Terms of Service

 

Last updated: June 1, 2017

 

These Terms of Service form a valid, binding contract between you, on the one hand, and Subscriber and SEMBA (both defined below), on the other hand. SEMBA and Subscriber are willing to grant you rights to establish an account and use the Mobile Application (as defined below) only upon the condition that you accept all of the terms contained herein.

 

This Agreement between you and SEMBA and/or Subscriber is also subject to SEMBA’s Privacy Policy, which can be viewed at SEMBA’s website at www.sembatechnologies.com.

 

Definitions

The defined terms in these Terms of Service shall be as follows:

  • “Content” means any videos, information, text, graphics, photos, descriptions, prices or other materials uploaded, downloaded or appearing on the Mobile Application.
  • “End User” means you, a customer of Subscriber who utilizes the Mobile Application to shop for and purchase products from Subscriber, as well as to take any related actions, including, without limitation, paying invoices in respect of such products.
  • “Mobile Application” means the mobile application and SEMBA’s cloud-based mobile application software, including its application programming interface, that allows enterprises to tailor the functionalities of the mobile application templates for the Authorized Platforms, including any updates, modification, bug fixes, upgrades, enhancements and other modifications thereto.
  • “SEMBA” means SEMBA Mobile, Inc. (d/b/a SEMBA Technologies), a Delaware corporation.
  • “Subscriber” means “you”, SEMBA’s Customer.
  • “Terms” means these Terms of Service.

 

Application of these Terms

These Terms of Service govern your use of the Mobile Application. Any usage of the word “you” or “your” in these Terms of Service is a reference to you as an End User.

As a condition to your use of the Mobile Application, you agree to comply with these Terms of Service. Your use of the Mobile Application is at all times subject to these Terms of Service and all applicable local, state, national and international laws, rules and regulations. Please read these Terms of Service carefully. If you do not agree to these Terms of Service, stop using the Mobile Application. If you violate any of these Terms of Service, your account will be terminated.

 

Your Representations as an End User

You represent and warrant to SEMBA and Subscriber that: (a) you are of competent age and have the requisite authority (including from your company, organization, government or legal entity if you are using the Mobile Application on its behalf) and capacity to form a binding contract; (b) all registration information you submit is accurate and truthful to the best of your knowledge; (c) you will maintain the accuracy of such information; and (d) you are legally permitted to use and access the Mobile Application and you take full responsibility for the selection and use of the Mobile Application.

 

Modification of Terms

SEMBA and Subscriber reserve the right to modify these Terms of Service at any time. All changes to these Terms of Service will be posted on SEMBA’s website at sembatechnologies.com and will immediately take effect upon posting. Your continued use of the Mobile Application constitutes your acceptance to the modified Terms of Service.

 

Personal Information and Privacy/Minors

Any information you make available to SEMBA and/or Subscriber while utilizing the Mobile Application is subject to SEMBA’s Privacy Policy, which governs collection and use of information, including personally identifiable information. By using the Mobile Application, you consent to the collection and use of information as set forth in the SEMBA Privacy Policy.

SEMBA and Subscriber do not knowingly collect or solicit personally identifiable information from any person under the age of 18. No one under the age of 18 shall register for, or use, the Mobile Application or send any personal information to SEMBA.

 

Passwords

You are responsible for safeguarding the password or credentials that you use to access the Mobile Application and for any activities or actions performed under your account. You are encouraged to use passwords containing a combination of upper and lowercase letters, numbers and symbols. Always log out of your account when you are done using it.

 

Content

All Content is the sole responsibility of the person who originated such Content.

SEMBA is not the source of, does not verify or endorse and takes no responsibility for Content created by parties other than SEMBA. Subscriber attempts to be as accurate as possible with the Content it makes available through the Mobile Application. However, Subscriber does not represent and warrant that such Content and information, including, without limitation, product descriptions and prices, are complete and accurate. If a price is different than the price displayed, Subscriber will inform you before completing your order and you will have the opportunity to cancel your order. If a product description varies materially from the actual product you receive, your sole and exclusive remedy is to contact Subscriber to initiate a return of the item, which will be governed by the return and refund policies of Subscriber.

