This agreement (the "Agreement") is entered into by and between you ("you") and Mochi Media, Inc. ("Mochi Media") regarding your use of all aspects of Mochi Media services. By using the Mochi Ads Service, you consent to be bound by these terms and conditions. For clarity, these terms and conditions apply only to participants in the Mochi Ads Service. Unless otherwise explicitly specified, all non-Mochi Ads Services offered by Mochi Media are governed by the Mochi Media Terms of Service
1.0 The Service
Mochi Media, Inc.. (“Mochi Media”) has developed www.mochimedia.com (the “Website”) and the Mochi Ads service as a computer online service that provides online game-related services to users who develop and publish games (collectively, the “Mochi Ads Service”). The Service is accessible to you through a personal computer, or other access device, via the Website using a communications connection (e.g., modem and telephone line) using the software made available to you thorough Mochi Ads (“Mochi Ads Software”) and the guidelines provided on the Website (the “Software Guidelines”). Mochi Media reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Mochi Media shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.
2.0 Modifications to this Agreement
By using the Service, you represent and warrant that:
- (a) either you are at least 18 years of age or older and you have legal capacity to agree to this terms and conditions; you are between the ages of 13 and 17 and you have legal capacity to agree to these terms and conditions because your parent or legal guardian has authorized you to do so; or you are an individual entering this agreement on behalf of an entity, and you are authorized to bind the entity to this agreement;
- (b) all registration information you submit is accurate and truthful;
- (c) you will maintain the accuracy of such information; and
- (d) your use of the Service does not violate any applicable law or regulation.
Your account, profile, and all associated Content (as defined below) may be deleted and your membership may be terminated without warning if Mochi Media believes that you are in breach of any of the foregoing representations and warranties. MOCHI MEDIA RESERVES THE RIGHT TO REFUSE PARTICIPATION TO ANY APPLICANT OR USER AT ANY TIME IN ITS SOLE DISCRETION.
4.0 Service Access
4.1 Subject to your compliance on a continuing basis with all of the terms and conditions of this Agreement, Mochi Media hereby grants you permission to use the Service only as set forth in this Agreement, and provided that:
- (a) You will be responsible for obtaining or providing all connectivity and computer equipment or other access devices necessary to access the Service;
- (c) you will not copy or distribute any part of the Website or Service in any medium without Mochi Media's express authorization;
- (d) you will not alter or modify any part of the Website or Services other than as expressly authorized;
- (e) you will not circumvent, disable, violate or attempt to violate, or otherwise interfere with the security or integrity of the Website or Service, the proper operation of the Website or Service, or interfere with any activity being conducted on the Website or Service;
- (f) you will not link to the Website without Mochi Media's prior written consent;
- (g) you will not post content or items in an inappropriate category or areas on the Site;
- (h) you understand that Mochi Media may, in its sole discretion, cancel any offer or remove any Content (as defined below) posted on Mochi Media if it believes there is evidence supporting violation of these terms;
- (i) you will not distribute or post spam, chain letters, pyramid schemes, viruses or any other technologies that may harm Mochi Media, or the interests or property of Mochi Media users;
- (j) you will not harvest or otherwise collect information about Content, or users, including email addresses, without their consent;
- (k) you will be responsible for withholding, filing, and reporting all taxes (except MOCHI MEDIA’s U.S. income taxes), duties and other governmental assessments associated with your use of the Service;
- (l) you agree not to use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Service in a manner that sends more request messages to the Mochi Media servers in a given period of time than a single human can reasonably produce in the same period by using a conventional on-line web browser;
- (m) you agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service for any commercial solicitation purposes;
- (n) you agree that your Content both will not contain restricted or password only access pages or hidden pages or images; and
- (o) you will not violate any laws, third party rights, or our policies;
Mochi Media reserves the right in its sole discretion to block access or discontinue services to offenders, and to investigate and take appropriate legal action against anyone who, in Mochi Media's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities.
4.2 Account, Password and Security. You will receive a password and account designation upon completing the Service’s registration process. You may never use another's account, username or password without permission. When creating your account, you must provide accurate and complete information. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Mochi Media of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Mochi Media shall not be liable for any loss or damage arising from your failure to comply with this Section or any use of your password or account whether authorized by you or not. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Mochi Media immediately of any breach of security or unauthorized use of your account. While you may be required to expressly accept or reject these Terms of Service when you register; you agree that any requirement that you do so does not in any way vitiate your assent to comply with the Terms of Service. Although Mochi Media will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Mochi Media or others due to such unauthorized use.
