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By using graphics
and code and any associated documentation (collectively, the
“Widgets”) that provide you the means to provide your
end users with certain features access powered by the Gigya Network service (the
“Gigya Network”) you agree
to be bound by the following terms of Service (these
“Terms of Service”).
You may use the
Gigya Widgets if you are an individual or an entity, provided that you abide by
these Terms of Service at all times.
You may not use
the Widgets in any manner that either directly or indirectly violates any federal,
state, or local laws applicable to you, any court, regulatory or other order or
judgment against you, or the proprietary, contractual or laws, orders, judgments,
and rights in the
United States
as well as in other countries.
You agree not
to remove, obscure, or alter Gigya's copyright notice, trademarks, or other proprietary
rights notices affixed to or contained within the Widgets.
You acknowledge
that Gigya owns all right, title and interest in and to the Widgets, including without
limitation all intellectual property rights relating thereto (the
“Gigya Rights”). The Gigya Rights include rights
to the Widgets and all software associated with the Widgets developed and provided
by Gigya. The Gigya Rights do not include third-party components used in connection
with the Widgets or software developed by you in conjunction with using the Widgets.
“GIGYA”, the “Gigya” logo, and other marks that incorporate “GIGYA” are trademarks
of Gigya.
Your right to
display Widgets is limited only to your web site (the “Site”) and not in connection
with any application such as a toolbar, plug-in, helper, and component or other
executable code that runs on an end user's computer. You will be solely responsible
for the development, operation, and maintenance of the Site and for all materials
that appear on the Site. You understand that Gigya will provide Widgets on a nonexclusive
basis, and that Gigya will continue to customize and provide its services to other
parties for use in connection with a variety of applications, including Widgets.
You may not remove, distort or alter any element of the Widgets (including the html
and JavaScript code) or otherwise change the size or appearance of the Widgets in
any way, except in the manner specifically authorized in the posted
API
documentation, as the same may change from time to time.
You may not display
Widgets in any manner that implies a partnership or affiliation with, sponsorship,
or endorsement by Gigya, or that can be reasonably interpreted to suggest editorial
content has been authored by, or represents the views or opinions of Gigya or Gigya
personnel. Your Site will not, in any way, copy or resemble the look and feel of
any part of the Gigya web site nor will you create the impression that the Site
is our web site or is a part of our web site.
Gigya reserves
the right in its sole discretion to terminate or modify your permission to display
the Widgets at any time and to take action against any use that does not conform
to these Terms of Service, infringes any Gigya intellectual property or other right,
or violates applicable law.
You will not,
and will not allow any third party to: (a) modify, adapt, translate, prepare derivative
works from, decompile, reverse engineer, disassemble or otherwise attempt to derive
source code from any Widgets or any other Gigya technology, content, data, routines,
algorithms, methods, ideas design, user interface techniques, software, materials,
and documentation; (b) remove, deface, obscure, or alter Gigya's copyright notice,
trademarks or other proprietary rights notices affixed to or provided as a part
of any Widgets or any other Gigya technology, software, materials and documentation;
(c) create or attempt to create a substitute or similar service or product through
use of or access to the Gigya Network or proprietary information related thereto;
and/or (d) engage in any action or practice that reflects poorly on Gigya or otherwise
disparages or devalues Gigya's reputation or goodwill.
For purposes of
the Terms of Service, “Brand Names or Logos”
will be defined as the trade names, trademarks, service marks, logos, domain names,
and other distinctive brand features of each party, respectively, as secured by
such party from time to time. Gigya hereby grants to you a nontransferable, nonsublicenseable,
nonexclusive license during the Term to display Gigya's Brand Names or Logos for
the purpose of promoting or advertising that you use the Gigya website. You hereby
grant to Gigya a nontransferable, nonexclusive license during the Term to use your
Brand Names or Logos to advertise that you are using the Widgets. Any use of the
Gigya Brand Names or Logos is subject to the Gigya Brand Names or Logos guidelines.
