END USER LICENSE AGREEMENT
Welcome to airG!
airG provides a variety of services and games (collectively the “Services”) to mobile phone users throughout the world through mobile service providers (“MSPs”) and the airG, AIRGAMES, Big Barn World websites, and any other websites operated by airG (collectively the “Sites”). In the United States, the Services and Sites are provided by a joint venture of airG Inc., a Canadian corporation, and airG (USA) Incorporated, a Nevada corporation. In Canada, the Services and Sites are provided by airG Inc., a Canadian corporation. In Australia and New Zealand, the Services and Sites are provided by a joint venture of airG Inc., a Canadian corporation, and airG (Australia) PTY LTD, an Australian corporation. In the rest of the world, the Services and Sites are provided by a joint venture of airG Inc., a Canadian corporation, and airG Coöperatie Worldwide U.A., a Netherlands corporation. In this End Users License Agreement "airG ", "we" or "our" refers to every corporation that is providing the Services and Sites to you, or that is a participant in a corporation that is providing the Services and Sites to you.
The commencement date of this EULA is the date you first browse the Sites or Services, use, or sign up for any Services either through the Sites or through your mobile service provider (“MSP”) and/or purchase any Services, or provide airG with your mobile phone number. whichever is earlier. Your continued use of the Sites or any Service implies your acceptance of any changes to this EULA. The terms of thus EULA will remain in full force and effect while you use the Sites or the Services, unless earlier terminated in accordance with this EULA.
The Services and Sites are not knowingly provided, directed or targeted to children, usage of the Services and Sites will be subject to the following criteria, and the following will apply:
• In the United States and Canada, the Service is not knowingly provided to children under the age of 14. If you are accessing the Service from the United States or Canada, you hereby represent, warrant and covenant that you are at least 14 years old.
• In Australia and South Africa, the Service is not knowingly provided to persons under the age of 18. If you are accessing the Service from Australia, or South Africa you hereby represent, warrant and covenant that you are at least 18 years old.
• In all other countries the Service is not knowingly provided to children under the age of 14. If you are accessing the Service from any country other than those listed above, you hereby represent, warrant and covenant that you are at least 14 years old.
The Services and Sites are available for your use if you are able to enter into this EULA and are not a person barred from receiving services under US or Canadian law, not residing in a country that is subject to a US government embargo, or designated by the US government as a “terrorist supporting” country, and you are not included on any US government list of prohibited or restricted parties, are not a convicted sex offender, or any other reason airG may unilaterally determine at any time.
This EULA was written in English (Canada). To the extent any translated version of this EULA conflicts with the English version, the English version controls.
EULA Version Date: January 28, 2014
2. Accounts. You may register for an account at any time with airG (either directly through the Sites or through your MSP) and provide certain information about yourself as prompted by the registration form. You represent and warrant that (a) all required registration information you submit is truthful and accurate, (b) you will maintain the accuracy of such information, and (c) your use of the Sites and the Services or any of them does not violate any applicable laws.
You may terminate your account at any time, for any reason, by following the instructions on the Sites (if you have signed up directly with airG) or through your MSP (if you signed up through your MSP). You are responsible for maintaining the confidentiality of your account login information and are fully responsible for all activities that occur under your account. You agree to immediately notify airG of any unauthorized use, or suspected unauthorized use, of your account or any other breach of security. airG cannot and will not be liable for any loss or damage arising from your failure to comply with these requirements.
Any username or password supplied to or by you is personal to you, and you may not transfer or make available your account name and/or password to others. Any distribution by you of such username and password may result in suspension, termination or cancellation of your access to your account without refund; you are responsible for any additional charges based on unauthorized use.
3. If you receive the Services through your MSP. airG and your MSP are separate legal entities. This EULA is between you and airG. Your MSP is not providing the Sites or the Services and is not responsible for the Sites or the Services. You may have other agreements with your MSP that apply to your use of the Services, and those agreements will apply between you and your MSP. This EULA will not in any way alter any of the terms or conditions of any agreement you may have with your MSP for its products or services.
