Introduction Welcome to www.MobileSmith.com.  We are MobileSmith, Inc. (a North Carolina corporation) with a principal place of business at 4505 Emperor Boulevard, Suite 320, Durham, NC 27703, and we do business as MobileSmith.  When you use our site for any purpose, you agree with MobileSmith to all of the terms in, and linked to, these Terms Of Use and our Privacy Policy (collectively referred to simply as “terms”).  These terms make up our agreement. All terms apply to you and bind you even if you use incorrect, inaccurate, or fraudulent information, or if you use information of another party.  If you do not accept and agree to the terms, you are not authorized to use, and may not use, our website for any purpose. In this Agreement, MobileSmith, Inc., as known as MobileSmith, is referred to as “we”, “us”, “our”, or just MobileSmith.  We refer to our website (www.mobilesmith.com), and any websites that redirect you to our website, as “MobileSmith’s website”, the “website” or simply “our site.”  “You” refers to you and any user (regardless of whether representing an individual or business) of our site.  This Agreement is effective as of February 21, 2013. Take the time to read these terms carefully so you understand your relationship with us. You must be 13 years of age, or older, to visit or use any MobileSmith site in any manner, and if under the age of 18 (or the age of majority as defined in your jurisdiction), you must use MobileSmith’s website under the supervision of a parent, legal guardian, or other responsible adult, who has also agreed to these terms.  If we become aware of use by someone under the age of 13 years of age, we will immediately delete any information they have provided (to the extent it was retained) regardless of its nature, or content. Our site primarily consists of (a) informative content, including descriptions of our services, our company, news about us, a blog, and links to other third-party websites, (b) the ability to communicate with us, and (c) the ability for you to comment on our blogs or link to our pages residing on third-party social media websites. Again, these terms constitute a binding agreement between you and MobileSmith, and are deemed accepted by you each time that you use or access any MobileSmith site.  If you do not accept the terms stated here, you are not authorized to use, and may not use, any MobileSmith site. Website Content So long as you comply with this Agreement, you may use MobileSmith’s website in the manner offered and intended by us.  You are permitted to store, display, analyze, modify, reformat, and print the material made available to you via these services for your own personal use, but never for any public or commercial use (unless you enter into a separate written agreement with us).  We may rescind this limited license to you at any time. MobileSmith owns all legal right, title, and interest to and associated with our website, including any intellectual property rights therein.  Nothing in these terms gives you the right to use any of MobileSmith’s trademarks, trade names, logos, domain names, or any other branding features.  We retain all copyrights rights in our material.  Other than as expressly allowed in writing, you are also not allowed to use any other of MobileSmith’s intellectual property rights. Community content published or edited by MobileSmith community members, including ‘guest’ posters is solely the opinion and responsibility of the person writing the content. MobileSmith may provide Really Simple Syndication (“RSS”) as a free service to allow users to subscribe to our website’s content.  You will not attempt to re-sell, redistribute, or syndicate any content contained in such RSS Feeds.  MobileSmith will have sole discretion over which information is made available via such RSS feeds and the editorial control over it.  MobileSmith retains all rights, title, and interest in and to such RSS feeds (and future forms of communication and information distribution methods).  MobileSmith reserves the right to modify or discontinue providing any or all RSS feeds at any time. Material provided to you may include hyperlinks to other websites, content, or resources. We have no control over any websites or resources that are provided by other parties.  If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements.  You should refer to the policies posted by other websites before using them.  MobileSmith makes no warranty or representation regarding, and does not endorse any linked websites or the material appearing thereon or any of the products, services, or offered investments described thereon.  If you choose to purchase any product, service, or investment from a third party, then your relationship is with that third party.  MobileSmith is not responsible for the quality of third party products, services, or investments, and MobileSmith will not be fulfilling any terms of your agreement with any third party.  MobileSmith is not responsible for any loss or damage you may incur by reason of any dealing that you may have with a third party.  Links do not imply that MobileSmith is associated with any other website. Communication and Your Use We allow you to comment on blog entries.  When you comment on blogs, we reserve the right to not post a comment, to post and then subsequently remove a comment, or to post a comment and not remove it, even after you request it be removed. When you send us, or post, content of any kind, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future. While using our site, you will not:
  • post material that you do not have rights to post;
  • post false, deceptive, inaccurate, misleading, defamatory, or libelous content (including your own personal information);
  • post offensive, harmful, or abusive material, including posts that contain expletives or profanities, obscenities, harassing language, vulgarities, or sexually explicit material (“material” in this Agreement includes any information whether conveyed through words, images, sound, video, or otherwise);
  • distribute or post spam, unsolicited, bulk electronic communications, chain letters, or pyramid schemes; or
  • post any material in an attempt to influence the price of any publicly traded investment, or otherwise attempt to manipulate any market.
