PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. YOU MUST READ, UNDERSTAND, ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (“Agreement”) BEFORE USING THE SERVICES (AS DEFINED BELOW). BY DOWNLOADING ANY MOBILE APPLICATIONS (the “Application”) DEVELOPED BY JAREDCO ENTERPRISES LTD., DBA THE JARED COMPANY (the “Company”) AND/OR USING THE SERVICES, YOU ENTER INTO A BINDING CONTRACT AND LEGAL AGREEMENT WITH THE COMPANY. IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU CANNOT DOWNLOAD, INSTALL OR RUN THE APPLICATIONS AND YOU CANNOT USE THE SERVICES.
COMPANY’S ACCEPTANCE OF THIS AGREEMENT AND PROVISION OF THE SERVICES IS EXPRESSLY CONDITIONAL UPON YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS AND CONDITIONS, EXPRESS OR IMPLIED. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER MADE BY COMPANY, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. THIS AGREEMENT IS FOR LICENSES AND SERVICES AND IS NOT A SALE OF GOODS.
1. DEFINITIONS. In this Agreement:
a) the “Applications” means any mobile application developed by the Company, as upgraded, enhanced or modified by Company from time to time, and which may be downloaded from the Site or any other distribution channel of the Company;
b) the “Content” means and includes any and all Applications, materials, information or data displayed, distributed, provided or performed on the Site or the Applications, which may include but not be limited to text, software, scripts, graphics, maps, photos, sounds, music, videos, logos, interactive features and other materials;
c) the “Services” are more fully described on the Site and/or in the Applications and may include, but not be limited to, downloading, installation and/or use of any of the Applications and access to or use of the Site, together with any other products or services Company makes available. All references to the Services shall include the Applications, the Content and the Site where the context requires; and
d) the “Site” means and includes a number of web sites available at or through various domains used, owned or operated by Company from time to time, including but not limited to http://www.jaredcompany.com, http://store.jaredcompany.com/blackberry, http://blog.jaredcompany.com/blackberry, htttp://free.jaredco.com (including any and all sub-domains, directories, sub-directories, files, folders and related URL’s).
2. LIMITED LICENSE. The Services are licensed, not sold. You do not own the Services. Subject to the terms and conditions of this Agreement, Company, its affiliates and/or licensors grants you a limited, personal, revocable and non-exclusive license to access, use and receive the Services as made available and permitted by Company from time to time. The Services may be utilized by you through the processes provided on the Site, through installation and use of the Applications, or through the use of a phone or other communication device only for your own personal, non-commercial use, and not for the use or benefit of any third party. You will not sell, copy, transfer, make available, rent, lease, license, sub-license or lend the Services to any third party and you will not use the Services as a service bureau or application service provider providing products, services, information or Content to third parties. This Agreement and the license granted is void where prohibited by law, no offer to you to enter into this Agreement is valid in such jurisdictions, and any license granted to you to use the Services is void and, if necessary to give effect to the foregoing, revoked in such jurisdictions, provided that, notwithstanding the foregoing, all disclaimers and limitations in this Agreement in favour of Company shall in all cases apply. You may not modify, publish, transmit, participate in the transfer, rental or sale of, reproduce (except as provided herein), create derivative works based on, distribute, perform, display, or in any way exploit, the Services in whole or in part. You may not utilize the Services in any way other than as expressly provided in this Agreement. You shall not retain or store any significant portion of any Content in any form other than such portion as may be reasonably necessary for limited periods of time to use the Services. Copying, retention or storing of any Content for other than personal, non-commercial use as permitted in this Agreement is expressly prohibited without prior written permission from Company, or from the copyright holder identified in such Content’s copyright notice.
3. RIGHT TO MODIFY, SUSPEND OR TERMINATE. Company may, in its sole discretion, change, modify, suspend or discontinue the Services at any time, including the availability of any feature, service, or Content, or amend or terminate this Agreement at any time without notice and without liability to you. Company may also impose limits on certain features and services or restrict your access to the Services, or any one or more components or parts of the Services, without prior notice or any liability whatsoever. Company shall have the right, at its sole discretion, to modify or terminate this Agreement and/or the Services at any time by posting a notice on the Site, or by sending you a notice via email or other form of written notice.