Gigya may modify the Gigya Brand Names or Logos or the Gigya Brand Names or Logos
guidelines. Nothing in the Terms of Service will grant or will be deemed to grant
to one party any right, title or interest in or to the other party's Brand Names
or Logos. All use by you of Gigya's Brand Names or Logos (including any goodwill
associated therewith) will inure to the benefit of Gigya. At no time during or after
the Term will you challenge or assist others to challenge the Brand Names or Logos
of Gigya (except to the extent such restriction is prohibited by law) or the registration
thereof by Gigya, nor will you attempt to register any Brand Names or Logos (including
domain names) that are confusingly similar in any way (including but not limited
to, sound, appearance and spelling) to those of Gigya.
Gigya will retain
custody of all data and information collected or obtained by Gigya through the Gigya
Network from users of Widgets. Without derogating from the above, from time to time,
Gigya will send you a report specifying users sending mail addresses.
GIGYA DISCLAIMS
ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE WIDGETS OR THE GIGYA
NETWORK. THE WIDGETS
AND
GIGYA NETWORK
ARE
PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. GIGYA EXPRESSLY DISCLAIMS TO THE
FULLEST EXTENT PERMITTED BY LAW
ALL
EXPRESS, IMPLIED,
AND
STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE,
AND
NON-INFRINGEMENT OF PROPRIETARY RIGHTS. GIGYA FURTHER DISCLAIMS ANY WARRANTIES REGARDING
THE SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY,
AND
PERFORMANCE OF THE WIDGETS OR THE GIGYA NETWORK. YOU UNDERSTAND
AND
AGREE THAT YOU USE THE WIDGETS
AND
GIGYA NETWORK AT YOUR OWN DISCRETION
AND
RISK
AND
THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO COMPUTER SYSTEM OR LOSS OF
DATA
THAT RESULTS FROM THE USE OF WIDGETS OR GIGYA NETWORK.
THE WIDGETS
AND
USE OF THE GIGYA NETWORK
ARE
BEING PROVIDED
FREE
OF CHARGE. ACCORDINGLY, YOU AGREE THAT GIGYA SHALL HAVE NO LIABILITY ARISING FROM
OR BASED ON YOUR USE OF THE WIDGETS OR GIGYA NETWORK. THIS 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 GIGYA
HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL
APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF
AND
RELIANCE ON THE WIDGETS OR GIGYA NETWORK, FROM INABILITY TO USE THE WIDGETS OR GIGYA
NETWORK, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE WIDGETS OR
GIGYA NETWORK (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. SOME STATES OR OTHER JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
SO THE ABOVE LIMITATIONS
AND
EXCLUSIONS
MAY
NOT APPLY TO YOU.
You represent and warrant that you own or otherwise control all of the rights to
those certain features that are to be accessed through Gigya Widgets. In connection
with features that contain images, photographs, pictures or that are otherwise graphical
in whole or in part ("Images"), you warrant and represent that (a) you are the copyright
owner of such Images, or that the copyright owner of such Images has granted you
permission to use such Images or any content and/or images contained in such Images
consistent with the manner and purpose of your use and as otherwise permitted by
these Terms of Service and the Services,
and (b) that each person depicted in such Images, if any, has provided consent to
the use of the Images, including, by way of example, and not as a limitation, the
distribution, public display and reproduction of such Images.
You hereby agree
to indemnify, defend and hold Gigya, and its officers, directors, agents, licensors
and licensees (collectively, the “Indemnified Parties”) harmless from and against
any and all liability and costs incurred by any Indemnified Parties in connection
with any claim arising out of your use of the Widgets or Gigya Network or that would
constitute a breach of any warranty, representation or covenant made by you under
the Terms of Service, including but not limited to any third party lawsuit or proceeding
brought against Gigya based upon a claim that the Site, the content on your Site
or your Brand Names or Logos infringe any copyright, trade secret or trademark of
the third party,. Your indemnification will include (1) all attorneys' fees and
costs associated with the defense of such a claim, (2) all damages and costs finally
awarded, and (3) the full cost of any settlement entered into by you. You will not
enter into any settlement or compromise of any such claim without Gigya's prior
consent. You shall cooperate as fully as reasonably required in the defense of any
such claim. Gigya reserves the right, at its own expense, to assume the exclusive
defense and control of any matter subject to indemnification by you.
