Terms of Use for Gogo Text & Talk

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1.  What Are Our Terms Of Use?

2.  Use Of The Service

3.  Term And Termination

4.  Fees And Charges

5.  Proprietary Rights

6.  Acceptable Use And Conduct

7.  Privacy And Security

8.  Disclaimers

9.  Limitation On Liability

10.  Dispute Resolution/Arbitration

11.  Indemnity

12.  General

1.  What Are Our Terms Of Use

The Text & Talk mobile application (the "Service"") permits passengers to use their mobile devices to text and talk while in flight (talking only available where permitted by law and by the applicable airline or aircraft owner/operator).  The Service is provided by Gogo LLC ("Gogo") and their subsidiaries and affiliates doing business as Gogo (collectively,"we" or "us"). "You" or "you" refers to the person or entity that is the customer of record.

This Terms of Use Agreement ("Agreement") and any other rules posted on our applicable websites or used in connection with the Service, sets forth the legally binding terms for your use of the Service.  If you are an individual using the Service on behalf of a company, you represent and warrant that you have all necessary authority to bind your company to the terms and conditions of this Agreement.  Passengers aboard aircraft operated by Gogo's business aviation customers are subject to this Agreement only with respect to their use of the Service.

This Agreement is a legally binding agreement between you (the individual using the Service) and us.  By proceeding to use the Service, you agree to be bound by the terms and conditions of this Agreement.

PLEASE READ THE AGREEMENT CAREFULLY BEFORE USING THE SERVICE. THIS AGREEMENT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE SERVICE 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.

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2.  Use Of The Service

Generally. In order to use the Service (and to become a "User"), you must: (1) have a mobile device that uses the Apple iOS or Android operating system, has Wi-Fi capability, and contains a subscriber identity module ("SIM"), Integrated Circuit Card Identifier ("ICC-ID"), mobile dialed number ("MDN"), mobile identification number ("MIN") or mobile equipment identifier ("MEID"), international mobile subscriber identity ("IMSI") number, or international mobile equipment identity ("IMEI") number (or a combination of those) that is assigned to your device ("Device"); (2) download the Service; and (3) register your Device while on the ground.  To use your Device to access the Service while in the air, your Device must be connected to our in-flight Internet services.  All text messages must be sent from the Service.

Payment Methods.  Payment may be required to your local wireless carrier with whom you have a relationship depending on your wireless plan ("Wireless Carrier"), and carrier message and data rates may apply for use of the Service.  You are responsible for any fees or charges associated with the Device and the use of the Device.  See also the Fees and Charges section below for additional payment information.

Restrictions.  You agree not to resell or attempt to resell any aspect of the Service, whether for profit or otherwise, or authorize any other individual or entity to use the Service.  You agree that sharing the Service with another person or providing another person access to the Service breaches the Agreement and may constitute fraud or theft, for which we reserve all rights and remedies.  The Service is only available on certain equipped airplanes. You may use the Service only when the use of electronic devices is permitted by the applicable airline.

Voice Applications on Commercial Passenger Airlines.  Gogo commercial passenger airline customers will not use the Services for any type of voice service or application without written permission from Gogo.  Calls when the plane is airborne are also restricted by our agreements with our commercial airline partners. Passengers aboard aircraft operated by Gogo"s business aviation customers may be able to use the Services for voice services or applications, where permitted by law and by the applicable airline or aircraft owner/operator).

Hardware Requirements.  As mentioned above, you will need a compatible Device.  Your Device must be compatible with, and not interfere with, our Services and must comply with all applicable laws, rules and regulations.  You are solely responsible for complying with U.S. Export Control laws and regulations and the import laws and regulations of foreign countries when traveling internationally with your Device. 

Additional Service.  Services in addition to the basic Service may be subject to additional terms. We will inform you of any such additional terms when you sign up for such additional services.  Except as otherwise provided by such additional terms, any additional services will be considered part of the Service and are subject to the terms of this Agreement.

