Terms of Service

The following Terms of Service are a legal agreement between you and Gigya, Inc. (“Gigya”), and govern your use of www.gigya.com (the “Gigya Site”). These Terms of Service include the Gigya Privacy Policy and all other policies referenced below or elsewhere on the Gigya Site.You understand that by using the Gigya Site, you are agreeing to these Terms of Service. If you do not accept all of these Terms of Service, you may not access or use the Gigya Site. If you are using the Gigya Site for a business, your agreement to these Terms of Service will be treated as the agreement of the business, and all references to “you” and “your” will apply to that business.

In these Terms of Service, the Gigya online social optimization platform, applications, tools and services, and all related content, software and documentation, are collectively referred to as the “Services.”

Important Note: The Services are deployed on many websites which are not owned or controlled by Gigya. When you visit any third party website which has enabled the Services, your use of the Services is governed by that website’s posted use terms. These Terms of Service apply only to your use of the Gigya Site.

Gigya Account.

You do not need a Gigya account to visit the Gigya Site. However, before you can deploy any of the Services on your website, you must create a Gigya account and agree to the Gigya Member Agreement, which will govern your use of the Services on your website.

Content.

The Gigya Site includes content provided by Gigya (“Gigya Content”) and content that is uploaded, posted, submitted or otherwise transmitted by you and other users of the Gigya Site (“User Content”).

(a)Gigya Content. All Gigya Content is owned by or licensed to Gigya, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Gigya Content is provided to you AS IS and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Gigya reserves all rights not expressly granted in and to the Gigya Content. You agree to not engage in the use, copying, or distribution of any of the Gigya Content other than expressly permitted herein. If you download or print any Gigya Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Gigya Site or features that prevent or restrict use or copying of any Gigya Content or enforce limitations on use of the Gigya Site or Gigya Content.

(b)Your User Content. You retain all rights in any User Content that you provide to the Gigya Site. You are solely responsible for your User Content and the consequences of posting or publishing it. You grant to Gigya a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, distribute, prepare derivative works of, display, publish, perform, transmit and access your User Content in connection with the operation of the Gigya Site and the Services in any media formats and through any media channels, and you grant to each other Gigya Site user a similar non-exclusive license to access and use your User Content through the Gigya Site. You represent and warrant that you own or have the necessary licenses, rights, consents, permissions and releases to grant the foregoing licenses. You acknowledge and agree that all of your User Content will comply with our Copyright and IP Policy as set forth in Exhibit A below.

(c)Disclaimer. Gigya does not guarantee that any Gigya Content or User Content will be made available through the Gigya Site, continuously or at all. WHILE GIGYA IS UNDER NO OBLIGATION TO DO SO, GIGYA RESERVES THE RIGHT TO REMOVE AND PERMANENTLY DELETE ANY CONTENT FROM THE GIGYA SITE WITHOUT NOTICE, AND FOR ANY REASON GIGYA DEEMS SUFFICIENT. Gigya does not have any obligation to monitor any User Content for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of such content or anything said, depicted or written by Gigya Site users, including, without limitation, any information obtained by using the Gigya Site or Services. Gigya does not endorse any User Content or any opinion, recommendation or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Gigya with respect thereto.

Obligations of Gigya Site Users.

The Gigya Site may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Gigya Site. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Gigya Site:

(a) Upload, post, submit or otherwise transmit any User Content:
(i) to which you do not have the lawful right to copy, transmit and display;
(ii) that infringes any third party’s intellectual property rights (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right or moral right or right of publicity). Gigya has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. Please see the Gigya Copyright and Intellectual Property Policy attached hereto as Exhibit A for further information;
(iii) that is unlawful, obscene, harmful, threatening, harassing, defamatory or hateful or that contains objects or symbols of hate, invades the privacy of any third party, contains any pornography, erotica, child pornography or child erotica, is deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitutes hate speech or is otherwise objectionable in the opinion of Gigya;
(iv) that includes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, “pyramid schemes” or any other form of unsolicited or unauthorized solicitation;
(v) that contains a software virus or any other computer code, files, or programs designed to (A) interrupt, destroy or limit the functionality of any computer software; or (B) interfere with the access of any user, host or network, including without limitation sending a virus, overloading, flooding, spamming or mail-bombing the Gigya Site; or
(vi) that includes code that is hidden or otherwise surreptitiously contained within the images, audio or video of any User Content that is unrelated to the immediate, aesthetic nature of the User Content.
(b) Circumvent, disable or otherwise interfere with security related features of the Gigya Site or features that prevent or restrict use or copying of any content;
(c) Use any meta tags or other hidden text or metadata utilizing a Gigya trademark or logo, URL or product name;
(d) Forge any TCP/IP packet header or any part of the header information in any posting or in any way use the Gigya Site to send altered, deceptive or false source-identifying information;
(e) Tamper with, interfere with or disrupt (or attempt to do so) the availability of any aspect of the Gigya Site or Services, any servers or networks connected to the Gigya Site or Services, or the technical delivery systems of Gigya or any Gigya provider;
(f) Attempt to probe, scan or test the vulnerability of any Gigya system or network or breach or impair or circumvent any security or authentication measures protecting the Gigya Site or Services;
(g) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Gigya Site or Services;
(h) Attempt to access, search or meta-search the Gigya Site or Services with any engine, software, tool, agent, device or mechanism other than software and/or search agents provided by Gigya or other generally available third party web browsers;
(i) Collect or store personal data about other Gigya Site or Services users without their express permission; or
(j) Impersonate or misrepresent your affiliation with any person or entity, through pretexting or some other form of social engineering or otherwise commit fraud.

