Gigya Socialize End User Agreement
Please read the following
important terms and conditions (“Agreement”) carefully.
Gigya, Inc. (“Gigya”) provides an online social community service called “Gigya Socialize” through which end users can interact and communicate with each other
(the “Service”).
This Agreement governs
your access to and use of the Service and are a legal agreement between you and
Gigya. This Agreement applies to you as a Gigya End User (defined below) whether
you register with us via a Gigya Member’s website or through our own website
located at
www.gigya.com (the “Site”).
A “Gigya
Member” is a third party partner of Gigya which has deployed the Service
on their website for your use and enjoyment.
Your use of a Gigya Member’s website is
governed by the terms and conditions provided by that Gigya Member. This
Agreement limits Gigya’s liability and obligations to you, grant us certain
rights and allow us to change, suspend or terminate your access to and use of
the Site and Service.
YOU UNDERSTAND THAT BY CLICKING THE “I AGREE” BUTTON, BY USING THE
SITE, SERVICES OR YOUR GIGYA ACCOUNT YOU ARE AGREEING TO BE BOUND BY THIS
AGREEMENT. IF YOU DO NOT ACCEPT THIS
AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES.
If you agree to THIS AGREEMENT 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 THIS AGREEMENT will be treated as the agreement of the business. In that event, “you” and “your” will
refer and apply to that business.
1.
Eligibility and
Registration.
(a) In order to use the Service
and to post any content on the Site or via the Service, you must create a Gigya
account and become a “Gigya End User”. To become a
Gigya End User you must be at least 18 years of age. Gigya End Users will not be not
employees, agents or contractors of Gigya.
The Site, Service and access to a Gigya account are not available to
temporarily or indefinitely suspended Gigya End Users.
(b) When you register with
Gigya and set up your Gigya account, you agree to provide Gigya with accurate
and complete information. You agree to promptly update your Gigya account
information with any new information that may affect the operation of your Gigya
account. You authorize Gigya,
directly or through third parties, to make any inquiries we consider necessary
or appropriate to verify your Gigya account information.
(c) You will not use false
identities or impersonate any other person or use a username or password that
you are not authorized to use. Our
Privacy Policy contains information about our policies and procedures
regarding the collection, use and disclosure of information we receive from
Gigya End Users.
(d)
You are responsible for safeguarding and maintaining the confidentiality
of your username, password and corresponding Gigya account information. You agree not to disclose your
password to anyone. You agree that
you are entirely and solely responsible for any and all activities or actions
that occur under your Gigya account, whether or not you have authorized such
activities or actions. You agree to
immediately notify Gigya of any unauthorized use of your username, password or
Gigya account.
2.
Interactions between Gigya
End Users.
You are solely responsible for your interactions (including any disputes) with
other Gigya End Users. You
understand that Gigya does not in any way screen Gigya End Users. You are solely
responsible for, and will exercise caution, discretion, common sense and
judgment in, using the Site and Service and disclosing personal information to
other Gigya End Users. You agree to take reasonable precautions in all
interactions with other Gigya End Users, particularly if you decide to meet a
Gigya End User offline, or in person.
Your use of the Site, Service, Gigya Content (defined below) and any
other content made available through the Site or Service is at your sole risk
and discretion and Gigya hereby disclaims any and all liability to you or any
third party relating thereto. Gigya reserves the right to contact Gigya End
Users, in compliance with applicable law, in order to evaluate compliance with
the rules and policies in this Agreement.
You will cooperate fully with Gigya to investigate any suspected
unlawful, fraudulent or improper activity, including, without limitation,
granting authorized Gigya representatives access to any password-protected
portions of your Gigya account.
3.
Proprietary Rights and
Licenses.
(a)
Definitions.
Certain types of content are made available through the Site and Service. “Gigya
Content” means, collectively, the text, data, graphics, images, Gigya
trademarks and logos and other content
made
available through the Site and Service, excluding End User
Content. “End
User Content” means, collectively, the text, data, graphics, images,
photos, audio or video files, communications, bulletin board messages, chat,
graphics and other content and information which Gigya End Users post, upload,
link and otherwise submit to or via the Site or Service.
(b)
End User Content.
You retain all rights in your End User Content.
