Terms of Use

This web site, our other electronic sites, and the Content (as defined below) contained on our sites (collectively referred to as the "Site" unless specifically stated otherwise) are made available to you pursuant to these Terms of Use and any other rules or policies posted on the Site (collectively "Terms of Use Agreement"). All such rules and policies are incorporated by reference into this Terms of Use Agreement. By accessing, browsing and/or using the Site, you acknowledge that you have read, understood, and agree to be bound by this Terms of Use Agreement. If you do not agree with any provision of this Terms of Use Agreement, you are not authorized to access or use the Site for any purpose.

Modifications

The Site is owned and operated by Motricity, Inc. and/or its subsidiaries and affiliates ("we", "us" or "our"). We reserve the right to modify this Terms of Use Agreement at any time without giving you prior notice. You are responsible for regularly reviewing this Terms of Use Agreement. Your use of the Site following any such modification constitutes your agreement to follow and be bound by this Terms of Use Agreement as modified. We may cancel or terminate your right to use the Site or any part of the Site at any time without notice.

Intellectual Property Rights

All software, object code, source code, schematics, data (including metadata), text, sound, graphic material, audio and video material, photographs, illustrations, artwork, images, documents, papers, instructions, proprietary information and all copyrightable or otherwise legally protectible elements of the Site or available on or through the Site, including, without limitation, all trademarks and trade names (individually and collectively, the "Content"), are our property or the property of our subsidiaries, affiliates, or other third parties and are legally protected under applicable local, state, national and international intellectual property and other laws, regulations and treaties.

Your use of the Site or any of the Content available through the Site constitutes your acknowledgement that the Site and the Content contain proprietary information owned by us or other third parties. You hereby agree not to alter, delete or conceal any copyright, trademark or other proprietary notices of any party from the Content or the Site or any materials thereon. You hereby agree not to reproduce, modify, copy, distribute, disseminate, transmit, display, perform, broadcast, reproduce, publish, assign, license, sublicense, create derivative works from, reverse engineer, reverse assemble, loan, transfer, circulate to any third party (including, without limitation, on or via a third party web site), attempt to discover source code, or sell in any way any Content included on the Site without the express prior written permission of us or other applicable third parties. Trademarks and trade names owned by us or other third parties may not be used in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits us or the applicable third party. Any unauthorized or prohibited use of any Content or the Site may subject you to civil liability or criminal prosecution, or both, under applicable law.

License Agreement

We hereby grant to you subject to this Terms of Use Agreement, a nonexclusive, nonsublicensable, non-transferable, limited license, during the term of this Terms of Use Agreement, to install and/or use in machine-readable form the Content which is made available for download. You may make one (1) copy of such Content only as necessary for backup or archive purposes in support of your use of such Content, provided that you reproduce all copyright and other proprietary notices that are on the original copies of the Content. Notwithstanding any of the foregoing, you hereby acknowledge that we and/or other third parties, as applicable, shall retain all other right, title and interest in and to the Content. All rights not expressly granted herein are reserved.

Unlawful Or Prohibited Use

You agree to use the Site and the Content only for lawful purposes and not to allow others to use your account, the Site, or the Content for any unlawful purpose. Use of the Site or Content in violation of any applicable law, regulation, ordinance, or other rule imposed by any governmental authority is prohibited.

Some Content, material, links and other information on the Site may not be appropriate or available for use in all jurisdictions, especially certain jurisdictions outside of the United States. Accessing any such Content, materials, links and other information from certain jurisdictions may be illegal and prohibited. Accessing any of the foregoing from any jurisdiction outside the United States is done at your own initiative and we are not responsible for your compliance with any laws imposed by such jurisdiction. You hereby agree that you shall not access any of the foregoing where prohibited by any applicable law.
Site Security

You shall not use the Site in any manner that could damage, disable, overburden, or impair the Site or any Content or interfere with any other party's use and enjoyment of the Site or any Content. You may not attempt to gain unauthorized access to any accounts not registered to you, or computer systems or networks owned and operated by us through hacking, password mining or any other means. Violations of our system or network security may result in civil or criminal liability.

Third Party Sites

Any links to third-party web sites found within the Site are provided solely as an added convenience to you. The third party content and linked sites are not under our control, and we have neither reviewed the contents of these third-party web sites, nor do we claim any responsibility for the maintenance, content or suitability of these third-party web sites. Your linking to any third party site is at your own risk, and you are responsible for viewing and abiding by the privacy statements and terms of use posted at any third party site.

