LICENSE. If you agree to the TOU and (1) are of sufficient age and capacity to use MPN and be bound by the TOU, or (2) use MPN on behalf of a business, thereby binding that business to the TOU, we grant you a limited, revocable, non-exclusive, non-assignable license to use MPN in compliance with the TOU; unlicensed use is unauthorized. You agree not to display, “frame,” make derivative works, distribute, license, or sell, content from MPN, excluding postings you create. You grant us a perpetual, irrevocable, unlimited, worldwide, fully paid/sublicensable license to use, copy, display, distribute, and make derivative works from content you post.
USE. Unless licensed by us in a separate written or electronic agreement, you agree not to use or provide software (except our App and general purpose web browsers and email clients) or services that interact or interoperate with MPN, e.g. for downloading, uploading, creating/accessing/using an account, posting, flagging, emailing, searching, or mobile use. You agree not to copy/collect MPN content via robots, spiders, scripts, scrapers, crawlers, or any automated or manual equivalent (e.g., by hand). Misleading, unsolicited, and/or unlawful postings/communications/accounts are prohibited, as is buying or selling accounts. You agree not to post content that is prohibited by any of MPN’s policies or rules referenced above (“Prohibited Content”). You agree not to abuse MPN’s flagging or reporting processes. You agree not to collect MPN user information or interfere with MPN. You agree we may moderate MPN access/use in our sole discretion, e.g., by blocking, filtering, re-categorizing, re-ranking, deleting, delaying, holding, omitting, verifying, or terminating your access/license/account. You agree (1) not to bypass said moderation, (2) we are not liable for moderating or not moderating, and (3) nothing we say or do waives our right to moderate, or not. Unless licensed by us in a separate written or electronic agreement, you agree not to (i) rent, lease, sell, publish, distribute, license, sublicense, assign, transfer, or otherwise make available MPN or our application programming interface (“API”), (ii) copy, adapt, create derivative works of, decompile, reverse engineer, translate, localize, port or modify the App, the API, any website code, or any software used to provide MPN, (iii) combine or integrate MPN or the API with any software, technology, services, or materials not authorized by us, (iv) circumvent any functionality that controls access to or otherwise protects MPN or the API, or (v) remove or alter any copyright, trademark or other proprietary rights notices. You agree not to use MPN or the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
LIQUIDATED DAMAGES. You further agree that if you violate the TOU, or you encourage, support, benefit from, or induce others to do so, you will be jointly and severally liable to us for liquidated damages as follows for: (A) collecting/harvesting MPN users’ information, including personal or identifying information – $1 per violation; (B) publishing/misusing personal or identifying information of a third party in connection with your use of MPN without that party’s express written consent – $1,000 per violation; (C) misrepresenting your identity or affiliation to anyone in connection with your use of MPN – $1,000 per violation; (D) posting or attempting to post Prohibited Content – $4 per violation; (E) posting or attempting to post Prohibited Content in any paid section of MPN – the price per post applicable to that section of MPN; (F) sending an unauthorized/unsolicited email to an email address obtained from MPN – $25 per violation; (G) using MPN user information to make/send an unauthorized/unsolicited text message, call, or communication to a MPN user – $500 per text/call/communication; (H) creating a misleading or unlawful MPN account or buying/selling a MPN account – $4 per violation; (I) abusing or attempting to abuse MPN’s flagging or reporting processes – $1 per violation; (J) distributing any software to facilitate violations of the USE Section – $1,000 per violation; (K) aggregating, displaying, framing, copying, duplicating, reproducing, making derivative works from, distributing, licensing, selling, or exploiting MPN content for any purpose without our express written consent – $3,000 for each day you engage in such violations; (L) requesting, viewing, or accessing more than 1,000 pages of MPN in any 24-hour period – $0.25 per page during the 24 hour period after the first 1,000 pages; (M) bypassing or attempting to bypass our moderation efforts – $4 per violation. You agree that these amounts are (1) a reasonable estimate of our damages (as actual damages are often difficult to calculate), (2) not a penalty, and (3) not otherwise limiting on our ability to recover under any legal theory or claim, including statutory damages and other equitable relief (e.g., for spam, we can elect between the above liquidated damages or statutory damages under the anti-spam statute). You further agree that repeated violations of the USE section will irreparably harm and entitle us to injunctive or equitable relief, in addition to monetary damages.
FEES. When you create a paid Buyer’s Account or a Premium Seller’s Account (MobilePhoneNation.com/about/fees), you authorize us to charge your account. Any tax is additional. Fees are non-refundable, even for posts we remove, delay, omit, re-categorize, re-rank, or otherwise moderate. We may refuse any posting.
DISCLAIMER & LIABILITY. To the full extent permitted by law, OCLA Enterprises, LLC, and its officers, directors, employees, agents, licensors, affiliates, and successors in interest (“MPN Entities”) (1) make no promises, warranties, or representations as to MPN, including its completeness, accuracy, availability, timeliness, propriety, security or reliability; (2) provide MPN on an “AS IS” and “AS AVAILABLE” basis and any risk of using MPN is assumed by you; (3) disclaim all warranties, express or implied, including as to accuracy, merchantability, fitness for a particular purpose, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice; and (4) disclaim any liability or responsibility for acts, omissions, or conduct of you or any party in connection with MPN. MPN Entities are NOT liable for any direct, indirect, consequential, incidental, special, punitive, or other losses, including lost profits, revenues, data, goodwill, etc., arising from or related to MPN, and in no event shall such liability exceed $100 or the amount you paid us in the year preceding such loss. This dollar amount is the total dollar amount the user can sue for, and this amount will be the sole and exclusive remedy for any liability incurred by MPN. Some jurisdictions restrict or alter these disclaimers and limits, so some may not apply to you.
CLAIMS & INDEMNITY. Any claim, cause of action, demand, or dispute arising from or related to MPN (“Claims”) will be governed by the internal laws of Texas, without regard to conflict of law provisions, except to the extent governed by US federal law. Any Claims will be exclusively resolved by courts in Hidalgo County, Texas (except we may seek preliminary or injunctive relief anywhere). You agree to (1) submit to the personal jurisdiction of courts in Hidalgo County, Texas; (2) indemnify and hold MPN Entities harmless from any Claims, losses, liability, or expenses (including attorneys’ fees) that arise from a third party and relate to your use of MPN; and (3) be liable and responsible for any Claims we may have against your officers, directors, employees, agents, affiliates, or any other party, directly or indirectly, paid, directed or controlled by you, or acting for your benefit.
TRADEMARKS. MobilePhoneNation.com and its logo (seen on the home page) are registered trademarks with the U.S. Patent and Trademark Office and with multiple trademark offices around the world.
MISC. Unless you have entered into a separate written or electronic agreement with us that expressly references the TOU, this is the exclusive and entire agreement between us and you, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral. Users complying with prior written licenses may access MPN thereby until authorization is terminated. Our actions or silence toward you or anyone else does not waive, modify, or limit the TOU or our ability to enforce it. The USE, LIQUIDATED DAMAGES, and CLAIMS & INDEMNITY sections survive termination of the TOU, and you will remain bound by those sections. If a TOU term is unenforceable, it shall be limited to the least extent possible and supplemented with a valid provision that best embodies the intent of the parties. The English version of the TOU controls over any translations.
SEVERABILITY. If any provision in this TOU or the application thereof to any person or circumstance is held invalid or unenforceable to any extent, the remainder of the terms of this agreement and the application of that provision to other persons or circumstances is not affected thereby and that provision shall be enforced to the greatest extent permitted by law.