Aquimo LLC (the “Company”) greatly appreciates your download of our mobile app, College Basketball MVP, Bowling Champ! World Tour or Aquimo Pin High Golf (the “Games”), and anticipates that you will have a great time using it.
The use of the Games will involve physically making a gesture motion, tilting the screen forward to shoot the basketball or taking an actual golf swing, using your mobile phone. This necessarily involves certain risks including, without limitation, (a) risk of damage to the phone or other property, and the possibility of personal injury, should you, or others that you allow to use your phone, lose control of the phone, and (b) potential risks to personal health from the physical activity and exertion in doing so and (c) potential risk of repetitive stress to the wrist or elbow. Accordingly you are cautioned to use the Games responsibly, only in locations and under circumstances that give due regard to these and other risks, and if you experience pain or discomfort to stop using the Games immediately. By entering into this user agreement you are acknowledging and confirming that you have been fully informed and are aware of, and are personally assuming, these and all other risks of damage or injury to property and persons associated with the use of the app and agreeing to defend, indemnify and hold the Company and its owners, directors, officers and/or employees harmless from any and all liabilities, claims, damages and expenses associated with such use.
To mitigate the risks of damage to the phone, you should purchase a protective shell for your phone (the “Phone Case”), preferably with a wrist strap attached. This equipment is manufactured by third parties unrelated to the Company and, there can be no assurance with respect to the effectiveness of such equipment in mitigating the risks inherent in your use of the Games, and the Company specifically disclaims any express or implied representation or warranty with respect thereto. Without limiting the generality of the forgoing, by entering into this user agreement, you are specifically agreeing, acknowledging and confirming that (a) you have been advised and are aware that the use of a Phone Case will not eliminate all risks, and (b) you are agreeing to defend, indemnify and hold the Company and its owners, directors, officers and/or employees harmless from any and all liabilities, claims, damages and expenses associated with the use of the Games and such equipment.
The Company has taken steps it deems reasonable to ensure that the avatar likeness, or images, are not any current or former student-athlete, current or former professional athlete or publicly known individual or celebrity (collectively termed: An Athlete). By accepting this Agreement you acknowledge that no avatar likeness, or image, in the Apps is suggested or implied to be An Athlete. Furthermore, when using these Apps you are agreeing that (i) you will not use the name of any current or former student-athlete, current or former professional athlete or publicly known individual or celebrity, as a screen name; (ii) You will not create or share any content within or using the Apps that is, in the sole discretion of The Company, illegal, offensive, obscene, pornographic, profane, distasteful, indecent, immoral, derogatory, politically related/motivated, alcohol/drug/tobacco/violence-related, or otherwise objectionable, or any business names, logos, or slogans; By accepting this agreement you acknowledge and confirm agreement and compliance with the applicable requirements set forth in this paragraph.
In addition, information will be generated from your use of the app which we will record, collect and maintain. In addition to using any and all such information to enhance your experience in using the app, the Company will also use such information to identify and provide you with or make you aware of promotional and other opportunities to purchase other products and services from the Company or unrelated third parties. The Company specifically disclaims any representation or warranties, express or implied, with respect to any third party products or services which may be offered to you in conjunction with your use of the app. Under no circumstances will the Company provide any of your personal contact or other information without your prior consent.
This Games and the aforementioned equipment, products and/or services made available in conjunction with your use of the Games are provided “as is” and without representations or warranties by the Company of any kind, whether express or implied. To the fullest extent permissible pursuant to applicable law, the Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. The Company does not represent or warrant that the functions contained in or related to the app will be uninterrupted or error-free, that the defects will be corrected, or that this app or the server that makes the site available are or will remain free of viruses or other harmful components.
WHERE APPLICABLE BY LAW, THIS AGREEMENT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE GAMES, THE SITE, THE DOMAIN, THE SERVICE, OR YOUR ACCOUNT TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, THE DISPUTE RESOLUTION/ARBITRATION PROVISION BELOW DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE DISPUTE RESOLUTION/ARBITRATION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.
It is Company's goal that the Games meets your expectations. However, there may be instances when you have a problem or dispute that needs special attention. In those instances, the Company is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with Company, you acknowledge and agree that you will first give the Company an opportunity to resolve your problem or dispute. This includes you first sending a written description of your problem or dispute using the following email address email@example.com or mailing address: Aquimo Customer Care, 1955 S Val Vista Dr, Ste 126 Mesa AZ, 85204 USA.
You then agree to negotiate with Company in good faith about your problem or dispute. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after Company's receipt of your written description of it, you agree to the further dispute resolution provisions below.
You agree that the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of the Games, the site, the domain, the service, your account, or this Agreement, shall be final and binding arbitration, except to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate Company's or any third party patent, copyright, trademark, trade secret, privacy or publicity rights, in which case you acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought by Company and/or the applicable third party(ies). You and we acknowledge that the Agreement affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under the Agreement (despite any other choice of law provision).
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA"). For claims of less than $75,000 USD, the AAA's Supplementary Procedures for Consumer-Related Disputes will apply; for claims over $75,000 USD, the AAA's Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879 (within the USA). Upon your filing of the arbitration demand, we will pay all filing, administration and arbitrator fees for claims that total less than $75,000 USD. For claims that total more than $75,000 USD, the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules. You and we agree to pay our own other fees, costs, and expenses, including those for any attorneys, experts, and witnesses. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys' fees. In addition, for claims under $75,000 USD as to which you provided notice and negotiated in good faith with Company as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys' fees and costs. As a limited exception to the agreement to arbitrate, you and we agree that you may take claims to small claims court in Mesa Arizona, if your claims qualify for hearing by such court.
YOU HAVE A RIGHT TO OPT-OUT OF THIS ARBITRATION AGREEMENT. IF YOU DO NOT AGREE TO THIS MANDATORY ARBITRATION PROVISION WITH REGARD TO ANY PARTICULAR INTERACTION WITH THE GAMES THEN WITHIN THIRTY (30) DAYS FROM THE DATE OF SUCH INTERACTION, YOU MAY OPT-OUT OF THIS PART OF THE AGREEMENT BY EITHER CALLING 1-877-350-0038 (within the USA) OR BY SENDING AN EMAIL TO firstname.lastname@example.org. Any opt-out received after the thirty (30) day time period will not be valid and you must pursue your claim via arbitration pursuant to these Terms.
To the fullest extent permitted by applicable law, NO ARBITRATION OR OTHER CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE, THE DOMAIN, OR THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In the event that this CLASS ACTION WAIVER is deemed unenforceable, then any putative class action may only proceed in a court of competent jurisdiction and not in arbitration.
WE BOTH AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, YOU AND COMPANY BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN US.
In no event shall any claim, action or proceeding by you related in any way to the Games, the site, the domain, the service, your account, or this Agreement, be instituted more than one (1) year after the cause of action arose.
Only persons legally capable to enter into agreements on their own behalf shall be permitted to register with and secure access to the Games. By entering into this user agreement, you are hereby representing that you are not a minor and are otherwise legally capable of entering into agreements.
The Games, College Basketball MVP, Bowling Champ! World Tour and Aquimo Pin High are copyright 2016 by Aquimo LLC, all rights reserved.