Mobiroo Terms of Use (Updated September 15, 2011)
The following Terms of Use (the “Terms”) constitutes a legal agreement between
you and Mobiroo Inc. (“Mobiroo”) governing your use of the Mobiroo website
(the “Website”) and related services, including the downloading of apps and
other products (the “Services”).
Acceptance of these Terms
Please review these Terms carefully before using the Website or any Services. Your
access to the Website and receipt of the Services signifies your consent to these
Terms.
If you are under the age of 18, you may not use the Website; you must have your
parent or guardian review these Terms and have the parent or guardian use the Website
and receive the Services. Only adults may access this Website and receive the Services.
Any new features or modifications to the Website or Services will be subject to
these Terms. These Terms may be updated from time to time without notice to you.
Your continued access to and use of the Website and any Services signify your consent
to the revised Terms. In addition, when using particular Services, you may be advised
of and subject to additional terms applicable to those Services, which are hereby
incorporated by reference into these Terms.
About Mobiroo and our App Cards
This Website and the Services are operated by Mobiroo from its principal office
in Ontario, Canada for your personal use, subject to these Terms.
Among other things, the Website and Services permit you to redeem valid Mobiroo
App Cards or other physical or virtual apps cards, and otherwise download mobile
apps, by entering valid authentication information (such as a serial number and
a download code) to download available BlackBerry®, Android™ and other mobile software
applications (the “Products”). To the maximum extent permitted by law, starting
12 months after purchase or activation of the app card, an administrative fee of
$1.50 per year will begin to be deducted from the remaining balance of any app cards.
You acknowledge and agree that: (i) that the Products are made available through
the Services from a third-party provider of that Product (each, a “Developer”);
(ii) Mobiroo is acting as agent for the Developer in providing each such Product
to you; (iii) Mobiroo is not party to any supplemental transactions or agreements
between you and the Developer with respect to that Product; and (iv) the Developer
reserves the right to enforce its agreements relating to that Product. You agree
to indemnify and hold Mobiroo harmless from any claims, suits or demands (each,
a “Claim”) arising in connection with a Developer.
User Accounts
To access certain Services, you may be required to provide information about yourself
(such as identification, contact or financial information) as part of the registration
process for the Service, or as part of your continued use of the Services. You agree
that any registration information you give to Mobiroo will always be accurate, correct
and up to date.
To protect your privacy and provide certain Services to you, Mobiroo may require
you to establish one or more user accounts to access such Services (each a “User
Account”). Mobiroo reserves the unqualified right to accept or decline a
request to open a User Account, terminate any User Account and to discontinue the
provision of Services related to a User Account, in which case Mobiroo will refund
any outstanding balances of monies paid in relation to the app card (and for certainty
not taking into account any bonus or free credit provided for the app card in calculating
such balances), unless such decision to decline, terminate or discontinue is as
a result of the breach of these Terms by you.
In connection with opening your User Account, you will either designate or receive
a user name and password to establish your identity when you login to use certain
Services. You agree: (i) to provide accurate and complete information when opening
a User Account; (ii) to update your information as necessary so it remains accurate
and complete; and (iii) not to impersonate any other person, operate under an alias
or otherwise conceal your identity.
The right to use the Services and functions of a User Account is limited to you
as the enrolling party. You are responsible for safeguarding your user name and
password and agree to hold Mobiroo harmless from any Claims resulting from improper
use of your User Account, user name and password. You will not share your password,
let anyone else access your User Account, or do anything else that might jeopardize
the security of your User Account and you agree to be responsible for all acts or
omissions with respect to your User Account. You agree to notify Mobiroo immediately
if you believe the security of your User Account, user name or password has been
compromised in any way.
Website Availability
While Mobiroo endeavours to ensure that the Website and Services are available 24
hours a day, Mobiroo shall not be liable if for any reason the Website or any or
all Services are unavailable at any time or for any period. Access to this Website
and Services may be suspended temporarily and without notice in the case of system
failure, maintenance or repair or for reasons beyond Mobiroo’s control.
Your access to the Website or Services, your ability to participate in all or certain
parts of the Website and Services or your registration may be terminated by Mobiroo
at any time without notice and without any liability. Any limitations on Mobiroo’s
liability will survive such termination.
Your use of the Website, Services and Products requires compatible devices, internet
access, and certain software (for which fees may apply) including periodic updates,
and may be affected by these factors. You are responsible for ensuring your device
complies with any published technical requirements for the Products. High-speed
internet access is strongly recommended.
Acceptable Use
You may use the Website and Services for lawful purposes only. You may not use the
Website or any Service:
- in any way that breaches any applicable local, national or international law or
regulation;
- in any way that infringes the rights of any other person;
- in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose
or effect;
- to transmit any unsolicited or unauthorised advertising or promotional material
or any other form of similar solicitation (spam); and
- to knowingly transmit any data, send or upload any material that contains viruses,
Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other
harmful programs or similar computer code designed to adversely affect the operation
of any computer software or hardware.
