Welcome to our Service or Web Site (collectively the "Service"). By using the Service you agree to be bound by the terms and conditions of this agreement (including all policies), each as may be modified from time to time. If you do not agree to these terms and conditions, you may not access the Service. These terms constitute a legal "Agreement"; please read them carefully. By using the Service or downloading mobile content to a mobile device (each a "Download"), you also represent that you are at least 18 years of age and have the right to sign-up for and use the Service or, if you are a minor aged 13-17, you have been expressly authorized to use the service by your parent or guardian, and that such adult takes full responsibility for your actions.
In this Agreement, "you" and "your" refer to each customer (including the subscriber of a participating mobile communications carrier on whose behalf you are entering into this Agreement) and his or her agents, and "we", "us" and "our" refer collectively to Kargo Global, Inc. ("Kargo" or the "Company"). This Agreement explains our obligations to you, and your obligations to us with respect to the Service.
1. Description of the Service
The Service may provide mobile content, such as video, audio, games, graphics, news and other information data via the internet, mobile internet, mobile messaging, forums and other interactive areas, downloadable executables (Apple iOS, Android, Java, Microsoft, Blackberry, tablet), other means of mobile content delivery to and/or the exchange of information among certain compatible mobile devices. Some of the provided content may be downloadable onto a mobile device (each a "Download"). You acknowledge and agree that the Service is solely for your personal use on the mobile device accessing the Kargo services and you agree to comply with Section 2(f) hereof and with all copyright and other laws governing the use of the Service and the Download.
2. Access to Service
(a) Access to the Service. In order to use the Service, you must have a mobile device with current unrestricted access to a participating carrier and/or data provider for which Company makes the Service available as well as a data plan necessary to both access and download content or in the event of wifi, access to the Internet with unrestricted download capabilities. In addition, you must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile hand set or other mobile device with network or internet access that is in working order and suitable for use in connection with the Service. You are responsible for ensuring that your equipment and/or software does not disturb or interfere with Company's operations. Any equipment or software causing interference shall be immediately disconnected from the Service and Company shall have the right to immediately terminate this Agreement. If any upgrade in or to the Service requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Service, including the release of new products and services, shall be subject to the terms and conditions of this Agreement.
(b) Subscription Plans. Company may offer the Service or Downloads or access to content services on a renewable subscription basis (each a "Subscription Plan"). These Terms are incorporated by reference in the terms and conditions of any such Subscription Plan. By registering for a Subscription Plan you authorize Company to implement monthly billing as set forth in Section 9 below. Subscription Plans may include a certain defined number of credits that entitle you use the Service and/or to download, receive and/or access that defined number of individual downloads of audio, wallpapers, games, virtual goods or other mobile content for a monthly flat fee. After entering into your Subscription Plan, every month the Company will transfer credits to your account. The type and number of credits you are entitled to is dependent on the type of Subscription Plan that you elect. The provision of credits and the making available of the possibility to download, receive and/or access mobile entertainment content may be offered for a flat fee. The monthly flat fee shall become due every month irrespective of whether or not you actually view any content service during any particular subscription period. Depending on the type of Subscription Plan, if you do not use/redeem all your credits within the applicable subscription period, the unused credits will either (a) be rolled over into the next subscription period and remain in your account until used/redeemed or until expiration or termination of your subscription plan or (b) will expire at the end of the respective subscription period. If you download mobile entertainment content in excess of the amount allowed by your selected plan, then you will be prompted to purchase an additional plan or credits and be responsible for the additional applicable plan fee. We reserve the right to terminate your participation in any Subscription Plan or service and to block your usage thereof at any time in our sole discretion. If we elect to terminate your participation and you have not breached these Terms of Service, we will refund pro rata any fees paid by you that are allocable to the period following such termination.
(c) Registration Data. If you opt to register for the Service or a Subscription Plan on one of our websites, you agree to: (i) provide true, accurate and complete information about yourself as prompted by the registration form ("Registration Data") on which we may rely and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Company has grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof with no refund). You acknowledge and agree that we (ourselves or through third party service providers) are authorized independently to verify such Registration Data.
(d) Username and Password. If you opt to register for the Service, you may be required to establish an account and obtain a username and password and authorize us to use your subscriber id or mobile telephone number to register your account and for password recovery purposes. You authorize us to process any and all account transactions initiated through the use of your username and password. You are solely responsible for maintaining the confidentiality of your username and password and must immediately notify us of any unauthorized use of your username and password. You acknowledge and agree that you are responsible for any unauthorized activities, charges and/or liabilities made through the use of your username and password. In no event will we be liable for the unauthorized use or misuse of your username and/or password. Company may need to change usernames allocated to certain of its Services and reserves the right to do so. You will be informed if this is necessary.
