Terms of Service

Last updated: 01/03/2016

Mobile Action, Inc. (“Mobile Action,” “we,” “us,” or “our”) owns and operates the website located at www.mobileaction.co (the “Site”). Please read these Terms of Service carefully. These Terms of Service state the terms and conditions under which you may use our services which are available through the Site (the “Services”). By replying “I ACCEPT” you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Service and you represent and warrant that you are at least 18 years old or older. If you are accepting these Terms of Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions set forth herein. If you do not have such authority, or if you do not agree to any of these terms, then you are not permitted to use the Services.

THE SECTION BELOW TITLED “MISCELLANEOUS” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.

The Services

Through the Site, we offer solutions for driving organic app growth and analyzing app marketplace intelligence. The Services are offered to you on a subscription basis (“Subscription”). The features and functionality of the Services available to you will be based on the Subscription package you choose. Technical support will be provided to you based on the Subscription package you choose. All technical support will be available via email for all paid-up Subscriptions, as well as by phone for Premium and Enterprise Subscriptions.

Subject to the terms and conditions of these Terms of Service, you are granted a non-exclusive, non-transferable license to access and use the Services. You will not (and will not permit any third party to): (i) share a login (a login may only be used by a single person); (ii) register of create accounts for “bots” or other automated uses; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the Services; (iv) copy, modify, adapt or translate the Services, or otherwise make any use, resell, distribute or sublicense the Services other than to the extent permitted here; (v) make the Services available on a “service bureau” basis or allow any third parties to use the Services, other than your employees acting on your behalf, without Mobile Action’s prior written consent; (vi) remove or modify any proprietary marking or restrictive legends placed on the Services; (vii) introduce into the Services any virus, worm, “black door,” Trojan Horse, or similar harmful code; or (viii) use the Services in violation of any applicable law or regulation. If you violate this section, we reserve the right in our sole discretion to immediately deny you access to the Services, or any portion of thereof, without notice.

Registration

You are welcome to browse the Site as a visitor without providing any information to us. If you would like to use the Services, you will need to register as a user by creating an account. During the registration process, you will have to provide your name, company name, email address, and any other information requested during the registration process. You will also have to create a user name and password for your account. You represent and warrant that all registration information you submit is truthful and accurate and you will maintain the accuracy of such information. You are solely responsible for the confidentiality of your user account, as well as for its use and misuse. You will promptly inform us of any need to deactivate a user name or password. We reserve the right to delete or change your user name and/or password at any time and for any reason.

Subscription Trial Period

Your initial Subscription to the Services is provided as a free trial Subscription that will last for a period of fourteen (14) days (the “Trial Period”). Upon expiration of the Trial Period, you will have the option of continuing your Subscription, subject to payment of applicable Subscription fees as set forth below. You may cancel your Subscription at any time during the Trial Period by emailing us at [email protected] and the cancellation will take effect within twenty-four (24) hours.

Fees; Automatic Renewals

You agree to pay any applicable Subscription fees made known to you during registration. All fees paid to Mobile Action are nonrefundable. We may use a third party service provider (“Third Party Service Provider”) to process payment of such fees. You warrant and represent to such Third Party Service Provider that you are the valid owner or an authorized user, of the credit card you provide to process your payment, and that all information is accurate. We reserve the right to change any of the fees that we charge, or to institute new or additional fees, at any time upon notice to you.

It is important to note that when you sign up to use the Services, your Subscription will automatically renew until you cancel it. You may cancel at any time by notifying us in writing no later than fifteen (15) days before the next upcoming renewal, and the cancellation will take effect the following month subject to the terms and conditions set forth in the Section titled “Effect of Termination.” At the end of each month, we will send you a reminder e-mail about the Subscription’s automatic renewal. Again, if you do not cancel, then your Subscription will automatically renew under the same Subscription.

Use of Personal Data

Your use of the Site and/or the Services may involve the transmission to us of certain personally-identifiable information. Our policies with respect to the collection and use of such personally-identifiable information are governed according to our Privacy Policy (located below), which is hereby incorporated by reference in its entirety.

