Terms and Conditions
1.1 This Agreement is a contract between you and MSPOT, INC., and governs your use of this website ("Site"), the software applications downloaded from this Site (the "Applications"), all content purchased or obtained from this Site, your use of certain information or images provided under certain open source content licenses, as further described in Section 13.11 below ("Open Content") and your use of the services provided by mSpot, Inc. (collectively the "Services"). By using the Site and/or completing the registration process on the Site, you represent that you have read and understood this Agreement and agree to be bound by its terms and conditions. If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of this Agreement, do not use the Site, continue the registration process or otherwise attempt to access the Services. YOU MUST BE AT LEAST 18 YEARS OF AGE TO USE THE SERVICES. IF YOU ARE UNDER THE AGE OF 18, YOU MUST HAVE YOUR PARENTS' PERMISSION TO USE THE SERVICES AND HAVE THEM READ AND AGREE TO THIS TERMS OF SERVICE. By registering for or using the Services or the Site, you also represent and warrant that you are 13 or older and that you have the capacity to understand, agree to and comply with this Agreement
1.2 We reserve the right, at our sole discretion, to change, modify, add, or delete portions of this Agreement at any time without further notice. If we do this, we will post the changes to this Agreement on this page and we may send registered users an email notifying such users of the change. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU AGREE TO STOP USING THE SITE AND THE SERVICES. YOUR CONTINUED USE OF THE SITE OR THE SERVICES FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE OR RECEIVING OUR EMAIL NOTIFYING YOU OF THE CHANGE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
1.3 The Services may only be provided in the United States and, if you qualify to use the Services in the United States, you agree that you will use the Services only in the United States. To use the Services, you must provide MSPOT, INC. with certain minimum information, such as the name of your wireless carrier, the manufacturer and model of your mobile phone and your mobile phone number. This information will be used to enable you to download or otherwise access the Services. For certain services or to take advantage of certain special offers, you will be required to register with MSPOT, INC. and create an on-line account. You will always have the option to register with MSPOT, INC. and create an on-line account, which will provide you with access to faster checkout, promotional offers and information from MSPOT, INC. When you create an account, you will be required to provide additional information such as your first name, last name, email address, a password that you can change and applicable payment information ("Registration Information"). If you choose to register, you agree to provide current, complete and accurate Registration Information and that you will update your Registration Information as necessary to keep it current, complete and accurate in the "My Account" area of the appropriate Site. You agree that you will not allow others to use your password and/or account. You agree to indemnify and hold MSPOT, INC., its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, harmless for any improper, unauthorized or illegal uses of your password and/or your account. This includes illegal, unauthorized or improper use by anyone to whom you have given permission to use your password and/or account.
1.5 YOUR ENTRY IN ANY CONTEST, SWEEPSTAKES OR PROMOTION ON THE SITE IS SUBJECT TO THE RULES THAT ARE AVAILABLE FOR EACH INDIVIDUAL CONTEST OR SWEEPSTAKES. RULES MAY VARY DEPENDING ON THE CONTEST OR SWEEPSTAKES. THE RULES FOR EACH CONTEST ARE ACCESSIBLE ON THE CONTEST OR SWEEPSTAKES INFORMATION PAGE.
You may need to have an internet-enabled cell phone or device in order to access certain mSpot Services. Normal carrier charges and taxes may apply to any content you obtain from mSpot. mSpot is not responsible for any surcharges you incur from your cell phone or internet service provider as a result of the use of the mSpot website or Services. Note that certain mSpot Services will require you to incur data charges on your account with your mobile carrier and in the event you do not have a data plan with your carrier, you will likely be charged extra data charges by your carrier in accordance with the rates set forth in your agreement with your carrier. mSpot recommends that all mobile users sign up for unlimited data plans.
2.1 Description of Service. The Services are available via a number of websites, WAP sites and wireless carriers, including the Site. The Services make available to users certain downloadable mobile content, such as applications, ringtones, movies and other content (collectively, the "Content") and certain additional Open Content. After making proper payment and providing the required information, you will be permitted to stream or download the applicable Content through the Services to compatible mobile devices and other handheld or personal computing devices.