Limitation of Liability

Under no circumstances and under no legal or equitable theory, whether in tort, contract, strict liability, negligence or any other cause of action, shall we or any of our affiliates, employees, directors, officers, agents, developers, licensors, successors or assigns be liable to you or to any other person for any losses, damages or injury, of any nature, direct or indirect, arising out of or in connection with the use of or inability to use the Site or the Content, including, without limitation, compensatory, consequential, incidental, indirect, special or punitive damages, even if we have been advised of, or should have known of, the possibility of such losses, damages or injury. In no event will we be liable for any losses or damages in excess of the fees paid by you in connection with your use of any Content or the Site.

We shall not be responsible for unauthorized access to or alteration of transmissions or data, any material or data sent or received or not sent or received, or any transactions entered into through the Site. You understand and agree that we are not responsible or liable for any threatening, defamatory, obscene, offensive or illegal content or conduct of any other users, third parties, or any infringement of another's rights, including intellectual property rights.

We are neither responsible nor liable for any viruses or other contamination of your computer, handheld device or other communications device used to access the Site. Neither we nor our developers nor licensors are responsible or liable for any delays, inaccuracies, errors, or omissions arising out of your use of the Site, or with respect to the Content or other material contained on the Site, including without limitation, any material posted by us or any third party on the Site.

Neither we nor any of our affiliates shall have any liability to you for usage charges related to any device that you use to access the Site or to download content.

You understand and agree that your use of the Content and the Site is solely at your own risk and that you will be solely responsible for any losses, damages or injury incurred by you or any other person that may result from your use of the Content or the Site.

Warranties

You agree that all information, Content, services and related materials contained within the Site are provided "as is" without warranty of any kind. We and our developers and licensors hereby disclaim all representations, warranties and conditions with regard to any information, Content, services and related materials on the Site, including, without limitation, all implied warranties and conditions of merchantability, fitness for a particular purpose, workmanlike effort, title and non-infringement.

Without limiting the foregoing, we and our developers and licensors make no warranty or representation, either express or implied, that access to or operation of the Site, the functions contained in the Ste or the Content or any services will be uninterrupted or error-free or that defects will be corrected. In no event will we or our developers or licensors be liable for the truth, accuracy, or completeness of any Content or other information on the Site, or for errors or mistakes made by humans or machines. To the fullest extent permissible by law, we and our developers and licensors make no warranties and shall not be liable for the use of the Site under any circumstances. We and our developers and licensors do not warrant that the Site, Content or services will meet any particular criteria of performance or quality, or that the Site, including the Content, services or the server(s) on which the Site is operated, is free of viruses or other harmful components

Any reference to any person, entity, product, material or service on the Site does not constitute an endorsement or recommendation by us or any of our employees or agents. We are not responsible for any third party web page accessed from the Site, nor do we warrant the accuracy of any information contained in any third party site or its fitness for any particular purpose

No communication of any kind between you and us or any of our employees, representatives or agents shall constitute a waiver of any limitation of liability hereunder or create any additional warranty not expressly stated in this Terms of Use Agreement

Certain jurisdictions do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have rights additional to those contained herein. In such jurisdictions, our liability is limited to the greatest extent permitted by law.

Indemnity

You agree to release, indemnify, defend and hold harmless us and our subsidiaries, affiliates, employees, officers, directors, stockholders, agents, developers, licensors, successors and assigns from all liabilities, claims, demands, lawsuits, judgments, damages, costs and expenses, including reasonable attorneys' fees and court costs, made by any third party due to or arising out of or in connection with (a) your connection to and use of the Site or the Content, (b) any material you submit, post, transmit or make available from the Site, (c) any disputes between you and your operator, (d) your violation of this Terms of Use Agreement, (e) your violation of any rights of a third party, including intellectual property rights and/or (f) someone else using your account or password (including any unlawful or prohibited use of the Site). Notwithstanding the foregoing, we reserve the right to assume the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.

Export Control

You hereby acknowledge that the Content may be subject to export or import regulations in the United States and in other countries. You are responsible for complying with all trade regulations and laws. You hereby agree that you will not export, directly or indirectly, the Content acquired or to be provided under this Terms of Use Agreement, or the direct product of any such Content, without first obtaining all required export and/or import licenses and government approvals.

Trademark Notice

MOTRICITY, the Motricity logo and certain other trademarks located on the Site are our trademarks or registered trademarks. All other names of companies and products mentioned may be trademarks of their respective owners and are used with permission. Any such trademarks may be used publicly only with our or the applicable owner’s permission. Fair use of any such trademarks requires proper acknowledgment. All rights not expressly granted herein are reserved.

