Agreement to Terms
By accessing or using our Services, you agree to be bound by these Terms. If you do not agree to these Terms, do not use the Services.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or Apps or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site or Apps, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you can’t use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Creating an Account
In order to access and use the Services, you will need to register and create an account (your “Account”). By creating an Account, you represent that you are 16 years or older and are not barred from using the Services under applicable law. When creating an Account, you may be required to provide certain PII about yourself and will establish a username and a password. You agree to provide accurate, current and complete information about your Account.
When creating an Account, don’t:
provide any false PII to us (including a false username) or create any Account for anyone other than yourself without such other person’s permission;
use a username that is the name of another person with the intent to impersonate that person;
use a username that is subject to rights of another person without appropriate authorization; or
use a username that is offensive, vulgar or obscene or otherwise in bad taste.
We reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, false or misleading or to reclaim any username that you create through the Services that violates our Terms. You are responsible for maintaining the confidentiality of your password and Account, and agree to notify us if your password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. You are responsible for activities that occur under your Account.
You can link your Account to various webmail, social networking, and other online accounts. You may only link your own accounts. We will access and retrieve your account information from these sites on your behalf (in some cases, by using your username and password) to make certain information or services available to you through the Services. By linking your other accounts, you expressly authorize us to access your account information from those third party accounts, on your behalf and permit us to access, use and, in some cases, store your account information to accomplish the foregoing.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at [email protected] You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services. Content includes without limitation User Content.
Aye does not claim any ownership rights in any User Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Aye and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Rights in User Content Granted by You
You are responsible for the User Content that you post to the Services, including its legality, reliability, and appropriateness. By posting User Content to the Services, you grant Aye a non-exclusive, transferable, sublicenseable, worldwide, royalty-free right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such User Content on and through the Services. You agree that this license includes the right for us to make such User Content available to other users of the Services, who may also use such User Content subject to these Terms.
You represent and warrant that: (i) the User Content is yours (you own it) or you have the right to use it and grant us the rights and license as provided in these Terms, and (ii) the posting of the User Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.
We ask that you respect our on-line community and other users when posting User Content and using the Services. When submitting User Content to or otherwise using the Services, you agree not to:
submit material that violates a third party’s proprietary rights, including privacy and publicity rights, or that otherwise violates any applicable law;
publish falsehoods or misrepresentations that could damage us, our users or any third party;
publish any private information of someone, like their address, phone number, email address, and similar information without their permission;
submit material that is unlawful, obscene, 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;
impersonate another person or represent yourself as affiliated with us, our staff or other industry professionals;
solicit a user’s password or other account information; or
harvest user names, addresses, or email addresses for any purpose.
This list is an example and is not intended to be complete or exclusive. We don’t have an obligation to monitor your access to or use of the Services or to review or edit any Content, but we have the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. We reserve the right, at any time and without prior notice, to remove or disable access to any Content that we consider, in our sole discretion, to be in violation of these Terms or otherwise harmful to the Services.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Content on the Services
Subject to your compliance with these Terms, Aye grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to access and view the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
The Content available through the Services has not been verified or authenticated by us, and may include inaccuracies or false information. We make no representations, warranties, or guarantees in connection with our Services or any Content on the Services, relating to the quality, suitability, truth, accuracy or completeness of any content contained in the Services. You acknowledge sole responsibility for and assume all risk arising from your use or reliance of any Content.
Rights and Terms for Apps
Subject to your compliance with these Terms, you have the right to download and install a copy of any App(s) to your mobile device, and to access and use the Services, for your own personal use. With respect to each App you download, you may not: (i) copy, modify or distribute the App for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the App or the Services to any third party; (iii) decompile, reverse-engineer, disassemble, or create derivative works of the App or the Services; (iv) make the functionality of the App or the Services available to multiple users through any means; or (v) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms.
The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each, an “App Provider”). You acknowledge and agree that:
These Terms are concluded between you and Aye, and not with the App Provider, and that Aye (not the App Provider), is solely responsible for the App.
The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Aye.
The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Aye will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
The App Provider, and its subsidiaries, are third party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third party beneficiary thereof.
You must also comply with all applicable third party terms of service when using the App.
Our Services may change from time to time and/or we may stop (permanently or temporarily) providing the Services (or features within the Services), possibly without prior notice to you. Our Services may include advertisements, which may be targeted to the content or information on the Services, queries made through the Services, or from other information. The types and extent of advertising on the Services are also subject to change over time. In consideration for providing you the Services, you agree that we and our third party providers and partners may place advertising on our Services or in connection with the display of content or information on our Services.
