These terms were last updated on July 17, 2014.
Welcome to Modojo. The Modojo.com, Shackmeet.com, and deals.Modojo.com websites, including all subpages and successor pages thereto (collectively, the “Websites”), the Modojo mobile application and associated services (the “Mobile App”), the Modojo digital client desktop software (the “Digital Client”) and the Modojo Subscription Rental Service and other services offered by Modojo (the “Service”) are owned and operated by Modojo, Inc. and/or one of its subsidiaries including Modojo Digital, Inc. (hereinafter referred to as “Modojo”, “we” or “us”). The Website, the Mobile App, the Digital Client and the Service are collectively and individually referred to as the “Modojo Site and Services.”
Set forth the entire agreement regarding the subject matter discussed herein. If any provision of this Agreement is found to be unlawful, void, or unenforceable, it will not affect the validity and enforceability of any other provision.
If you use any portion of the Modojo Site and Services, you represent and warrant that all information you supply to Modojo is complete and accurate. You must have internet access to use the transactional portions of the Modojo Site and Services, as well as a valid major credit or debit card (“Card”) (accepted for all transactions on the Website) or a valid PayPal account (accepted for physical and digital game purchases on the Website). “Payment Method” shall mean payment by Card and/or PayPal account, as may be applicable in each instance. Modojo accepts most major Cards. To view a list of accepted Cards, please see the “Credit Cards and Billing Info” link in the “My Account” section of the Website.
You are solely responsible for maintaining the confidentiality of your account information, including your password, and for restricting access to your computer and mobile device. You also agree not to impersonate any other person while using the Modojo Site and Services.
By using any part of the Modojo Site and Services, you agree to accept responsibility for all activities that occur under your account or password. You agree to notify Modojo immediately of any unauthorized use of your account or password, or any other breach of security of which you become aware. It is also your responsibility at all times to provide and maintain an accurate and working email address, delivery address, telephone number, current and valid Payment Method and billing information. We reserve the right to place any account on hold at any time (with or without notification to you) in order to protect us from what we believe to be fraudulent activity. You can find the specific details regarding your subscription with Modojo at any time by clicking on the “My Account” section of the Website.
You are responsible for providing all equipment and software necessary to access the Modojo Site and Services, including without limitation a mobile device that is suitable to connect with and use the mobile components of the Modojo Site and Services, as well as a desktop computer that is suitable to use the Digital Client.
License and Limitations of Use
You must be 18 years of age or older and reside in one of the 50 United States or the District of Columbia to subscribe to the Service and must be 13 years of age or older to use the Mobile App or Digital Client. WHILE INDIVIDUALS UNDER THE AGE OF 18 MAY UTILIZE THE Modojo SITE OR SERVICE, THEY MAY DO SO ONLY UNDER THE SUPERVISION AND WITH THE CONSENT OF A PARENT OR LEGAL GUARDIAN. By subscribing to the Service, you represent that you are at least 18 years of age and reside in one of the 50 United States or the District of Columbia, and by using the Service, you represent that you either
1. are 18 years of age or older
2. have received consent from your parent or legal guardian to access his or her subscription to the Service
The games and content we publish and/or distribute through the Modojo Site and Services are strictly for personal and non-commercial use. Subject to the terms and conditions of this Agreement, including your payment of all applicable fees, we agree to deliver games to you and grant you a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to access the Modojo Site and Services for that limited purpose only. All rights not explicitly granted herein are reserved by Modojo or its licensors. Any unauthorized use of the Modojo Site and Services will automatically and immediately terminate your subscription and the license(s) granted by us.
To use the Mobile App you must have a compatible mobile device. Modojo does not warrant that the Mobile App will be compatible with your mobile device. Subject to the terms and conditions of this Agreement, Modojo hereby grants you a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to use a compiled code copy of the Mobile App for one Modojo account on one mobile device owned or controlled by you, for your personal use.
You acknowledge and agree that Modojo may from time to time issue upgraded versions of the Mobile App or Digital Client, and may automatically electronically upgrade the version of the Mobile App or Digital Client that you are using on your mobile device or computer, respectively. You hereby consent to such automatic upgrading on your mobile device or computer, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile App or Digital Client is subject to the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile App or the Digital Client or any copy thereof, and Modojo or its third party licensors or suppliers retain all right, title, and interest in the Mobile App and the Digital Client (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Modojo reserves all rights not expressly granted under this Agreement. If the Mobile App or Digital Client is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile App or Digital Client, as applicable, by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
The Mobile App and the Digital Client originate in the United States, and are subject to United States export laws and regulations. Neither the Mobile App nor the Digital Client may be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile App and the Digital Client may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Modojo Site and Services.
