User Agreement for Mobee Application
Last Updated: March 23, 2018
Welcome to the Mobee mobile application (the “App”) and a number of related services and associated websites (collectively, the “Service” or the “Services”) operated by WISER SOLUTIONS (“Mobee,” “we,” “us,” or “our”).
Our Service enables our retail customers (“Mobee Customers”) to deploy Mobee’s network of geographically distributed users (the “Mobee Users”)to collect and verify data requested by Mobee Customers as part of what we define below as “Missions”. In return for completing Missions, Mobee Users are provided with reward points (“Reward Points”), which they can then redeem for gift cards from participating retailers.
This Agreement does not apply to any individual using the Services in his or her capacity as an employee, agent or representative of a Mobee Customer.
Please carefully review the following terms and conditions (this “Agreement”). This Agreement is an electronic contract that sets out the legally binding terms of relationship between Mobee and you. THESE TERMS WILL GOVERN YOUR USE OF OUR SERVICES. BY ACCEPTING THIS AGREEMENT, USING THE SERVICES AND COMPLETING MISSIONS, YOU ARE AGREEING TO THESE TERMS.
If you do not agree to this Agreement, you must cease use of the Services and not accept any Missions. Your use of the App or any other Mobee software licensed through a third party distributor, such as the Apple iTunes Store, Android Market or BlackBerry App World, is also governed by the applicable end user license agreement (“EULA”), which is made available through the third party distributor. If there is a conflict between any provision in this Agreement and the applicable EULA, the conflicting provision in this Agreement will prevail.
Mobee reserves the right to change this Agreement, and any additional terms at any time, effective upon making the modified provisions available on the Services and/or by notifying Mobee Users directly. You are responsible for regularly reviewing this Agreement. Continued use of the Services and/or the App after any such changes are made to this Agreement shall constitute your consent to such changes. Mobee does not and will not assume any obligation to notify Mobee Users of any changes to this Agreement, or the creation or modification of any additional terms.
Use of the Services is permitted only by individuals who can form legally binding contracts under applicable Law. Without limiting the foregoing, you must have reached the age of majority in your jurisdiction of residence to become a Mobee User. If you do not qualify, please do not submit an application to become a Mobee User.
Capitalized terms are defined as set forth below or elsewhere in the Agreement.
means the deliverables specified in a Mission for delivery by a Mobee User to Mobee for provision to a Mobee Customer, including but not limited to surveys, digital photographs, opinions, summary conversations, and any other data a Mobee Customer may request the Mobee User attain for them.
means a notice of a Mission provided by Mobee to one or more Mobee Users displayed on the user’s device, which includes a description of the services to be provided by the Mobee Users and the associated Deliverables (the “Mission”), the date by which the Mission must be completed (the “Mission Completion Date”) and the Reward Points associated with the Mission. Once a Mobee User has accepted a Mission request pursuant to Section 2, the Mission request will become a “Mission Engagement”.
1.3 “Mobee Mobile Application”
means the mobile application provided by Mobee to you under the third party distributor’s EULAthrough which you can view, accept or reject Missions and provide Deliverables in connection with the Service.
For any Mission Engagement, you agree to use your best efforts to perform the Mission such that the Deliverables are satisfactory to us and the Mobee Customers. By accepting a Mission request, you are entering into a binding legal agreement with Mobee to provide the Deliverables for the Reward Points specified in the Mission request. Do not accept a Mission request unless you are sure that you understand what you are being asked to deliver as specified in the Deliverables.
In order to accept Missions, you may be required to become a Registered User. For purposes of these Terms, a “Registered User” is a Mobee User who has registered an account on the Service (“Account”) or has a valid account on the social networking service (“SNS”) through which the Mobee User has connected to the Services (each such account, a “Third Party Account”). If you access the Service through an SNS as part of the functionality of the Service, you may link your Account with Third Party Accounts by allowing us to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to grant Mobee access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Mobee to pay any fees or making Mobee subject to any usage limitations imposed by such third party service providers. By granting Mobee access to any Third Party Accounts, you understand that Mobee will access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the Service via your Account. Please note that if a Third Party Account or associated service becomes unavailable or Mobee’s access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the “Settings” section of the App or our website or by deleting the App from your device. If you would like to disable your Account with Mobee, you may contact us at firstname.lastname@example.org. 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. Mobee makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Mobee is not responsible for any SNS Content.