SEMBA and Subscriber have no duty to take any action regarding the following: (a) the quality or accuracy of Content displayed through the Mobile Application; (b) what Content you access via the Mobile Application; (c) how you may interpret or use the Content; or (d) what actions you may take as a result of having been exposed to the Content.

You release SEMBA and Subscriber from all liability for Content acquired or used by you through the Mobile Application.

Under no circumstances shall SEMBA and/or Subscriber be liable in any way for any Content, including, without limitation, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Mobile Application. You irrevocably release and forever discharge SEMBA and Subscriber and each of their affiliates (together, the “Released Parties”), from any and all actions, causes of actions whether in law or equity, claims, damages, liabilities and demands, whether absolute or contingent and of any nature whatsoever which you now have or hereafter may have against the Released Parties or their respective successors and assigned regarding the Content, including without limitation, regarding how the Released Parties, directly or indirectly, use the Content.

 

Prohibited Activities

While accessing the Mobile Application, you may not (a) access, tamper with, or use non-public areas of the Mobile Application, SEMBA’s computer systems, or the technical delivery systems of SEMBA’s own providers; (b) probe, scan or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (c) access or search or attempt to access or search the Mobile Application by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by SEMBA (and only under the terms and conditions, which apply thereto), unless you are granted the right to do so in a separate written agreement with SEMBA; (d) forge any TCP/IP packet header or any part of the header information in any email or posting, or use the Mobile Application to send altered, deceptive or false source-identifying information; (e) interfere with, or disrupt, (or attempt to do so) the access of any other End User, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Mobile Application, or scripting the creation of Content in such a manner so as to interfere with or create an undue burden on the Mobile Application; (f) use any robot, spider, crawler, scraper or other automated means or interface not provided by SEMBA to access the Mobile Application or to extract data; or (g) reverse engineer any aspect of the Mobile Application or do anything that might discover source code or bypass or circumvent employment measures to prevent or limit access to any area, content or code of or to the Mobile Application.

 

Intellectual Property and Data Security

SEMBA owns all intellectual property rights to the Mobile Application, including, without limitation, to the design, artwork, images, code, icons, photographs, functionality, and related documentation (“SEMBA IP”). SEMBA retains all right, title and interest in the Mobile Application and the SEMBA IP. You may not copy, reproduce, republish, frame, download, transmit, display, modify, license, sublicense, loan, lease, reverse engineer, or exploit, in whole or in part, any part of the Mobile Application or SEMBA IP. SEMBA may, at SEMBA’s discretion, disable and/or terminate the accounts of End Users who infringe the intellectual property rights of SEMBA, Subscriber or others. If you believe that your intellectual property has been copied or used in a way that constitutes copyright infringement, notify us immediately at info@sembatechnologies.com.

 

Termination of Use

These Terms shall remain in full force and effect while you use the Mobile Application. You may terminate your use of the Mobile Application at any time. SEMBA or Subscriber may terminate or suspend your access to the Mobile Application or your account membership at any time.

 

Effect of Termination

Upon termination of your account, your right to access and use the Mobile Application shall immediately cease. All provisions of these Terms which, by their nature, should survive termination, shall survive termination, including, without limitation, provisions with respect to ownership of SEMBA IP, warranty disclaimers, indemnification and limitations of liability.

 

Indemnification

By agreeing to these Terms, you agree to indemnify, defend and hold harmless SEMBA and Subscriber, its and their affiliates, directors, officers, managing members, shareholders, employees, affiliates, licensors, subscribers and suppliers from and against all complaints, charges, claims, damages, losses, costs, liabilities, and expenses (including attorneys’ fees) due to, arising out of, or relating in any way to (a) use of the Mobile Application; (b) any Content posted, uploaded, used, distributed, stored, or otherwise transmitted by you through the Mobile Application; (c) any violation by you of these Terms; or (d) a violation by you of the rights of another party.

