DriverCAST is a service (“SERVICE”) provided to a variety of wireless carries that allows its customers with a compatible wireless communications device to download, install and use applications (“APPLICATIONS”), including ring tones, audio, pictures and video directly to the device. You must only install and/or use any approved APPLICATION of your individual carrier or wireless providers as outlined in your carrier and/or wireless device manuals, if you do not agree to the terms and conditions set forth in this DriverCAST Agreement (“AGREEMENT”). Other Agreements.
In addition to the terms and conditions set forth in this AGREEMENT, DriverCAST provision of the SERVICE is subject to the terms and conditions of your Customer Agreement with your individual carrier and wireless provider, including, without limitation, DriverCAST alternative dispute resolution policy, and your personal Carrier Calling Plan. The terms and conditions of this AGREEMENT, as well as the terms and conditions in your Carrier Customer Agreement and Calling Plan, are subject to change at any time as specified in your Carrier Customer Agreement. Further, the download, installation and/or use of any of the APPLICATIONS is subject to the terms and conditions of DriverCAST and your Carrier’s License Agreement.
Charges for airtime used in connection with the SERVICE, including, without limitation, airtime used to browse the catalog of APPLICATIONS available for download, to download the APPLICATIONS and/or to use the APPLICATIONS, will be assessed in accordance with the terms and conditions set forth in your Carriers Customer Agreement and Calling Plan and in your DriverCAST Agreement. In addition, you also may be assessed recurring or non–recurring surcharges when you download APPLICATIONS from your Carrier. These surcharges will vary depending on the Carrier’s and/or DriverCAST APPLICATION, but they either will consist of one–time transaction charges or monthly or annual subscription charges. When using the SERVICE, each APPLICATION downloaded, even if downloaded pursuant to an unlimited or other long–term subscription you have with your Carrier, can only be used on the device to which it is downloaded. This means that if you replace your device after downloading an APPLICATION you will need to download the APPLICATION (including any content) again to the replacement device and pay any applicable charges, surcharges and airtime associated with the download and APPLICATION use. Additionally, you must cancel and discontinue use of the APPLICATIONS on your old device as outlined with your Carrier and/or DriverCAST Agreements, otherwise you may be billed for those APPLICATIONS by your Carrier and will be responsible for all charges. No transfers, credits or refunds are permitted. Your Carrier will notify you of the amount of these surcharges when you begin to download APPLICATIONS, and you will be given an opportunity at that time to accept or reject the surcharges. All charges and surcharges will appear on your monthly bill from your Carrier, and payment must be made in accordance with the terms and conditions set forth in your Customer Agreement. Some capable devices use the additional Networks when browsing, downloading and using applications (“Carrier usage plans”). An icon may appear on the phone screen when using the these Networks. If you have an individual Network plan or feature in addition to a Calling Plan and/or DriverCAST on one of these devices, your Network plan or feature monthly airtime allowance and overage rates will apply to your Carrier usage, and your airtime will appear as Network data sessions on your bill.
This AGREEMENT will become effective on the date you first download, install and/or use an APPLICATION, and it will remain in effect until terminated. DriverCAST reserves the right, in its sole discretion and in addition to any other remedies available to it at law and equity, to terminate this AGREEMENT, your Carrier Customer Agreement and/or any services provided by it to you without notice, including your ability to download, install and/or use the APPLICATIONS, if you: (1) breach any of these terms and conditions of this AGREEMENT or your Customer Agreement; (2) fail to pay any amount owed within 30 days after the due date; and/or (3) become subject to any proceeding relating to bankruptcy or insolvency. Further, either you or carrier or DriverCAST may terminate this AGREEMENT at any time, without cause, by sending notice to the other party. Such notice will be effective upon receipt unless a later termination date is specified in the notice.
Whenever you use the SERVICE, or download, install and/or use any of the Carrier or DriverCAST APPLICATIONS, you agree not to: (1) violate any applicable law, rule or regulation; (2) harass, offend, threaten, embarrass, distress or invade the privacy of any individual or entity; (3) provide false information or impersonate another person; and/or (4) take any action that infringes upon any third party’s copyright, trademark, patent or other intellectual property right(s). Your Carrier or DriverCAST may, without prior notice, take any action it deems necessary, including, without limitation, removing or deleting APPLICATIONS and restricting or limiting use of the SERVICE, for proper administration of the SERVICE.
