App user agreement – iOS

END-USER LICENSE AGREEMENT FOR GIVVIT iOS APP (“EULA”)

Date of Last Revision: August 2014

Version: 1.5

IMPORTANT NOTICE:

 

PLEASE READ THIS EULA CAREFULLY BEFORE USING THE APP. THIS EULA SETS OUT HOW THE APP IS LICENSED TO YOU TO USE.

 

1.               INTRODUCTION

1.1             This app and any accompanying online or electronic documentation (the “App”) have been produced by and is the property of Startled Frog Limited (“Givvit”). Givvit is referred to as “us”, “we”, and “our” in this EULA. We are a company registered in England and Wales, with company number 07983137. Our registered office is at Unit 2A Vista Place, Coy Pond Business Park, Ingworth Road, Poole, Dorset, United Kingdom BH12 1JY.  You can contact us by post to our registered office address or by email to info@givvit.com

1.2             THE TERMS AND CONDITIONS BELOW SET OUT THE AGREEMENT BETWEEN YOU (“you”) AND US FOR THE PURCHASE, DOWNLOAD, INSTALLATION AND USE OF THE APP SO PLEASE READ THIS CAREFULLY.

1.3             BY DOWNLOADING AND USING THE APP YOU ARE AGREEING TO BE BOUND BY AND BECOME A PARTY TO THIS EULA AND THE PRIVACY POLICY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA OR PRIVACY POLICY YOU SHOULD NOT PURCHASE, DOWNLOAD OR USE THE APP.

2.               IMPORTANT TERMS

2.1             ALL USE OF THE APP IS SOLELY FOR USE BY USERS IN ACCORDANCE WITH THIS EULA. ANY USE, REPRODUCTION OR REDISTRIBUTION OF THE APP NOT IN ACCORDANCE WITH THIS EULA IS EXPRESSLY PROHIBITED.

2.2             The EULA limits GIVVIT’S liability AS set out in CLAUSE 17 below.

2.3             if you are under the age of 18 you must get your parent or guardian’s permission to download, INSTALL AND USE the App.

2.4             your use of the app requires you to have an apple itunes account. your access to the app will be linked to your itunes account and you are required to comply with the apple policies to use the app, including for any in app payments IF APPLICABLE.

3.               about the app

3.1             The App “Givvit” enables friends to send and receive treats in the form of gift codes and vouchers (or similar) which can be redeemed for specified products or services (“Treats”). The Treats are issued by retailers (known as “Treat Partners”) and distributed by the App.

3.2             We will also provide you with details of Treats that may be of interest to you or your friends based on your location, your profile information and your use of App generally.

3.3             The Privacy Policy is in an important document which governs our use of the personal and anonymous data that we obtain from your use of the App. We use this data in accordance with our Privacy Policy so please take time to read and understand that document.

4.               APP DEVELOPER TERMS

The following terms of this clause 4 are the terms which we are required by Apple to notify you of and obtain your consent of in respect of using the App:

4.1             Acknowledgement

You and we acknowledge that this EULA is concluded between you and us only, and not with Apple Inc, nor any subsidiary or affiliate company of Apple Inc, (“Apple”). You also acknowledge that we are solely responsible for the App and the content thereof.

4.2             Grant of Licence

Subject to, and in consideration of, your compliance with all conditions of this EULA we grant you a non-exclusive, personal, revocable, non-transferable license to use the App and Content for your lifetime on an iOS Product which you own or control, and as permitted by the Usage Rules set forth in the App Store Terms of Service (http://www.apple.com/uk/legal/terms/), and in accordance with the Privacy Policy.

 

4.3             Maintenance and support

We are solely responsible for providing support and maintenance for the App. You and we acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

4.4             Product claims

You acknowledge that we, and not Apple, are responsible for addressing any claims you may have relating to the App or your possession and/or use of the App, including but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

 

4.5             Intellectual Property Rights

You acknowledge that in the event of a third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, then we shall be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property right infringement claim, and not Apple.

 

4.6             Legal Compliance

You represent and warrant that (i) you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country; and (ii) you are not listed on any US Government list of prohibited or restricted parties.

