This web site and the Content (as defined below) contained hereon (collectively referred to as the "Site" unless specifically stated otherwise) are made available to you pursuant to the following Terms of Use and any other rules or policies posted on the Site (collectively referred to as the "Terms of Use Agreement"). All such rules and policies are incorporated by reference into this Terms of Use Agreement. By accessing, browsing and/or using the Site, you acknowledge that you have read, understood, and agree to be bound by this Terms of Use Agreement. If you do not agree with any provision of this Terms of Use Agreement, you are not authorized to access or use the Site for any purpose.
The Site is owned and operated by PocketGear, Inc and/or its subsidiaries and affiliates ("we", "us" or "our"). We reserve the right to modify this Terms of Use Agreement at any time without giving you prior notice. You are responsible for regularly reviewing this Terms of Use Agreement. Your use of the Site following any such modification constitutes your agreement to follow and be bound by this Terms of Use Agreement as modified. We may cancel or terminate your right to use the Site or any part of the Site at any time without notice.
All software, object code, source code, schematics, data (including metadata), text, sound, graphic material, audio and video material, photographs, illustrations, artwork, images, documents, papers, instructions, proprietary information and all copyrightable or otherwise legally protectible elements of the Site or available on or through the Site, including, without limitation, all trademarks, service marks and trade names (individually and/or collectively, the "Content"), are our property or the property of our subsidiaries, affiliates, or other third parties and are legally protected under all applicable local, state, national and international intellectual property and other laws, regulations and treaties.
Your use of the Site or any of the Content available through the Site constitutes your acknowledgement that the Site and the Content contain proprietary and confidential information owned by us or other third parties. You hereby agree not to alter, delete or conceal any copyright, trademark or other proprietary notices of any party from the Content or the Site or any materials thereon. You hereby agree not to reproduce, modify, copy, distribute, disseminate, transmit, display, perform, broadcast, reproduce, publish, assign, license, sublicense, create derivative works from, reverse engineer, reverse assemble, loan, transfer, circulate to any third party (including, without limitation, on or via a third party web site), attempt to discover source code, or sell in any way any Content included on the Site without the express prior written permission of us or other applicable third parties. Trademarks, service marks, and trade dress owned by us or other third parties may not be used in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits us or the applicable third party. Any unauthorized or prohibited use of any Content or the Site may subject you to civil liability or criminal prosecution, or both, under applicable law.
We hereby grant to you subject to this Terms of Use Agreement, a nonexclusive, nonsublicensable, non-transferable, limited license, during the term of this Terms of Use Agreement, to install and/or use in machine-readable form the Content which is made available for download. You may make one (1) copy of such Content only as necessary for backup or archive purposes in support of your use of such Content, provided that you reproduce all copyright and other proprietary notices that are on the original copies of the Content. Notwithstanding any of the foregoing, you hereby acknowledge that we and/or other third parties, as applicable, shall retain all other right, title and interest in and to the Content. All rights not expressly granted herein are reserved.
You are required to have an account with a unique user name and password combination to purchase Content on the Site.
You must provide current, complete, and accurate information to us in connection with your account in order to receive Content from the Site. It is your responsibility to keep the information that you provide to us up to date. We cannot and will not be responsible for any problems or liability that may arise if you do not give us accurate, truthful or complete information or if you fail to update the information you give us. Your purchase of Content through the Site constitutes your acknowledgement that you are of legal age to form a binding contract, and if not of legal age, that you have placed such order with the permission of a parent or legal guardian, and that you are not a person barred from using or receiving the Content available on the Site by any local, state, national or international law. If we have grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate any further purchases by you through the Site and to refuse any and all current or future use of the Site or any portion of the Site by you, for any reason at any time.
You are solely responsible for maintaining the confidentiality of your account information and for restricting access to your computer and handheld devices, and you agree to accept responsibility for all activities that occur under your account or password, including, but not limited to, any charges, costs, expenses, damages, liabilities and losses we incur or may suffer as a result of your failure to do so. We are not liable for any harm caused or related to the theft or misappropriation of your user name or password, disclosure of your user name or password, or your authorization of anyone else to use your user name or password. We reserve the right to take any and all action, as we deem necessary or advisable, to ensure the security of the Site and your account, including without limitation terminating your account, changing your password, or requesting additional information to authorize transactions on your account. Notwithstanding the above, we may rely on the authority of anyone accessing your account or using your password, and in no event and under no circumstances shall we be held liable for any liabilities or damages resulting from or arising out of (i) any action or inaction by us with respect to these matters, (ii) any compromise of the confidentiality of your account or password and (iii) any unauthorized access to your account or use of your password. Any unauthorized use of the Site will terminate the permission or license granted herein and may violate applicable law including copyright laws, trademark laws (including trade dress), and communications regulations and statutes. All violators will be prosecuted to the fullest extent of the law.