If you have purchased use of the Services through your MSP, your MSP will charge you for all use of the Services in accordance with your MSP’s prices and payment terms, and you will pay all charges to your MSP.
airG assumes no responsibility for the provision or maintenance of hardware, including mobile communications devices or network access that may be required for you to connect to the Services.
If you have questions or require support regarding your use of the Services, your agreement with your MSP applies and you should contact your MSP and not airG.
4. License. Subject to the terms of this EULA, airG grants you a non-transferable, non-exclusive license to (a) use the Sites and the Services for your use, and (b) download, install and use copies of the Services on mobile devices that you own or control for your use (the “License”).
Use of the Sites and the Services are licensed to you. airG owns all right, title and interest, including all related intellectual property rights, in and to the Sites and the Services, excluding your User Generated Content (as defined below). This License is not a sale and does not convey to you any rights of ownership in or related to the Sites or the Services. The airG name, logo, and all product names associated with the Services belong to airG, and no right or license is granted to you to use them by implication, estoppel or otherwise. If any third party claims that any of these names and/or logos – or your possession and use of the Sites or the Services or any of them – infringes that third party’s intellectual property rights, airG will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
airG reserves all rights not granted in this EULA.
5. Restrictions. The rights granted to you in this EULA are subject to the following restrictions. You agree that you will not
(a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Sites or any of the Services;
(b) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Sites or the Services;
(c) access, tamper with, or use non-public areas of the Sites, the Services, airG’s computer systems, or the technical delivery systems of airG;
(d) access the Sites or the Services in order to build a similar or competitive Sites or service;
(e) probe, scan, or test the vulnerability of any airG system or network, or breach or circumvent any security or authentication measures;
(f) access or search, or attempt to access or search, the Sites or any Service by any means, automated or otherwise, other than through the currently available, published interfaces provided by airG, unless you have been specifically allowed to do so via a separate agreement with airG;
(g) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
(h) interfere with or disrupt, or attempt to interfere with or disrupt, the access of any user, host or network by any means including sending a virus, overloading, flooding, spamming, mail-bombing airG, the Sites or the Services or any of them, or scripting the creation of User Generated Content (defined below) in such a manner as to interfere with, or create an undue burden on, airG or its users;
(i) collect information or User Generated Content posted by others using automated means;
(j) offer any contest, giveaway or sweepstakes on the Sites or the Services without airG’s prior written consent;
(k) facilitate or encourage any violations of this EULA;
(l) remove or destroy any copyright notices or other proprietary markings contained on or in the Sites or any of the Services;
(m) use your personal profile for your own commercial gain (including selling your profile or any part thereof to an advertiser);
(n) transfer your account or any part thereof to anyone without first getting airG’s written permission;
(o) post anyone’s identification documents or sensitive financial information;
(p) use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Services and Sites;
(q) use the Service to design or assist in the design of cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software to modify or interfere with the Services and Sites;
(r) use any unauthorized third-party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Services and Sites, or that is in transit from or to the Services and Sites, including any software that reads areas of RAM or streams of network traffic used by the Services and Sites, to store information about characters, elements or environment;
(s) intercept, examine, or otherwise observe any proprietary communications protocol used by a client, a server or the Services and Sites, whether through the use of a network analyzer, packet sniffer or other device;
(t) bypass any robot exclusion headers or other measures we take to restrict access to the Services and Sites, or use any software, technology, or device to send content or messages, scrape, spider or crawl the Services and sites, or harvest or manipulate data;
(u) use, facilitate, create or maintain any unauthorized connection to the Services, Sites or Games, including (a) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Services and Sites, or (b) any connection using programs, tools or software not expressly approved by airG; and
(v) copy, modify or distribute rights or content from any Sites, or airG’s copyrights or trademarks or use any method to copy or distribute the content of the Services except as specifically allowed in this EULA.
Except as expressly stated herein, no part of the Sites or the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.
