Please carefully read this End User License Agreement (“Agreement”) carefully before accepting the terms and conditions of this Agreement. This Agreement establishes the terms and conditions under which PING, Inc. (“PING,” “we,” “us,” and “our”) will permit the download, installation, and operation of the mobile software application you are attempting to download or install (as further defined below, the “SOFTWARE”). You acknowledge that this Agreement is not between you and Apple, and Apple is not responsible for the SOFTWARE and the content thereof. This Agreement forms a binding legal agreement between PING and you and your employer and/or any other entity or organization that you are acting on behalf of or otherwise acting as an agent of when downloading, installing or operating the SOFTWARE. By accessing and/or using the SOFTWARE, you agree to be bound by this Agreement. If you do not agree to the terms and conditions of this Agreement, you may not access or use the SOFTWARE.
This Agreement includes the following terms and conditions and the applicable Addendums referenced below, each of which is incorporated into and made a part of this Agreement. This Agreement is the complete and exclusive agreement between you and PING regarding your access to and use of the SOFTWARE and supersedes any prior or contemporaneous agreement or proposal, oral or written, and any other communications between you and PING relating to the SOFTWARE.
This SOFTWARE (together with all Services (as defined below)) is provided by PING pursuant to the terms and conditions of this Agreement. The SOFTWARE allows users to access and use content and services related to us and our products, which may include audiovisual content, images, text, data and other similar content and services (such content and services, collectively, the “Services”).
By accessing or using the SOFTWARE, you affirm that you are of legal age to enter into this Agreement or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement. If you are not of legal age to enter into this Agreement and have not obtained parental or guardian consent to enter into this Agreement, then you may not access or use the SOFTWARE.
We reserve the right to change this Agreement, in whole or in part, from time to time at our sole discretion, and to provide you with notice of such change by any reasonable means, including without limitation by making available the revised version of this Agreement through the SOFTWARE. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of this Agreement. Your continued use of the SOFTWARE following our making available any revised version of this Agreement will mean that you accept that revised version of the Agreement, provided that any material change to this Agreement shall not apply retroactively to any claim or dispute between you and us in connection with this Agreement that arose prior to the “LAST UPDATED” date applicable to that version of this Agreement in which we included such material change. If you do not agree to any changes made to this Agreement, you may not access or use the SOFTWARE. We may, at any time, modify or discontinue all or part of the SOFTWARE; charge, modify or waive fees required to use the SOFTWARE; or offer opportunities to some or all SOFTWARE users, subject to any restrictions placed on our exercise of such rights under applicable law.
The SOFTWARE includes the software application you are currently attempting to download or install and any updates, upgrades, bug fixes or enhancements thereto, as well as any accompanying manuals, packaging, documentation and other written files, electronic or on-line materials or documentation, and all copies of any of the foregoing, (collectively, “SOFTWARE”). For the avoidance of doubt, PING has no obligation to provide any updates, upgrades, bug fixes or enhancements to the SOFTWARE. PING reserves the right to suspend, remove or disable access to the SOFTWARE at any time without notice, and PING will not be liable to you for the same.
The SOFTWARE may be obtained through a third-party distribution platform (an “App Store”) and is to be used solely on a mobile device owned or controlled by you that operates such third-party’s operating system (“Device”). This Agreement incorporates by reference the terms of the Addendum following these terms and conditions applicable to the App Store from which you have obtained the Software. Notwithstanding the foregoing, and for the avoidance of doubt, no such third-party is a party to this Agreement. The SOFTWARE also may be subject to additional terms and conditions and privacy policies of such third-party, and PING is not a party to or responsible for the same.
- Information You Submit Through the SOFTWARE.
You represent and warrant that any information you provide in connection with your use of the SOFTWARE is true, accurate and complete, and that you will maintain and update such information as needed, such that the information remains true, accurate and complete. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH OR IN CONNECTION WITH THE SOFTWARE, YOU DO SO AT YOUR OWN RISK.
- Registration; User Names and Passwords.