You hereby agree to immediately notify us if you become aware of or believe there is, or may have been, any unauthorized use of your user name or password or any other need to deactivate or change your user name or password due to security concerns.
The price of any Content purchased through the Site will be the price specified at the time of your purchase. Prices for all Content exclude applicable taxes and telecommunication charges, unless otherwise indicated. To the extent permissible by law, you agree to be responsible for any such applicable taxes and telecommunication charges. We reserve the right to collect applicable taxes and impose applicable telecommunication charges on all Content purchased from the Site. Notwithstanding the foregoing, the prices for all Content on the Site include VAT, if applicable.
Payment may be made via Visa, Mastercard, American Express and Discover cards (collectively referred to as the "Cards"). Upon presentation of a Card, you warrant that you are the cardholder or have the permission of the cardholder to use the Card and that the billing information provided is accurate. By purchasing Content by use of a Card, you authorize us to charge the Card for the purchase price of the Content being purchased, plus any taxes or telecommunication charges, if applicable.
We assume no liability for purchaser error, beta or trial versions, shareware, Content purchased for the wrong handheld device or platform, promotion codes or discounts not provided at the time of purchase or any other errors related to your actions or choices ("Purchaser Errors"). You accept full responsibility for confirming that the handheld device manufacturer, handheld device model, and carrier are supported and that the handheld device is compatible for the Content purchased, downloaded or otherwise obtained by you through the Site.
If you experience a malfunction in downloading the Content, or do not receive Content that you purchased, please contact customer service and we will use our commercially reasonable efforts to assist you with receiving the Content. If any Content that you purchase is defective or does not operate correctly for any reason other than Purchaser Error, please contact customer service and we will provide a replacement copy of the purchased Content. If the replacement copy of the Content is also defective, we will permit you to select another item of Content whose price is equal to or less than the price of the defective Content. We will not provide refunds or credits for any Content. In no event shall we be liable for any replacements, defects or other problems associated with downloads or purchases of Content through the Site after a period of thirty (30) calendar days has expired from the date of such download or purchase, as applicable.
This Privacy Policy governs the information collection and disclosure practices for the Site. When you choose to submit information through the Site, we may transfer, process and store the information in the United States, where data protection and privacy regulations may not offer the same level of protection as in other parts of the world, such as the European Union. You should note that the European Union has determined that the United States does not provide adequate data protection. Nevertheless, Article 26 of the European Union's Data Directive 95/46/EC (the "EU Data Directive") allows for the transfer of personal data from the European Union to a third country if the individual has unambiguously given his consent to the transfer of personal information, regardless of the third country's level of protection. By accepting this Terms of Use Agreement in connection with your Content purchase, you expressly consent to our collection and use of your personal information as described in this Privacy Policy and to its transfer to and/or processing and storage in the United States.
Pursuant to the EU Data Directive, we are the controller of personal data of users and customers of the Site. As the controller of personal data, we independently determine the purposes and means by which your personal data is processed, including all security measures.
General. In general, you can browse the Site without telling us who you are or revealing any personal information about yourself. However, if you wish to purchase or download any of the Content, you will be required to disclose certain information to us. You always have the option to not provide information by choosing not to purchase or download the Content.
Registration. In order to purchase or download Content from us, you must first create an account with us. During the account set-up process, you are required to give certain contact information, including your name, email address, and in some cases your approximate age. We use this information to contact you about the products and services on the Site in which you have expressed interest, and, in the case of your approximate age, to determine whether you old enough to use the Site. You may have the option to provide additional demographic information (such as income level, location, and gender) to us; we encourage you to submit this information so we can provide you a more personalized experience on the Site. Whenever possible, we indicate which fields are required and which fields are optional.
Orders. If you purchase or download Content from us, we request certain personally identifiable information from you on our order form. You must provide contact information (such as name, email, and address) and, where applicable, financial information (such as credit card number, expiration date and validation number). We use this information for billing purposes and to fulfill your orders. If we have trouble processing an order, we may use this information to contact you.