The following applies to any Mobile App you acquire from the iTunes Store (“iTunes- Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Modojo, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes- Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Modojo as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes- Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to:
1. product liability claims
2. any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement
3. claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Modojo as provider of the software
You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Modojo, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Modojo acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
The following applies to any Mobile App you acquire from the HP/Palm App Catalog (“Palm-Sourced Software”): You and Modojo acknowledge and agree that HP/Palm, and HP/Palm’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the Palm-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, HP/Palm will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Palm-Sourced Software against you as a third party beneficiary thereof.
Free Trials, Trial Memberships, and Discount Introductory Offers
We may offer free trials, trial memberships, and discount introductory offers of the Service to allow customers to become familiar with the many benefits of the subscription plans we offer. These trials and introductory offers are available to new (first-time) customers only, limited to one per household, and cannot be combined with any other offer. These limited trials and introductory offers are only valid in the 50 United States and the District of Columbia. A valid Card is required. WE AUTHORIZE THE CARD UP TO THE AMOUNT OF ONE MONTHLY FEE IN ORDER TO VERIFY THE ACCOUNT. We do not receive any payment from this transaction, even if your bank or credit card company temporarily holds the funds in your account.
We will begin charging your Card a monthly subscription fee at the then-current rate (plus any applicable taxes) on the first day following the end of your trial or introductory offer period. YOU MUST CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR TRIAL OR INTRODUCTORY OFFER PERIOD TO AVOID HAVING YOUR CARD CHARGED.
During a free trial or introductory offer period, customers will not be eligible to receive free shipping on used game purchases and will not accrue Modojo Rewards.
Modojo free trials, trial memberships, and discount introductory offers are non- transferrable and may not be resold. Modojo does not condone or permit the re- selling of free trials, trial memberships, or discount introductory offers privately or on auction/marketplace websites, and we are under no obligation to honor re-sold free trials, trial memberships, and discount introductory offer memberships. Modojo also does not offer and is not required to provide customer support for issues that may arise from transactions involving the resale of Modojo free trials, trial memberships, or discount introductory offers.
Credit Card Billing & Subscription Fees
Your Service will continue in effect unless and until you properly cancel your membership or we terminate it. By joining the Service, you expressly agree that we are permitted to charge your Card on a monthly basis the subscription fee at the then-current rate (plus any applicable taxes) and any other charges you may incur in connection with your use of the Service. The subscription fee will be billed in full on the first day of your paid subscription and on each monthly anniversary thereafter, unless and until you cancel your subscription. If your billing date lands on a day not contained in a given month, you will be billed on the last day of that month. For example, if your paid subscription began on August 31st, your next billing date would be September 30th.
As a courtesy to our customers, if your Card is within thirty (30) days of expiring, we may update your expiration date automatically by contacting your Card issuer directly. Notwithstanding the foregoing, it remains your responsibility to maintain a current and valid Card. Even if your Card has expired, you authorize us to continue billing that Card and acknowledge that you remain responsible for any uncollected amounts.
Modojo is not responsible for any additional bank fees, interest charges, finance charges, overdraft charges, or other fees resulting from charges made by us. Subscription fees are fully earned upon payment. PAYMENTS ARE NON-REFUNDABLE AND WE DO NOT GIVE PRO-RATED REFUNDS IF CANCELLATION IS INITIATED DURING THE MIDDLE OF A BILLING CYCLE. We also reserve the right to change our fees and prices at any time, or add new fees and charges from time to time, but we will notify you in advance if we do so.
Purchases and Pricing
The Modojo Site and Services may offer used, new, pre-purchase and pre-order items for sale. Prices and availability of products on the Modojo Site and Services are subject to change without notice. We reserve the right to limit purchase quantities. Dealer orders will not be accepted without prior written permission. Free shipping only applies to purchases of used games and is provided only to active paying members in good standing (not during a free trial period), unless stated otherwise in the course of a specific promotion.
Modojo reserves the right to cancel any order placed through any portion of the Modojo Site and Services.
Prices for used, new, pre-purchase and pre-order items are displayed on the Modojo Site and Services as these items become available.
