END USER LICENSE AGREEMENT
END USER LICENSE AGREEMENT
This End User License Agreement (hereinafter referred to as this “Agreement”) is a legal agreement between you (hereinafter referred as the “User”) and Pikky Technologies Incorporated (hereinafter referred to as“Pikky”) having its address at 3842 cardinal terrace, Fremont, CA 94555 United States, related to your use Pikky (Pikky.io) (hereinafter referred to as the “Mobile Application”) associated with this Agreement. You undertake that, by downloading the Mobile Application and signing up, will be bound by this Agreement. If you do not agree to bound by this Agreement, you will not be able to use the Mobile Application and you should exit the Mobile Application immediately. If the person accepting this Agreement does so on behalf of a User which is a juristic person, the person accepting this Agreement confirms that it is authorized to enter into this Agreement on the User’s behalf and to bind the User to its terms and conditions.
Pikky license the use of the Mobile Application to you under this Agreement subject to any rules or policies applied by any Application Store or Operator used by the User to download the Mobile Application. Pikky does not sell the Mobile Application or Documents to you. Pikky remains the owner of the Mobile Application and Documents at all the times.
1. DEFINITIONS AND INTERPRETATIONS
1.1
“Agreement” means and refers to this Agreement whether in its original form or as from time to time added to varied or amended.1.2
“Licensee” means an individual or a legal entity entering and exercising rights under this Agreement. For the purpose hereunder, Licensee includes any entity that has acquired a license to the Mobile Application under this Agreement.1.3
“Non-Commercial Use” means use or activity where a fee is not charged and the purpose is not the sale of a good or service, and the use or activity is not intended to produce a profit, such use may be personal use.1.4
Save as otherwise provided in this Agreement(a)
a reference to a party includes its executors, administrators, successors and permitted assigns;(b)
headings are for ease of reference only and do not affect the interpretation or meaning of this Agreement;(c)
the singular includes the plural and vice versa and words importing a gender include other genders;(d)
other grammatical forms or parts of speech of defined words or phrases have corresponding meanings;(e)
a reference to a clause, paragraph, exhibit, schedule or other annexure is a reference to a clause or paragraph of or exhibit, schedule or annexure to this Agreement;(f)
the words “include”, “including”, “such as” and similar expressions are not used as, nor are intended to be, interpreted as words of limitation; and(g)
the meaning of this Agreement will be interpreted based on its entirety and not just on isolated parts.2. LICENSE AND GENERAL USE RESTRICTIONS
2.1
Pikky hereby grants to the User a limited, non-exclusive, non-transferable, revocable, free of charge license to use the Pikky (pikky.io) for Non-Commercial Use on any user device running a Mobile Platform that the User owns or controls (“Mobile Device”); provided that the User shall not copy, reproduce, issue, make available to the public, or distribute copies of the Mobile Application or use the Mobile Application outside the Permitted Territory. For clarity, the license does not include any right to copy, reproduce, issue, make available to the public, or distribute copies of the Mobile Application, to use the Mobile Application for the benefit of any third party or to monetize use of the Mobile Application. It is agreed that any access to the Mobile Application or the services accessible through the Mobile Application by automated devices, robots, or repetitive data gathering and extraction tools, routines, scripts or other mechanisms with similar functionality is expressly prohibited. User agrees not to associate, input or upload to or through any Mobile Application any virus, Trojan horse, worm, time bomb or other computer programming routines (i) that is intended to damage, interfere with, intercept or expropriate the Mobile Application or any system or technology associated with it or (ii) that infringe the intellectual property rights of another. Pikky may modify the Mobile Application at any time for any reason and may provide modified, updated and upgraded versions of the Mobile Application to the User at Pikky’s discretion. Unless such modified, updated or upgraded versions of the Mobile Application are delivered with different applicable license terms, such modified, updated and upgraded versions of the Mobile Application will be considered to be the Mobile Application under this Agreement and User’s use thereof shall be subject to this Agreement.2.2
User must comply with all applicable third-party terms of the agreement when using the Mobile Application. User’s use of the Mobile Application shall not violate the terms of User’s wireless data services agreement for the applicable Mobile Device.2.3