All types of Service Content are available on an "A La Carte", or pay per Content item, basis (The "Transaction Option"). Certain Content is available on a monthly recurring membership fee basis (the "Club Membership Option"). For a category of content (e.g., movies) the Content that is available under the Transaction Option may be different from the Content that is available under the Club Membership Option. Under the Club Membership Option, you will agree to purchase a recurring basis certain amount of monthly credits that can be applied towards the purchase of Content available under the Club Membership Option that you select ("Credits"). By registering for the Club Membership Option you authorize mSpot to bill the billing method selected by you (mobile phone bill, PayPal or credit card). If you do not select a billing method or if a billing method selection is not made or available to you, the default billing method is billing on your mobile phone bill. Until you cancel the club membership, monthly Club Membership Option plans are billed the Subscription fee in advance each month for the number of recurring monthly Credits purchased under the plan that you select. If you cancel your club membership for any reason, mSpot will not refund any of your fees for the current month. Monthly subscribers are billed monthly beginning on the day and date that you subscribe (your "Billing Cycle"). For the monthly Subscription Option, your billing method will typically be charged on or about the same day of the month that you first subscribed, or a day of the month that is as close to that date as is practical given the variations of the number of days in each month. Unused Credits for the monthly Subscription Option that you select do not roll-over to the next Billing Cycle.
The Make-UR-Tones mSpot Service enables you to either (i) through mobile devices or handheld computing devices, download an entire low resolution version of a song and then select a portion of the song up to 30 seconds in length as a ringtone for your mobile device or hand held computing device; or (ii) through the Site, preview the entire high resolution version of a song and then select a portion of the song up to 30 seconds in length as a ringtone for your mobile device or handheld computing device. For mobile devices and handheld computing devices, after your selection is made, the low resolution version of the song will be deleted from your account and a high resolution copy of the exact selection you made will be downloaded for you to use as a ringtone. The eligibility of certain songs for your use to create a ringtone is subject to change at any time.
The Movie Service enables you to stream movies and other video content to your mobile or handheld computing devices, and when available, to your personal computer. The Movie Service is available on a Transaction Basis and a Subscription Basis. Videos may only be available on certain devices and/or in conjunction with certain mobile devices. To see what is available for your device/carrier please go to http://www.mspot.com. You will have 30 days after selecting a video to begin viewing. Once you begin viewing, you have 24 hours to complete viewing the video, except as otherwise specified. (the "Viewing Period"). You may view the video an unlimited number of times and pause, start and stop the video during the Viewing Period, but such actions do not extend the Viewing Period. For certain videos you may be able to extend the Viewing Period for an additional 24 hours with an additional purchase or the application of available Credits (as described below).
2.2 Use of Service
2.2.1 You may use the Services only in accordance with the terms and conditions of this Agreement and any amendments, including any additional terms specified in connection with any particular feature or function of the Service.
2.2.2 You receive a limited license to any Applications that you download to use the Application(s) on one mobile device for your personal use only.>
2.2.3 The Services are for your personal use and may only be used in accordance with the terms and conditions of this Agreement. You understand and agree that you may not transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Services, including the Content and the Applications. For example, you may not copy or distribute the Services, the Content and the Applications in any manner not expressly authorized by the Services.
2.2.4 You may not attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service, including the Content and the Applications. You agree to advise MSPOT, INC. promptly of any such unauthorized use(s) or attempt(s).
2.2.5 MSPOT, INC.'s rights to make certain Content available to you may change. In such event, MSPOT, INC. reserves the right to change the available Content without notice. If MSPOT, INC. ceases making any such rights available, MSPOT, INC. will not refund any portion of your fees, but, as your sole remedy, you may contact customer support to receive an appropriate replacement.
2.2.6 You assume total responsibility and risk for your use of the Services. To the extent permitted by law, MSPOT, INC. provides all Services, Content and Open Content and any other information on an "AS IS" basis and does not make any warranties, express or implied, representations or endorsements with regard to the Services, Content, Open Content or Applications.
2.2.7 MSPOT, INC. does not claim ownership of the materials you provide to MSPOT, INC. (including feedback and suggestions) or post, upload, input or submit to this Service for review by the general public, or by the members of any public or private community. However, by posting, uploading, inputting, providing or submitting ("Posting") your Submission you are granting MSPOT, INC. permission to use your Submission in connection with the operation of their business, including, without limitation, the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; to publish your name in connection with your Submission; and the right to sublicense such rights. No compensation will be paid with respect to the use of your Submission, as provided herein. MSPOT, INC. is under no obligation to post or use any Submission you may provide and MSPOT, INC. may remove any Submission at any time in its sole discretion. By Posting a Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this Agreement including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
2.2.8 As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Service in any manner that could damage, disable, overburden, or impair the Service, or network connected to the Service, or interfere with any other party's use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Services, accounts, computer systems or networks connected to the Service, through any means. MSPOT, INC. reserves the right at all times to disclose any information as MSPOT, INC. deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in its sole discretion.