Activities Under your Account - You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to: (1) notify us immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
Necessary Equipment and Software - You must provide all equipment and software necessary to connect to the Service, including but not limited to, a mobile device that is suitable to connect with and use the App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service.
We do not represent or endorse, and shall not be responsible for: (a) the safety, quality, accuracy, reliability, integrity or legality of any Mission, the truth or accuracy of the description of any Mission, any other third party website referenced or described by or accessible through the Service, or any Mobee Customer or other third party advice, opinion, offer, proposal, statement, data or other information (collectively, “Content”) displayed through the Services; or (b) your ability or inability to obtain any Reward Points through Missions. We reserve the right (but shall have no obligation) to remove any or all Missions or other Content at any time. Reward Points, availability and location are all subject to change at any time. You may not reserve a Mission. A Mission may become unavailable or drop in Reward Points while you are travelling to the location of the Mission.
You agree to release us and our agents, contractors, officers and employees, from all claims, demands and damages (actual and consequential) arising out of or in any way connected with your dispute with any Mobee Customer, in connection with the App. You agree that you will not involve us in any litigation or other dispute arising out of or related to any transaction, agreement, or arrangement with any Mobee Customer.
3. Reward Points and Payment
Mobee shall provide the Reward Points for each completed Mission within fifteen (15) days after the Mobee Customer’s acceptance of the Deliverables associated with the Mission. Reward Points do not correspond to any specific monetary value but may be accumulated and redeemed for gift cards issued by third parties though the App. Where permitted by law, Mobee may deduct any payment processing fees it incurs from the amount of the gift card. You will not earn Rewards Points for a Mission if Mobee rejects the Mission or if you otherwise breach this Agreement. You are responsible for paying all applicable taxes and for all expenses incurred by you in connection with performing the Missions or otherwise performing your obligations under this Agreement. We may be obligated by law to obtain tax information from you and/or provide certain information to government authorities. If we request tax information from you and you do not provide it, we may (in addition to any other rights or remedies available to us) withhold your Reward Points and/or suspend your account until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information. Mobee is not involved in, and has no responsibility for, the redemption of Reward Points. Each Mobee User is responsible for redeeming the Reward Points in exchange for the retail gift cards. Unredeemed Reward Points will automatically expire after six (6) months of inactivity on your Account. Mobee, in its sole discretion reserves the right to modify the expiration timeframes on unredeemed Reward Points, where permitted by law. Unredeemed Reward Points are not transferrable. Mobee may award additional bonus points to you for a variety of reasons associated with activities in the App. These additional points are added solely based on Mobee’s discretion and point amounts can vary.
4. Independent Contractor Relationship
You are, and at all times shall be, an independent contractor, and nothing in this Agreement is intended or should be construed to create a partnership, joint or co-venture, franchise, agency or employer-employee relationship between Mobee and you or between the Mobee Customer and you. You will take no position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving Mobee that is inconsistent with your being an independent contractor (and not an employee) of Mobee. You are not the agent of Mobee or the Mobee Customer and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment, assume any obligation, undertake any liability or otherwise act on behalf of Mobee or the Mobee Customer. This Agreement, and our relationship, is a commercial, arm’s-length relationship and does not create any special or fiduciary relationship. In your capacity as an independent contractor, you agree that you: (i) determine, in your sole discretion and judgement, the time, mode, manner, method and means used by you in performance pursuant to this Agreement; (ii) have the right to control how the Services hereunder are to be performed; (iii) may accept or choose not to accept work from Mobee; and (iv) are free to accept work from persons, firms and other third parties other than Mobee.
