SERVICE AGREEMENT FOR MDIGGER® BETA (TERMS OF SERVICE)

(Last modified February 19, 2008)

PLEASE READ THE FOLLOWING SERVICE AGREEMENT CAREFULLY. BY CLICKING ON THE BUTTON LABELED "I ACCEPT" THAT IS DISPLAYED BELOW YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SERVICE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. THUS BY CLICKING THE “I ACCEPT” BUTTON YOU ACKNOWLEDGE THAT YOU ARE ENTERING INTO A LEGAL BINDING CONTRACT. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION THAT REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTIONS OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE MANDATORY LAW.

IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, CLICK THE BUTTON LABELED "DO NOT ACCEPT".

Welcome to mDigger® Service, which is brought to you by mDigger, Inc.

1. WHAT THESE TERMS OF SERVICE COVER

These Terms of Service constitute a legal contract being entered into by and between you (“you”) and mDigger, Inc. (“we”, “us” or “our”), regarding your use of all aspects of mDigger® Beta Service (the “Service”). By using this Service, you are agreeing to be bound by the following terms and conditions for use of the Service, including any subsequent amendments and any rules or policies, including our Privacy Policy (available at http://www.mdigger.com/privacy.aspx) that may be published on the mDigger® Website (collectively, "Terms of Service"). If you do not unequivocally consent to the terms and conditions set forth in this Agreement, you may not access or use mDigger® Service.

Please note that we do not provide warranties for the service. This agreement also limits our liability. These topics are discussed in sections 17 and 18, and we ask you to read them carefully.

2. DESCRIPTION OF SERVICE

mDigger® provides users with access to different Internet sources from diverse types of devices ranging from smart phones, PDA’s and Ultra Mobile PC’s to desktop computers. By using the service you will be able to receive information in a manner effective for your device and in a format adapted for presentation and usage on your device (subject of course to the device types and platforms currently supported by mDigger).

Please note that if you wish to upgrade to any of mDigger’s existing or future premium services, you will need to sign a separate agreement.<.p>

mDigger® Beta Service consists of two main components: (1) mDigger servers and (2) a program you install onto your device or access via the Web, called mDigger Reader. Our servers contain a catalog of applications called “mClips” that are used for defining and extracting selections of information from Internet sources. Each mClip contains the rules for selecting information from a particular source and instructions on how to transform this information’s format into one that is compatible for presentation and use on destination devices supported by mDigger. All mClips link back to their original sources.

Our server is responsible for providing devices with access to information contained within the mClips. In order to view information contained in mClips, you will need to choose the specific mClips that interest you from our online catalog and add them to your personal mDigger space. Your mDigger space contains a set of integrated and personalized information services provided by mDigger. The specific services included in your mDigger space may vary depending on mDigger’s current offerings as well as your device type and the platform on which it operates. Access to all mClips is free of charge unless otherwise indicated. You may receive updated information for all of the mClips you have selected as often as you like.

You may change your mClips selections at any time by logging in to mDigger® Service.

mDigger Reader is a program that lets you receive, view and browse information from the mClips you select from our catalog. We provide different versions of mDigger Reader for different platforms and device types.

After signing up for mDigger® Service, you may access it in one of two ways depending on your device’s platform:

(1) either directly from your device with the aid of our program, mDigger Reader, that was installed onto your device(s) or, alternatively, (2) by first using your device’s Web browser to go to the Internet address of mDigger’s web application, and then logging in.

3. WHEN YOU MAY USE THE SERVICE

In order to use the full functionality of mDigger® Service, you must first complete the sign-up process. The sign-up process consists of the following steps: (1) registering with the mDigger Website, (2) reviewing and accepting the terms and conditions of this Service Agreement and our Privacy Policy, (3) selecting mClips that interest you from our catalog, and, (4) depending on your device’s platform, by then installing the version(s) of our Software that is/are appropriate for your specific device(s) including reviewing and accepting the terms and conditions of the license agreement for each version of Software installed. If your mobile device can use our web application (this applies to Apple iPhone and iPod Touch, for instance), then you skip this step and use the Service with aid of your mobile device’s Web browser as described in point 2 above.

4. USER REGISTRATION, PASSWORD, SECURITY & USER INFORMATION

4.1 In order to register with mDigger® Service you need only to provide us with your mobile telephone number or email address (which becomes your user ID) and create a password. Once you do this, an account will be established for you. You are responsible for maintaining the confidentiality of your user ID and password and for all activity that takes place with your account. Only you may use your account. You may not authorize any third party to access and/or use the service on your behalf. Furthermore, you may not transfer or sell your account to another party.

4.2 If you become aware of any unauthorized use of your password or account, you agree to notify us immediately. We are not liable for any losses incurred in cases of illegal use of user ID’s and passwords by other parties.