4.3 Links and Frames. The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Your use of other sites or resources are governed by terms on or related to such sites or resources. Use of such sites or resources is at your own risk. Because Mochi Media has no control over such sites and resources, you acknowledge and agree that Mochi Media is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Mochi Media shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
5.0 Intellectual Property Rights
5.1 Content. The content on the Website and available through the Service, including without limitation, the games, text, software, scripts, graphics, files, images, photos, sounds, music, videos, advertisements, interactive features and the like (collectively "Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Mochi Media, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Mochi Media reserves all rights not expressly granted in and to the Service and the Content. You agree to not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any other purposes whatsoever any Content, including, but not limited to, image, audio, and visual content, Marks, third party User Content, or other proprietary rights not owned by you in violation of this agreement. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.
5.2 Mochi Ads Software and Content. The Mochi Ads Software is owned by or licensed to Mochi Media. Mochi Media grants you a limited, revocable, non-exclusive, license to redistribute the Mochi Ads Software and Content available on the Open Feed solely in conjunction with the Service consistent with this Agreement and the Guidelines. You may not sublicense, modify, resell, redistribute, reverse engineer or otherwise manipulate the Mochi Ads Software or Service. Except as expressly provided for in this Section, you are not granted any other rights, title or interest in the Mochi Ads Software or Service. You shall not copy any Mochi Ads Software or Content except as set forth herein. Any copy of the Content, Mochi Ads Software or Service that you make must contain the same copyright and other proprietary notices that appear on or in the Mochi Ads Software or Service. If you are a copyright owner or an agent thereof and believe that Content infringes upon your copyrights, you may submit a notification pursuant to our DMCA Policy.
6.1 This Agreement shall remain in full force and effect while you use the Service. You may terminate your use of the Service at any time by following the instructions on the Website. You agree that Mochi Media, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any User Submissions within the Service, for any reason or no reason, including, without limitation, for lack of use or if Mochi Media believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Mochi Media may also in its sole discretion, for any reason or no reason and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Mochi Media may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Mochi Media shall not be liable to you or any third-party for any termination of your access to the Service.
7.1 Overview. Mochi Media provides an optional program (the “Mochi Ads Advertising Program”) by which game developers can incorporate software instructions to allow Mochi Media to insert advertisements (“Ads”) from advertisers (“Advertisers”) into the Mochi Ads Games. You acknowledge that Mochi Ads Games may contain Ads.
Mochi Media provides an optional program (the “Mochi Ads Publisher Program”) by which publishers, included but not limited to those who own websites, downloadable applications, and internet tools used to distribute content, can download a feed of the Mochi Ads Games that they may publish, feature, distribute, or display on their site or within their products.
7.2 Participation. Participation is subject to approval from Mochi Media and/or its Ad Partners. Mochi Media reserves the right to deny participation to or revoke its prior approval of any user in its sole discretion.
7.3 Prohibited Uses. You shall not yourself, nor authorize or enable any third party to, (i) directly or indirectly generate queries, impressions or clicks on any Ad(s) through any manual, automated, or otherwise fraudulent means, including but not limited to repeated clicks, the use of robots or other automated query tools, (ii) edit or modify the information contained in any Ad, including but not limited to the presentation or the URL or URL mapping that may exist into the Ad unit, or (iii) run the Ad through any additional service that rewrites the URLs contained in the Ad. You agree that any violation of (or attempt to violate) the foregoing is a material breach of this Agreement and that Mochi Media may suspend your account and pursue legal remedies against you. A breach of this Agreement will result in your forfeiture of any payment due.
7.4 Termination. You may terminate participation in the Mochi Ads Publisher Program at any time by following the instructions to terminate your account presented to you at the mochiads.com website. Upon your termination of the Mochi Ads Publisher Program, you may in certain cases be prohibited from re-enrolling in the Mochi Ads Publisher Program for a period of time based on agreements with Advertising Partners or Developers. Mochi Media, in its sole discretion, may terminate your participation in some or all of the Mochi Ads Publisher Program or the Mochi Ads Advertising Program at any time for any reason with or without notice.