Surveys or Contests. From time-to-time we may provide you the opportunity to participate in contests or surveys on the Site. If you participate, we will request certain personally identifiable information from you. Participation in these surveys or contests is completely voluntary and you therefore have a choice whether or not to disclose this information. The requested information typically includes contact information (such as name and email address) and demographic information (such as zip code). We use this information to notify contest winners and to award prizes. We may use a third party service provider to conduct these surveys or contests.
Automatic Information. As is true of most web sites, we gather certain information automatically and store it in log files. This information includes internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information, which does not identify individual users, to analyze trends, to administer the Site, to track users' movements around the Site and to gather demographic information about our user base as a whole. We do not link this automatically-collected data to personally identifiable information.
Cookies. A cookie is a small text file that is stored on a user's computer for record-keeping purposes. We use cookies on the Site. We do not link the information we store in cookies to any personally identifiable information you submit while on the Site, unless you have elected to have the Site "remember" you, in which case the cookie will be linked to your user name. We may use both session ID cookies and/or persistent cookies. We use session ID cookies to make it easier for you to navigate the Site. A session ID cookie expires when you close your browser. A persistent cookie remains on your hard drive for an extended period of time. You can remove persistent cookies by following directions provided in your Internet browser's "help" file. We set a persistent cookie to store your password, so you don't have to enter it more than once. Persistent cookies also enable us to track and target the interests of our users to enhance the experience on the Site. If you reject cookies, you may still use the Site, but your ability to use some areas of the Site, such as contests or surveys, will be limited. This Privacy Policy covers the use of cookies by the Site only and does not cover the use of cookies by any advertisers or third parties. See the sections on "Third Party Advertisers" below. We may also use a third-party tracking service that uses cookies to track non-personally identifiable information about visitors to the Site in the aggregate. We do not control the use of cookies by third parties.
Clear Gifs (Web Beacons/Web Bugs). We may employ or our third party advertising partners may employ a software technology called clear gifs (a.k.a. web beacons/web bugs) that help us better manage the Content by informing us what Content is effective. Clear gifs are tiny graphics with a unique identifier, similar in function to cookies, that are used to track the online movements of web users. In contrast to cookies, which are stored on a user's computer hard drive, clear gifs are embedded invisibly on web pages or in HTML-based emails and are about the size of the period at the end of this sentence. We do not tie the information gathered by clear gifs to our customers' personally identifiable information. We may use clear gifs in our HTML-based emails to let us know which emails have been opened by recipients. This allows us to gauge the effectiveness of certain communications and the effectiveness of our marketing campaigns.
Correspondence. If you send us personal correspondence, such as emails or letters, or if other users or third parties send us correspondence about your activities or postings on the Site, we may collect such information into a file specific to you.
Third Party Advertisers. Ads appearing on the Site may be delivered to users by a third party advertising partner. We may share Site usage information about users with our advertising partners for the purpose of targeting our Internet banner advertisements on the Site. Such information will not be linked to personally-identifiable information. Our advertising partners may use cookies and/or clear GIFs, which allow them to recognize a user when a user visits the Site.
Information from Third Parties. In order to provide certain services to you, we may on occasion supplement the personal information you submitted to us with information from third party sources.
Generally. We use your personal information to fulfill orders and to facilitate the Content you purchase or request from us. We use your personal information in the file we maintain about you, and other information we obtain from your current and past activities on the Site to: resolve disputes; troubleshoot problems; collect fees owed; measure consumer interest in our products and services; inform you about online and offline offers, products, services, and updates; customize your experience; detect and protect us against error, fraud and other criminal activity; enforce this Terms of Use Agreement; and as otherwise described to you at the time of collection. We may compare and review your personal information for errors, omissions and for accuracy.
Special Offers and Updates. We may occasionally send you information on special deals or promotions. Out of respect for your privacy, you have the option not to receive these types of communications. Please see the "Choice and Opt-out" section of this Terms of Use Agreement.
Newsletters. If you wish to subscribe to our newsletters, we will use your name and email address to send the newsletter to you. Out of respect for your privacy, you have the option to unsubscribe from receiving some or all of the newsletters. Please see the "Choice and Opt-out" section of this Terms of Use Agreement.