How the Service works. We do not guarantee the availability of any wireless network.  The Service may be subject to certain Device and compatibility/limitations, including memory, storage, network availability, coverage, accessibility, data conversion limitations, and other factors.  Access is limited to information and applications previously downloaded to or resident on your Device.  Coverage may vary.  Actual network speeds depend upon Device characteristics, network, network availability and coverage levels, tasks, file characteristics, applications and other factors.  Performance may also be impacted by transmission limitations environment and capacity constraints. 

Third Party Service. The Service may allow you to access certain Internet and cellular services that are provided by third parties ("Third Party Services").  You agree that we shall bear no responsibility for such Third Party Services or your continued access to or use of them via the Service.  You are responsible for any fees for Third Party Services that result from your access to or use of them.  You hereby represent and warrant that you have the necessary rights to access and use such Third Party Services through the Service and that your use of the Third Party Services is in compliance with the terms of use applicable to such Third Party Services.

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3.  Term And Termination

This Agreement will commence when you download the Text & Talk application to your Device and will remain in full force and effect unless and until you discontinue your use of the Service.

We reserve the right to terminate or restrict your use of the Service, without notice, for any or no reason whatsoever.

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4.  Fees And Charges

Generally. Any Fees paid for the Service are non-refundable.  You agree to pay to: (i) us applicable fees, if any, for the Service, including, but not limited to, the fee for the use of the Service, taxes, and other charges (such as sales, use, excise, public utility and other taxes) levied by domestic or foreign governments; (ii) Apple or Google all applicable fees and charges, if any; and (iii) your wireless carrier for any additional charges depending on your wireless plan.  Any fees for the Service are billed to the payment card you have provided to Apple or Google, as applicable. 

Payment Dispute.  If you believe you have been incorrectly charged by Apple or Google, you should contact them as provided by their applicable terms and conditions.  You may also notify us of any disputed charges.  Please contact us so that we can review your account:

We may require you to describe the dispute in writing. 

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5.  Proprietary Rights

You acknowledge that all the intellectual property rights in the Service and the underlying technology, are owned by us, or our licensors.  All rights not expressly licensed are reserved.  You agree not to reproduce, reverse engineer, modify, or create derivative works based on the Service.  Except as expressly permitted under this Agreement, you agree not to rent, lease, loan, or sell access to the Service or provide the Service to any third party on a service bureau or time sharing basis or otherwise.

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6.  Acceptable Use And Conduct

Acceptable Use Policy. You hereby agree to comply with our acceptable use policy ("Acceptable Use Policy"), as described below.  You represent and warrant that you will not use the Service to (or assist another person to):

a.    Harm or threaten harm to persons or property;

b.    Harass other persons;

c.    Violate any applicable law, including those related to export control, spam, gambling, obscenity, or computer access;

d.    Engage in any fraud or misrepresentation;

e.    Provide instructional information about illegal activities;

f.    Interfere with, disrupt, or create undue burden on the Service;

g.    Infringe or violate another person"s rights, including privacy and intellectual property rights;

h.    Display offensive content on your Device, in view of another person;

i.     Knowingly distribute any virus or other malware;

j.    Attempt to impersonate any other person, including any of our employees;

k.    Send messages that contain any advertisement or solicitation or are sent for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services;

l.    Send messages that are in any way harmful to, interfere with, or negatively affect the network or other passengers;

m.    Publish any threatening, offensive or illegal material;

n.    Engage in any abusive messaging or calling;

o.    Engage in activities that create a security risk or a violation of privacy;

p.    Spam text (e.g., send more than 50 text messages in 30 seconds).

 

Further, you represent and warrant that:

 

Text Messaging Consent.  One or more text/SMS messages may need to be sent to or from your mobile device to enable your use of the Application or as part of your use of the Application.  By providing us or our service providers with your wireless telephone number (or by sending a text/SMS message from your mobile device to the designated short code number provided by the Application), you consent to the sending and receiving of any such text/SMS messages.  This consent includes consent to receive text messages sent using an automatic telephone dialing system.  You also agree to be bound by the following terms and conditions:

 

How to opt out

 

Breach. We reserve the right (but have no obligation) to investigate and take appropriate action in our sole discretion against you if you violate our Acceptable Use Policy or any other provision of this Agreement. Such action may include, without limitation, refusing to provide access to and use of the Service to you, terminating your application, reporting you to the applicable Wireless Carrier, our other partners, or law enforcement authorities, and taking legal action against you.

