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Poqet AI End User License Agreement (EULA)

This Poqet AI ("poqet ai" or "Poqet AI") End User License Agreement (“Agreement,” “End User License Agreement,” or “EULA”) is made by and between GiiLD, LLC if you are a resident of the United States of America, or alternatively GiiLD, Inc. if you are a resident outside of the United States of America (each being referred to respectively as “GiiLD”), and you (“you,” “your,” or “user”).

 

BY DOWNLOADING, INSTALLING, ACCESSING, OR USING THE SERVICES, OR OTHERWISE MANIFESTING YOUR AGREEMENT TO THIS EULA SUCH AS BY CLICKING ON AN "I AGREE" BUTTON OR CHECKBOX REGARDING YOUR AGREEMENT TO THIS EULA,  YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ACCESS, OR USE ANY PART OF THE SERVICES.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, PARTNERSHIP, COMPANY OR ANY OTHER ENTITY, YOU HEREBY REPRESENT AND WARRANT TO GIILD THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF AND BIND THE ENTITY TO THE TERMS AND CONDITIONS CONTAINED HEREIN, AND “YOU,” “YOUR,” AND “USER” ALSO REFERS COLLECTIVELY TO YOU, THE INDIVIDUAL, AND TO THE ENTITY YOU REPRESENT. 

 

IMPORTANT NOTICE: SECTION 18 OF THIS AGREEMENT CONTAINS A BINDING DISPUTE RESOLUTION THROUGH ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER AS WELL AS A WAIVER OF TRIAL BY JURY THAT MAY AFFECT YOUR LEGAL RIGHTS. PLEASE REVIEW SECTION 18 CAREFULLY AS YOU ARE BOUND BY ITS TERMS WHEN YOU AGREE TO THIS AGREEMENT. 

 

GIILD RESERVES THE RIGHT, FROM TIME TO TIME, TO MAKE CHANGES TO THIS AGREEMENT IN GIILD'S SOLE DISCRETION AND THE MOST CURRENT VERSION OF THIS EULA WILL BE POSTED BY LINK AT www.giild.com/eula, AND YOUR CONTINUED USE OF ANY PART OF THE SERVICES AFTER SUCH CHANGES CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO THE CHANGES, YOUR SOLE REMEDY IS TO TERMINATE THIS AGREEMENT AND ABIDE BY THE TERMINATION REQUIREMENTS SET FORTH IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CEASING TO ACCESS OR USE THE SERVICES, AND DELETING THE GIILD SOFTWARE FROM YOUR DEVICES.  

1. CERTAIN DEFINITIONS.  In addition to other terms that are defined as set forth in this Agreement, the following terms shall have the following definitions: 

1.1. "Device" means your computer, tablet, smartphone, or any other electronic device.

 

1.2. “Intellectual Property” means any and all of the following in any jurisdiction throughout the world and all rights in, arising out of, or associated therewith: (a) patents, utility models, and applications therefor, and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries, including invention disclosures; (b) trade secrets, inventions (whether or not patentable and whether or not reduced to practice), and other rights in know-how and confidential or proprietary information; (c) mask works, works of authorship and copyrights, registrations and applications therefor, and all other rights corresponding thereto (including moral rights), throughout the world; (d) mask works; (e) rights in software (including without limitation APIs, source code, object code, and mark-up language), data, databases, and database structures; (f) rights of publicity, personality, identification, or similar personal or group attributes; (g) trade names, logos, common law trademarks and service marks, trade dress, trademark and service mark registrations, and applications therefor and any goodwill associated therewith; and (h) any similar, corresponding, or equivalent rights to any of the foregoing and any other intellectual property or proprietary rights throughout the world.

 

1.3. "Modifications" means additional, removed, or modified functionality, updates, enhancements, security updates, and patches to the Services.

 

1.4. "Open Source Component" means any software component that is provided under this Agreement as part of the Services that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.

 

1.5. "Services" means collectively and individually the Poqet AI software, Content, and related services and any Modifications thereto, provided that additional or alternative functionality and options may only be made available to you subject to additional terms or conditions beyond those in this EULA, including without limitation additional fees.  