4.7             Third Party Beneficiary

You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party  beneficiaries of this EULA, and that when you accept the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary thereof.

4.8             Third Party Terms of Agreement

We may use third party software and services provided by Facebook, Youtube and Twitter with the App. Use of the App is therefore subject to your acceptance and compliance of these third party terms and you agree to comply with the applicable third party terms and conditions when using the App.

5.               YOUR USE OF THE APP

5.1             By downloading and installing the App, you confirm that you are either over 18 years of age, or if you are under 18 years old, that you are 13 years of age or older and you have obtained your parent or guardian’s consent to download, install and use the App.

5.2             As a condition of using the App, our Privacy Policy shall apply. You confirm that you have read the Privacy Policy so that you understand how we collect personal and non-personal data including accessing your location. All data that we collect is used to understand and improve your use of the App, and to provide the functionality of the App to you as otherwise set out in the Privacy Policy.

5.3             Subject to the privacy settings in the App as set by you, we may send you push notifications to your iOS device whilst the App is installed and including whilst the App is not running in the foreground or in the background.

5.4             You acknowledge that we have no control over how other users use the App and therefore we have no control over the quality of information posted on the service or sent through any messaging features of the App. Accordingly we give no warranties or representations with respect of the accuracy or reliability of any content made available via the App and the service generally.

5.5             If you have an iCloud account then you will be able to sync any content created on the App across your connected Apple devices. The costs and management of an iCloud account is your sole responsibility.

6.               OWNERSHIP OF THE APP AND CONTENT

6.1             All intellectual property in the App, except for User Generated Content/Data (please see clause 8) is owned by us and/or our licensors.

6.2             ‘Givvit’ is a registered trade mark belonging to us. All rights are reserved by us in the trade mark.

6.3             All intellectual property rights in the App and content on the App (except for User Generated Content), including but not limited to text, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features and all other content (“Content”) belongs to us and/or our licensors. All rights reserved.

6.4             You are not sold the App or any Content, but are granted a personal licence to use the same for your own private entertainment on the terms set out in clause 4.2.

7.               LINKS TO WEBSITES AND THIRD PARTY SERVICES

7.1             Where we make available links to other websites or apps in the App, such links are provided for your information and convenience only. We are not responsible for the content or performance of the linked website or app, and you are responsible for reviewing the linked website’s or app’s terms of use.

7.2             We are not the manufacturers, distributors or sellers of any products or services for which Treats may be redeemed.

7.3             Treats do not represent any claim against us and we are not the issuers of any Treats.  Treats represent a claim against the Treat Partners, who are the issuers of Treats. When you pay funds to us, we receive those funds in our capacity of agent of the Treat Partner. Treats are only accepted by the respective Treat Partner, as issuer of the Treat.

7.4             The App may provide you with certain functionalities to share your User Generated Content and/or Data (as defined below in clause 8), with third party services such as Twitter or Facebook. It is your responsibility to ensure that you adhere to the terms and conditions of such third party platforms when sharing your User Generated Content/Data. You should consider the type of user Generated Content/Data you wish to share as due to the nature of the internet, it is not always possible to permanently remove any pictures or other information you share.

7.5             The App may provide you with certain functionalities which generate SMS messages that result in a charge from your network provider.  We do not manage or apply these charges and we do not add any additional charges.

8.               UPLOADING USER GENERATED CONTENT/DATA

8.1             To the extent that the App allows you to upload any text, pictures, data or other information to our servers (“User Generated Content” and/or “Data”), then you acknowledge that we may copy, store, adapt, modify, and use the User Generated Content/Data, but only the extent necessary to operate the App and to enable us to provide the App and Data to you. You hereby grant us a non-exclusive, revocable, royalty free, worldwide and sub-licenseable, and transferable right to copy, adapt and use the User Generated Content/Data as part of the App generally.  You acknowledge that we may make the User Generated Content/Data available to other users of the App, and via our other platforms related to the Givvit service such as the Givvit website, Facebook page, Instagram page and Twitter handle etc.

8.2             You confirm that any User Generated Content/Data shall be your own original work and you shall not infringe the intellectual property rights or privacy rights of any third party or defame any person. You agree to compensate us for any loss we may suffer from a third party claim arising from a breach by you of this confirmation.

