Thank you for your interest in this personal shopping assistant application for your mobile device (the "App"
) provided to you by Signature Labs, Inc. ("Signature"
), which provides certain functionality to enhance your shopping experience at certain retailers with whom Signature has a relationship (each, a "Retailer"
). (The App and any other services provided by Signature in connection with the App are collectively referred to herein as the "Service"
.) The Service enables you to have a unique and personalized shopping experience and build relationships with sales associates at our partner retail stores. This EULA (available through the App's Settings menu), as updated from time to time, governs your use of the Service. You may also request a copy of this EULA by emailing us at firstname.lastname@example.org
By downloading, installing, or otherwise accessing or using the App or the Service, you agree that you have read, understood, and agree to be bound by this EULA. If you do not agree, you may not use the App or the Service.
You acknowledge and agree that, as provided in greater detail below in the EULA:
- the App is licensed, not sold to you, and that you may use the Service only as set forth in this EULA;
- the use of the Service may be subject to separate third party terms of service and fees (including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the "Carrier")), which are your sole responsibility;
- the Service is provided "as is" without warranties of any kind and Signature's liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration, and by accepting this EULA you and Signature are each waiving the right to a trial by jury or to participate in a class action;
- the App requires access to the following services on your mobile device: UDID, MAC address, or other applicable device identifier, phone state and identity, internet, SMS/MMS messaging, and location; and
- if you are using the Application on an iOS-based device, you agree to and acknowledge the "Notice Regarding Apple", below.
THE SERVICE IS AVAILABLE ONLY TO USERS WHO ARE AT LEAST 18 YEARS OLD. THE SERVICE IS NOT AVAILABLE TO ANY USERS SUSPENDED OR REMOVED FROM THE SERVICE BY SIGNATURE. BY USING THE SERVICE, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE.
Subject to your complete and ongoing compliance with all the terms and conditions set forth in this EULA (including without limitation payment of any applicable fees), Signature grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Signature or from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control, and (2) permission to access and use the Service, only for your personal use, and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security, or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by Signature (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.
USE OF THE APP AND THE SERVICE – THIRD PARTY TERMS AND FEES
You are solely responsible for your use of the Service on your mobile device, including without limitation compliance with these and any applicable third party terms, and payment of any applicable third party fees. Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier. If your device is lost or stolen, you must notify Signature immediately to suspend services.
Some of the features of the Service may enable Signature to access your location in order to tailor your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your mobile phone, such as GPS, Wi-Fi, and Bluetooth, which enable Signature to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. To the extent your location is collected through Wi-Fi or Bluetooth sensors, such sensors, and the associated data services, may be provided by a third party, and you agree and acknowledge that such third party may access such information for the purpose of providing such data services to Signature. You will be given the option to automatically enable the provision of some Location-based Services through the App, and to enable or disable such Location-based Services at any time through the App’s Settings menu. Note however, that while certain Location-based Services may not be disabled, such as the detection of your visits to Retailer locations, you will have the option to disable the Service from providing real-time notifications of such visits to in-store Retailer personnel. If you choose to disable any Location-based Services on your device and/or opt out of any Location-based Services through the App’s Settings menu, you will not be able to utilize certain features of the Service. By enabling Location-based Services on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the Service, (ii) Signature may provide Location-based Services related to and based on your then-current location, and (iii) Signature may use any such information collected in connection with the provision of Location-based Services in connection with its provision of the Service, including to notify Retailer personnel when you have entered the Retailer’s location(s), and to provide the Retailer with reports on your visits and interaction in the Retailer’s location(s). PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND SIGNATURE DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.
RESERVATION OF RIGHTS
The Service, including the App, is owned and operated by Signature. The App, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service (the “Signature Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Signature, all Signature Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of Signature or its subsidiaries or affiliated companies and/or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the Signature Materials except as expressly authorized hereunder. Signature reserves all rights not expressly granted in this EULA. You shall not acquire any right, title or interest to the Signature Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
If you provide Signature with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Service (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Signature shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Service. You hereby grant Signature a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose.
TERM AND TERMINATION
This EULA will remain in effect until terminated. The EULA, and your rights and licenses hereunder, will terminate immediately upon your breach of the EULA. You may terminate the EULA by uninstalling the App and ceasing all use of the Service. Signature may terminate the Service and/or this EULA at any time for any reason, including without limitation any actual or suspected misuse or abuse by you of the App or the Service. Sections 7, 10, 12, 13, 14, 16, and 17 shall survive any termination of this EULA.