 

1.6. "Third-Party Materials" means, all materials and information in any form or medium, including any Open Source Components or other software, documents, data, content, specifications, products, equipment, or components, of or relating to the Services, that are not proprietary to GiiLD.

 

           1.7. “Users” means each individual user of the Services.

 

2. LICENSE.  Unless otherwise noted in this Agreement, and to the fullest extent allowed under any applicable laws, all terms and conditions of this Agreement apply to the license to and your downloading, installing, accessing, and using of any and all Services, and all licenses are subject to and conditioned on your compliance with the terms and conditions of this Agreement.  The fees, license terms, and other limitations and obligations additionally set forth on our website plans and pricing page for the Services are hereby incorporated herein by reference.  A summary of the features of the Poqet AI software versions are set forth on our website pricing and plans page. 

 

2.1. POQET AI BETA TESTING.  If you downloaded the Poqet AI software as a beta tester,  subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, terminable immediately in GiiLD's sole discretion, personal, non-sublicensable, non-transferrable, royalty-free license to download, install, access, and use the Poqet AI software provided to you for beta testing, solely for the purpose of your testing of such software for a limited time and to provide Feedback to GiiLD.  You agree that you will provide Feedback to GiiLD as is reasonably requested by GiiLD. 

 

2.2. POQET AI LITE.  If you downloaded and are using the Poqet AI Lite version, subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, terminable immediately in GiiLD's sole discretion, personal, non-sublicensable, non-transferrable, royalty-free license to download, install, access, and use the free Poqet AI Lite version of the Poqet AI software, solely for your own internal business purposes.     

 

2.3. POQET AI PRO FREE TRIAL.  If you downloaded and are using the Poqet AI Pro Free Trial version, subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, terminable immediately in GiiLD's sole discretion, personal, non-sublicensable, non-transferrable, royalty-free license to download, install, access, and use the Poqet AI Pro Free Trial version of the Poqet AI software, solely for your own internal business purposes and solely for the period of time set forth for the free trial on the website pricing and plans page unless earlier terminated by GiiLD or expressly extended in writing by GiiLD.         

 

2.4. POQET AI PRO, FEES.  If you downloaded and are using the Poqet AI Pro software but not as the limited duration Free Trial version, subject to the terms and conditions of this Agreement including without limitation your payment of all applicable subscription license fees and taxes, you are hereby granted a non-exclusive, terminable immediately in GiiLD's sole discretion, non-sublicensable, non-transferrable license to download, install, access, and use the Poqet AI Pro software solely for your own internal business purposes and solely for your subscription license term that you selected from the website pricing and plans page, unless earlier terminated by either party. 

 

2.4.1. SUBSCRIPTION LICENSE FEES.  The subscription license fees that must be pre-paid for the subscription license term are the subscription license fees set forth on the website pricing and plans page at the time of purchase for the subscription license length you selected.  You may also be charged for any additional taxes on your purchase.  By subscribing, you authorize GiiLD to charge the payment method you provide immediately upon subscribing for the amount of the charge for the applicable subscription license fees plus applicable taxes.

 

2.4.2. TAXES.  Except as otherwise provided on the website, prices shown do not include any federal, state or local sales, use, excise, privilege, value added, goods and services or other taxes or fees, whether levied or due in the United States of America or elsewhere, relating to the Services. Where applicable, such taxes and charges may be billed by or on behalf of GiiLD as a separate item and shall be paid by you and may be charged to your payment method.  In any event, you are responsible for paying any and all amounts equal to any federal, state and local sales, use, excise, privilege, value added, goods and services or other taxes or fees, whether levied or due in the United States of America or elsewhere, relating to the Services, exclusive of taxes based on GiiLD's net income or net worth.

 

2.4.3. ALL PURCHASES ARE FINAL. NO CANCELLATIONS OR RETURNS BY YOU OF SUBSCRIPTION LICENSES ARE ALLOWED AND THERE WILL BE NO REQUIRED REFUNDS TO YOU OF SUBSCRIPTION LICENSE FEES AND TAXES. 