2.2.9 The Site or the Services may present links to retailers and/or other third-party websites not owned or operated by MSPOT, INC. These links are provided only as a convenience to you. Neither MSPOT, INC. nor its business partners are responsible for the availability of these outside sites or their contents. You understand and agree that neither MSPOT, INC. nor its business partners are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third-party sites to those sites' administrators.
2.2.10 MSPOT, INC. reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice to you. You agree that neither MSPOT, INC. nor its affiliates or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of all of any part of the Services.
2.2.11 By posting messages, inputting data, or engaging in any other form of communication through the Site or the Services, you represent and warrant that you own or otherwise control all applicable rights to the content, materials, messages and the like that you post, upload, transmit or display; that the content, materials, messages and the like are accurate; that use of the content, materials, messages and the like that you supply does not violate third-party rights and will not cause injury to any person or entity; and that you will indemnify MSPOT, INC., its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for all claims resulting from content, messages, materials and the like that you supply. In addition, you acknowledge and agree that MSPOT, INC. may store and/or disclose, as applicable, any such content, messages or material it is required to do so by law, or has a good faith belief that such storage or disclosure is reasonably necessary to comply with court orders or other legal processes; to enforce this Agreement; to respond to any claims that such content (or your use of the same) violates any third party's rights; or to protect the rights, property or personal safety of MSPOT, INC., its business partners, affiliates, licensors and/or licensees, any other MSPOT, INC. subscriber or member, or the general public.>
2.2.12 Please direct any questions concerning the Services, Content, Applications, Open Content or any other related issue to customer service at .
2.3 Price and Delivery
2.3.1 Price. The price of any Content purchased through the Service will be the price specified in the applicable Service at the time of your purchase. By purchasing the right to use any Content or Service you warrant that you are the authorized purchaser and that the billing information provided is accurate. MSPOT, INC. will not issue refunds based upon inaccuracies represented by the purchaser. By approving the purchase of the right to use the Content, you authorize MSPOT, INC. or its partners and affiliates to charge you for the purchase.
2.3.2 Subscription Option: Some Services and service plans will require you to open an account. If you elect a Subscription Option, you will agree to pay a specific amount to obtain a certain number of Credits that will allow you to view or otherwise use a certain amount of the applicable Content in a given month . You may also be able to purchase extra Credits for use with the applicable Service. Prices and other terms for Credits may be viewed at http://www.mspot.com. mSpot may, in its sole discretion distribute designated amounts of Credits as part of certain promotions or in exchange for participation in certain activities ("Credit Awards"). Credit Awards can only be redeemed along with the redemption of purchased Credits. Credits and monthly recurring Service plan options are not transferable, and this also prohibits you from authorizing other persons to use your account. Whether purchased or others distributed by mSpot, Credits do not have monetary value and are not redeemable for money at any time. Credits represent a limited license right, governed solely under this Agreement, to engage in certain activities as determined by mSpot. mSpot may regulate, modify and/or eliminate Credits at any time at its discretion with no liability to you or to any third party from the exercise of such right .Any distribution by you of your account name and password my result in cancellation of your club membership without refund and in additional charges based upon unauthorized use.
2.3.3 Delivery: Delivery of certain Product(s) purchased pursuant to these Terms will be made directly to your mobile phone. The details of the applicable delivery process will be provided to you at the time of purchase. For Products(s) delivered to your mobile phone, your mobile phone must be turned on; capable of receiving the Application or Content; set to receive text and/or multimedia messages or otherwise enabled for delivery, as specified for the applicable mSpot Service . Applications and Content can only be delivered when the mobile phone is on a compatible network, a full list of which is available on the Site. Provided that the mobile phone and wireless carrier's network will accept the Product(s), delivery of the Content will occur within 24 hours of completion of the order. Typically, delivery of the Content occurs within a matter of seconds.>
If the purchaser's error caused the non-delivery, payment will not be refunded.
2.3.4 MSPOT, INC. reserves its right to collect applicable taxes for certain features of the Services.>
2.3.5 You may be provided the opportunity to register to receive updates from certain applications within the Services. These updates may be in the form of text messages. You acknowledge and agree that you will be charged for and be solely responsible to pay all text messages in accordance with your club membership plan.
