Software License Agreement
SOFTWARE LICENSE AGREEMENT
Single Use License
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING YOUR GIBI OR DOWNLOADING ANY SOFTWARE UPDATES ACCOMPANYING THIS LICENSE. BY USING YOUR GIBI OR DOWNLOADING A SOFTWARE UPDATE, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THE LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, DO NOT USE YOUR GIBI OR DOWNLOAD THE SOFTWARE UPDATE. FOR PURCHASERS OF THE GIBI DEVICE, IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN YOUR GIBI TO US OR THE AUTHORIZED DISTRIBUTOR WHERE YOU OBTAINED IT FOR A REFUND, SUBJECT TO GIBI’S RETURN POLICY FOUND AT https://getgibi.com/return-policy/
(a) The software (including embedded software), documentation, interfaces, content, fonts and any data that came with your Gibi (“Original Software”), as may be updated or replaced by feature enhancements, software updates or system restore software provided by Gibi (“Software Updates”), whether in read only memory, on any other media or in any other form (the Original Software and Software Updates are collectively referred to as the “Software”) are licensed, not sold, to you by Gibi Technologies, Inc. (“Gibi”) for use only under the terms of the License. Gibi and our licensors retain ownership of the Software itself and reserve all rights not expressly granted to you.
(b) Gibi, at our discretion, may make available future Software Updates for your Gibi Device. The Software Updates, if any, may not necessarily include all existing software features that Gibi releases for newer or other Gibi Device models. The terms of the License will govern any Software Updates provided by Gibi that replace and/or supplement the Original Software, unless such Software Update is accompanied by a separate license, in which case the terms of that license will govern.
- Permitted License Uses and Restrictions.
(a) Subject to the terms and conditions of the License, you are granted a limited non-exclusive license to use the Software on a single Gibi Device. Except as permitted in Section 2(b) below, and unless as provided in a separate agreement between you and Gibi, the License does not allow the Software to exist on more than one Gibi device at a time, and you many not distribute or make the Software available over a network where it could be used by multiple devices at the same time. The License does not grant you any rights to use Gibi proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories, or third party software applications, for use with the Gibi Device. Some of those rights are available under separate licenses from Gibi. For more information on developing third party devices and accessories for Gibi Devices, please email madeforGibi@gibitechnologies.com. For more information on developing software applications for Gibi Devices, please email firstname.lastname@example.org.
(b) Subject to the terms and conditions of the License, you are granted a limited non-exclusive license to download Software Updates that may be made available by Gibi for your model of Gibi Device to update or restore any the software on any such Gibi Device that you own or control. The License does not allow you to update or restore any Gibi Device that you do not control or own, and you may note distribute or make the Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time. If you download a Software Update to your computer, you may make one copy of the Software Update stored on your computer in machine-readable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained in the original.
(c) You may not and you agree not to, or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any services provide by the Software, or any part thereof (except as and ony to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with the Software). Any attempt to do so is a violation of the rights of Gibi and our licensors of the Software.
(e) You agree to use the Software and the Services (as defined in Section 5 below) in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Software and Services.
(f) Use of and access to features of the Software and Services (as defined in Section 5 below) may require you to apply for a unique user name and password combination, know as a Gibi ID.
- Transfer. You may not rent, lease, lend, sell, redistribute or sublicense the Software. You may, however, make a one-time permanent transfer of all of your license rights to the Software to another party in connection with the transfer of ownership of your Gibi Device, provided that (a) the transfer must include your Gibi Device and all of the Software, including all its component parts, original media, printed materials and this License; (b) you do not retain any copies of the Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Software reads and agrees to accept the terms and conditions of this License.
- Consent to Use of Data.
(a) Diagnostic and Usage Data. If you opt in to diagnostic and usage collection, you agree that Gibi and our subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to information about your Gibi Device, computer, system and application software and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software, and to verify compliance with the terms of this License. Gibi may use this information, as long as it is collected in a form that does not personally identify you, to provide and improve Gibi’s products and services. If you have opted in, the location of your device may also be sent to help Gibi analyze wireless or cellular performance issues (e.g., the strength of a cellular signal in a particular location). To enable Gibi’s partners and third party developers to improve their software, hardware and services designed for use with Gibi’s products and services, Gibi may also provide any such partner or third party developer with a subset of diagnostic information that is relevant to such partner’s or developer’s software, hardware and/or service, as long as the diagnostic information is in a form that does not personally identify you.
- Services and Third Party Materials.
(a) The Software enables access to Gibi’s location and pet motion services as well as to other services that may be introduced by Gibi or our partners or licensees from time to time (collectively and individually, “Services”). Such Services may not be available in all languages and countries. Use of these Services requires Internet access. Use of certain Services may require a Gibi ID, may require you to accept additional terms and may be subject to additional fees. By using the Software in connection with a Gibi ID, you agree to applicable terms of service for that account, which you may review at https://getgibi.com/terms-of-service/
(b) You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Services at your sole risk and that Gibi shall have no liability to you for content that may be found to be offensive, indecent or objectionable.