DriverCAST is under no obligation to monitor use of the SERVICE, but it may do so to: (1) comply with applicable laws, rules and regulations or orders of courts or governmental agencies with proper jurisdiction; and/or (2) operate the SERVICE properly or protect you or other customers. In the event you provide DriverCAST, or its affiliates, contractors or agents, with feedback, data, answers, questions, comments, suggestions, plans, ideas or other information, such information will be deemed to be non–confidential and DriverCAST will be free to reproduce, disclose, distribute or use such information without restriction.
If your wireless communications device is lost or stolen, or you learn that the SERVICE is being used in an unauthorized or fraudulent manner, you must immediately notify DriverCAST and your Carrier. If you fail to so notify DriverCAST and your Carrier, any charges incurred will be your sole responsibility. DriverCAST and your Carrier will have the right, without notice, to restrict, limit or interrupt the SERVICE if, in its sole discretion, it suspects that fraud or other unauthorized activity is occurring in connection with the telephone number assigned to your wireless communications device.
THE SERVICE AND APPLICATIONS ARE PROVIDED TO YOU BY DriverCAST “AS IS”. DriverCAST DISCLAIMS ANY AND ALL WARRANTIES REGARDING THE SERVICE AND APPLICATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON–INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DriverCAST ALSO DISCLAIMS ALL WARRANTIES WITH REGARD TO WHETHER THE SERVICE AND APPLICATIONS WILL MEET YOUR REQUIREMENTS, WORK IN COMBINATION WITH ANY HARDWARE OR SOFTWARE OR OPERATE ON AN UNINTERRUPTED OR ERROR FREE BASIS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY OR MAY BE LIMITED.
IN NO EVENT WILL DriverCAST BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, DIRECT, EXEMPLARY, PUNITIVE OR STATUTORY DAMAGES OF ANY KIND ARISING OUT OF THE SERVICE OR THE DOWNLOAD, INSTALLATION AND/OR USE OF ANY APPLICATION, INCLUDING, BUT NOT LIMITED TO, LOST DATA, REVENUES, BUSINESS OR PROFITS, EVEN IF DriverCAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT WILL DRIVERCASTBE LIABLE FOR ANY CLAIM RELATING TO THE SERVICE OR AN APPLICATION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, EXCEED THE CHARGES PAID BY YOU, IF ANY, FOR THE SERVICE AND THE DOWNLOAD OF SUCH APPLICATION. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY OR MAY BE LIMITED.
You agree to indemnify and hold DriverCAST, its affiliates, contractors and agents harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party due to or arising out of your inappropriate or unauthorized use of the SERVICE or your inappropriate or unauthorized download, installation and/or use of the APPLICATIONS. Such claims and demands will include, without limitation, any that allege breach by you of this AGREEMENT or that allege infringement by you of any intellectual property right(s) of a third party.
The DriverCAST name, trade names and logo, and all related product and service names and slogans, are the trademarks, service marks or registered trademarks of DriverCAST, LLC. or DriverCAST. All other marks contained in this AGREEMENT, or elsewhere, are the trademarks, service marks or registered trademarks of their respective owners. Reference in this AGREEMENT, or elsewhere by DriverCAST, to third party trade names, trademarks, service marks, logos or other proprietary indicia does not necessarily constitute or imply its endorsement, sponsorship or recommendation by DriverCAST.
The SERVICE, as well as the download, installation and/or use of the APPLICATIONS, will be governed by and construed in accordance with the laws of the State of Arizona, excluding its conflict of law provisions. The jurisdiction and venue of the state where your Cellular Service Agreement was executed will apply. If any provision(s) of this AGREEMENT is held to be invalid, illegal or unenforceable, in whole or in part, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. DriverCAST failure to exercise or enforce any right or provision of this AGREEMENT will not constitute a waiver of such right or provision unless acknowledged and agreed to in writing by DriverCAST. This AGREEMENT constitutes the entire agreement between the parties regarding its subject matter, and it supersedes any prior agreements, whether written or oral, relating to the subject matter of this AGREEMENT. No modification or alteration of this AGREEMENT will be valid except in writing signed by both parties.