Effective Date: October 31, 2013
TERMS AND CONDITIONS FOR THE MASTERCARD NEARBY APPLICATION
Thank you for your interest in downloading the MasterCard Nearby Application (the “Application”). The following terms and conditions (these “Terms and Conditions”) govern your use of the Application, and by downloading the Application you agree to be bound by these Terms and Conditions. If you do not agree to these Terms and Conditions, do not download or use this Application.
Who May Download the Application. You may download one copy of the Application only if you are at least 18 years old (or 21 depending on where you live). If you do not meet the above requirements or if you do not agree to these Terms and Conditions, do not download the Application. We reserve the right to change these Terms and Conditions at any time; however, all such changes will require an update to the Application and you will be prompted to read and agree to the new Terms and Conditions when the Application is updated. The purpose of this Application is to assist you in locating merchants, ATMs and other locations of interest where a MasterCard card may be used to obtain cash, goods, services and/or discount offers.
Scope of License. You understand and agree that the Application is licensed, not sold, to you for use only as outlined in these Terms and Conditions. This license is limited to a non-transferable license to use the Application on the mobile device that you own or control. This license does not allow you to use the Application in a way other than as expressly set forth herein, and you may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may use the Application only in accordance with all applicable laws and regulations. Further, you may not rent, lease, lend, sell, redistribute or sublicense the Application or any of the data contained therein. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof, including without limitation, any data contained therein. MasterCard will provide limited support services as determined in its sole discretion. MasterCard’s support contact information is set forth below.
Intellectual Property Rights. You agree that all aspects of the Application including without limitation, the selection, coordination and arrangement of the materials in the Application, software, code, algorithm, its look and feel, images, copy, graphics, copyrights, trademarks, logos, and other elements are subject to the proprietary rights of and belong to MasterCard, it subsidiaries and affiliates and its licensors. MasterCard retains all right, title and interest, including without limitation all intellectual property and proprietary rights in and to the Application. These materials are provided to you for your limited use for the Application on one device at a time and for no other purpose. Any unauthorized use of these materials may violate MasterCard’s or its licensors intellectual property rights. In the event that there is a third party claim regarding the content of the Application against you, you should raise such claim to MasterCard directly.
Feedback/Technical Data. You may provide feedback or comments (“Feedback”) to report a problem with the Application or the information or content contained in the Application. All Feedback disclosed or offered by you to MasterCard shall be considered by MasterCard to be non-proprietary and non-confidential, and may be used by MasterCard without any further obligation, attribution, accounting or compensation to you whatsoever. Moreover, you also agree that by providing MasterCard such Feedback, you assign to MasterCard all right, title and interest in such Feedback without restriction. To the extent such assignment is prohibited in certain jurisdictions, you grant to MasterCard an irrevocable, royalty-free, exclusive, perpetual, worldwide, transferable, sublicensable fully paid-up license to use such Feedback. In connection with its business, MasterCard takes no responsibility and assumes no liability for any Feedback posted by you and is not required to take any action with respect to such Feedback. You agree that MasterCard may collect and use technical and usage data and related information, including but not limited to technical information about your device, date and time of Application access, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Application. You grant MasterCard the permission to use this information to improve its products or to provide services or technologies to you, as well as to provide advertising content in which MasterCard believes you may be interested, including working with third parties who provide targeted advertising content.
Termination. These Terms and Conditions are effective until terminated by you or us which we may do at any time and for any or no reason. Your rights under these Terms and Conditions will terminate automatically without notice from us if you fail to comply or violate with any term of these Terms and Conditions. Upon termination of these Terms and Conditions, you shall cease all use of the Application.
Accuracy of Data/No Endorsement. We do not guarantee the availability of and we do not assume any responsibility or liability for the accuracy, completeness, authenticity or distortion of any materials, content, information or data contained or displayed in or as a result of your use of the Application. Without limiting the foregoing, you further understand and agree that the Application may include or reflect data of licensors. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Location data is licensed on an “as is” basis.
We and our licensors, reserve the right to change, suspend, remove, or disable access to any Third Party Services at any time without notice. In no event will we be liable for the removal of or disabling of access to any such Third Party Services. We may also impose limits on the use of or access to certain Third Party Services, in any case and without notice or liability.
Short Message Service (SMS). The Application allows you to share address location data via SMS messaging to cell phones only. You are responsible for providing the correct wireless number for an active wireless account with a participating provider. You are responsible for the financial responsibilities of the wireless account through which the services are being accessed, under the user’s own arrangements with the wireless provider. You acknowledge that standard text messaging rates and other data rate charges may be charged to you for such access. You are solely and fully responsible for all claims arising from your use of the service by persons or entities claiming that they did not authorize the use of their wireless account to receive text messages or persons or entities claiming they did not authorize the use of their wireless account to be charged.
