Terms of Service
LAST UPDATE: 20 February 2012
HESE ARE THE TERMS AND CONDITIONS APPLICABLE TO THE SUBSCRIPTION of Octomobi website creation and updating services (herein referred to as "Octomobi" services)
the USER (herein after referred to as "Client")
Octomobi.com, (hereinafter referred to as "Company")
PLEASE READ THE FOLLOWING AGREEMENT (TERMS & CONDITIONS) CAREFULLY. By subscribing to Octomobi services, you hereby agree and adhere to the terms and conditions and be bound by THE TERMS AND CONDITIONS. You further agree and accept that the Company assumes no responsibility for the nature or content of anything contained on the Web site and disclaims all liability in respect of such nature or content. Use of this site is strictly subject to the Terms and Conditions.
If you do not agree to these terms, please do not subscribe to Octomobi services.
Octomobi is an online mobile website building service (also referred as Webapp) for the small and medium businesses and individuals which includes website building tool to create a mobile website, hosting, mcommerce etc. Octomobi enables even novice users to create a mobile website and publish it to the web in no time. For using or subscribing to Octomobi and availing its Services, the user/ client have to enter into a legal agreement with the Company.
The Client has to be a legal entity or a natural person or an organizational unit without legal personality, with the capacity to acquire rights and incur obligations.
The User must be eighteen or over or represented by someone eighteen or over to subscribe to the services of Octomobi. Subscription in the Service is void where prohibited. By using the Site, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
3. ACCEPTANCE OF TERMS
Octomobi is provided by the "Company", which provides its services to the USER, subject to the following Terms and Conditions , which may be updated by the Company from time to time without notice to the USER.
Company reserves the right to change or modify any of the terms and conditions contained in this Agreement at any time and from time to time in its sole discretion, and to determine whether and when any such changes apply to both existing and future Clients. Company may make changes or modifications to referenced policies and guidelines without notice to you. The changes made shall be communicated by display on the home page, of a notification regarding any changes, amendment and modifications to the TERMS & CONDIITONS. The onus is on the user to regularly check the site to determine if there are any changes to the TERMS AND CONDITIONS and review the changes that may have been effected. If any such changes or modification is not acceptable to You, please discontinue the use of the services of Octomobi as the continued use of the site would constitute acceptance to the changes.
4. DESCRIPTION OF SERVICES.
Company will provide Client with the Services ordered during the sign up process. Company strives for 99.9% uptime, so that Customers can create & edit anytime. However, the service may be unavailable for short periods of time due to maintenance and upgrading. While the Octomobi service is unavailable, Customers will not be able to use it to create or edit their site. In order to access certain services, you may be required to provide current, accurate identification, contact, and other information as part of the registration process and/or continued use of Octomobi services. If company believes that the details are not correct, current, or complete, or otherwise in its discretion believes such action would be appropriate (including where it suspects the registration of multiple accounts/user profiles by the same individual), it has the right to refuse user's access to the site, and/or any of its resources, Services and Site content, and to terminate or suspend user's account (if any). The client is responsible for maintaining the confidentiality of their account password and is responsible for all activities that occur under their account. The client agrees to immediately notify Company of any unauthorized use of your password or account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to provide it with accurate information or to keep your password secure.
5. SUBSCRIPTION, PRICING AND PAYMENT.
At the time of initial registration, you will select from the available plans to which you wish to subscribe ("Services"). ll subscriptions to Services are subject to acceptance by Company. Your subscription to the Services will be deemed accepted by Company when Company delivers a confirmation of the subscription to you. Company reserves the right to refuse to provide any Service for any reason. The pricing for all Services ("Fees") shall be Company' then current pricing for such Services. After Company' acceptance of your subscription to the Services, Company will electronically deliver to you a schedule of the Fees. The payments will be made to Company through paypal or online credit card or pursuant to the any other methods set forth by Company. In the event of a charge back by a credit card company (or similar action by another payment provider allowed by us) or other non-payment by you in connection with your payment of the applicable service or subscription fee, you acknowledge and agree that the Service for which such fee has not been paid may be suspended, canceled or terminated, in Company´s sole discretion. All fees are non-refundable, in whole or in part, even if your service is suspended, cancelled or transferred prior to the end of the then-current service term. Anyhow the client is not obligated to pay any fees during the trial or free period as and when it is made available to the clients by the company. The agreement prohibits you from using the website once you unsubscribe from the service.
6. RIGHTS TO THE WEB SITE AND CONTENT.
You understand and agree that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content") are the sole responsibility of the person from which such Content originated. Company reserves the right, but shall have no obligation, to pre-screen, refuse or move any Content available via Octomobi services. You agree that you are responsible for your own conduct and any Content that you create, transmit or display while using Octomobi services and for any consequences thereof. You agree to use Octomobi services only for purposes that are legal, proper and in accordance with the Terms of Service and any applicable policies or guidelines or law in force and not use any pirated content. You agree that you will not engage in any activity that interferes with or disrupts Octomobi services or servers or networks connected to Octomobi services. Company claims no ownership or control over any Content submitted, posted or displayed by you on or through Octomobi services and shall not be liable for the same. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Octomobi services and you are responsible for protecting those rights, as appropriate.
