This Member Agreement (the “Agreement”) is between you (referred to in this Agreement as “you” or “Member”) and Gigya Inc, a Delaware corporation (“Gigya”). This Agreement grants Member use of Gigya’s proprietary web-based Socialize technology, tools, services, software, and content (collectively, the “Services”) made available to registered account holders on Gigya’s website www.gigya.com (the “Gigya Site”).
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE FREE VERSION OF THE SERVICES. THESE TERMS AND CONDITIONS LIMIT GIGYA’S LIABILITY AND OBLIGATIONS TO YOU, AND RESERVE GIGYA’S RIGHT TO CHANGE, SUSPEND OR TERMINATE YOUR ACCESS TO AND USE OF THE SERVICES. BY CLICKING THE “I AGREE” BUTTON, OR BY USING THE FREE VERSION OF THE SERVICES YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE FREE VERSION OF THE SERVICES.
IF YOU AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS AND CONDITIONS, AND YOUR AGREEMENT TO THESE TERMS AND CONDITIONS WILL BE TREATED AS THE AGREEMENT OF THAT BUSINESS. IN THAT EVENT, “YOU” AND “YOUR” AND “MEMBER” WILL REFER AND APPLY TO THAT BUSINESS.
IMPORTANT: THE SERVICES ARE PROVIDED FREE OF CHARGE ONLY FOR (1) TESTING AND EVALUATION PURPOSES, OR (2) PRODUCTION USE ON THE SITE INDICATED ON YOUR REGISTRATION (THE “MEMBER SITE”) SO LONG AS NOT MORE THAN ONE THOUSAND (1,000) UNIQUE MEMBER SITE USERS CONNECT VIA THE SERVICES IN ANY CALENDAR MONTH. IF THE MEMBER SITE DOES NOT QUALIFY (I.E., THE ABOVE USER LIMIT IS OR WILL BE EXCEEDED IN ANY MONTH), YOU ARE NOT ELIGIBLE TO USE (OR CONTINUE USING) THE FREE SERVICES. TO CONTINUE USING THE SERVICES YOU MUST OBTAIN A PAID SUBSCRIPTION FROM GIGYA.
IF YOU SIGN (OR HAVE ALREADY SIGNED) A PAID MEMBER AGREEMENT WITH GIGYA FOR THE MEMBER SITE, THAT PAID MEMBER AGREEMENT (RATHER THAN THIS AGREEMENT) WILL GOVERN USE OF THE SERVICES ON THE MEMBER SITE.
End User Content.
Member or its third-party advertisers and licensors will retain ownership of and all rights in and to all content provided by any person or entity using an Internal User account (“Member Content”). Member hereby grants to Gigya a limited non-exclusive, worldwide, royalty-free license to use, display, modify and redistribute the Member Content only as necessary for Gigya to provide the Services. Gigya will have no responsibility or liability for maintaining Member Content on its servers, and Member is solely responsible for backing up its Member Content.
Member will not remove, alter or conceal any Gigya copyright, trademark, service mark or other proprietary rights notices on or within any Gigya-provided content included in the Services (“Gigya Content”). Except as explicitly permitted herein, Member will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Services or any Gigya Content.
Member and Internal Users will not do any of the following while using or accessing the Services:
(a) Circumvent, disable or otherwise interfere with security related features of the Services or features that prevent or restrict use or copying of any content; (b) Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Services to send altered, deceptive or false source-identifying information; (c) Tamper with, interfere with or disrupt (or attempt to do so) the availability of any aspect of the Services, any servers or networks connected to the Services, or the technical delivery systems of Gigya or any Gigya provider; (d) Attempt to probe, scan or test the vulnerability of any Gigya system or network or breach or impair or circumvent any security or authentication measures protecting the Gigya Site or Services; (e) Attempt to access, search or meta-search the Gigya Site with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Gigya or other generally available third-party web browsers; (f) Impersonate or misrepresent any person or entity, or Member’s affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud; or (g) Offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party.
Termination or Modification of Services or Agreement.
(a) Scope of Indemnification. Member shall indemnify and hold Gigya, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all costs, damages, losses, claims, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in any way connected with: (i) Member’s access to or use of the Services; (ii) Member’s violation of the terms and conditions of this Agreement; (iii) Member’s violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that any content posted by Member via the Services (including without limitation Member Content) caused damage to a third party, including, without limitation, claims that Member Content is infringing. (b) Procedure for Third Party Claims. In the case of any third party claim for which Gigya seeks to be indemnified, Gigya shall (i) promptly give notice of the claim to Member; (ii) give Member sole control of the defense and settlement of the claim (provided that Member may not settle such claim unless such settlement unconditionally releases Gigya of all liability and does not adversely affect Gigya’s business or Service); and (iii) provide to Member all available information and reasonable assistance requested by Member.
Limitations and Disclaimers.
Member shall indemnify and hold Gigya, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in any way connected with: (i) Member’s access to or use of the Services Gigya Content, or Member Content; (ii) Member’s violation of the terms and conditions of this Agreement; (iii) Member’s violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that any content posted by Member via the Services (including without limitation Member Content) caused damage to a third party, including, without limitation, claims that Member Content is infringing; provided in any such case that Gigya (a) promptly gives notice of the claim to Member; (b) gives Member sole control of the defense and settlement of the claim (provided that Member may not settle such claim unless such settlement unconditionally releases Gigya of all liability and does not adversely affect Gigya’s business or Service); (c) provides to Member all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim.
