocoSpace Properties for the sole purpose of using the Services for your personal, non-commercial use. Unless otherwise specified by MocoSpace in a separate license, your right to use any the MocoSpace Properties is subject to the Terms.
1.1. App License. Subject to your compliance with the Terms, MocoSpace grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service.
1.2. Updates. You understand that the MocoSpace Properties are evolving. As a result, MocoSpace may require you to accept updates to the MocoSpace Properties that you have installed on your computer or mobile device. You acknowledge and agree that MocoSpace may update the MocoSpace Properties with or without notifying you. You may need to update third-party software from time to time in order to use the MocoSpace Properties.
1.3. Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: you may not (i) reproduce, distribute, publicly display, or publicly perform the MocoSpace Properties; (ii) make modifications to the MocoSpace Properties; or (iii) interfere with or circumvent any feature of the MocoSpace Properties, including any security or access control mechanism. If you are prohibited under applicable law from using the Services, you may not use such Services. Any future release, update or other addition to the MocoSpace Properties will be subject to the Terms. MocoSpace, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the MocoSpace Properties terminates the licenses granted by MocoSpace pursuant to the Terms.
1.4. Third-Party Materials. As a part of the MocoSpace Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for MocoSpace to monitor such materials and that you access these materials at your own risk.
2. Registration and Eligibility.
2.1. Registering as a Member. In order to access certain features of the Services, you may be required to become a Member. For purposes of the Terms, a "Member" is a user who has registered an account on the Website or the App ("Account"), has a valid social networking service ("SNS") through which the Member has connected to the Services (each such account, a "Third-Party Account"), or as an account with the provider of the App for the Member's mobile device.
2.2. Access Through an SNS. If you access the Services through a SNS as part of the functionality of the Website and/or the Services, you may link your Account with Third-Party Accounts, by allowing MocoSpace to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. By granting MocoSpace access to any Third-Party Accounts, you understand that MocoSpace may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services ("Content") that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through Services via your Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND MOCOSPACE DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. MocoSpace makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and MocoSpace is not responsible for any SNS Content.
2.3. Registration Data; Eligibility. In registering an Account, you represent and warrant that you are 18 years of age or older, and if you are not of the age of majority where you reside, you will only use the Services with parental or legal guardian consent (following their review of the Terms), and that your use of the Services will not violate any applicable laws or regulations. You must be 18 years of age or older to open a new Account. Your profile may be deleted without warning if it is found that you are misrepresenting your age. Your use of the Services as a Member is solely for your personal use, and you will not authorize others to use your account, including your profile or email address. You are solely responsible for all Content published or displayed through your account, including any email messages, and for your interactions with other Members.
3. Responsibility for Content.
3.1. Types of Content. You acknowledge that all content, including the MocoSpace Properties (the "Content"), is the sole responsibility of the party from whom such Content originated. This means that you, and not MocoSpace, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available ("Make Available") through the MocoSpace Properties ("Your Content"), and that you and other users of the MocoSpace Properties ("Members"), and not MocoSpace, are similarly responsible for all Content they Make Available through the MocoSpace Properties ("Member Content").
3.2. No Obligation to Pre-Screen Content. You acknowledge that MocoSpace has no obligation to pre-screen Content (including, but not limited to, Member Content), although MocoSpace reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that MocoSpace pre-screens, refuses or removes any Content, you acknowledge that MocoSpace will do so for MocoSpace's benefit, not yours. Without limiting the foregoing, MocoSpace will have the right to remove any Content that violates the Terms or is otherwise objectionable.
4.1. The MocoSpace Properties. Except with respect to Your Content and Member Content, you agree that MocoSpace and its suppliers own all rights, title and interest in the MocoSpace Properties (including but not limited to, any visual interfaces, graphics, designs, compilations, information, data, computer code (including source code or object code), products, software, all other elements of the Services). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the MocoSpace Properties.
4.2. Trademarks. MocoSpace and other related graphics, logos, service marks and trade names used on or in connection with the MocoSpace Properties or in connection with the Services are the trademarks of MocoSpace and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the MocoSpace Properties are the property of their respective owners.
4.3. Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the MocoSpace Properties.
4.4. Your Content; License to Your Content.
4.4.1. Member Content Representations and Warranties. MocoSpace does not claim ownership of Your Content. However, when you as a Member post or publish Your Content on or in the MocoSpace Properties, you represent (i) you own Your Content or otherwise have the right to grant the license to MocoSpace set forth in this section, and (ii) Your Content does not violate the privacy rights, publicity rights, copyright rights, or other intellectual property rights of any person. You agree to pay for all royalties and fees owing any person by posting any of Your Content. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not MocoSpace, are responsible for all of Your Content that you Make Available on or in the MocoSpace Properties.
