Mockingbird - The Game Making Game


Mockingbird Terms and Conditions

MOCKINGBIRD GAMES, INC.

WEBSITE USE AGREEMENT and LICENSE

(Rev. 1.3. Last Updated April 15, 2008)

PLEASE READ THIS WEBSITE USE AGREEMENT AND LICENSE CAREFULLY BEFORE ACCESSING OR USING THIS WEBSITE.

  1. YOUR ACCEPTANCE
    1. BY USING AND/OR VISITING THIS WEBSITE YOU SIGNIFY YOUR ASSENT TO BOTH THIS WEBSITE USE AGREEMENT AND LICENSE AND THE TERMS AND CONDITIONS OF MOCKINGBIRD GAMES, INC.'S PRIVACY NOTICE, WHICH ARE PUBLISHED AT playmockingbird.com/privacy-policy, AND WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you do not agree to any of these terms, then please do not use the Mockingbird Website.
    2. Although we may attempt to notify you when major changes are made to This Agreement, you should periodically review the most up-to-date version at playmockingbird.com/terms-and-conditions, We may, in our sole discretion, modify or revise This Agreement at any time, and You agree to be bound by such modifications or revisions. Nothing in This Agreement shall be deemed to create any third-party rights or benefits.
  2. DEFINITIONS
    1. “Content” refers to text, software, scripts, games, animation, graphics, photos, images, icons, sounds, music, videos, interactive features and the like, and includes but is not limited to any work in which copyright or other proprietary or intellectual property rights reside.
    2. “Member” refers to a person who has established a membership account with MGI. Each Member is also a User.
    3. “MGI,” “We” and “Our” refer to Mockingbird Games, Inc., a Delaware corporation.
    4. “MGI Content” refers to Content made available or provided by MGI on or through the WebSite.
    5. “MGI Work” refers to any Content created in whole or in part with the Services that includes, modifies, uses, reproduces, or is a derivative work of MGI Content or any part thereof, including but not limited any work that includes MGI Content and Your Member Content.
    6. “Mockingbird Games,” “Mockingbird Website” and “Website” refer to all Content and Services available through the domain names mockingbirdgames.com and playmockingbird.com.
    7. “Services” means all services and resources offered or enabled via the Website by MGI or Users, including but not limited to game development tools such as the Mockingbird Game Window and/or the “Press Button Make Game” tool.
    8. “This Agreement” refers to this Use Agreement and License and all terms and conditions therein.
    9. “User” refers to any person who views or uses the Website.
    10. “You” refers to the person who is viewing or using the WebSite, and includes Users, Beta Users Members.
    11. “Your Member Content” refers to Content published on, or posted, provided or uploaded to, the Website by You. Although an MGI Work could include Your Member Content, Your Member Content does not include any MGI Content or MGI Work. Your Member Content includes modifications or additions made by You to MGI Content, MGI Works, or Your Member Content of another user.
    12. “Beta User” refers to a User who views or uses the Website through beta.playmockingbird.com or with a user name that includes “beta” in it.
  3. MOCKINGBIRD WEBSITE
    1. This Agreement applies to all Users. The Mockingbird Website may contain links to third party websites that are not owned or controlled by MGI. MGI has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, MGI will not and cannot censor or edit the content of any third-party site. By using the Website, You expressly relieve MGI from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to be aware when you leave the Mockingbird Website and to read the terms and conditions and privacy policy of each other website that you visit.
  4. WEBSITE ACCESS
    1. MGI hereby grants You permission to use the Website as set forth in This Agreement, provided that: (i) your use of the Website as permitted is solely for your personal, non-commercial, educational or expressive use; (ii) you will not reproduce, copy or distribute any Content or any part of the Website in any medium without Mockingbird's prior written authorization; (iii) you will not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose; and (iv) you will otherwise comply with This Agreement.
    2. MGI permits you to link to Content on the Website (such as by hyperlink, web-site or email) for personal, non-commercial, educational or expressive purposes only.