7.5 No Guarantee. Mochi Media makes no guarantee as to the level of impressions or clicks on any Ad, or the amount of any payment to be made to you under this Agreement. Mochi Media makes no guarantee as to click-thru performance for advertising in Flash games, including but not limited to all current and future versions of Flash as compared to similar Ads placed in HTML pages.
7.6 Payment. In connection with the Mochi Ads Advertising Program, Mochi Media sells advertisements (“Ads”) that generate revenue on the basis of the number of valid revenue-generating Ad impressions, clicks, or transactions displayed and confirmed in the Mochi Ads Game(s) as determined by Mochi Media and its Ad Partners. In response to Ads viewed in the Mochi Ads Game(s), Mochi reserves variable percentages it receives for payments to participants in the Mochi Ads Advertising Program and/or the Mochi Ads Publisher Program net of all payment defaults, chargebacks, bad debt, sales commissions, discounts, refunds, and processing fees related to the Ads and Ad payments that Mochi Media may incur in operating the Mochi Ads Advertising Program and/or the Mochi Ads Publisher Program (the “User Revenue Share”). The net amount of each User Revenue Share shall be determined in Mochi’s sole discretion based on various factors, including, but not limited to the number of Ads viewed in the Mochi Ads Game(s) played on your publisher site, the type of Ads viewed in the Mochi Ads Game(s) played on your publisher site, the time the Ads are served, and from where the Ad request is received. Mochi Media reserves the right to change the User Revenue Share at any time.
- (a) User Revenue Share Payments will be made to you using (i) PayPal, which requires that you give Mochi Media a valid email address, which will not be validated by any automated means or (ii) check. If you are not a registered member of PayPal when you enroll in the Mochi Ads Advertising Program or Mochi Ads Publisher Program, PayPal should send you an email with instructions for how to collect your payment. If this payment is not collected within 30 days of PayPal sending the email, the payment will be forfeited and returned to Mochi Media. Upon your request, Mochi Media may elect, in its sole discretion, to pay you by check or electronic funds transfer. Notwithstanding any provision herein to the contrary, Mochi Media shall not be obligated to make any payment to you in connection with the Mochi Ads Advertising Program or the Mochi Ads Publisher Program unless and until Mochi Media has received corresponding payment from its Advertisers or Ad Partners. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your Mochi Ads account and your PayPal account.
- (b) Mochi Media shall be authorized at any time to chargeback any fee paid to you in the event an Advertiser or Ad Partner whose Ads have been displayed in the Mochi Ads Games assesses a chargeback against Mochi Media or defaults on any amounts owed to Mochi Media for such Ads. Subject to the foregoing, payments for Ads sourced by Mochi Media directly from Advertisers will be made to you within 90 days of the end of the month in which such Ads were displayed in the Mochi Ads Games. Likewise, subject to the foregoing, payments for Ads sourced by Mochi Media from Ad Partners will be made to you within 45 days of the end of the calendar quarter in which Mochi Media received payment for such Ads displayed in the Mochi Ads Games played on your publisher site.
- (c) Mochi Media reserves the right to make payments to you only when your earned balance is greater than $100.00 USD. If you terminate your participation in the Mochi Ads Publisher Program and your earned revenue is less than $100.00 USD, you will be paid the balance less any applicable transaction fees and reasonable reserves for chargebacks, credits, and payment defaults.
- (d) If you dispute any payment made in connection with the Mochi Ads Publisher Program, you must notify Mochi Media in writing within thirty (30) days of any such payment. Failure to so notify Mochi Media shall result in the waiver by you of any claims related to such disputed payment. Payments shall be calculated solely based on records maintained by Mochi Media. No other measurements or statistics of any kind shall be accepted by Mochi Media or have any effect under this Agreement. Mochi shall not be liable for any payment based on (i) any fraudulent Ad displays generated by any person, robot, automated program or similar device or for fraudulent impressions similarly generated on any advertisements, as reasonably determined by Company; (ii) Ad displays commingled with a significant number of fraudulent impressions or fraudulent clicks described in (i) above; or (iii) any breach of this Agreement by you.
- (e) You agree to pay all applicable taxes or charges imposed by any government entity in connection with you use of the Mochi Ads Publisher Program.