4. ELECTRONIC COMMUNICATION AND CONTACT INFORMATION. If requested or required by Company, you agree to continuously maintain and regularly access a valid and active email address and account for the purposes of Company notifying you of any modification or termination of this Agreement or changes, modifications, suspension or discontinuation of the Services. You agree that you will in all cases be responsible for reviewing and becoming familiar with any such modifications by Company. Use of the Services by you following posting of a notice on the Site, or in the Services, or sending such notice in the Application, or sending email notification constitutes your acceptance of the terms and conditions of this Agreement as modified. You agree that any notice, agreement, disclosure or other communications that Company sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You agree to contract electronically.
5. YOUR OBLIGATIONS. You agree as follows: a) You warrant, represent and certify to Company that you are an individual and not a corporation or other legal entity, you are of full legal age and have full capacity in your jurisdiction of residence, location or domicile to form a binding and enforceable contract, you are legally permitted to use the Services, this Agreement is valid and enforceable in your jurisdiction, and, whether or not you access the Services through the account of a third party, including without limitation, your employer or a corporate entity, you take full personal responsibility and will be fully and personally liable for your selection and use of the Services;
b) You shall be exclusively responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, receive or use the Services, including, without limitation, hardware devices, software, and other Internet, wireless, broadband, phone or other mobile communication device connection services.
c) You shall be exclusively responsible for ensuring that such equipment or ancillary services are compatible with the Services and you shall be responsible for all charges incurred in connection with use of the Services in connection with all such equipment and ancillary services.
d) You are responsible for all of your activity in connection with the use of Services;
e) You agree to fully comply with all applicable local, provincial, state, national and foreign laws, treaties and regulations in connection with the Services and with any acceptable use policy Company may publish from time to time;
f) Any fraudulent, vulgar, offensive, harassing, objectionable, abusive, tortuous, criminal or otherwise illegal activity will be grounds for immediate suspension or termination by Company of this Agreement and/or access to the Services, without notice or liability of any kind to you;
g) Without limitation, you will not post or transmit, or cause to be posted or transmitted, any communication or solicitation or other “phishing”, “pharming” or “whaling” message designed or intended to obtain password, account, personal information, confidential information or private information from any user of the Services or any other third party whatsoever;
h) You acknowledge and agree that Company has the right to report any and all suspicious or illegal activity to the appropriate legal or police authorities without notice to you; and
i) Company does not promote, recommend or condone use of the Services during certain activities, such as, without limitation, automobile driving, bicycle riding, skating, skate-boarding or walking, where there is risk of accident, personal injury, property damage or death. You agree not to use the Services during such activities, and warrant, represent and certify that you will not do so.
6. INDEMNIFICATION OF COMPANY. YOU SHALL INDEMNIFY, DEFEND AND FOREVER HOLD COMPANY, AND COMPANY’S LICENSORS, SUPPLIERS, CONTRACTORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, SUITS AND EXPENSES (INCLUDING LAWYERS’ FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SERVICES OR TO THE CONTENT, OR ANY BREACH OF THIS AGREEMENT BY YOU. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
7. REGISTRAITON DATA. If you register for the Services, you agree to: (i) provide true, accurate and complete information about yourself as prompted by the purchase registration form (“Registration Data”); (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete; If Company has reasonable 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 Services (or any portion thereof). You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate Registration Data, including, but not limited to, your failure to receive critical information about the Services or your account. You further agree that we (ourselves or through third party service providers) are authorized to verify such Registration Data.
8. USERNAME AND PASSWORD. If you opt to register for the Services on the Company Site, you may be required to establish an account and obtain a username and password. 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 Company 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.
9. ACCESS WITHOUT REGISTRATION. The Company may provide you with access to some Services without you registering as a user, such as free Application downloads. In each such case your identification is based on means of identification that we deem appropriate, such as your mobile telephone number or email addresses.