    3. As a condition of access to Content or Services of the Website, Mockingbird may require you to become a Member and establish a membership account with MGI. You may never use another's account without permission. When creating your account, you must provide accurate and complete information, including but not limited to information regarding your age. Subsequent use of information provided when creating your account is governed by the terms of the MGI Privacy Policy at playmockingbird.com/privacy-policy. All required registration information that you provide must be current, complete and accurate and kept up to date on a prompt, timely basis. If required, you must also choose a user name and password for such account. It is your sole responsibility to keep your account number, user name, password and other sensitive information confidential. If you become aware of any unauthorized use of your account or any other breach of security, you shall notify MGI immediately. If any Services provide password-restricted access to Your Contents, then by accessing or using this Site and setting up a password-restricted account for such Services, you consent to MGI's display of such information via such Services and accept all risks of unauthorized access to such information. MGI reserves the right to establish different levels or durations of periods of membership, to charge for membership, access to Content, Services, or any other use of the Website, to prohibit or limit membership, and to modify or revise the terms of membership, the duration of any period of membership at any level, or the amount or nature of any charges, at any time without notice. You are solely responsible for the activity that occurs on your account. Although MGI will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of MGI or others due to such unauthorized use.
    4. You agree not to use or launch any data mining or extraction methods or automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Website in a manner that sends more request messages to the Mockingbird servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, MGI grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. MGI reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website for any commercial solicitation purposes.
    5. MGI, in its sole discretion, may (but has no obligation to) monitor or review the Content and Services at any time. MGI may at any time without notice and in its sole discretion: (a) terminate a Service, access to or use of any Content or an area of the Website where Content is posted; and (b) disclose any information related to your use of a Service or Content, or the substance of any of Your Member Content, as MGI deems necessary to comply with applicable law, regulation, legal process or governmental request. You agree that you will not disclose any personally identifiable information about any child under the age of 13 years. You agree to use extra care when disclosing any personally identifiable information about yourself or any child over the age of 13 years in any Services or when you post or otherwise submit any Materials.
    6. You understand that when using the Mockingbird Website, you may be exposed to Content from a variety of sources, and that MGI is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against MGI with respect thereto, and agree to indemnify and hold MGI, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
    7. Mockingbird reserves the right to discontinue or cease operation, permanently or temporarily, intentionally or unintentionally, of the Mockingbird Website, or any aspect thereof, at any time for any reason or none at all. MGI may block, restrict, disable, suspend or terminate Your access to all or part of the Website, Services or Content at any time in MGI's sole discretion, without prior notice to You and without liability to You, whether or not you have paid for membership.
    8. You acknowledge and agree that You are legally, solely and personally responsible for all or any information created or developed, in whole or in part, by You that is published, posted, uploaded, hosted, or shared on the Website.
    9. This provision 4.9 applies to Beta Users. If any other provision of This Agreement conflicts with this provision 4.9, the terms of this provision 4.9 shall control. Beta User is licensed to use the Website and the Services solely for beta testing, experimentation and internal use. In consideration therefor, Beta User agrees to serve as a beta tester and to notify MGI of all issues, problems, observations or ideas for enhancements (“Enhancements”) that come to Beta User's attention, and hereby assigns to MGI all right, title, and interest in such Enhancements and all property rights therein including without limitation all patent, copyright, trade secret, mask work, know how, trademark, moral right or other intellectual property rights. The Beta User agrees that the Website is the sole property of MGI and includes valuable trade secrets of MGI. Beta User agrees to treat the Website as confidential and will not without the express written permission of MGI (a) demonstrate, copy, sell or market the Website to any third party; or (b) publish or otherwise disclose information relating to performance of the Website or produced using the Website to any third party; or (c) modify, refuse, disassemble, decompile, reverse engineer or otherwise translate the Website or any portion thereof. The Website is prerelease and is not at the level of performance of a final, generally available product or service offering. The Website may not function correctly and may be withdrawn or substantially modified prior to first commercial availability. The Website is provided “AS IS” without warranty of any kind. The entire risk arising out the use or performance of the Website remains with Beta User. In no event shall MGI be liable for any damage whatsoever arising out of the use or inability to use the Website, even if MGI has been advised of the possibility of such damage. Beta User shall receive no compensation or payment of any kind.