Signature reserves the right, in its sole discretion, to change, modify, add, or remove portions of this EULA at any time by making such modified EULA available to you through the App. The EULA will be identified as of the most recent date of revision and will be effective immediately upon being made available through the App, except as follows: a) in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the email address you have provided to Signature, if any, or through a pop-up window or other notification when you access or use the App or the Service, b) such materially modified EULA will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you, and c) no modifications to this EULA will apply to any dispute between you and Signature that arose prior to the date of such modification. Your use of the Service after modifications to the EULA become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of the EULA or any modifications thereof, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
THE APP AND THE SERVICE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIGNATURE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. SIGNATURE EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPCT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. SIGNATURE FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE. UNDER NO CIRCUMSTANCES WILL SIGNATURE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF THE USE OR INABILITY TO USE THE APP OR THE SERVICE, EVEN IF SIGNATURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL SIGNATURE’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS EULA OR THE TERMS EXCEED THE GREATER OF AMOUNTS PAID BY YOU FOR THE APP OR FIFTY DOLLARS ($50 USD). SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH AN EVENT THE ABOVE LIMITATIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
You agree to indemnify, defend and hold Signature and its affiliates, officers, directors, suppliers, licensors, and other customers harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of your use or misuse of the App and the Service, and your violation of this EULA, any applicable law or regulation, or the rights of any third parties related to the use of the Service.
Disputes arising between you and Signature hereunder shall be resolved in accordance with the following:
. In the interest of resolving disputes between you and Signature in the most expedient and cost effective manner, you and Signature agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this EULA. You understand and agree that, by entering into this EULA, you and Signature are each waiving the right to a trial by jury or to participate in a class action.
. Notwithstanding the contents of Section 14.a above, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
. Any arbitration between you and Signature will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Signature.
. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Signature's address for Notice is: Signature Labs, Inc., 330 Townsend St., Suite 204, San Francisco, California 94107. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Signature may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Signature shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Signature shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Signature in settlement of the dispute prior to the arbitrator’s award.
. In the event that you commence arbitration in accordance with this EULA, Signature will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Signature for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions
. YOU AND SIGNATURE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Signature agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
. In the event that Signature makes any future change to this arbitration provision (other than a change to the Signature's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Signature's address for Notice, in which case your account with Signature shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
. If only of the subsection (f) of this Section 14, or the entirety of this Section 14 is found to be unenforceable, then the entirety of this Section 14 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 16, below, shall govern any action arising out of or related to this EULA.
THIRD PARTY SOFTWARE
The App may be distributed alongside certain third party software ("Third Party Software") provided under separate license terms (the "Third Party Terms"), as set forth in more detail via the App’s Help menu. Your use of such Third Party Software in conjunction with the App in a manner consistent with the terms of this EULA is permitted; however, you may have broader rights under the applicable Third Party Terms and nothing in this Agreement is intended to impose further restrictions on your use of the Third Party Software.
GOVERNING LAW; VENUE
This EULA, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents, and without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Signature agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California or the Northern District of California for the purpose of litigating all such claims or disputes.”
This EULA is the entire agreement between you and Signature, and supersedes any and all prior agreements, negotiations, or other communications between you and Signature, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties. In the event that any provision of this EULA is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this EULA; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby. You may not assign this EULA without the prior written consent of Signature, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Signature may assign this EULA without restriction and without any notice to you. Subject to the foregoing, this EULA shall be binding on the parties and their respective successors and permitted assigns. You acknowledge and understand that if Signature is unable to provide the Service as a result of a force majeure event Signature will not be in breach of this EULA. A force majeure event means any event beyond the control of Signature. The failure to exercise, or delay in exercising, a right, power or remedy provided in this EULA or by law shall not constitute a waiver of that right, power or remedy. Signature’s waiver of any obligation or breach of this EULA shall not operate as a waiver of any other obligation or subsequent breach of the EULA. The English language version of this EULA shall be the official and controlling version, and any translation provided is solely for convenience.
NOTICE REGARDING APPLE
You acknowledge that this EULA is between you and Signature only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance 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 of this EULA. You hereby 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.
The App and the Service are offered by Signature Labs, Inc.: 330 Townsend St., Suite 204, San Francisco, California 94107; email@example.com
Last Revised: February 9, 2012