Last updated: March 20, 2013
Welcome to ngmoco! As used in these terms and conditions of use ("Terms"), "ngmoco", "we", "us", or "our" refer to ngmoco, LLC, and all of its subsidiaries.
We provide our users ("ngmoco Users") with: (i) applications for mobile platforms or devices, and web applications accessible on third-party social networking services ("SNS") (collectively, our mobile and web applications are referred to herein as "ngmoco Applications"), (ii) game publisher networks, crowd sourcing services and platforms ("Networks") in connection with ngmoco Applications and Third-Party Mobile Applications (defined below), (iii) a portal for third-party publishers ("Mobage Developer Portal"), (iv) web domains and subdomains, including ngmoco.com, plusplus.com and mobage.com (collectively, our "Sites"), and web forums or messaging boards in ngmoco Applications and our Sites (collectively, our "Forums"). Any and all of our ngmoco Applications, Networks, Mobage Developer Portal, Sites and Forums are referred to herein as our "Services".
Please read these Terms carefully because they govern your access to and use of our Services, ngmoco Content, and User Content (defined below) and are legally binding.
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE "SIGN UP" BUTTON WHERE APPLICABLE, OR BY ACCESSING OR USING OUR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT ON OR THROUGH OUR SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED AS A MEMBER (DEFINED BELOW). IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE OUR SERVICES OR NGMOCO CONTENT.
Certain Services, and your access to or use of certain ngmoco Content, may have different, Service-specific or ngmoco Content-specific terms and conditions ("Rules") posted, or may require you to agree with and accept such additional Rules. If there is a conflict between these Terms and Service-specific Rules or ngmoco Content-specific Rules, the applicable Rules will take precedence with respect to your use of, or access to, such Service or ngmoco Content. In addition, ngmoco offers access to third-party mobile applications available via our Services (each, a "Third-Party Mobile Application"), which are designed by third-party publishers (each, a "Third-Party Publisher"). You understand and agree that access to, and use of, any Third-Party Mobile Application shall be subject to terms and conditions of use where provided by the Third-Party Publisher of such Third-Party Mobile Application ("Third-Party Terms").
ngmoco reserves the right, at its sole discretion, to modify, discontinue or terminate our Services, including any portion thereof, on a global or individual basis, or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post these Terms as modified or otherwise provide you with notice of the modification. By continuing to access or use our Services after we have posted a modification to these Terms or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using our Services.
No Unlawful Or Prohibited Use
By using our Services, you represent and warrant to ngmoco that you will not use our Services, or any of the content obtained from our Services, for any purpose that is unlawful or prohibited by these Terms.
Eligibility and Registration
In order to access the full feature set of our Services, and to post any User Content on or through our Services, you must register to create either a full-access Mobage account ("Mobage Account") or a full-access Plus account ("Plus Account") (any Mobage Account and/or any Plus Account, collectively, "ngmoco Account") and become a "Member."
Some of our Services allow for the creation of a limited access “Guest” account (“Guest Account”). Use of a Guest Account will prevent you from taking advantage of certain features (e.g. leaderboards, in-game achievements, and other social features) that are only available under an ngmoco Account. You will have the option to upgrade an existing Guest Account to a new ngmoco Account. Upgrading from an existing Guest Account to a new ngmoco Account will allow you to retain your game progress data and Virtual Items and Virtual Currency (see the “Virtual Items and Virtual Currency” section below) corresponding to that Guest Account. However, it will not be possible to link or merge game progress data and Virtual Items and Virtual Currency corresponding to a Guest Account with a pre-existing ngmoco Account. If you choose to upgrade your Guest Account to a pre-existing ngmoco Account then all game progress data and Virtual Items and Virtual Currency corresponding to that Guest Account will be erased and won’t be recoverable. That means you should only choose to create a Guest Account if you don’t have an existing ngmoco Account and do not yet want to register for an ngmoco Account or if you will not upgrade that Guest Account to a pre-existing ngmoco Account. Except as noted in this paragraph, these Terms will apply to you as a registered “guest” under a Guest Account as if that account were an ngmoco Account and as they do to Members.
You agree that if you are under the age of 18 or whatever is the age of legal majority where you access the Services, you represent that your legal guardian has read, understood, and agreed to these Terms. In registering for an ngmoco Account, you agree to monitor the account to restrict any use by minors. You accept full responsibility for any unauthorized use of our Services by minors, and this includes any use of your credit cards or other payment or settlement instruments or devices by minors.
You may not register to create a Mobage Account, and you cannot hold a Mobage Account, if you are below the age of 14. In registering for a Mobage Account, you agree to prevent access to anyone under 14.