Any future release, update, or other addition to functionality of the Sites or the Services shall be subject to the terms of this EULA. All copyright and other proprietary notices on any Sites or Service must be retained on any copies.
airG may suspend or terminate your account in accordance with Section 30, ” Termination” below,
6. Communications from airG. As part of providing the Sites and the Services, airG may send certain communications such as service announcements and administrative messages. These communications are considered part of the Services, and you will not be able to opt out of receiving them. By using the Services or any of them, you agree to accept these communications.
7. Local Laws. airG makes no representation that the Sites or the Services are appropriate for use in locations other than Canada and the United States. You are solely responsible for compliance with all applicable laws, including export and import regulations. Any diversion of the Sites or the Services contrary to Canadian or United States law is prohibited.
8. Modification. airG reserves the right, at any time, to modify, suspend, or discontinue the Sites or the Services or any part thereof with or without notice. You agree that airG will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Sites or the Services or any part thereof. In addition, airG reserves the right to create limits on use and storage at airG’s discretion at any time without prior notice to you.
9. Product Claims. You agree that airG alone is responsible for addressing any claims by you or a third party relating to the Services or your possession and/or use of the Services including (a) product liability claims; (b) any claim that the Services or any of them fail to conform to any legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
10. Feedback. If you provide airG any feedback or suggestions (“Feedback”), you hereby assign to airG all rights in the Feedback and agree that airG shall have the right to use such Feedback and related information in any manner it deems appropriate. airG will treat any Feedback you provide to airG as non-confidential and non-proprietary information. You will not submit to airG any information or ideas that you consider to be confidential or proprietary.
11. User Generated Content. “User Generated Content” means information, data or other content (including text, images, text film, video, clips, streaming video footage, games, music, streaming audio and similar content, in any form) generated or otherwise sourced by you and uploaded to any Service. You are solely responsible for your User Generated Content, and you should only provide content that you are comfortable sharing with others. You assume all risks associated with use of your User Generated Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Generated Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Generated Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Generated Content is in any way provided, sponsored or endorsed by airG or the Service. airG is not obligated to backup any User Generated Content. User Generated Content may be deleted by us at anytime. You are solely responsible for creating backup copies of your User Generated Content if you want such content to be saved.
12. License from You to airG. By uploading, distributing, or otherwise using your User Generated Content with the Sites or any of the Services, you automatically grant, and you represent and warrant that you have the right to grant, to airG an irrevocable, nonexclusive, royalty-free (i.e. no compensation paid to you or anyone else) and fully paid worldwide license (a) to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Generated Content (excluding any private messages), and to grant sublicenses of the foregoing, solely for the purposes of providing you the Sites and the Services and to improve our Sites and the Services and (b) to reproduce and distribute your User Generated Content. You irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Generated Content. You understand that your User Generated Content may be rebroadcast by other users and that, if you do not have the right to submit User Generated Content for such use, such submission and rebroadcast may subject you to liability.
airG may, but has no obligation to, store your User Generated Content for as long as airG, in its sole discretion, determines is necessary.
13. User Messages. airG is not responsible for the content of any messages sent by any user to any other user, whether the message is read by the intended recipient or someone other than the intended recipient. By using the Services and Sites you are consenting to receive messages from other users and you agree that airG does not control or moderate, and has no responsibility for the content of, any message sent by any person or entity other than airG. airG may, but has no obligation to store User Messages for as long as airG, in its sole discretion, determines is necessary.
14. Other Users. The Sites and the Services may contain User Generated Content provided by other users of the Sites and the Services. airG is not responsible for and does not control User Generated Content. airG has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to User Generated Content. You use all User Generated Content and interact with other airG users at your own risk. Your interactions with other users are solely between you and the other user, and airG is under no obligation to become involved. You agree that airG and your MSP will not be responsible for any liability or damage incurred as the result of any such interactions.
15. Acceptable Use Policy.
You will not use the Sites or any of the Services to upload, distribute, or otherwise use any User Generated Content that (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) is tortious, trade libelous, defamatory, false, or intentionally misleading; (iii) is harassing, abusive, threatening, harmful, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual, or is otherwise objectionable; (iv) is harmful to minors in any way; (v) constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (vi) violates any law, regulation, or contractual obligation.
