VIINGO MOBILE APP END USER LICENSE AGREEMENT
BY DOWNLOADING, INSTALLING, OR USING THE ARIIVA MOBILE APP (“APPLICATION”), YOU (THE INDIVIDUAL OR LEGAL ENTITY, HEREIN REFERRED TO AS “YOU” OR “YOUR”) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL OR USE THE APPLICATION, AND YOU MUST DELETE THE APPLICATION.
ACKNOWLEDGEMENT. VIINGO provides the Application to you “as is” and “as available” and as an accommodation to you to access certain functionalities that are provided to a VIINGO customer (“Customer”) who has an active VIINGO subscription agreement (“Agreement”) to access VIINGO subscription services (“Services”). VIINGO may, at any time and in its sole discretion, modify, suspend, or remove the Application or terminate the availability of this Application, without any liability to you or any third-party. In the event of termination, you must remove and destroy all copies of the Application, including all backup copies from all devices you own, possess or control and on which the Application is installed.
DEMO: This Application may include demonstration functionality that illustrates some features of this Application by running on a demonstration instance with fictitious data (“Demo Functionality”). The Demo Functionality does not access the Services of your VIINGO subscription. You do not need to provide any registration, login, or personally identifiable information to access the Demo Functionality. You may interact with the Demo Functionality and provide any information you choose to, such as location, photos, signatures, or social profiles (“Demo Information You Provide”), to see how the features involving such information may work, but be aware that you are accessing a demonstration instance that is providing results only for demonstration purposes based upon fictitious data and premises and you should not rely upon it. Do not provide your personally identifiable information or any sensitive information. The Demo Information You Provide is sent to a VIINGO data center in Germany. Your use of the Demo Functionality is subject to the terms noted below in the following sections of this EULA. In addition, some of the Demo Functionality may include links to other third-party sites that are not owned or controlled by VIINGO and are subject to those third-party’s terms and privacy policies. VIINGO will promptly erase from the demonstration instance the Demo Information You Provide after your Demo session terminates. As part of VIINGO’s efforts to improve the performance of and user experience with this Application, VIINGO tracks user Application activity, including your interaction with the Application. In addition, VIINGO retains infrastructure logs that are monitored for security purposes. By using the Demo Functionality, you agree to these terms applicable to the Demo Functionality and consent to VIINGO’s use and processing of the Demo Information You Provide for the Demo Functionality. Do not use the Demo Functionality if you do not agree to these terms.
ACCOUNT SECURITY. To use the Application to access Services, you may be asked to provide certain registration details or other information. It is a condition of your use of the Application to access Services that all the information you provide in or through the Application is correct, current and complete. You agree to treat all user names, password, and other security information to access Services as confidential, and you agree not to disclose it to any other person or entity. You agree to notify Customer who has provided you access to Services of any unauthorized access to or use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a shared mobile device so that others are not able to view or record your personal information or security information.
SCOPE OF LICENSE. Subject to the terms of this EULA and to the terms of a Customer’s active Agreement, VIINGO hereby grants to you a non-exclusive, as-is, non-transferrable license, without rights to sublicense, to: (a) perform, download, install, display and use the Application on an Apple iOS-based or Google Android-based device that you own or control and as permitted by the terms and conditions and usage rules of either Apple’s App Store or the Google Play store, and (b) access, stream, download, and use on such device the content and Services made available or otherwise accessible through the Application and as permitted by the terms and conditions and usage rules of either Apple’s App Store or the Google Play store. The Application and the content and Services made available on or through it is licensed, not sold.
RESTRICTIONS. You shall not (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time-share or otherwise allow access to the Application to any third-party in whole or in part; (ii) disassemble, reverse engineer, decompile or modify the Application or otherwise create derivative works thereof, except as provided below at the end of this paragraph; (iii) use the Application to access the Services in a manner not authorized by the Agreement; (iv) use the Application in such a way as to disrupt or impair operation of the Services; (iv) use the Application in any manner which violates any applicable law or regulation; or (vi) remove any proprietary notices (e.g., copyright and trademark notices) from the Application or its documentation. If you wish to exercise any rights to reverse engineer to ensure interoperability in accordance with applicable law, you must first provide to VIINGO (using the email@example.com email address) 30 days prior written notice and all reasonably requested information, permit VIINGO to assess your claim, and permit VIINGO to make, at VIINGO’s sole discretion, an offer to provide alternatives that reduce any adverse impact on VIINGO’s intellectual property or other rights.