(a) Services Limitation The Services do not include any obligation of Gigya to monitor, screen, or restrict use of the Services by individual Internal Users or End Users, or to monitor, review or take any other action regarding any individual item of Member Content or End User Content. Gigya does not endorse any Member Content or End User Content or any opinion, recommendation or advice expressed therein. Gigya disclaims any responsibility or liability to Member or any third party for any use of the Services by any Internal User or End User, or for the accuracy, completeness, appropriateness, legality or applicability of any Member Content or End User Content, and Member hereby waives any legal or equitable rights or remedies Member may have against Gigya with respect thereto. WHILE GIGYA IS UNDER NO OBLIGATION TO DO SO, GIGYA RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM THE SERVICES WITHOUT NOTICE, AND FOR ANY REASON GIGYA DEEMS SUFFICIENT. (B) DISCLAIMER OF WARRANTIES. THE SERVICES ARE MADE AVAILABLE THROUGH THE SITE OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY OF ANY KIND. GIGYA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES AND GIGYA CONTENT, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, GIGYA MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO MEMBER.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL GIGYA AND/OR ITS LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE TO MEMBER, ANY INTERNAL USER, OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE (OR INABILITY TO USE) OF ANY SERVICES OR FOR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE SERVICES OR ANY CONTENT, OR FROM THE CONDUCT OF ANY INTERNAL USER OR END USER, EVEN IF GIGYA OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GIGYA’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY.
Gigya will not be liable to Member by reason of any failure or delay in performance on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, earthquakes, or internet connectivity or failure issues experienced by major telecommunications providers or a Gigya co-location facility, for the duration of such event and for such further period of time that Gigya may reasonably require to recover from the effects of such event.
Member grants Gigya the right, during the term of the Agreement, to use Member’s name, mark and logo on Gigya’s website and/or in Gigya marketing materials, solely to identify Member as a user of one or more Services.
Notice; Consent to Electronic Notice
.Member consents to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement, and (b) electronic records to store information related to this Agreement and Member’s use of the Services. All notices provided under this Agreement must be delivered in writing by electronic mail. Member may give notice to Gigya by emailing email@example.com and Gigya may give notice to Member by emailing the most recent email address provided by Member. Either party may change its email address by giving timely notice of the new address to the other party pursuant to this Section.
Member may not assign this Agreement to any third party except upon Gigya’s prior written consent, not to be unreasonably withheld. Any purported assignment in violation of this section shall be void. Gigya may freely assign this Agreement without Member’s consent. Subject to the foregoing, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
Notwithstanding any provision hereof, for all purposes of this Agreement each party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind nor attempt to bind the other to any contract. In the event that any provision in this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. The failure of a party to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. This Agreement will be governed by and interpreted in accordance with the laws of the State of California and controlling federal law, excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in courts located in Santa Clara County, California, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. This Agreement comprises the entire agreement between Member and Gigya regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. Gigya Site use by Member remains subject to the Terms of Service posted on the Gigya Site.
Rev. March 31, 2010
Member Site Terms
- Disclosure to End Users of the collection, use and sharing of Usage Data and End User Data on or through the Services by Member and/or Gigya, and all other disclosures and election procedures that may be required under applicable laws in connection with the Services.
- End Users may use the Services for lawful purposes only, in compliance with all applicable local, state, national and foreign laws, treaties and regulations.
- End Users shall acknowledge that (a) use of the Service is at End Users’ own risk and discretion, and they must take reasonable precautions in all interactions with other users; (b) Member and Gigya do not have any obligation to monitor, screen or restrict End Users, their access to or use of the Services, or any information or contents uploaded, posted, submitted, linked, reproduced, distributed or otherwise submitted or transmitted by End Users using the Services, including without limitation text, data, graphics, images, photos, audio or video files, communications, bulletin board messages, chat, or graphics (“End User Content”); (c) Member and Gigya are not responsible for any aspect of such use, or the accuracy, completeness, appropriateness, legality or applicability of any End User Content; (d) Member and Gigya do not endorse any End User Content or any opinion, recommendation or advice expressed therein; and (e) Member and Gigya retain the right to remove and permanently delete any End User Content from the Services without notice, and for any reason they deem sufficient.
- Member and Gigya provide the Services “as is” and disclaim any and all warranties or liability to the End User or any third party relating to End User use of the Services or End User Content. End Users waive any legal or equitable rights or remedies End Users may have against Member or Gigya with respect to the Services, or End Users’ use thereof, or any End User Content.
- End Users will represent and warrant that they own or have the necessary licenses, rights, consents and permissions to all End User Content grant the foregoing license grant Member and Gigya a non-exclusive, worldwide, royalty-free, sub-licensable, perpetual and irrevocable right and license to use, reproduce, modify, distribute, redistribute, prepare derivative works of, display, publish, perform, transmit and access all End User Content in connection with the Services.
End Users will not, directly or through others, do the following while using or accessing the Services:
(a) offer, display, use, distribute, or transmit, any End User Content (i) that is unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, contains any adult or child pornography, is threatening, abusive, encouraging or furthering unlawful action, false or deceptive (including impersonating another), defamatory, libelous, or violent or constitutes hate speech or is otherwise objectionable in the opinion of Member or Gigya; (ii) that contains any viruses, worms or other malicious computer programming code or files able to interrupt, destroy or limit the Services or access thereto, including without limitation overloading, flooding, spamming or mail-bombing the Services; (iii) which End User does not have the lawful right to copy, transmit and display, or does not have the consent or permission of each identifiable person in the End User Content; or (iv) that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right or moral right or right of publicity). (b) Upload, post, submit or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, or other form of unsolicited solicitation; (c) Probe, scan, test, interfere with, or disrupt any Services delivery systems, or disobey, disable, interfere with or circumvent any Services security, authentication, or other features, requirements, procedures, policies; (d) Collect or store personal data about other Services users without their express permission; or (e) Use the Services in any manner not permitted by the Member Site Terms.