You are prohibited from violating, or attempting to violate, the integrity or security
of the Website or Services. Any violations may result in criminal and civil liability.
Mobiroo will investigate any alleged violations and will cooperate with law enforcement
agencies if a criminal violation is suspected. Examples of violations of the security
of the Website or Services include, without limitation:
- accessing the Services by any means other than through the interface that is provided
by Mobiroo for use in accessing the Services, such as by accessing (or attempting
to access) any of the Services by any automated means (including use of scripts
or web crawlers);
- attempting to probe, scan or test the vulnerability of the Website or any other
Mobiroo system or breach security or authentication measures without proper authorization;
- attempting to interfere with service to any user, host or network including, without
limitation, via means of overloading or other means to effect a denial of service
to Website users; and
- taking any action to obtain Services or Products, or access Content, to which you
are not entitled.
If you become aware of any of these activities, you shall immediately notify Mobiroo
and take all other appropriate actions to cause such activities to cease. You agree
that indirect or attempted violations of this section, and actual or attempted violations
by a third party on your behalf, shall be deemed violations of this section by you.
Mobiroo reserves the right to suspend or terminate your access to the Website or
one or all of the Services, at Mobiroo’s discretion, and without notice to you,
upon notice of a violation of this section.
Ownership
You acknowledge and agree that the Website and Services contain proprietary and
confidential information of Mobiroo or its suppliers that is protected by these
Terms and applicable law. Mobiroo and its applicable suppliers (including Developers)
retain all right, title and interest in and to the Website, Website content and
materials (“Content”), Services and Products, as applicable, and in all related
patents, copyrights, trade-marks, trade secrets and any other intellectual property
and proprietary rights throughout the world.
Except for the limited license described below, you agree not to modify, copy, use
for any commercial purpose (including rent, lease, loan, sell or distribute) or
create derivative works based on the Website, Content, Services or Products in whole
or in part without the prior written permission of Mobiroo. You are hereby granted
a limited license to use and make a single copy of short extracts of the Website
content for personal, non-commercial, lawful viewing only, provided that you may
not modify such content, or remove any copyright or proprietary notices from the
Content.
Content
You understand that through the use of the Website, Services and Products, you may
be exposed to content that you find offensive, indecent or objectionable, and your
use of the Website, Services and Products is at your own risk.
Some Products running on your mobile device may automatically download and install
updates or revised content from time to time from Mobiroo or other third parties.
These updates are generally designed to improve, enhance and further develop the
Services and may take the form of bug fixes, enhanced functions, new software modules
and completely new versions. Revised content may include new or modified promotional
material associated with the Product. You agree to receive such updates and revised
content.
Downloading, use and access of the Website, Content, Services and Products may result
in data usage charges on your mobile devices, and are your responsibility. Mobiroo
may track Product activation, Product bandwidth usage and time spent using Products,
and make changes the in-Product advertising over time, each of which will use minimal
amounts of data from time to time.
Privacy
Any personal information you provide to Mobiroo will be collected, used and disclosed
in accordance with our Privacy Policy.
Links to and from Third Party Sites
You must not establish a link to the Website in such a way as to suggest any form
of association, approval or endorsement from Mobiroo. Any links to third-party websites
from the Website or Services are meant for convenience only. Mobiroo does not review
or control these third-party websites and is not responsible for any third-party
websites or the content of those sites. Inclusion of any linked website does not
imply approval or endorsement of the linked website by Mobiroo. You follow such
a link to any other site at your own sole risk and Mobiroo does not accept any obligation,
gives no assurance, and assumes no liability or responsibility (whether express
or implied) in relation to any content on any other website.
Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS,
MOBIROO AND ITS AFFILIATES, AND ITS AND THEIR EMPLOYEES, AGENTS AND SUPPLIERS (COLLECTIVELY,
THE “MOBIROO PARTIES”) PROVIDE THE WEBSITE AND ALL SERVICES, CONTENT AND
PRODUCTS WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE,
OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
ACCESS TO AND USE OF THE WEBSITE, SERVICES, CONTENT AND PRODUCTS IS PROVIDED ON
AN “AS IS” AND “AS AVAILABLE” BASIS, AND WHILE REASONABLE EFFORTS ARE MADE TO ENSURE
THE QUALITY, ACCURACY AND TIMELINESS OF THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED
BY LAW, MOBIROO MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT ANY OF THE
FOREGOING: (I) WILL BE ACCURATE, COMPLETE, CURRENT, TIMELY, OR SUITABLE FOR ANY
PARTICULAR PURPOSE; (II) WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER;
(III) WILL HAVE DEFECTS OR ERRORS CORRECTED; (IV) WILL BE FREE FROM VIRUSES OR HARMFUL
COMPONENTS; (V) WILL BE SECURE; AND (VI) WILL NOT INFRINGE ANY THIRD PARTY INTELLECTUAL
PROPERTY.