8.3             To the extent that the App allows you to message or communicate with other users of the App, then you must take care in the type of information you wish to share. For example, you should only share personal information or your contact details with people you trust.  You must not send any abusive or offensive material. We do not monitor any communications that you may send from the App, but reserve the right, at our discretion to remove your account or User Generated Content/Data in the event that you breach any of the terms of the EULA.

8.4             You agree that you shall not use the App to send any abusive or offensive material, or any other material which we deem to be generally objectionable, or for any commercial purposes.

8.5             We use your User Generated Content/Data in accordance with our Privacy Policy as set out in clause 3.2 and this EULA.

8.6             After you delete your account, your User Generated Content/Data shall remain on our servers for a limited period of time as part of our backup system.

8.7             Please note you retain all ownership of your User Generated Content/Data that you upload, and you are free to use it elsewhere.

9.               Further Content

9.1             We may (in the future) offer further in-app content for you to purchase, download, install and use in the App (“Further Content”). We grant you a non-exclusive, personal, revocable, non-transferable license to use the Further Content in the App on an iOS Product.

10.             COOKIES

10.1          The use of cookies and similar tools are detailed in our Privacy Policy and Apple’s own privacy policy available at www.apple.com/uk/privacy.

10.2          You may delete cookies and other similar tools from your iOS device by deleting the App.

11.             SYSTEM REQUIREMENTS

11.1          This App has been developed to work on the latest version of the iOS software at the time of its release. Apple may from time to time update the iOS software, and we will endeavour, but not be obligated, to update the App if applicable to ensure that its functionality and performance continues with any updated iOS release. It is your obligation to ensure that you are using the latest public release of the iOS software.

12.             ADVERTISEMENTS

12.1          Where the App displays in app banner advertising, please note we are not responsible for the choice of the advert as all advertising is managed by Apple.

12.2          As is common with advertising within Apps and websites, the advertisements may serve cookies or similar tools onto your iOS device. We have no control over this process, but please note that the use of cookies and similar tools are detailed in our Privacy Policy and Apple’s own privacy policy available at www.apple.com/uk/privacy.

12.3          You may delete cookies and other similar tools from your iOS device by deleting the App. You can also opt out of personalised adverts by visiting https://oo.apple.com on your iOS device.

12.4          We may, from time to time, make available within the App adverts from our third party sponsors / partners based on your due date and location. These adverts may be chosen by us as we feel they will be relevant to you. These adverts cannot be removed or opted out of as they form part of the business model in making available the App.

13.             INDEMNITY / COMPENSATION

13.1          You agree to indemnify (compensate) us and keep us indemnified from and against all claims, damages, expenses, costs and liabilities (including legal fees) relating to or arising from your use of the App or arising from any breach or suspected breach of this EULA by you or your violation of any law or the rights of any third party.

14.             TERM AND TERMINATION

14.1          This EULA takes effect upon your download, installation and/or use of the App and remains effective until terminated by either of us. You may terminate this EULA at any time by removing the App from the iOS device on which you have installed it. The EULA shall automatically terminate if you fail to comply with any term or condition of this EULA. Upon termination you shall cease all use of the App and delete all copies of the App.

14.2          The following clauses of the EULA shall survive termination: Clause 6 (Ownership), Clause 13 (Indemnity/compensation), Clause 14 (Term and Termination), Clause 16 (General Provisions), Clause 17 (Limitation of Liability), Clause 19 (Severance) and Clause 20 (Jurisdiction).

15.             SUPPORT AND CONTACTING US

15.1          The App is provided “as is”. However if you need any help and support please email info@givvit.com  and we shall endeavour to assist you.

16.             GENERAL PROVISIONS

16.1          This EULA sets out the complete understanding and agreement between us and you and may only be amended or waived in writing by us. No waiver by us of any failure by you to comply with or perform a provision of EULA shall be deemed to be a waiver of any preceding or succeeding failure. In the event that any of the provisions of this EULA are held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

16.2          This EULA is personal to you.  You may not assign, sub-licence, transfer or dispose of the rights licensed under this agreement.