(e) Access without Registration. Company may provide you with access to some Services without you registering as a user, such as sign-up, some advertising supported services and text messaging products. In each such case your identification is based on means of identification that we deem appropriate, such as your mobile telephone number.
(f) Right to Download(s). You acknowledge and agree that the Download(s) made available as part of the Service are owned by Company, its affiliates and/or licensors, as applicable, and are protected by intellectual property laws. Company hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable, revocable right to download and use the object code version of the Download(s) and the Service on a designated compatible mobile device solely for your own personal non-commercial use. You further acknowledge and agree that you may not reproduce, modify, perform, transfer, distribute, sell, create derivative works of or otherwise use or make available the Download(s) except as expressly provided in this Agreement. No license is granted to you by this Agreement in the human readable code, known as the source code, of the mobile content accessed or downloaded on your mobile device, and no rights are granted to you by this Agreement in any patents, copyrights, trade secrets, trademarks or any other rights in respect of the mobile content downloaded on your mobile device. You may not, or attempt to (or otherwise authorize, encourage or support others" attempts to) circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service, including, but not limited to, any consent services or Download(s).
(g) Interactive Services. Certain Kargo Services may be interactive and may permit you to upload, post or otherwise transmit data (such as photos, video, text, audio, graphics via the mobile internet or data channel on a mobile device). You agree not to use the Service to upload, post, email, transmit or otherwise make available any content that:
1. Is unlawful, harmful, threatening, abusive, harassing, bullying, tortious, defamatory, vulgar, pornographic, sexually explicit, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
2. Is harmful to minors in any way;
3. Impersonates any person or entity or falsely states or otherwise misrepresents your affiliation with a person or entity or attempts to disguise the source of the data;
4. You do not have a right to make available under any law or under contractual or fiduciary obligations (such as inside information, proprietary and confidential information learned as part of employment relationships or under nondisclosure agreements) or that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party;
5. Constitutes or consists of unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; or violates any applicable federal, state or international law designed to curb unsolicited communications and related abuses, including without limitation the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.), Section 502 of the California Penal Code, and Section 17538.45 of the California Business and Professions Code.
6. Contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
7. Interferes with or disrupts the Service or servers or networks connected to the Service, or violates any requirements, procedures, policies or regulations of networks connected to the Service;
8. Violates any applicable local, state, national or international law,
9. Provides material support or resources (or attempts to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
10. Is designed to "stalk" or otherwise harass another.
You acknowledge and agree that Kargo has no obligation whatsoever to screen or pre-screen content or data that is uploaded, posted, emailed, transmitted or otherwise made available by you or any other user of the Service, provided that Kargo reserves the right to do so. Additionally, Kargo reserves the right in its sole discretion to remove any content or data that violates these Terms of Service or is otherwise objectionable. In addition, Kargo may block or limit you or your access to the Service based upon objectionable content or data that you have uploaded, posted, emailed, transmitted or otherwise made available in its sole discretion. You agree that you bear all risks associated with, the use of any content or data provided by or via the Service, including any reliance on the accuracy, completeness, or usefulness of such content or data.
This Agreement will terminate immediately, without notice, if you fail to comply with any term or condition of this Agreement. Upon a termination of this Agreement, you agree to immediately remove all downloaded mobile content from your wireless communications device and discontinue your use of the Service.
(h) Consent to Receive Marketing Communications. By participating in the Service or other interactive activity, you consent to receive further information on product and service offerings via email, text messages, push notifications, mobile banners or advertising, video advertising or other similar notification on your mobile device or computer. Such offerings will originate from Company but may use the name or likeness of Company content provider and will be related to the content offered in the Service or interactive activity. Communications will originate from the same website, email domain or short code that was used in connection with the Service or interactive activity. Company will not sell or transfer your data to any third party without your notification and consent. You may opt out of such further offerings at any time by following the instructions in the applicable marketing communications or interactive service.
(i) Interruptions or Discontinuation of Service. Company reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel the Service, or portions thereof, or your use thereof with or without notice ort liability to you.
(j) Viruses. The Company assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your mobile device, computer equipment or other property on account of your access to, use of, or browsing in the Service or your downloading of any materials, data, text, images, video, or audio from the Service.