You may be required to register in order to access certain areas or features of the SOFTWARE. With respect to any such registration, you may not use (and we may refuse to grant you) any user name or email address that belongs to or is already being used by another person; that may be construed as impersonating another person; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion. You are responsible for maintaining the confidentiality of any password you may use to access the SOFTWARE, including any password you may use with Apple, Inc. (“Apple”), and you agree not to transfer such passwords or user names, or lend or otherwise transfer your use of or access to the SOFTWARE, to any third party. You are fully responsible for all interactions with the SOFTWARE that occur in connection with your user names. You agree to immediately notify PING of any unauthorized use of your passwords or user names or any other breach of security related to your account, and to ensure that you “log off” and exit from your account with the SOFTWARE (if applicable) at the end of each session. We are not liable for any loss or damage arising from your failure to comply with any of the obligations in this Agreement.
- Rules of Conduct.
While using the SOFTWARE you agree to comply with all applicable laws, rules, and regulations, and to respect the rights and dignity of others. You also agree that your use of the SOFTWARE will not cause you, PING, or any other third party to violate any laws, rules, or regulations. In addition, your use of the SOFTWARE is conditioned on your compliance with the rules of conduct set forth in this Section 3, and failure to comply with this Agreement and/or these rules of conduct (including without limitation your repeated engagement in copyright infringement through or in connection with the SOFTWARE) may result in termination of your access to the SOFTWARE pursuant to Section 12 below.
In addition to the prohibitions contained in Section 4, you agree not to:
- Post, transmit, or otherwise make available through or in connection with the SOFTWARE:
Any information or materials that are or may be, or the posting, transmission or use of which is or may be: (a) threatening, harassing, degrading, hateful or intimidating; (b) defamatory or libelous; (c) fraudulent or tortious; (d) obscene, indecent, pornographic or otherwise objectionable; or (e) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right without the express written consent of the owner of such right; and/or Any virus, worm, Trojan horse, Easter egg, time bomb, malware, spyware, or other computer code, file, or program that is harmful or invasive or that may or is intended to damage, hijack, disable, interfere with, or disrupt the operation of, or monitor the use of, any hardware, software or equipment;
- Use the SOFTWARE for any fraudulent, deceptive or unlawful purpose;
- Interfere with or disrupt the operation of the SOFTWARE or the servers or networks used to make the SOFTWARE available; or violate any requirements, procedures, policies or regulations of such networks;
- Restrict or inhibit any other person from using the SOFTWARE (including without limitation by hacking or defacing any portion of the SOFTWARE);
- Reproduce, copy, modify, adapt, translate, sell, resell, make available, link to or exploit for any commercial purposes, any portion of, use of, or access to, the SOFTWARE or any portion thereof, including its content;
- Remove any copyright, trademark or other proprietary rights notice from the SOFTWARE or from materials originating from the SOFTWARE;
- Create a database by downloading and storing SOFTWARE content; and/or
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather SOFTWARE content or reproduce or circumvent the navigational structure or presentation of the SOFTWARE without PING’s express prior written consent.
Additionally, you acknowledge and agree that you (and not PING) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the SOFTWARE, and for paying all charges related thereto.
- Software License Grant; Restrictions on Use.
The SOFTWARE is licensed, not sold, to end users. No right, title, or interest in the SOFTWARE or any downloaded materials is transferred to you as a result of any such downloading or copying. You may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in the sale of or exploit in any way, in whole or in part, any of the Software or its contents. Subject to the terms and conditions of this Agreement, we hereby agree to permit you, on a non-exclusive, revocable, non-transferable, non-sublicensable, limited basis, to install the SOFTWARE on any Apple iOS device (“Mobile Device”) that you own or control; provided that your installation and use of the SOFTWARE are solely (i) for your personal use and for non-commercial purposes; and (ii) in accordance with each of the restrictions and limitations set forth in this Agreement. Any use of the SOFTWARE in any other manner, including, without limitation, resale, transfer, medication, or distribution of the SOFTWARE, or copying or distribution of the text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the SOFTWARE is prohibited. This license does not entitle you to receive and does not obligate PING to provide hard-copy documentation, support, telephone assistance, or enhancements or updates to the SOFTWARE. If you fail to comply with any of the terms or conditions set forth in this Agreement, this Agreement (including the grant of permission to use the SOFTWARE hereunder) will automatically terminate, whereupon you will immediately (y) cease using the SOFTWARE; and (z) remove (i.e., uninstall and delete) the SOFTWARE from your Mobile Device. You are solely responsible for any violation of any applicable laws that results from your failure to abide by the terms of this Agreement. In addition, to the extent that Apple has usage restrictions on the use of apps, you agree to comply with such restrictions, and the license granted above is subject to such compliance.
