Mobileware Inc.
TERMS OF SERVICE
Last Revised: February 3, 2017
THESE TERMS OF SERVICE (THE “TERMS”) APPLY TO YOUR USE OF THE onTime MOBILE APPLICATION, THE WEBSITE LOCATED AT WWW.MOBILEWARE.COM AND THE SERVICES RELATED TO THE FOREGOING (COLLECTIVELY, “onTime”) PROVIDED BY MOBILEWARE, INC. (“Mobileware”, “MOBILEWARE”, “WE” OR “US”).
PLEASE READ ALL OF THE TERMS AND CONDITIONS OF THE TERMS CAREFULLY.
BY USING onTime, YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THE TERMS; (II) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THE TERMS; AND (III) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE TERMS.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THE TERMS, YOU MAY NOT ACCESS OR USE onTime.
onTime Service and Features. onTime is a commuter schedule app provides both published schedules and realtime information.
Privacy. You agree that Mobileware may collect and use technical data and information in connection with your use of onTime (including, but not limited to, contact information and technical information about your device, system and onTime software, and peripherals) that are gathered periodically to facilitate the features and functionality of onTime and software updates, product support and other services. Please see our Privacy Policy for more information about how Mobileware collects, uses, stores and discloses information collected through onTime. You also hereby consent to Mobileware communicating with you about onTime or in connection with the features, functions and activities contained in onTime.
License. Subject to the terms, conditions and limitations set forth in the Terms, Mobileware grants you a nonexclusive, non-transferable and revocable license to use onTime on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by Mobileware that replace and/or supplement the original onTime, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Restrictions. You agree not to do, or authorize or permit any third-party to do, any of the following: (i) distribute or make onTime available over a network where it could be used by multiple devices at the same time; (ii) rent, lease, lend, sell, redistribute or sublicense onTime; (iii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of onTime, or any updates or any part thereof (except as and only to the extent any of these restrictions are prohibited by applicable law); or (iv) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in onTime. If you violate any of the restrictions set forth in the Terms, your use of onTime will immediately cease, and you will have infringed the copyright and other rights of Mobileware, which may subject you to prosecution and damages. Mobileware reserves all rights not expressly granted to you in the Terms.
Subscription Terms. onTime Premium is an optional yearly subscription that removes ads, support server cost and future development. The subscription automatically renews yearly, or as otherwise agreed to in writing by Mobileware. onTime subscriptions renew automatically for successive or annual subscription periods (as applicable) until cancelled. If you initiated your onTime subscription through Apple, see https://support.apple.com/en-us/HT202039 (or its successor website) for information about managing your auto-renewing subscription. Otherwise, subscriptions are non-refundable except as expressly set forth in writing by onTime. Termination of your onTime subscription will automatically terminate these Terms. By using onTime, you agree to be bound by and accept the subscription terms set forth in this section and any other terms set forth in an order with Mobileware.
Registration Data & Account Information. You agree to: (i) provide accurate, current and complete information about you as may be prompted by the onTime registration process (“Registration Data”); (ii) maintain the security of your password and identification; (iii) maintain and promptly update the Registration Data, and any other information you provide to Mobileware, in order to keep it accurate, current and complete; and (iv) accept all risk of unauthorized access to the Registration Data and any other information you provide to Mobileware. You represent and warrant that all Registration Data is accurate, current and complete.
onTime is intended solely for users who are 13 years of age or older. In addition, if you are under 18 years old, you may use onTime only with the approval of your parent or guardian.
Third-Party Sites and Services; Third-Party Materials. onTime may provide links to third-party websites, applications, mobile services or other third-party services (“Third-Party Services”) and may also display, link to or otherwise make available third-party content, data, information, events, applications or materials (“Third-Party Materials”). Mobileware does not endorse or control, and makes no representations or warranties of any kind regarding, any Third-Party Services or Third-Party Materials, including, but not limited to, the content, accuracy, quality, nature, appropriateness, decency, functionality, performance, reliability, completeness, timeliness, validity, safety, legality or any other aspect thereof. If you access or use any third-party website or application, you should be aware that Mobileware’ terms and policies, including the Terms, no longer govern. You should review the applicable terms and policies, including, but not limited to, privacy and data gathering practices, of any third-party website or application to which you navigate from onTime.