4.4.2. Limited License Grant to MocoSpace. Subject to any applicable account settings that you select, you hereby grant MocoSpace the non-exclusive, fully paid, worldwide license to use, reproduce, publicly perform and display such Content on the Website, including without limitation distributing part or all of the Website in any media formats and through any media channels for the purposes of operating and providing the MocoSpace Properties to you and to our other Members. Please remember that other Members may search for, see, use, modify and reproduce any of Your Content that you submit to any "public" area of the MocoSpace Properties and any SNS's if you post any of Your Content on such services through the App.
5. User Conduct.
5.1. Unauthorized Use or Access.
5.1.1. In connection with your use of the MocoSpace Properties, you agree that you will not, under any circumstances, Make Available any Content that:
(i) is unlawful, harmful, threatening, abusive, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable or contains nudity, pornography, weapons, violence, or illegal drugs;
(ii) harasses or advocates harassment of another person;
(iii) involves the transmission of "junk mail" "chain letters," or unsolicited mass mailing or "spamming";
(iv) promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
(v) promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
(vi) contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
(vii) provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under 18;
(viii) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
(ix) solicits passwords or personal identifying information for commercial or unlawful purposes from other users; or
(x) involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes.
5.1.2. You must use the Services in a manner consistent with any and all applicable laws and regulations.
5.1.3. You may not include in your publicly accessible Member profile any telephone numbers, street addresses, last names, URLs or email addresses.
5.1.4. You may not engage in advertising to, or solicitation of, any Member to buy or sell any products or services through the Service.
5.1.5. You may not transmit any chain letters or junk email to other Members.
5.1.6. You may not use any information obtained from the Services in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any Member without their prior explicit consent.
5.1.7. You may not attempt to impersonate another user or person who is not a member of MocoSpace.
6. Investigations. MocoSpace may, but is not obligated to, monitor or review MocoSpace Properties and Content at any time. Without limiting the foregoing, MocoSpace may review and delete any of Your Content that in the sole judgment of MocoSpace violate the Terms or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any Members or violates the Terms or any applicable law. In order to protect our Members from such advertising or solicitation, MocoSpace reserves the right to restrict the number of messages which a Member may send to other Members in any period to a number which MocoSpace deems appropriate in its sole discretion. Although MocoSpace does not generally monitor user activity occurring in connection with MocoSpace Properties or Content, if MocoSpace becomes aware of any possible violations by you of any provision of the Terms, MocoSpace reserves the right to investigate such violations, and MocoSpace may, at its sole discretion, immediately terminate your license to use MocoSpace Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. Interactions with Other Members.
7.1. Member Responsibility. You are solely responsible for your interactions with other Members and any other parties with whom you interact; provided, however, that MocoSpace reserves the right, but has no obligation, to intercede in such disputes. You agree that MocoSpace will not be responsible for any liability incurred as the result of such interactions. Without limiting the preceding, we and you acknowledge that the Services may provide you an opportunity to engage other Members in the real world. Using the Services may allow you to meet real people, which may lead to unexpected and unwanted situations. MocoSpace doesn't control what happens outside the MocoSpace Properties and we are not responsible for your interactions in the real world. Please use good judgment when interacting with others on the MocoSpace Properties and off them.
7.2. Content Provided by Other Members. The MocoSpace Properties may contain Member Content provided by other Members. MocoSpace is not responsible for and does not control Member Content. MocoSpace has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Member Content. You use all Member Content and interact with other Members at your own risk.
8. Third-Party Services.
8.1. Links. MocoSpace Properties may contain links to third-party websites ("Third-Party Websites") and applications ("Third-Party Applications") and advertisements for third parties ("Third-Party Ads" and collectively, the "Third-Party Services"). When you click on a link to a Third-Party Service, we will not warn you that you have left the MocoSpace Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. MocoSpace exercises no control over the Third-Party Services and MocoSpace cannot and does not screen the Third-Party Services. Members may find these Third-Party Services objectionable, inappropriate, or offensive. We cannot guarantee that MocoSpace will not link to unintended or objectionable content and assume no responsibility for the content of any Third-Party Services linked to by the MocoSpace Services. When you leave our Services, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2. App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play ("App Store"). You acknowledge that the Terms are between you and MocoSpace and not with the App Store. MocoSpace, not the App Store, is solely responsible for MocoSpace Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with MocoSpace Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store's terms and policies) when using MocoSpace Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
9. Fees and Purchase Terms.
9.1. Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You may need to provide MocoSpace with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) ("Payment Provider"), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing MocoSpace with your credit card number and associated payment information, you agree that MocoSpace is authorized to immediately invoice your Account for all fees and charges due and payable to MocoSpace hereunder and that no additional notice or consent is required. You agree to immediately notify MocoSpace of any change in your billing address or the credit card used for payment hereunder. MocoSpace reserves the right at any time to change its prices and billing methods, either immediately upon posting on MocoSpace Properties or by notification to you.