10. PERSONAL INFORMATION AND COMPANY COMMUNICATIONS. You consent to any collection and use of personal information or personally identifiable data required to provide you with access to the Services or to deliver the Services to you, including the email addresses associated with your mobile device on which you have installed any of the Services.
11. LOCATION INFORMATION Location information is connected to a specific device ID (PIN, UDID etc), whereby the user is anonymous. Location information may be collected via GPS, or cell-site. Location information is used to return location-relevant and distance-sorted advertisements (if applicable as part of the Services). No personal information is collected or stored in connection with location information.
12. SERVICES USAGE INFORMATION. Usage information of your use of the Services may be collected, whereby the user is anonymous. No personal information is collected or stored in connection with the usage information.
13. INTELLECTUAL PROPERTY RIGHTS. The Services are protected by copyright, trademark, and other intellectual property rights under the laws of the United States of America, Canada and other countries, and international conventions and treaties. Except as expressly permitted herein, you shall abide by all copyright notices and trademark information, and all other restrictions contained in the Services. Without limitation, the Services are protected by copyright as a work, collective work and/or compilation, pursuant to U.S. copyright laws, Canadian copyright and moral rights laws, international conventions, and other intellectual property laws.
14. DISCLAIMER OF WARRANTIES AND CONDITIONS. THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT MAKE, AND YOU DO NOT RECEIVE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT COMPANY DOES NOT REPRESENT OR WARRANT, OR GIVE ANY CONDITION THAT: (I) THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, DEVICE, PHONE, COMPUTER, SYSTEM OR DATA, (II) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) ERRORS OR DEFECTS WILL BE CORRECTED, OR, (V) THE SERVICES OR THE COMPUTERS AND SYSTEMS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES, WORMS, TROJANS, MALICIOUS CODE, SPYWARE, MALWARE OR OTHER HARMFUL COMPONENTS OF ANY KIND. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM A COURSE OF CUSTOM OR TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OR CONDITION OF COMPLIANCE WITH ANY DESCRIPTION, OR ANY IMPLIED WARRANTY OR CONDITION OF NON-INFRINGEMENT, VIOLATION AND/OR NON-MISAPPROPRIATION OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY COMPANY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
15. LIMITATION OF LIABILITY. NEITHER COMPANY NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, CONTRACTORS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES SHALL BE LIABLE TO YOU OR ANYONE CLAIMING THROUGH YOU FOR ANY LOSS OF PROFITS OR REVENUE, DAMAGE TO PROPERTY OR PERSON, LOSS OR INACCURACY OF DATA OR DETRIMENTAL RELIANCE THEREON, FAILURE TO REALIZE EXPECTED RESULTS, REVENUES OR SAVINGS, ECONOMIC LOSS OF ANY KIND, OR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), RESULTING FROM YOUR ACCESS TO, RELIANCE ON, OR USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES, WHETHER BASED ON OR IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE FOREGOING SHALL APPLY WHETHER OR NOT COMPANY KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR HAS BEEN ADVISED OF SUCH POSSIBILITY, OR SUCH POSSIBILITY IS REASONABLY FORESEEABLE. COMPANY SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS IN THE SERVICES GENERALLY OR SPECIFICALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN OR SUPPLIED SUBSEQUENTLY BY AGREEMENT BETWEEN YOU AND COMPANY. YOU AGREE THAT, IN ALL CASES, ANY CLAIM BY YOU FOR DAMAGES AGAINST COMPANY ARISING FROM ANY ACCESS TO, USE OF OR RELIANCE ON THE SERVICES, OR OTHERWISE ARISING UNDER THIS AGREEMENT OR OTHERWISE, SHALL BE LIMITED TO YOUR PROVABLE DIRECT DAMAGES IN THE MAXIMUM AGGREGATE SUM OF ONE HUNDRED DOLLARS ($100.00) IN LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
16. THIRD PARTY PRODUCTS AND LINKS. The Services may include products and services of independent third parties either directly or via links to third party products, services, resources or websites. Company has no control over such third parties. Any and all such products, services and links are provided to you as a convenience only, without any warranty, condition, guarantee or representation by Company whatsoever. You use or access any such products, services and links solely at your own risk.
