Last Revised: Jan 20 2015
Welcome and thank you for your interest in LoyaltyPayments INC., application named “Mohurs”, further in the document will be referred as “Mohurs”. We offer a merchant discovery service & card recommendation service. The following Terms of Service, and any additional terms incorporated by reference herein (collectively, the “Terms”), govern your access and use of the services available through our web site located at http://www.mohurs.com (the “Site”), any third party platforms and services approved by Mohurs (e.g., Facebook, Google, etc.) (“Third Party Sites”), and our proprietary software application accessible via a mobile device (the “App”) (the Site, App, and Third Party Sites are, collectively, the “Services”). The terms “we,” “our,” “us,” and “Mohurs” refer to Mohurs. The terms “you,” “your,” and “user” refer to the user (including users who have registered for an account) using the Services.
Important Disclaimer and Notice. Mohurs App DOES NOT PROVIDE ANY FINANCIAL ADVICE. FOR SPECIFIC ADVICE ON FINANCIAL MATTERS, YOU SHOULD ALWAYS SEEK THE ADVICE OF A PROFESSIONAL WHO IS LICENSED AND KNOWLEDGEABLE IN THAT AREA, SUCH AS AN ACCOUNTANT. Mohurs IS NOT A FINANCIAL INSTITUTION AND IS NOT SPONSORED BY ANY FINANCIAL INSTITUTION. THE FOREGOING DISCLAIMER AND LIMITATIONS ON LIABILITY SHALL NOT LIMIT THE MORE GENERAL DISCLAIMERS AND LIMITATIONS ON LIABILITY IN SECTIONS 8 AND 9. Without limiting the foregoing and for the avoidance of doubt, any opinions, advice, information, data, text, and other materials made accessible through the Services is for informational purposes only.
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY, AS THEY CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND US. BY REGISTERING FOR, ACCESSING, DOWNLOADING, OR OTHERWISE USING THE SERVICES IN ANY MANNER, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY AND COMPLY WITH THE FOLLOWING TERMS, INCLUDING ANY FUTURE MODIFICATIONS, AND ALL POLICIES OF THE SITE ARE INCORPORATED BY REFERENCE, AND YOU ACKNOWLEDGE THAT YOU ARE ACCEPTING THE BENEFIT OF THE SERVICES, SUBJECT TO THESE TERMS WITHOUT MODIFICATION. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT USE AND ARE NOT AUTHORIZED TO USE THE SERVICES. The ServiceS ARE available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the ServiceS ARE not INTENDED FOR individuals under the age of 18. BY USING THE SERVICES, YOU AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT PREVIOUSLY BEEN REMOVED OR SUSPENDED FROM THE SERVICES. If you do not qualify FOR THE SERVICES, please do not attempt to register for or use the services.
1. Use of the Services.
You are responsible for obtaining at your own expense all equipment and services needed to access the Services, including but not limited to a mobile device that is compatible with the App. If you are accessing the Services by a mobile device, your wireless carrier may charge you fees for data, text messaging, and other wireless access or communications services. We do not guarantee that our mobile Services can be accessed through all wireless devices or service plans or are available in all geographical locations.
2. Prohibited Uses.
In using the Services, you agree not to, and agree not to assist or permit any persons to (a) use the Services, without our express written consent, for any commercial purpose, including without limitation, communicating or facilitating any commercial advertisement or solicitation; (b) undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Services or any part thereof; (c) gain unauthorized access to the Services, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Services; (d) access or use the Services for any purpose other than expressly permitted by these Terms; (e) post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Services or communications equipment and computers connected to the Services; (f) remove, disable, damage, circumvent or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of any part of the Services or any content on the Services, or features that enforce limitations on the use of the Services or any content on the Services; (g) use any scraper, spider, cheats, exploits, robots or other automated means of any kind to access, modify or interfere with the Services, or bypass any measures we may use to prevent or restrict access to the Services; (h) interfere with or disrupt the Services, networks or servers connected to the Services or violate the regulations, policies or procedures of such networks or servers; or (i) violate any applicable federal, state or local laws or regulations or these Terms.