However, by uploading, posting, submitting, linking to or otherwise
transmitting any End User Content on or via the Site or Service, you hereby
grant to Gigya a non-exclusive, worldwide, royalty-free, sublicensable,
perpetual and irrevocable right and license to use, reproduce, modify,
distribute, prepare derivative works of, display, publish, perform, transmit and
access your End User Content in connection with the Service and Gigya’s (and its
successors) business including, without limitation, for promotion and
redistributing part or all of the Service (and derivative works thereof), in any
media formats and through any media channels.
You represent and warrant that you own or have the necessary licenses,
rights, consents and permissions to grant the foregoing licenses to Gigya. You acknowledge and agree that your
posting of or linking to End User Content will comply with our Copyright and
IP Policy as set forth in Section 4 below.
(c)
You acknowledge and agree
that Gigya may, at its option, reclassify or recatergorize any End User Content
and establish limits concerning End User Content, including, without limitation,
the maximum number of days that End User Content will remain available via the
Service or on the Site, the maximum size of any files that may be stored on or
uploaded to the Site or Service and the maximum disk space that may be allotted
to you for the storage of End User Content on Gigya’s servers. Gigya will have no responsibility or
liability for maintaining copies of End User Content on our servers, and you are
solely responsible for creating back-ups of your End User Content.
(d)
Gigya Content. Gigya and its licensors own all
right, title and interest, including all worldwide intellectual property rights
in the Site, Service, Gigya Content and any other content made available through
the Site or Service contained therein, other than your End User Content.
You will not remove, alter or conceal any
copyright, trademark, service mark or other proprietary rights notices
incorporated in or accompanying the Site, Service, Gigya Content, any other
content made available through the Site or Service or related products and
services, and except as explicitly described herein, you will not reproduce,
modify, adapt, prepare derivative works based on, perform, display, publish,
distribute, transmit, broadcast, sell, license or otherwise exploit the Site,
Service, Gigya Content or any other content made available through the Site or
Service (other than your End User Content).
(e)
Disclaimer. Gigya does not guarantee that
any content (including without limitation Gigya Content or End User Content)
will be made available through the Site or Service, continuously or at all.
WHILE GIGYA IS UNDER NO OBLIGATION TO DO SO,
Gigya reserves the right to remove and
permanently delete any Content from the Site or services without notice, AND FOR
ANY REASON Gigya DEEMS SUFFICIENT. Gigya does not have any obligation to
monitor the End User Content that is uploaded, posted, submitted or otherwise
transmitted using the Site or Service, for any purpose and, as a result, is not
responsible for the accuracy, completeness, appropriateness, legality or
applicability of the End User Content or anything said, depicted or written by
Gigya End Users or End Users, including, without limitation, any information
obtained by using the Site or Service. Gigya
does not endorse any End User Content or any opinion, recommendation or advice
expressed therein and you agree to waive, and hereby do waive, any legal or
equitable rights or remedies you have or may have against Gigya with respect
thereto.
4.
Copyrighted Materials: No
Infringing Use. You will not use the
Site or Service to 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. Gigya has
adopted and implemented a policy that provides for the termination in
appropriate circumstances of the accounts of users who repeatedly infringe or
are believed to be or are charged with repeatedly infringing the rights of
copyright holders. Please see the
Copyright and IP Policy for further information.
5.
Termination or Suspension of
the Site or Service & Modification of this Agreement.
(a)
Gigya reserves the right in
its sole discretion, at any time, to modify, discontinue or terminate the Site
or Service or to modify or terminate this Agreement without advance notice.
Modifications to this Agreement
or any policies will be posted on the Site or made in compliance with any notice
requirements set forth in this Agreement. If
any modification is not acceptable to you, your only recourse is to cease using
the Site and Service. By continuing
to use the Site or Service after Gigya has posted any modifications on the Site
or provided any required notices, you accept and agree to be bound by the
modifications.
(b)
Without limiting other remedies,
Gigya may at any time suspend or terminate your Gigya account and refuse to
provide access to the Site or Service. In addition, Gigya may notify authorities
or take any actions it deems appropriate, without notice to you, if Gigya
suspects or determines, in its own discretion, that you may have or there is a
significant risk that you have (i) failed to comply with any provision of this
Agreement or any policies or rules established by Gigya; or (ii) engaged in
actions relating to or in the course of using the Site or Service that may be
illegal or cause liability, harm, embarrassment, harassment, abuse or disruption
for you, Gigya End Users, Gigya or any other third parties or the Site or
Service.
(c)
You may terminate your
Gigya account at any time and for any reason. Upon any termination by a Gigya
End User, the related account will no longer be accessible.