Service-related Announcements. We will send you strictly service-related announcements on rare occasions when it is necessary to do so. For instance, if our service is temporarily suspended for maintenance, we might send you an email. Generally, you may not opt-out of these communications, which are not promotional in nature. If you do not wish to receive them, you have the option to deactivate your account.
Customer Service. Based upon the personally identifiable information you provide us, we will send you a welcoming email to verify your username and password. We will also communicate with you in response to your inquiries, to provide the services you request, and to manage your account.
Profile. We store information that we collect through your stated preferences, cookies, log files, clear gifs, and/or third party sources to create a "profile" of your preferences. We tie your personally identifiable information, and your activity history, to information in the profile, in order to provide tailored promotions and marketing offers and to improve the Content of the Site for you. We do not share your profile with other third parties, other than in aggregate, de-identified form.
Generally. As a matter of policy, we do not sell or rent any of your personal information to third parties for their marketing purposes without first providing you with an opportunity to opt-out. However, we may disclose your personal information to our subsidiaries, which are either subject to this Privacy Policy or follow practices at least as protective of your rights as those described in this Privacy Policy. The following sections describe some additional ways that we may disclose your personal information in the normal course of providing our services.
Suppliers, Developers & Partners. Where you purchase or download Content from the Site, we may disclose your name, email address and other information related to your purchase to our partner who is our supplier of that Content and/or our partner on whose behalf we operate the Site. This disclosure typically is to enable the developer, supplier or partner to provide support to you, and in certain cases to allow you to benefit from certain levels of support that are only available to registered users. We have no control over what these third parties do with the information that we disclose to them.
Agents and Service Providers. We may use third parties to provide, on our behalf, some portions of the Content available on the Site. For instance, we use credit card processing companies to bill you for Content, and we may use third party service providers to provide certain fulfillment services for some of our Content. We use our best efforts, to the extent commercially reasonable, to ensure that these companies do not retain, share, store or use personally identifiable information that we disclose to them for such purposes for any other purposes.
Your Use of the Site. If you participate in a bulletin board or other public forum offered by the Site, your User ID will be displayed on any content that you post and will be available to the public. Therefore, if you associate your name with your User ID, your name will be available to the public. Any other information about yourself that you include in such posts will be publicly available.
Legal Requests. We reserve the right to disclose your personally identifiable information as required by law and when we believe that disclosure is necessary to protect our rights and/or to comply with a judicial proceeding, court order, or legal process served on us or the Site.
Business Transition. In the event we go through a business transition, such as a merger, acquisition by another company, or sale of all or a portion of our assets, your personally identifiable information will likely be among the assets transferred.
Disclaimer. We cannot ensure that all of your private communications and other personal information will never be disclosed in ways not otherwise described in this Privacy Policy. By way of example (without limiting the foregoing), we may be forced to disclose personal information to the government or third parties under certain circumstances, third parties may unlawfully intercept or access transmissions or private communications, or users may abuse or misuse your personal information that they collect from the Site.
We provide you the opportunity to 'opt-out' of having your personally identifiable information used for certain purposes, when we ask for this information. You may also update your preferences at any time by accessing our member information area. You will be notified before your personal information is collected by any third party that is not our agent/service provider, so you can make an informed choice as to whether or not to share your information with that party.
This Privacy Policy applies only to information collected by the Site. The Site contains links to other sites that are not owned or controlled by us. Please be aware that we are not responsible for the terms of use or privacy practices of such other sites. We encourage you to be aware of when you leave our site and to read the terms of use and privacy statements of each and every web site that collects personally identifiable information.
If your personally identifiable information changes, or if you no longer desire some or all of our services, you may correct, update, delete or deactivate your personally identifiable information by making the change on our account information page or by emailing us at privacy@pocketgear.com
If you have questions or concerns about our policies concerning privacy, data collection, data processing or data transmission, please email us at privacy@pocketgear.com and we will respond to your inquiry within 30 days.
The security of your personal information is important to us. When you enter sensitive information (such as credit card number) on our registration or order forms, we encrypt that information using secure socket layer technology (SSL). We follow generally accepted industry standards to protect the personal information submitted to us from unauthorized access, disclosure, alteration, or destruction, both during transmission and once we receive it.
Subject to the other provisions of this Terms of Use Agreement, we will use our commercially reasonable efforts to help you with any questions that you may have regarding the Site or the purchase of Content. To reach our customer support team, please e-mail us.