4.3 From time to time, we may request that you participate in a survey about the Service or we may offer you additions or upgrades to the existing Service. In such cases we may ask you to provide certain information about yourself including general demographic information or information about preferences as they relate to the Service. Your decision to provide us with the requested information is voluntary. We retain the right to use any information you provide us with at our discretion and in accordance with our Privacy Policy at: http://www.mdigger.com/privacy.aspx.

5. HOW YOU MAY USE THE MDIGGER® SERVICE

5.1 In using the Service, you agree to:

  • abide by all local, state, national and international laws and regulations applicable to your use of the Service;
  • obey any codes of conduct, rules, usage policies or other notices we provide or post on the mDigger Website;
  • only display the content of the Service for your own personal use (i.e., non-commercial use);
  • keep your service account user ID and password secret; and
  • immediately notify us if you learn of a security breach related to the Service.

5.2 Only for personal use

You may only use the Service for personal and non-commercial use. If you wish to offer the Service to users of your own applications, websites or other services, then you must conclude a separate agreement with mDigger, Inc. For more information on how to do this, please contact us via email at: sales@mdigger.com.

6. HOW YOU MAY NOT USE THE SERVICE

6.1 In using the Service, you may not:

  • create user accounts by automated means or under false or fraudulent pretenses;
  • copy, reproduce, alter, modify, create derivative works, or publicly display any content received through the Service;
  • use the Service to increase traffic to your Website for commercial reasons unless you have concluded a separate agreement with mDigger, Inc. for commercial use of mDigger® Service. For information on how to do this, please contact us via email at: sales@mdigger.com.
  • use the Service in a way that harms us or our affiliates, resellers, distributors, and/or vendors (collectively, the “mDigger affiliates”), or any customer of an mDigger affiliate;
  • use any portion of the Service as a destination from which any unsolicited bulk messages or unsolicited commercial messages (“spam”) originate or are linked to;
  • use any unauthorized third party software or service with the Service;
  • use any automated process or service to access and/or use the Service (such as a BOT, a spider, periodic caching of information stored by the Service, or “meta-searching”);
  • use any data mining, robots, or similar data gathering and extraction methods;
  • use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Service;
  • damage, disable, overburden, or impair the Service (or the network(s) connected to the Service) or interfere with anyone’s use and enjoyment of the Service;
  • resell or redistribute the Service, or any part of the Service;
  • access or attempt to access any software or content you are not authorized to access; or
  • attempt to gain illegal access to any user ID in the mDigger® Service or the computer networks or systems relating to mDigger® Service.

6.2 You may not use any program or device software which reduces the number of users that directly or indirectly contact or are using the Service.

6.3 You may not alter copy, distribute, transfer, demonstrate, present the Service or use the Service as the basis for creating your own products, or assign or sell any information, products and services that are part of the mDigger® Service.

If you do not know whether your intended use of the Service is permissible, please contact us at sales@mdigger.com.

7. USER SUPPORT

We supply information on how to use mDigger® Service on the web pages and within the forum of the mDigger Website. If you have questions or problems concerning mDigger® Service that you are not able to resolve after reviewing the information available on the mDigger Website, please contact us at the following email address: support@mdigger.com.

8. RIGHTS & RESPONSIBILITIES RELATING TO THE SERVICE AND MCLIP CONTENT

8.1 Our Service lets you add or remove a variety of mClips to and from your personal mDigger space. All mClips derive their content from the external sources to which they link. Thus the information they provide is not the property of mDigger, Inc. unless otherwise stated. All copyrights and other intellectual property rights to mClip content belong to their legal owners.

8.2 We are not responsible for the information contained within the mClips or for the quality of the processing of this information. By providing you with access to the mClips, we neither approve nor disapprove of their content nor are we cooperating with the providers of this content.

8.3 We own and retain all intellectual property rights to mDigger® Service.

8.4 We own and retain all intellectual property rights to any mClips that we develop or have developed ourselves.

8.5 From time to time we may cooperate with third-parties (“third party Publishers”) who publish mClips in our Service. If the published mClips were not developed by us, then we do not claim any ownership rights to them. Instead, all intellectual property rights to the said mClips belong to their developers and/or the third party Publishers.

8.6 Our responsibility for mClips published on the mDigger Website by third party Publishers is limited to ensuring basic functionality of the mClip within our Service. We are not responsible for what a third party Publisher’s mClip does, for granting access to it or for the informational content resulting from it.

9. RESTRICTED ACCESS TO SOME MCLIPS

9.1 Access to certain mClips link may be restricted to persons of a certain age and older and a separate sign-up and/or age verification process may be necessary in order to add them to your personal mDigger space. 9.2 Access to certain mClips may require payment, either now or in the future. Any such payment requirements will be disclosed up front and will require your prior written acknowledgment and acceptance of separate terms of service.