3. Account Registration.
3.2 Account Information. You are responsible for maintaining the confidentiality of your log-in credentials in order to use the Services, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify us immediately of any unauthorized use of your log-in credentials or any other breach of security with respect to your account. We will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying us of such unauthorized use or loss of your credentials.
3.3 Integrated Services. We may, now or in the future, allow you to link an account you may have on the Services to your accounts on third-party services, such as social networking sites (such Third Party Sites, “Integrated Services”). If you link your account on the Services to an Integrated Service, you are authorizing us to store and use your access credentials to access your account or information on such Integrated Service on your behalf as your agent to integrate your experience with the Services with content, information, and features available through such Integrated Service. This may include importing the contacts, preferences, interests or “likes” of the Integrated Service, and/or pushing updates regarding your use of the Services out to the Integrated Service. Linking, accessing or using a third-party service through the Services in this manner may be subject to additional terms established by the applicable third party. We encourage you to read such third-party terms as it is your sole responsibility to comply with such terms.
Social Media Sites
3.4 Invitation Service. We may offer an invitation service to tell a friend about the Services. If you choose to use our invitation service, we may ask you for information needed to send the invitation, such as your friend’s email address. We may also offer you the opportunity to invite your friend via Third Party Sites such as Facebook or Twitter. We will automatically send your friend an email inviting him or her to try the Services. By providing email addresses of non-Users, you represent that you have the right to do so and that such information may also be provided to the third party service that you have designated to contact the non-user. We store and use this information to send this invitation, to register a friend if your invitation is accepted, and to track the success of our invitation service. Your friend may contact us at email@example.com to request that we remove this information from our database.
4. Account Aggregation Services.
The Services may provide or make available certain account aggregation features or services that enable the aggregation of transaction data and other information from various financial accounts of yours for use in connection with the Services. You understand and agree that your use of such features or services is subject to, and you shall at all times comply with, in addition to these Terms, which are hereby incorporated into and made a part of these Terms by reference.
5. Ownership; Feedback.
We retain all right, title, and interest in and to all intellectual property and other proprietary materials used in connection with the Services. Between you and Mohurs, content created, originated, or made available through the Services (excluding User Content (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software (including html-based computer programs) , as defined below) and all intellectual property rights thereof are the property of Mohurs. Neither these Terms nor your use of the Services grant you any rights or license to use any Mohurs proprietary material except as expressly authorized under these Terms. We reserve all rights not expressly granted in these Terms. You agree that we shall acquire, and you hereby grant and otherwise transfer, any and all right, title, and interest in and to any actual or suggested modifications, design changes, improvements, and other information regarding the features and performance of the Services (“Feedback”) you offer to us, without the payment of additional consideration.
6. User Content.
Except as otherwise provided in these Terms, you (or the owner of the content) retain all right, title, and interest in and to any content you post or provide to us, directly or through a Third Party Site or Integrated Service (“User Content”). However, by making User Content available to us, you hereby grant us and our affiliates a worldwide, non-exclusive, fully paid-up, perpetual, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, and perform your User Content in connection with the Services and our (and our successor’s) business, including without limitation for promoting and redistributing part or all of User Content (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered, subject to any applicable terms and policies of your connected Third Party Sites or Integrated Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also hereby grant to each user of the Services a non-exclusive license to access your User Content through the Services in each case as permitted by the functionality of the Services, these Terms, and the terms and policies of your connected Third Party Sites or Integrated Services. The above licenses granted by you in User Content you make available to the Services shall survive any termination or expiration of this Agreement. You are solely responsible for any User Content and the consequences of posting or providing it to the Services.
LoyaltyPayment will collect and use personally identifiable information, including without limitation any UDID, MAC address, or other unique device identifier, cookies, and geo-location data, and to enable third parties to collect and use such information in connection with the implementation of such third parties’ content (including the Content) through the app platform.