Mobile Action Intellectual Property

As between Mobile Action and you, Mobile Action shall own all right, title, and interest in and to (i) the Services including, without limitation, all source code, object code, operating instructions, and interfaces developed for or relating to the same; (ii) all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works of the foregoing, and all intellectual property rights therein; and (iii) any other materials available on the Site and/or the Services that are provided by or on behalf of Mobile Action and all intellectual property rights therein (collectively, the “Mobile Action Intellectual Property”). Except as expressly permitted in these Terms of Service, you have no rights in or to the Mobile Action Intellectual Property.

User Data

You acknowledge and agree that Mobile Action will access and download the data you store (i) in your user account (“User Stored Data”); and (ii) on a third party service to which you facilitate Mobile Action’s access via application programming interface (API) or other means (“Third Party Stored Data”), all subject to such third party’s terms of service governing this data, if applicable. User Stored Data and Third Party Stored Data shall be collectively referred to herein as “User Data.” You retain all copyrights and other intellectual property rights in and to your User Data. However, you hereby grant us an irrevocable, non-exclusive, worldwide, royalty-free, sublicensable, transferable license to use your User Data as reasonably necessary for us to provide the Services.

Community Guidelines

By accessing and/or using the Services, you hereby agree that:

You will not use the Services for any unlawful purpose; You will not “stalk” or otherwise harass another user of the Services or any other person; You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; and You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, or files related to the Services through hacking, password or data mining, or any other means.

Unsolicited Information

By submitting any unsolicited information and materials, including comments, ideas, questions, designs, and other similar communications (collectively, “Unsolicited Information”) to us, you agree to be bound by the following terms and conditions. If you do not agree with these terms and conditions, you should not provide us with any Unsolicited Information. All Unsolicited Information will be considered NON-CONFIDENTIAL and NON-PROPRIETARY. We, or any of our affiliates, may use such communication or material for any purpose whatsoever, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and further posting. Further, we and our affiliates are free to use any ideas, concepts, know-how, or techniques contained in any communication or material you send to us for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products. By submitting any Unsolicited Information, you are granting us a perpetual, royalty-free and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display, publicly perform, sublicense, create derivative works from, transfer and sell such Unsolicited Information and to use your name and other identifying information in connection with such Unsolicited Information.

Confidentiality

Each party shall protect and preserve the Confidential Information (as defined below) of the other party as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care), and shall not use the Confidential Information for any purpose except as necessary to perform its obligations hereunder or as otherwise permitted hereunder. The receiving party may disclose, distribute or disseminate the other party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, or agents provided that the receiving party reasonably believes that those individuals have a need to know and such individuals are bound by confidentiality obligations at least as restrictive as those contained herein. Except as expressly set forth herein, the receiving party shall not disclose, distribute or disseminate the other party’s Confidential Information to any third party without the prior written consent of such other party. In the event the receiving party becomes or may become legally compelled to disclose any of the other party’s Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the receiving party shall provide the other party with prompt prior written notice of such requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. For purposes of these Terms of Service, Mobile Action’s Confidential Information means the Services and all code, components and other information and materials related thereto, and, your Confidential Information means your User Data.

Mobile Action Disclaimers and Limitation of Liability

THE SITE, THE SERVICES AND ALL CONTENT, FUNCTIONS AND MATERIALS MADE AVAILABLE TO YOU THROUGH THE SITE, ARE PROVIDED "AS IS," "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAY USE THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING, STORAGE, AND RELATED TECHNOLOGY REQUIRED TO PROVIDE YOU WITH THE SERVICES. NONE OF MOBILE ACTION, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “MOBILE ACTION PARTIES”) WARRANT THAT ANY OF THE SITE, THE SERVICES AND ANY CONTENT, FUNCTIONS AND MATERIALS MADE AVAILABLE TO YOU THROUGH THE SITE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. NONE OF THE MOBILE ACTION PARTIES SHALL BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF ANY OF THE FOREGOING. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.