Since our Services are not intended for children under the age of 14, Mobage Account Member access to our Services is not knowingly granted to persons under 14, and Plus Account access for Members known to us to be under 14 is restricted to certain features only in the form of a limited account ("Limited Plus Account"). When our system detects that the date of birth information supplied by a Member with a Limited Plus Account indicates that such Member is no longer below the age of 14, such Member may be upgraded to a full, unrestricted Plus Account, following verified consent of such Member's legal guardian.
During the registration process, you will be required to provide certain information, including your email address, and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. ngmoco reserves the right to suspend or terminate your ngmoco Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. If you are not a Member, you may only browse or use in limited ways those parts of our Services that are not limited to Members only.
You are responsible for safeguarding your password. You agree not to disclose your password to any third party or to allow any third party to use your ngmoco Account, and you agree to take sole responsibility for any activities or actions under your ngmoco Account, whether or not you have authorized such activities or actions. You will immediately notify ngmoco of any unauthorized use of your ngmoco Account.
EVEN THOUGH WE USE THE WORD "YOUR" TO DESCRIBE AN NGMOCO ACCOUNT YOU REGISTERED FOR, YOU AGREE THAT YOU HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE NGMOCO ACCOUNT AT ALL, AND YOU FURTHER AGREE THAT ALL RIGHTS IN AND TO THE NGMOCO ACCOUNT ARE AND ALWAYS WILL BE OWNED BY AND INURE TO THE BENEFIT OF NGMOCO.
Interest in Mobage Developer Program
If you are interested and eligible to participate in ngmoco's "Mobage Developer Program", you may enter for registration as a developer ("Third-Party Mobile Application Developer") at the Mobage Developer Portal here; you must complete the registration process by providing us with current, complete, and accurate information as prompted in the registration process. On registration you understand that you, as a Third-Party Mobile Application Developer, will be entirely responsible for any and all activities that occur under any Third-Party Mobile Application Developer account ("Developer Account") provided to you.
Without limiting any rights that ngmoco may have under any other agreement with you or at law, you agree (i) to notify ngmoco immediately of any unauthorized use of your Developer Account or any other breach of security; (ii) that ngmoco will not be liable for any loss that you may incur as a result of someone else using your Developer Account, either with or without your knowledge; (iii) that you may be held liable for losses incurred by ngmoco or another person due to someone else using your Developer Account; and (iv) that you may not use anyone else's Developer Account at any time without first obtaining the permission of the Developer Account holder.
Certain types of content are made available on or through our Services:
Our Services and ngmoco Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, ngmoco and our licensors exclusively own all right, title and interest in and to the Services and ngmoco Content, including all associated intellectual property rights, including any patents, copyrights, trademarks, service marks, trade names, database rights, domain name rights, applications for any of the foregoing, moral rights and trade secret rights ("Intellectual Property Rights").
ngmoco will exclusively own all right, title and interest in and to any Customizations and you hereby waive any and all rights you may have in any Customizations under copyright law or otherwise. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying our Services or ngmoco Content.
ngmoco Content License
Subject to your compliance with these Terms, ngmoco hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, download and print, where applicable, any ngmoco Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or ngmoco Content, except only as expressly permitted by these Terms. No licenses or rights are granted to you by implication or otherwise under any Intellectual Property Rights owned or controlled by ngmoco or its licensors, except for the licenses and rights expressly granted by these Terms.
By making available any User Content on or through our Services, you hereby grant to ngmoco a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of our Services. ngmoco does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available on or through our Services. Accordingly, you represent and warrant that:
No Infringing Use.
You will not use our Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise infringes, violates, or promotes the infringement or violation of the Intellectual Property Rights of any third party.
ngmoco has adopted and implemented a Copyright Infringement Policy that, among other things, provides copyright protections consistent with the procedures established by the United States Digital Millennium Copyright Act.
Without any limitation of our other rights and remedies under these Terms and at law, our Copyright Infringement Policy provides for the termination in appropriate circumstances of the accounts of ngmoco Users who are repeat infringers of the rights of copyright holders. Please see our Copyright Infringement Policy, which is incorporated into and forms a part of these Terms.