7. THE CLIENT FURTHER AGREES THAT:
They shall not upload, post, publish, distribute, disseminate or otherwise transmit any content that amounts to abuse, threat or defamation or harassment or involvement in a conduct that may directly or indirectly violate the rights of others, or otherwise unlawful, harmful or invasive of the privacy of others.
They shall not upload, post, publish, distribute, disseminate or otherwise transmit anything that contains harmful, hateful, unlawful, defamatory, abusive or obscene, pornographic, profane, sexist, homophobic, defamatory, deceptive, vulgar, obscene or offensive content - ethnic, racist or religious slurs or derogatory epithets - advocation of violence, hate or unlawful activity - depictions of child abuse, child pornography or sexually suggestive poses, terror, racial, ethnical or political derogatory or otherwise objectionable material or content or information
They shall not upload, post, publish, distribute or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships.
They shall not upload, post, publish or otherwise transmit or submit anything to the site that will violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right.
They shall not upload, post or otherwise transmit any content that offers any pirated computer programs or links to such programs.
They shall not use the website in any manner or form that could possibly damage, impair or interfere with or disrupt Octomobi or servers or networks connected to the Octomobi including transmitting any material that contains viruses or other computer programming routines that are intended to damage, detrimentally interfere or intercept with any system, data or personal information, or attempting to gain unauthorised access to Octomobi, other's accounts on Octomobi through any means;
They shall not upload, post or otherwise transmit computer programs, files or other materials that contain destructive or disruptive features such as viruses, corrupted files, 'hidden' files or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or online communication generally.
They shall not use the website in any manner or form with the purpose of or motive to sell, distribute or promote firearms, weapons or controlled substances, make-money-fast schemes, pyramid or chain letters, fraudulent or otherwise criminal offers - to register another email address other than your own - to distort auctions or other markets (including public quoted securities markets) - to threaten or harass others or to disrupt discussions or impersonate any person or entity or create or falsify the identity of any person or otherwise misrepresent your association or affiliations with a person or entity, for the purpose of misleading others.
They shall not solicit in any form any information or personal information from anyone under the age of eighteen (18) years for commercial, unlawful or any illegal purposes or harm minors in any manner
They shall not intentionally or unintentionally violate any applicable local, state, national or international law, or regulation including, but not limited to, Indian legislation such as the Information Technology Act, legislations relating to Intellectual property rights, or those governing export control, unfair competition, discrimination or false advertising or any amendments or replacements of such laws or regulations.
They shall not engage in commercial activities that are deemed inappropriate on Octomobi. As such the Company has the right to remove or bar content/links/sponsorships/affiliate programs etc that they feel fall into this category.
8. In addition, the Company in no way endorses or takes responsibility for any goods, services etc that are posted within sites. Any transactions therefore are strictly outside the remit of Octomobi. You agree and acknowledge that the company takes no liability in respect of any content uploaded, posted, published or otherwise transmitted by the users.
9.You acknowledge that the Company does not pre-screen content, but that it has the right (but not the obligation) in its sole discretion to refuse or move any content that is available via Octomobi. Without limiting the foregoing, The Company shall have the right to remove any content that violates the TERMS & CONDITIONS or which is otherwise in its opinion, objectionable.
10. The Internet is a complex world-wide network consisting of tens of thousands of connecting points and networks and possibilities for outages both in and beyond our control can occur. Company will not be held liable for network outages nor damages resulting from network outages.
11. The Company retains the right (but is under no obligation) to co-operate with any law enforcement authorities or in response to court and other official requests directing it to disclose the identity of any user or user content.
12. LIMITED LICENSE TO THE BACKGROUND TECHNOLOGY.
"Background Technology" means computer programming & formatting code or operating instructions developed by or for Octomobi services and used to maintain the website. Background Technology does not include any Client Content or any derivatives, improvements, or modifications of Client Content. Client may not duplicate or distribute any Background Technology to any third party without the prior written consent of Company. All rights to the Background Technology not expressly granted to Client hereunder are retained by Company.
Company agrees to provide reasonable technical support to Client during Company´s normal technical support hours. Company additionally agrees to provide Client service support in the form of online help desk or e-mail during Company' normal Client support hours.