The User agrees that Pikky may audit or probe the User’s use of the Mobile Application to ensure compliance with this agreement at any time. In the event that such an audit or probe reveals any use of the Mobile Application by the User in non-compliance with the terms of this agreement, Pikky may terminate this agreement with the User and such User shall be liable to damages in favour Pikky caused in lieu of such non-compliance to the agreement.3. MOBILE PLATFORMS
3.1
The Mobile Application shall only be used on a permitted mobile platform (“Mobile Platform”). The approved Mobile Platforms are Apple Inc.’s (“Apple”) iOS and Google Inc.’s (“Google”) Android.3.2
If you use the Mobile Application on a Mobile Device running iOS, then you shall only use the Mobile Application on your Mobile Device as such Mobile Device is permitted to be used by the Usage Rules set forth in the Apple App Store Terms of Service. Pikky, not Apple, is solely responsible for the Mobile Application and any information or content received through the Mobile Application or the services accessible through the Mobile Application.3.3
If you use the Mobile Application on a Mobile Device running Android, then notwithstanding anything to the contrary in this Agreement, if you use the Mobile Application on a Mobile Device running Android, each User hereby acknowledges and agrees that (i) the Mobile Application relies in part on functionality provided by Google (the “Google Functionality”), (ii) any information provided by such User via the Mobile Application may be shared with Google in connection with such User’s use of the Google Functionality and (iii) all such information shall be handled by Google in accordance with the then current Google Privacy Policy (currently available at http://www.google.com/policies/privacy), as may be amended by Google from time to time).4. UPDATES
4.1
Pikky will ensure on-going development of the Mobile Application, including correction of errors and in nature of that, at the discretion of Pikky, to change the Mobile Application with the aim of making the Mobile Application compatible with new versions of third-party devices.4.2
The User acknowledges that updates to the Mobile Application is subject to the compatibility of the Mobile Application with the User’s hardware, add-ons, third-party software, or custom fit adjustments or modifications.4.3
The use of updates is the sole responsibility of the User, and the User should install, test and ensure the compatibility of the same with the mobile device at its own risk.5. ASSIGNMENT
5.1
The User is not entitled to lend, lease, sublicense, transfer, or otherwise assign its rights and obligations given under this Agreement without Pikky’s prior written consent. Any assignment shall not be legal without Pikky’s prior written consent.5.2
If the User assigns the Mobile Application in conflict with this clause of the agreement, Pikky may terminate this Agreement with immediate effect as per the agreement.5.3
Pikky may at any time in full or in part assign its rights and obligations under this Agreement to any third party.6. TERM AND TERMINATION
This Agreement shall become effective upon a User’s acceptance hereof by downloading the Mobile Application and signing up and shall remain in full force and effect thereafter until terminated as provided herein under this Agreement. User may terminate this Agreement for convenience at any time by deleting the Mobile Application from all Mobile Devices that User owns or controls. Pikky may terminate this Agreement without any cause at any time upon written notice to the User through email. Notwithstanding the foregoing, with respect to any User, this Agreement shall terminate without any further action by Pikky (1) upon a breach by such User of the “Intellectual Property” and/or “Tracking” clauses of this Agreement; (2) in the event of such User’s bankruptcy, commencement of bankruptcy, corporate reorganization or any other insolvency proceeding with respect to such User, or if such User shall have a receiver, administrator, administrative receiver or liquidator appointed or shall pass a resolution for winding up, or a court shall make an order to that effect; or (3) if such User is a partner in a partnership firm and such partnership firm is dissolved. Upon the termination of this Agreement for any reason whatsoever all rights granted hereunder shall immediately terminate and the affected User shall immediately cease and desist from all access to and use of the Mobile Application and shall immediately remove from such User’s mobile devices all copies of the Mobile Application. The terms set forth in the following paragraphs of this Agreement shall survive the termination of this Agreement for any reason: “Intellectual Property”; “Tracking”; “Information Received by Pikky”; “Warranty/Disclaimer of Warranties”; “Limitation of Liability”; “Governing Law and Jurisdiction”, “Enforceability” and “Entire agreement/Third Party Beneficiary.”