You will not use the Sites or the Services to: (i) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) collect information or data (including email addresses, telephone numbers) regarding other users without their consent (including e.g., using harvesting bots, robots, spiders, or scrapers); (iii) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Sites (including e.g., a denial of service attack); (iv) attempt to gain unauthorized access to the Sites or the Services or servers or networks connected to the Sites (e.g., through password mining); or (v) interfere with another user’s use and enjoyment of the Sites or the Services; (vi) post credit card numbers or similar numbers or information; (vii) impersonate any person or entity (including, but not limited to, any airG official, forum leader, guide or host) or falsely state or otherwise misrepresent your affiliation with a person or entity;
16. Cookies. When you use certain Sites, airG may store one or more cookies (a small text file containing a string of alphanumeric characters) on your mobile device that uniquely identifies your browser. These cookies may store your unique account ID, an API key, your profile information and your username, but no other personal information. Certain Sites may use persistent cookies. A persistent cookie remains after you close your browser, and may be used by your browser on subsequent visits to the Sites. Persistent cookies can be removed by following your web browser help file directions. You can reset your web browser to refuse all cookies or to indicate when a cookie is being sent. However, the Service and Sites may not function properly if the ability to accept cookies is disabled. By using the Services and Sites, you agree to accept the placement of cookies on your browser.
17. Local Storage. Local storage is a key value data store that is built into modern browsers. Certain Sites and Services may use such local storage as a data cache to store items the Services and Sites have recently downloaded from the server in order to enhance performance of the Services and Sites. The Services and Sites will store your profile information in local storage.
Local storage is stored indefinitely inside your browser. By using local storage, the Services and Sites make fewer calls to the server and saves on your data consumption.
You may wish to delete local storage through your browser, although some browsers do not allow for such deletion. If you delete all local storage, the Services and Sites will rebuild local storage the next time you use them. If you delete part of the information stored in local storage, the Services and Sites may not operate properly.
Additional Terms For airG Credits.
18. airG Credits Description. airG Credits are a virtual currency purchased with “real world” money and offered to you by airG subject to your acceptance, without modification, of the terms, conditions, policies and notices contained in this EULA. airG Credits may never be redeemed for “real world” money, goods or other items of monetary value. airG Credits include virtual coins, cash, token or points which can be used to purchase virtual items. All virtual in-game digital items are “Virtual Goods” for purposes of this EULA. Note that airG Credits are NOT included in the definition of “Virtual Goods”.
Your use of airG Credits constitutes your agreement to these terms, conditions, policies and notices. If you (or, if applicable, your parent or guardian) do not agree to be bound by this EULA, you are not permitted to use or access airG Credits. Please note that airG may terminate this EULA and your rights hereunder at any time in accordance with Section 30 “Termination” below.
To the extent this EULA conflicts with any agreement you make with PayPal or your MSP, or any policy, rule or conduct that conflicts with those offered by PayPal or your MSP, this EULA shall govern.
You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your account or any Virtual Goods or airG Credits associated with your account to anyone without airG’s prior written permission. You shall not access or use an account which has been rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the account creator without airG’s prior written permission.
No refunds will be made for purchases of Virtual Goods or airG Credits.
You agree to (i) immediately notify PayPal or your MSP (depending on the identity of your vendor) and airG of any unauthorized use of your account or any other breach of security, and (ii) secure your account and internet enabled devices from third party access. None of airG, PayPal, or your MSP will be liable for any loss or damage arising from your failure to comply with this section.
19. airG Credits License. You acknowledge and agree that airG Credits represent a limited license right to a virtual good which is governed by the terms of this EULA, and that such airG Credits have no cash value and are not redeemable for any sum of money or monetary value from airG, PayPal, your MSP or any other entity or person at any time. Neither airG Credits nor Virtual Goods constitute a personal property right.
