Background. Together with our Privacy Policy, this End User License Agreement (this “Agreement”) incorporates additional legally binding terms between Mogean (“Mogean,” “us,” or “we”), and you, that govern your use of the Mogean mobile application (the “App”) and our website, www.mogean.com (the “Website”).

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By registering with this App, you agree that you have reviewed and understood this Agreement, and to be bound by it. You also agree to our Privacy Policy, which describes and gives you choices concerning our data collection, transmission and use.  For your records, we can e-mail you copies of this Agreement and the Privacy Policy after you initially accept them, and you may review and request copies of them, as updated, at any time.
 

YOU ARE ONLY AUTHORIZED TO USE THE APP IF YOU AGREE TO ABIDE BY ALL APPLICABLE LAWS AND THIS AGREEMENT.  PLEASE READ THIS AGREEMENT CAREFULLY AND SAVE IT.  IF YOU DO NOT AGREE WITH IT, YOU SHOULD NOT INSTALL THE APP OR SHOULD DISCONTINUE USE IMMEDIATELY.

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Representations About You. You represent and warrant that you are:  (i) at least 18 years old; (ii) not in a country subject to United States trade sanctions; and (iii) providing us only information that is, and will be updated to remain current, accurate, and complete.  If you are an employee or agent of a business entity entering into transactions on behalf of that entity, you represent and warrant that, as that entity’s designated signatory, you are authorized to bind that entity to this Agreement and all transactions effected via our services.

 

License Grant. Subject to this Agreement, Mogean grants you a limited, non-exclusive and non-transferable license to access the Website, and to download, install, access and use the App on mobile devices that you personally control, solely for private, non-commercial use within the United States.

 

License Restrictions. Your usage rights extend only so far as necessary for you to make authorized use of the App’s functionality in compliance with applicable law.  Except as expressly permitted by this Agreement, you may not, with respect to either the Website or the App:

1. copy, modify, translate, adapt, or otherwise create derivative works or improvements;

2. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to source code;

3. access any content using any robot, spider, scraper, or other automated means or similarly functioning manual process;

4. bypass or circumvent measures we may use to prevent or limit access, or to maintain data security;

5. send altered, deceptive or false source-identifying information;

6. intercept, collect or store personal information about other users;

7. engage in excessively high-volume data transfers or bandwidth use, including hosting any server via our equipment;

8. spam other users, plant a virus, or employ other malicious techniques or take other actions that may affect operations or enjoyment;

9. remove, delete, alter or obscure any notice of copyright, trademark, patent, logo, design, or other intellectual property or proprietary rights;

10. sell, sublicense, assign, distribute, publish, transfer, or otherwise make any of our materials available to any third party for any reason, including making them available on a network not associated with us; or

11. violate any applicable law, including without limitation those concerning failure to pay, fraudulent payment, or the sale of alcoholic beverages.

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Reservation of Rights and Intellectual Property. Use of this App is being licensed, not sold, to you.  We, and our licensors and service providers, as applicable, reserve all rights, title and interest in the App not expressly granted to you, and specifically do not grant you any ownership interest.  Without limitation, we retain all copyright, trademark, and other intellectual property rights in the Website and App not expressly granted to you by this Agreement.  All third-party marks, including the names and logos of service providers and Venues are the property of their respective owners.

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Interaction with Third-Parties. Your use of the App to interact with any third-parties, including Venues, are solely your own, and we incur none of your personal obligations arising from them.  Similarly, we are not responsible for examining or evaluating the qualities of any Venue’s products or services, and we have no liability or responsibility to you concerning your experience there.

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App Store Providers.  This Agreement is between you and Mogean, and not with Apple, Inc. (“Apple”), Google Inc. (“Google”), or any other sponsor or provider of any application marketplace (each an “App Store Provider”).  NO APP STORE PROVIDER MAKES ANY WARRANTIES OR HAS ANY OBLIGATIONS UNDER THIS AGREEMENT WITH RESPECT TO THE APP.  App Store Providers have no obligation to furnish maintenance or support services for the App, or to address claims relating to the App or your use of it, including but not limited to claims of:  (i) product liability; (ii) failure to conform to any applicable legal or regulatory requirement; and (iii) violation of consumer protection or similar legislation.  App Store Providers also have no responsibility for the investigation, defense, settlement, or discharge of any third-party intellectual property infringement claims.

