Virtual Gift It LLC., including any updates and modifications thereto, and accompanying documentation (collectively, the “Software”), is offered pursuant to the terms and conditions outlined in this software license agreement and terms of service (collectively, the “Agreement”)
This Agreement is a legally binding contract between you and/or the company you represent (“you,” “your”) and Virtual Gift It LLC., (“we,” “us,” “our”). By clicking “I Accept to the Terms and Conditions in this Agreement,” purchasing, downloading, installing, or otherwise using the Software made available by us, you acknowledge that you have read and understood this Agreement and agree to be bound by it, and to the extent that you are entering into this Agreement on behalf of a company, you further acknowledge that you have the power and authority to bind that company. If you do not accept the Agreement, you are not permitted to download, install, execute whether locally, remotely, or otherwise, or otherwise use the Software, including but not limited to any web-accessible portions thereof.
We provide the Software and Services that allows you or your users to send an electronic gift and message in connection with the purchase of a product or service online.
We also offer additional Services, some of all of which may involve an additional cost to you, which may include, without limitation, the following:
Subject to the terms of this Agreement, we hereby grant you, and you accept, the following limited, non-exclusive, non-transferable license to use the Software, solely as authorized below (“Pre-Release License”). This Agreement does not confer a right to you to receive a license to any future commercial product which may be similar to, built upon, or identical to the Software.
You acknowledge, understand, and agree that the Software is in “Alpha” or “Beta” stage, which means that: (1) it is a test version of unreleased software that may and likely will contain bugs, defects, and errors; (2) it may not contain the full functionality of the commercial release version that we will eventually make available for distribution; (3) your use of the Software under the Pre-Release License is subject to confidentiality; and (4) any feedback, corrections, or improvements resulting from your use of the Software is subject to the ownership provision of Section 2 below, and may be incorporated into the commercial release of the Software.
Under the Pre-Release License, you may use the Software for the sole purpose of testing the functionality of the Software. You shall not reverse engineer, decompile, disassemble the Software or otherwise attempt to discover any source code, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You shall not: (a) reproduce or copy any portion of the Software; (b) produce derivatives or otherwise modify any portion of the Software; or (c) use any means to circumvent any copy protection of the Software.
Your Pre-Release License is not transferable to any other party. You shall not sell, rent, lease, sub-license, or otherwise transfer any rights under this Agreement. In the event that such transfer activity is expressly permitted by applicable law notwithstanding this limitation, you may only transfer any rights upon the third party’s agreement that this Agreement applies to the transfer and use of the Software. You shall not retain any copies of the Software following the termination of this Pre-Release License.
You are not entitled to technical support or updates for the Software under the Pre-Release License. At our sole discretion, you may receive updates or support for the Software you are testing.
The Services are made available to you only for testing purposes.
In connection with your access and/or use of the Services, you shall not: (a) engage in any activity that could damage, disable, impair, interrupt, or interfere with the Services, including networks and servers connected to the Services; (b) consume a commercially disproportionate amount of bandwidth, CPU usage, memory storage space, or any other network or system resources, including any limits set by us on maximum concurrent usage of the Services; (c) introduce a virus, worm, Trojan horse, or any other malicious or harmful software code, data, or file that may damage, interference with, intercept or expropriate any system, data, personal information or property of another; (d) attempt to gain unauthorized access to accounts not owned by you, or to any connected network or servers to the Services through hacking, phishing, or other means; (e) use the Services on a service bureau or shared basis; (f) host the Services to be accessible by third parties; (g) sell, lease, or rent access to or use of the Services or otherwise transfer any rights to use the Services under this Agreement; (f) utilize the Software or Services in connection with any activity that would constitute a violation of any applicable law, regulation or ordinance; (g) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services; (h) defame, defraud, abuse, harass, stalk, threaten, or otherwise violate any legal rights (such as rights of privacy and publicity) of others; (i) transmit any files or materials protected by intellectual property laws, unless you own or control the rights thereto or have received the necessary consent to do the same.
You acknowledge that you are solely responsible for any breach of your obligations under this Agreement and for the consequences (including any loss or damage which we may suffer) of any such breach.