With respect to items placed into or saved to your shopping cart, we will confirm the total price of your order before you complete the checkout process, and authorize your Payment Method for the total price before it enters the fulfillment process; however, we do NOT charge your Payment Method until after your order has entered the fulfillment process unless it is a pre-purchase including an unreleased title. Your Payment Method is charged in full for pre-purchases when the order is placed.
From time to time, a small number of items may be mispriced. Errors will be corrected where discovered and Modojo reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted.
If we discover a mispricing, we will do one of the following:
If an item’s correct price is lower than our stated price, we will charge the lower amount and ship you the item.
If an item’s correct price is higher than our stated price, we will (at our discretion) either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
Modojo will collect and remit sales tax on purchases as required by applicable law for transactions made through the Modojo Site and Services. Sales tax charged is based on the ZIP code included in your shipping address. For sales of digital goods or other instances where a shipping address is not applicable, the sales tax charged is based on the ZIP code included in the billing address. At checkout, we will display the estimated sales tax for your order. This is only an estimate; the final sales tax charged for any purchase will be determined by your ZIP code at the time your order enters the fulfillment process and your Payment Method is charged.
Pre-Orders and Pre-Purchases
Select products will be available to pre-order prior to their release dates (“Pre- Order”). Pre-ordering a product reserves your quantity of the product. Upon placing the order, your Card will be authorized for the total amount of the order. Your Card will be charged only after your order has entered the shipping process.
Other select products will be available to pre-purchase prior to their release dates (“Pre-Purchase”). Pre-Purchasing a product means your Card will be charged for the product upon placing the order.
The release date of a Pre-Order or a Pre-Purchase is subject to change, and we make no warranty that we will ship the item or have it available for download on the date of release stated at the time you place your order. Should the release date of a Pre- Order or Pre-Purchase change, we will notify you via email. You may also elect to cancel a Pre-Order at any time up until the time your Payment Method is charged through the Purchase History page under My Account. Pre-Purchases are non- cancellable and you may not cancel after you place the order.
Sometimes, the price of a Pre-Order may change. Should the price of an item change after you have placed a Pre-Order through any portion of the Modojo Site and Services, we will send you an email to notify you of the change and ask you to confirm that you still wish to pre-order the item. If you do not confirm your Pre- Order, it will be cancelled. For a Pre-Purchase item, we will not adjust your price after the order has been placed.
Modojo reserves the right to cancel a Pre-Order or a Pre-Purchase at any time. In the event a Pre-Order is cancelled by Modojo, any and all charges for that Pre-Order product will be voided. In the event a Pre-Purchase is cancelled by Modojo, we will refund the amount of the original charge for the product to your Payment Method.
Coupons, and Other Virtual Goods
Modojo may issue coupons, currency for use on the Modojo Site and Services (“Modojo Dollars”), and/or fictional property representing virtual achievements (for example, badges or trophies) (collectively “Modojo Property”) from time to time for reasons including but not limited to, special promotions, your participation in the Rewards Program (as described below), and your participation in a Modojo-issued survey.
Coupons issued are valid for a limited time only and may include restrictions on which products qualify for use of the coupon. Percent-off coupons are applicable towards the unit price of qualifying items (exclusive of tax and shipping charges) and may not be combined with other offers. Shipping coupons may discount the shipping cost of your purchase when applied during the checkout process. Shipping coupons may be valid only for a specific shipping method which must be selected during checkout in order to qualify for use of the coupon. The actual discount resulting from a shipping coupon is determined during checkout based on the quantity of qualifying items in your order. From time to time, Modojo may issue special-use coupons that are only available for limited-time use and expire less than 180 days from issuance. Coupons are not redeemable for cash, are non-transferable and may not be applied to past orders. Unused portions of redeemed coupons will be forfeited at the completion of the transaction.
You understand and agree that Modojo Property represents a limited license right governed solely by the terms of this Agreement and is available for distribution at Modojo’s sole discretion. Modojo Property is not redeemable for any sum of money or monetary value from Modojo at any time. You acknowledge that you do not have any ownership interest in the account(s) you use to access the Modojo Site and Services, nor do you possess any rights of access or rights to data stored by or on behalf of Modojo on Modojo servers, including without limitation any data representing or embodying any or all of your Modojo Property. You agree that Modojo has the absolute right to manage, regulate, control, modify and/or eliminate Modojo Property as it sees fit in its sole discretion, in any general or specific case, and that Modojo will have no liability to you based on its exercise of such right. All data on Modojo’s servers are subject to deletion, alteration or transfer.
NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON Modojo’S SERVERS MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN Modojo’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITHOUT LIABILITY OF ANY KIND. Modojo DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON Modojo’S SERVERS. YOU ACKNOWLEDGE AND AGREE THAT Modojo IS NOT REQUIRED TO PROVIDE A REFUND OR COMPENSATION FOR THE Modojo PROPERTY FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED Modojo PROPERTY, INCLUDING WITHOUT LIMITATION Modojo DOLLARS, WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE IS VOLUNTARY OR INVOLUNTARY.
Shipping prices are calculated as a single base price per shipment plus an incremental cost per each item included in the order. For Pre-Orders and Pre- Purchases, each pre-ordered and pre-purchased item is a separate shipment and will incur a separate base shipping price cost in addition to the incremental item shipping cost.
We offer several methods of shipping. Certain U.S. addresses and P.O. boxes are not serviceable by all shipping methods. If your address does not qualify for certain shipping methods, you will be notified during the checkout process.
If a physical item that you purchase from the Modojo Site and Services is not operational (and it has not been damaged by you) and you notify us within fourteen (14) days of the shipping date, we will, as your sole remedy, refund your money (excluding shipping costs) subject to the conditions below.
Purchases of physical items from the Modojo Site and Services may be returned for a refund provided all of the following conditions are met:
You’re contacted Modojo customer service to inform us of your damaged item within fourteen (14) days of the shipping date. You will then receive a return authorization number (RMA). Returned items are received by Modojo with an RMA in their full, undamaged original packaging.
If the preceding conditions are met, a refund will be provided in accordance with the following:
If Modojo receives the returned item within thirty (30) days of original shipping date, you will receive a full refund of the purchase price paid, less any applicable shipping costs. If Modojo receives the returned item within thirty-one (31) to sixty (60) days of original
shipping date, you will receive a refund equal to 80% of the purchase price paid, less any applicable shipping costs.
Returns of new or used items will not be accepted more than sixty (60) days after the original shipping date.
If we are able to identify a CD, DVD, game or other item inadvertently submitted to us as a rental return, we will make a reasonable attempt to return the item to the sender. You hereby release us from any liability arising from the receipt and attempted return of such items.
Gift certificates must be bought and redeemed directly through the Website, and may only be used toward the purchase of a Service subscription. Gift certificate recipients will need a valid Card to activate their gift subscription. The recipient’s Card will only be authorized, it will not be charged. Unless the recipient cancels prior to the end of the gift subscription period, Modojo will begin to charge the recipient’s Card for monthly subscription fees (plus applicable taxes) at the completion of the gift subscription period. WE DO NOT GIVE PRO-RATED REFUNDS IF CANCELLATION IS INITIATED DURING THE MIDDLE OF A BILLING CYCLE.
Gift certificates are not redeemable for purchases of non-subscription products from the Website or purchases from our partners. Except as otherwise required by applicable law, gift certificates cannot be used to purchase additional gift certificates, are not redeemable for cash and cannot be returned for a cash refund. Modojo is not responsible for lost or stolen gift certificates. We retain the right to close customer accounts and request alternative forms of payment if a fraudulently obtained gift certificate is redeemed.
Gift certificates are non-transferrable beyond the original gift recipient and may not be resold. Modojo does not condone the re-selling of gift certificates privately or on auction/marketplace websites, and we are under no obligation to honor re-sold gift certificate memberships. Modojo also does not offer and is not required to provide customer support for issues that may arise from transactions involving the resale of Modojo gift certificates.
Federal law limits your liability for unauthorized charges to your account. The Fair Credit Billing Act (FCBA) states that your credit card company (creditor) cannot hold you liable for more than $50 in the unlikely event a fraudulent charge occurs on your account. Modojo will pay up to $50 of your liability if your Card is used fraudulently at the Service.
The arcade feature of the Website (“Modojo Arcade”) is an enhancement to your Modojo membership and is not part of the Service. Modojo may choose to remove the Modojo Arcade at any time without prior warning.
The Modojo Arcade and all materials therein, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, games, and content, and all intellectual property rights related thereto, are the exclusive property of Modojo and its licensors. Except as expressly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Modojo Arcade. Use of the Modojo Arcade content or materials on the Modojo Arcade for any purpose not expressly permitted by this Agreement is strictly prohibited.