9.2. Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a "Service Subscription Fee") at the time you create your Account and select your package (each, a "Service Commencement Date"). Except as set forth in the Terms, all fees for the Services are non-refundable and non-transferable. No contract will exist between you and MocoSpace for the Services until MocoSpace accepts your order by a confirmatory email, SMS/MMS message, or other appropriate means of communication. Your access to use the Services may be subject to separate third party terms of service and fees, including your mobile network operator's terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility.
9.3. Subscription Renewal. If you have a subscription, your subscription will continue indefinitely until terminated in accordance with the Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a "Renewal Commencement Date") and continue for an additional equivalent period, at MocoSpace's then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription in accordance with the cancellation process set forth in our Help Page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize MocoSpace to charge your payment provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if MocoSpace does not receive payment from your payment provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that MocoSpace may either terminate or suspend your subscription and continue to attempt to charge your payment provider until payment is received (upon receipt of payment, your account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
9.5 Messenging Fees. In connection with the Services, you may receive SMS, MMS and other messages. Standard usage charges for SMS, MMS and other data charges may apply and may be billed on your wireless service bill or deducted from your prepaid balance. T-Mobile subscribers: Other charges may apply. To stop receiving text messages at anytime, text STOP to 46626. For help, text HELP to 46626 or email firstname.lastname@example.org.
9.6 Taxes. MocoSpace's fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to MocoSpace, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify MocoSpace for any liability or expense we may incur in connection with such Sales Taxes.
9.7. Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: email@example.com.
10. Virtual Currency Sales. All sales of Moco Gold virtual currency are final and non-transferable. No refunds will be granted for any Moco Gold purchases, whether or not the Gold is redeemed. Moco Gold does not expire, and will be held in a balance associated with your Account. If your Account terminated either by yourself or by MocoSpace for any reason, any unredeemed Gold in your Account will be forfeited. MocoSpace reserves the right to change pricing of virtual currency across different payment methods, devices and mobile carriers, to reflect variable processing fees associated with each form of payment.
11. Term and Termination.
11.1. Term. These Terms commence on the date when you accept them and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the terms. Notwithstanding the foregoing, if you used the Services prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Services (whichever is earlier) and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Terms.
11.2. Termination. If you violate any provision of these Terms, your Account and these Terms automatically terminate. You agree that MocoSpace may, under certain circumstances and without prior notice, immediately terminate your Account, any associated other accounts, and access to the MocoSpace Properties. Cause for such termination will include, but is not limited to, (a) breaches or violations of the Terms or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) discontinuance or material modification to the MocoSpace Properties (or any part thereof), (d) unexpected technical or security issues or problems, and (e) extended periods of inactivity. If you want to terminate the Services provided by MocoSpace, you may do so by (a) notifying MocoSpace at any time and (b) closing your Account for all of the Services that you use.
11.3. Effect of Termination. Termination of your MocoSpace account includes (a) removal of account access to all offerings within the Service available with a password, including but not limited to Private Messages and images that are password protected, (b) deletion of your password, and (c) barring further use of the Service. Upon termination of these Terms: (i) your license rights will terminate any you must immediately cease all use of the Services; (ii) you will no longer have access to your Account, including Your Content; (iii) you must remit to MocoSpace any unpaid amounts due prior to termination; and (iv) upon termination of these Terms, all payment obligations accrued prior to termination and all provisions of the Terms which by their nature should survive, will survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers and limitation of liability. Further, you agree that all terminations may be made in MocoSpace's sole discretion and that MocoSpace will not be liable to you or any third party for any termination of your account, any associated email address, or access to the Services.
12. Copyright Policy. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of MocoSpace to terminate membership privileges of any Member who repeatedly infringes copyright upon prompt notification to MocoSpace by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the MocoSpace Properties in a way that constitutes copyright infringement, please provide our Designated Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on MocoSpace; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. MocoSpace's Designated Copyright Agent for notice of claims of copyright infringement can be reached as follows:
JNJ Mobile Inc.
745 Atlantic Ave.
Boston, MA 02111
Facsimile: (617) 542-1633
Attn: Designated Copyright Agent
13. Accounts. MocoSpace does not recognize the transfer of MocoSpace accounts nor the rights of multiple owners of an account. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt will be null and void. MocoSpace owns, or otherwise has rights to all of the content that appears in the Games. You agree that while you own the content you upload to MocoSpace, you have no right or title in or to any Games content, including without limitation the virtual goods or currency appearing or originating in the Game, or any other attributes associated with any Account. MocoSpace does not recognize any purported transfers of virtual property executed outside of the Game, or the purported sale, gift or trade in the "real world" of anything that appears or originates in the Game. Likewise, you may not sell in-game items or currency for "real" money, or exchange those items or currency for value outside of the Game.