The Software and Services under the Pre-Release License and Acceptable Use is provided on an “as is” testing basis. You bear and assume the sole risk of using the Software and Services. We provide no express warranties or guarantees with regard to the Software and Services, and to the fullest extent permissible by law, disclaim all implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement.
We retain ownership and control of all intellectual property inherent in, associated with, or related to the Software, including, but not limited to, copyrights, patent rights, trademarks, trade dress, or service mark rights, whether registered or unregistered, arising under Federal, State, or Common-Law, as well as confidential or commercially sensitive information, such as trade-secrets, and any other right not expressly licensed to you under this Agreement.
You acknowledge that no ownership rights are being conveyed to you under this Agreement. Any modifications you develop or recommend to the Software source code during the testing will be our exclusive property, and you agree to and hereby do assign all right, title, and interest in and to such modifications and all rights associated therewith to us.
You acknowledge that the Software is confidential and contains valuable and proprietary trade secrets belonging to us. Except as provided expressly by this Agreement, under no circumstances may any portion of the Software or any modified version of the Software be distributed, disclosed, or otherwise made available to a third party.
You shall not use the viigii product names, logos, or trademarks to market Your Products, unless expressly authorized by us in writing.
From time to time, we may permit you to submit information, advice, text, data, software, messages, graphics, pictures, photographs, videos, audio, and other materials to the Software or Services, such as those relating to your account or profile (“Your Content”). Your Content is your sole responsibility. This means that you, and not us, are entirely responsible for all of Your Content that you upload, post, link to, email, transmit or otherwise make available via the Software or Services. If you post personal information on publicly available areas of the Software or Services then you may receive unsolicited messages from third parties. We cannot ensure the security of any information you post on publicly available areas of the Software or Services. Under no circumstances will we be liable in any way for any of Your Content including, but not limited to, any errors or omissions in Your Content, or for any loss or damage of any kind incurred as a result of the use of any of Your Content made available via the Software or Services.
We do not claim ownership of Your Content. However, you hereby grant us a world-wide, royalty-free, non-exclusive, perpetual, irrevocable, and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display Your Content and to incorporate Your Content in other works in any form, media, or technology now known or later developed.
You acknowledge that we do not pre-screen Your Content, but that we do have the right, but not the obligation, in our sole discretion to modify, transmit over various networks, refuse or move any of Your Content that is available on the Software or Services. You agree that you must evaluate, and bear all risks associated with, the use of any of Your Content including, but not limited to, any reliance on the accuracy, completeness, or usefulness of Your Content. You further agree to not intentionally provide false or misleading information on the Software or Services. You are prohibited from posting or transmitting to or from this Software or Services any unlawful, threatening, libelous, defamatory, or inflammatory material, or any other material that could give rise to any civil or criminal liability under the law.
You acknowledge and agree that we may archive Your Content and may also disclose Your Content at any time and for any reason.
Since we do not pre-screen user generated content, you may be exposed to content that is offensive, indecent, or objectionable.
We have adopted and implemented a policy that provides for the termination in appropriate circumstances of subscribers and account holders who infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our Copyright Agent for notice of claims of copyright infringement on or regarding the Software or Services can be reached as follows:Virtual Gift It LLC.
Please be advised that if you materially misrepresent that any material is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred as a result of such allegations under 17 U.S.C. §512(f).
The term of this Agreement and the Pre-Release License granted by it will continue upon the earlier of (1) the initial commercial release by us of a generally available version of the Software or (2) six months after the last date you receive the Software or any updates thereto. We reserve the right to terminate the Agreement at any time with or without written notice to you. This Agreement shall terminate immediately if you breach any of the terms and conditions of the Agreement. Upon termination of this Agreement for any reason, all licenses granted to you under this Agreement shall automatically terminate, and you shall immediately cease use of the Software, and return to us (or, at our request, destroy), the Software and all tangible items in your possession or control that are proprietary to or contain confidential information related to the software.
We reserve the right to at any time modify, suspend, or discontinue the Software or any parts of the Software at its sole discretion.