Without limiting the generality of the foregoing paragraph, you shall not (i) rent, lease, timeshare, license, distribute, sublicense or otherwise transfer the SOFTWARE or any portion thereof, including its content (as a standalone product or in conjunction with other products); (ii) make copies of the SOFTWARE or any portion thereof, including its content (except as necessary to install and use the SOFTWARE in accordance with this Agreement); (iii) reverse engineer, decompile or disassemble any portion of the SOFTWARE, except where such restriction is expressly prohibited by applicable law; (iv) create derivative works of or from the SOFTWARE or any portion thereof, including its content; (v) incorporate the SOFTWARE or any portion thereof, including its content, into any product or service; (vi) use the SOFTWARE or any portion thereof, including its content, for commercial purposes; and (vii) remove, alter or obscure any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels that appear in the SOFTWARE. All rights not expressly granted to you hereunder are reserved to PING and its licensors.
- Our Proprietary Rights.
PING expressly reserves all intellectual property rights in all text, programs, products, processes, technology, content and other materials associated with the SOFTWARE. We, our affiliates, and/or our licensors and suppliers own the SOFTWARE and the information and materials made available on or through the SOFTWARE. Such information and materials are protected by copyright, trademark, patent and/or other proprietary rights and laws. Except as expressly authorized in advance by us, you agree not to reproduce, modify, rent, lease, loan, sell, distribute or create derivative works based on all or any part of the SOFTWARE or any information or materials made available through the SOFTWARE.
We and/or our affiliates, respective licensors or suppliers own the trade names, trademarks and service marks on the SOFTWARE, including without limitation “PING”, the PING logo, and any related names and marks. All trademarks and service marks on the SOFTWARE not owned by us or our affiliates are the property of their respective owners. You may not use our trade names, trademarks or service marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained herein or on the SOFTWARE should be construed as granting any license or right to use any trade names, trademarks or service marks without express prior written consent of the owner.
PLEASE NOTE THAT UNAUTHORIZED USE OF THE SOFTWARE (INCLUDING WITHOUT LIMITATION ANY SOFTWARE USED TO MAKE THE SOFTWARE AVAILABLE) MAY SUBJECT YOU TO MONETARY DAMAGES AND OTHER CIVIL AND CRIMINAL PENALTIES INCLUDING WITHOUT LIMITATION, FOR COPYRIGHT INFRINGEMENT.
- Intended Audience.
The SOFTWARE is made available from the United States, and the SOFTWARE is not intended to subject PING to the laws or jurisdiction of any state, country or territory other than those of the United States. Unless otherwise specified, materials made available through the SOFTWARE are presented solely for the purpose of providing services and promoting products available in the United States. To the extent permitted under applicable law, PING makes no, and hereby disclaims any, representations or warranties that the SOFTWARE, in whole or in part, or any products, services, or materials made available through the SOFTWARE, are appropriate or available for use in other locations. Those who choose to access the SOFTWARE from other locations do so on their own initiative and at their own risk and are responsible for compliance with local laws, rules and regulations, if and to the extent local laws, rules or regulations are applicable. We may limit the SOFTWARE’s availability, in whole or in part, to any person(s), geographic area(s) or jurisdiction(s) we choose, at any time and in our sole discretion. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Third Party Content.
- Links to or From Other Sites.