  If you believe that any information is posted in violation of your copyright rights, contact us for our “Copyright Violations Reporting” material, or send a notice to us here. Registration Information When you use our site, you may be asked to provide MobileSmith with certain information including, without limitation, a valid email address (your “Information”). Information you submit will be used in accordance with MobileSmith’s Privacy Policy. MobileSmith may monitor your use of the products and services on this site and use such information for internal business purposes. MobileSmith makes no representation regarding the security of this site, including with respect to the ability of unauthorized persons to intercept or access information transmitted by you through this site.  MobileSmith reserves the right to offer third party services and products to you based on the preferences that you identify and at any time thereafter; such offers may be made by MobileSmith or by third parties.  Again, please see MobileSmith’s Privacy Policy, the terms of which are incorporated herein by reference, for further details regarding your Information. Other Items Disclaimer of Forward Looking Statements The documents provided on our website may contain statements related to our future business and financial performance and future events or developments involving MobileSmith that may constitute forward-looking statements. These statements may be identified by words such as “expects,” “looks forward to,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates,” “will,” “project” or words of similar meaning. We may also make forward-looking statements in other reports, in presentations, in material delivered to stockholders and in press releases, some or all of which may be available on or through this website. In addition, our representatives may from time to time make forward-looking statements, orally or through blog postings. Such statements are based on the current expectations and certain assumptions of MobileSmith’s management, and are, therefore, subject to certain risks and uncertainties. A variety of factors, many of which are beyond MobileSmith’s control, affect MobileSmith’s operations, performance, business strategy and results, and could cause the actual results, performance or achievements of MobileSmith to be materially different from any future results, performance or achievements that may be expressed or implied by such forward-looking statements or anticipated on the basis of historical trends. Further information about risks and uncertainties affecting MobileSmith may be included throughout our most recent annual and interim reports, as well as our most recent earnings release, some or all of which may be available on or through our website.  Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results, performance or achievements of MobileSmith may vary materially from those described in the relevant forward-looking statement as being expected, anticipated, intended, planned, believed, sought, estimated or projected. MobileSmith neither intends, nor assumes any obligation, to update or revise these forward-looking statements in light of developments that differ from those anticipated.  No recommendations for any investment are made on this site.  All material on our site is for informational purposes only.  The material on any site is not to be construed as a recommendation, and you should neither construe any of the material contained herein as business, financial, investment, hedging, trading, legal, regulatory, tax, or accounting advice, nor make this service the primary basis for any investment decisions made by or on behalf of you, your accountants, or your managed or fiduciary accounts, and you may want to consult your business advisor, attorney, and tax and accounting advisors concerning any contemplated transactions. Referral Partners & Partnership relationships We post notices for incentive programs that seek opportunities for you (and your business) to collaborate with us and send us referrals, and notices for you to collaborate with us in other ways.  Our agreement with you for any such referral program or for any other relationship with us (other than as a user of our website) will be covered by a separate agreement from these terms.  You do not have any relationship with us, other than as a user of our website, and we have no obligations to you, other than as stated in these terms, unless we enter into such a separate written agreement with you.  Therefore, if you desire to have a relationship with us in any other manner, you should insure that you contact us and that we enter into a written agreement before you take any action for which you believe we must compensate you. Services If you desire to hire us for our services, then such services will be governed by a separate written agreement from these terms.  This website does not require us to provide services to you, and we do so at our sole discretion and based on terms and conditions to which we expressly agree.  We offer initial consultations on our services, and although we often offer such initial consultations at no cost, the exact terms and conditions of such consultations will be governed separately from these terms. Additional Terms and Conditions   Security The security of personal information is a high priority for us.  We maintain administrative, technical, and physical safeguards to protect against unauthorized disclosure, use, alteration, and destruction of the personal information in our possession.  We are committed to providing appropriate security controls to protect personal information we have about you against foreseeable hazards.  Notwithstanding our security efforts, we make no representation or promises regarding the security of our site, including with respect to the ability of unauthorized persons to intercept or access information transmitted by you through our site. MobileSmith may monitor customer’s use of the products and services (including your use), and use such information for our business purposes or to improve our services.  While we do seek to monitor material posted to our site, we do not necessarily monitor any or all materials posted, transmitted, or communicated to or within the site. MobileSmith and its users work together to keep our site working properly and you safe.  Please report problems, offensive content, and policy violations to us here.  If notified by a user of materials that allegedly do not conform to these terms, we may in our sole discretion investigate the allegation and determine whether to take any other actions to remove or request the removal of the material.  MobileSmith has no liability or responsibility to you for performance or nonperformance of such removal activities. Without limiting other remedies, we may limit, suspend, or terminate our service, prohibit access to our site and its content, delay or remove hosted content, and take technical and legal steps to keep you off the site if we think that you are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies. You will not distribute viruses or any other technologies that may harm MobileSmith. You will only access MobileSmith’s site through the interface provided and you will not use any robot, spider, scraper, or other automated means to access our site for any purpose.  