(k) Third Party Content. The Company does not edit or curate the content supplied by third parties and users of the Service. Accordingly, the Company has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers and users, are those of the respective author(s) or distributor(s) and not of the Company. In many instances, the content available through the Service represents the opinions and judgments of the respective information provider or user. The Company neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on the Service by anyone other than authorized Company employee spokespersons while acting in their official capacities.
(l) Third Party Products and Services. We may make available or provide access to products and services of independent third parties either directly or via links to websites operated by such third parties. Such products or services shall be purchased and/or obtained directly from such third party. You acknowledge and agree that COMPANY SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THIRD PARTIES.
Please be aware that other websites that may be accessed through our site may collect personally identifiable information about you. The information practices of those websites linked to Kargo are governed by the privacy policies of those websites and are not covered by this privacy statement, and Kargo is not responsible for any information that you provide when you access those websites
You agree to indemnify, defend and hold the Company and its parent company, subsidiaries, affiliates, officers, directors, shareholders, contractors, agents, employees, licensors, third party content providers, network operators and their respective assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees, arising out of or in connection with (a) your use of the Service, and (b) the breach by you of your representations and warranties set forth herein.
5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES
A. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. NEITHER THE COMPANY, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, OR FROM THE INFORMATION CONTAINED THEREIN, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, PRODUCT, SERVICE OR MERCHANDISE PROVIDED THROUGH THE SITE.
B. THE SERVICE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICE.
C. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INACCURACY, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THIS SERVICE, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR (INCLUDING STRICT LIABILITY), NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. THIS DOES NOT AFFECT ANY STATUTORY RIGHTS WHICH MAY NOT BE DISCLAIMED. YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES OVER WHICH IT HAS NO CONTROL.
D. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT SHALL THE COMPANY'S OR ANY THIRD PARTY CONTENT PROVIDER'S OR NETWORK OPERATOR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING ITS OWN NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THIS SERVICE. THIS DOES NOT AFFECT ANY STATUTORY RIGHTS WHICH MAY NOT BE DISCLAIMED.
6. Intellectual Property Rights
Except as otherwise set forth herein, all right, title and interest in and to any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Service, including without limitation patent, copyright, trademark and trade secret rights (collectively "Company Intellectual Property Rights") are owned by Company or its licensors or partners, and you agree to make no claim of interest in or ownership of any such Company Intellectual Property Rights. You acknowledge that no title to the Company Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Service, other than the rights expressly granted in this Agreement.
One or more patents licensed to the Company may apply to this Web Site and to the features and services accessible through the Web Site, including, without limitation U.S. Patent Nos. 6731316B2, 8095919B2, 7644400B2, 7299007B2, 7712125B2, 7542754B2, 8023624B2 and all corresponding foreign counterparts to such U.S. Patents, Chinese (People's Republic) Patent No. ZL02809128.8 and Hong Kong Patent No. HK1071453.
Kargo, Wapslap, Morphis, Kamp, Experience Delivered, Baby on the Way, Come Together, Ola, Cellfun, RedCarpet, Fever, Wax, Digdoo, The Power of Everywhere, On Your PDA, and On Your Phone, are registered trademarks, and Beauty Mark and Lokation are trademarks, licensed to the Company. All other trademarks appearing on the Service are the property of their respective owners.
9. Billing and Fees
You may choose to purchase services or content from the Company, and by ordering such services or content you agree to pay all billed amounts when due. You must be at least 18 years or older to purchase services or content from Company and or register for a Company Subscription Plan. Such services, content or Subscription Plan may be billed by Kargo, by your wireless network operator or by another third party billing provider and you agree to pay any costs of collection incurred by the Company, your wireless network operator or any such third party billing provider, including without limitation court costs and reasonable attorneys' fees, that arise from your failure to pay billed amounts when due. Depending on the service or content ordered, the method of billing may vary including but not limited to text messaging billing (SMS billing), credit card, iTunes, Google Checkout, PayPal or on the bill from your wireless network operator. The fees may be either on a one time basis or part of a Subscription Plan. The policies covering Subscription Plans are described above in Section 2(b). You may obtain the amount of a monthly subscription fee by sending a text message with the word "HELP" in the body of the message to the originating shortcode of any text message sent by the Subscription Plan. In some cases, you may be required to check your carrier bill for this information. You agree to pay your mobile device operator or the applicable mobile storefront for all individual downloads and pay the monthly fee that corresponds to the Subscription Plan you select in accordance with the fees in effect at the time of your order. Unless otherwise indicated, the charges shall be invoiced on the bill from your participating wireless network operator, or, in the case of application purchases, in accordance with the payment policies of the storefront or marketplace from which you make your purchase. If you have problems completing a transaction via PayPal, you may contact us at Info@kargo.com or by calling (866) 408-1385. All fees are subject to change upon notice from Company. If you do not accept the new fees (which will be applicable on a prospective basis only), you will have 14 days from the date of such notice to cancel your subscription plan and/or your account effective at the end of the calendar month. All fees are due immediately and are non-refundable. If you have any billing concerns and you are billed by a wireless operator or other third party, you must contact such billing party directly. If you have been billed by Kargo and have billing questions or concerns, you may contact us at firstname.lastname@example.org or by calling (866) 408-1385.