Ratings, Comments & Feedback
You can rate and make comments about content made available on or through our Services ("Comments"). ngmoco advises you to exercise caution and good judgment when leaving such Comments. We do not generally monitor, review or moderate your Comments. Once you complete and submit your Comments on or through our Services, you should not expect to be able to go back and edit your Comments, nor should you expect us to make modifications to, or deletions of, your Comments on your behalf. You should be aware that you could be held legally responsible for damages to someone's reputation if your Comments are deemed to be defamatory. Without limiting any other terms or conditions of these Terms, ngmoco may, but is under no obligation to do so, monitor or censor Comments and disclaims any and all liability relating thereto. Notwithstanding the foregoing, ngmoco does reserve the right, in its sole discretion, to remove any Comments that it deems to be improper, inappropriate or inconsistent with the online activities that are permitted under these Terms.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to our Services ("Feedback"). You may submit Feedback by emailing us at email@example.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of ngmoco and you hereby irrevocably assign to ngmoco and agree to irrevocably assign to ngmoco all of your right, title, and interest in and to all Feedback, including without limitation all worldwide Intellectual Property Rights therein. Further, we are under no obligation to provide compensation for any Feedback. At ngmoco's request and expense, you will execute documents and take such further acts as ngmoco may reasonably request to assist ngmoco to acquire, perfect, and maintain its Intellectual Property Rights and other legal protections in the Feedback.
Virtual Items and Virtual Currency
ngmoco owns, has licensed, or otherwise has the rights to use all ngmoco Content appearing or originating in the Services, ngmoco Applications or Third Party Mobile Applications, including virtual items ("Virtual Items") and virtual currency ("Virtual Currency").
Virtual Items and Virtual Currency are provided solely for your personal and entertainment use, they may only be used in ngmoco Applications or Third Party Mobile Applications, and they have no "real world" value. By purchasing or receiving Virtual Items and Virtual Currency all that you receive is a limited license to use them in ngmoco Applications or Third Party Mobile Applications by these Terms or such other terms as may apply; Virtual Items and Virtual Currency are not your personal property and no ownership interest in them is transferred to you.
The prices for and the amounts and kinds of Virtual Items and Virtual Currency available may be changed at any time without notice. Virtual Items and Virtual Currency that you receive may also be changed or discontinued at any time without notice.
You cannot sell or transfer, or attempt to sell or transfer, Virtual Items or Virtual Currency, except only that where allowed you can exchange, within the Services, ngmoco Applications, and Third Party Mobile Applications, those Virtual Items and Virtual Currency that cannot be purchased with "real world" money ("Tradable Items") for other Tradable Items so long as no money or anything of monetary value is paid or given for Tradable Items; any other purported or attempted exchange is strictly prohibited.
Virtual Items and Virtual Currency may never be redeemed by you for "real world" money, goods, wares, merchandise, services, or anything of monetary value from ngmoco or any other person.
Orders & Payments
You agree that if you are under the age of 18 or whatever is the age of legal majority where you access the Services, you may make payments only with the involvement of your legal guardian, and you represent that your legal guardian has read, understood, and agreed to these Terms.
You may purchase, with "real world" money, limited licenses to use Virtual Items or Virtual Currency from ngmoco in accordance with these Terms, and you agree that all such purchases are final. If you order licenses for Virtual Items or Virtual Currency from ngmoco that become unavailable before they can be provided to you, your only remedy is to request a refund of the purchase price from the payment processor of the transaction.
Your orders for limited licenses to Virtual Items or Virtual Currency are offers for use of those Virtual Items or Virtual Currency, and if accepted those Virtual Items or Virtual Currency will be immediately downloaded to your ngmoco Account.
You expressly consent to the making available of Virtual Items and Virtual Currency immediately upon acceptance of your order. If you are a resident of the European Union and you purchase limited licenses to Virtual Items and Virtual Currency from us, the right to withdraw from such purchases within 7 working days of the date of purchase ("Cooling Off Period") may be available to you; however, this right of withdrawal will not apply where our performance begins before the end of the Cooling Off Period. Therefore, you expressly agree and understand that if you order limited licenses to Virtual Items or Virtual Currency from us, your right of withdrawal is forfeited upon acceptance as performance begins immediately on acceptance.
You understand and agree that ngmoco provides no refunds for any purchases except only as expressly stated in these Terms.
Additionally, the maximum purchased Virtual Currency balance that you will be able maintain in your ngmoco Account at any given time is one thousand dollars ($1,000 USD) of purchased Virtual Currency.
You are responsible for and will pay all fees and applicable taxes incurred by you or anyone using an ngmoco Account registered to you.
Mobile Operating Software Providers and Third-Party Publishers
Providers of operating software for mobile devices ("OS Providers") offer virtual storefronts and marketplaces for you to browse, locate and download, among other things, mobile applications. If you download ngmoco Applications or Third-Party Mobile Applications from a virtual storefront or marketplace operated by your OS Provider, please note that, in addition to complying with these Terms (and the terms and conditions of any applicable Third-Party Publisher), you must also comply with the terms and conditions of such virtual storefront or marketplace, such, as for example, Google's Android Market.