16.3          You may only use the App for your personal, private and non-commercial use. You may not reproduce, distribute, publically display or perform, translate, modify, adapt, create derivative works from, deconstruct, reverse engineer, decompile or disassemble in any manner the App, or any part of it, including but not limited to any character, graphic, associated software or proprietary communications protocol used by the software or any utilities, applications, emulators or tools derived therefrom.

16.4          You agree not to access or attempt to access the accounts of other users or to penetrate or attempt to penetrate the App’s security measures, or transfer files that contain viruses, Trojans or other harmful programs.

17.             OUR LIMITATIONS OF LIABILITY

17.1          The App is provided ‘AS IS’ and on an ‘AS AVAILABLE’ basis without any representation, endorsement or warranty of any kind, including but not limited to implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and/or accuracy.

17.2          We do not guarantee that the App will be (i) free of errors, viruses, bugs or other defects; or (ii) that the App or any information displayed or distributed through the App or in the Documentation will be accurate or complete; or (iii) that any defects in the App will be corrected.

17.3          You acknowledge that reliance on any such information shall be at your sole risk.

17.4          NOTHING IN THIS EULA SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR FRAUDULENT MISREPRESENTATIONS OR FOR DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE OR THE NEGLIGENCE BY US, OUR EMPLOYEES OR AGENTS.

17.5          TO THE FULLEST EXTENT PERMISSABLE BY LAW, INCLUDING IN YOUR LOCAL JURISDICTION, WE EXCLUDE ALL OTHER LIABILITY FOR ANY LOSS OR DAMAGE, INCLUDING ANY LIABILTY OR DAMAGE TO ANY DEVICE OR COMPUTER SYSTEM.

17.6          NOTHING IN THIS EULA SHALL BE DEEMED OR INTERPRETED TO limit your statutory consumer RIGHTS AND THIS EULA MAY BE INTERPRETED ACCORDINGLY BY GIVING THE MINIMINUM NECESSARY CHANGES TO give effect to your LOCAL statutory consumer rights.

17.7          YOUR RIGHT TO ACCESS AND USE THE APP IS REVOKED IN THE EVENT THAT THIS EULA OR SERVICE PROVIDED BY THE APP IS PROHIBITED IN ANYWAY IN YOUR LOCAL TERRITORY.

17.8          YOU ACKNOWLEDGE THAT THE APP HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE APP MEET YOUR REQUIREMENTS.

17.9          wE ARE ONLY RESPONSIBLE FOR LOSS OR DAMAGE THAT YOU SUFFER THAT IS A FORESEEABLE RESULT OF OUR BREACH OF THIS EULA, OR OUR NEGLIGENCE UP TO THE LIMIT SPECIFIED IN THIS CLAUSE 17.9. our ENTIRE LIABILITY TO YOU, and to the extent we cannot exclude it, shall, where PERMISSABLE BY LAW, BE LIMITED TO the amount of in-app purchases made by you in the pRevious three (3) months prior to the liabiliTy incurring. in the EVENT THE FOREGOING IS DEEMED UNREaSoNABLE BY A COURT OF COMPETENT JURISDiCTION, YOU AGREE THAT OUR LIABILITY IS CAPPED AT £10.

17.10       in the event that APPLE REFUNDS YOU THE (IN-APP) PURCHASE PRICE IN ACCORDANCE with the itunes terms of sale, then both apple and we will have no further warranty obLIGATION whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform with the foregoing warranty. as a condition of the refund, you are required to delete the App.

18.             CHANGES TO THE EULA

18.1          We may change this EULA for any legal, regulatory or security reasons, or for any compliance with any changes that may be required by Apple or any other reason we decide. We will notify you of any changes and you will be required to accept the changes to continue to use the App.

19.             SEVERENCE

19.1          If any provision of this EULA is found by a court or regulator to be invalid or unenforceable the other provisions shall continue to apply.

20.             GOVERNING LAW AND JURISDICTION

20.1          Subject to your local consumer laws, and in the event of any dispute between you and us, and regarding this EULA and/or your use of the App, then the laws of England and Wales will apply. You agree that in the event we are unable to settle any dispute with you, then any court or arbitration proceedings shall be held in England, UK only.