     

2.5. SERVICES CONTROL MECHANISMS.  The Services may contain or employ a time bomb, drop-dead device, limited duration key, or other software or software access or use control methodologies or systems designed to disable the Services automatically with the passage of time, in excess of or outside of licensed usage, or as directed by GiiLD (each individually and collectively a "Services Control Mechanism").  GiiLD may, in its sole discretion and without notice or liability to you, use, trigger, or direct the use or triggering of any Services Control Mechanism, including without limitation withholding keys or anything else necessary or helpful to the continued access or use of the Services.  Services Control Mechanisms may be used, without limitation, to enforce GiiLD's rights under this Agreement or in response to any breach of this agreement by you, including without limitation to enforce any durational limitations regarding your access and use of the Services.     

 

2.6. THIRD PARTY MATERIALS AND INTELLECTUAL PROPERTY.  You acknowledge that GiiLD may have incorporated into the Services Third Party Material and Intellectual Property created by third parties (“Third Party Intellectual Property”), and you agree that your license to use the Services containing Third Party Material or Third Party Intellectual Property may be subject to the rights of third parties and limited by additional agreements with such third parties or terms and conditions related to such Third Party Material or Third Party Intellectual Property.

 

2.7. TITLE AND OWNERSHIP OF THE SERVICES.  Title to and ownership of the Services, including without limitation the Poqet AI software, and all copies thereof remain with GiiLD and any other licensor(s) of the same, regardless of the form or media in or on which they may exist, and you agree to protect all of GiiLD's ownership interests therein.  You are granted no implied licenses to any other Intellectual Property other than as specifically granted in this Agreement.  You acknowledge that the Services contain trade secrets of GiiLD, its suppliers, or licensors, including but not limited to, the Poqet AI software, specific internal design and structure of individual programs and associated interface information, databases and database structures, and other Content accessed within the Services.  All rights and licenses not expressly granted in this Agreement are reserved by GiiLD and its licensors.

 

3. YOU MUST SUPPLY ACCURATE INFORMATION.  To subscribe to, download, install, access, or use the Services or some of the resources they offer, you may be asked to provide certain registration or payment details. It is a condition of your license(s) that all the information you provide in relation to the Services be correct, current, and complete. If GiiLD believes the information you provide is not correct, current, or complete, GiiLD has the right to refuse or suspend your access to the Services and to terminate your license(s) or this Agreement. 

 

4. RESTRICTIONS ON USE.  You may use the Services solely pursuant to the terms and conditions of this Agreement. As a condition of your downloading, installing, accessing, or using the Services, you warrant to GiiLD that you will not use the Services for any purpose that is unlawful or prohibited by this Agreement. For example, you may not (and may not authorize any party to): (i) co-brand or rebrand the Services, (ii) transfer, assign or sublicense your login information, license keys, or any other credentials or tools necessary for your access or use of the Services, or the licenses granted to you, to another person or entity and you acknowledge that any attempted transfer, assignment, sublicense or use shall be void; (iii) make error corrections to, or otherwise modify or adapt, the Services or to create derivative works based upon the Services, or permit third parties to do the same; (iv) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Services to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (v) use or permit the Services to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of GiiLD; (vi) disclose, provide, or otherwise make available trade secrets contained within the Services in any form, to any third party without the prior written consent of GiiLD; (vii) use GiiLD's Intellectual Property to develop any software application or products or services similar to the Services; or (viii) perform, display, or otherwise access or use the Services for the benefit of others outside of the scope of license provided in this Agreement. For purposes of this Agreement, “co-branding” means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give a User the impression that such other party has the right to license, resell, provide access to, display, publish, or distribute the Services including without limitation any Content accessible within the Services. You agree to cooperate with GiiLD in causing any violation of these restrictions to cease.  In addition, you may not use Services in any manner which could disable, overburden, damage, or impair the Services or interfere with any other party's use and enjoyment of the Services. You may not obtain or attempt to obtain any materials, Content, or information through any means not intentionally made available or provided through the Services.      