Termination or Modification.

Gigya reserves the right in its sole discretion, at any time, to modify, discontinue or terminate the Gigya Site or modify or terminate these Terms of Service, the Gigya Privacy Policy, or the Gigya Copyright and Intellectual Property Policy without advance notice. If any modification is not acceptable to you, your only recourse is to cease using the Gigya Site. By continuing to use the Gigya Site after any such modifications, you accept and agree to be bound by such modifications. Without limiting other remedies, Gigya may at any time suspend or terminate your access to the Gigya Site or Services without notice to you if Gigya determines in its discretion that you have failed to comply with any provision of these Terms of Service.

Feedback.

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Gigya Site (“Feedback”). You may submit Feedback by emailing us at support@gigya-inc.com or through the “Help” section of the Gigya Site. You acknowledge and agree that all Feedback will be the sole and exclusive property of Gigya and you hereby assign and agree to assign all rights, title and interest you have in such Feedback to Gigya together with all intellectual property rights therein.

Indemnification.

You agree to defend, indemnify and hold Gigya and its affiliates, subsidiaries and distribution partners and their respective officers, directors, employees and/or agents harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) your access to or use of the Gigya Site, Gigya Content or User Content; (ii) your violation of this Agreement; (iii) your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that your User Content caused damage to a third party, including, without limitation, claims that your User Content is infringing.

Disclaimer.

THE GIGYA SITE AND ALL CONTENT MADE AVAILABLE THROUGH THE GIGYA SITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY OF ANY KIND. GIGYA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE GIGYA SITE AND SUCH CONTENT, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, GIGYA MAKES NO REPRESENTATION OR WARRANTY THAT THE GIGYA SITE OR ANY SUCH CONTENT WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

Limitation of Liability.

UNDER NO CIRCUMSTANCES WILL GIGYA OR ITS AFFILIATES, SUBSIDIARIES, PARTNERS OR LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE GIGYA SITE OR ANY CONTENT MADE AVAILABLE THROUGH THE GIGYA SITE, INCLUDING WITHOUT LIMITATION, INJURY OR DAMAGES RESULTING FROM THE CONDUCT OF ANY GIGYA SITE USER, ONLINE OR OFFLINE, WHETHER OR NOT GIGYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GIGYA’S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THESE TERMS OF SERVICE WILL NOT EXCEED $50. GIGYA WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY ERRORS OR ANY SCHEDULED OR UNSCHEDULED SERVICE INTERRUPTIONS RELATING TO THE GIGYA SITE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Force Majeure.

Gigya will not be liable to you by reason of any failure or delay in performance on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, earthquakes, or internet connectivity or failure issues experienced by major telecommunications providers or a Gigya co-location facility, for the duration of such event and for such further period of time that Gigya may reasonably require to recover from the effects of such event.

Notice; Consent to Electronic Notice.

You consent to the use of (a) electronic means to complete these Terms of Service and deliver any notices pursuant to these Terms of Service, and (b) electronic records to store information related to these Terms of Service or your use of the Gigya Site or Services. Any notice or other communication to be given hereunder will be in writing and given (x) by Gigya via email (in each case to the address that you provide), (y) a posting on the Gigya Site or (z) by you via email to legal@gigya-inc.com or to such other addresses as Gigya may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.

Other Websites.

The Gigya Site may provide links to third party websites, and such links are provided for reference only. We encourage you to read the use terms of each third party website you visit, including websites which are linked to the Gigya Site and/or which have deployed the Services. Please keep in mind that Gigya has no control over (and Gigya disclaims any responsibility or liability to you for) the content, privacy policies, activities or practices of any third party websites, including websites that deploy the Services, or for any harms, injuries or losses you might suffer as a result of using or accessing such websites.

Miscellaneous.

In the event that any provision in these Terms of Service is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. The failure of a party to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision. This Agreement will be governed by and interpreted in accordance with the laws of the State of California excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under these Terms of Service will be brought exclusively in courts located in Santa Clara County, California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. These Terms of Service together with the rules and policies of Gigya incorporated herein by reference constitute the entire agreement between Gigya and you with respect to your use of the Gigya Site.

Questions.

If you have questions about these Terms of Service please email Gigya at support@gigya-inc.com. Last Modified: 3/31/2010

Exhibit A

Gigya Copyright & Intellectual Property Policy

NOTIFICATION OF COPYRIGHT INFRINGEMENT

Gigya respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Gigya will respond expeditiously to claims of copyright infringement committed using the Gigya website or service that are reported to Gigya’s Designated Copyright Agent identified in the sample notice below.