Additionally, you will not interfere or attempt to interfere with the proper working of our site, or any activities conducted on or with our site, or bypass any measures we may use to prevent or restrict access to our site. Limitation on Warranties, Disclaimer of Risks, and Limits of Liability Without limiting any of the other disclaimers of warranty set forth in these terms, MobileSmith does not provide or make any representation as to the quality or nature of any of the products or services purchased through any MobileSmith site, or any other representation, warranty or guaranty. Although we strive to provide high-quality content on our website, you expressly agree that your use of MobileSmith’s site is at your sole risk. MOBILESMITH’S GOODS AND SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, MOBILESMITH HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE. MOBILESMITH MAKES NO REPRESENTATIONS AND EXTENDS NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE AGGREGATE LIABILITY OF MOBILESMITH, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUCCESSORS, AND ASSIGNS IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO MOBILESMITH’S GOODS AND SERVICES WILL NOT EXCEED REFUNDING THE PURCHASE PRICE OF THE RESPECTIVE GOODS OR SERVICES. MobileSmith does not warrant that OUR site will be continuous, uninterrupted, or error-free, OR THAT YOU HAVE SECURE ACCESS TO OUR SITE.  WE MAKE NO warranty as to the results that may be obtained from the use of OUR site. THE MATERIALS IN AND FROM OUR SITE MAY CONTAIN INACCURACIES AND TYPOGRAPHICAL ERRORS. MOBILESMITH DOES NOT WARRANT COMPLETENESS OF THE MATERIALS OR THE RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED OR DISTRIBUTED THROUGH OUR SITE.  YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, ADVICE, STATEMENT, MEMORANDUM, OR INFORMATION WILL BE AT YOUR SOLE RISK. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. Regardless of the disclaimer of warranties and exclusion of damages in these terms, if we are found to be liable for any reason, our liability to you or to any third party is limited to the greater of (a) the total fees you paid to us in the 12 months prior to the action giving rise to the liability, and (b) $100. Indemnity You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures, and employees) harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party. Notices Except as explicitly stated otherwise, required legal notices will be served, in our case, on MobileSmith’s business address, or, in your case, to any email address or mailing address you provide to MobileSmith.  Notice will be deemed given to us upon our receipt of the notice.  Notice will be deemed given to you 24 hours after we send you an email, even if we are notified that the email address is invalid, or three days after we send you a letter, even if the letter is returned.  You are solely responsible for accurately updating your email address and notice information, or you waive notice. Legal Disputes In the event that you are dissatisfied with any aspect of our website, your sole remedy will be to discontinue use of the website. You and MobileSmith will resolve any claim, or controversy at law or equity, that arises out of this Agreement or our goods and services (a “Claim”) in accordance with this subsection. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. This Agreement will be governed in all respects by the laws of the State of North Carolina as they apply to agreements entered into and to be performed entirely within North Carolina between North Carolina residents, without regard to conflict of law provisions.  Any Claim or dispute between you and MobileSmith must be resolved exclusively by a state or federal court located in Chatham, Durham, or Wake County, North Carolina.  You and MobileSmith will both submit to the jurisdiction of the courts located within Chatham, Durham, or Wake County, North Carolina for the purpose of litigating all such claims or disputes. All Claims filed or brought contrary to this Legal Disputes Section will be considered improperly filed.  Should you file a Claim contrary to this Legal Disputes Section, MobileSmith may recover attorneys’ fees, and costs, provided that MobileSmith has notified you in writing of the improperly filed claim, and you have failed to withdraw the claim before MobileSmith’s further incursion of additional costs and legal fees. Any Claim by you arising out of or related to use of MobileSmith’s website or these terms must be filed within one year after such Claim or cause of action arose or it is forever barred, regardless of any statute of law to the contrary.  Miscellaneous If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. In our sole discretion, we may assign this Agreement.  Our failure to act with respect to a breach by you or others doesn’t waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against any or all breaches of this Agreement. We may amend this Agreement at any time by posting the amended terms on this site. This Agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, “writing” doesn’t include an email message, and a signature doesn’t include an electronic signature. We may change our goods and services at anytime, or stop providing any goods or services, without prior notice to you and we may do so for any reason or no reason. MobileSmith may disclose any content or electronic communication of any kind made through our site and associated email to satisfy any law, regulation, or appropriate governmental request or if such disclosure is necessary or appropriate to operate our site or to protect the rights or properties of MobileSmith. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement between us and you or any other party. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. The titles of any sections are for convenience only.  No other party will be a third party beneficiary to this Agreement.  All provisions of this Agreement other than the permission to use the website will survive termination. Unsolicited Ideas and Information:  We do not accept or consider unsolicited ideas or proprietary materials.  Therefore if you send us any ideas, information, or materials, we make no assurances that your ideas and material will be treated as confidential or proprietary.  The primary purpose of this policy is to avoid potential misunderstandings or disputes if our products or marketing strategies might seem similar to ideas or materials that you submit to us.  Therefore, we request that you do not send us such ideas or materials to avoid any such misunderstandings. International Users:  Our site is controlled, operated and administered by MobileSmith and its service provider from offices within the United States of America.  MobileSmith makes no representation, that materials on our site is appropriate or available for use at other locations outside of the United States and access to them from territories where their contents are illegal is prohibited.  If you access our site from locations outside of the United States of America, then you are responsible for compliance with all local laws.  These terms of Use will be governed by the laws of the state of North Carolina, U.S.A. without regard to conflict of laws provisions or principles.