Third-Party Interactions. Your use of onTime and your contact, interaction or dealings with any third-parties arising out of your use of onTime is solely at your own risk. You acknowledge and agree that Mobileware is not responsible or liable in any manner for any loss, damage or harm of any sort incurred as a result of your use of onTime.
User Content and Conduct. You are solely responsible for all content you upload to or use with onTime, as well as your conduct and the conduct of anyone using your account. The content you upload to or use with onTime must comply with the user content and conduct rules below. Enforcement of the user content and conduct rules set forth in the Terms is solely at Mobileware’ discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third-party or any reasonable expectation that onTime will not contain any content that is prohibited by such rules.
You agree not to upload to, transmit, distribute, store, create or otherwise publish through onTime any of the following:
Mobileware takes no responsibility and assumes no liability for any user conduct or for any user content posted or uploaded on (or otherwise made available via) onTime, nor is Mobileware liable for any mistakes, defamation, slander, libel, omissions, or other material you may encounter while using onTime. Your use of onTime is at your own risk.
Although Mobileware does not control and has no obligation to screen, edit or monitor any of the user content posted or uploaded on (or otherwise made available via) onTime, Mobileware reserves the right, and has absolute discretion, to remove, screen or edit any user content posted or uploaded on onTime at any time and for any reason without notice. Any use of onTime in violation of the foregoing violates the Terms and may result in, among other things, termination or suspension of your rights to use onTime.
Except for any feedback you provide with respect to onTime or any of Mobileware’ products and services or as specifically provided otherwise in the Terms or in a separate agreement between you and Mobileware, you retain ownership of the user content you post or upload on (or otherwise make available via) onTime. However, if you post or upload user content on (or otherwise make available via) onTime, you grant Mobileware and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, and distribute such user content solely to enable Mobileware to operate onTime. You represent and warrant that: (i) you own and control all of the rights to the user content that you post or upload on (or otherwise make available via) onTime or you otherwise have the right to make available such user content via onTime and grant the rights granted in the Terms; and (ii) Mobileware’ use and making available the user content you supply does not violate the Terms and will not violate any rights of or cause injury to any person or entity.
Location Information. onTime collects location information and it will be used and disclosed as set forth in the Privacy Policy.
You acknowledge and agree that by accepting the Terms or using onTime you affirmatively consent to Mobileware' collection, use, disclosure and storage of your location information.
You may revoke your consent with respect to Mobileware' collection, use, disclosure and storage of your location information at any time by contacting support@onTime.com and deleting the app from your mobile device. Please know that if you revoke your consent by doing one of the foregoing or you delete or deactivate your account, we may retain certain information as required by law or for legitimate business purposes. We may also retain cached or archived copies of information about you for a certain period.
If you consent to our collection of location information and you do not subsequently stop the collection of this location information, Mobileware will continue to collect this location information.
If you consent to our collection of location information, subsequently stop the collection of this location information and later consent to the collection of this location information, onTime will resume the collection of location information.
Mobileware takes reasonable measures to protect your location information from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction.
onTime is for your use and to collect your location information. You may not use onTime to collect another individual's location information. If you violate any of this restriction or any other restriction, you will have breached the Terms, which may subject you to prosecution and damages.
Ownership. onTime contains the valuable proprietary content of Mobileware and its licensors and is protected by copyright and other intellectual property laws and treaties. You agree not to use onTime except in its intended manner in accordance with the terms and conditions of the Terms.
Modification of Terms. Mobileware reserves the right to change any of the terms and conditions contained in the Terms, or any policy or guideline of Mobileware, at any time and in its sole discretion by posting the revisions via onTime. Additionally, notice may be provided by sending an email, by posting the revised Terms on the Site or by such other form of notice as determined by Mobileware. Changes will only become effective at the end of the 30 day period commencing upon the posting of the changes via onTime (“Notice Period”). If you disagree with any changes, you may terminate your use of onTime within the Notice Period and, if termination is effective prior to the end of your current subscription period, you may be entitled to a prorated refund. Please contact support@mobilewareinc.com for refund information. You should review the Terms on a regular basis and read the notices Mobileware sends to you. Use of onTime after the Notice Period will constitute your acceptance of the changes/modifications.