As for Third-Party Publishers, although ngmoco is not a party to any license between you and any Third-Party Publishers with respect to Third-Party Mobile Applications, you acknowledge and agree that ngmoco is a third-party beneficiary of each such Third-Party Mobile Application's end user license agreement. You also agree that, upon your acceptance of the terms and conditions of the license to any such Third-Party Mobile Application, ngmoco, as a third-party beneficiary, will have the right (and will be deemed to have accepted the right) to enforce such license against you.
Interactions between Users
You are solely responsible for your interactions (including any disputes) with other ngmoco Users. Even if we choose to offer report user, block user, or similar features on our Services, you will remain solely responsible for, and you must exercise caution, discretion, common sense and judgment in, using our Services and disclosing personal information to other ngmoco Users. You agree to take reasonable precautions in all interactions with other ngmoco Users, particularly if you decide to meet an ngmoco User offline, or in person. Your use of our Services, ngmoco Content, User Content and any other content made available through our Services is at your sole risk and discretion and ngmoco hereby disclaims any and all liability to you or any third party relating thereto. ngmoco reserves the right to contact Members, in compliance with applicable law, in order to evaluate compliance with these Terms and any other applicable Rules. You will cooperate fully with ngmoco to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting authorized ngmoco representatives access to any password-protected portions of your ngmoco Account.
You agree not to do any of the following while using our Services, ngmoco Content, or User Content:
ngmoco will have the right to investigate and prosecute violations of any of the above, including Intellectual Property Rights infringement and Services security issues, to the fullest extent of the law. ngmoco may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.
You acknowledge that ngmoco has no obligation to monitor or record your access to or use of our Services or ngmoco Content, or to monitor, record, or edit any User Content, but agree that we have the right to do so for the purpose of operating our Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. You acknowledge and agree that you have no expectation of privacy concerning uploads, transmissions, or submissions of any User Content. ngmoco reserves the right, at any time and without prior notice, to remove or disable access to any User Content that ngmoco, in its sole discretion, considers to be in violation of these Terms or otherwise harmful to our Services.
We encourage ngmoco Users to report any suspected misconduct or misuse of our Services by sending us an email to firstname.lastname@example.org.
Links and Third-Party Materials
Our Services may contain links to third-party websites or resources. You acknowledge and agree that ngmoco is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by ngmoco of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources. If you elect to use our Services on mobile carrier networks, such carrier's normal billing rates will apply.
In addition, certain content, products, and services available via our Services may include materials from third parties, including Third-Party Mobile Applications. You agree that ngmoco is not responsible for examining or evaluating third-party content, or such content's accuracy, and ngmoco does not warrant and will not have any liability or responsibility for any Third-Party Mobile Applications, or for any other materials, products, or services of third parties. You agree that you will not use any Third-Party Mobile Applications, or other third-party materials, in a manner that would infringe or violate the rights of any other party, and that ngmoco is not in any way responsible for any such use by you.
Sweepstakes and Contests
ngmoco may permit the offer of sweepstakes, contests and similar promotions (collectively, "Promotions") through the Services. You should carefully review the rules (e.g., the "Official Rules") of each Promotion in which you participate through the Services, as they may contain additional important information about ngmoco's rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion. To the extent that the terms and conditions of such Official Rules conflict with these Terms, the terms and conditions of such Official Rules will control.
Termination of ngmoco Accounts
Without limiting other remedies, ngmoco may at any time suspend or terminate your ngmoco Account and refuse to provide access to our Services if ngmoco suspects or determines, in its own discretion, that you may have or there is a significant risk that you have: (i) failed to comply with any provision of these Terms or any policies or Rules established by ngmoco; (ii) engaged in actions relating to or in the course of using our Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, ngmoco Users, ngmoco or any other third parties or our Services; or (iii) infringed the proprietary rights, rights of privacy, or Intellectual Property Rights of any person, including as a repeat infringer. In addition, ngmoco may notify authorities or take any other actions it deems appropriate, without notice to you, in the event of any of the above.
You may terminate your ngmoco Account at any time and for any reason by sending an email to email@example.com.
Effects of Termination, Suspension of Account
Upon termination of your ngmoco Account for any reason by you or us, you will lose all access to such account. Terminated ngmoco Accounts cannot be reinstated; any ngmoco Account that may be registered by you after termination of an ngmoco Account is a unique account.
