By accessing or using the FreshAiR Augmented Reality Development Platform, which includes the FreshAiR App, the FreshAiR Editor, the hosting of Realities developed therein and related services provided through our sites and software (collectively, the “Platform”), or by otherwise agreeing that you (“you” or the “Developer”) accept these terms and conditions, you are entering into a binding agreement with MoGo Mobile, Inc. (“we” or the “Company”) as set forth in these terms and conditions. These are referred to as the “Developer License Agreement” or the “DLA” and govern your use of and rights with respect to the Platform, the “Realities” you may create therein and the data and other information generated thereby.
In consideration of the mutual covenants and agreements set forth herein, Developer and Company agree as follows:
Grant of Rights
Software as a Service. The DLA provides for Developer’s use of the Platform via the configuration options, Developer tools, input requests and other interactions provided to Developer by the Platform. This is not a sale or license of the Platform or the underlying Intellectual Property, which shall remain the property of the Company. Specifically, without limiting the generality of the foregoing, Developer is not provided with a right to own or have access to source code of the Platform and does not have rights to use the Platform other than as provided by the Company through its website and only for the term of the DLA.
Publication of Realities. As permitted within the Platform, Developer may use the Platform to make Developer’s Reality available to end users of the Company’s FreshAiR Application (the “App”) for download and use on smartphones and other mobile devices for which the App may be made available. If you elect to cease publication of an Reality, you understand that it may not be possible to cease publication immediately, and it may take some time for the Platform and the App to stop advertising and making available that Reality.
Please note that we cannot guarantee that the App will continue to be accepted at the App Store or other third party marketplaces, or that your Reality or Realities will be permitted to be published by the third parties that determine what applications are permitted to be distributed thereby.
Accessing Usage Data of Realities. The Platform and our App may collect and make available usage data from end users who download, access and use the Developer’s Realities, and the Developer has the right to view such data as may be made available through the Platform from time to time.
Features; Other Company Products. The Company may develop other products, additional major features and premium version of the Platform for which it may charge additional fees, and such products, major features and/or premium versions are not automatically included within the Platform but may be purchased, licensed or subscribed to for additional fees, as will be stated within the Platform or elsewhere within the FreshAiR Sites.
Fees. Currently, the use of the Platform itself is free. Publication of Realities via the App may be subject to fees or agreements to share revenue. Additionally, the Company may in the future charge fees for certain features of the Platform, for certain volumes of usage, whether measured in bytes of memory required or otherwise. In the event such fees become applicable to your use of the Platform or publication of the Reality, the Company may suspend or terminate your account (including access to Reality or Realities), pending acceptance of the new payment terms.
Payment for Fees. Some fees will be collected upfront, and others may be retained out of funds received by the Company from purchases of Reality. You will remain responsible for any fees not collected up front or so retained (including but not limited to, fees for overage charges, refunds, chargebacks, taxes and the like assessed against amounts for which you have previously been paid), and payment will be due immediately upon invoice (which may be electronic). You agree that we may assess these against any future payments to you, and against any source of payments you have provided us.
You may not distribute or make the Platform available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Platform. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of Platform, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Platform). Any attempt to do so is a violation of the rights of the Company and its licensors.
Consent to Use of Data
You agree that the Company may collect and use technical data and related information, including but not limited to technical information about your Reality or Realities and technical, behavioral and other data from persons downloading, opening and using your Reality or Realities through the App. We intend to use such information primarily for the purposes of improving the Platform and the App, as well as developing additional products and services, but may use for other purposes as well. We may also provide aggregated forms of such information to third parties, as long as it is in a form that does not personally identify you or the end users.
Right to Alter Platform AND OTHER SOFTWARE
We reserve the right to change aspects of the Platform and/or the App from time to time, including without limitation the addition, deletion and/or modification of features, or changes in the way that data is handled, stored and/or presented, changes to pages, links and corresponding filenames, and the like. In some cases, such changes may impact the way that your Reality or Realities appear or operate, may cause your Reality to cease working, and may result in lost data or information with regard to features that have been deleted or significantly modified.
Term And Termination
General. Either you or we may terminate this DLA and your use of the Platform for any reason or no reason, although we will endeavor to notify you ahead of such termination except in the event of termination for your breach, outages or other circumstances beyond our control. You may terminate your use of the Platform by ceasing to use the Platform and deleting or cancelling your account, although other provisions of this DLA will survive and continue to apply after any expiration or termination of this DLA (including but not limited to obligation for payments already due, or payments which come due as the result of publication already in process or fees, chargebacks and the like assessed after such termination).
