This End User License Agreement ("License") sets forth the legal terms between Gigway, Inc. ("Gigway" or "We") and You with respect to Gigway's mobile loyalty software product ("Software"). PLEASE READ CAREFULLY. BY INDICATING YOUR ACCEPTANCE OF THESE TERMS, OR BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
Subject to the terms set forth in this License, Gigway hereby grants to You a non-exclusive, non-transferable, non-sublicensable license to download, install and use in object code form a copy of the Software. This License is bound to the device You use to complete activation and to You, and it does not allow multiple users, multiple copies or copies on multiple devices. Any attempt to use the Software other than as permitted by this License will immediately terminate the License. The Software is protected by applicable intellectual property laws, including United States copyright laws and international treaties. This Software is licensed, not sold, and Gigway grants You only the specific rights expressly set forth in this License. Gigway retains all right, title and interest (including all intellectual property rights) in and to the Software, which is protected by applicable intellectual property laws, including United States copyright laws and international treaties.
You may not:
- rent, lease, sublicense, sell, assign, loan, or otherwise transfer the Software, or any of your rights and obligations under this License;
- remove or destroy any copyright notices or other proprietary marks on the Software;
- reverse engineer, decompile, disassemble, modify or adapt the Software, merge the Software into another program, or create derivative works of the Software; or
- use the Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this License.
The terms of this License will also govern any updates or upgrades to the Software that may be provided by Gigway, unless such update or upgrade is accompanied by a separate License, in which case the terms of that License will govern. Gigway does not guarantee that any future updates or upgrades of Software will be made available to You or will be available free of charge. Additionally, in order to enhance the Software or its security, or to fix bugs, comply with legal requirements or mitigate liability, from time to time Gigway may automatically deliver updates or other changes to the Software. Gigway is not obligated to offer You any service level of support or respond to queries related to Software. Without limiting the generality of the foregoing, Gigway may cease offering support of any kind pertaining to the usage of older releases of Software whenever a new release, whether for free or for pay, of Software becomes available.
- Third Party Services
Gigway may enable access to third party software, services, content and web sites (collectively, "Third Party Services") via the Software. You acknowledge and agree that Gigway is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, legality, decency, quality or any other aspect of such Third Party Services. Use of the Third Party Services may require Internet access, subscription to a service, and acceptance of terms for such Third Party Services. To the extent You choose to access such Third Party Services, You are responsible for compliance with all fees, terms of service and all applicable laws with respect to such Third Party Services. You hereby waive any legal claim You might have against Gigway with respect to such Third Party Services.
Gigway products and services are constantly evolving. This means we may change, discontinue or disable access to the Software and Gigway's services provided via the Software (collectively "Gigway Services") or impose new or additional rules, policies, terms, or conditions on your use of the Gigway Services, without notice or liability to You. Additional fees may apply for additional services and products offered by Gigway. Gigway makes no representation or warranty that it will continue to make the Gigway Services or that third parties will continue to make the Third Party Services available. In addition, we may change all or part of the License at any time. We may make changes to the License by posting the changed terms. YOUR CONTINUED USE OF SOFTWARE FOLLOWING GIGWAY'S POSTING OF ANY CHANGED TERMS WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGED TERMS.
This License will be effective upon the earlier of your acceptance of this License (if applicable) or your download, installation, copying or use of the Software and will be terminated automatically upon the earlier of:
- your failure to comply with any term of this License;
- your discontinuing use of the Software; and
- if your Software download required payment, the end of the time period specified at time of purchase that corresponds with your selected purchase.
- Privacy; Consent to Use of Data
- DISCLAIMER OF WARRANTY
THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. Gigway EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, Gigway DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE AND SERVICES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD, INSTALL, AND/OR USE THE SOFTWARE AND USE THE SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD, INSTALLATION, OR USE OF THE SOFTWARE. Gigway DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE SOFTWAREAND SERVICES.
- LIMITATIONS OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL Gigway BE LIABLE TO YOU FOR YOUR USE OF THE SOFTWARE AND SERVICES. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF Gigway HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE AND SERVICES, FROM INABILITY TO USE THE SOFTWARE AND SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE AND SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, Gigway's liability shall in no event exceed THE AMOUNT OF FIfty dollars ($50.00).
You agree to indemnify, hold harmless and defend Gigway, and its officers, directors, employees, affiliates, successors and assigns from and against any claims or lawsuits, including attorneys fees, that arise or result from the use or distribution of the Software or Services in violation of this Agreement.
Certain of the product and service names used in this License and the Software or Services may constitute trademarks of Gigway or third parties. You are not authorized to use any such trademarks. All trademarks are the property of their respective owners.
- Export Control; Government End Users
The Software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software, which may include restrictions on destinations, end users and usage. If the Software is supplied to or on behalf of the United States Government, then the Software is deemed to be "commercial software" as that term is used in the Federal Acquisition Regulation system. Rights of the United States shall not exceed the minimum rights set forth in FAR 52.227-19 for "restricted computer software. " All other terms and conditions of this License apply.
- Choice of Law; Venue; Dispute Resolution
The Agreement is governed by California law, excluding its choice of laws principles. The exclusive venue for any litigation arising from or related to the Software or Services shall be the courts of Los Angeles County, California, except for any optional arbitration as described next. Excluding claims for equitable relief, if the total amount in dispute is less than $5,000, either party may elect to resolve the claim through binding arbitration by initiating arbitration through an established provider that is agreed by the parties. The arbitration must be conducted under the following rules: (a) at the choice of the party seeking relief, the arbitration shall be conducted by telephone, online, or solely on written submissions; (b) no party or witness will make any personal appearance unless the parties agree otherwise; and (c) the winning party may have the arbitrator's award entered as a judgment in any court of competent jurisdiction. Any claims (in court or in arbitration) must be brought in the initiating party's individual capacity and not as a plaintiff or class member in any class action or other similar proceeding. This Agreement does not allow class of collective arbitrations even if the Arbitration Procedures or rules would. The arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
Nothing herein shall be to limit Gigway rights and remedies provided by law. This License constitutes the entire agreement between You and Gigway relating to the Software and Services and supersedes all prior or contemporaneous oral or written communications and representations with respect to the Software and Services or any other subject matter covered by this License. If any part of the Agreement is invalid, illegal or unenforceable, that condition will not affect any other provision of the Agreement. A delay or failure to require performance of any provision will not constitute a waiver of any rights and will not impede the ability to enforce that provision later.
If you have any questions, please email us at firstname.lastname@example.org.
Or you can contact us by mail at: Gigway, Inc., 130 West Union Street, Pasadena, CA 91103
Updated: November 2011