 

Performance and Limitations on Service.As with any mobile broadband network, speed may vary due to your Device, atmospheric conditions, terrain, network capacity, and the number of users on the system at the time and aircraft location.  The Service is available only when it is within the operating range of our system or of an operator with which we have an applicable roaming agreement.  Our coverage locations and maps are subject to change at any time without notice.  Actual coverage, speeds, locations, and quality may vary.  The Service is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, maintenance and repair, and national security issues, and may be interrupted, refused, limited, or curtailed.  Unless prohibited by law, the following limitations of liability apply.  Service may be interrupted, delayed, refused, limited, curtailed, unavailable, or otherwise limited for a variety of reasons, including environmental conditions, emergencies, third-party service failures, transmission problems, equipment or network problems or limitations, interference, signal strength, equipment or network maintenance and repair, national security issues, unavailability of radio frequency channels, system capacity or congestion, priority access by National Security and Emergency Preparedness personnel in the event of a disaster or emergency, coordination with other systems, equipment or network modifications and repairs, and problems with the facilities of wireless carriers.  We may block access to certain categories of numbers at our sole discretion. 

Additional hardware, software, subscription, credit or debit card, or special network connection may be required and you are solely responsible for arranging for or obtaining all such requirements.

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7.  Privacy And Security

Privacy.  Use of the Service is also governed by our Privacy Policy at https://s3.amazonaws.com/mapps-ground-assets/privacy.html which is incorporated into this Agreement by this reference.

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8.  Disclaimers

The Service is provided"As-Is" and as available. We and our Service providers, partners, and affiliates expressly disclaim any warranties and conditions of any kind, whether express or implied, including, but not limited to, the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. We (and each of our service providers) make no warranty that: (a) the Service will meet your requirements; (b) the Service will be available on an uninterrupted, timely, secure, or error-free and malicious code-free basis; (c) the Service will be any particular speed or allow any particular application or service; or (d) the results that may be obtained from the use of the Service will be accurate or reliable. You expressly acknowledge that there are certain security, confidentiality, and privacy risks inherent in wireless communications and technology and we do not make any assurances or warranties relating to such risks. You acknowledge that we are not responsible for messages lost or misdirected.

You acknowledge that the third parties that provide the Third Party Services may, at any time, change the means by which the Third Party Services are accessed, and consequently, your ability to use the Service to facilitate your access to any Third Party Services may be temporarily or permanently disabled. You agree that we shall have no responsibility or liability to you whatsoever in relation to the Third Party Services or continuing access to the Third Party Services, and that we make no representations or warranties with respect to the Third Party Services.

Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

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9.  Limitation On Liability

In no event shall we be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special, or punitive damages arising from your use of the Service, even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, our liability (including, but not limited to, our partners and affiliates) to you for any damages arising from or related to your use of the Service (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of Fifty US Dollars ($50) and the amounts you paid to us in the twelve (12) months prior to the accrual of the claim, if any.

Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you, and you may also have other legal rights that vary from jurisdiction to jurisdiction.

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10.  Dispute Resolution/Arbitration

It is our goal that the Service meet your expectations. However, there may be instances when you have a problem or dispute that needs special attention. In those instances, we are 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 us, you acknowledge and agree that you will first give us 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

You then agree to negotiate with us 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 our 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 Service 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 our or any third party patents, copyrights, trademarks, trade secrets, 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 us and/or the applicable third party(ies). We and you 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, the AAA's Supplementary Procedures for Consumer-Related Disputes will apply; for claims over $75,000, the AAA's Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Upon your filing of the arbitration demand, we will pay all filing, administration and arbitrator fees for claims that total less than $75,000. For claims that total more than $75,000, the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules.  We and you 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 as to which you provided notice and negotiated in good faith with us 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. Except for claims determined to be frivolous, we agree not to seek an award of attorneys' fees in arbitration even if an award is otherwise available under applicable law. As a limited exception to the agreement to arbitrate, we and you agree that you may take claims to small claims court, 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 SERVICE, THEN WITHIN THIRTY (30) DAYS FROM THE DATE OF SUCH INTERACTION, YOU MAY OPT-OUT OF THIS PART OF THE AGREEMENT BY:

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 SERVICE, 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 AND YOU BOTH AGREE THAT, WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT, WE AND YOU BOTH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN YOU AND US.