IN NO EVENT SHALL ANY OF THE MOBILE ACTION PARTIES BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUES OR SAVINGS, EVEN IF A MOBILE ACTION PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF THE MOBILE ACTION PARTIES FOR DIRECT DAMAGES ARISING UNDER THESE TERMS OF SERVICE OR RELATING THERETO, EXCEED, THE TOTAL FEES PAID BY YOU IN THE ONE (1) MONTH IMMEDIATELY PRECEDING SUCH CLAIM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, IN SUCH JURISDICTIONS THE MOBILE ACTION PARTIES’ LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

External Sites

The Site and the Services may contain links to third-party websites (“External Sites”), but Mobile Action does not endorse and is not responsible for the content of any such External Sites. Please refer to the terms of use and privacy policies of the External Sites for more information.

Indemnification

You agree to defend, indemnify, and hold the Mobile Action Parties harmless from and against any and all claims, actions, or demands and relating costs, damages and liability (including, without limitation, reasonable attorneys’ fees) arising or resulting from: (i) your breach of these Terms of Service; (ii) your access to, use, or misuse of the Site or the Services; (iii) any User Data provided through your account; and (iv) your violation of any third-party right, including without limitation any intellectual property, or privacy right.

Compliance with Applicable Laws

The Site and the Services are based in the United States, and are intended to be used only by residents of the United States that are age 18 years or older. We make no claims concerning whether the Site, the Services, or the User Data may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Site, the Services or the User Data from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

Term and Termination

(a) Term. These Terms of Service shall be effective from the time you click “I Agree” and shall continue until terminated by either party as set forth herein (“Term”).

(b) Termination. We may terminate these Terms of Service, without penalty or liability, at any time, for any or no reason, upon thirty (30) days written notice to you. We may terminate and/or suspend your registration or your use of the Services immediately if you violate the terms and conditions of these Terms of Service.

(c) Effect of Termination. Upon termination of these Terms of Service or Subscription: (i) all rights and licenses granted hereunder will immediately cease; (ii) you will immediately cease all use and access of the Services; (iii) you will have fifteen (15) days to retrieve your User Data; and (iv) you shall immediately pay Mobile Action all fees dues until the date of termination. YOU AGREE THAT MOBILE ACTION WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SERVICES IN ACCORDANCE WITH THESE TERMS OF SERVICE.

Changes to these Terms of Service

We may change the terms and conditions of these Terms of Service from time to time with or without notice to you. In any event, you will be required to affirmatively accept any revised Terms of Service prior to next logging-in to your account. [Note: Consider process for implementing changes. We suggest affirmative acceptance upon next sign-in after a change is made.]

Copyright Complaints

If you believe the Site contains any content that infringes your copyright, please contact our Copyright Agent, as detailed below, with the following information:

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; A description of the copyrighted work that you claim has been infringed; A description of where the material that you claim is infringing is located on the Site; Your address, telephone number and email address; A 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; and 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 duly authorized to act on the copyright owner’s behalf. To contact our Copyright Agent by regular mail, please write to:

Copyright Agent

To contact our Copyright Agent by regular mail, please write to: Copyright Agent Mobile Action, Inc. 381 Bush St. #600 San Francisco, CA 94104

To contact our Copyright Agent by email, please write to [email protected], with COPYRIGHT NOTICE in the subject line.

Miscellaneous

In the event that any portion of these Terms of Service is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of these Terms of Service shall remain in full force and effect. This section, the section entitled Mobile Action Intellectual Property, Indemnification, Mobile Action Disclaimers and Limitation of Liability and Effect of Termination shall survive the termination of these Terms of Service. You may not assign these Terms of Service. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of these Terms of Service. These Terms of Service shall be governed by and construed in accordance with the laws of the State of California. In the event of a dispute arising under or relating to this Agreement (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Mobile Action from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Mobile Action’s proprietary interests.

You agree that any arbitration or proceeding shall be limited to the Dispute between Mobile Action and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST MOBILE ACTION ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

These Terms of Service contain the entire agreement of the parties concerning its subject matter, and supersede all existing agreements and all other oral, written or other communication between the parties concerning the subject matter.

You consent and agree that your email response of the “I Accept” constitutes as your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and that such electronic signature will meet the requirements of an original signature as if actually signed by you in writing. Further, you agree that no certification authority or other third-party verification is necessary to the enforceability of your signature. At our request, any electronically signed document must be re-executed in original form by you. No party hereto may raise the use of an electronic signature as a defense to the enforcement of these Terms of Service or any amendment or other document executed in compliance with these Terms of Service.