So long as you
comply with your obligations under these Terms of Service, you may indicate that
your web site uses the Widgets, provided that your web site does not in Gigya's
reasonable opinion (1) tarnish, infringe, or dilute Gigya's trademarks, (2) violate
any applicable law, (3) infringe any third-party rights, or (4) otherwise subject
Gigya to an undue risk of liability. If you wish to use the Gigya trademark and/or
logo in any other manner, you must first obtain Gigya's written consent.
Gigya may amend,
modify or terminate these Terms of Service, either with respect to your use of the
Widgets or generally for all users, at any time, with or without warning or cause.
Any new features that augment or enhance the Widgets will be subject to the Terms
of Service. If a modification is unacceptable to you, you may terminate the Terms
of Service as applicable to you by removing the Widgets from your Site. If you continue
to use the Widgets and/or the Widget code on any Site, you will be deemed to have
accepted the modifications.
The term of the
Terms of Service will commence on the date upon which you add Widgets to your Site
and will continue in force thereafter, unless terminated as provided in these Terms
of Service.
Gigya may change,
suspend or discontinue all or any aspect of the Widgets, including their availability,
at any time, and may terminate your use of the Widgets at any time. In addition,
either party may terminate the Terms of Service at any time, for any reason, or
for no reason including, but not limited to, if you engage in any action that reflects
poorly on Gigya or otherwise disparage or devalue the Gigya Brand Names or Logos
or Gigya's reputation or goodwill.
Upon the termination
of the Terms of Service for any reason (i) all license rights granted in these Terms
of Service will terminate and (ii) you will immediately delete any and all Gigya
Brand Names or Logos, Widgets and Widget code from your Site. Neither party will
be liable to the other party for damages of any sort resulting solely from terminating
the Terms of Service in accordance with its terms.
You acknowledge
that your breach of service/license restrictions contained in these Terms of Service
may cause irreparable harm to Gigya, the extent of which would be difficult to ascertain.
Accordingly, you agree that, in addition to any other remedies to which Gigya may
be legally entitled, Gigya will have the right to seek immediate injunctive relief
in the event of a breach of such sections by you or any of your officers, employees,
consultants or other agents.
Any notice to
Gigya required for or permitted by the Terms of Service will be in writing and will
be delivered as follows with notice deemed given as indicated: (i) by personal delivery
when delivered personally, (ii) by overnight courier upon written verification of
receipt, or (iii) by certified or registered mail, return receipt requested, upon
verification of receipt. All notices to Gigya must be sent to the attention of the
Gigya Management at:
Gigya Inc.
331 W 57th St #398
New York, NY 10019.
You may not assign
your rights or delegate your obligations under the Terms of Service without Gigya's
prior written consent. The parties are independent contractors. Neither party will
be deemed to be an employee, agent, partner or legal representative of the other
for any purpose and neither will have any right, power or authority to create any
obligation or responsibility on behalf of the other. These Terms and Conditions
will be governed by and construed in accordance with the laws of the State of
New York
, without giving effect to the conflict of laws or provisions of your actual state
or country of residence. Any dispute arising from these Terms of Service shall be
adjudicated in the federal or state courts located in New York, New York. If for
any reason a court of competent jurisdiction finds any provision or portion of these
Terms of Service to be unenforceable, the remainder of these Terms of Service will
continue in full force and effect. These Terms of Service constitute the entire
agreement between the parties with respect to the subject matter hereof and supersede
and replace all prior or contemporaneous understandings or agreements, written or
oral, regarding such subject matter. Any waiver of any provision of these Terms
of Service will be effective only if in writing and signed by Gigya.
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