4.1 Benefits and Contributions.
You are not entitled to or eligible for any benefits that Mobee may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because you are an independent contractor, Mobee will not withhold or make payments for social security or payroll taxes of any kind, make unemployment insurance, employment insurance, pension plan or disability insurance contributions, or obtain workers’ compensation insurance on your behalf, nor you will be entitled to any of the foregoing. If, notwithstanding the foregoing, you are reclassified as an employee of Mobee, or any affiliate of Mobee, by the U.S. Internal Revenue Service, the U.S. Department of Labor, the Canada Revenue Agency or any other federal, state/provincial/territorial or foreign agency as the result of any administrative or judicial proceeding, you agree that you will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by Mobee. In addition, you waive any and all rights, if any, to participation in any of the fringe benefit plans or programs including, but not limited to, health, sickness, accident or dental coverage, life insurance, disability benefits, severance, accidental death and dismemberment coverage, unemployment insurance coverage, workers’ compensation coverage, and pension or 401(k) benefit(s) provided by Mobee to its employees.
4.3 Compliance with Law.
You will comply with all applicable federal, state/provincial/territorial, local, and foreign laws governing self-employed individuals, including laws requiring registration for and the payment of taxes, such as income and employment taxes, and social security (including workers’ compensation), disability and other premiums or contributions. You will provide evidence satisfactory to Mobee of such registrations and/or payments upon request by Mobee.
Mobee does not conduct Missions in the State of Nevada. Any use of this application in the State of Nevada is a violation of the Mobee User Agreement and the laws of the State of Nevada.
You agree that you will use the Service and App to provide the Deliverables for each Mission to Mobee as described in each Mission Details & Instructions page on or before the applicable Mission Completion Date.
You agree that the Deliverables will be the sole and exclusive property of Mobee. You hereby irrevocably and unconditionally assign to Mobee all right, title and interest worldwide in and to the Deliverables and all intellectual property rights thereto, including but not limited to all copyrights, moral rights, and similar rights of every kind and nature. If any intellectual property rights, including moral rights, cannot (as a matter of law) be assigned by you to Mobee, then (a) you unconditionally and irrevocably waive the enforcement of such rights and all claims and causes of action of any kind against Mobee with respect to such rights, and (b) to the extent you cannot (as a matter of law) make such waiver, you unconditionally grant to Mobee an exclusive, perpetual, irrevocable, worldwide, fully-paid license, with the right to sublicense through multiple levels of sublicensees, under any and all such rights to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit and otherwise use the Deliverables in any medium or format, whether now known or hereafter discovered, and to exercise any and all other present or future rights in the Deliverables. At Mobee’s request, you will (i) cooperate and assist Mobee both during and after the term of this Agreement, in perfecting, maintaining, protecting and enforcing Mobee’s rights in the Deliverables, and (ii) execute and deliver to Mobee any document deemed necessary or appropriate by Mobee in its discretion to perfect, maintain, protect or enforce Mobee’s rights in the Deliverables or otherwise carry out the purposes of this Agreement. You hereby irrevocably designate and appoint Mobee and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to execute, deliver and file any and all documents with the same legal force and effect as if executed by you, if Mobee is unable for any reason to secure your signature on any document needed in connection with the actions described in this section. You acknowledge that this appointment is coupled with an interest.
6.1 Use and Disclosure.
During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) not disclose or permit others to disclose any Confidential Information to any third party without obtaining Mobee’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to Mobee’s or any Mobee Customer’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Mobee Customers) that Mobee considers to be confidential or proprietary or Mobee has a duty to treat as confidential. Any Missions or Mission requests are Confidential Information and cannot be disclosed to third parties.
6.2 Standard of Care.
You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care. While you are completing a Mobee Mission, you agree to not disclose that you are using the Mobee app or that you have any affiliation with a brand that may be mentioned within the Mission. You agree to comply with any direction given by store employees while you are completing your Mission, including but not limited to, leaving the premises.