7. CHANGES TO ACCESSIBLE SERVICES; SUSPENSION AND TERMINATION OF RIGHTS
Pikky may, at any time, change, update, modify, or terminate any service that may be accessed through the Mobile Application including, without limitation, to improve a service or its functionality; add or remove access to a service; improve ease of use for the User or Pikky; correct an error or bug; prevent or discontinue harmful or improper access to services; prevent or discontinue unauthorized use of services; comply with a platform provider or laws of the land; or comply with a statute or judicial order. Pikky may suspend or terminate the User’s rights in and to the Mobile Application or services accessible through the Mobile Application on Pikky’s sole discretion including, without limitation, if a newer version of the Mobile Application or a service thereof is available, to improve the Mobile Application or a service or any functionality thereof; to add or remove access to a service accessible through the Mobile Application; to improve ease of use for the User or Pikky; to correct an error or bug; to prevent or discontinue harmful or improper access to the Mobile Application or a service thereof; to prevent or discontinue unauthorized use of the Mobile Application or a service thereof; to comply with a platform provider or laws of the land; or to comply with a statute or judicial order.
8. INTELLECTUAL PROPERTY
8.1
The User acknowledges that Pikky and its licensors, if any own all right, title and interest in and to the Mobile Application and that Pikky owns all right, title and interest in and to all content available via the Mobile Application, including, without limitation, all Intellectual Property Rights.8.2
“Intellectual Property Rights” means (i) all patents, patent applications, and certificates of invention, and all continuations, continuations in part, extensions, renewals, divisions, re-issues and re-examinations relating thereto; (ii) all moral rights and copyrights in any work of authorship or other work recognized by foreign or domestic law, by statute or at common law or otherwise, including all copyright registrations and applications thereof, together with any renewal or extension thereof and all rights deriving therefrom; (iii) all, whether registered or unregistered, trademarks, service marks, trade names and trade dress, and all goodwill relating thereto; (iv) all rights in all trade secrets, knowhow, and confidential information; and (v) other intellectual property rights protectable under any laws or international conventions throughout the world. The User agrees to not remove, obscure, or alter any copyright, trademark, or other proprietary rights affixed to, contained within, or accessed in conjunction with or through the Mobile Application. Except as set forth below in the schedule entitled “THIRD PARTY SOFTWARE”, the User further agrees not to modify, adapt, translate, prepare derivative works from, transmit, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any portion of the Mobile Application. Without limiting the generality of the foregoing, in those jurisdictions where the laws of the land grants User rights to translate, decompile, reverse engineer, or disassemble the Mobile Application, such User cannot waive, and to the extent required by law, such User may exercise such rights to translate, decompile, reverse engineer, or disassemble to the extent necessary to achieve interoperability of the Mobile Application with an independently created program, but solely in the event that the information necessary to achieve interoperability of the Mobile Application with an independently created program has not been made available to such User by Pikky within a reasonable time upon such User’s written request to Pikky. Such decompilation shall be restricted to the parts of the Mobile Application that is necessary to achieve interoperability.9. TRACKING
The Mobile Application accesses a data service that allows the User to track their food orders through orders page and order status page. The tracking system accessed via the Mobile Application (the “Tracking Systems”) and tracking information obtained through the Mobile Application (the “Information”) are the private property of Pikky. Pikky authorizes each User to use the Tracking Systems solely to track their orders tendered by or for such User for food delivery and for no other purpose. Without limitation, Users are not authorized to make the Information available on or via any website or application or otherwise reproduce, distribute, copy, store, use or sell the Information for commercial gain without the express written consent of Pikky. This is a personal service, thus a User’s right to use the Tracking Systems or Information is non-assignable. Any access or use of the Tracking Systems or the functionality provided in the Mobile Application to access the Tracking Systems that is inconsistent with this clause or this agreement is unauthorized and strictly prohibited.