YOU UNDERSTAND AND AGREE THAT Modojo HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE IN WHOLE OR IN PART ANY CONTENT RELATED TO THE Modojo ARCADE, INCLUDING WITHOUT LIMITATION DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON Modojo’S SERVERS, AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITHOUT LIABILITY OF ANY KIND.
All content and data included on the Website, including but not limited to graphics, text, user interfaces, visual interfaces, photographs, trademarks, sounds, music, artwork, computer code, logos, button icons, and software, (collectively, “Content”) including but not limited to the design, structure, selection, expression, look and feel and arrangement of such Content, is the property of Modojo, and/or its suppliers or licensors, and is protected by trade dress, copyright, patent and trademark laws, and other intellectual property rights and unfair competition laws. No Content may be reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, accessed or otherwise used without express written permission from Modojo.
You agree not to interfere with, decompile, reverse engineer or disassemble any software, products or processes accessible through the Modojo Site and Services, not to insert any code or manipulate any content on the Modojo Site and Services, and not to use data mining, data gathering or any other extraction methods. Modojo does not condone the copying of video games or other infringing activities.
Modojo is a registered trademark of Modojo, Inc. Modojo’s trademarks may not be used in connection with any product or service that is not expressly permitted by Modojo in writing, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Modojo. All other trademarks not owned by Modojo that appear on the Modojo Site and Services or on games are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Modojo. Any images of persons or personalities contained on the Modojo Site and Services or in games shall not be an indication of endorsement of any particular product or the Modojo Site and Services unless otherwise specifically indicated.
Modojo may offer synopses, reviews, game guides, user comments and other information pertaining to the games we cover on our site. Under no circumstances shall Modojo, or Modojo's parent, subsidiaries, suppliers, licensors or other affiliated companies, or their respective shareholders, directors, agents or employees (individually and collectively, the “Modojo Parties”) be held liable for any loss or damage caused by your reliance on information obtained through the Website. It is your responsibility to evaluate and make your own independent judgment about the information, opinion, advice and other content available through the Modojo Site and Services.
Some hyperlinks on the Website may lead to other websites that are not owned or controlled by Modojo. Such sites are provided solely as a convenience to our visitors. Modojo has not reviewed these sites and has no control over the content of such sites. Connecting to linked sites and/or downloading any information from linked sites is done entirely at your own risk. Modojo makes no representation or warranty that downloads from linked sites will meet any prescribed specification, nor do we make any representation or warranty that such linked sites will not contain viruses or otherwise impact your computer.
Modojo DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OUR WEBSITE OR SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND Modojo WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
By using any portion of the Modojo Site and Services, you agree to receive notices and electronic communications from Modojo. These communications may include information about your account, such as shipping and confirmation emails, or information related to the Modojo Site and Services, and features. These communications are also part of your subscription to our Service. If you subscribe to or follow a user or product through any portion of the Modojo Site and Services, we may send you notifications about that user or product. You agree that any notice, agreements, disclosures, or other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing.
Your Conduct on the Modojo Site and Services
By using any portion of the Modojo Site and Services, you agree
1. not to upload, post, email, or otherwise send or transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, equipment, or content associated with any portion of the Modojo Site and Services.
2. not to interfere in any way with the servers or networks connected to any portion of the Modojo Site and Services.
3. not to violate any of the procedures, policies, or regulations of networks connected to the Modojo Site and Services, the terms of which are incorporated herein.
4. not to conduct yourself in an offensive manner or impersonate any other person while using any portion of the Modojo Site and Services, or use any portion of the Modojo Site and Services for any unlawful purpose.
User Reviews and Other User-Submitted Content
Visitors may post, upload or submit reviews, comments, suggestions, ideas, questions, answers, or other content (collectively “User Content”) as provided for on the Modojo Site and Services. You retain ownership of your User Content. You agree not to post User Content that:
1. may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you or to any other person
2. may create a risk of any other loss or damage to any person or property
3. seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise
4. may constitute or contribute to a crime or tort
5. contains any information or content that we may deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable
6. contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets) 7. contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships
8. contains any information or content that you know is not correct and current
You agree that any User Content that you post does not and will not violate third- party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license herein.
Modojo reserves the right, but is not obligated, to reject, modify and/or remove any User Content for any reason at any time. You understand that publishing your User Content on the Website is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization. Modojo is free to use any comments, information, ideas, concepts, reviews or techniques or other material you may post, upload, submit, send or otherwise provide to us (without acknowledgement or compensation) for any purpose on an unrestricted basis.