You agree to use the Site and the Content only for lawful purposes and not to allow others to use your account, the Site, or the Content for any unlawful purpose. Use of the Site or Content in violation of any applicable law, regulation, ordinance, or other rule imposed by any governmental authority is prohibited.
Some Content, material, links and other information on the Site may not be appropriate or available for use in all jurisdictions, especially certain jurisdictions outside of the United Kingdom. Accessing any such Content, materials, links and other information from certain jurisdictions may be illegal and prohibited. Accessing any of the foregoing from any jurisdiction outside the United Kingdom is done at your own initiative and we are not responsible for your compliance with any laws imposed by such jurisdiction. You hereby agree that you shall not access any of the foregoing where prohibited by any applicable law.
You shall not use the Site in any manner that could damage, disable, overburden, or impair the Site or any Content or interfere with any other party's use and enjoyment of the Site or any Content. You may not attempt to gain unauthorized access to any accounts not registered to you, or computer systems or networks owned and operated by us through hacking, password mining or any other means. Violations of our system or network security may result in civil or criminal liability.
You may post reviews, comments, and other content, send other communications, and submit suggestions, ideas, comments, questions, or other information (collectively referred to as "Postings"), so long as the Postings are not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead readers as to the origin of any Posting.
Postings do not reflect our or our affiliates? views, and we do not monitor, endorse, edit or screen any Posting. In no event shall we or our affiliates have or be construed to have any responsibility or liability for or in connection with any Posting whatsoever; however, if we determine, in our sole discretion and judgment, that any Posting does or may violate any of the terms of this Terms of Use Agreement, we reserve the right (but not the obligation), at any time and without limiting any and all other rights we may have under this Terms of Use Agreement, at law or in equity, to: (a) refuse to allow you to Post; (b) remove, delete and/or edit Postings; (c) revoke your right to use the Site; and/or (d) use any technological, legal, operational or other means available to us to enforce the provisions of this Terms of Use Agreement, including, without limitation, blocking specific IP addresses or deactivating your account.
If a Posting originates from you or your account, and unless we indicate otherwise, you grant us and our affiliates and sublicensees a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Posting throughout the world in any media. You grant us and our affiliates and sublicensees the right to use the name submitted in connection with such Posting. You represent and warrant that you own or otherwise control all of the rights to the content of the Posting, that the Posting is accurate, that use of the Posting does not violate this Terms of Use Agreement and will not cause injury to any person or entity, that the Posting does not contain libelous, tortious, or otherwise unlawful information, infringe or violate any copyright or other right, or contain any matter the publication or sale of which will violate any applicable law, that the Posting is not obscene, that we shall not be required to pay or incur any sums to any person or entity as a result of our use or exploitation of the Posting, that we have the right to delete, re-format and/or change the Posting in any manner that we may determine and that you will indemnify us and our affiliates and sublicensees for all claims resulting from any Posting originating from you or your account.
Any links to third-party web sites found within the Site are provided solely as an added convenience to you. The third party content and linked sites are not under our control, and we have neither reviewed the contents of these third-party web sites, nor do we claim any responsibility for the maintenance, content or suitability of these third-party web sites. Your linking to any third party site is at your own risk, and you are responsible for viewing and abiding by the privacy statements and terms of use posted at any third party site.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION, SHALL WE OR ANY OF OUR SUBSIDIARIES, AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, DEVELOPERS, LICENSORS, SUCCESSORS OR ASSIGNS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY LOSSES, DAMAGES OR INJURY, OF ANY NATURE, DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE OR THE CONTENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF, OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR INJURY. IN NO EVENT WILL WE BE LIABLE FOR ANY LOSSES OR DAMAGES IN EXCESS OF THE FEES PAID BY YOU IN CONNECTION WITH YOUR PURCHASE OF ANY CONTENT OR YOUR USE OF THE SITE.
WE SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE. YOU UNDERSTAND AND AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER USERS, THIRD PARTIES, OR ANY INFRINGEMENT OF ANOTHER?S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS.
WE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY VIRUSES OR OTHER CONTAMINATION OF YOUR COMPUTER, HANDHELD DEVICE OR OTHER COMMUNICATIONS DEVICE USED TO ACCESS THE SITE, OR FOR ANY DELAYS, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF YOUR USE OF THE SITE, OR WITH RESPECT TO THE CONTENT OR OTHER MATERIAL CONTAINED ON THE SITE, INCLUDING WITHOUT LIMITATION, ANY MATERIAL POSTED BY US OR ANY THIRD PARTY ON THE SITE.