14. TERM AND TERMINATION.
(a) This Agreement is effective as of the Effective Date and shall continue unless terminated;
(b) Company may terminate this Agreement after seven (7) days' notice to Client if Client materially breaches this Agreement, including, without limitation, failure to pay, and fails to cure such breach during such five (7) day period; and
(c) upon the termination of this Agreement, Client will pay Company for all Services provided to Client by Company prior to termination
15. NO RESALE OF SERVICE
You agree not to transmit, distribute, disseminate, upload, post, submit, share, store, reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of Octomobi services, use of Octomobi services, or access to Octomobi services without the written permission of the service providers.
16. PROPRIETARY TOOL LIMITATIONS.
The Octomobi services are offered through the proprietary tool and processes. Client agrees to work within the limitations of the proprietary tools used and the decision of Company is final in any issue that might arise due to this.
17. RESELLER: CLIENT RESPONSABILITY
Resellers are responsible for supporting their clients. Octomobi does not provide support to our Reseller's Clients. If a reseller's client contacts us, we reserve the right to place the client account on hold until the reseller can assume their responsibility for their client. All support requests must be made by the reseller on their clients' behalf for security purposes. Resellers are also responsible for all content stored or transmitted under their reseller account and the actions of their clients'. Octomobi will hold any reseller responsible for any of their clients actions that violate the law or the terms of service.
18. RESELLER: UNDERCUTTING OCTOMOBI RETAIL PRICES
All resellers will commit never to undercut Octomobi's retail prices when reselling Octomobi services.
19. BACKUP AND DATA LOSS
Your use of this service is at your sole risk. Our backup service runs once a week, overwrites any of our previous backups made, and only one week of backups are kept. This service is provided to you as a courtesy. Octomobi is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on Octomobi servers.
20. DISCLAIMER AND WARRANTIES.
Company warrants that Octomobi will perform the services in material conformity to the specifications contemplated hereunder in a professional and workmanlike manner. The warranties and representations hereunder will not extend or apply to any Web site modified by any party other than through Octomobi services'. "Error" means any reproducible error, problem, or defect resulting from an incorrect functioning of the Background Technology that materially affects the functionality of the Web site. All warranty claims not made in writing within the Warranty Period shall be deemed waived. Company' warranty obligations are personal to Client and may not be extended to any third party. Except as expressly provided in this Agreement, the Services and Client Web sites are provided "as is," and Company expressly disclaims all warranties and conditions of any kind, express, implied, or statutory, including, without limitation, the implied warranties of title, noninfringement, merchantability, and fitness for a particular purpose. You hereby acknowledge and agree that will not be liable for any temporary delay, outages or interruptions of the Services.
You agree to hold harmless and indemnify Company, and its subsidiaries, affiliates, officers, agents, and employees, advertisers or partners, from and against any third party claim arising from or in any way related to your use of Octomobi services, violation of this Terms of Service or any other actions connected with use of Octomobi services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Company will provide you with written notice of such claim, suit or action.
22. LIMITATION OF LIABILITY.
Company´s liability hereunder shall not exceed the amount paid by client to company during the three (3) month period before the action arose. company shall not be liable for (a) any loss of use, loss of data, or interruption of business or (b) any indirect, special, incidental, consequential, or punitive damages of any kind (including, without limitation, lost profits), regardless of the form or action, whether in contract, tort (including negligence), strict liability, or otherwise, even if company has been advised of the possibility of such damages. The client acknowledges that these limitations are an essential element of this agreement, and absent such limitations, company would not enter into this agreement.
You agree that, except as otherwise expressly provided in this Terms of Service, there shall be no third party beneficiaries to the Terms of Service.
24. RIGHT TO DISPLAY MOBILE SITES
By using Octomobi's services, the USER agrees in having any mobile website created with Octomobi to be used in Octomobi's promotional material and throughout the Octomobi website, in pages such as the example gallery page. The USER however has the right to request removal of the website from any Octomobi webpage or promotional material at any time.
25. LEGAL COMPLIANCE
As a user you shall at all times comply with all applicable domestic or international laws, statutes, ordinances, regulations, contracts and applicable licenses regarding the use of the Octomobi´s services
26. GOVERNING LAW AND JURISDICTION
This Agreement will be governed by and construed in accordance with the laws of the United Kingdom.
In case of any dispute (or) differences between the parties with regards to the terms and conditions of this license (or) any action taken in furtherance of this agreement the courts in United Kingdom alone shall have the jurisdiction to adjudicate upon the same.
27. SEVERABILITY AND AMENDMENT
This Agreement may not be modified or amended except in writing, signed by both parties. Any purported oral modification or amendment of this Agreement in derogation of the foregoing shall be without any effect. Neither party may waive any right hereunder except expressly and in writing.
28. ENTIRE AGREEMENT
This Agreement is the entire agreement between the parties with respect to this subject matter, and it supersedes all prior and contemporaneous discussions, negotiations, communications, and agreements with respect thereto.
29. CHANGES TO THE TERMS OF SERVICE
Octomobi reserves the right to revise its policies at any time without notice