9.2 Some mClips included in our Service’s catalog may have been “published” to the catalog by third party Publishers with our permission. In such cases the third party Publisher has the right (but no obligation) to establish separate sign-up and/or subscription criteria for its mClip, as well as additional terms of use, including the right to charge users for access to its mClip.

Any separate sign-up criteria and/or terms of use agreement required in such cases will be presented to you when you attempt to add the mClip to your personal mDigger space.

Depending on how the third party Publisher chooses to operate, it may or may not make its mClip available immediately after completion of the additional sign-up process and/or terms of agreement are accepted. In some cases there may be a delay until the third party Publisher processes and/or authorizes your subscription to its mClip.

If no separate criteria and/or separate terms of use are presented, then it may be assumed that the third party Publisher is providing you with access to the mClip under the existing terms and conditions contained in this Agreement.

10. RIGHT TO DISCONTINUE AVAILABILITY OF MCLIPS

In our sole discretion and without notice we reserve the right, but not the obligation, to

  1. delete any mClip from the Service and/or from your account;
  2. make modifications to any mClips available through the Service;
  3. prevent access to any mClip available through the Service;
  4. substitute one mClip for another; and
  5. add new mClips to the Service.

11. INTERNET ACCESS & WIRELESS SERVICE PROVIDERS

Our Service does not include Internet access or wireless airtime or data transfer. You are responsible for any and all charges (airtime, data transfer, Internet access, etc.) due to your wireless and/or Internet providers incurred as the result of using mDigger® Service.

12. PRIVACY

We consider your use of our Service to be private. However, we may access or disclose information about you, your account and/or the content of your communications, in order to: (1) comply with the law or legal process served on us; (2) enforce and investigate potential violations of this contract; including use of this service to participate in, or facilitate, activities that violate the law; or (3) protect the rights, property, or safety of mDigger, Inc., its employees, its customers or the public. You consent to the access and disclosures outlined in this section.

We may use technology or other means to protect the service, protect our customers, or stop you from breaching this contract. These means may include, for example, filtering to stop spam or increase security. These means may hinder or break your use of the service.

In order to provide you the service, we may collect certain information about service performance, your machine and your service use. We may automatically upload this information from your machine. This data will not personally identify you. You may read about this information collection in more detail in the Privacy Policy at: http://www.mdigger.com/privacy.aspx.

13. RIGHTS TO FEEDBACK & SUGGESTIONS

We need your feedback, comments and suggestions in order to continuously improve the services we provide you and other users. By submitting your feedback, comments and/or suggestions you must understand that we acquire all rights to use such feedback, comments and suggestions without any limitations. By submitting your feedback, comments and suggestions you simultaneously guarantee that you either directly or indirectly have the rights to do so, and allow us to do the following:

  • use, alter, copy, distribute, transfer, publish, demonstrate, execute, reproduce, license, use as a basis for creation of other products, assign or sell such feedback, comments and suggestions;
  • license to third parties unlimited rights for carrying out any of the above rights in relation to feedback, comments or suggestions.

The above includes the right to use any property rights relating to the content of feedback including the rights derived from existing intellectual property legislation in accordance with our legal jurisdiction. We are not obligated to pay for the use of materials of such feedback, comments and suggestions. We are not obligated to publish or use such materials and may delete the materials any moment at our own discretion.

14. SOFTWARE

Your use of all software received from us or accessed on the mDigger Website as part of the Service is regulated by the terms of the license or licenses that is/are presented to you for acceptance for that software. All software accessible for viewing and/or downloading on the web pages of mDigger® Service belongs to us and our suppliers and is protected by copyright law and international agreements. Any reproduction or illegal distribution of software is prohibited by law and may result in serious civil and/or criminal legal charges.

Violators will be persecuted in the strictest manner permitted by law. WITHOUT LIMITATION TO THE ABOVE, ANY COPYING OR REPRODUCTION OF SOFTWARE ON ANY SERVER OR IN ANY PLACE FOR FURTHER REPRODUCTION OR COPYING IS CATEGORICALLY PROHIBITED. We may automatically check your version of the Software. We may automatically download upgrades to the Software to your computer to update, enhance and further develop the service.

15. HOW WE MAY CHANGE THIS AGREEMENT

We may change this Agreement (Terms of Service) or delete or add features to the Service at any time and for any reason. When we do so, we will use reasonable means at our own discretion (for example a notice posted on the homepage of the mDigger Website) to provide notice of the change, including a "last modified" date on this Web page. You agree these forms of notice are reasonable and sufficient, and your continued use of the Service after notice of a change has been posted constitutes your acceptance of any changes. If you do not approve of the changes, you should cease your use of the Service. Therefore, we recommend you check this page and the mDigger Website periodically for updates to the Terms of Service.