If you do post, upload, submit, send or otherwise provide content or User Content, and unless we indicate otherwise, you grant Modojo and its affiliates and sublicensees a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub- licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such User Content throughout the world in any media. You grant Modojo and its affiliates and sub-licensees the right to use the name that you submit in connection with such User Content, if they choose. You understand and agree that Modojo may feature your posts or submissions and you hereby grant Modojo permission to do so without further consideration or compensation to you. You represent and warrant that
1. you own or otherwise control all of the rights to the User Content that you post.
2. that the User Content is accurate.
3. that the User Content does not violate the intellectual property rights, including without limitation rights of publicity or privacy, or any third party.
4. you have the written consent of each and every identifiable natural person in the content to use such person’s name or likeness in the manner contemplated by the Modojo Site and Services and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
5. that use of the User Content you supply does not violate this policy and will not cause injury to any person or entity.
6. that you will indemnify and hold harmless the Modojo Parties, and the volunteer moderators (individually and collectively, the “Moderators”) for all claims arising from content you supply.
Modojo takes no responsibility and assumes no liability for any content posted by you or any third party.
You understand and agree that Modojo grants you the limited right to “post” (i.e. disclose) certain User Content and/or information from the Modojo Site and Services to third-party social networking services, and that any User Content and/or information so posted or disclosed by you is subject to the policies and restrictions of the applicable social networking service, and not Modojo.
If you believe that material on the Website is infringing your rights under U.S. copyright law, you may file a complaint of such claimed infringement with Modojo’s designated copyright agent:
By Mail to:
19 W. Prospect St
Waldwick NJ 08463
For your complaint to be valid under the Digital Millennium Copyright Act (DMCA), you must provide the following information when providing notice of the claimed copyright infringement:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
Identification of the copyrighted work that you claim has been infringed upon;
A description of where the material that you claim is infringing is located on the site; Your address, telephone number, and email address;
A statement by you that you have a good-faith belief that the use of the material in the
manner complained of is not authorized by the copyright owner, its agent, or the law;
A statement by you made under penalty of perjury, that the above information in your
notice is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
You should be aware that, under the DMCA, claimants who make misrepresentations concerning copyright infringement might be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorney’s fees.
No Warranty; Disclaimers
THE CONTENT OF THE Modojo SITE AND SERVICES, AND THE PRODUCTS WE DELIVER (INCLUDING, BUT NOT LIMITED TO, GAMES AND OTHER THIRD PARTY CONTENT) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE.Modojo, ITS SUPPLIERS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND ABOUT THE Modojo SITE AND SERVICES AND ANY CONTENT PROVIDED IN CONNECTION THEREWITH. Modojo, ITS SUPPLIERS AND LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE Modojo SITE AND SERVICES, FOR ANY FAILURES, DELAYS, OR INTERRUPTIONS IN THE DELIVERY OF ANY CONTENT CONTAINED ON THE Modojo SITE AND SERVICES, FOR ANY LOSSES OR DAMAGES ARISING FROM THE USE OF THE Modojo SITE AND SERVICES, OR FOR ANY CONDUCT BY USERS OF THE Modojo SITE AND SERVICES. TO THE FULL EXTENT PERMISSIBLE BY LAW, Modojo, ITS SUPPLIERS AND LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES ABOUT THE Modojo SITE AND SERVICES AND THE GAMES WE DELIVER, INCLUDINGWARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE Modojo SITE AND SERVICES IS ACCURATE, COMPLETE, OR CURRENT. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE Modojo SITE AND SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE Modojo SITE AND SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE Modojo SITE AND SERVICES AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST Modojo, ITS SUPPLIERS AND LICENSORS, FOR DISSATISFACTION WITH THE Modojo SITE OR SERVICES IS TO STOP USING THE Modojo SITE AND SERVICES.
Modojo reserves the right to do any of the following, at any time, without notice:
1. to modify, suspend or terminate operation of or access to the Modojo Site and Services, or any portion thereof, for any reason.
2. to modify or change the Modojo Site and Services, or any portion thereof, and any applicable policies or terms.