Disclaimer Of Warranties
EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE APP WILL BE ACCEPTED FOR PUBLICATION OR DISTRIBUTION AT THE APP STORE, MARKETPLACE OR ANY OTHER THIRD PARTY MARKETPLACE FOR DISTRIBUTION OF SOFTWARE APPLICATIONS FOR MOBILE DEVICES. WE DO NOT WARRANT THAT THE APP (AND THEREFORE YOUR REALITY) WILL BE AVAILABLE ON, OR WORK CORRECTLY ON ALL HARDWARE AND SOFTWARE PLATFORMS, INCLUDING NEW VERSIONS OF OPERATING SYSTEMS, OR IN CONNECTION WITH VARIOUS USER CONFIGURATIONS. WE MAY MAKE ALTERATIONS TO THE PLATFORM OR THE APP FROM TIME TO TIME THAT MAY CAUSE THE APP AND/OR YOUR REALITIES TO NO LONGER FUNCTION ON ALL HARDWARE AND SOFTWARE PLATFORMS AND UNDER CERTAIN CONFIGURATIONS.
Limitations On Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS DLA, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OR ACTUALITY OF SUCH DAMAGES OR LOSSES. DEVELOPER AGREES THAT COMPANY’S MAXIMUM AGGREGATE DAMAGES FOR ANY ACTION ARISING OUT OF THE PERFORMANCE OR BREACH OF THIS DLA SHALL NOT EXCEED THE AMOUNT WHICH THE COMPANY HAS RECEIVED FROM THE DEVELOPER IN THE TWELVE (12) MONTHS PRIOR TO FILING OF SUCH ACTION.
Company Indemnity. Company indemnifies, holds harmless and shall defend Developer against any third party claim, action, suit or proceeding to the extent arising out of or resulting from claims that the Platform or the App violates the patent, copyright or other intellectual property of a third party, except to the extent that such infringement is caused by or arises out of content provided by the Developer or out of a use of the Platform or an App which is not the contemplated use thereof. Developer shall immediately forward to the Company any cease and desist letters, threats of legal action or other correspondence regarding infringement that would be covered by this claim.
Mechanics of Indemnity. The indemnifying party’s obligations are conditioned upon the indemnified party: (a) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement to the indemnifying party, so long as the indemnifying party is reasonable responding to and handling such defense and settlement; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense. In connection with an indemnification claim by Developer against the Company, the Company shall have the option to cure by: (i) obtaining a license or other rights to use the intellectual property which is the subject of the infringement claim so that continued use is not infringing, and/or (ii) modifying the Platform, the App or other software in a manner so that it is no longer infringing.
Governing Law. Any claim or controversy relating in any way to this DLA shall be governed and interpreted exclusively in accordance with the laws of the Commonwealth of Virginia and the United States. This DLA shall be deemed to have been made in, and shall be construed under, the internal laws of the Commonwealth of Virginia, without regard to the principles of conflicts of laws thereof. Any mediation in connection with this DLA shall be conducted in Blacksburg, Virginia, United States of America. In addition, the parties acknowledge and agree that the state courts located in Montgomery County, Virginia, United States of America and the federal courts located in the City of Roanoke, Virginia, United States of America shall have exclusive jurisdiction in any action or proceedings with respect to this DLA. In addition, each such party hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such proceedings, and hereby further irrevocably and unconditionally waives and agrees to the fullest extent permitted by law not to plead or claim that any such proceeding brought in any such court has been brought in an inconvenient forum.
Severability; Waiver. If any provision of this DLA is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this DLA will not operate or be interpreted as a waiver of any other or subsequent breach.
Headings. Headings used in this DLA are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this DLA.
Assignment and Subcontracting. Neither party may assign its rights and obligations under this DLA without the consent of the other except in connection with a sale or assignment of all or substantially all of its assets or business, or in an assignment by operation of law (i.e., in the event of a merger). The Company may subcontract all or portions of its obligations hereunder.
Independent Contractors. The parties to this DLA are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this DLA. Neither party shall have the power to obligate or bind the other party.
Notice. Any notices required or permitted hereunder to the Developer may be given by Company to Developer at any email address or contact information it has on file for Developer (and if Developer has removed or deleted all such information, at the most recent information Company had for Developer). Any notices required or permitted hereunder to be given to Company shall be given by mail properly addressed and with proper postage sent to the Company at:
MoGo Mobile, Inc.
401 7th Street
Radford, VA 24141
Attn: Developer Support
Or sent by email to: email@example.com.