If you are not the owner of the mobile phone used for this service, you represent that you have obtained the permission from the owner before using the service. If you are under the age of 18 (or 21 in certain jurisdictions) you represent that you have obtained parental permission and consent before such use. You may not transmit or re-transmit, broadcast or re-broadcast or use any part of this an SMS for commercial use.
Export. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be used by or exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
Modifications/Updates to Application. We reserve the right at any time and from time to time to interrupt, restrict (without cause and without notice to you), modify or discontinue, temporarily or permanently, the Application (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application. MasterCard may make available for download certain Application updates or upgrades to the Application to update, enhance or further develop the Application (“Application Updates”). The license granted herein allows you to download and use the Application Updates to update the Application on any device that you own or control. This Agreement does not allow you to update devices that you do not own or control, and you may not make the Application Updates available over a network where it could be used by multiple devices or multiple computers at the same time. You may not make any copies of the Application Updates, unless such copy is authorized in writing by MasterCard. Company may, at its discretion, automatically download Application Updates to your device. You agree to accept these Application Updates, and to pay for any costs associated with receiving them. The Application and Application Updates are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Application and Application Updates. These laws include restrictions on destinations, end users and end use.
NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE APPLICATION (THE "SERVICES") ARE PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WITHOUT LIMITING THE FOREGOING, WE FURTHER DISCLAIM ANY WARRANTIES THAT THE APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE APPLICATION IS AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE AND/OR ANY DATA LOSS THAT MAY RESULT FROM YOUR USE OF THE APPLICATION, INCLUDING WITHOUT LIMITATION, DAMAGE RESULTING FROM COMPUTER VIRUSES.
PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. PLEASE SEEK THE ADVICE OF COUNSEL IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS AND CONDITIONS.
Indemnification. You agree to defend, indemnify and hold us and our employees, officers, directors, agents. affiliates, licensees, successor and assigns harmless from any liability, loss, claim and expense, including reasonable attorneys' fees and expenses and other legal costs, related to either your violation of these Terms and Conditions, your use of the Application and/or the unauthorized use of any personal information or data uploaded in connection with the Application.
LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AGENTS, BUSINESS PARTNERS, STAFF. AFFILIATES, LICENSEES, SUCCESSORS AND ASSIGNS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF DATA, BUSINESS OR OTHER INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL MASTERCARD’S OR OUR AGENTS’, BUSINESS PARTNERS’, STAFF’S, AFFILIATES’, LICENSEES’, SUCCESSORS’ AND ASSIGNS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR ONE DOLLAR ($1) (WHICHEVER IS LESS) (AND IN NO EVENT SHALL ATTORNEYS’ FEES BE INCLUDED OR PAYABLE), FOR USING THE APPLICATION. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU UNDERSTAND THAT THE UPLOADING OF PERSONAL OR OTHER INFORMATION TO YOUR MOBILE DEVICE IN CONNECTION WITH THIS APPLICATION IS AT YOUR OWN RISK AND THAT WE ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR USE OF SUCH PERSONAL OR OTHER INFORMATION. ALL PERSONAL OR OTHER INFORMATION UPLOADED TO THE APPLICATION WILL BE STORED ON YOUR MOBILE DEVICE AND YOU UNDERSTAND THAT THE SECURITY AND SAFETY OF YOUR MOBILE DEVICE AND THE PASSWORD TO ACCESS THE APPLICATION IS YOUR SOLE RESPONSIBILITY.
Governing Law/Miscellaneous. These Terms and Conditions shall be construed, interpreted and performed exclusively according to the laws of the State of New York, United States of America, without giving effect to any principles of conflicts of law. You expressly agree that any action at law or in equity arising out of or directly or indirectly relating to these Terms and Conditions or use of the Application shall be resolved individually, without resort to any form of class action, and shall be filed only in the Federal or state courts sitting in New York. You hereby consent and submit to personal jurisdiction of such courts for the purposes of any action related to the Application, your access or use thereof, or these Terms and Conditions, and to extra-territorial service of process. Should any part or provision of these Terms and Conditions be held unlawful, void, invalid or unenforceable, that portion shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions. These Terms and Conditions constitute the only terms between us and you regarding the Application. These Terms and Conditions supersede any and all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Application, the content, and/or services provided by or through the Application, and the subject matter of these Terms and Conditions. To the extent that anything in or associated with the Application is in conflict or inconsistent with these Terms and Conditions, the Terms and Conditions shall take precedence, unless prohibited by law. The headings of Sections and subsections of these Terms and Conditions are for convenience of reference only and are not intended to affect the interpretation or construction of any provision of these Terms and Conditions. Our failure to enforce any provision of these Terms and Conditions shall not be deemed a waiver of such provision nor of its right to enforce such provision.
Contact Us. If you have any questions about the Application, please email firstname.lastname@example.org or please call 1-800-MCAssist (1-800-622-7747) Monday through Friday, except holidays, from 9:00 am to 5:00 pm . By mail: MasterCard International Incorporated, 2000 Purchase Street, Purchase, NY 10577 USA.