 

5. MONITORING OF USE AND ADDITIONAL RESTRICTIONS.  You acknowledge and agree that GiiLD reserves the right to remotely prevent access to and/or use of the Services, with or without notice to you, including without limitation by use of Services Control Mechanisms and including without limitation in the event that:  (i) GiiLD becomes aware, from you or otherwise, of unauthorized access or use of the Services by any third party using any User name, password, or other login or access credentials of you, or in the event of a security concern related to the Services, or (ii) your violation of any term or condition of this Agreement.  GiiLD reserves the right, but does not have the obligation, to monitor use of Services to determine compliance with this Agreement.  GiiLD may use and disclose information about you and your downloading, installing, accessing, and using the Services in special instances when GiiLD has reason to believe disclosing this information is necessary to investigate, identify, contact, or bring legal action against someone who may be causing injury to or interfering with GiiLD's rights or property, other Service Users, or anyone else. GiiLD may disclose information when subpoenaed, if ordered or otherwise required by a court of law, arbitrator, or other similar proceeding or the rules governing such a proceeding, for government investigations, with government agencies if required by law, to exercise, establish, or defend GiiLD's rights, to protect your interests or those of any other third party, and when GiiLD otherwise believes in good faith that any applicable law requires it.

 

6. PROPRIETARY INFORMATION.  The material and content accessible as a part of the Services (excluding your own software and information that you enter into the Services) including without limitation all Intellectual Property in or related thereto, whether photos or other images, video, audio, text, or otherwise (the “Content”), whether provided by GiiLD or its licensors, is the proprietary information of GiiLD or the party that provided or licensed the Content to GiiLD, whereby such providing party retains all right, title, and interest in the Content. Accordingly, the Content may not be copied, distributed, republished, uploaded, posted, or transmitted in any way outside of the normal functionality of the Services and in accordance with this Agreement without the prior written consent of GiiLD or, in the case of Content provided by another party, with the prior written consent of that other party.  Modification or use of the Content except as expressly provided in this Agreement violates GiiLD’s Intellectual Property or the rights of its licensors and Users. Neither title nor Intellectual Property rights related to the Content are transferred to you by access to the Services. 

 

7. PROPRIETARY NOTICES.  You agree to maintain and reproduce all copyright, patent, trademark and other proprietary notices on all copies, in any form, of the Services and its Content, in the same form and manner that such copyright, patent, trademark, and other proprietary notices are included on or in the Services, whether they are GiiLD notices or those of third parties.  

 

8. CONFIDENTIAL INFORMATION.  The Services, including, but not limited to the Poqet AI software, and all other software, whether in object code, source code, or mark-up language,  logic and structure of the Services, databases and database structures, and any and all copies of the foregoing, regardless of the form or media in or on which any of them may exist, non-public information disclosed by GiiLD if it is clearly and conspicuously marked as “confidential” or with a similar designation at time of disclosure or non-public information disclosed by GiiLD if, by its nature, would generally be considered by a person exercising reasonable business judgment to be confidential (individually and collectively “Confidential Information”) constitute valuable trade secrets, are the Intellectual Property and confidential information of GiiLD and any other of their licensor(s), and are protected by Intellectual Property laws, international treaty provisions, and applicable laws of other countries. Confidential Information shall not include information which:  (a) which was already known to you prior to its disclosure by GiiLD without an obligation of confidentiality; (b) which is or becomes publicly available without violation by you of your obligations hereunder or any other obligation of confidentiality; (c) which is rightfully received by you from third parties without obligations of confidentiality; (d) which is independently developed by you without the use of GiiLD's Confidential Information; or (e) which is approved in writing by GiiLD for release by you without restriction.  Disclosures of Confidential Information will be restricted to those individuals who are participating in the performance of this Agreement and who need to know such Confidential Information for purposes of receiving and/or using the Confidential Information in a way expressly permitted by this Agreement.  Confidential Information of GiiLD may not be used for any purpose except as authorized under this Agreement. Confidential Information of GiiLD may be disclosed in response to a valid court order or other legal process only to the extent required by such order or process and only after you have given GiiLD written notice, if legally allowed, of such court order or other legal process promptly and the opportunity for GiiLD to seek a protective order or confidential treatment of such Confidential Information, at GiiLD's expense, with reasonable cooperation by you.  GiiLD shall retain all ownership of its Confidential Information including without limitation all Intellectual Property in Confidential Information.  Subject to the licenses granted in this Agreement, you agree, both during the term of the Agreement and after the termination of the Agreement to hold GiiLD Confidential Information in confidence and to protect the disclosed Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination or publication of the Confidential Information as you use to protect your own Confidential Information of a like nature but in no event with less than reasonable care.  You shall be responsible and liable under the terms of this Agreement for any violation of the confidentiality requirements of this Section committed by your employees, agents, representatives, or independent contractors.

