Software Agreement

IMPORTANT!  PLEASE READ CAREFULLY. By using your Gemio Band and/or the services provided through the website and our applications (the “Services”), you are agreeing to be bound by the terms and conditions of this end-user license agreement (“EULA”), a legally binding agreement between you (a single natural person, hereinafter referred to by the term “You”) and Loop Devices, LLC (“Gemio”), with regard to the copyrighted software embedded in your Gemio Band, the Gemio mobile applications, Gemio applications accessed through a Gemio website, and otherwise accessible via the Services (collectively, the “Software”).

 

PLEASE READ THIS EULA CAREFULLY BEFORE USING THE YOUR GEMIO BAND, DOWNLOADING THE SOFTWARE, OR ACCESSING OR USING THE SERVICES. BY DOING ANY OF THE FOLLOWING, IN ANY FORM OR MEDIA, YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS EULA AND THAT YOU AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE OR DO NOT WISH TO BECOME A PARTY TO THIS EULA, YOU SHOULD NOT USE YOUR GEMIO BAND, INSTALL OR USE THE SOFTWARE, OR ACCESS THE SERVICES. IF YOU DO NOT AGREE WITH THIS EULA AND DO NOT WISH TO BECOME A PARTY TO THIS EULA, YOU MAY RETURN YOUR GEMIO BAND, WITHIN THE RETURN PERIOD, IN ACCORDANCE WITH THE RETURN POLICY.

THE “EFFECTIVE DATE” FOR THIS EULA IS THE FIRST DAY YOU USE YOUR GEMIO BAND, DOWNLOAD THE SOFTWARE, OR ACCESS OR USE THE SERVICES.

 

SOFTWARE

The Software is licensed, not sold. You acknowledge that no title to the intellectual property in the Software is transferred to you. You further acknowledge that title and full ownership rights to the Software, any Updates (defined below), and any other proprietary materials of Gemio including any intellectual property rights, will remain the exclusive property of Gemio and/or its suppliers, and you will not acquire any rights to the Software, except for the limited license as expressly set forth above.  All rights not granted to you under this EULA are expressly reserved for Gemio. You acknowledge that the Software, the code of the Software and the documentation contain valuable proprietary information and trade secrets of Gemio and that unauthorized or improper use of the Software and the documentation will result in irreparable harm to Gemio for which monetary damages would be inadequate and for which Gemio will be entitled to immediate injunctive relief.

Gemio grants to you a limited, personal, non-transferable and non-exclusive right to download and use the Software, in object code form only, solely as embedded in your Gemio band and accessible via the Services, and only for your own personal, non-commercial use in conjunction with your Gemio band or bands. You agree you will not copy the Software.

Gemio may modify, update, delete or replace the Software or any feature or functionality contained therein (“Updates”) in its sole discretion at any time without notice to you.  The terms of this EULA govern any and all Updates provided to you, unless the Update is provided with a separate agreement, in which case that agreement will govern with respect to the Update only.

Title and full ownership rights, including intellectual property rights, in and to any content displayed by, stored on or accessed through your Gemio band belong to the content owner. This EULA does not grant you any rights to use such content nor does it guarantee that such content will be or remain available to you.  Any such content may be protected by intellectual property laws and may be subject to further license terms from the applicable third party.  Gemio is not responsible or liable for any third party content that may be accessible to you through your use of the Software, Services, or Gemio band.  

You agree to use the Software, Services, and Gemio band in compliance with all applicable laws.  You agree to the terms of the Gemio Privacy Policy, which is incorporated into this EULA by reference. You acknowledge and agree that Gemio shall have the right to copy, use, distribute, and display any information, analysis, statistics and other data generated by the Software or Service (or derived from Your use of the Software or Service), including compilation of aggregated statistics about the Gemio band, Software or Service or online marketing, subject to the terms of the Gemio Privacy Policy.  

Certain features and functionality may vary and/or not be available in all languages or geographic areas or may be used for private purposes only.