NEITHER WE NOR ANY OF OUR AFFILIATES SHALL HAVE ANY LIABILITY TO YOU FOR USAGE CHARGES RELATED TO ANY DEVICE THAT YOU USE TO ACCESS THE SITE OR TO DOWNLOAD CONTENT.
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE CONTENT AND THE SITE IS SOLELY AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSSES, DAMAGES OR INJURY INCURRED BY YOU OR ANY OTHER PERSON THAT MAY RESULT FROM YOUR USE OF THE CONTENT OR THE SITE.
THE TERMS OF THIS LIMITATION OF LIABILITY SECTION ARE SUBJECT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LEGISLATION AND/OR REGULATION.
YOU AGREE THAT ALL INFORMATION, CONTENT, SERVICES AND RELATED MATERIALS CONTAINED WITHIN THE SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WE AND OUR DEVELOPERS AND LICENSORS HEREBY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH REGARD TO ANY INFORMATION, CONTENT, SERVICES AND RELATED MATERIALS ON THE SITE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT ACCESS TO OR OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT WILL WE BE LIABLE FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY CONTENT OR OTHER INFORMATION ON THE SITE, OR FOR ERRORS OR MISTAKES MADE BY HUMANS OR MACHINES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SITE UNDER ANY CIRCUMSTANCES. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR THE CONTENT OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE, CONTENT OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, OR THAT THE SITE, INCLUDING THE CONTENT, SERVICES OR THE SERVER(S) ON WHICH THE SITE IS OPERATED, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ANY REFERENCE TO ANY PERSON, ENTITY, PRODUCT, MATERIAL OR SERVICE ON THE SITE DOES NOT CONSTITUTE AN ENDORSEMENT OR RECOMMENDATION BY US OR ANY OF OUR EMPLOYEES OR AGENTS. WE ARE NOT RESPONSIBLE FOR ANY THIRD PARTY WEB PAGE ACCESSED FROM THE SITE, NOR DO WE WARRANT THE ACCURACY OF ANY INFORMATION CONTAINED IN ANY THIRD PARTY SITE OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.
NO COMMUNICATION OF ANY KIND BETWEEN YOU AND US OR ANY OF OUR EMPLOYEES, REPRESENTATIVES OR AGENTS SHALL CONSTITUTE A WAIVER OF ANY LIMITATION OF LIABILITY HEREUNDER OR CREATE ANY ADDITIONAL WARRANTY NOT EXPRESSLY STATED IN THIS TERMS OF USE AGREEMENT.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE RIGHTS ADDITIONAL TO THOSE CONTAINED HEREIN. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to release, indemnify, defend and hold harmless us and our subsidiaries, affiliates, employees, officers, directors, stockholders, agents, developers, licensors, successors and assigns from all liabilities, claims, demands, lawsuits, judgments, damages, costs and expenses, including reasonable attorneys' fees and court costs, made by any third party due to or arising out of or in connection with (a) your connection to and use of the Site or the Content, (b) any material you submit, post, transmit or make available from the Site, (c) any disputes between you and your carrier, (d) your violation of this Terms of Use Agreement, (e) your violation of any rights of a third party, including intellectual property rights and/or (f) someone else using your account or password (including any unlawful or prohibited use of the Site). Notwithstanding the foregoing, we reserve the right to assume the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.
You hereby acknowledge that the Content may be subject to export or import regulations in the United Kingdom and in other countries. You are responsible for complying with all trade regulations and laws. You hereby agree that you will not export, directly or indirectly, the Content acquired or to be provided under this Terms of Use Agreement, or the direct product of any such Content, without first obtaining all required export and/or import licenses and government approvals.
PocketGear, the PocketGear logo and certain other trademarks located on the Site are our trademarks or registered trademarks. All other names of companies and products mentioned may be trademarks of their respective owners and are used with permission. Any such trademarks may be used publicly only with our or the applicable owner?s permission. Fair use of any such trademarks requires proper acknowledgment. All rights not expressly granted herein are reserved.
All Content and other materials published on the Site are protected by copyright, and owned or controlled by or licensed to us, or the party listed as the developer of the Content or other materials. You may download any downloadable materials displayed on the Site for the specified uses only, provided that you maintain all copyright, trademark, and other notices contained in such material, and you agree to abide by all additional copyright notices, information, or restrictions contained in any material accessed through the Site. Except as expressly provided in this Terms of Use Agreement or in a separate license agreement, neither we nor our affiliates, developers, licensors, successors or assigns grant any express or implied rights to you under any patents, copyrights, trademarks, or trade secret information. All content on the Site is Copyright ©2006 PocketGear, Inc unless specified otherwise. ALL RIGHTS RESERVED.