 

9. MODIFICATIONS, MAINTENANCE AND UPGRADES.  You acknowledge that the licenses granted herein do not automatically entitle you to future upgrades, updates and fixes to that which is licensed, or to any maintenance services. Nothing herein shall prevent you and GiiLD from entering into a separate agreement regarding such upgrades, updates, fixes, maintenance services or other service provided by GiiLD, and to the extent GiiLD supplies any Modifications to you through any existing license without separate terms and conditions from this EULA, such Modifications shall be subject to the rights and obligations, including without limitation the applicable license terms and license restrictions, set forth in and referenced by this Agreement. 

 

10. DEVICE RESPONSIBILITY AND DEPENDENCIES.  In order to use the Services, you must provide all Devices, equipment, connectivity services, and software necessary to use the Services, including, but not limited to, a suitably fast Internet connection and a Device that is in working order running an operating system and software compatible with the Services and that is suitable for use in connection with the Services. You are responsible for ensuring that your Device, equipment and/or software do not disturb or interfere with GiiLD operations or the operations of other users of the GiiLD Services or any third party data or systems.  If any Modification to the Services requires changes in your Device, Internet connection, equipment or software, you must make these changes at your own expense, and failure to do so may render part or all of the Services inoperable.

 

11. TERMINATION. In addition to any other termination rights set forth in this Agreement, GiiLD may terminate this Agreement, or any or all individual licenses granted hereunder, without notice and for any or no reason at any time. All licenses granted by GiiLD under this Agreement immediately terminate upon any termination of this Agreement for any reason.  If you terminate this Agreement or a subscription license prior to the end of your then-current pre-paid subscription license term, for any reason, your prepaid fees are non-refundable.  The licenses granted by GiiLD under this Agreement also immediately terminate upon any breach by you of this Agreement and you shall not be entitled to any refund of any pre-paid fees due to such termination.  Upon termination of a license from GiiLD under this Agreement for any reason, you shall immediately cease using the Confidential Information of GiiLD, and you shall (i) cease accessing and using the Services subject to the terminated license and delete the related software from your Devices, (ii) return GiiLD's Confidential Information to GiiLD or destroy it, at GiiLD's election, and (iii) at GiiLD's request, provide GiiLD with certification from a principal officer of your organization, if applicable, that you have complied in full with the requirements of this Section.  Except for those provisions granting from GiiLD to you any license in relation to the Services (which will terminate), the provisions of this Agreement shall survive the termination of any licenses or termination of this Agreement. 

 

12. FEEDBACK.  You hereby grant to GiiLD the royalty-free, perpetual, irrevocable, worldwide, sublicensable through multiple levels, transferrable, non-exclusive right and license to use, copy or otherwise reproduce, make, modify, adapt, publish, translate, broadcast, create derivative works from, distribute, offer to sell, sell, import, perform, and display all feedback, suggestions, ideas, or other improvements to, or reviews of, the Services that you communicate to GiiLD (together, “Feedback”), and to incorporate any Feedback, in whole or in part or modified as GiiLD sees fit, into the Services or other products or services, or otherwise make use of the Feedback in any way, in any form, media, or technology now known or later developed. You hereby waive in perpetuity all so-called “moral rights,” rights of integrity, rights of paternity, rights of disclosure, rights of withdrawal, rights of attribution, rights to prevent attribution in the event of a distortion, mutilation, or modification, and all such analogous rights in or related to any Feedback.  You further agree that GiiLD may use your name, likeness, pseudonym, avatar, or other information related to your identity and provided to GiiLD conjunction and in relation to your Feedback and you waive any right of publicity or privacy related thereto.  You represent and warrant that you have all the rights and permissions necessary to grant the above license, including without limitation any necessary licenses, waivers, or assignments of Intellectual Property, and privacy rights, and that your Feedback conforms to all of the terms and conditions of this Agreement. 