20. airG Credits – Children. The Services and Sites are not knowingly provided, directed or targeted to children. If you are under the age of majority in your jurisdiction, you must make sure that your parent or guardian reads and accepts these terms and all agreements incorporated by reference on your behalf prior to your use of airG Credits.
If you are not of the age of majority in the country of your residence, you represent that your parent or legal guardian has reviewed and agreed to these terms before your adoption of activities that indicate acceptance of this airG Credits terms.
21. Features of airG Credits. airG Credits are for your individual, non-commercial, entertainment purposes only.
airG itself does not impose any limitations or restrictions on the number of airG Credits that you may purchase or hold at any particular time, although PayPal or your MSP may impose certain limits or restrictions.
airG Credits are sold in your local currency. Whether the price quoted to you for the purchase of airG Credits includes tax is determined by the vendor from which you make such purchase; the price of such tax may be embedded in the cost quoted to you or may be added to the price offered.
airG Credits purchased in one country in its currency can be used when you are in another country so long as you employ the same username, and the Site in both countries is supported by PayPal, or your MSP, depending on the identity of the vendor you used in the first country.
airG, PayPal, or your MSP has the right to impose limits on the amount of currency that you may spend on airG Credits at stated intervals. You are solely responsible for verifying that the proper number of airG Credits have been added or deducted from your account. You can view your account through your online wallet (the “Wallet”). If you believe that a mistake has been made with respect to your airG Credits balance, please contact PayPal, or your MSP immediately so PayPal, or your MSP can investigate the matter. Note that airG, PayPal, or your MSP may require additional information and/or documentation to verify your claim. You agree that airG and/or PayPal and/or your MSP have sole and absolute discretion in determining whether or not your claim is valid and, if so, the appropriate remedy.
22. Modifications – airG Credits. You acknowledge that airG has been, is, and will be constantly making changes to characters, items, Virtual Goods, airG Credits and the Services. You further acknowledge that airG retains the unfettered right to modify features, functions or abilities of any elements of Virtual Goods, the Services or airG Credits (which may, among other things, make airG Credits substantially more valuable, effective or functional, or less valuable, effective or functional, more common or less common or eliminated entirely).
23. Your Warranties – airG Credits. In addition to the Restrictions and Acceptable Use Policy sections above, if you elect to purchase airG Credits, you warrant that (i) you are of the age of majority in your jurisdiction or, if you are a minor, your parent or guardian has read and accepted this EULA on your behalf, (ii) all information that you submit is true and accurate, and (iii) you agree to pay all fees you incur, unless and until you affirmatively terminate your account or your account is deleted for reasons referred to below, Termination of your account; however, should you owe amounts at the time of such termination – whether such termination is voluntary or involuntary - you continue to owe such amounts.
You warrant that you will not purchase, or attempt to purchase, Virtual Goods of any kind using a fraudulent payment vehicle including but not limited to a credit card you have no right to use. In such instances, airG will determine, in its sole discretion, the appropriate response; this response may include reporting the activity to law enforcement and/or a payment processor such as PayPal or your MSP as well as termination of your account.
You further warrant that you will not, under any circumstances, (i) engage in any act that airG deems to be in conflict with the spirit or intent of the Services and Sites including circumventing or manipulating this EULA, our Services mechanics or policies; (ii) make improper use of airG’s or PayPal’s or your MSP’s support services, including by submitting false abuse reports.
Additional Terms for airG Big Barn World Auction House.
24. Currency. Some items will be offered for sale for Barn Bux; if that is the case, you may not bid on those items with any currency other than Barn Bux.
Some items will be offered for sale for airG Credits; if that is the case, you may not bid on those items with any currency other than airG Credits.
Barn Bux and airG Credits are the only currencies accepted at the Big Barn World Auction House.
25. If You Are The Seller. You will be able to offer any Virtual Good (other than airG Credits) for sale in the Auction House in exchange for a listing fee set by airG in your chosen currency of Barn Bux or airG Credits. The starting price for each item accepted for auction will be 1 Barn Bux or 2 airG Credits, depending on the currency chosen by you, the seller
Once you have listed an item for auction, you will be unable to cancel that offer.