16. TERM AND TERMINATION

This Agreement takes effect upon your acceptance of this Agreement (as evidence by you clicking on the “I Accept” button below) and remains effective for six months. You may terminate this Agreement at any time by destroying all copies of the mDigger Reader Software and Documentation in your possession. This Agreement will also automatically terminate if you fail to comply with any term or condition herein.

We may cancel or suspend your right to use the Service at any time. Our cancellation or suspension may be without cause and/or without prior notification. In addition, we may alter the conditions of this Service Agreement and the terms under which mDigger® Service is provided, at any time. Any modifications to this Agreement and the terms herein will be posted on our website when they take effect. Thus we encourage you to review our website regularly for any changes in these terms of use.

17. NO WARRANTIES

WE AND OUR AFFILIATES MAKE NO GUARANTEES OF THE APPROPRIATENESS, RELIABILITY, ACESSIBILITY, TIMLINESS OR ACCURACY OF THE INFORMATION, DATA, SOFTWARE, PRODUCTS AND SERVICES RECEIVED VIA MDIGGER® SERVICE. ALL SUCH INFORMATION, DATA, SOFTWARE, PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY TYPE OF WARRANTY IN RELATION TO THIS INFORMATION, DATA, SOFTWARE, PRODUCTS AND SERVICES INCLUDING ANY IMPLIED WARRANTIES OR GUARANTEES OF COMMERCIAL VALUE AS WELL AS GUARANTEES RELATING TO SPECIFIC PURPOSES THAT DO NOT BREACH OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS.

18. NO LIABILITY

NEITHER WE NOR OUR AFFILIATES SHALL BE DEEMED LIABLE UNDER ANY CONDITIONS FOR DIRECT, INDIRECT, PUNITIVE, ACCIDENTAL, SPECIAL, INDIRECT OR OTHER LOSSES, AS WELL AS LOSSES OF A DIFFERENT NATURE INCLUDING LOSSES RESULTING FOR THE LOSS OF USE, LOSS OF DATA OR PROFIT IN CONJUNCTION WITH THE USE OR QUALITY OF THE SERVICE’S FUNCTIONING. IN ADDITION, WE AND OUR AFFILIATES ARE NOT RESPONSIBLE FOR THE PROVISION OF SERVICES OR THE ABRUPTION IN THE PROVISION OF SERVICES FOR INFORMATION, DATA, SOFTWARE, PRODUCTS OR SERVICES RECEIVED VIA MDIGGER® SERVICE AS WELL AS FOR ANY OTHER LOSSES IN RELATION TO THE USE OF THE MDIGGER® SERVICE RESULTING FROM AN AGREEMENT, BREACH OF CIVIL LAW, NEGLIGENCE OR ANY OTHER BASIS EVEN IF WE OR OUR AFFILIATES WERE NOTIFIED OF THE POSSIBILITY OF SUCH LOSSES.

IF YOU ARE NOT SATISFIED WITH THE WAY THE SERVICE OR ANY OF ITS ELEMENTS WORKS OR WITH ANY OF THE USER TERMS AND CONDITIONS CONTAINED HEREIN, THEN YOUR ONLY RECOURSE IS TO DISCONTINUE USE OF MDIGGER® SERVICE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

19. INDEMNIFICATION

You agree to indemnify, defend and hold mDigger, Inc. and its subsidiaries, affiliates, officers, and employees harmless from any loss, liability, claim, demand, damage, or expenses (including reasonable attorney's fees) asserted by any third party due to or arising from or in connection with your use of or conduct on the Service.

20. GENERAL PROVISIONS

20.1. Interpreting this Agreement / Entire Agreement

All parts of this Agreement apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this contract as written. If this happens, then you and we will replace that part with terms that most closely match the intent of the part that we cannot enforce. The rest of this Agreement will not change. This is the entire Agreement between you and us regarding your use of the Service. It supersedes any prior agreement or statements regarding your use of the Service. If you have confidentiality obligations related to the Service, those obligations remain in force (for example, you may have been a beta tester). The section titles in the Agreement do not limit the other terms of this Agreement.

This written license agreement is the exclusive agreement between you and us concerning the Software and Documentation and supersedes any prior purchase order, communication, advertising or representation about the Software.

20.2 No Assignment by You

You are not allowed to assign this Agreement or any rights hereunder.

20.3 Assignment by Us

We may, at our sole discretion, assign this Agreement or any rights hereunder to any third party without providing you with prior notice.

20.4 Applicable Law

This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA without giving effect to the conflict of laws and provisions thereof, regardless of your actual state or country of residence.

20.5 Competent Court

Any legal proceedings arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of the courts of the State of California, U.S.A.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR CONTINUING TO USE THE MDIGGER® BETA SERVICE YOU EXPRESSLY CONSENT TO BE BOUND BY THE FOREGOING TERMS AND CONDITIONS AND GRANT US THE RIGHTS SET FORTH HEREIN.