 

13. DISCLAIMER.  You understand that GiiLD does not guarantee or warrant that the Services offered will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Services for any reconstruction of any lost data. GiiLD does not assume any responsibility or risk for your use of the Internet.  The Content is not necessarily complete and up-to-date and should not be used to replace any written reports, statements, or notices provided by GiiLD or any third party.

 

TO THE FULLEST EXTENT ALLOWED BY LAW:  YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. GIILD DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT IN RELATION TO THE SERVICES. GIILD DOES NOT WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED IN THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GIILD DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF THE SERVICES IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE SERVICES MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND GIILD MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU, AND NOT GIILD, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE SERVICES. SOME STATES MAY NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR TO SELL A CONSUMER PRODUCT “AS-IS,” SO THIS EXCLUSION MAY NOT APPLY TO YOU.  All of the CONTENT in the Services, whether historical in nature or forward-looking, speaks only as of the date the information is posted in relation to the Services, and GIILD DOES NOT UNDERTAKE any obligation to update such information after it is posted or to remove such information from the Services if it is not, or is no longer accurate or complete.

 

14. LIMITATION ON LIABILITY.  TO THE FULLEST EXTENT ALLOWED BY LAW: GIILD AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND CONTENT PROVIDERS AND THEIR RESPECTIVE employees, agents, owners, members, shareholders, officers, directors, and contractors WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, SPECIAL,  OR EXEMPLARY DAMAGES OR LOSS OF REVENUE OR INCOME, COST OF COVER, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF GIILD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF GIILD AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND CONTENT PROVIDERS AND THEIR RESPECTIVE employees, agents, owners, members, shareholders, officers, directors, and contractors TO YOU (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED IN THE AGGREGATE THE GREATER OF:  (A) THE MINIMUM AMOUNT ALLOWED BY LAW; (B) one hundred dollars ($100); OR (C) THE [Stinson2] AMOUNT YOU ACTUALLY PAID TO GIILD FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE LAST ACT OR OMISSION GIVING RISE LIABILITY.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES.  AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

15. INDEMNITY.  You will defend, indemnify, and hold GiiLD, its subsidiaries, affiliates, licensors, content providers, and service providers and their respective employees, agents, owners, members, shareholders, officers, directors, and contractors (the “Indemnified Parties”) harmless from and against any and all loss, injury, death, damage, liability, deficiency, judgment, settlement, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (individually and collectively, “Losses”) arising out of or related to any allegation, claim, action, demand, suit, or proceeding of any kind (whether before a court, arbitrator, or otherwise) relating to or arising out of:  (i) breach of this Agreement by you, including without limitation any use of the Services other than as expressly authorized in this Agreement; (ii) your use of the Services, such indemnification including without limitation all resulting Losses; (iii) your violation of any law; or (iv) any Feedback provided by you.  The obligations under this section 15 shall not apply to the extent Losses are due to the negligent, grossly negligent, or willful misconduct of GiiLD. You agree that you shall, in all instances, engage in best efforts to mitigate any Losses, whether such actions include immediately notifying GiiLD of any issue, promptly revoking or aiding in the revocation of access to the Services for any User, or otherwise. 

 

16. TRADEMARKS AND COPYRIGHTS.  Trademarks, service marks, logos, and copyrighted works appearing in the Services are the property of GiiLD or the party that provided the trademarks, services marks, logos, and copyrighted works to GiiLD. GiiLD and any party that provided trademarks, service marks, logos, and copyrighted works to GiiLD retain all rights with respect to any of their respective trademarks, service marks, logos, and copyrighted works appearing in the Services.

 

17. SECURITY.  Any passwords or other login credentials used for the Services are for individual use only. You will be responsible for the security of your password and any login credentials.  GiiLD will be entitled to monitor your password and other login credentials and, at its discretion, require you to change it. If you use a password that GiiLD considers insecure, GiiLD will be entitled to require the password or other login credentials to be changed.  You are prohibited from using any services or facilities provided in connection with the Services to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools, or network probing tools) is strictly prohibited.