INTELLECTUAL PROPERTY. VIINGO and its licensors own all right, title, and interest in and to this Application, including intellectual property rights therein. Except for the limited license granted herein, all rights are reserved.
FEEDBACK. You may provide suggestions, comments or other feedback (collectively, “Feedback”) regarding VIINGO products and services, including the Application. Feedback is entirely voluntary. VIINGO may use Feedback for any purpose without obligation of any kind. You assign to VIINGO exclusively and perpetually, all rights, titles, and interests, including all intellectual property rights, you may have in the Feedback.
DATA COLLECTION AND PRIVACY. The Application may collect information about your use of the Application, including the Services you utilize from within the Application. In addition, the Application collects information you provide directly or through automated means, including geolocation data (if you choose to share it), device and OS identification, login credentials, language and time zone. By using this Application, you consent to VIINGO using and processing this information for the purposes specified in VIINGO’s Services Privacy Statement. https://www.viingo.com/privacy/
The Application may contain or use location-based services, if you enable it. Refer to the user guide for your operating system for more information on how to enable or disable location-based services for the Application. If you enable such location-based services, you hereby consent to VIINGO’s collection, transmission and use of your location data as subject to Services Privacy Statement. Certain location-enabled functionality made available in the Application is provided by Google Inc., Apple Inc., and/or other third-party providers, so your use of that functionality may be subject to additional terms and conditions (as updated from time-to-time): http://www.google.com/intl/en-US_US/help/terms_maps.html and https://www.apple.com/legal/internet-services/maps/terms-en.html. You must exercise your own judgment as to the adequacy and appropriateness of the information. Please note that location data may not always be accurate. The location services are provided “as is” without any warranties of any kind, and VIINGO explicitly disclaims any and all warranties related to location services.
Any information you provide to your device’s operating system provider such as Apple or Google (“OS Provider”) will be subject to that provider’s applicable privacy notice. The Application may contain links to other third-party sites that are not owned or controlled by VIINGO or your OS Provider. VIINGO and your OS Provider have no control over and assume no responsibility for any actions or omissions of such third-parties. If you decide to access any of the third-party sites available through the Application, you do so entirely at your own risk, and you are subject to the policies of those third-parties where applicable. By using this Application, you expressly relieve VIINGO and your OS Provider from any and all liability arising from your use of any third-party site accessed from this Application.
In using or deploying the Application, you may or the Customer you are associated with may choose or may have chosen to utilize features and functionality that are controlled or routed through third parties not under VIINGO’s control, such as but not limited to mobile device management or mobile application management providers, security wrapper providers, Apple, or Google; and you and Customer assume all risks and liabilities associated with such utilization. VIINGO has no control over and assumes no responsibility for any actions or omissions of you, such third-parties, or the Customer in using such functionality.
VIINGO provides the Application in its capacity as a data processor to the Customer under the Agreement. Accordingly, you hereby agree that with regard to information that the Application collects, in the event VIINGO is required to provide you with notice of a data breach in accordance with its legal or contractual obligations, including obligations to any OS Provider, VIINGO’s obligation to notify you of such a breach is satisfied by providing notice to the subscriber to VIINGO’s subscription service in accordance with the breach notification terms of the Agreement.
PUSH NOTIFICATIONS. You may permit the Application to send you push notifications, including alerts, sounds, and icon badges. Notifications can be configured in the settings for your device and may utilize your OS Provider’s notification services. Your personal information may be used to provide you with push notifications. All information collected or used in connection with push notifications are subject to VIINGO’s Services Privacy Statement.