Copyright Notice

All Content and other materials published on the Site are protected by copyright, and owned or controlled by or licensed to us, or the party listed as the developer of the Content or other materials. You may download any downloadable materials displayed on the Site for the specified uses only, provided that you maintain all copyright, trademark, and other notices contained in such material, and you agree to abide by all additional copyright notices, information, or restrictions contained in any material accessed through the Site. Except as expressly provided in this Terms of Use Agreement or in a separate license agreement, neither we nor our affiliates, developers, licensors, successors or assigns grant any express or implied rights to you under any patents, copyrights, trademarks, or trade secret information. All content on the Site is Copyright ©2006-2010 Motricity, Inc. unless specified otherwise. ALL RIGHTS RESERVED.

Termination

We may terminate your (a) access to the Site and/or the Content, and/or (b) your password and/or account or any portions thereof, at any time and for any reason, with or without cause, with or without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party.

Governing Law; Disputes

This Terms of Use Agreement is governed in all respects by the laws of the State of Washington, United States, without reference to its conflict of laws principles. Any dispute relating in any way to the Site, the Content or this Terms of Use Agreement shall be submitted to confidential binding arbitration in Seattle, Washington, United States. Arbitration under this agreement shall be conducted by a single arbitrator under the then prevailing Arbitration Rules of the Judicial Dispute Resolution LLC. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement or any similar agreement, whether through class arbitration proceedings or otherwise

Notwithstanding the foregoing, in the event that you have in any manner violated or threatened to violate our intellectual property rights or the intellectual property rights of any third party, we or such third party may seek injunctive or other relief against you in any court having appropriate jurisdiction and you agree and acknowledge that the courts located in King County, Washington have jurisdiction over you in any such matter and shall be a proper venue for such matter

In the event that applicable law renders the foregoing arbitration provision unenforceable, you agree and acknowledge that any action brought in connection with the Site, the Content or this Terms of Use Agreement shall be adjudicated solely in the courts located in King County, Washington . You hereby consent to the exclusive venue and jurisdiction of such courts, waive any right that you may have to contest the jurisdiction or venue of such courts on the basis of lack of personal jurisdiction, inconvenient forum or any other basis, and waive any right that you may have to commence or transfer an action in any other court in any other jurisdiction. You consent to the extra-territorial service of process in connection with any action in any of these courts.

Remedy Period

Any claim or cause of action arising out of or related to the use of the Site, the Content or this Terms of Use Agreement must be submitted to arbitration in accordance with this Terms of Use Agreement (or, if applicable law renders arbitration unenforceable, filed with the appropriate court in accordance with this Terms of Use Agreement) within one (1) year after such claim or cause of action arose regardless of any statute or law to the contrary. You hereby expressly waive your right to commence any arbitration or litigation after such one (1) year period. In the event any such claim or cause of action is not submitted to arbitration or filed with the appropriate court, as applicable, within such one (1) year period, such claim or cause of action shall be forever barred.

Miscellaneous

Waiver/Course of Conduct. Our failure to insist upon or enforce strict performance of any provision of this Terms of Use Agreement shall not be construed as a waiver of any provision or right hereunder. Neither the course of conduct between you and us nor trade practice shall act to modify any provision of this Terms of Use Agreement.

Assignment. We may assign our rights and duties under this Terms of Use Agreement to any party at any time without your permission and without notice to you.

E-mail Communications. Communications made to us by e-mail shall not constitute legal notice to us or any of our subsidiaries, affiliates, directors, officers, employees, stockholders, agents, representatives, developers, licensors or assigns with respect to any existing, future or potential claim or cause of action against us or any of our subsidiaries, affiliates, directors, officers, stockholders, employees, agents, representatives, developers, licensors, successors or assigns, where such notice is required by contract, or any local, state, national or international laws, rules or regulations.

Severability. If any provision of this Terms of Use Agreement is held to be invalid, void or unenforceable, such provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provision of this Terms of Use Agreement.

Entire Agreement. This Terms of Use Agreement sets forth the entire understanding and agreement of the parties as to the subject matter contained herein and supersedes all prior proposals, discussions or agreements with respect thereto. Except as otherwise expressly provided in this Terms of Use Agreement, there shall be no third party beneficiaries to this Terms of Use Agreement.

Notices of Infringement and Intellectual Property

If you know or suspect that any Content or other materials or portions of the Site constitute copyright infringement or other violations of local, state, national or international intellectual property laws, please notify us at Motricity, Inc., Attention: General Counsel, 601 108th Ave., Suite 800, Bellevue, WA 98004.

THIS AGREEMENT IS EFFECTIVE AS OF October 20, 2010.