In no event shall any claim, action or proceeding by you related in any way to the Service or this Agreement be instituted more than one (1) year after the cause of action arose.

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11.  Indemnity

You agree to defend, hold harmless, and indemnify us, our parent, subsidiaries, affiliates, directors, officers, employees, agents, licensees, and other partners and employees, from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of your use of the Service in violation of this Agreement, arising from your breach of any provision of this Agreement and any claims under the TCPA related to your use of the Service.

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12.  General

Customer Care.  For any questions or concerns, we provide customer service 24 hours a day, 7 days a week, via the following methods:

Survival. The provisions under Sections 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12 will survive termination of this Agreement for any reason.

Jurisdictional Issues / Governing Law and Venue. The Service is controlled and operated by us from within the United States of America. We make no representations or warranties that the Service is appropriate or lawful in any countries outside the United States, or that this Agreement complies with the laws of any other country. Those who choose to access the Service from locations outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. The United States controls the export of any software downloadable from the Service. No software or any other materials associated with the Service may be downloaded, exported or re-exported to countries or persons prohibited under export control laws, or to anyone on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Deny Orders. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of any such materials. By using and/or downloading any such materials from the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country to which such import, export, or re-export is prohibited or are not a person or entity to which such export is prohibited. This Agreement shall be governed by the laws of the United States and the State of Illinois, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. The parties agree that any claim or dispute one party has against the other party arising under or relating to this Agreement (including claims in contract, tort, strict liability, statutory liability, or other claims) that is not resolved under Section 10 of this Agreement (Dispute Resolution / Arbitration) must be resolved exclusively by a court of competent jurisdiction, federal or state, located in Chicago, Illinois, and no other court. Each party agrees to submit to the personal jurisdiction of such courts and to accept service of process from them.

Assignment. You agree that we may assign or transfer this Agreement or any or all of our rights hereunder without additional notice or consent from you. You may not assign or transfer this Agreement or any or all of your rights hereunder without our prior written consent , and any attempt to do so is void.

Entire Agreement; No Waiver.  This Agreement (which includes the Privacy Policy and any other rules posted on the Site and the Domain) constitutes the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement shall inure to the benefit of you, us, any applicable airline owner/operator and any applicable heirs, administrators, successors and assigns.

Disclosures. Under California Civil Code Section 1789.3, users who are residents of California are entitled to the following specific consumer rights information: the Complaint Assistance Unit of the Division of Consumer Service of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA, 95814, or by telephone at 916.445.1254. Parental control protections (such as computer hardware, software, or filtering services) that may assist you in limiting access to material that is harmful to minors are commercially available – see http://www.google.com/goodtoknow/familysafety/.

Copyright/Trademark Information. Copyright © 2016 Gogo LLC.  All trademarks are the property of their respective owners.

The copyrights, trademarks, trade names, logos, and service marks ("Marks") displayed on the Service (including "Gogo") are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

Amendments. We reserve the right to change, modify, or amend this Agreement from time to time to reflect changes in our policies and practices. You are encouraged to review this Agreement periodically and to check the"Last Updated" date at the bottom of this Agreement for the most recent version. Any changes, modifications, or amendments shall be effective immediately.  By continuing to use the Service following the posting of changes, modifications, or amendments to this Agreement, you agree to and accept those changes, modifications, and amendments.

Severability.   Each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law and any invalid, illegal, or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid, illegal, or unenforceable term or provision.  Should any term or provision of this Agreement be found invalid, illegal, or unenforceable, all other terms and provisions of this Agreement shall remain in full force and effect.

Notices.  We may give legal notice to you by means of a general notice on the Service, electronic mail to your email address on our records (if you have provided one), or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record (if you have provided one).  All legal notices given by you shall be mailed to:

Gogo; ATTN: General Counsel
111 N Canal Street, Suite 1500
Chigaco, IL 60606

Last updated March 1, 2016