Gogh is willing to make the APP available to You only on the condition that You accept and comply with all of these Terms. By downloading, purchasing, accessing or otherwise using the APP, You acknowledge that You have read these Terms, understand these Terms and agree to be bound by these Terms. If You do not agree to any of these Terms, Gogh is unwilling to make the APP available to You and, therefore, You must immediately cease all use of the APP.
The APP is licensed, not sold, to You for use only under the terms of these Terms. We reserve all rights not expressly granted to You hereunder, including all ownership rights in and to the APP.
You acknowledge that these Terms are entered into solely by Gogh and You only, and not with the third-party host or provider of any software application store, online marketplace or other such program or website through which the APP may be accessed (the “Online Store”). Gogh and You are solely responsible for and entitled to the respective obligations and rights set forth herein.
In the case of inconsistencies between these Terms and information included in other materials (e.g., promotional materials and mailers), these Terms will always govern and take precedence.
- Consent to Use of Data. You agree that we may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the APP. You agree that we may use this information as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.
- Term and Termination. These Terms are effective once You download, access or use the APP in the first instance and will remain in effect every time and for so long as you use or otherwise access the APP. Your rights under these Terms are on a month-to-month basis depending upon your payment of any applicable charge. Additionally, we reserve the right to automatically terminate your access to the APP without notice from us if You fail to comply with any of these Terms. Upon termination of these Terms, the License granted to You automatically terminates and You must cease all use of the APP, and destroy all copies, full or partial, of the APP.
- Third-Party Materials. You acknowledge that APP may display, include, link to or otherwise make available third-party websites, content, data, marketing or other materials (“Third-Party Materials”). By using the APP, to the fullest extent of the law You acknowledge and agree that we are not in any event whatsoever responsible for examining, evaluating, screening, removing or changing the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials. We do not warrant or endorse and we do not assume and will not have any liability or responsibility to You or any other person for any Third-Party Materials.
- You agree that the APP contains proprietary content, code, information and materials (excluding Your user content, the “Content”) that is protected by Applicable intellectual property and other laws, including but not limited to copyright, and that You will not use, share or otherwise exploit such Content in any manner not permitted by the License or by Applicable laws or regulations. No portion of the Content may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Content, in any manner, and You shall not exploit the Content in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Content or Your own user content in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using the APP or Content.
- APP Updates, Changes, Limits, Removal. We do not have any obligation to fix, correct, update, maintain or otherwise support the APP at any time for any reason. All updates, bug fixes or other changes to the APP are made at our sole discretion (or as required by Applicable law). We reserve the right to change, suspend, remove or disable access to any APP at any time without notice. We may also impose limits on the use of or access to APP, in any case and without notice or liability. In no event will we be liable for the removal of or disabling of access to any such APP, or for any other defect in the APP, except for refunds to paying customers pursuant to the Usage Rules or other Online Store host policies.
- NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND ANY FUNCTIONS PERFORMED OR PROVIDED BY THE APP ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND GOGH HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND ANY CONTENT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, GOGH DOES NOT WARRANT (A) AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, (B) THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APP WILL MEET YOUR REQUIREMENTS, (C) THAT THE OPERATION OF THE APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (D) THAT DEFECTS IN THE APP OR CONTENT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GOGH OR OUR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APP OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. In the event of any failure of the APP to conform to any Applicable legally required warranty that cannot be disclaimed by us, You may notify Online Store host, and Online Store host may refund the purchase price for the APP to You, if applicable; and that, to the maximum extent permitted by Applicable law, Online Store host will have no other warranty obligation whatsoever with respect to the APP, and Online Store host will have no responsibility for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
- Complaints; Claims. You acknowledge that we are solely responsible for addressing any complaints or claims of Yours or any third-party relating to the APP or Your possession and/or use thereof 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.
- Intellectual Property Infringement. In the event of any third-party claim that the APP or Your authorized possession and use of the APP infringes that third-party’s intellectual property rights, we will be solely responsible for any investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by Applicable law.
- Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL GOGH BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF GOGH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Gogh’s total liability to You for all damages (other than as may be required by Applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will Apply even if the above stated remedy fails of its essential purpose.
- Legal Compliance. You may not use or otherwise export or re-export the APP except as authorized by U.S. law and the laws of the jurisdiction in which the APP was obtained. In particular, but without limitation, the APP may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the APP, you represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use these products for any purposes prohibited by U.S. law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
- Commercial Item. The APP and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as Applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as Applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the U.S.
- Age Requirement; Parental Consent. You must be at least 13 years of age to use or download and use the APP. If you are at least 13 but not yet 18 years of age, you must have your parent or legal guardian review These terms with You. NOTICE TO PARENTS AND GUARDIANS: You are responsible for your child’s download and use of the APP and compliance with these Terms. If you do not agree to these Terms, you must disable your child’s access to and use of the APP immediately.
- Applicable Law and Jurisdiction. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the APP or the Service must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred. The laws of the State of Florida, U.S.A., excluding its conflicts of law rules, govern these Terms and Your use of the APP. Your use of the APP may also be subject to other local, state, national, or international laws. You agree to personal jurisdiction by and venue in the state and the federal courts in Jacksonville, Florida, U.S.A.
- Enforcement Costs. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to reimbursement of its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the other party.
- Force Majeure. Gogh will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond Gogh’s reasonable control.
- Waiver. The failure of Gogh to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by Gogh in writing.
- Contact Information. If You have any questions, complaints or claims with respect to the APP, You may contact us at: [email protected]
- Inappropriate Content. When accessing the APP, You agree not to upload, display, transmit or otherwise distribute any content that: (a) is libelous, defamatory, obscene, abusive or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or foreign law or regulation; (c) advertises or otherwise solicits funds or is a solicitation for goods or services. We reserve the right to delete any such material from the APP or our servers.
- Construction. The headings of Sections of these Terms are for convenience and are not to be used in interpretation.
- Customers Needing Assistance. Gogh aims to provide full access to its APP regardless of limitation or disability. If you are unable to read any part of these Terms or the APP, or otherwise have difficulties using the APP, please call (___)-____-______ and our customer service care team will assist you.
- Age of Consent. Minors under the age of 18 are not eligible to use the APP.
- Entire Agreement. These Terms, together with any Usage Rules, constitute the entire agreement between You and Gogh with respect to Your use of the APP, superseding any prior agreements or discussions between You and Gogh regarding the use of the APP. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, You and Gogh nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.