A “bid cap” will be imposed on each item offered for auction; the “bid cap” is the maximum that can be offered by a bidder for a particular item. Such “bid cap” will be operable in either currency.
The auction for your item will be “live” for 24 hours after it has begun; however, each bid entered within the final 5 minutes of an auction will extend that auction for an additional 20 seconds.
If you sell your item through the Auction House, we will also take a final transaction fee on the ultimate sale price of each item sold; such final transaction fee will be the greater of 1 airG Credit or 15% of the final sale price. Such final transaction fee will be deducted from the amount of currency deposited into your account after the close of the auction. Note that you will not be able to charge the burden of the final transaction fee to your purchaser.
If there are no bids placed for the item you have offered for auction, the item will be returned to your account but we will keep the listing fee that has already been charged.
26. If You Are a Bidder. You may not purchase an item for anyone other than yourself.
If you are the bidder for an item, the “funds” you use to support your bid (either Barn Bux or airG Credits) will be removed from our account and placed into escrow to cover the purchase should you be the winning bidder. However, should you be outbid by another user, the “funds” will be returned to your account in the currency in which they were removed.
The only “minimum bid” increments are that you are unable to bid anything less than 1 Barn Bux or 1 airG Credit; no fraction of a Barn Bux or airG Credit can be offered as a bid increment.
You may offer a “maximum bid” in an attempt to ensure that you win a particular auction. For example, a seller may offer an item for which you offer 10 Barn Bux as your “maximum bid”. At the start of the auction, the item is offered for 1 Barn Bux and, when you place your “maximum bid” of 10 Barn Bux, the auction will show that the bid is currently 2 Barn Bux. If another user offers 3 Barn Bux, your maximum bid of 10 Barn Bux will cause the auction to show that the winning bid is currently 4 Barn Bux. The same sequence will occur as bids on the item increase. However, if the auction ends with you winning the item at 4 Barn Bux, the remaining 6 Barn Bux will be returned to your account.
Further, you warrant that you will not purchase, or attempt to purchase, Virtual Goods of any kind using a fraudulent payment vehicle including but not limited to a credit card which you have no right to use. In such instances, airG will determine, in its sole discretion, the appropriate response; this response may include reporting the activity to law enforcement and/or a payment processor such as PayPal or your MSP as well as termination of your account.
27. If You Are the Successful Bidder and, therefore, the Purchaser. Once the auction for that item has closed, the currency used for the successful bid – already deducted from your account - will be transferred from escrow to the seller’s account and the Virtual Good you have purchased will be placed in your account within no more than 24 hours of the close of the auction.
28. Copyright Infringement. If you believe that your copyright rights have been infringed by a user of the Services or Sites, please provide airG with the written information specified below. Please note that this procedure is exclusive for notifying airG that your copyright material has been infringed. An electronic or physical signature of the person who is authorized to act on behalf of the owner of the copyright interest;
airG’s Copyright Agent for notice of claims of copyright infringement on its Sites can be reached as follows:
airG Legal Department
#710 – 1133 Melville Street
Vancouver, B.C., V6 E 4E5
29. Enforcement. We reserve the right (but have no obligation) to review any User Generated Content at our sole discretion. We may remove or modify or refuse to distribute your User Generated Content at any time for any reason in our sole discretion with or without notice to you. We also reserve the right to access, read, preserve, and disclose any information related to you or your use of the Service, as we reasonably believe is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request; (b) enforce the terms of this EULA, including investigation of potential violations of this EULA; (c) detect, prevent, or otherwise address fraud, security or technical issues; (d) respond to user support requests; or (e) protect the rights, property or safety of airG, the Sites, the Services, its users and the public. We may suspend or terminate your account in accordance with Section “Term and Termination”, below.