We may terminate your (a) access to the Site and/or the Content, and/or (b) your password and/or account or any portions thereof, at any time and for any reason, with or without cause, with or without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party.
This Terms of Use Agreement is governed in all respects by the laws of the State of North Carolina, United States, without reference to its conflict of laws principles. Any dispute relating in any way to the Site, the Content or this Terms of Use Agreement shall be submitted to confidential binding arbitration in Durham, North Carolina, United States. Arbitration under this agreement shall be conducted by a single arbitrator under the then prevailing Commercial Arbitration Rules of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement or any similar agreement, whether through class arbitration proceedings or otherwise.
Notwithstanding the foregoing, in the event that you have in any manner violated or threatened to violate our intellectual property rights or the intellectual property rights of any third party, we or such third party may seek injunctive or other relief against you in any court having appropriate jurisdiction and you agree and acknowledge that the district and superior court of North Carolina, located in Durham County, North Carolina, United States and the United States District Court for the Middle District of North Carolina, located in Greensboro, North Carolina, United States shall have jurisdiction over you in any such matter and shall be a proper venue for such matter.
The terms of this section are subject to the fullest extent permitted by applicable law, legislation and/or regulation. In the event that applicable law renders the foregoing arbitration provision unenforceable, you agree and acknowledge that any action brought in connection with the Site, the Content or this Terms of Use Agreement shall be adjudicated solely in the district or superior court of North Carolina, located in Durham County, North Carolina, United States or in the United States District Court for the Middle District of North Carolina, located in Greensboro, North Carolina, United States. You hereby consent to the exclusive venue and jurisdiction of such courts, waive any right that you may have to contest the jurisdiction or venue of such courts on the basis of lack of personal jurisdiction, inconvenient forum or any other basis, and waive any right that you may have to commence or transfer an action in any other court in any other jurisdiction. You consent to the extra-territorial service of process in connection with any action in any of the aforementioned courts.
Any claim or cause of action arising out of or related to the use of the Site, the Content or this Terms of Use Agreement must be submitted to arbitration in accordance with this Terms of Use Agreement (or, if applicable law renders arbitration unenforceable, filed with the appropriate court in accordance with this Terms of Use Agreement) within one (1) year after such claim or cause of action arose regardless of any statute or law to the contrary. You hereby expressly waive your right to commence any arbitration or litigation after such one (1) year period. In the event any such claim or cause of action is not submitted to arbitration or filed with the appropriate court, as applicable, within such one (1) year period, such claim or cause of action shall be forever barred.
Waiver/Course of Conduct. Our failure to insist upon or enforce strict performance of any provision of this Terms of Use Agreement shall not be construed as a waiver of any provision or right hereunder. Neither the course of conduct between you and us nor trade practice shall act to modify any provision of this Terms of Use Agreement.
Assignment. We may assign our rights and duties under this Terms of Use Agreement to any party at any time without your permission and without notice to you.
E-mail Communications. Communications made to us by e-mail shall not constitute legal notice to us or any of our subsidiaries, affiliates, directors, officers, employees, stockholders, agents, representatives, developers, licensors or assigns with respect to any existing, future or potential claim or cause of action against us or any of our subsidiaries, affiliates, directors, officers, stockholders, employees, agents, representatives, developers, licensors, successors or assigns, where such notice is required by contract, or any local, state, national or international laws, rules or regulations.
Severability. If any provision of this Terms of Use Agreement is held to be invalid, void or unenforceable, such provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provision of this Terms of Use Agreement.
Entire Agreement. This Terms of Use Agreement sets forth the entire understanding and agreement of the parties as to the subject matter contained herein and supersedes all prior proposals, discussions or agreements with respect thereto. Except as otherwise expressly provided in this Terms of Use Agreement, there shall be no third party beneficiaries to this Terms of Use Agreement.
If you know or suspect that any Content or other materials or portions of the Site constitute copyright infringement or other violations of local, state, national or international intellectual property laws, please notify us at PocketGear, Inc, Attention: General Counsel, 210 West Pettigrew Street, Durham, NC 27701.