After any termination, you understand and
acknowledge that we will have no further obligation to provide the Site or
Service and all licenses and other rights granted to you by this Agreement will
immediately cease. Gigya will not be liable to you or any third party for
termination of the Site or Service or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION,
ANY CONTENT, MATERIALS OR INFORMATION THAT YOU HAVE SUBMITTED VIA THE SITE OR
SERVICE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY
YOU. Furthermore, Gigya will have no obligation to maintain any information
stored in our database related to your account or to forward any information to
you or any third party.
(d)
Any suspension, termination or
cancellation will not affect your obligations to Gigya under this Agreement
(including, without limitation, proprietary rights and ownership,
indemnification and limitation of liability), which by their sense and context
are intended to survive such suspension, termination or cancellation.
6.
Obligations for Gigya End
Users. The Site and Service may be used and
accessed for lawful purposes only. You agree to abide by all applicable local,
state, national and foreign laws, treaties and regulations in connection with
your use of the Site and Service. In
addition, without limitation, you agree that you will not do any of the
following while using or accessing the Site or Service:
(a)
Upload, post, submit or
otherwise transmit: (i) any End User Content to which you do not have the lawful
right to copy, transmit and display (including any End User Content that would
violate any confidentiality or fiduciary obligations that you might have with
respect to the End User Content); (ii) any End User Content for which you do not
have the consent or permission of each identifiable person in the End User
Content to use the name, voice, signature, photograph, or likeness of each such
person (to the extent each is implicated by the End User Content ) and such
consent or permission is necessary; or (iii) any End User Content 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 End User Content that are 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
pornography, erotica, child pornography or child erotica, is deceptive,
threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar
or violent or constitutes hate speech or is otherwise objectionable in the
opinion of Gigya;
(c)
Circumvent, disable or
otherwise interfere with security related features of the Site or features that
prevent or restrict use or copying of any content;
(d)
Use any meta tags or other
hidden text or metadata utilizing a Gigya trademark or logo, URL or product
name;
(e)
Upload, post, submit or
otherwise transmit any unsolicited or unauthorized advertising, promotional
materials, junk mail, spam, chain letters, “pyramid schemes” or any other form
of unsolicited or unauthorized solicitation;
(f)
Forge any TCP/IP packet
header or any part of the header information in any posting or in any way use
the Site or Service to send altered, deceptive or false source-identifying
information;
(g)
Upload, post, submit or
otherwise transmit any End User Content that contain software viruses or any
other computer code, files, or programs designed to (i) interrupt, destroy or
limit the functionality of any computer software; or (ii) interfere with the
access of any user, host or network, including without limitation sending a
virus, overloading, flooding, spamming or mail-bombing the Site;
(h)
Upload, post, submit or
otherwise transmit any End User Content that include code that is hidden or
otherwise surreptitiously contained within the images, audio or video of any End
User Content that is unrelated to the immediate, aesthetic nature of the End
User Content;
(i)
Interfere with or disrupt
(or attempt to interfere with or disrupt) any web pages available at the Site,
servers or networks connected to the Site, Service or the technical delivery
systems of Gigya’s providers or disobey any requirements, procedures, policies
or regulations of networks connected to the Site or Service;
(j)
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 Site or
Service;
(k)
Attempt to decipher,
decompile, disassemble or reverse engineer any of the software used to provide
the Site or Service;
(l)
Attempt to access, search or
meta-search the 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 (such as Microsoft Internet Explorer, Mozilla
Firefox, Safari or Opera), including, without limitation, any software that
sends queries to the Site to determine how a website or web page ranks;
(m)
Collect or store personal
data about other Gigya End Users without their express permission;
(n)
Impersonate or misrepresent
your affiliation with any person or entity, through pretexting or some other
form of social engineering or otherwise commit fraud;
(o)
Use the Site or Service in
any manner not permitted by this Agreement; or
(p)
Encourage or instruct any
other individual to do any of the foregoing or to violate any term of this
Agreement.
7.
Feedback. We welcome and encourage you to
provide feedback, comments and suggestions for improvements to the Site and
Service
(“Feedback”).
You may submit
Feedback by emailing us at
support@gigya-inc.com or through the “Help” section of the Site. You acknowledge and agree that all
Feedback will be the sole and exclusive property of Gigya and you hereby assign
and agree to assign all rights, title and interest you have in such Feedback to
Gigya together with all intellectual property rights therein.
8.
Indemnification.