30. Termination. We may (a) suspend your rights to use the Sites, the Services, airG Credits, or any of them, and/or account or (b) terminate this EULA as it pertains to you. We may suspend or terminate at any time for any reason at our sole discretion with or without notice to you, including if we in good faith believe you have violated the Acceptable Use Policy or any other provision of this EULA or any applicable law. Without limiting the foregoing, airG reserves the right to terminate its EULA with any user who repeatedly infringes third party intellectual property rights upon notification to airG by the intellectual property rights owner or the owner’s legal agent. airG reserves the right to limit, reduce, liquidate, deactivate, suspend or terminate your account and your access to the Services and Sites, or portions thereof if you are, or if airG or PayPal or your MSP suspects, in the sole discretion of any of those entities, that you are, or have been involved in fraud or the misuse of airG Credits, Virtual Goods or the Services. In addition, airG may suspend or terminate your access for any or no reason. We may also add or create new limits to the Services at any time.
Upon termination of this EULA, your account and right to use the Sites and the Services or any of them will automatically terminate immediately. You understand that any termination of your account may involve the deletion of your User Generated Content from our live databases. airG will not have any liability whatsoever to you for any termination of this EULA, including for termination of your account or deletion of your User Generated Content.
When your account is terminated for any reason, all airG Credits held in your Wallet and all Virtual Goods you have purchased will be forfeited with no opportunity for refund, reimbursement or any other form of repayment. If your account has been terminated, you will be banned from using any and all airG services in the future.
If we terminate your account for any reason, you may not create another account without our permission.
Even after this EULA is terminated as it pertains to you, the following provisions of this EULA will remain in effect: 1,4,5,12, ,19, 23, 29,,32,33, 34,,35, ,38,41,43.
31. Third Party Sites and Ads. The Sites and Services may contain links to third party websites and advertisements for third parties (collectively, “Third Party Sites & Ads”). You agree to accept Ads from airG as well as from third parties with whom airG contracts so that those third parties can offer their goods and services to you. airG is not responsible for and does not control Third Party Sites & Ads. airG provides these Third Party Sites & Ads only as a convenience to you. airG has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you access a Third Party Sites & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy policies. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any Third Party Sites & Ads.
32. Indemnity. You agree to defend, indemnify and hold harmless airG, its officers, directors, employees, contractors, agents and suppliers from and against any and all claims, suits, losses, damages, obligations, liabilities, costs, debts and expenses (including attorneys’ fees) brought by third parties resulting from or relating to (a) your use of the Sites or the Services, (b) your User Generated Content, (c) your violation of this EULA, (d) your violation of any third party right, including any intellectual property, property or privacy right, or (e) any claim that your User Generated Content caused damage to a third party. airG reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify airG, and you agree to cooperate with airG’s defense of these claims. You agree not to settle any matter related to this EULA or your use of the Sites or the Services or any of them without the prior written consent of airG. airG will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
You agree that airG has no indemnity obligations to you.
33. Release. You hereby irrevocably and unconditionally release and forever discharge airG, its officers, directors, employees, agents and suppliers from any and all claims, demands, and rights of action, whether now known or unknown, which relate to any interactions with, or act or omission of, any other Sites or airG users or Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING. THAT CODE SECTION STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
34. Disclaimers. THE SITES AND THE SERVICES AND airG CREDITS ARE AT YOUR SOLE RISK AND ARE PROVIDED “AS-IS” AND AS AVAILABLE AND airG, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. airG, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS MAKE NO WARRANTY THAT THE SITES OR THE SERVICES OR THE airG CREDITS (A) WILL MEET YOUR REQUIREMENTS, (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE, (D) WILL BE ABLE TO PROVIDE YOU WITH PRIOR NOTICE THAT THE SITES OR THE SERVICES OR BOTH, OR ANY FEATURE THEREOF, OR THE airG CREDITS OR ANY FEATURE THEREOF WILL BECOME EITHER PERMANENTLY OR TEMPORARILY UNAVAILABLE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