6.3 Reverse Engineering.
You will not attempt to reverse engineer, de-encrypt, or otherwise derive the design, internal logic, structure or inner workings (including algorithms and source code) of the App, any other software, products, models, prototypes, or other items provided by Mobee whether or not they use, embody, or contain Confidential Information.
Your obligations under Sections 6.1 and 6.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to Mobee’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by Mobee, or is required by law or court order, provided that you immediately notify Mobee in writing of such required disclosure and cooperate with Mobee, at Mobee’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
Upon Mobee’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to Mobee or, if so directed by Mobee, destroy all tangible embodiments of the Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to Mobee in writing that you have fully complied with the foregoing obligations.
7. No Conflicts
You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any Mission Engagement, or that is otherwise inconsistent with this Agreement, or any Mission Engagement. You further represent and warrant that you will not submit a Mission request for a Mission that involves a brand and/or retailer with whom you have a previous or existing relationship (including, but not limited to, employment, friendship or familial) and if such relationship only becomes evident to you after your Mission Engagement, you immediately notify Mobee of such relationship and terminate the Mission Engagement.
8. Representations And Warranties
In addition to the representations and warranties in section 7 above, you represent, warrant, and covenant that:
(a) You will not, in the course of performing any Mission, infringe or misappropriate, and neither the Deliverables nor any element thereof will infringe or misappropriate, any intellectual property right or other right of any other person, including rights of privacy and publicity; (b) All Deliverables and all elements thereof are your original works and you have all rights necessary to grant the rights set forth in this Agreement; Neither the Deliverables nor any element thereof will be subject to any restriction, mortgage, lien, claim, pledge, security interest, or encumbrance when delivered by you to Mobee; (d) You will not grant, directly or indirectly, any right or interest in any Deliverable to any other person; (e) You have full right, power, and authority to enter into and perform this Agreement without the consent of any third party (including any of your current or former employers); (f) The Deliverables will fully conform to the specifications, requirements, and other terms in the applicable Mission Engagement and this Agreement, and will be of a professional and serviceable quality.In the event of a breach of this warranty, without limiting any other rights or remedies Mobee may have, Mobee may terminate this Agreement for cause under Section 10.1 hereof.
You will indemnify and hold harmless Mobee and its affiliates, and each of their shareholders, directors, officers, employees and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising from or relating to: (i) any breach of any representation, warranty, covenant, or obligation in this Agreement, or any Mission Engagement, by you or any intentional misconduct or negligence by you in performing any Mission; (ii) either a finding of deemed employment by Mobee, or the employment, your termination or use of any person for the purpose of performing or discharging your obligations pursuant to this Agreement, including, but not limited to, any Claims arising under any federal or provincial laws; or (iii) as a result of your failure or delay to make any payments or to file any return or information required by any laws or regulations.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE GREATEST EXTENT PERMITTED BY LAW. ALL MISSION ENGAGEMENTS ARE AT YOUR OWN RISK.
9. Limitation of Liability
IN NO EVENT WILL MOBEE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT. MOBEE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (A) TEN DOLLARS ($10.00) AND (B) AGGREGATE AMOUNT OF REWARD POINTS OWED BY MOBEE FOR MISSIONS PERFORMED UNDER THIS AGREEMENT DURING THE SIX-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THIS AGREEMENT. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor” and you waive any other similar provision of the laws of any other applicable jurisdiction.
10.1 Termination by Mobee.
Mobee may terminate this Agreement and/or any Mission Engagement, in whole or in part, at any time with or without cause for its convenience, in which case Mobee is obligated to pay you Reward Points earned by you through the effective date of termination or expiration. Mobee may withdraw any Mission request at any time prior to your acceptance thereof pursuant to Section 2. Reasons for termination include, but are not limited to, creation of multiple accounts, reverse engineering, misuse of Mobee, etc. Mobee Users terminated for convenience have up to seven (7) days to redeem any Reward Points earned prior to such termination. Mobee Users terminated for cause will forfeit all Reward Points earned.