 

International Use of the Mobile Application

The Mobile Application is hosted in the United States. If you are accessing the Mobile Application from the European Union, Asia or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States law, be advised that through continue use of the Mobile Application, which is governed by United States law, you are transferring your information, including any personally identifiable information you submit through the Mobile Application, through the United States and you consent to such transfer.

 

Third Party Websites

Neither SEMBA nor Subscriber is responsible for the practices employed by any websites or services linked to or from the Mobile Application, including the information or content contained within such websites or provided via such service. Please remember that when you use a link to go from using the Mobile Application to another website or service, neither these Terms nor SEMBA’s Privacy Policy apply to those third-party websites or services. Your browsing and interaction on any third-party website or service is subject to that third party’s own rules and policies.

 

Disclaimer of Warranties

YOUR ACCESS TO AND USE OF THE MOBILE APPLICATION IS AT YOUR OWN RISK. YOU AGREE THAT THE MOBILE APPLICATION IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. SEMBA AND SUBSCRIBER MAKE NO WARRANTY, EXRESS OR IMPLIED, WITH RESPECT TO THE MOBILE APPLICATION OR ANY PRODUCT, SERVICE, OR MATTER WHATSOEVER (OTHER THAN THOSE PROVIDED BY SUBSCRIBER IN CONNECTION WITH ITS SALE OF PRODUCTS OR SERVICES), AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. SEMBA AND SUBSCRIBER DO NOT WARRANT THE RESULTS OF THE USE OF THE MOBILE APPLICATION, AND YOU ASSUME ALL RISKS AND RESPONSIBILITY WITH RESPECT THERETO. SEMBA AND SUBSCRIBER make no warranty and disclaim all responsibility and liability for: (A) the completeness, accuracy, availability, timeliness, security or reliability of the MOBILE APPLICATION AND any Content; (B) any harm to your computer system, loss of data, or other harm that results from access to or use of the MOBILE APPLICATION AND any Content; (C) the deletion of, or failing to store or to transmit, any Content and other communication maintained by the MOBILE APPLICATION; or (D) whether the MOBILE APPLICATION will meet your requirements or be available on an uninterrupted, secure or error-free basis.

 

Limitation on Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER SEMBA OR SUBSCRIBER OR ANY OF EACH OF THEIR AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT IN ANY MANNER WHATSOEVER FROM YOUR USE OF THE MOBILE APPLICATION, EVEN IF YOU ADVISE SEMBA OR SUBSCRIBER OF THE POSSIBILITY OF SUCH DAMAGES.

 

Miscellaneous

If you, SEMBA or Subscriber fail to enforce or exercise any right provided in these Terms of Service, such failure shall not be construed as a waiver of such right or any future rights.

Should any provisions of these Terms be found invalid or unenforceable by a court of governing body of competent jurisdiction, the remaining provisions of these Terms shall remain in effect.

Any dispute between you and SEMBA and/or Subscriber shall be governed by these Terms of Service and the laws of the State of Texas, without effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.

These Terms of Service and SEMBA’s Privacy Policy constitute the entire agreement between SEMBA and you as an End User, and supersede any and all previous agreements between you and SEMBA and/or Subscriber with regard to the subject matters covered.

These Terms of Service create an agreement solely between SEMBA, Subscriber and you. These Terms of Service do not create any third-party beneficiary rights.

In SEMBA or Subscriber’s sole discretion, and for any reason at all, either SEMBA or Subscriber may prohibit you or any other party whatsoever from using the Mobile Application, and shall not be liable for any damage resulting from such prohibition. The form and nature of the Mobile Application may change from time to time without prior notice.