10. Termination and Cancellation of Text Messaging Services
If you are subscribed to a text messaging program and wish to cancel your Subscription Plan, send a text message with one of the following words in the body of the message: "STOP" "END" or "QUIT" to the originating shortcode of any text message sent by the Subscription Plan or any other number as may be designated on our Web Site. You may also send an email to email@example.com or call (866) 408-1385 for assistance in canceling your Subscription Plan. Opt out information is available at any time by sending a text message with one of the following words in the body of the message: "HELP" to the originating shortcode of any text message sent by the Subscription Plan. The termination shall become effective at the end of the billing period in which you gave your notice of termination, you will not be charged for the next billing cycle, but you will not receive any refund for the current billing cycle. You may be required to contact your wireless carrier to fully unsubscribe from the Subscription Plan.
You agree that Company, at its sole discretion, may at any time terminate your use of the Service and Subscription Plan(s) or individual services provided via the Service and/or change its content offering made available through the Service, if Company believes that you have violated or acted inconsistently with this Agreement. You agree that upon termination of your access to the Service under any provision of this Agreement, Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Company shall not be liable to you or any third party for any termination of your access to the Service. If you cancel your account or Subscription Plan for any reason, Company will not refund any of your fees paid to date, except as expressly provided in this Agreement.
11. Miscellaneous Provisions
(a) Notices and Announcements. Except as expressly provided otherwise herein, all notices to Company shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
36 East 12th St. 6th Floor
New York, NY 10003
Tel: (212) 979-7900
Fax: (212) 979-7950
Company shall serve notices related to this contract by posting them on the Web Site or by sending them to the postal address or e-mail address you have given to Company or as a text message to your mobile telephone number associated with your account. Notices sent by mail shall be deemed received seven days after they were sent. Notices posted on the Website or sent by e-mail or as a text message shall be deemed received on the weekday following the day when they were posted or sent.
(a) Severability. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible, consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
(b) Entire Agreement. You agree that this Agreement constitutes the entire agreement between you and us regarding the Service and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.
(c) Assignment and Resale. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. You agree not to resell the Service or any portion thereof.
(d) Governing Law. This Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the State of New York, United States of America, excluding its conflict of laws rules. You and we each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the state course located in New York County, New York or the United States District Court for the Southern District of New York for any disputes between us under or arising out of this Agreement. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
(e) Export Control. Content, Software and other materials from this Service may also be subject to United States export control. The United States export control laws prohibit the export of certain technical data and software to certain territories. No content or software from this Service may be downloaded or exported (1) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the Unites States has embargoed goods; or (2) anyone on the Unites States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. The Company does not authorize the downloading or exportation of any content, software or technical data from this Site to any jurisdiction prohibited by the United States export laws or regulations.
(f) Changed Terms. The Company reserves the right at any time to change or modify the terms and conditions applicable to use of the Service or any part thereof, or to impose new conditions, including, without limitation, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by any means including, without limitation, posting on the Service, or by electronic or conventional mail, or by any other means. Any use of the Service by you after such notice shall be deemed to constitute acceptance of such changes, modifications, additions or deletions.
(g) Waiver. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Company. The remedies of Company under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
(h) Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
(i) Survival. In the event this Agreement terminates as provided herein, Sections 2(b), 2(c), 2(e), 4, 5, 6, 10 and 11 of this Agreement shall survive such expiration or termination.
36 East 12th Street, 6th Floor, New York, NY, 10003
Phone: 212.979.7900 Fax: 212.979.7950
Copyright © 2008-2013, Kargo Global, Inc. All rights reserved