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If you use the App on any iOS-based device, the limited license in this Agreement is granted only as permitted by, and subject to, any applicable Usage Rules in the Apple App Store Terms and Conditions.  If you use the App on any Android-based device, the limited license in this Agreement is granted only as permitted by, and subject to, any applicable Android Market Terms of Service established by Google.  An App Store Provider or its affiliates and subsidiaries may thus be third-party beneficiaries of this Agreement, and may have the right to enforce it.

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The App may be made available on multiple mobile device operating systems and there may be some variation in how the App functions on them.  We reserve the right to change the types and brands of mobile devices and carriers on which the App may be utilized at any time.  We are not obligated to provide the App for use via any particular provider or device.  You are prohibited from using our services on a mobile device whose core operating system has been modified in any unauthorized way.

Maintenance.  Scheduled system maintenance will take place from time to time, and the App or Website (or certain elements of their functionality) may then be unavailable.  Emergency maintenance may be required at other times.  Outage and downtime may occur at any time.

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Updates. We may, but are not required to, develop and provide App updates from time to time, which may include upgrades, bug fixes, patches and other corrections, or new features (in any case, “Updates”).  Updates may also modify or remove certain features or functionality.  Mogean has no obligation to provide Updates, nor to continue to provide or enable any particular features or functionality.  Based on the settings of your mobile device and its Internet connection, the App may automatically download and install available Updates, or you may be prompted to do so.  You agree to receive and install Updates as a condition of your use of the App.  The App may not operate properly if you fail to install Updates.  All Updates are deemed part of the App and are subject to the terms of this Agreement.

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Communications. Some of the App’s features may be funded through advertising, and we may need to communicate with you from time to time for various purposes, including to:  administer your use of the App and keep it secure; provide account statements and receipts; update policies and terms of use; and to assist you with pre-existing and new functionality.  You consent to receive communications, including commercial communications from Mogean and our third-party partners, Venues or brands.  Mogean may send commercial messages to you by use of any Personal Information that you have provided us, including phone, e-mail or text messaging, or by posting certain relevant communications on our Website.  Your consent to receive electronic communications from us does not mean we must provide all communications electronically.  At our option, we may deliver communications on paper or through other means.  Similarly, we may require that certain communications from you be delivered to us on paper at a specified address.  If you change your mind regarding your consent to our communications, you must contact us by email at info@mogean.com.

 

You may opt out of receiving messages that are primarily commercial, but to stop receiving all messages from Mogean (including those related to administration of your account), you will need to terminate your account. Sending or receiving certain messages or data, including Updates, may incur charges from your telecommunications carrier or count against time- or size-based limits you have elected in your account with that carrier.  Our communications are deemed to be received by you when they, or notice of their availability, are sent, provided, posted or otherwise communicated to you.  If you use a spam filter that blocks or re-routes messages from senders not in your address book, you must make additions to your address book so you can receive communications from us in a timely manner.

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Push Notifications.  Mogean may send you “push notifications” if your enrolled device supports them.  By downloading the App, you opt-in to receive such notifications, which may contain commercial messages from Mogean and our third-party partners.  Should you wish to stop receiving push notifications via the App, you may decline them by adjusting the applicable settings on your enrolled device.

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Third-Party Offerings.  Third-party content or service offerings, and links to third-party websites (collectively, “Third-Party Materials”), may be displayed or made available via the App or Website, and will be governed by terms designated by their respective providers (“Third-Party Terms”).  You must review and accept a provider’s Third-Party Terms, which constitute an agreement between you and them, when you elect to use their Third-Party Materials.  We do not warrant or endorse, and are not liable or responsible to you or anyone else, for any Third-Party Materials (or any content, products, or services of any other third party); nor are we responsible for investigating or evaluating any aspect of any third-party offerings, including but not limited to their security, privacy, content, quality, accuracy, validity, completeness, maintenance and update status, copyright or other legal compliance, or potential offensiveness.  Third-Party Materials are made available solely in a good-faith effort to offer them as a convenience to you.  You must contact the applicable third party to resolve any issues concerning that party’s customer service, loyalty or rewards programs, honoring of promotions or discounts, etc.