We reserve the right to make changes to this Agreement, from time to time, and as our needs or services change. Your continued use of the Software after a change to this Agreement constitutes your acceptance of the changes to this Agreement. If you do not agree to be bounded by this Agreement, as modified, you must terminate your use of the Software immediately.
THE SOFTWARE IS IN A PRE-RELEASE STAGE AND MAY CONTAIN BUGS, ERRORS, OR OMMISSIONS, AND IS NOT INTENDED TO OPERATE AT A LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL OR RETAIL COMMERCIAL PRODUCT. YOUR USE OF THE SOFTWARE UNDER THIS PRE-RELEASE LICENSE IS AT YOUR SOLE DISCRETION AND YOU ASSUME ALL RESPONSIBILITY FOR, AND THE RISK OF, ANY AND ALL DAMAGES THAT MAY RESULT FROM SUCH USE. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW.
YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK. UNDER NO CIRCUMSTANCES SHALL WE OR OUR ASSOCIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED AT THE SITE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, INCLUDING, WITHOUT LIMITATION, COMPUTER “VIRUSES”, “WORMS”, “BUGS”, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SERVICES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF ONE OF OUR AUTHORIZED REPRESENTATIVES HAS BEEN ADVISED OF OR SHOULD HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, MERCHANDISE AND SERVICES AVAILABLE THROUGH THE SITE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED IN AGGREGATE THE LESSER OF $5 OR THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
You hereby agree to indemnify, hold harmless, and defend us and all related parties from and against any and all claims, lawsuits, or other proceedings, and reimburse all expenses, costs, reasonable attorney’s fees, judgments, damages, and other liabilities resulting from the same claims, lawsuits, or other proceedings which arise or result from your use of the Software. Notwithstanding the foregoing, We retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against us and in no event shall you settle any such claim without our prior written approval.
This Agreement will be governed by the law of the State of Florida, without regard to the conflict of laws principles thereof.
If any dispute, controversy, or claims cannot be resolved in good faith between the parties, then it shall be submitted for resolution to a court of competent jurisdiction in Palm Beach County, Florida, and the Federal Courts in and for the Southern District of Florida, and the parties hereby submit that exclusive venue shall lie with such court(s), and the parties hereby agree to submit to the jurisdiction and venue of such court(s).
This Agreement sets forth the entire agreement between you and us regarding the Pre-Release License of the Software. You agree that there are no other representations or obligations regarding your Pre-Release License, other than those reflected in this Agreement and that you are not relying on any other representations or obligations regarding your Pre-Release License, other than those reflected in this Agreement.
If any provision of this Agreement is held illegal or unenforceable in any proceeding, such provision shall be severed and shall be inoperative, and, provided that the fundamental terms and conditions of this Agreement remain legal and enforceable, the remainder of this Agreement shall remain in full force and effect.
The Software and any supporting documentation are “commercial items” within the definition of 48 C.F.R. §2.101 in that it consists of “commercial computer software” and “computer software documentation” as defined in 48 C.F.R. §2.101. If the Software and/or any supporting documentation are licensed to the U.S. Government, any agency thereof, or any agent acting on behalf of the U.S. Government, the License will grant only those rights as are granted to all other licensees as set forth in this Agreement, consistent with 48 C.F.R. §12.212 and/or 48 C.F.R. §227.7202 et. seq.
Any failure or delay in performance by either party shall be excused if and to the extent caused by an Act of God (fire, flood, earthquake, storm, hurricane or other natural disaster), war or civil disorder, invasion, act of foreign enemies, hostilities, terrorism, government actions, lockout or interruption or failure of electricity of network service, or other cause beyond the reasonable control of the parties.
You expressly agree not to export, re-export, sell, transact, or otherwise transfer the Software, even as embedded or included in Your Products, to anyone who is a Specially Designated National per the Office of Foreign Assets Control of the Department of the Treasury of the United States of America, or to any person who has been prohibited from transacting in exports in or from the U.S. by any federal agency. You also agree not to export, re-export, sell, transact, or otherwise transfer the Software, even as embedded or included in Your Products to any destination or person that is within a country or territory which the U.S. Government has embargoed.