 

18. CHOICE OF LAW, MANDATORY ARBITRATION AND CLASS WAIVER; WAIVER OF TRIAL BY JURY.  This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to the Services or this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), (collectively and individually a "Dispute"), shall be governed by, and enforced in accordance with, the internal laws of the State of Minnesota, including its statutes of limitation and excluding its conflicts of law rules.  Your use of the Services may also be subject to other local, state, national, or international laws.  The 1980 United Nations Convention on Contracts for the International Sale of Goods, the United Nations Convention on the Limitation Period in the International Sale of Goods, and the Uniform Computer Information Transactions Act, and any implementations thereof in various jurisdictions and any subsequent revisions thereto, shall not apply to this Agreement.  

 

ANY DISPUTE SHALL BE SETTLED BY ARBITRATION UNDER THE RULES PROVIDED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA), AND YOU HEREBY WAIVE ANY RIGHT YOU MAY OTHERWISE HAVE TO A JURY TRIAL. A SINGLE ARBITRATOR SHALL PRESIDE OVER ANY ARBITRATION, AND SUCH ARBITRATOR SHALL, IN HIS OR HER SOLE DISCRETION, DETERMINE THE ARBITRABILITY OF ANY ALLEGED DISPUTE. ANY ARBITRATION SHALL BE CONDUCTED IN MINNEAPOLIS, MINNESOTA. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT WILL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. JUDGMENT ON AN AWARD RENDERED BY AN ARBITRATOR MAY BE ENTERED IN ANY STATE OR FEDERAL COURT WITHIN OR WITHOUT THE STATE OF MINNESOTA. NOTWITHSTANDING THE FOREGOING, IN LIEU OF OR ADDITION TO ANY OTHER REMEDIES AVAILABLE TO GIILD, GIILD MAY SEEK INJUNCTIVE OR OTHER RELIEF IN ANY STATE, FEDERAL, OR NATIONAL COURT OF COMPETENT JURISDICTION FOR (I) ANY ACTUAL OR ALLEGED INFRINGEMENT OF GIILD OR ANY THIRD PARTY'S INTELLECTUAL PROPERTY; OR (II) ANY BREACH OF THE CONFIDENTIALITY PROVISIONS IN THIS AGREEMENT. YOU HEREBY IRREVOCABLY CONSENT TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF THE STATE OF MINNESOTA WITH RESPECT TO ANY SUCH INJUNCTIVE OR OTHER RELIEF. YOU FURTHER ACKNOWLEDGE THAT GIILD'S RIGHTS IN ITS INTELLECTUAL PROPERTY ARE OF A SPECIAL, UNIQUE, EXTRAORDINARY CHARACTER, GIVING THOSE RIGHTS PECULIAR VALUE, THE UNAUTHORIZED USE, DISCLOSURE, OR LOSS OF WHICH CANNOT BE READILY ESTIMATED AND MAY NOT BE ADEQUATELY COMPENSATED FOR IN MONETARY DAMAGES. 

 

19. MISCELLANEOUS.  If any part of this Agreement is unlawful, void, or unenforceable, that part will be deemed severable, shall be modified by a court of competent jurisdiction or arbitrator, whichever is applicable, to reflect to the maximum extent possible the original intention of the parties as dictated by the original wording, and will not affect the validity and enforceability of any remaining provisions.

 

You agree that no joint venture, partnership, employment, or agency relationship exists between you and GiiLD as a result of this agreement or license, download, installation, access, or use of GiiLD’s Services.

 

The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. 

 

GiiLD may assign or otherwise convey any of its rights and obligations under this Agreement, but you may not. All of the terms and conditions of this Agreement shall inure and be binding upon any party’s permitted successors and assigns.

 

The failure by GiiLD at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of this Agreement. The waiver of any default by us will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.

 

This Agreement constitutes the entire agreement among the parties relating to this subject matter and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written between the User and GiiLD with respect to GiiLD’s Services.  Notwithstanding the foregoing, any additional terms and conditions within the Services will additionally govern the items to which they pertain.

 

This Agreement may contain typographical errors or other errors or inaccuracies and may not be correct or current.  GiiLD reserves the right to correct any errors, inaccuracies or omissions in this Agreement at any time without prior notice.  GiiLD does not, however, guarantee that any errors, inaccuracies or omissions will be corrected.

 

Last Modified: April 5th, 2024

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