2.3.6 By using all or part of the Site and/or the Services, you consent to receiving electronic communications from MSPOT, INC. and its service providers (in the course of providing services on mSpot's behalf). These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or the Services. These electronic communications are part of your relationship with MSPOT, INC. and you receive them as part of your use of the Site and/or our services. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
2.4.1 You may not use the Services to upload, post, transmit, display, perform or otherwise make available to other subscribers, members or third-parties any messages, content or materials that are illegal, obscene, threatening, defamatory or invasive of privacy; violate (intentionally or unintentionally) a contractual, fiduciary or confidentiality obligation or duty you have to any third party; infringe intellectual property or other third-party rights; harm minors in any way; comprise or contain software viruses or other computer code designed to interfere with the functionality of any computer systems, software or hardware; interfere with or disrupt the Service or any networks or servers connected to or by the Service; constitute unsolicited bulk email, political campaigning, commercial solicitation, chain letters, pyramid schemes, mass mailings, or any form of spam; or violate (intentionally or unintentionally) any applicable local, state, national or international law. In addition, you may not use a false email address, impersonate any person or entity (including but not limited to other subscribers, members and employees of MSPOT, INC., its affiliates or licensors), or otherwise mislead other subscribers, members or third parties as to your identity or to the origin of a message or content. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility.
3. Content and Open Content
3.1 In consideration of your payment and your acceptance of this Agreement, MSPOT, INC. grants you a non-exclusive, non-transferable, single-user right to download and use the applicable Content on a single hand-held computer, mobile device or personal computer, as applicable. This license extends to you and your hand-held computer, mobile device or personal computer and the Content will contain digital rights management technology designed to prevent unauthorized use and/or transfer.
3.2 You may not reproduce, copy, transfer or distribute by any means, method or process whatsoever, any of the Content licensed by this Agreement, including but not limited to, transferring or downloading any such Content from one hand-held computer, mobile device or personal computer to another, to a computer hard drive, or otherwise copying the Content onto any other storage medium.
3.3 This license may not be assigned without the written consent of MSPOT, INC., which right may be withheld by MSPOT, INC. in its sole discretion.
3.4 The Content may contain third party Content which requires notices and/or additional terms and conditions. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein.
3.5 You may not alter, merge, modify, or adapt the Content or create derivative works based upon the Content.
3.6 You may not sell, rent, lease, or sublicense the Content.
3.7 Nothing in this Agreement grants you or authorizes you to grant to anyone else any right to reproduce, copy or distribute by any means, method or process whatsoever any of the Content licensed by this Agreement, including but not limited to, transferring or downloading any such Content to a computer hard drive, or otherwise copying the Content onto any storage medium.
3.8 Nothing in this Agreement grants you or authorizes you to grant to anyone else any right to reproduce copy or distribute or perform publicly by any means, method or process whatsoever, any sound recording embodying any of the Content licensed under this Agreement.
3.9 If you fail to comply with this Agreement, MSPOT, INC. may, in addition to its other remedies, terminate this Agreement and the license it grants you and you must destroy all copies of the Content.
3.10 The foregoing license grants you a limited license to use the Content. MSPOT, INC. and its licensors retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Content and all copies thereof. All rights not specifically granted in this Agreement including Federal and International Copyrights, are reserved by MSPOT, INC. and its licensors.
3.11 The Open Content consists of certain documents containing text and or images available within specific areas of the Services, for example biographical information about music artists, through the use of documents that are distributed under the term of certain open source documentation licenses, such as the GNU Documentation License and the Creative Commons licenses. The Open Content is made available under the license terms of the applicable open source license and a link to the terms of the applicable license will appear on the page for each item of Open Content, so that you can determine what terms apply to your use of that item of Open Content.
3.12 WARRANTY DISCLAIMER AND LIMITED LIABILITY. THE CONTENT AND THE OPEN CONTENT ARE PROVIDED TO YOU ON AN "AS-IS" BASIS. MSPOT, INC. PROVIDES NO TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE CONTENT OR THE OPEN CONTENT. MSPOT, INC. AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. MSPOT, INC. DOES NOT WARRANT THAT THE CONTENT OR THE OPEN CONTENT ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE U.C.C. WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. MSPOT, INC. SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE CONTENT OR THE OPEN CONTENT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MSPOT, INC., ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
3.13 The Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of the Agreement between MSPOT, INC. and you. MSPOT, INC. would not be able to provide the Content or the Open Content on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability also apply to and inure to the benefit of MSPOT, INC.'s licensors.
3.14. The Content may contain explicit material or other material that you may find objectionable. Parents should use appropriate parental discretion in selecting or authorizing the content made available to their children. MSPOT, INC. is not responsible to you for any content or materials constituting all or part of any Content or any other aspect of the Services that you might find objectionable. Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at:
Click here for more information.
Please note that MSPOT, INC. does not endorse any of the products or services listed at such site.