7. Monitoring User Content; Removal of Content.
Mohurs does not control User Content and does not have any obligation to monitor such User Content for any purpose. Mohurs may choose, in its sole discretion, to monitor, review, or otherwise access some or all User Content, but by doing so Mohurs nonetheless assumes no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, or to monitor, review, or otherwise access other User Content, and Mohurs assumes no responsibility for the conduct of the User submitting any User Content. You acknowledge that Mohurs may or may not pre-screen User Content, but that Mohurs and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Content that is available via the Service. Without limiting the foregoing, Mohurs and its designees may, at any time and without prior notice, remove any User Content that in the sole judgment of Mohurs violates these Terms or is otherwise objectionable, or for any other reason, with or without notice and with no liability of any kind. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other content, including any reliance on the accuracy, completeness, usefulness or legality of such User Content. You should exercise your independent discretion and judgment before downloading any other User Content.
We own and operate the Site, App, and other portions of the Services. We reserve the right to revise these Terms on a going forward basis in our sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Site, App, or on or within the Services. Any revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision above. You should visit this page regularly to ensure your continued acceptance of these Terms. Your continued use of the Services after any revision to these Terms constitutes your binding acceptance of the revised Terms. In the case of material changes to the Terms, we will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Service, or other similar mechanism. Material changes to these Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from posting of such change. Notwithstanding the preceding sentences of this Section, no revisions to these Terms will apply to any dispute between you and us that arose prior to the date of such revision. The Services are new and subject to change at any time and we may offer new products or services through the Services, which will also be subject to these Terms. You should visit the Services and review these Terms periodically to ensure you stay informed about the latest updates.
9. Cancellation Policy.
We may terminate or suspend your use of and access to the Services at our sole discretion, with or without cause, without notice or liability to you. You may discontinue your use of the Services at any time and may terminate your Mohurs account at any time by notifying us. You may disconnect any Integrated Service from Mohurs at any time and all data that was collected from the disconnected Integrated Service will be deleted from the Services. These Terms will remain effective until terminated as set forth herein. In the event of termination, Sections 1, 2, 4, 5, 6, 9, and 10 through 16 shall survive.
10. Links to Other Sites.
As you use the Services you may notice links to third party sites. If you use these links, you may leave the Services. You may be required to navigate to third party services and/or install third party software to take advantage of the credit card recommendations, rewards information, promotions, deals, or other information available through the Services, and Mohurs does not make any representation or warranty about such third party services or software. Certain of these third party sites may make use of Mohurs’s proprietary intellectual property rights (such as copyrights, trademarks, Services marks, logos and trade names) under license from Mohurs. We are not responsible for the availability or content of these third party sites, or availability of credit card rewards, or for any viruses or other damaging elements encountered in linking to a third party site, whether or not we are affiliated with the owners of such third party sites. In addition, the provisioning of these links to third party sites is not an endorsement or approval by us of the organizations sponsoring such third party sites or their products or services. These Terms do not apply to third party sites, and you should review applicable terms and policies, including any relevant privacy policies, associated with any third party sites, applications, software or services.
YOU AGREE THAT WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS YOU MAY HAVE ON OR THROUGH A THIRD PARTY SITE OR AS THE RESULT OF THE PRESENCE OF ANY THIRD PARTY CONTENT ON THE SERVICES.
11. Your Representations; Indemnification.
You represent and warrant to us that you hold all necessary rights to permit the use of the data from connected Third Party Sites or Integrated Services by the Services and any other User Content for the purpose of these Terms; and that the use of such content will not (a) violate any criminal laws; (b) infringe, violate, or misappropriate any rights of any third parties, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (c) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (d) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. You represent and warrant that (a) all the information, including without limitation User Content, you provide to us through the Services or a Registered Account or authorize a Third Party Site or Integrated Service to provide to us is true, accurate, current, and complete information about yourself, and that you will promptly update all such information as it changes to keep it complete and accurate and (b) all the data that you authorize us to collect from a Third Party Site or Integrated Service complies with the terms and policies of that Third Party Site or Integrated Service. The Services is not intended or available to any users suspended or removed from the Services. By accessing or otherwise using the Services, you represent that you have not been previously suspended or removed from the Services. You agree to indemnify, defend and hold harmless Mohurs and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Mohurs Entities”) from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) your breach or other violation of these Terms, including without limitation any of the foregoing representations and warranties; (ii) your use or misuse of the Services; (iii) your User Content, including without limitation our use of your User Content consistent with these Terms; (ii) any third party claim arising from your use of or access to Third Party Site or Integrated Service content through the Services under these Terms; (iv) your violation of any applicable law or regulation; or (v) your violation of the rights of any other person or entity, including, but not limited to, claims that any User Content infringes or violates any third-party intellectual property rights or other proprietary rights.