10. USAGE DATA
Pikky can measure use of various features available through the Mobile Application. Pikky shares this information with its affiliates and third-party service providers, and Pikky and its affiliates and third-party service providers use this information consistent with Pikky’s Privacy Policy under this agreement. In particular, Pikky and its affiliates and third-party service providers use this information to determine the popularity of and improve the Mobile Application and services available through the Mobile Application to enhance the services Pikky makes available to its Users through the Mobile Application. By downloading or using the Mobile Application, User consents to Pikky’s measurement, collection, processing, transfer, storage, disclosure and use of the User’s usage data, in each case in accordance with this clause in this agreement. If User does not wish to have usage measured, User should not install the Mobile Application on their Mobile Device, and if User no longer wishes to have their usage measured after User has installed the Mobile Application, User must immediately delete the Mobile Application from their Mobile Device.
11. INFORMATION RECEIVED BY PIKKY
All information User provides to Pikky through the Mobile Application or measured by Pikky pursuant to the “Usage Data” clause in this agreement shall be in accordance with the Privacy Policy of Pikky under this agreement. By downloading or using the Mobile Application, you agree to be bound by the Privacy Policy of Pikky under this agreement. You shall be deemed to have reviewed and agreed to the Privacy Policy of Pikky under this agreement. If the User deletes the Mobile Application from their Mobile Device or this Agreement is otherwise terminated, Pikky may continue to use any information of the User previously provided to Pikky through the Mobile Application or previously measured by Pikky pursuant to the “Usage Data” clause in this agreement, in each case in accordance with the provisions of this clause of the agreement and the Privacy Policy of Pikky.
12. SUPPORT AND MAINTENANCE
The User agrees that Pikky or the Mobile Platform provider (e.g., Apple, Google) is not, obligated to provide any support or maintenance services to the User related to the Mobile Application.
13. WARRANTY/DISCLAIMER OF WARRANTIES
User hereby represents and warrants that (i) he/she is not located in a country that is subject to a U.S government embargo, or his/her use of the Mobile Application is not in contravention of the laws of the land; and (ii) he/she is not listed on any U.S government list of prohibited or restricted parties. If user is an individual acting or dealing as a consumer, User may have certain statutory rights which may not be waived, and such statutory rights are not affected by the following. The User hereby acknowledges and agrees that the use of the mobile application is entirely at the user’s own risk. The mobile application is provided free of charge, on an “as is” basis, without any warranties or undertakings of any kind. All express, implied, and statutory warranties or undertakings, including, without limitation, the warranties or undertakings as to conformity to description or sample, title, of merchantability, satisfactory quality, accuracy, reliability, accessibility and non-infringement of intellectual property rights or other proprietary rights, are expressly disclaimed by Pikky to the fullest extent permitted by applicable laws. Pikky makes no warranty or undertaking with respect to the security, timeliness, care and skills, content or performance of the mobile application, and any such warranties or undertakings are expressly disclaimed by Pikky to the fullest extent permitted by applicable laws. User acknowledges that the mobile platform provider (e.g., apple, google) has no warranty obligation whatsoever with respect to the mobile application. In some jurisdictions, this agreement may provide user with specific legal rights. Other than as permitted by applicable laws, Pikky does not exclude, limit, or suspend such legal rights which user may have.