Termination. The Terms are effective on the date that you first access or use onTime, or as otherwise set forth in an order with Mobileware, and continue for the length of your subscription period. You may terminate these Terms (a) if Mobileware does not cure any breaches its obligations under these Terms within 30 days of your written notice of such breach; (b) by canceling your onTime subscription as set forth above; or (c) as otherwise consented to in writing by Mobileware. Mobileware may terminate these Terms if you breach any of the terms and conditions of these Terms. In the event of any termination of the Terms: (i) all licenses granted under the Terms will immediately terminate; and (ii) you must immediately cease all use of onTime and destroy or erase all copies of onTime in your possession or control. All of the sections of the Terms will survive any termination except the “License” section. Any use of onTime after termination is unlicensed and is in violation of the copyright and other rights of Mobileware.
Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF onTime IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, onTime IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Mobileware DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE TERMS, onTime, ALL RELATED PRODUCTS AND SERVICES, USER CONTENT, THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT Mobileware KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. Mobileware DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN onTime WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF onTime WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN onTime WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY Mobileware OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
Indemnification. You agree, at your sole expense, to defend, indemnify and hold Mobileware, our service providers and consultants, and their respective directors, employees and agents, harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your conduct; (ii) your violation of the Terms or the rights of any third-party; or (iii) any user content.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL Mobileware BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO onTime, RELATED PRODUCTS AND SERVICES, USER CONTENT, THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF Mobileware HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL Mobileware’ TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE FEE FOR THE SERVICE (AS OPPOSED TO ANY OTHER FEES/COSTS INCLUDING, BUT NOT LIMITED TO, ANY FEES ASSOCIATED WITH YOUR DEVICE).
Electronic Communications. Notwithstanding any terms to the contrary in the Terms, Mobileware may choose to electronically deliver all communications with you, which may include: (i) email to your email address listed in your Registration Data; or (ii) posting messages that are displayed to you when you log into or access your account. Mobileware’ electronic communications to you may transmit or convey information about action taken as a result of your request, portions of your requests that may be incomplete or require additional explanation, any notices required under applicable Law and any other notices. You agree to do business electronically with Mobileware, and to receive, electronically, all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.
Governing Law; Arbitration. PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH Mobileware AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM Mobileware.
You and Mobileware agree to arbitrate any dispute arising from the Terms or relating to onTime, except that you and Mobileware are not required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
You and Mobileware agree that you will notify each other of any dispute within 30 days of when it arises, that you will attempt informal resolution prior to any demand for arbitration, that any arbitration will occur in San Francisco, California and that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association. You and Mobileware also agree that the state or federal courts in San Francisco County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND Mobileware WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
Notwithstanding any terms to the contrary in the Terms, the following additional terms will apply to the download of onTime for use on the iPhone, iPod Touch or iPad:
Acknowledgement. You and Mobileware acknowledge that the terms are solely between you and Mobileware, and not with Apple, Inc. (“Apple”), and Mobileware, not Apple, is solely responsible for onTime and the content contained within onTime. You further acknowledge that the usage rules for onTime are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download onTime. In the event of any conflict between the terms and conditions of the Usage Rules for the Apple App Store Terms of Service and the terms and conditions of the Terms, the terms and conditions of the Usage Rules for the Apple App Store Terms of Service will govern if they are more restrictive.
Scope of License. The license granted to you is limited to a non-transferable license to use onTime on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
Maintenance and Support. Mobileware is solely responsible for providing maintenance and support services with respect to onTime. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to onTime.
Warranty. You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to onTime. In the event of any failure of onTime to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for onTime by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to onTime. You also acknowledge and agree that to the extent that there are any applicable warranties, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty, such will be the sole responsibility of Mobileware. However, you understand and agree that in accordance with the Terms, Mobileware has disclaimed all warranties of any kind with respect to onTime, and therefore, there are no warranties applicable to onTime, except those implied by law.
Product Claims. You and Mobileware acknowledge and agree that as between Apple and Mobileware, Mobileware, not Apple, is responsible for addressing any of your claims or any third-party claims relating to onTime or your possession and/or use of onTime, including, but not limited to: (i) product liability claims; (ii) any claim that onTime fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Intellectual Property Rights. You and Mobileware acknowledge and agree that, in the event of any third-party claim that onTime or your possession and use of onTime infringes that third-party’s intellectual property rights, Mobileware, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under the Terms.
Legal Compliance. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address. Any end-user questions, complaints or claims with respect to onTime should be directed to:
Mobileware Inc.
25 Health Sciences Dr
Stony Brook, NY 11790
Email: support@mobilewareinc.com
Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce any of the terms and conditions of the Terms against you as a third-party beneficiary thereof.