12. Warranty Disclaimers; No Warranty.
THE SERVICES (INCLUDING WITHOUT LIMITATION ANY ACCOUNT AGGREGATION SERVICES) AND ANY CREDIT CARD RECOMMENDATIONS, CREDIT CARD REWARDS INFORMATION, DATA, CONTENT, FEATURES, RECOMMENDATIONS, RESULTS, AND OTHER INFORMATION AND MATERIALS, USER CONTENT, AND ANY THIRD PARTY CONTENT, SOFTWARE OR APPS MADE AVAILABLE ON OR THROUGH OR IN RELATION TO THE SERVICES (THE “MATERIALS”), ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY, OR OTHERWISE.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE Mohurs ENTITIES MAKE NO WARRANTY, EXPRESS, IMPLIED STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, RESULTS OR TITLE, AND ANY WARRANTIES IMPLIED BY A COURSE OF DEALING OR PERFORMANCE. THE Mohurs ENTITIES DO NOT WARRANT THE MATERIALS TO BE UNINTERRUPTED, ACCURATE, RELIABLE, USEFUL, UP-TO-DATE, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU UNDERSTAND THAT THE Mohurs ENTITIES DO NOT WARRANT THAT ANY CREDIT CARD RECOMMENDATION, CREDIT CARD REWARD INFORMATION, OR OTHER INFORMATION AVAILABLE THROUGH THE SERVICES IS VALID, ENFORCEABLE, OR AVAILABLE IN YOUR AREA OR THROUGH THE APPLICABLE FINANCIAL INSTITUTION AND YOU ACKNOWLEDGE THAT THE CREDIT CARDS AND CREDIT CARD REWARDS ARE PROVIDED BY THIRD PARTIES SUBJECT TO SUCH THIRD PARTIES SEPARATE TERMS, AND MAY BE VOID OR PROHIBITED PURSUANT TO APPLICABLE LAW. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE NOT ENDORSED OR SPONSORED BY ANY THIRD-PARTY BANK, CREDIT CARD COMPANY, FINANCIAL ACCOUNT AGGREGATOR, OR OTHER THIRD-PARTY FINANCIAL INSTITUTION ACCESSIBLE THROUGH OR OTHERWISE REFERRED TO ON THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS THROUGH THE SERVICES OR ANY ASSOCIATED SITES OR APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIALS. Mohurs DOES NOT MODERATE, EDIT, CONFIRM, VET, OR VERIFY ANY USER CONTENT OR ANY OTHER CONTENT ON THE THIRD PARTY SITES THAT YOU CONNECT TO OR LINK TO THROUGH THE SERVICES. Mohurs DOES NOT HAVE ANY CONTROL OVER SUCH CONTENT AND BEARS NO RESPONSIBILITY FOR IT.
YOU UNDERSTAND THAT WHEN USING THE SERVICE, YOU WILL BE EXPOSED TO USER CONTENT AND THIRD PARTY CONTENT FROM A VARIETY OF SOURCES, AND THAT Mohurs IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, INTEGRITY, QUALITY, LEGALITY, USEFULNESS, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH USER CONTENT OR THIRD PARTY CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO USER CONTENT AND THIRD PARTY CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST Mohurs WITH RESPECT THERETO. Mohurs DOES NOT ENDORSE ANY USER CONTENT OR THIRD PARTY CONTENT, OR ANY CREDIT CARD RECOMMENDATION OR REWARD EXPRESSED THEREIN. UNDER NO CIRCUMSTANCES WILL Mohurs BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY USER CONTENT OR THIRD PARTY CONTENT.