BIOMETRIC UNLOCKING. Fingerprint and facial recognition unlocking are an alternative to typing in your passcode by enabling your device to recognize your fingerprint or facial features (“Biometric Unlocking”). Biometric Unlocking is only available from certain device manufacturers and certain device operating systems (for example, some Apple iOS and Google Android versions). To use Biometric Unlocking, you will need to have configured your mobile device to have saved your fingerprints or your facial features. Fingerprints and facial feature information are stored only on your mobile device; and VIINGO does not have access to your fingerprint or facial feature information. VIINGO reserves the right to suspend or disable the Application’s use of Biometric Unlocking at any time.
MODIFIED DEVICES AND OPERATING SYSTEMS. The Application stores and processes personal data that you have provided to VIINGO, in order to provide you with our products and services. It is your responsibility to keep your mobile device and access to the Application secure. We therefore recommend that you do not jailbreak or root your mobile device, which is the process of removing software restrictions and limitations imposed by the official operating system of your mobile device provided by its manufacturer, including by modifying the operating system or otherwise causing the mobile device to not be in conformance with the manufacturer’s original specifications (each such device, a “Modified Device”). These activities can make your mobile device vulnerable to malware, viruses, and other malicious programs, can compromise your mobile device’s security features, and can result in the Application not working properly or at all. VIINGO, its Affiliates, and their Licensors have no liability for errors, unreliable operation, or other issues resulting from use of the Application on or in connection with Modified Devices. Use of the Application on Modified Devices will be at your sole and exclusive risk and liability.
DISCLAIMER OF WARRANTIES. VIINGO, ITS AFFILIATES, AND THEIR LICENSORS DISCLAIM RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THIS APPLICATION. VIINGO, ITS AFFILIATES, AND THEIR LICENSORS DISCLAIM TO THE FULLEST EXTENT PERMITTED, ALL GUARANTEES AND EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE/NON-INFRINGEMENT OF PROPRIETARY RIGHTS, AND ANY WARRANTIES REGARDING THE AVAILABILITY, SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THIS APPLICATION. YOU DOWNLOAD AND USE THIS APPLICATION AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR HARDWARE DEVICES OR FOR LOSS OF DATA THAT RESULT FROM THE DOWNLOAD OR USE OF THIS APPLICATION.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL VIINGO, ITS AFFILIATES AND THEIR LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. IN ANY EVENT, VIINGO’S, ITS AFFILIATES’ AND THEIR LICENSORS’ AGGREGATE LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED $10 USD. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER VIINGO OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
NO LIABILITY FOR THIRD-PARTIES. Your wireless carrier, the manufacturer and retailer of your mobile device, the developer of the operating system for your mobile device, the operator of any application store, marketplace, or similar service through which you obtain the Application, and their respective affiliates, suppliers, and licensors (collectively, the “Third-Parties”) are not parties to this EULA and they do not own and are not responsible for the Application. You are responsible for complying with all applicable store and other applicable Third-Party terms and conditions. YOU AGREE (I) THE THIRD-PARTIES DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE APPLICATION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE; (II) IN NO EVENT WILL THE THIRD-PARTIES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS EULA OR THE APPLICATION, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (III) IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY THIRD-PARTY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND WILL IN NOT EXCEED FIVE DOLLARS ($5.00); AND (IV) YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE THIRD-PARTIES ARISING OUT OF THE APPLICATION AND THIS EULA. THE THIRD-PARTIES ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS EULA, CAPABLE OF DIRECTLY ENFORCING ITS TERMS. NOTHING CONTAINED IN THIS EULA WILL BE CONSTRUED AS MODIFYING OR AMENDING ANY AGREEMENTS OR OTHER TERMS BETWEEN YOU AND THE THIRD-PARTIES WITH REGARD TO THEIR SUBJECT MATTER. In the event of any claim that the Application or your possession and use of the Application infringes a third-party’s intellectual property rights, the Third-Parties are not responsible for the investigation, defense, settlement, or discharge of the infringement claim.