  5. INTELLECTUAL PROPERTY RIGHTS and LICENSE by MGI: MGI WORKS, MGI CONTENT, SERVICES and MARKS
    1. The MGI Content and Services, as well as their selection and arrangement, are owned by or licensed to MGI and are protected by copyrights, trademarks, patent rights, trade secrets, unfair competition and all other intellectual property and proprietary rights (collectively, "Intellectual Property Rights"), and any unauthorized reproduction, disclosure, display or other use of the MGI Content and Services may violate such laws and this Agreement. No graphic, sound or image from the Website may be copied or retransmitted unless expressly permitted by MGI. Except as expressly provided herein, MGI grants no express or implied rights to use the MGI Content or Services. MGI Content is provided to You AS IS for your personal, non-commercial, educational or expressive use only.
    2. Subject to the terms of This Agreement and solely in connection with Your use of the Website, MGI hereby grants You a worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Services for your personal, non-commercial, educational or expressive use; and solely in connection with such use and use of the Mockingbird Website MGI hereby grants You a worldwide, non-exclusive, non-transferable, non-sublicensable license to use, modify, access, reproduce, display, perform, and create derivative works based on, the MGI Content or MGI Works. The license rights granted herein by MGI are terminable at will by MGI without notice.
    3. You agree that all rights, including Intellectual Property Rights, in any MGI Work are owned by MGI (or its licensors) and You disclaim any Intellectual Property Rights in any MGI Work regardless of your involvement in the creation of the MGI Work and/or use of Your Member Content in the MGI Work. Except as expressly provided herein, MGI grants no express or implied rights to use the MGI Works.
    4. Nothing in This Agreement requires MGI to provide access to all MGI Content or Services to any User. MGI reserves the right to charge for or impose other restrictions on licensed use of any MGI Content or Services.
    5. MGI reserves all rights not expressly granted herein in and to the Website, MGI Works, MGI Content, and Services. You agree not to copy, reproduce, distribute, republish, frame, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license, sublicense or reverse engineer all or any part of the Website or the MGI Works or MGI Content or Services, or the selection and arrangement of the Website and MGI Works and MGI Content and Services, except as expressly authorized herein. You agree not to circumvent, disable or otherwise interfere with security related features of the Mockingbird Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Mockingbird Website or the Content therein.
    6. The trademarks, logos and service marks ("Marks") displayed on the Website and design, layout or “look and feel” of this Website (“Trade Dress”) are the property of MGI or other third parties. The Marks and Trade Dress are protected by law, including trade dress, trademark, unfair competition and other laws, and may not be copied or imitated in whole or in part. You are not permitted to use or copy the Marks or Trade Dress without the prior written consent of MGI or such third party that may own the Marks or Trade Dress, and this Agreement conveys no express or implied rights to use the Marks or Trade Dress. MGI and the MGI logos are trademarks of MGI. For a current list of MGI's Marks, as well as certain third-party Marks, please refer to the posted link: [link to trademark information]
    7. Services or Content encompassing any software code, including programs, tools, utilities, files and otherwise, and accompanying documentation that are made accessible via the Website (collectively, "Software") are subject to intellectual property rights (including but not limited to patent, copyright, and trade secret) of MGI and/or its suppliers. Use of such Software is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Site page(s) accompanying the Software, or posted with the Software downloads or at the Site page where the Software can be accessed, and are incorporated herein by this reference. You will not be able to use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. Absent a license agreement that accompanies the Software, use of the Software will be governed by this Agreement. You agree that you will not decompile, reverse engineer or otherwise attempt to discover the source code of the Software. The Software is made available solely in accordance with the license agreement. Without limiting the foregoing, unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or reproduction of the Software to any other server or location for further reproduction, redistribution or use on a service bureau basis. Any unauthorized use, copying or distribution of the Software is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Any Software which is downloaded from or made available via the Website for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Mockingbird Games, Inc.
  6. YOUR MEMBER CONTENT and LICENSE by YOU
    1. MGI and the Mockingbird Website may now or in the future permit the publishing, posting, uploading, hosting or sharing (collectively, “Publication”) of Your Member Content to or on the Website. You understand that Mockingbird does not guarantee any confidentiality with respect to Publication of Your Member Content. To the maximum extent allowed by law, You hereby waive all moral rights (including but not limited to all rights under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A, as amended), in Your Member Content with respect to all uses permitted or licensed under this Agreement.
    2. You shall be personally, solely and legally responsible for Your Member Content, any Member Content created or developed in whole or in part by You, and the consequences of Publication of such Member Content. In connection with Your Member Content, you affirm, represent, and/or warrant that You own or have the necessary licenses, rights, consents, and permissions to use and authorize MGI to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all of Your Member Content and to enable Publication, inclusion and use of Your Member Content in the manner contemplated by the Website and This Agreement.