The SOFTWARE may provide links to or feeds from websites and other online resources. Except as otherwise expressly stated by PING on the SOFTWARE, PING is not affiliated or associated with the operators of any third party websites or other resources that link to or are linked from the SOFTWARE. PING expressly disclaims any responsibility for the accuracy, content, or availability of information found on third party websites or resources that link to or are linked from the SOFTWARE. We cannot ensure your satisfaction with any products or services that are available through any third party website or resource that links to or is linked from the SOFTWARE, because these third party websites and resources are owned and operated by independent entities. We do not endorse any of the products or services, nor have we taken any steps to confirm the accuracy or reliability of any of the information, made available through any third party websites or resources, and we make no representations or warranties as to the security of any information (including without limitation credit card and other personal information) that you may provide or be requested to provide to any third party, whether through such a third party website or resource, or otherwise.
YOU AGREE THAT YOUR USE OF THIRD PARTY WEBSITES AND RESOURCES AND ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, SERVICES, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH WEBSITES AND RESOURCES.
PING shall have the right, at any time and at its sole discretion, to block links to the SOFTWARE through technological or other means without prior notice.
THE SOFTWARE AND ALL GOODS, SERVICES, PRODUCTS, THIRD PARTY CONTENT (AS DEFINED IN SECTION 7), INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE, OUR AFFILIATES, AND APPLE, AND OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS AND PROVIDERS DISCLAIM ALL STATUTORY AND IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. PING, ITS AFFILIATES, APPLE, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS AND PROVIDERS MAKE NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE OR ANY GOODS/PRODUCTS, SERVICES, THIRD PARTY APPLICATIONS, THIRD PARTY CONTENT, INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE SOFTWARE WILL BE ACCURATE, RELIABLE, COMPLETE, ERROR FREE OR COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. ANY RELIANCE ON OR USE OF THE SOFTWARE OR ANY GOODS/PRODUCTS, SERVICES, THIRD PARTY APPLICATIONS, THIRD PARTY CONTENT, INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SOFTWARE SHALL BE AT YOUR SOLE RISK. WITHOUT LIMITING THE FOREGOING, PING, ITS AFFILIATES, APPLE, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS AND PROVIDERS MAKE NO REPRESENTATION OR WARRANTY (A) REGARDING THE STATEMENTS, ACTS OR OMISSIONS OF ANY THIRD PARTIES; (B) THAT THE SOFTWARE WILL BE AVAILABLE ON A TIMELY BASIS; (C) THAT ACCESS TO THE SOFTWARE WILL BE UNINTERRUPTED OR SECURE; (D) THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR (E) THAT THE SOFTWARE OR THE SERVERS OR NETWORKS THROUGH WHICH THE SOFTWARE ARE MADE AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NEITHER WE NOR APPLE SHALL HAVE ANY OBLIGATION TO FURNISH ANY MAINTENANCE AND/OR SUPPORT SERVICES WITH RESPECT TO THE SOFTWARE.
Applicable law may not allow for limitations of certain implied warranties; solely to the extent that such law applies to you, some or all of the above limitations or disclaimers may not apply to you, and you may have additional rights.
- Limitation of Liability.
YOUR USE OF THE SOFTWARE IS AT YOUR OWN RISK. IN NO EVENT SHALL PING, ITS AFFILIATES, APPLE, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, NOR FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SOFTWARE (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH YOUR USE OR RECEIPT OF ANY THIRD PARTY APPLICATIONS OR THIRD PARTY CONTENT, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES), EVEN IF PING OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. PING IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA OR FOR ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED. PING IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY, OR ANY INFRINGEMENT BY A THIRD PARTY OF ANOTHER’S INTELLECTUAL PROPERTY, PRIVACY OR OTHER RIGHTS. IN NO EVENT SHALL THE TOTAL LIABILITY OF PING, ITS AFFILIATES, APPLE, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR PROVIDERS TO YOU FOR ALL DAMAGES (INCLUDING JUDGMENTS, COSTS, EXPENSES, FEES, FINES, ATTORNEYS’ FEES, AND EXPERT WITNESSES’ FEES), LOSSES (INCLUDING LIABILITIES), AND CAUSES OF ACTION (INCLUDING CLAIMS) (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING FROM OR RELATED TO THIS AGREEMENT, THE SOFTWARE, OR YOUR USE OF OR INABILITY TO USE THE SOFTWARE EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING OR ACCESSING THE SOFTWARE.