14. Limitation of Liability.
14.1. Disclaimer of Certain Damages. YOU AGREE THAT IN NO EVENT WILL MOCOSPACE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MOCOSPACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH (A) OUR SERVICES OR THIS AGREEMENT OR THE INABILITY TO USE OUR SERVICES (HOWEVER ARISING, INCLUDING NEGLIGENCE), (B) THIRD-PARTY TRANSACTIONS, OR (C) YOUR USE OF OUR SERVICES OR ANY THIRD-PARTY SERVICES OFFERED THROUGH OUR SERVICES.
14.2. Cap on Liability. OUR LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE WILL NOT EXCEED THE GREATER OF $100 OR THE AMOUNT OF FEES PAID TO MOCOSPACE IN THE PRECEDING 12 MONTHS. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF MOCOSPACE FOR (A) DEATH OR PERSONAL INJURY CAUSED BY MOCOSPACE'S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY MOCOSPACE'S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MOCOSPACE AND YOU.
15. Indemnity. You agree to indemnify and hold MocoSpace, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, MocoSpace (or other Indemnitees) may incur resulting from or arising out of your use of the Services, your actions, Your Content, and/or arising from a breach of the Terms and/or any breach of your representations and warranties set forth above. This provision does not require you to indemnify MocoSpace for any unconscionable commercial practice MocoSpace or for MocoSpace's fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the MocoSpace Properties.
16. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT: YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MOCOSPACE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MOCOSPACE MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU OR OTHERS. COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS, DIRECTLY OR INDIRECTLY, FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOCOSPACE OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT MOCOSPACE USES COMMERCIALLY REASONABLE EFFORTS TO PROTECT ITS MEMBERS, BUT THAT MOCOSPACE DOES NOT GUARANTEE THAT THE USE OF THE SERVICES WILL BE SAFE OR SECURE. YOU ACKNOWLEDGE AND AGREE THAT MOCOSPACE IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD MOCOSPACE LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE MOCOSPACE PROPERTIES. YOU UNDERSTAND THAT MOCOSPACE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE MOCOSPACE PROPERTIES.
17. Disputes. Any dispute or claim relating in any way to your use of MocoSpace, or to any products or services sold or distributed by MocoSpace will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim addressed as follows: JNJ Mobile, Inc., c/o United Corporate Services, Inc., 874 Walker Road, Ste C, Dover, DE 10094. The arbitration will be conducted by JAMS, Inc. under its rules, including (if applicable) the JAMS Streamlined Arbitration Rules and Procedures. The JAMS's rules are available at www.jamsadr.com or by calling 1-800-352-5267. Payment of all filing, administration and arbitrator fees will be governed by the JAMS's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, MocoSpace will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. 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 we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. YOU HAVE THE RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE IF YOU TELL US WITHIN 30 DAYS OF YOUR FIRST DOWNLOAD OR USE OF MOCOSPACE THAT YOU WANT TO OPT OUT. IF YOU WANT TO OPT OUT, SEND A WRITTEN NOTICE ADVISING US OF YOUR DECISION TO JNJ Mobile Inc., 745 Atlantic Ave., Boston, MA 02111. UNLESS YOU OPT OUT OF ARBITRATION, YOU ARE WAIVING THE RIGHT TO HAVE A DISPUTE HEARD BEFORE A JUDGE OR JURY, OR OTHERWISE TO BE DECIDED BY A COURT OR GOVERNMENTAL TRIBUNAL. If applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and MocoSpace's right to appeal the decision that such claim is for relief cannot be brought in arbitration. All other claims will be arbitrated.
18. U.S. Export Controls. You may not use, export, import, or transfer the MocoSpace Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the MocoSpace Properties, and any other applicable laws. In particular, but without limitation, the MocoSpace Properties may not be exported or re-exported (a) into any United States embargoed country or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the MocoSpace Properties, 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. You also will not use the MocoSpace Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by MocoSpace are subject to the export control laws and regulations of the United States. You will comply with these laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer MocoSpace products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
19. No Agency. There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between MocoSpace and any Member of the Service.
20. Governing Law. By using MocoSpace, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Delaware, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and MocoSpace.
21. Headings. The section titles of the Terms are for convenience only and have no structural or legal effect.
22. Waiver and Severability of the Terms. The failure of MocoSpace to exercise or enforce any right or provision of the Terms will not operate as a waiver of such right or provision. Except as provided elsewhere in this agreement, if any provision of these Terms is found unenforceable, then that provision will be severed from these Terms and not affect the validity and enforceability of any remaining provisions.
23. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by MocoSpace without restriction.
24. Other. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Please contact us at firstname.lastname@example.org with any questions regarding the Terms. MocoSpace is a trademark of JNJ Mobile, Inc.