17. REFUND POLCIES. For any purchase made at the Company Sites, Company offers a store credit for any refund request. To process a store credit, simply login to your account, view the order using the “Complete Orders” link under the My Account menu and click the Return Item(s) button.
Duplicate purchases made at the Company Sites may be returned for a store credit, but only with the following information provided:
* E-Mail Address used to make your purchase;
* Device PIN or Owners Name submitted during purchase; and
* Order ID received after a completed transaction.
If a duplicate purchase is not found with the above information, you will need to contact your banking institution to verify that more than one transaction did indeed go through on the date in question. Purchases made 24 hours or more from each other are not considered duplicate purchases. Each purchase made is valid for one download/activation of each product purchased.
Device Changes/Upgrades. For device changes/upgrades, Company offers a competitive plan for users changing devices for any reason. This plan only covers products purchased from Company’s direct-to-consumer Sites (e.g. http://store.jaredcompany.com/blackberry). The Company’s distribution partners (e.g., BlackBerry App World)) have their own unique policies, and as such, have no part in offers provided by the Company. If you purchased an Application from another channel, please consult with that channel regarding their refund or upgrade policies.
For purchasers of Applications from BlackBerry App World, Company will issue refunds only on presentation of a valid receipt of purchase, and Company will refund only to valid paypal accounts only (irrespective of the method payment used for purchase of the Applications).
If your current device fails or you change devices, the Company offers the following:
For Applications, you are entitled to two (2) device changes (new activation codes) per year.
If your previously purchased Applications are not compatible with your new device, there will be no exchanges or compensation offered for your purchase.
Please note that Company is unable to accommodate changes between platforms. This means that BlackBerry to Windows Mobile phone exchanges (and vice versa), for instance, will not be honored.
18. IDEAS SUBMISSION POLICY. Company will accept submissions including, without limitation, submissions of applications, suggestions, ideas or concepts. If submissions are sent to the Company via its’ Sites, email or by any other means, these submissions become the property of the Company and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as the Company sees fit. You agree that you are not entitled to any compensation, credit or notice whatsoever and that by sending an unsolicited submission you waive the right to make any claim against the Company, its parents or affiliates relating to unsolicited submissions, including, without limitation, unfair competition, breach of implied contract or breach of confidentiality
19. GOVERNING LAW. This Agreement shall in all cases be deemed an Agreement made in the province of British Columbia, Canada regardless of your place of residence, domicile or physical location. All questions concerning the validity, construction and operation of this Agreement and the performance of the obligations of the Parties hereunder shall be governed by the laws of the Province of British Columbia and the laws of Canada applicable in British Columbia. You irrevocably attorn to the non-exclusive jurisdiction of the Courts of the Province of British Columbia, or its successor, without regard to its conflicts of laws rules, and promise and undertake to bring no action or proceedings in any other court whatsoever. You agree that you will not commence any action as a class action, or seek to have any action to which you are a party certified as a class action, or join in any class action as a party. You agree that any Judgment or Order of a court of competent jurisdiction shall be fully registrable and enforceable against you in your jurisdiction of residence, location or domicile. Notwithstanding the foregoing, in the event of breach of this Agreement by you requiring Company to seek injunctive or other equitable relief, Company shall be entitled to seek such injunctive relief in any court of competent jurisdiction without the necessity or requirement of posting bond or undertaking as to damages or showing that money damages are not an adequate remedy. In the event that your place of residence, domicile, physical location or jurisdiction does not recognize or permit enforcement of the foregoing, you may not use the Services.
20. GENERAL PROVISIONS If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be severed from this Agreement, with all other provisions remaining in full force and effect. The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing. This Agreement comprises the entire agreement between Company and you with respect to the Services and the entire subject matter of this Agreement and supersedes, repeals or modifies any other agreement between you and Company.
The Company shall serve notices related to this contract by posting them on the Site or by sending them to the postal address or e-mail address you have given to the 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.
WAIVER. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of the 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.
Effective Date: June 1, 2010