WITHOUT LIMITING THE FOREGOING, MOBIROO EXPRESSLY DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES OR CONDITIONS IN RESPECT OF THE PRODUCTS. THE LICENSING AND USE OF PRODUCTS,
AND ANY SERVICES PROVIDED BY A DEVELOPER TO YOU, ARE SUBJECT TO AN AGREEMENT BETWEEN
YOU AND THE DEVELOPER. MOBIROO DOES NOT WARRANT THAT THE PRODUCTS: (I) ARE FREE
FROM DEFECTS IN CODING OR DESIGN; (II) ARE FREE OF ANY COMPUTER VIRUSES, WORMS,
LOGIC BOMBS AND OTHER DAMAGING PLANNED OR UNINTENTIONAL SOFTWARE DEFECTS; (III)
DO NOT INFRINGE ANY THIRD PARTY’S INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS;
(IV) WILL NOT DAMAGE YOUR MOBILE DEVICE OR ANY DATA STORED ON IT; AND (V) ARE FREE
OF ANY INFORMATION OR CONTENT OF WHATEVER NATURE THAT IS OBSCENE, INDECENT, PORNOGRAPHIC,
DEFAMATORY, THREATENING, IN BREACH OF ANY LAW OR ESTABLISHED CODE OF CONDUCT.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL ANY MOBIROO
PARTIES BE LIABLE TO YOU OR ANY OTHER USER OR ANY THIRD PARTY FOR ANY DAMAGES OF
ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR OTHER ECONOMIC LOSS, OR
FOR ANY DIRECT, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, MOBIROO’S MAXIMUM LIABILITY TO YOU IN RESPECT OF THE
WEBSITE, SERVICES, CONTENT OR ANY PRODUCTS FOR ANY CLAIM SHALL BE THE AMOUNT PAID
WITH REGARD TO ANY PRODUCTS SUBJECT TO THE CLAIM.
Indemnification
You agree to indemnify and hold Mobiroo and its affiliates and each of their respective
directors, officers, employees, agents, suppliers and the Developers harmless from
any costs or damages of any kind, including reasonable legal fees, arising from
any and all Claims pertaining to your use of the Website, Content, Services or Products
or arising out of your breach of these Terms or your violation of any rights of
another, except to the extent such costs or damages were solely caused by Mobiroo’s
gross negligence or intentional misconduct.
Severability of Clauses
If any provision of these Terms is found by a court of competent jurisdiction to
be invalid, the parties agree that the court should endeavour to give effect to
the parties’ intentions as reflected in the provision, and the other provisions
of these Terms remain in full force and effect.
Entire Agreement
The Terms constitute the entire agreement between you and Mobiroo and govern your
use of the Website, Content and the Services, superseding any prior agreement, whether
oral or written, express or implied. You may be subject to additional terms and
conditions that may apply when you use certain Mobiroo Services. Headings used in
these Terms are not to be used to construe or interpret these Terms.
Waiver
The failure of Mobiroo to exercise or enforce any right or provision of these Terms
shall not constitute a waiver of such right or provision.
Non-Transferable
This Agreement is not transferable by you in any way and may not be assigned to
any third party without the prior written consent of Mobiroo.
No Third Party Rights
Subject to these Terms above, no provision of this Agreement provides any person
or entity not a party to this Agreement with any remedy, Claim, liability, reimbursement,
or cause of action or creates any other third party beneficiary rights.
Arbitration
To the maximum extent permitted by applicable law, as part of the consideration
that Mobiroo requires for allowing you to use the Website and Services, you agree
that any Claim, dispute, or controversy of any kind (whether in contract, tort or
otherwise) arising out of or relating to these Terms, the Website, Services, Content
or Products shall be settled by arbitration, conducted in English, in accordance
with International Commercial Arbitration Act (Ontario). To the maximum extent permitted
by law, you agree to waive any right you may have to commence or participate in
any class action against us related to any claims against the Mobiroo Parties and,
where applicable, you also agree to opt out of any class proceedings against any
of the Mobiroo Parties. The arbitration shall be held in the City of Toronto in
the Province of Ontario, Canada. The arbitrator appointed shall be appointed by
mutual agreement of the parties, and if the parties cannot agree on the arbitrator
to be so appointed, the arbitrator shall be appointed by a judge of a court of competent
jurisdiction. To the maximum extent permitted by law, the arbitration carried out
hereunder shall apply to the exclusion of regular legal means, provided that the
rights of the parties in urgent situations in which time is of the essence to obtain
proper remedies in courts of law shall remain unimpaired. To the maximum extent
permitted by law, there shall be no appeal from the decision or findings of the
arbitrator, which shall be final and binding upon the parties and may be entered
in any court having proper authority.
Governing Law
These Terms and the relationship between you and Mobiroo shall be governed and construed
by the laws of the Province of Ontario and the applicable laws of Canada, without
regard to its conflict of laws provisions. You hereby consent and submit to the
non-exclusive jurisdiction of the courts of the Province of Ontario in any action
or dispute related to these Terms, Website or Services.