14. LIMITATION OF LIABILITY
14.1
If User is an individual acting or dealing as a consumer or when dictated by applicable laws, User may have certain statutory rights which may not be waived, and such statutory rights are not affected by the agreement. Notwithstanding anything to the contrary contained in this agreement, Pikky shall not be liable to any User or any third party, to the fullest extent permitted under applicable laws, for any indirect, consequential, exemplary, punitive, multiple, incidental, or special damages, loss of profits, loss of data or data use, lost savings, arising out of this agreement, due to breach of contract, tort (including negligence), delict, use of the mobile application or otherwise. To the fullest extent permitted under applicable laws, in no event shall the liability of Pikky for any damages (direct or otherwise), penalties or loss, regardless of the form of action or claim against any User, whether in contract, tort (including negligence), delict or otherwise of any type exceed, in aggregate, the cost of the specific order placed by the specific User through the Mobile Application, any claim for damages in excess thereof being hereby waived by such user. User acknowledges that to the fullest extent permitted by applicable laws, the mobile platform provider (e.g., apple, google) will not be liable to the User for any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the mobile application. The above limitations and exclusions of liability shall be applicable only to the fullest extent permitted by applicable laws in the event of the gross negligence or wilful misconduct of Pikky or in the event of personal injury or death or in respect of any other liability that may not be excluded or limited under applicable laws.14.2
If you use the mobile application on a mobile device, subject to the terms, conditions and limitations of this agreement, the mobile platform (eg. Apple IOS, Android) will not be responsible to User for any claim relating to the mobile application or user’s possession and/or use of the mobile application, including but not limited to, (i) product liability claims; (ii) any claim that the mobile application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, to the fullest extent as permitted under applicable laws.15. INDEMNIFICATION
The User understands and acknowledges that Pikky, its officers, directors, attorneys and agents are relying upon the representations, warranties under this agreement made by the User to and with Pikky herein and, thus hereby agrees to indemnify Pikky, its officers and directors, agents, attorneys, and employees, and agrees to hold each of them harmless against any and all loss, damage, liability or exposure, including reasonable attorneys fee, that it or any of them may suffer, sustain, or incur by reason of or in connection with any misrepresentation or breach of warranty or agreement made by the User under this Agreement.
16. PRIVACY POLICY
At all times the User’s information will be treated in accordance with Pikky’s Privacy Policy which is incorporated by reference to this Mobile Application under this agreement and can be viewed at https://pikky.io/privacy-policy.
17. FORCE MAJEURE
Neither Party shall be liable for any delay/inability to carry out any of the obligations under the Agreement resulting or caused by any reason due to any hardware breakdown, acts of God, riots, strikes, lock-out, war, enactments, statutes, ordinance, legislation, court orders, directions of any local or civic body or statutory authorities, or any catastrophes, such as fire, earthquakes, floods or famine or incidents beyond the control of either Party.
18. GOVERNING LAW AND JURISDICTION
18.1
To the fullest extent permitted by applicable laws, this Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America. To the fullest extent permitted by applicable laws, the parties declare that they have agreed that this Agreement and all documents related hereto, either present or future, be drawn up in the English language only. To the fullest extent permitted by applicable laws, all correspondence and communications between the Users and Pikky under this Agreement must be in the English language.18.2
To the fullest extent permitted by applicable laws, any controversy or dispute arising out of or relating to this Agreement and the transactions contemplated hereby shall be subjected to the jurisdiction of United States of America.19. TAXES
User agrees to be responsible for any and all taxes, duties, tariffs, or other such assessments of any value relating to the services received through the Mobile Application under this Agreement.
20. ENFORCEABILITY
If, for any reason, a tribunal or court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect to the maximum extent permitted by applicable law.
21. WAIVER
Any waiver of any provision of this Agreement will be effective only if the same is in writing and signed by or on behalf of Pikky.
22. ENTIRE AGREEMENT
This Agreement constitutes the entire and only agreement between the parties in relation to its subject matter and replaces and extinguishes all prior or simultaneous agreements, undertakings, arrangements, understandings or statements of any nature made by the parties or any of them whether oral or written (and, if written, whether or not in draft form) with respect to such subject matter. Each of the parties acknowledge that they are not relying on any statements, warranties or representations given or made by any of them in relation to the subject matter of this Agreement, save those expressly set out in this Agreement, and that they shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement save to the extent that they arise out of fraud or fraudulent misrepresentation of another party. No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of Pikky.