7.7 Copyrights. Notwithstanding anything to the contrary, all Ads, even if displayed within the Mochi Ads Games played on your publisher site, shall and do remain copyright of the advertiser. You obtain no rights in any Ads by virtue of utilizing the Service.
8.0 Disclaimer of Warranty
TO THE FULLEST EXTENT PERMITTED BY LAW, MOCHI MEDIA, ITS SUPPLIERS, AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NEITHER MOCHI MEDIA NOR ITS SUPPLIERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, MAKES ANY WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE, CONTENT, OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE, AND NONE ASSUMES ANY LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE, ADS, OR CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; AND/ OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. MOCHI MEDIA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND MOCHI MEDIA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. THE SERVICE IS CONTROLLED AND OFFERED BY MOCHI MEDIA FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. MOCHI MEDIA MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
9.0 Limitation of Liability
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE, CONTENT AND MOCHIADS SOFTWARE IS AT YOUR OWN RISK. IN NO EVENT SHALL MOCHI MEDIA, ITS SUPPLIERS, AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOST PROFITS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS SOLELY AND ENTIRELY WITH YOU. THESE LIMITATIONS SHALL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. YOU SPECIFICALLY ACKNOWLEDGE THAT MOCHI MEDIA SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS SOLELY AND ENTIRELY WITH YOU. IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID UNDER THIS AGREEMENT BY MOCHI MEDIA TO YOU. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
You agree to defend, indemnify and hold harmless Mochi Media, and its third party developer partners, subsidiaries, affiliates, and their directors, officers, agents, members, shareholders, co-branders or other partners, employees, and Ad Partners from any liabilities, losses, actions, damages, claims, obligations, costs, expenses or demands (including, but not limited to attorneys’ fees, costs and expenses) arising out of (a) your use of the Service, (b) your connection to the Service, (c) your violation of any term of this Agreement or your representations and warranties set forth above, (d) your violation of any rights of another, including without limitation any copyright, property, or privacy right, or (e) your failure to perform your obligations hereunder.
11.0 Third Party Beneficiaries
You agree that any Ad Partner that supplies any Ad or any distribution partner (which, for clarity shall not mean You) that distributes Mochi Ads Game(s) shall be third party beneficiary with respect to this Agreement, and that any such Ad Partner or distribution partner shall have the right to enforce such provisions in its own name as if the Ad Partner or distribution partner were Mochi Media. You further agree that you shall not raise lack of privity as a defense against any Ad Partner or distribution partner seeking to enforce the provisions of this Agreement.
You agree that Mochi Media may use your name, logo, and the title(s) and logo(s) of your Game(s) in presentations, marketing materials, customer lists, financial reports and Web site listings of customers.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. In the event of a conflict between the terms of this Agreement and any other terms set forth in the Website or Service (including without limitation, the terms of the FAQ sections of the Website) the terms of this Agreement shall supersede and control. This Agreement shall be construed in accordance with the laws of the State of California, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Each provision of this Agreement is intended to be severable. If any term or provision hereof shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity and enforceability of the remainder of this Agreement. You may not assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without Mochi Media’s prior written consent, and any attempt to do so without that consent will be void. Mochi Media may assign this Agreement to a successor in interest in connection with a change of control, a sale of substantially all of its assets, or a merger, acquisition, public offering or other reorganization transaction. The section headings used herein are for convenience only and shall not be given any legal import. The parties shall attempt to resolve any controversy or claim arising out of or relating to the creation, performance, termination and/or breach of this Agreement in the first instance through good faith negotiation or mediation between the parties. Any claims or disputes arising from or related to this Agreement shall be resolved through binding arbitration under the Federal Arbitration Act, 9 U.S.C. § I et. seq. via the American Arbitration Association located in San Francisco, California, U.S.A. and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, and solely with respect to breaches or threatened breaches of this Agreement, either party to this Agreement may seek a temporary restraining order and injunction to protect its legal rights or interests, without the need to post bond in any court having jurisdiction.
If you have any questions regarding this Agreement or if you wish to request any information from Mochi Media, please contact Mochi Media at the following address:Mochi Media, Inc.
611 Mission Street, 5th Floor
San Francisco, CA USA 94105
Last updated: May 13, 2008