    3. You hereby grant MGI a worldwide, non-exclusive, royalty-free, irrevocable, sublicensable and transferable license to use, modify, access, display, reproduce, distribute, prepare derivative works of, display, and perform Your Member Content, whether or not included as part of an MGI Work, in connection with the Mockingbird Website and MGI's (and its successor's) business, including without limitation for promoting and redistributing part or all of the Mockingbird Website (and derivative works thereof) in any media formats and through any media channels. Further, You hereby agree and acknowledge that MGI is entitled to use, display advertising in connection with, and otherwise benefit from, the use, modification, reproduction, display, distribution or performance of Your Member Content and any derivative works thereof without payment or remuneration to You.
    4. You hereby grant each User of the Mockingbird Website a worldwide, non-exclusive, royalty-free license to use, modify, access, display, reproduce, prepare derivative works of, display, and perform Your Member Content through the Website and as permitted through the functionality of the Website and under This Agreement. You have the right to remove Your Member Content from the Mockingbird Website, and no license rights are granted or conveyed by You by this paragraph 6.4 as to any Content that is not published or posted on the Mockingbird Website. Regardless, the license rights granted by this paragraph 6.4 to each User are irrevocable as to any MGI Work that contains Your Member Content and was created before the date Your Member Content was removed from the Mockingbird Website.
    5. You acknowledge that you will receive no payment, remuneration or other financial consideration for Your Member Content from MGI or any User pursuant to this Agreement.
    6. In connection with Your Member Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant MGI all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage MGI or any third party; (iii) submit material that is unlawful, obscene, vulgar, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person. Mockingbird may remove or disable access to such Content and/or terminate a User's access for uploading such material in violation of This Agreement at any time, without prior notice and at its sole discretion.
    7. MGI does not endorse Your Member Content or any opinion, recommendation, or advice expressed therein, and Mockingbird expressly disclaims any and all liability in connection with Your Member Content.
    8. MGI does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and MGI reserves the right to take all appropriate measures to prevent infringing activities on its Website, including but not limited to removing or disabling access to Your Member Content and/or terminating access to the Website by repeat infringers, i.e. a User who has been notified of infringing activity more than twice and/or has had Content removed from the Website more than twice. As explained in more detail in its Copyright Infringement Policy (found at playmockingbird.com/copyright-policy), MGI will remove or disable access Your Member Content if properly notified that it infringes on another's intellectual property rights. The User who has supplied the allegedly infringing Content may then supply a counter-notice including (i) a physical or electronic signature of the user; (ii) identification of the material that has been removed, or to which access to has been disabled, and the location at which the material appeared before it was removed or disabled; (iii) a statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and the User's name, address and telephone number and a statement that the User consents to the jurisdiction of the Federal Court for the judicial district in which the User's address is located, or if the User's address is located outside the United States, for any judicial district in which Mockingbird is located, and that User will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the MGI's Designated Agent, a copy of the counter-notice will be sent to the original complaining party informing that person that it will replace the removed material or cease disabling it within 10 business days. Unless the copyright owner files an action seeking a court order against the user, the removed material will be replaced, or access to it restored, within 14 business days after receipt of the counter-notice. Mockingbird's designated Copyright Agent to receive notifications of claimed infringement is: Andy Price, email copyright@playmockingbird.com. A complete statement of the parties' rights and obligations under MGI's Copyright Infringement policy can be found at playmockingbird.com/privacy-policy.
  7. INTELLECTUAL PROPERTY RIGHTS OF OTHERS
    1. The Mockingbird Website may contain Content that is neither MGI Content nor Your Member Content (“Other Content”). Such Other Content belongs to its creator or author, may be protected by intellectual property rights or other proprietary rights, and no rights to such Other Content are conveyed herein.
    2. MGI and its affiliates respect the intellectual property rights of others. Instructions for how to make a claim of copyright infringement are found at [insert link to DMCA policy here].