(c) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sties. By using the Services, you acknowledge and agree that Gibi is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Gibi, our officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
(d) Location data provided by any Services is for basic location and navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Gibi, our partners nor licensees guarantees the availability, accuracy, completeness, reliability or timeliness of location data or any other data displayed by any Services.
(e) You agree that the Services contain proprietary content, information and material that is owned by Gibi and/or our licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or Gibi. No portion of the services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, Trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violated the rights of any other party, and that Gibi is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
(f) In addition, certain Services and Third Party Materials are not available in all languages or in all countries or regions. Gibi makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services or Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Gibi and our licensors reserve the right to change, suspect, remove or disable access to any Services at any time without notice. In no event will Gibi be liable for the removal of or disabling of access to any such Services. Gibi may also impose limits on the use or access to certain Services, in any case and without notice or liability.
- Termination. This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from Gibi if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Software. Sections 4, 5, 6, 7, 8, 9 and 10 of this License shall survive any such termination.
- Disclaimer of Warranties.
7.1 You may have legal rights in your state of residence that would prohibit some or all of the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about your rights, you should contact a state or local consumer advice organization.
7.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
7.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES PROVIDED BY GIBI ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND GIBI AND GIBI’S LICENSORS (COLLECTIVELY REFERRED TO AS “GIBI” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7.4 GIBI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THE SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES.
7.5 YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS RO ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (INCLUDING, WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS) OR DAMAGE OR LOSS OF PROPERTY.
7.6 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GIBI OR AN AUTHORIZED GIBI REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION FO IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL GIBI BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORY OR OTHERWISE) AND EVEN IF GIBI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Gibi’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of $10,000. The foregoing limitation will apply even if the above stated remedy fails of its essential purpose.
- Controlling Law and Severability. This License will be governed and construed in accordance with the laws of the State of California, excluding its conflict of law principles.
- Complete Agreement; Governing Language. This License constitutes the entire agreement between you and Gibi related to the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Gibi.
- Third-Party Acknowledgements. Portions of the Software may utilize or include third-party software and other copyrighted material. Acknowledgments, licensing terms, and disclaimers of such material are contained in the electronic documentation for the Software, and your use of such material is governed by their respective terms.
NOTICES FROM GIBI
If Gibi needs to contact you about your product, service or account, you consent to receive the notices by the email address that you set up during registration for the Service. You agree that such notices that we send you electronically will satisfy any legal communications requirements.
WIRELESS SERVICE PROVIDER TERMS AND CONDITIONS
To access services with your Gibi Device, you will be required to create an account with Gibi on the Gibi website, register your Gibi Device, accept Gibi Service Agreement https://getgibi.com/terms-of-service/ and select a subscription plan, which will include wireless data connectivity with the Gibi Device (“Wireless Data Service”). In accepting the Gibi Service Agreement, you will also agree to certain terms and conditions with Aeris Communications, Inc. (“Aeris”), the provider of Wireless Data Service. These include Privacy and Security; Compliance with Regulations, Wireless Network Coverage, Limitations of Liability, Restrictions on Use; Fraud, and the Right to Suspend Services.
Privacy and Security; Compliance with Regulations.
(a) Passwords. You assume sole responsibility for the selection, management, and use of any codes or passwords as may be permitted or required for your use of the Wireless Data Services. You will immediately notify Gibi if the security of any codes or passwords has been compromised.
(b) Network Transmissions. Aeris follows industry-standard security practices in providing the Wireless Data Services. Notwithstanding the foregoing, neither Aeris nor any wireless carrier whose wireless network facilities are used in the provision of the Wireless Data Service (a “Participating Carrier”) can guarantee the privacy or security of any transmission, and you acknowledge that the Wireless Data Service is capable of being intercepted without the knowledge or permission of Aeris, Gibi or you by third parties. Accordingly, Aeris and Participating Carriers shall not be liable to you or any third party for interception or unauthorized use of any data transmitted by means of the Wireless Data Service.
(c) Compliance with Regulations; Data Privacy. You are responsible for complying with such laws or regulations applicable to you and your use of the Wireless Data Service, including all requirements regarding the protection of data in your possession or under your control. You will not be liable for any failure of another party to comply as required.
Wireless Network Coverage.
(a) Coverage Availability. Actual signal availability in the geographical areas in which the Wireless Data Service is available (“Aeris Service Area”) will depend on the Gibi Device as well as on coverage for the applicable wireless network provided by Participating Carriers in specific geographic regions. Coverage may be refused, interrupted, or limited by environmental factors such as signal strength, buildings, weather, geography, topography, etc., or by factors affecting the Participating Carriers, such as usage concentration or by facilities changes, modifications, updates, relocations, repairs, maintenance or other similar activities necessary for the proper or improved operation of the Participating Carrier facilities. Any of such factors may result in dropped and blocked connections or slower data speeds. Neither Aeris nor any Participating Carrier will be responsible to you for any such lapses in or obstructions to coverage.