IN THE EVENT OF ANY FAILURE OF THE SOFTWARE TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY WISH TO CONTACT APPLE TO DETERMINE ITS APPLICABLE REFUND POLICY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE SOFTWARE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, APPLE WILL BE RESPONSIBLE FOR NO OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY. NOTHING HEREIN CREATES OR IMPOSES ANY OBLIGATIONS ON APPLE, OR IMPLIES THAT APPLE HAS ANY OBLIGATIONS, WITH RESPECT TO THE SOFTWARE. FOR CLARITY, UNLESS APPLE HAS EXPRESSLY AGREED OTHERWISE, APPLE SHALL NOT BE RESPONSIBLE FOR ADDRESSING ANY CLAIMS RELATING TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE SOFTWARE FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION. IN NO EVENT WILL PING, ITS AFFILIATES, APPLE, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR PROVIDERS HAVE ANY RESPONSIBILITY TO YOU IN RESPECT OF ANY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS RELATING TO THE SOFTWARE (OR ANY PORTION THEREOF) OR YOUR USE OF THE SOFTWARE.
Applicable law may not allow for exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above exclusions or limitations may not apply to you, and you may have additional rights. For example, in some jurisdictions, an application provider may not exclude or limit liability for personal injury or death directly resulting from the use of such provider’s application or such provider’s negligence.
Except to the extent prohibited under applicable law, you will, at your own expense, defend, indemnify and hold harmless PING, its affiliates, and its and their respective directors, officers, employees, agents, representatives, licensors or providers from and against any and all allegations, claims, actions, demands, causes of action, and other proceedings (“Claims”) arising from or related to any of the following: (a) your use, download, or installation of, inability to use, or activities in connection with the SOFTWARE; (b) any violation of this Agreement or any other PING terms, conditions, or policies by you; or (c) your violation of any rights of any SOFTWARE user, customer or other third party; and you agree to reimburse PING, its affiliates and its and their respective directors, officers, employees, agents, representatives, licensors or providers on demand for any damages, losses, liabilities, expenses, costs, judgments, fees, fines and other expenses they incur (including attorneys’ fees and court costs) as a result of any such Claim(s).
- Termination and Enforcement.
This Agreement is effective until terminated. You agree that PING, at its sole discretion, may suspend, restrict or terminate your access to or use of the SOFTWARE, at any time and for any reason, including without limitation if PING believes that you have violated or acted inconsistently with the letter or spirit of this Agreement (including without limitation your failure to comply with the rules of conduct set forth in Section 3 above and the software licensing restrictions set forth in Section 4 above), subject to any restrictions placed on PING’s exercise of such rights under applicable law. Upon any such termination, your right to use the SOFTWARE will immediately cease. You agree that any suspension, restriction or termination of your access to or use of the SOFTWARE may be effected without prior notice and that PING may immediately deactivate or delete any user name and/or password used by or provided to you, and all related information and files associated therewith, and/or bar any further access to such information or files. You agree that PING shall not be liable to you or any third party for any suspension, restriction or termination of your access to the SOFTWARE or to any such information or files, and shall not be required to make such information or files available to you after any such termination, suspension or restriction. PING reserves the right to take steps that PING believes are necessary or appropriate to enforce and/or verify compliance with this Agreement (including without limitation in connection with any legal process relating to your use of the SOFTWARE and/or a third party claim that your use of the SOFTWARE is unlawful or violates such third party’s rights). Sections 1 and 4-21 of this Agreement shall survive any expiration or termination of this Agreement.