YOU AKNOWLEDGE AND AGREE THAT Mohurs IS NOT A FINANCIAL PLANNER, ADVISOR, BROKER, OR INSTITUTION. Mohurs MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES OR THE MATERIALS. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIALS OBTAINED THROUGH THE SERVICES IS NOT FINANCIAL ADVICE AND MAY NOT BE APPROPRIATE FOR YOUR SITUATION AND YOU USE THE SERVICES AND ANY MATERIALS AT YOUR OWN RISK.
LOYALTY PAYMENTS INC. MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
LOYALTY PAYMENTS INC. DOES NOT WARRANT THE RESULTS OF USE OF THE LOYALTY PAYMENTS INC. SERVICE, INCLUDING WITHOUT LIMITATION, THAT THE SERVICE WILL BE ACCURATE, TRUE, TIMELY, RELIABILE, ERROR FREE, VIRUS FREE, COMPLETE, AVAILABLE, UNINTERUPTED, SECURE, INTEROPERABLE WITH ANY OTHER HARDWARE OR SOFTWARE SYSTEM, OR THAT PUBLISHER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS) HEREUNDER. LOYALTY PAYMENTS INC. DOES NOT CONTROL THE CONTENT POSTED ON THE LOYALTY PAYMENTS INC. SERVICE, AND AS SUCH, CANNOT AND DOES NOT GUARANTEE THE ACCURACY, APPROPRIATENESS, OR QUALITY OF SUCH CONTENT. LOYALTY PAYMENTS INC. IS NOT LIABLE FOR ANY CONTENT, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT THAT IS POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE ON THE LOYALTY PAYMENTS INC. SERVICE. LOYALTY PAYMENTS INC. SERVICE MAY CONTAIN LINKS TO THIRD PARTY SITES WHO’S PRODUCTS OR SERVICES ARE FEATURED ON THE LOYALTY PAYMENTS INC. SERVICE. THESE LINKED SITES ARE NOT UNDER LOYALTY PAYMENTS INC.’S CONTROL, AND LOYALTY PAYMENTS INC. IS NOT RESPONSIBLE FOR THE CONTENTS OR FUNCTIONALITY OF ANY SUCH LINKED SITE, OR ANY TRANSMISSION RECEIVED FROM ANY LINKED SITE.
13. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL THE Mohurs ENTITIES BE LIABLE UNDER THESE TERMS FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR OTHER DAMAGES, OR LOST PROFITS, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, EVEN IF THE Mohurs ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL THE Mohurs ENTITIES’ AGGREGATE LIABILITY UNDER THESE TERMS FOR ANY CLAIM EXCEED $25. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SERVICES OR OTHERWISE BY THIRD PARTIES OTHER THAN Mohurs AND RECEIVED BY YOU THROUGH THE SERVICES OR ANY THIRD PARTY SERVICES. Without limiting the foregoing, Mohurs shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of Mohurs. You acknowledge that Mohurs has entered into these Terms in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
14. Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND Mohurs, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND Mohurs, THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED. YOU UNDERSTAND AND AGREE THAT Mohurs WOULD NOT BE ABLE TO OFFER THE SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
15. Digital Millennium Copyright Act Compliance
15.1 General. Mohurs respects the rights of copyright owners and expects its users to do the same. Therefore, as required by the Terms, infringing content may not be submitted to the Services or used in, whole or in part, in any User Content.
15.2 User Content. If you upload User Content that contains any copyrighted work, including literary works, visual works, musical works, sound recordings, audiovisual works, or other work or any combination of the foregoing, then you must be the owner of such works or have all required rights, licenses, consents, and permissions to use such works on the Services and grant the rights granted herein. In addition to being grounds for removal of your User Content, termination of your account, and any other remedy Mohurs may have against you, your failure to own or obtain such rights may subject you to civil and/or criminal liability, the damages for which can be significant.
15.3 Copyright Owner Rights. If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Services infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Mohurs’s Designated Copyright Agent with the following information in writing:
(i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
(iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Mohurs to locate the material;
(iv) information reasonably sufficient to permit Mohurs to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) a statement that the complaining party has 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 (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
(vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.”).