(b) Changes in Aeris Service Area. The Aeris Service Area is subject to change from time to time. Should Aeris receive notice from a Participating Carrier that such Participating Carrier intends to discontinue its support for Wireless Data Service in all or any part of the Aeris Service Area, Aeris will provide Gibi with as much advance notice as practicable under the circumstances.
Limitation of Liability.
(a) Limitation of Liability. AERIS’ LIABILITY TO YOU ARISING OUT OF THE PROVISION OF THE WIRELESS DATA SERVICE, SHALL NOT EXCEED THE ACTUAL FEES RECEIVED BY AERIS FROM GIBI IN THE 12 MONTHS PRIOR TO THE DATE ON WHICH SUCH LIABILITY FIRST AROSE. IN NO EVENT SHALL AERIS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE, OR LOSS OF OR DAMAGE TO DATA, LOSS OF PROFIT, LOSS OF CONTRACT, OR LOSS OF OTHER ECONOMIC ADVANTAGE, INCURRED BY EITHER YOU OR ANY THIRD PARTY ARISING OUT OF THE PROVISION OF THE WIRELESS DATA SERVICE, EVEN IF YOU HAVE PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF THE SAME.
(b) No Relationship. You understand that Aeris has no contractual relationship with you. You have no direct claim against Aeris of any kind, including any liability for personal injury or death, failure to be able to use the Wireless Data Service, or otherwise, and Aeris will have no liability to you of any kind with respect to your use of the Wireless Data Service, whether legal or equitable or whether direct, indirect, incidental or consequential.
(c) No Claims Against or Liability of Participating Carriers. The Wireless Data Service utilizes cellular data services that are furnished to Aeris by one or more Participating Carriers pursuant to agreements between Aeris and the Participating Carriers. Neither Gibi nor you have a contractual relationship with the Participating Carriers and neither Gibi nor you are a third-party beneficiary of and will have any claim against Participating Carriers in the event any such agreement expires or is terminated. You acknowledge that Participating Carriers disclaim all liability of any nature, whether legal or equitable, to you, whether direct, indirect, incidental, or consequential, arising out of the use of the Wireless Data Service by you, including any liability for personal injury or death, failure to be able to use the Wireless Data Service or otherwise. You agree that you shall not have any claims against Participating Carriers of any kind with respect thereto, whether arising out of breach of contract, warranty, negligence, tort, or otherwise.
Fraudulent or Disruptive Use.
(a) Restrictions on Use; Fraud. You shall not use, or permit or assist another person to use, the Wireless Data Service in any way: (i) to transmit content/ messages that are, or in any manner that is, illegal, fraudulent, threatening, abusive, defamatory, or obscene; (ii) to make any unauthorized connection to the Aeris network or network of a Participating Carrier or to make any unauthorized use of the Wireless Data Service through the modification of an authentication method associated with a Gibi Device; (iii) to communicate any unsolicited commercial voice, SMS, or other messages in violation of applicable law; (iv) to infringe on the copyright of another; (v) to upload or transmit any “virus,” “worm,” or malicious code or to access, alter, or interfere with the communications of and/or information about another wireless customer; or (vi) that could cause damage to or adversely affect any Aeris customers, the Wireless Data Service, or the reputation, network or property of Aeris or any Participating Carrier. You agree to promptly report to Gibi any such abuse or fraudulent use of which you become aware, and to fully cooperate in any investigation or prosecution initiated by Gibi, Aeris, or a Participating Carrier.
(b) Right to Suspend Services. You acknowledge that Aeris (and any Participating Carrier) may restrict, suspend or cancel all or a portion of the Wireless Data Service to a Gibi Device or limit any other Aeris service as may be reasonably necessary to prevent or limit suspected fraud or any problem that materially and adversely affects the performance of the Wireless Data service and/or is likely to do substantial damage to Aeris, the performance of the Wireless Data Service, Aeris customers or a Participating Carrier or its customers. Some of these actions may interrupt or prevent legitimate communications and usage. Such situations may arise (i) where Gibi’s service is or a Gibi Device deployed on the Aeris network is materially out of compliance with the Aeris’ technical connection requirements, (ii) in cases of actual or suspected fraudulent use, or (iii) in cases of disruptive or damaging operation. In the event that Aeris or a Participating Carrier restricts, suspends, or cancels any portion of the Wireless Data Service to a Gibi Device or limits the operation of any Gibi service pursuant to the foregoing, Aeris shall use reasonable efforts promptly to (x) notify Gibi, (y) provide reasonable information regarding its identification of the issue that resulted in the actions taken and (z) reinstate such service upon resolution of the issue.