CONTRACTING PARTIES. If you reside in North America, the contracting party is VIINGO, Inc., a Delaware corporation with principal place of business at 2225 Lawson Lane, Santa Clara, CA 95054, or if you reside outside of North America, the contracting party is VIINGO Nederland B.V., Hoekenrode 3, 1102 BR Amsterdam, The Netherlands (in either case, “VIINGO”).
VENUE AND CHOICE OF LAW. This EULA will be construed, interpreted, and performed exclusively according to the laws of the State of Delaware United States of America, without giving effect to any principles of conflicts of law. The United Nations Convention for the International Sale of Goods shall not apply. Any action at law or in equity arising out of or directly or indirectly relating to this EULA may be instituted only in the Federal or state courts located in San Jose, California. You consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this EULA, and to extra-territorial service of process. You agree that regardless of any statute or law to the contrary, any claim or cause of action that you may have arising out of or related to this EULA must be filed within one (1) year after the claim or cause of action arose.
ENTIRE AGREEMENT. This EULA represents the entire agreement between the parties with respect to the Application, and supersedes any prior or contemporaneous oral or written agreements concerning the subject matter contained herein.
HEADINGS. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
WAIVER AND MODIFICATION. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written agreement executed by the party against which it asserted.
SEVERABILITY. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
SUPPORT. If you have a support question regarding the Application, use VIINGO’s standard support process to receive assistance. More information is available on https://www.VIINGO.com/support/contact-support.html.
COMPLAINTS. If you have any questions, complaints or claims with respect to the Application, please direct to legalnotices@VIINGO.com.
OTHER. The disclaimers and limitations of liability and your indemnity will survive any termination or expiration of this EULA. You may not contest the validity or enforceability of this EULA, including under any applicable statute of frauds, because it was accepted in electronic form. If this EULA is being agreed to by a company or other legal entity, then you are agreeing to this EULA on behalf of that company or entity and you warrant you are authorized and lawfully able to bind that company or entity to this EULA.
Any translation of this EULA is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this EULA shall govern. If you are located in the province of Quebec, Canada, the following clause applies:
The parties hereby confirm that you have requested this EULA and all related documents be drafted in English. Les parties ont exige que le present contrat et tous les documents connexes soient rediges en anglais.
ADDITIONAL TERMS APPLICABLE TO GOOGLE ANDROID-BASED DEVICES. If you are using an Android-based device, in the event of any conflict between this EULA and the Google Play Developer Distribution Agreement, the latter shall supersede this EULA.
ADDITIONAL TERMS APPLICABLE TO APPLE iOS-BASED DEVICES. The following additional terms and conditions apply to you on your use of the Application on an iOS-based device. In the event of any conflict between these additional terms and the rest of the EULA, these additional terms shall control. For the purposes of this EULA, “Apple” means Apple, Inc., a California corporation with its principle place of business at One Infinite Loop, Cupertino, California 95014, U.S.A. and “App Store” means an electronic store and its storefronts branded and owned and/or controlled by Apple or an affiliate of Apple. To the extent that the usage rules for the Application set forth in Apple’s App Store Terms of Service are more restrictive, such usage rules shall apply.
1. This is an agreement between you and VIINGO, and not with Apple. Apple is not responsible for this Application and the content thereof.
2. VIINGO grants you the right to use this Application only on an iOS product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. The license granted is non-transferable except that a VPP Customer may distribute to multiple end-users.
3. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to this Application.
4. In the event of any failure of this Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if applicable, for this Application to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to this Application.
5. Apple is not responsible for addressing any claims by you or any third-party relating to this Application or your possession and/or use of this Application, including but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (ii) claims arising under consumer protection or similar legislation, including with any use of iOS’s health and home-related functionalities.
6. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim.
7. You must comply with any applicable third-party terms of agreement when using this Application, if any.
8. Apple and Apple’s subsidiaries are third-party beneficiaries of this EULA, and upon your acceptance, Apple as a third-party beneficiary thereof will have the right (and will be deemed to have accepted the right) to enforce this EULA against you.