Aye respects copyright law and expects its users to do the same. It is Aye’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe the rights of copyright holders.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
Our Services may be used and accessed for lawful purposes only. You agree that you will not do any of the following while using or accessing the Services: (i) attempt to access or search the Services or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by us or other generally available third party web browsers; (ii) access, tamper with, or use non-public areas of the Services, our computer systems, or the technical delivery systems of our providers; (iii) gather and use information, such as other users’ names, real names, email addresses, available through the Services to transmit any unsolicited advertising, junk mail, spam or other form of solicitation; (iv) use the Services for any commercial purpose or for the benefit of any third party or in any manner not by these Terms; (v) violate any applicable law or regulation; or (vi) encourage or enable any other individual to do any of the foregoing. We reserve the right to investigate and prosecute violations of any of the above and/or involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless MobGum LLC (“Aye”), 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 Services; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your User Content caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the Services.
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Aye on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Aye, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Aye by someone else.
Agreement to Binding Arbitration Between You and Aye.
You and Aye agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Aye, and not in a court of law.
You acknowledge and agree that you and Aye are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Aye otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Aye each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Texas.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Texas and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
Location and Procedure.
Unless you and Aye otherwise agree, the arbitration will be conducted in state of Texas. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Aye submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Aye will not seek, and hereby waives all rights Aye may have under applicable law to recover, attorneys’ fees and expenses if Aye prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions in Section I above, regarding consent to be bound by amendments to these Terms, if Aye changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing Aye written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided by email from the email address associated with your Account to: [email protected] In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Aye in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
Severability and Survival.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you.
Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
The Services and Content are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
Limitation of Liability
NEITHER Aye NOR ANY OTHER party involved in creating, producing, or delivering the services or content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the ServiceS or CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not Aye has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In no event will Aye’S total liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE the ServiceS or content EXCEED THE Greater of the AMOUNTS YOU HAVE PAID TO Aye FOR USE OF THE SERVICES OR content OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO Aye, AS APPLICABLE. THE LIMITATIONs OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Aye AND YOU.
These Terms constitute the entire and exclusive understanding and agreement between Aye and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Aye and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Aye’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Aye may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Aye under these Terms, including those regarding modifications to these Terms, will be given: by Aye (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Aye’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Aye. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Questions & contact information
If you have any questions about these Terms or the Services, please contact Aye at [email protected]
Aye COPYRIGHT & INTELLECTUAL PROPERTY POLICY
MobGum LLC (“Aye”) respects the intellectual property rights of others and expects its users to do the same.
It is Aye’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe the copyrights or other intellectual property rights of others.
In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Aye will respond expeditiously to claims of copyright infringement committed using the Aye mobile device applications or website (the “Services”) that are reported to Aye’s Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Services by completing the following DMCA Notice of Alleged Infringement and delivering it to Aye’s Designated Copyright Agent. Upon receipt of the Notice as described below, Aye will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Services.
DMCA Notice of Alleged Infringement (“Notice”)
Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Service(s) where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to [email protected]
Notification of Trademark Infringement:
If you believe that your trademark (the “Mark”) is being used on the Service by a user in a way that constitutes trademark infringement, please provide Aye’s Designated Copyright Agent (specified above) with the following information:
Your full legal name and your electronic or physical signature.
Information reasonably sufficient to permit Aye to contact you or your authorized agent, including a name, mailing address, telephone number and, if available, an email address.
Identification of the Mark(s) alleged to have been infringed, including (i) for registered Marks, a copy of each relevant federal trademark registration certificate or (ii) for common law or other Marks, evidence sufficient to establish your claimed rights in the Mark, including the nature of your use of the Mark, and the time period and geographic area in which the Mark has been used by you.
Information reasonably sufficient to permit Aye to identify the use being challenged.
Include both of the following statements in the body of the notice:
“I hereby state that I have not authorized the challenged use, and I have a good- faith belief that the challenged use is not authorized by law.”
“I hereby state under penalty of perjury that all of the information in the notification is accurate and that I am the owner of the Mark, or authorized to act on behalf of the owner of the Mark.”
Upon receipt of notice as described above, Aye will seek to confirm the existence of the Mark on the Services, notify the registered user who posted the content including the Mark, and take whatever action, in its sole discretion, it deems appropriate, including temporary or permanent removal of the Mark from the Services.