10.2 Termination by You.
Effective upon fifteen (15) days prior written notice to Mobee, you may terminate this Agreement at any time and Mobee will de-activate your account and remove you from all subsequent mailing lists and communications.
Any obligations hereunder which by their nature continue beyond the termination or expiration of this Agreement will survive any such termination or expiration of this Agreement. Termination or expiration of this Agreement will not affect either party’s liability for any breach of this Agreement such party may have committed before such expiration or termination.
11. General Provisions
11.1 Governing Law; Venue.
This Agreement is governed by the laws of the State of Delaware without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. You irrevocably consent to the personal jurisdiction of the state and federal courts located in Delaware for any suit or action arising from or related to this Agreement, and waive any right you may have to object to the venue of such courts. You further agree that these courts will have exclusive jurisdiction over any such suit or action initiated by you against Mobee.
If any dispute, controversy or claim arises between the parties under, out of or in relation to this Agreement, including any dispute concerning the formation, construction, interpretation or breach of this Agreement or a party’s performance of its obligations hereunder (“Dispute”), the parties shall attempt in the first instance to resolve the Dispute through mutual good faith consultation. If the Dispute is not resolved in this manner within forty-five (45) days of a party’s notice of a Dispute, then to the greatest extent permitted by law any party may serve a notice on the other party requiring the Dispute to be submitted to arbitration as follows:
11.2.1 Any Dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than five thousand U.S. Dollars (US$ 5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.
11.2.2 Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the “Rules”) and shall be administered by the Boston, Massachusetts office of JAMS (the “Administrator”). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be Boston, Massachusetts USA. The Dispute(s) shall be submitted to a single arbitrator (“Arbitrator”) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties ten (10) days after request by either party. Should the parties be unable to agree on a choice of arbitrator within ten (10) days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement. Judgment on the award of the Arbitrator may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
11.2.3 By using the Service in any manner, you agree to the above arbitration provision. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Mobee (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Notwithstanding the foregoing, either party may proceed directly to any court of competent jurisdiction to seek protection or enforcement of its intellectual property rights and/or to seek injunctive relief or other equitable relief.
If any provision of this Agreement, or part thereof, is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision, or part thereof, will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. To the extent any such provision, or part thereof, cannot be modified so as to be enforceable, it shall be struck and the remainder of this Agreement will be unimpaired by such striking.
11.4 No Assignment.
This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without Mobee’s express prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Mobee may assign this Agreement or any of its rights under this Agreement to any third party with or without your consent.
Mobee may give any notice required by this Agreement by means of a general notice on the Service, electronic mail to your email address on record with Mobee, or by written communication sent by first class mail or pre-paid post to your address on record with Mobee. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Mobee, addressed to email@example.com.
Mobee’s remedies for any breach of this Agreement by you will include without limitation damages, injunctive relief, specific performance, and restitution. You acknowledge that any breach of this Agreement by you would cause irreparable injury to Mobee for which monetary damages would not be an adequate remedy and, therefore, Mobee will be entitled to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.8 Time Is of the Essence.
Time is of the essence in the performance of the Missions and your other obligations under this Agreement.
11.9 Entire Agreement; Amendments.
This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications, representations and understandings between the parties. Except as permitted herein, no modification of or amendment to this Agreement will be effective unless in writing and signed by the party to be charged.
In the event that you provide Mobee with any feedback regarding the Service or the App, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the Service or the App (“Feedback”), you hereby assign to Mobee all rights in the feedback, including but not limited to, the right to use such feedback and related information in any manner we deem appropriate.
11.11 Modifications to Mobee Mobile Application.
Mobee reserves the right at any time to modify or discontinue, temporarily or permanently, the App or the Service (or any part thereof) with or without notice. You agree that Mobee shall not be liable to you or to any third party for any modification, suspension or discontinuance of the App or the Service including any unredeemed Reward Points accumulated at the time of such discontinuance.
The parties have agreed that this contract and all related documents be drafted in English. Les parties aux présentes ont demandé et convenu que le présent contrat et tout document y afférent soient rédigés en anglais.