3. to interrupt the operation of the Modojo Site and Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
Limitation of Liability
EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL THE Modojo PARTIES, OR ANY OF THEM, BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND AND HOWEVER CAUSED, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH ANY OR ALL OF THE Modojo SITE AND SERVICES OR ANY THIRD PARTY CONTENT PROVIDED IN CONNECTION THEREWITH, OR THE USE OR PERFORMANCE OF ANY PRODUCTS (INCLUDING, BUT NOT LIMITED TO, GAMES) OR THE INFORMATION ON OUR WEBSITE. IN NO EVENT SHALL THE Modojo PARTIES, OR ANY OF THEM, BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR ANY DAMAGE OF ANY KIND TO YOUR MOBILE DEVICE, GAME CONSOLE, OR OTHER EQUIPMENT ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY GAMES. WHILE Modojo WILL MAKE A REASONABLE EFFORT TO RETURN ANY CUSTOMER’S PROPERTY IT RECEIVES INADVERTENTLY, Modojo WILL NOT BE LIABLE FOR ANY LOSSES OF OR DAMAGE TO SUCH PROPERTY. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
You agree that the provisions contained in this section will survive any termination or expiration of this Agreement and/or your account, or of discontinuation of all or any portion of the Modojo Site and Services.
You agree to defend, indemnify and hold harmless the Modojo Parties and the Moderators from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from or related to:
1. your use of and access to the Modojo Site and Services and any third party content provided in connection therewith, including any data or content transmitted or received by you
2. your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties contained herein
3. your violation of any third-party right, including without limitation any right of privacy or intellectual property rights
4. your violation of any applicable law, rule or regulation
5. any claim or damages that arise as a result of any of your User Content or any content that is submitted via your account
6. any other party’s access and use of any portion of the Modojo Site and Services with your unique username, password or other appropriate security code
You agree that the provisions contained in this section will survive any termination or expiration of this Agreement and/or your account, or of discontinuation of all or any portion of the Modojo Site and Services.
Any claim or dispute between you and Modojo that arises in whole or in part from all or any portion of the Modojo Site and Services or otherwise in connection with this Agreement (a “Dispute”) shall be decided exclusively by binding arbitration as set forth in this section, and not by courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision and that you and Modojo are each waiving the right to a trial by jury. YOU AND Modojo AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
If you elect to seek arbitration in connection with a Dispute, you must first send to Modojo, by certified mail, a written notice of the claim (“Notice”) to the Modojo address set forth at the end of this Agreement. If Modojo elects to seek arbitration in connection with a Dispute, it will send, by certified mail, a written Notice to the address used for your Modojo account.
A Notice, whether sent by you or by Modojo, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Modojo and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or Modojo may commence an arbitration proceeding or file a claim in small claims court.
During the arbitration, the amount of any settlement offer made by Modojo or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after Modojo receives Notice that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to Modojo at the address set forth at the end of this Agreement. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless Modojo and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US$10,000 or less, Modojo agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Modojo’s last written settlement offer made before an arbitrator was selected (or if Modojo did not make a settlement offer before an arbitrator was selected), then Modojo will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
Modojo may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Modojo Site and Services, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Modojo’s rights or property, or the rights or property of visitors to or users of the Modojo Site and Services, including Modojo’s customers. Modojo reserves the right at all times to disclose any information that Modojo deems necessary to comply with any applicable law, regulation, legal process or governmental request. Modojo may also disclose your information when Modojo determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
You agree that Modojo may, in its sole discretion and without prior notice, terminate your access to the Modojo Site and Services, for cause, which includes but is not limited to
1. requests by law enforcement or other government agencies
2. a request by you (self-initiated account deletions)
3. discontinuance or material modification of the Modojo Site and Services or any portion thereof
4. unexpected technical issues or problems.
You agree that: the Modojo Site and Services shall be deemed
1. solely based in California
2. a passive service that does not give rise to personal jurisdiction over Modojo, either specific or general, in jurisdictions other than California
This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Modojo without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Modojo’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
You may not export or re-export any content or any copy or adaptation of such content, or any product or service offered on the Modojo Site and Services, in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
If any provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best accomplishes the intent of the terms of this Agreement, so that the Agreement shall remain in full force and effect. This Agreement constitutes the entire agreement between you and Modojo with respect to your use of the Modojo Site and Services, and any and all other written or oral agreements or understandings previously existing between you and Modojo with respect to such use are hereby superseded and cancelled.
To Contact Modojo
Attn: Vice President, Customer Service Modojo, Inc.
19 W. Prospect St
Waldwick NJ 08463