 

RESTRICTIONS

This license does not allow you to use the Software or Services on any computer or device that you do not own or control, and you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. You may not, and you may not permit others to: (i) modify, translate, decompile, bootleg, reverse engineer, disassemble, decrypt, attempt to derive the source code or extract the inner workings of the Software any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law), (ii) copy the look-and-feel or functionality of the Software; (iii) remove any proprietary notices, marks, labels, or logos from the Software and/or the documentation; (iv) rent, lease, lend, sell, redistribute, sublicense or transfer all or some parts of the Software; (v) create derivative works of the Software or (vi) utilize any computer software or hardware which is designed to defeat any copy protection device, should the Software be equipped with such a protection device. Any attempt to do so is a violation of the rights of Gemio and its licensors. You shall not export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped or diverted, directly or indirectly, the Software under this EULA. If you breach the restrictions set forth in this Section, this EULA and the license granted hereunder will automatically terminate and you may be subject to prosecution and damages.

You are responsible for all activities conducted with your Gemio band and through your user account. You are solely responsible for all of your content.  Gemio does not guarantee the accuracy, integrity or quality of your content. You will not use the Software or Services to: (a) send, upload or otherwise transmit any content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any content that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Services or the Software or networks connected to the Services or the Software; or (e) violate any applicable law or regulation.

 

THIRD PARTY MATERIALS

You acknowledge and agrees that certain third party software and applications (such as social media applications) (“Third Party Materials”) may be accessible to you via the Services, for use in combination with the Software and your Gemio band. Such Third Party Materials are distributed to You solely under the terms set forth in the respective license agreements associated with the provider of such Third Party Materials, and not Gemio. You acknowledge and agree that this EULA in no way supplements or detracts from any term or condition in any such third party license agreement. Gemio makes no warranty and assumes no liability with respect to any such Third Party Materials or Your use thereof.

You acknowledge and agree that the Software may contain certain embedded third party products and open source code.  Open source code licenses governing any open source contained within the Software are contained in the documentation.

 

DISCLAIMER OF WARRANTY

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY AND PERFORMANCE IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, AND GEMIO HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND THE SERVICES, 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. GEMIO DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICES WILL MEET YOUR REQUIREMENTS. GEMIO DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE SOFTWARE OR THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GEMIO SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.  GEMIO IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE SOFTWARE OR SERVICES.

Your limited warranty for the Gemio band can be found here.

 

LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL GEMIO BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING (WITHOUT LIMITATION): LOSS OF PROFITS, LOSS OF DATA, DAMAGES RESULTING FROM FAILURE TO RECEIVE OR TRANSMIT DATA, OR INACCURATE DATA OR ANY OTHER COMMERCIAL OR BUSINESS-RELATED DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE OR THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF GEMIO 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 Gemio’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed $200. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

 

INDEMNIFICATION

If you distribute or otherwise use the Software or Services in violation of this Agreement, you agree to indemnify, hold harmless and defend Gemio and its suppliers from and against any claims or lawsuits, including attorney’s fees that arise or result from such use or distribution of the Software or Services in violation of this Agreement.

 

TERMINATION

The license is effective until terminated by You or Gemio. Your rights under this license will terminate automatically without notice from Gemio if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Software and Services, and destroy all copies, full or partial, of the Software and Services. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this EULA.

 

MISCELLANEOUS

This EULA shall be governed by and construed in accordance with the laws of the State of Washington, USA without regard to its conflict of law provisions. The United Nations Convention for the International Sale of Goods shall not apply.  Your use of the Software and Services may be subject to other state, federal, and international laws and regulations. You will use the Software, the Services and the Gemio band in compliance with all export laws and regulations of the United States, and any other applicable export laws.  This EULA is written in English, and shall control over any translated version. The section headings herein are provided for convenience only and have no substantive effect on the construction of this EULA. This EULA represents the entire agreement between you and Gemio relating to the Software and Services and supersedes all prior or contemporaneous understandings regarding such subject matter. Gemio shall not be liable for any failure to perform due to causes beyond its reasonable control. If any provision of this EULA is held to be unenforceable, this EULA shall be construed without such provision. The failure by Gemio to exercise any right hereunder shall not operate as a waiver of Gemio’s right to exercise such right or any other right in the future. This Agreement may be amended by Gemio from time to time, in its sole discretion, without prior written notice to You. You agree that any notices provided to you by Gemio via email or electronically through the Services will satisfy any legal communication and notice requirements.