(Last updated on June 17, 2014)
1.1. Governing Agreement
The terms of this agreement ("Terms of Service" or "Terms") govern the relationship between you and Mountaineer Technology Ventures, LLC (hereinafter "Mountaineer" or "Us" or "We") regarding your use of Mountaineer's apps and related services, which include applications for mobile devices and Mountaineer websites (the "Service"). In this agreement, "Mountaineer" means Mountaineer Technology Ventures, LLC. "Mountaineer" includes Affiliates, which shall mean subsidiaries, parent companies, joint ventures and other corporate entities under common ownership.
This agreement may not be otherwise amended except in a writing hand signed by you and Us. For purposes of this provision, "writing" does not include an e-mail message and a signature does not include an electronic signature.
1.4. Grant of a Limited License to Use the Service
Subject to your agreement and continuing compliance with these Terms of Service, Mountaineer grants you a non-exclusive, non-transferable, revocable limited license subject to the limitations in these Terms of Service to access and use the Service using a Mountaineer supported web browser (such as Mozilla Firefox or Microsoft Internet Explorer) or mobile device solely for your own non-commercial purposes. You agree not to use the Service for any other purpose.
1.5. Accessing the Service
You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component.
You are responsible for any fees, including internet connection or mobile fees that you incur when accessing the Service.
1.6. Use of the Service
The following restrictions apply to the use of the Service:
- You shall not create an Account if you are under the age of 18;
- You shall monitor your Account to restrict use by minor unless under your instruction and control. You accept full responsibility for any unauthorized use of the Service by minors in connection with your Account. You are responsible for any use of your credit card or other payment instrument (e.g. In-App Purchases) by minors;
- You shall not have more than one Account, per platform, at any given time, and shall not create an account using a false identity or information, or on behalf of someone other than yourself;
- You shall not create an Account or use the Service if you are a convicted sex offender;
- You shall not have an Account or use the Service if you have previously been removed by Mountaineer or previously been banned from using any Mountaineer app;
- You shall not use the Service if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department's list of Specially Designated Nationals.
- You shall use your Account only for non-commercial purposes;
- You shall not use your Account to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages (spim and spam) to anyone;
- You shall not use your Account to engage in any illegal conduct;
- You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without Mountaineer's written permission;
- You shall not access or use an Account that has been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without Mountaineer's permission; and
1.7. Account Information
1.8. Username and Password
During the Account creation process, you may be required to select a password ("Login Information"). The following rules govern the security of your Login Information:
- You shall not share the Account or the Login Information, let anyone else access your account, or do anything else that might jeopardize the security of your Account;
- In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Mountaineer and modify your Login Information;
- You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and
- You are responsible for anything that happens through your Account.
Mountaineer reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party's rights.
1.9. License Limitations
Any use of the Service in violation of these License Limitations is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.4, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE INCLUDING UNDERMINING OR MANIPULATING THE LEGITIMATE OPERATION OF ANY MOUNTAINEER APP IS A VIOLATION OF MOUNTAINEER POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
- Engage in any act that Mountaineer deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms, our app rules, app mechanics or policies;
- Make improper use of Mountaineer's support services, including by submitting false abuse reports or using profane and abusive language in your communications with our support personnel; or
- Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
- Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the Service or any Mountaineer app experience;
- Use the Service in order to design or assist in the design of cheats, automation software, bots, hacks, mods or any other unauthorized third party software designed to modify or interfere with the Service or any Mountaineer app experience;
- Without Mountaineer's express written consent, modify or cause to be modified any files that are a part of the Service;
- Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service or any Mountaineer app environment (each a "Server"); or (2) the enjoyment of the Service or any Mountaineer app by any other person;
- Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person's use or enjoyment of the Service; or
- Attempt to gain unauthorized access to the Service, Accounts registered to others or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by Mountaineer, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;
- Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive;
- Post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content;
- Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including Mountaineer employees, including Mountaineer's customer service representatives; or
- Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a Mountaineer employee;
- Without Mountaineer's express written consent, use the Service or any part thereof for any commercial purpose, including but not limited to communicating or facilitating any commercial advertisement or solicitation, or;
- Use the Service or any part thereof for performing in-app services, such as promotion or item collection services, in exchange for payment outside the Service; or
- Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
- Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service;
- Use any unauthorized third party software that accesses, intercepts, "mines", or otherwise collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service to store information about Mountaineer app items, elements, or environment. Mountaineer may, at its sole and absolute discretion, allow the use of certain third party user interfaces;
- Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server, or the Service, whether through the use of a network analyzer, packet sniffer or other device;
- Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- Bypass any robot exclusion headers or other measures We employ to restrict access to the service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;
- Use, facilitate, create, or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service; or (2) any connection using programs, tools, or software not expressly approved by Mountaineer;
- Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by Mountaineer; or
- Copy, modify or distribute rights or content from any Mountaineer site or app, or Mountaineer's copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service;
- Solicit or attempt to solicit personal information from other users of the Service;
- Collect, harvest or post anyone's personal information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service; or
- upload or transmit or attempt to upload or transmit, without Mountaineer's express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats ("gifs"), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as "spyware," "passive collection mechanisms" or "pcms").