- Claims of Copyright Infringement.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials made available on or accessible through the SOFTWARE infringe your copyright, you (or your agent) may send PING a notice requesting that PING remove or block the materials or disable access to them. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send PING a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices should be sent to Legal Department, PING, Inc., 2201 West Desert Cove Avenue, Phoenix, AZ 85029; or email@example.com. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, please be aware that there are penalties for false claims under the DMCA.
- Improvements; Feedback.
You shall, and hereby do, assign to PING your entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Application which you may propose or make at any time (“Improvements”). You shall, and hereby do, assign to PING your entire right, title and interest in any suggestions, comments and feedback you provide to PING regarding the SOFTWARE, including but not limited to its usability, bug reports, and testing results (collectively, “Feedback”). PING may use and otherwise exploit the Feedback and Improvements as it wishes with no compensation to you. In the event that any of your rights with respect to any Improvement or Feedback are not fully assignable or otherwise transferable to PING for any reason whatsoever, you shall, and hereby do, grant to PING an exclusive (including with regard to you and your affiliates), irrevocable, perpetual, royalty-free, fully paid-up worldwide license in and to all of your rights with respect to such Improvement or Feedback and all intellectual property rights therein. You shall notify PING of any Improvement within a reasonable time after its development and provide PING with access to all information concerning such Improvement as PING shall reasonably request.
- Governing Law; Dispute Resolution.
You hereby agree that this Agreement (and any claim or dispute arising in connection with this Agreement or your use of the SOFTWARE) is governed by and shall be construed in accordance with the laws of the State of Arizona, U.S.A., without regard to its principles of conflicts of law, and you consent to the exclusive jurisdiction of the federal and state courts located in Maricopa County, Arizona, U.S.A., and waive any jurisdictional, venue or inconvenient forum objections thereto. You further agree that the United Nations Convention on the International Sale of Goods does not apply to this Agreement.
Pursuant to 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the following website: OnGuard Online (http://onguardonline.gov/). Note that PING does not endorse, support or approve any of the products or services listed at such website.
- Information or Complaints.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the SOFTWARE, please feel free to contact us via e-mail at firstname.lastname@example.org. E-mail communications are not necessarily secure, so please do not include credit card information or other sensitive information in any e-mail to us. You may also contact us by phone at (602) 687–5000 or by writing to us at PING, Inc., 2201 West Desert Cove Avenue, Phoenix, AZ 85029. California residents may reach the Complaint Assistance Unit of the Department of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445–1254 or (800) 952–5210.
- Equitable Relief.
You agree that any use of the SOFTWARE in breach of this Agreement will cause PING irreparable harm for which monetary damages is not an adequate remedy; in such event, PING will be entitled to injunctive or other equitable relief in any court of competent jurisdiction without prejudice to any other right or remedy and without posting a bond or proving actual damages.
- U.S. Government.
The SOFTWARE is a “commercial item” as that term is defined at FAR 2.101 (Oct 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with FAR. 12.212 and DFARS 227.7202 (Jun 1995), all U.S. Government End Users acquire the SOFTWARE with only those rights set forth herein.
The SOFTWARE and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required.
If any provision of this Agreement shall be deemed to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and PING. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This Agreement, together with all agreements and statements referred to herein and incorporated herein by reference, is the entire agreement between you and PING relating to the subject matter hereof and, except as otherwise provided herein, supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and PING relating to such subject matter. Notices to you may be made by posting a notice (or a link to a notice) to the SOFTWARE, by email, or by regular mail, at PING’s discretion. Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Except as expressly set forth in the following sentence, nothing in this Agreement, express or implied, is intended to or shall confer on any person (other than the parties and their respective successors or permitted assigns) any rights, remedies, obligations or liabilities. Notwithstanding the previous sentence, you agree that Apple is a third-party beneficiary under this Agreement, and, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary hereof. Notwithstanding the immediately preceding sentence, our right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party. You acknowledge and agree that if any of the terms and conditions of this Agreement are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement, the terms and conditions of Apple’s instructions for Minimum Terms of Developer’s End User License Agreement shall apply.