  8. WARRANTY DISCLAIMER
    1. YOU AGREE THAT YOUR USE OF THE MOCKINGBIRD WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, MGI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. MGI MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT CONTINUITY OF SERVICE OR THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR SERVICES, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE OR SERVICES, (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, (vi) ANY FAILURE TO COMPLY WITH ACCESS RESTRICTIONS OR INSTRUCTIONS, AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OR ACCESS, OR CESSATION OR SUSPENSION OF USE OR ACCESS, OF ANY CONTENT OR SERVICES POSTED, EMAILED, TRANSMITTED, STORED OR OTHERWISE MADE AVAILABLE VIA THE MOCKINGBIRD WEBSITE. MGI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE MOCKINGBIRD WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND MGI 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. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
    2. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO NINETY (90) DAYS.
  9. LIMITATION OF LIABILITY
    1. IN NO EVENT SHALL MGI, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR SERVICES, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE OR SERVICES, (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, (vi) ANY FAILURE TO COMPLY WITH ACCESS RESTRICTIONS OR INSTRUCTIONS, AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OR ACCESS, OR CESSATION OR SUSPENSION OF USE OR ACCESS, OF ANY CONTENT OR SERVICES POSTED, EMAILED, TRANSMITTED, STORED OR OTHERWISE MADE AVAILABLE VIA THE MOCKINGBIRD WEBSITE, 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. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
    2. IN NO EVENT WILL THE AGGREGATE LIABILITY OF MGI TO YOU FOR ANY CLAIM EXCEED THE GREATER OF: (i) THE TOTAL FEES PAID BY YOU TO MOCKINGBIRD DURING THE SIX MONTHS PRECEDING THE DATE CLAIM FIRST AROSE, OR (ii) $50.
    3. YOU SPECIFICALLY ACKNOWLEDGE THAT MGI SHALL NOT BE LIABLE FOR YOUR MEMBER CONTENT OR THE INFRINGEMENT, DEFAMATION, OR OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
    4. The Website is controlled and offered by MGI from its facilities in the United States of America. Mockingbird makes no representations that the Mockingbird Website is appropriate or available for use in other locations. Those who access or use the Mockingbird Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
  10. INDEMNITY
    1. You agree to defend, indemnify and hold harmless MGI, its officers, directors, employees and agents, 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: (i) your use of and access to the Mockingbird Website; (ii) your violation of any term of This Agreement; (iii) your violation of any third party right, including without limitation any intellectual property or privacy rights; or (iv) any claim that Your Member Content caused damage to a third party. This defense and indemnification obligation will survive This Agreement and your use of the Mockingbird Website.
  11. ABILITY TO ACCEPT TERMS OF SERVICE
    1. You affirm that you are either more than 18 years of age, or an emancipated minor, or are over the age of 13 years and possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in This Agreement, and to abide by and comply with This Agreement.
    2. Membership is restricted to those over the age of 13 years.
  12. ASSIGNMENT
    1. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by MGI without restriction and without notice.
  13. PARENTAL CONTROL PROVISIONS
    1. Pursuant to 47 U.S.C. § 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at Get Net Wise, www.getnetwise.org, Safety.com, www.safety.com, or by using Google or other search engine to find Websites with the search phrase “parental control”.
  14. GENERAL
    1. You agree that: (i) the Mockingbird Website shall be deemed solely based in Texas; and (ii) the Mockingbird Website shall be deemed a passive website that does not give rise to personal jurisdiction over MGI, either specific or general, in jurisdictions other than Texas. This Agreement shall be governed by the internal substantive laws of the State of Texas, without respect to its conflict of laws principles and the parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.. Any claim or dispute between you and MGI that arises in whole or in part from the Mockingbird Website shall be decided exclusively by a state or federal court of competent jurisdiction located in Travis County, Texas and You acknowledge and agree that You are subject to the personal jurisdiction of such courts.
    2. This Agreement, together with the Privacy Notice at [link to privacy notice], as may be modified or revised from time to time, and any other legal notices published by Mockingbird on the Website, shall constitute the entire agreement between you and Mockingbird concerning the Mockingbird Website. If any provision of This Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of This Agreement, which shall remain in full force and effect.
    3. No waiver of any term of This Agreement shall be deemed a further or continuing waiver of such term or any other term, and MGI's failure to assert any right or provision under This Agreement shall not constitute a waiver of such right or provision.
    4. MGI reserves the right to modify or revise This Agreement at any time and without notice, and it is your responsibility to review This Agreement for any changes. Your use of the Mockingbird Website following any modification or revision of This Agreement will signify your assent to and acceptance of its revised terms.

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