Please consult your legal counsel (or see 17 U.S.C. § 512) to confirm these requirements and your compliance therewith. It is Mohurs’s policy to respond to notices of alleged infringement that comply with the DMCA. In addition, Mohurs will promptly terminate without notice the accounts of Users that are determined by Mohurs to be “repeat infringers.” If Mohurs receives more than three takedown notices regarding a user’s User Content, then that User will be considered a repeat infringer and their account will be terminated.
15.4 Designated Agent. Mohurs’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached by electronic mail at firstname.lastname@example.org. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Mohurs customer service through email@example.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
16. Dispute Resolution and Arbitration.
16.1 Generally. In the interest of resolving disputes between you and Mohurs in the most expedient and cost effective manner, you and Mohurs agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Mohurs ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Notwithstanding subsection 16.1, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
16.3 Arbitrator. Any arbitration between you and Mohurs will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Mohurs.
16.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice“). Mohurs’s address for Notice is: Mohurs Inc, Mohurs Inc., 286 Grau Drive, Fremont, CA 94536. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Mohurs may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Mohurs shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Mohurs shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Mohurs in settlement of the dispute prior to the arbitrator’s award.
16.5 Fees. In the event that you commence arbitration in accordance with these Terms, Mohurs will reimburse you for your payment of the filing fee, unless your claim is for greater than $5,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Fremont, California, provided that if the claim is for $5,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Mohurs for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.6 No Class Actions. YOU AND Mohurs AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.Further, unless both you and Mohurs agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.7 Modifications. In the event that Mohurs makes any future change to this arbitration provision (other than a change to the Mohurs’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Mohurs’s address for Notice, in which case your account with Mohurs shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
16.7 Enforceability. If only Subsection 16.6 of this Section 16 or the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction described in Section 18 shall govern any action arising out of or related to these Terms.
17. Material Relationship Disclosure.
Mohurs has financial relationships with some of the credit cards and/or financial institutions represented on the Services. We may be compensated if you or any other consumers or users of the Services choose to apply for a credit card or other third-party financial products or services via the Services.
Apple App Store Additional Terms and Conditions. The following additional terms and conditions apply to you if you are using an App from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 12, the more restrictive or conflicting terms and conditions in this Section 12 apply, but solely with respect to Apps from the Apple App Store.
- Acknowledgement: Mohurs and you acknowledge that this Agreement is concluded between Mohurs and you only, and not with Apple, and Mohurs, not Apple, is solely responsible for Apps and the content thereof. To the extent this Agreement provides for usage rules for Apps that are less restrictive than the Usage Rules set forth for Apps in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
- Scope of License: The license granted to you for Apps is limited to a non-transferable license to use Apps on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Maintenance and Support: Mohurs is solely responsible for providing any maintenance and support services with respect to Apps, as specified in this Agreement (if any), or as required under applicable law. Mohurs and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Apps.
- Warranty: Mohurs 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 Apps to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for Apps to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to Apps, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Mohurs’s sole responsibility.
- Product Claims: Mohurs and you acknowledge that Mohurs, not Apple, is responsible for addressing any claims of you or any third party relating to Apps or your possession and/or use of App, including, but not limited to: (i) product liability claims; (ii) any claim that Apps fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Mohurs’s liability to you beyond what is permitted by applicable law.
- Intellectual Property Rights: Mohurs and you acknowledge that, in the event of any third party claim that Apps or your possession and use of Apps infringes that third party’s intellectual property rights, Mohurs, 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: Mohurs’s contact information for any end-user questions, complaints or claims with respect to Apps is set forth in Section 11.
- Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using Apps.
- Third Party Beneficiary: Mohurs and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
These Terms: (i) will be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law; and (ii) will not be governed by the United Nations Convention of Contracts for the International Sale of Goods. The relationship of the parties under these Terms is that of independent contractors, and these Terms will not be construed to imply that either party is the agent of the other. Any notices under these Terms must be sent to:
LoyaltyPayments INC., (For Product “Mohurs” app)
286 Grau Drive,
Fremont, CA 94536
You may contact us by sending correspondence to the foregoing address or by emailing us at firstname.lastname@example.org. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.