If you are a copyright owner, or are authorized to act on behalf of one or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Gigya website and service (collectively the “Service”) by completing the following DMCA Notice of Alleged Infringement and delivering it to Gigya’s Designated Copyright Agent. Upon receipt of Notice as described below, Gigya will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged use from the Service and/or termination of the Gigya user’s account in appropriate circumstances.

DMCA Notice of Alleged Infringement (“Notice”)

Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Service where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
- “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
- “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.

Deliver this Notice, with all items completed, to Gigya’s Designated Copyright Agent:

Counter NoticesOne who has posted material that allegedly infringes a copyright may send Gigya a counter notice pursuant to Sections 512(g)(2) and 512(g)(3) of the DMCA. When Gigya receives a counter notice, we may in our discretion reinstate the material in question in not less than 10 nor more than 14 days after we receive the counter notice unless we first receive notice from the copyright claimant that they have filed a legal action to restrain the allegedly infringing activity. To provide a counter notice to us, please return the following form to Gigya’s Designated Copyright Agent. Please note that if you provide a counter notice, in accordance with the Gigya Privacy Policy located athttp://www.gigya.com/privacy-policy/ to the complaining party.

COUNTER NOTICE

Identification of the material that has been removed or to which access has been disabled on Gigya service and the location at which the material appeared before it was removed or access to it was disabled:
I hereby state under penalty of perjury that I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
Your name, address, telephone number and, if available, email address:
I hereby state that I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located or, if my address is outside of the United States, for any judicial district in which Gigya may be found, and I will accept service of process from the complaining party who notified Gigya of the alleged infringement or an agent of such person.
Your physical or electronic signature (full legal name):____________________________

The Counter Notice should be delivered to Gigya’s Designated Copyright Agent: Copyright Agent

NOTIFICATION OF TRADEMARK INFRINGEMENT

If you believe that your trademark (the “Mark”) is being used by a user in a way that constitutes trademark infringement, please provide Gigya’s Designated Copyright Agent (specified above) with the following information:

Your physical or electronic signature, or a physical or electronic signature of a person authorized to act on your behalf;
Information reasonably sufficient to permit Gigya to contact you or your authorized agent, including a name, address, telephone number and, if available, an email address;
Identification of the IP alleged to have been infringed, including (i) a complete description or explanation of the nature of the IP, (ii) evidence that you own the IP in the relevant jurisdiction, including copies of relevant patents, registrations, certifications or other documentary evidence of your ownership, and (iii) a showing sufficient for Gigya to determine without unreasonable effort that the IP has been infringed;
Information reasonably sufficient to permit Gigya to identify the use being challenged;
A statement that you have not authorized the challenged use, and that you have a good-faith belief that the challenged use is not authorized by law; and
A statement under penalty of perjury that all of the information in the notification is accurate and, that you are the IP owner, or are authorized to act on behalf of the IP owner.

Upon receipt of notice as described above, Gigya will seek to confirm the existence of the IP on the Service, notify the registered user who posted the content including the IP, and take whatever action, in its sole discretion, it deems appropriate, including temporary or permanent removal of the IP from the Service. A registered user may respond to notice of takedown by showing either (a) that the claimant does not own the IP or (b) that the IP is not infringed. If the registered user succeeds in showing either (a), (b) or (c) then Gigya may exercise its discretion not to remove the IP. If Gigya decides to comply with a takedown request, it will do so within a reasonably expeditious period of time.

NOTIFICATION OF OTHER INTELLECTUAL PROPERTY (“IP”) INFRINGEMENT

If you believe that some other IP right of yours is being infringed by a user, please provide Gigya’s Designated Copyright Agent (specified above) with the following information:

Your physical or electronic signature, or a physical or electronic signature of a person authorized to act on your behalf;
Information reasonably sufficient to permit Gigya to contact you or your authorized agent, including a name, address, telephone number and, if available, an email address;
Identification of the IP alleged to have been infringed, including (i) a complete description or explanation of the nature of the IP, (ii) evidence that you own the IP in the relevant jurisdiction, including copies of relevant patents, registrations, certifications or other documentary evidence of your ownership, and (iii) a showing sufficient for Gigya to determine without unreasonable effort that the IP has been infringed;
Information reasonably sufficient to permit Gigya to identify the use being challenged;
A statement that you have not authorized the challenged use, and that you have a good-faith belief that the challenged use is not authorized by law; and
A statement under penalty of perjury that all of the information in the notification is accurate and, that you are the IP owner, or are authorized to act on behalf of the IP owner.

GIGYA HAS NO OBLIGATION TO ADJUDICATE IP CLAIMS – USER’S AGREEMENT TO HOLD US HARMLESS FROM CLAIMS

Claimants and users must understand that Gigya is not an intellectual property tribunal. While we may in our discretion use the information provided in order to decide how to respond to infringement claims, we are not responsible for determining the merits of such claims. If a user responds to a claim of infringement by providing assurances that its content is not infringing, the user agrees that if we thereafter restore or maintain the content, the user will defend and hold Gigya harmless from any resulting claims of infringement.