3.15 If MSPOT, INC. (a) receives a Notice alleging that you have engaged in infringing behavior or (b) reasonably suspects that your use of the Service, the Content or the Open Content violates MSPOT, INC.'s or others' intellectual property rights, MSPOT, INC. may, in its sole discretion, suspend or terminate your access to the Service and/or your account with or without notice to you. If MSPOT, INC. suspends or terminates your access to the Service and/or account under this paragraph, it shall have no liability or responsibility to you, and MSPOT, INC. will not refund any portion of your fees charged to date.
3.16 THE ABILITY TO DOWNLOAD ANY PURCHASED CONTENT SHALL EXPIRE THIRTY (30) DAYS AFTER PURCHASE AND NO REFUNDS WILL BE GIVEN FOR EXPIRED DOWNLOADS.
5.1 You agree to indemnify and hold harmless MSPOT, INC. and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use of the Site, the Services, the Applications and the Content (collectively "Claims"), and to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including attorneys' fees and court costs) as a result of any Claims.
5.2 UNDER NO CIRCUMSTANCES SHALL MSPOT, INC. AND/OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS ("MSPOT, INC. PARTIES") BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE CONTENT OR THE OPEN CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE CONTENT OR THE OPEN CONTENT AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MSPOT, INC. OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
5.3 MSPOT, INC.'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $50 OR THE AMOUNT PAID BY YOU FOR THE SERVICE AND/OR CONTENT THAT CAUSED SUCH DAMAGE.
5.4 SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
5.5 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS AGREEMENT.
5.6 UNDER NO CIRCUMSTANCES SHALL MSPOT, INC. AND/OR THE MSPOT, INC. PARTIES, AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SITE, THE SERVICES, THE APPLICATIONS, THE OPEN CONTENT AND/OR THE CONTENT.
6.1 Remedies. You understand and agree that any unauthorized use of the Site, the Services, the Applications or the Content would result in irreparable injury to MSPOT, INC. and/or its affiliates or licensors for which money damages would be inadequate, and in such event MSPOT, INC. its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that MSPOT, INC., its affiliates and/or licensors may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.
6.2 Promotions and Advertising. MSPOT, INC. and/or its business partners may present advertisements and promotional materials on or through the Service. Your participation in any MSPOT, INC. promotional event is subject to the terms and conditions associated with that event. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party. You agree that neither MSPOT, INC. nor its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Service.
6.3 This Agreement shall be governed by the laws of the State of California, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Santa Clara, California or the United States Federal District for the Northern District of California to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
6.4 This Agreement contains the complete Agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous Agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Content licensed hereunder shall be of no effect. The failure or delay of MSPOT, INC. to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach.
6.5 No MSPOT, INC. dealer, distributor, agent or employee is authorized to make any amendment to this Agreement. This Agreement supersedes any and all prior agreements, discussions and negotiations between you and MSPOT, INC., and it sets forth the entire agreement and understandings between the parties as to the subject matter of this Agreement. Neither of the parties shall be bound by any terms, conditions, definitions, waivers, warranties or representations with respect to the subject matter of this Agreement other than as expressly provided in this Agreement or duly set forth on or subsequent to the date hereof in a writing signed by a proper and duly authorized representative of whichever of the parties is to be bound thereby.
6.6 If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
6.7 "MSPOT, INC." and other trademarks contained in the Content are trademarks or registered trademarks of MSPOT, INC., Inc, in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Content. This Agreement does not authorize you to use MSPOT, INC.'s or its licensors' names or any of their respective trademarks.
6.8 If either party breaches, or threatens to breach, any of its obligations under this Agreement, the damages to the other party will be great and irreparable; therefore, either party may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, without posting bond and without disentitling such party to any other relief in either law or equity.
6.9 This Agreement shall not be construed to create a joint venture or partnership between the parties hereto. Neither party shall have the right, power, or authority at any time to act on behalf of, to impose any obligation on, or to represent or legally bind the other.
6.10 The enumeration and headings contained in this Agreement are for convenience only and are not intended to have any substantive significance interpreting this Agreement.
6.11 You agree that MSPOT, INC. may audit your use of the Content for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Content by you other than in full compliance with the terms of this Agreement, you shall reimburse MSPOT, INC. for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
6.12 Information or Complaints. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an e-mail to . You may also contact us by writing to mSpot, Inc., 455 Portage Ave., Suite A Palo Alto, CA 94306, or by calling customer service at (650) 321-7000. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. Any other correspondence, notice or request permitted to be given under or in connection with this Agreement or the subject matter hereof shall be sent by prepaid, certified, first class mail, or courier service with receipt of delivery obtained directly to MSPOT, INC. addressed as follows:
Phone: (650) 321-7000
Fax: (650) 321-7077
455 Portage Ave, Suite A
Palo Alto, CA 94306
Attn: Customer Service
Last updated: September 1, 2009