You agree to defend, indemnify and hold Gigya and its affiliates, subsidiaries
and distribution partners and their respective officers, directors, employees
and/or agents harmless from and against any claims, liabilities, damages, losses
and expenses, including, without limitation, reasonable attorneys’ fees and
costs, arising out of or in any way connected with: (i) your access to or use of
the Site, Service, Gigya Content, End User Content; (ii) your violation of this
Agreement; (iii) your 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 you post to the
Site or via the Service (including without limitation your End User Content)
caused damage to a third party, including, without limitation, claims that your
End User Content is infringing.
9.
Disclaimer.
THE SITE, SERVICES, GIGYA CONTENT AND ANY OTHER CONTENT 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 SITE, SERVICES, GIGYA CONTENT AND ANY OTHER CONTENT MADE AVAILABLE
THROUGH THE SITE OR SERVICES, 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 Site, SERVICES, Gigya content or any
OTHER CONTENT MADE AVAILABLE THROUGH THE SITE OR 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 you.
10.
Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL GIGYA OR ITS AFFILIATES, SUBSIDIARIES,
PARTNERS OR LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES
AND/OR AGENTS BE LIABLE TO YOU or any third-party FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT
OF OR IN CONNECTION WITH USE OF THE SITE, SERVICES, GIGYA CONTENT AND ANY OTHER
CONTENT MADE AVAILABLE THROUGH THE SITE OR SERVICES INCLUDING, WITHOUT
LIMITATION, INJURY OR DAMAGES RESULTING FROM THE CONDUCT OF ANY GIGYA END USER,
ONLINE OR OFFLINE, WHETHER OR NOT GIGYA HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, GIGYA’S AGGREGATE LIABILITY TO YOU ARISING WITH
RESPECT TO THIS AGREEMENT WILL NOT EXCEED $50. GIGYA
WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS RELATING
TO THE SITE, SERVICES OR THE SCHEDULED OR UNSCHEDULED SERVICE INTERRUPTIONS. SOME STATES DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
11.
Force Majeure. Gigya will not be liable to you by
reason of any failure or delay in the performance of its obligations hereunder
on account of events beyond its reasonable control, which may include, without
limitation, denial-of-service attacks, strikes, shortages, riots, insurrection,
fires, flood, storm, explosions, acts of God, war, terrorism, governmental
action, labor conditions, earthquakes, material shortages, failure of the
internet or extraordinary connectivity issues experienced by major
telecommunications providers and unrelated to Gigya infrastructure or
connectivity to the internet or failure at an Gigya co-location facility (each a
“Force Majeure Event”). Upon the occurrence of a Force
Majeure Event, Gigya will be excused from any further performance of its
obligations effected by the Force Majeure Event for so long as the event
continues, and for such further period of time that Gigya may reasonably require
to recover from the effects of such Force Majeure Event.
12.
Relationship of the Parties. 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.
13.
Notice; Consent to
Electronic Notice.
You consent 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 or your use of the Site or Service. Any notice or other communication to
be given hereunder will be in writing and given (x) by Gigya via email (in each
case to the address that you provide), (y) a posting on the Site or (z) by you
via email to legal@gigya-inc.com or to such other addresses as Gigya may specify
in writing. The date of receipt will
be deemed the date on which such notice is transmitted.
14.
Links to other Websites.
The Site or Service may provide links to websites other than www.gigya.com. Such
links are provided for reference only, and Gigya neither controls such websites
nor endorses any of the material on any such websites or any association with
their operators. Gigya is not
responsible for the activities or such sites, and has no liability to you for
any harms, injuries or losses you might suffer as a result of using or accessing
such websites.
15.
Miscellaneous.
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. You
may not assign or transfer this Agreement (by operation of law or otherwise)
without the prior written consent of Gigya and any prohibited assignment will be
null and void. Gigya may assign this Agreement or any rights hereunder without
your consent. This Agreement will be governed by and
interpreted in accordance with the laws of the State of California 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 Northern California and the parties
hereby irrevocably consent to the personal jurisdiction and venue therein. You
agree that this Agreement and the rules, restrictions and policies contained
herein, and Gigya’s enforcement thereof, are not intended to confer and do not
confer any rights or remedies upon any person other than you and Gigya. This Agreement together with the
rules and policies of Gigya incorporated herein by reference constitute the
entire agreement between Gigya and you with respect to the subject matter of
this Agreement.
16.
Questions. If you have questions about this
Agreement please contact Gigya by emailing us at support@gigya-inc.com.
Last Modified: 05/21/2008