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User-Generated Content.  You are not entitled to acknowledgment or compensation for our use of content that you post to the Website or App (including, without limitation, questions, comments, feedback, suggestions and ideas).  All such submissions are voluntary and non-confidential.  Any aggregated feedback or ranking system we provide represents only the opinion of users of our services, and is not our opinion, representation, or warranty.  Content posted may be moderated, may not appear immediately, and is not guaranteed to appear.  We have no obligation to moderate user submissions and may stop doing so at any time.  If you discontinue your Mogean account, any content you posted will remain public and may continue to be visible.  When you submit content, you automatically grant (and represent and warrant that you have the right to grant) us an irrevocable, perpetual, non-exclusive, sublicensable, fully paid, royalty-free, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute, prepare derivative works of, or incorporate into other works, such information and content.

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Restrictions on Submissions.  You are solely responsible for content you communicate to us and other users through social media channels.  Submissions we prohibit include, but are not limited to, content that is:

1. patently offensive, or promotes or otherwise incites racism, bigotry, hatred or physical harm against any group or individual;

2. false, misleading, promotes illegal activities, or is harassing, inflammatory, abusive, threatening, obscene, indecent, sexually explicit, fraudulent, defamatory, libelous, or otherwise objectionable;

3. “spam” or contains direct marketing communications, unsolicited advertising, promotional materials or other forms of solicitation or commercial content;

4. violative of the privacy or publicity rights, copyrights, trademarks, and other intellectual property rights, or the contractual or other rights, of any person or entity;

5. confidential in nature, or contains trade secrets or other proprietary information;

6. sensitive information about a person (including, but not limited to, medical conditions, social security numbers, credit cards, bank accounts or other financial information, residence, or contact information);

7. personal information concerning matters such as criminal charges or convictions, religious beliefs, racial or ethnic origin, relationships, sexual orientation, political opinions, or union membership;

8. likely to create a security risk to any person; or

9. otherwise objectionable or damaging in our sole determination.
    

Limitations on Availability.  You must maintain your wireless provider account in good standing and supply and maintain a mobile device that meets our and that provider’s minimum serviceable technology requirements to be able to use the App on a continuing basis.  The App is based in the United States and is provided for access and use by persons in the United States.  We make no representation that the App is available or permitted in any particular location.  No use of the App may occur where prohibited.  You use the App of your own initiative, and you are responsible for compliance with any applicable laws.  We may also impose limits on use of or access to the App, as determined from time to time by law, regulation, or our business judgment.

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Term and Termination.  This Agreement continues until terminated by you or us.  You may terminate at any time by unsubscribing from the App.  At any time and without notice, we may terminate this Agreement, your App account, or our provision and support of the Website and App in part or in whole.  This may occur if you fail to comply with any term of this Agreement, or in our sole business discretion.  Upon any termination:  (i) you remain liable for all obligations you have incurred while subject to this Agreement; (ii) all license and other rights granted to you by this Agreement will cease; and (iii) you must cease all access and use of the Website and App and delete or destroy, as applicable, all materials and residuals in your possession related to them.  Those terms of this Agreement reasonably intended to create post-termination obligations shall remain in effect.

 

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Disclaimers and Limitations of Liability.

These disclaimers and limitations apply only to the extent permitted by applicable law; however, we would not provide the Website or App without them being an integral part of this Agreement.  Some jurisdictions do not allow certain disclaimers of implied warranties or limitations of liability, so the following disclaimers and limitations may not fully apply to you.