If your ngmoco Account is terminated for any reason by you or us, you understand and agree that any Virtual Items to which you had access via your ngmoco Account at the time of termination will be lost and no longer be available to you, and you will have no right to them.
If your ngmoco Account is terminated for any reason by you or us, you understand and agree that ngmoco may redeem and use the Virtual Currency in the ngmoco Account at the time of termination for any purpose that it may choose, and that on termination you will have no right to that Virtual Currency.
In addition, if there is no activity in your ngmoco Account for 3 years (Inactive Account), you understand and agree that (i) ngmoco may redeem and use the Virtual Currency in the Inactive Account at such time for any purpose that it may choose, and that on the account becoming an Inactive Account you will have no right to that Virtual Currency; and (ii) any Virtual Items to which you had access via the Inactive Account up to the account becoming an Inactive Account will be lost and no longer be available to you, and you will have no right to them.
YOU AGREE THAT NGMOCO IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL ITEMS OR VIRTUAL CURRENCY IN AN INACTIVE ACCOUNT OR THAT WAS IN A TERMINATED NGMOCO ACCOUNT, NO MATTER HOW EITHER CAME ABOUT.
After any termination, you understand and acknowledge that we will have no further obligation to provide our Services and all licenses and other rights granted to you by these Terms will immediately cease. ngmoco will not be liable to you or any third party for termination of our Services or termination of your use of our Services. UPON ANY TERMINATION OR SUSPENSION OF YOUR NGMOCO ACCOUNT, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED ON OUR SERVICES OR THAT WHICH IS RELATED TO YOUR NGMOCO ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, ngmoco will have no obligation to maintain any information stored in our database related to your ngmoco Account or to forward any information to you or any third party.
Any suspension, termination or cancellation will not affect your obligations to ngmoco under these Terms (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
OUR SERVICES, NGMOCO CONTENT, AND USER CONTENT ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, NGMOCO EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
NGMOCO MAKES NO WARRANTY THAT OUR SERVICES, NGMOCO CONTENT OR USER CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NGMOCO MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH OUR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH OUR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NGMOCO OR THROUGH OUR SERVICES, NGMOCO CONTENT OR USER CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold ngmoco, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with User Content you submit to ngmoco, your access to our Services or ngmoco Content, or your violation of these Terms.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF OUR SERVICES, NGMOCO CONTENT, AND USER CONTENT THEREIN REMAINS WITH YOU. NEITHER NGMOCO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING OUR SERVICES OR NGMOCO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OUR SERVICES OR CONTENT THEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NGMOCO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
YOU SPECIFICALLY ACKNOWLEDGE THAT NGMOCO IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, NGMOCO WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY USER CONTENT OR THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM OR THROUGH OUR SERVICES.
IN NO EVENT WILL NGMOCO'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OUR SERVICES OR NGMOCO CONTENT OR USER CONTENT THEREIN OR PROVIDED THEREBY EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NGMOCO AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Trademarks & Other Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of ngmoco or our licensors used in association with the Services are trademarks or registered trademarks of ngmoco or our licensors. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of the respective owners of same.
Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and federal courts located in San Francisco, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between ngmoco and you regarding our Services and ngmoco Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between ngmoco and you regarding our Services and ngmoco Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without ngmoco's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Ngmoco may freely assign these Terms. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
You consent to the use of: (i) electronic means to complete these Terms and to deliver any notices or other communications permitted or required hereunder; and (ii) electronic records to store information related to these Terms or your use of our Services. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (x) by ngmoco via email (in each case to the address that you provide) or (y) by posting on or through our Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of ngmoco to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of ngmoco. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You agree that (i) these Terms are intended to cover any Third Party Publisher who is an affiliate of ngmoco, LLC ("Affiliate Publisher"); (ii) your obligations to ngmoco under these Terms extend to Affiliate Publishers as applicable unless otherwise agreed under any Third-Party Terms with any such Affiliate Publisher; and (iii) Affiliate Publishers are third party beneficiaries under these Terms who may rely on and directly enforce these Terms against you as such.
Language and Special Provisions Applicable to Users Outside of the United States
The controlling language of these Terms is English; any provided translation of these Terms is for purposes of convenience only and the English version shall govern to the extent of any inconsistency.
If a ngmoco User resides in a country that is embargoed by the United States, or if an ngmoco User is on the U.S. Treasury Department's list of Specially Designated Nationals (SDN) then such ngmoco User shall not engage in any commercial activities on, or using, the Services.
Certain special terms that apply only to end users who reside in Germany are available here.
If you have any questions about these Terms, please contact ngmoco at firstname.lastname@example.org.
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