35. Limitation on Liability.
IN NO EVENT SHALL airG, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY OTHER DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS EULA, THE SITES OR THE SERVICES OR airG CREDITS, EVEN IF airG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS APPLICABLE TO LOSSES INCLUDING DAMAGES RESULTING FROM (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (B) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SITES OR THE SERVICES OR airG CREDITS, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF airG’s SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM airG’s SERVERS, (E) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. THESE LIMITATIONS APPLY WHETHER THE CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY. YOU SPECIFICALLY ACKNOWLEDGE THAT airG SHALL NOT BE LIABLE FOR USER GENERATED CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
ACCESS TO, AND USE OF, THE SITES AND THE SERVICES AND airG CREDITS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE SITES OR THE SERVICES OR airG CREDITS MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
airG makes no representations that the Sites and/or the Services are appropriate or available for use in your location. Those who access or use the Sites or the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
36. Changes to this EULA. This EULA is subject to occasional revision. Any changes to this EULA will be effective upon our posting of the most recent version of this EULA on the Sites. These changes will be effective immediately for users of the Sites or the Services. Continued use of the Sites or the Services following posting of the most recent version of this EULA shall indicate your acknowledgement of any such changes and your agreement to be bound by the terms and conditions of such changes. The date on which the latest update was made is indicated on this first page of this document. We recommend that you revisit this EULA from time to time to ensure you are aware of any changes.
37. Notice. You are responsible for providing airG with your most current e-mail address. In the event that the last e-mail address you have provided to airG is not valid, or for any reason is not capable of delivering to you any notices required/permitted by this EULA, airG’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
Any notice provided to airG pursuant to this EULA should be sent to:
710-1133 Melville Street
Vancouver, BC, Canada V6E 4E5
Attn: Corporate Counsel
38. Governing Law; Jurisdiction. This EULA shall be governed by the laws of British Columbia, Canada without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the courts located within Vancouver, British Columbia, Canada for the purpose of litigating all such claims or disputes, and you further agree that the Sites and the Services shall be deemed a passive server whose activities do not give rise to personal jurisdiction over airG, either specific or general, in jurisdictions other than British Columbia, Canada. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect airG’s intellectual property rights in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA.
39. Improperly filed claims. All claims you bring against airG must be resolved in accordance with this Governing Law section above. All claims filed or brought contrary to the Governing Law section above or any other applicable section shall be considered improperly filed. Should you file a claim contrary to the governing Law Section above, or any other applicable section, airG shall be entitled to recover attorneys’ fees and costs up to $1000, provided that airG has notified you in writing of the improperly filed claim and you have failed to promptly withdraw that claim.
40. Severability. If any provision of this EULA is, for any reason, held to be invalid or unenforceable, the other provisions of this EULA will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
42. Force majeure. airG shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of airG including any failure to perform hereunder due to unforeseen circumstances or cause beyond airG’s control including acts of God, war, terrorism, riots, zombie apocalypse, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
43. Records Retention. Your account details including name, phone number, email, password and profile photo plus any User Generated Content and messages you send and messages sent to you will be stored in the United States and/or Canada, the actual locations and length of time of storage is to be determined at the sole discretion of airG.
44. SMS Shortcode 29947 – USA Customers. Please note the following:
45. Third Party Beneficiary – Download From Apple Inc.’s App Store. If You obtained the Service via a download from Apple Inc’s app store then You and airG acknowledge and agree that Apple Inc., and Apple Inc.’s subsidiaries, are third party beneficiaries of the EULA, and that, upon Your acceptance of the terms and conditions of this EULA, Apple Inc. will have the right (and will be deemed to have accepted the right) to enforce the EULA against You as a third party beneficiary thereof.
airG, #710 – 1133 Melville Street Vancouver, B.C., V6E 4E5
airG is a pioneer in the mobile software industry having released its first mobile application in 2000. Since then the company’s products and services have been used by over 100 million consumers globally, generating more than $1 billion in revenues.
|Suite 710 - 1133 Melville Street Vancouver, British Columbia, Canada V6E 4E5|