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Disclaimer of Warranties.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE WEBSITE AND APP ARE PROVIDED ON AN AS-IS, AS-AVAILABLE, AND WITH-ALL-FAULTS BASIS WITHOUT WARRANTY OF ANY KIND.  WE DISCLAIM ALL WARRANTIES IN THEM, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THOSE FOR UNINTERRUPTED OR ERROR-FREE SERVICE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

 

Limitation of Liability.  WE ARE NOT LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATED TO THE WEBSITE OR APP, OR TO OCCURRENCES INVOLVING YOUR MOBILE DEVICE OR PERSONAL DATA, INCLUDING, WITHOUT LIMITATION, ANY FAILURE IN:  (A) AUTHENTICATING DATA FOR SECURITY PURPOSES OR OTHERWISE; OR (B) TRANSMITTING DATA VIA MOBILE DEVICES, TRANSMISSION SYSTEMS, SERVERS, OR OTHER INTERNET INFRASTRUCTURE.  THIS LIMITATION APPLIES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH A LOSS, DAMAGE, OR CLAIM.

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Force Majeure.  Without limiting the generality of the preceding limitations, we have no liability for any failure or delay resulting from any condition reasonably beyond our control, including but not limited to power grid failure, Internet service disruption, labor strikes or lock-outs, governmental action, acts of terrorism, war, coup, civil unrest, earthquake, hurricane, tsunami, fire, flood or other acts of God.

 

Disputes Between You and Third Parties.  TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU AGREE TO WAIVE AND RELEASE US FROM, AND HOLD US HARMLESS AGAINST, ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES FROM YOUR USE OF THE APP, INCLUDING BUT NOT LIMITED TO ANY ACT OR OMISSION OF ANY VENUE, OTHER USER, OR RELATED THIRD PARTY.

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Indemnification.  You agree to indemnify, defend and hold harmless, and waive and release Mogean, its equity owners, its subsidiaries, affiliated companies, joint venturers, business partners, licensors, employees, agents, and any third parties that contribute to our services from and against all third-party claims, losses, expenses, damages, costs and other liabilities (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages, and attorneys’ fees), arising out of your misuse of our services, or violation of this Agreement or applicable law.

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GENERAL PROVISIONS

Export and Other Restrictions.  You may not use or otherwise export or re-export any element of the Website or App, except as authorized by United States law and the laws of the jurisdiction in which the App was accessed.

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Amendments and Assignment.  We may change, amend, or assign this Agreement, with or without notice or consent, by posting the most recent version (which shall supersede any other version) within the App and on the Website.  Your continued use of the Website or App following posting of these changes constitutes acceptance of the terms as they exist at the time of your usage.  You may not transfer or assign any rights or obligations conveyed by this Agreement without our prior written consent.  Subject to this paragraph, this Agreement is binding upon and inures to the benefit of the parties hereto, their successors, and their permitted assignees.

 

Governing Law.  Federal law and the laws of the State of Georgia (excluding its conflict of laws rules) govern this Agreement and your use of the App.  The exclusive venue of any action arising out of this Agreement is the state and federal courts seated in Atlanta, Georgia, and you agree to the exclusive and personal jurisdiction of these courts.  The parties specifically reject the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act to the subject matter of this Agreement.

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Entire Agreement.  This Agreement and the Privacy Policy, both as amended from time to time, constitute the entire agreement between you and us regarding their subject matter, and supersede all other agreements, representations and understandings, whether written or oral.

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Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under applicable law, then:  (a) it will, rather than be stricken in its entirety, be superseded by a valid and enforceable provision that most closely matches the economic intent of the original provision; and (b) the remainder of the Agreement will continue in full effect as if it had been executed by both parties subsequent to the expungement of the invalid provision.  A judicial finding of invalidity or unenforceability of any provision of this Agreement will not affect the validity of any other term, and any such finding in a given jurisdiction will not invalidate or render such provision unenforceable in any other jurisdiction.  It is expressly understood, however, that the parties hereto intend each and every provision of this Agreement to be valid and enforceable, and hereby knowingly waive all rights to object to any provision of this Agreement.

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Contact Us.  Please contact us at info@mogean.com if you have any questions regarding this Agreement.

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