CHEATING AND HACKING - You agree that you will not, under any circumstances:
OFFENSIVE OR INFRINGING CONTENT - You agree that you will not, under any circumstances:
COMMERCIAL ACTIVITY - You agree that you will not, under any circumstances:
UNAUTHORIZED USE OR CONNECTION TO THE SERVICE - You agree that you will not, under any circumstances:
COLLECTION AND PUBLICATION OF PERSONAL INFORMATION - You agree that you will not, under any circumstances:
1.10. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, MOUNTAINEER MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR MOUNTAINEER SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AND PERSONA AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION AND MOUNTAINEER IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR APPS AND SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
Mountaineer reserves the right to stop offering and/or supporting the Service or a particular app or part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, Mountaineer shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service.
Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
1.11.1. Apps and Service
The Service (including without limitation any apps, titles, computer code, themes, objects, dialogue, catch phrases, concepts, artwork, characters, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-app chat transcripts, user profile information, and the Mountaineer app clients and server software) are copyrighted works owned by Mountaineer, LLC. Mountaineer reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF MOUNTAINEER. GENERALLY, APP OR OTHER ACCOUNTS CREATED WITH MOUNTAINEER WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
1.11.3. User Content
"User Content" means any communications, images, sounds, and all the material, data, and information that you upload or transmit through a Mountaineer app or the Service.
You own your User Content. You hereby grant Mountaineer and its Affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content. The license you grant Us to use user posted content ends when you delete your User Content or you close your Account unless your User Content has been shared with others, and they have not deleted it. However, you understand and accept that removed content may persist in back-up copies for a reasonable period of time. Mountaineer is not responsible for copies of user content shared with or obtained by others.
2. USER CONTENT
2.1. Content Screening
You are entirely responsible for all User Content you post or otherwise transmit via the Service. Mountaineer assumes no responsibility for the conduct of any user submitting any User Content, and assumes no responsibility for monitoring the Service for inappropriate or illegal content or conduct.
We have no obligation to monitor User Content. If We choose at any time, in our sole discretion, to monitor the Service, We have the right, in our sole discretion, to edit, refuse to post, or remove any User Content and We may monitor and/or record your interaction with the Service or communications (including without limitation chat text and voice communications) when you are using the Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording.
3.1. Payment of Fees
You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. Mountaineer may revise the pricing for the goods and services it licenses to you through the Service at any time. YOU ACKNOWLEDGE THAT MOUNTAINEER IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON. ADDITIONALLY, WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY YOU ACKNOWLEDGE THAT MOUNTAINEER IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON.
4. THIRD PARTY ADVERTISING
4.1. Third Party Advertisements
4.2. Links to Third Party Sites and Dealings With Advertisers
Mountaineer may provide links on the Service to third party websites or vendors. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Mountaineer makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service, and will not be liable for any claim relating to any third party content, goods and/or services. The linked sites are not under the control of Mountaineer and may collect data or solicit personal information from you. Mountaineer is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Mountaineer of these linked sites.
5. COPYRIGHT NOTICES/COMPLAINTS
It is Mountaineer's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act ("DMCA"). Mountaineer reserves the right to terminate without notice any User's access to the Service if that User is determined by Mountaineer, in its sole discretion, to be a "repeat infringer." In addition, Mountaineer accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
6. UPDATES TO THE SERVICE
You understand that the Service is an evolving one. Mountaineer may require that you accept updates to the Service and to Mountaineer's apps you have installed on your computer or mobile device. You acknowledge and agree that Mountaineer may update the Service with or without notifying you. You may need to update third party software from time to time in order to receive the Service and use Mountaineer's Apps.
7. DISCLAIMERS / LIMITATIONS / WAIVERS / INDEMNIFICATION
7.1. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
WITHOUT LIMITING THE FOREGOING, NEITHER MOUNTAINEER NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, "MOUNTAINEER PARTIES") WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
7.2. LIMITATIONS; WAIVERS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE MOUNTAINEER PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE MOUNTAINEER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE MOUNTAINEER PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL THE MOUNTAINEER PARTIES BE LIABLE TO YOU FOR ANY AMOUNT, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH MOUNTAINEER IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU. IN PARTICULAR, NOTHING IN THESE TERMS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OR FRAUD OF MOUNTAINEER.
You agree to indemnify, save, and hold Mountaineer, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Mountaineer reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Mountaineer, and you agree to cooperate with Mountaineer's defense of these claims. Mountaineer will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this paragraph will survive any termination of your Account(s) or of the Service.
8. GOVERNING LAW, VENUE AND JURISDICTION
These terms and conditions shall be governed by and construed in accordance with the laws of the State of Texas applicable to contracts made and to be performed therein, exclusive of the choice of law or conflict of law provisions thereof. Any action or proceeding seeking to enforce any provisions of, or based on any right arising out of, these terms and conditions may be brought against any of the parties in the courts of the State of Texas, County of Harris, or, if it has or can acquire jurisdiction, in the United States District Court for the Southern District of Texas, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.
10. GENERAL PROVISIONS
10.2. Supplemental Policies
Mountaineer may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
10.3. Entire Agreement
10.4. Language of the Terms of Service
In the event of a conflict between a translation of the Mountaineer Policies and the English version, the English version of the Mountaineer Policies will control.
10.5. No Waiver
Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by Mountaineer shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of Mountaineer.
10.6. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to Mountaineer are of a unique and irreplaceable nature, the loss of which shall irreparably harm Mountaineer and which cannot be replaced by monetary damages alone. Accordingly, Mountaineer shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or any Mountaineer app, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7.2 (if any).
10.7. Force Majeure
Mountaineer shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Mountaineer, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Mountaineer's control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.