Gimbal™ Proximity Beacon Software End User License Agreement
This End User License EULA (this “EULA“) is a legally binding agreement between you and Gimbal, Inc. (“GIMBAL”) for the use of the software embedded in your Gimbal Proximity beacon device (the “Beacon“) and any Updates thereto (defined below) (collectively, the “Beacon Software“) as originally delivered by GIMBAL. BY USING THE BEACON, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
If you do not agree with the following terms and conditions, you must refrain from using the Beacon. The term “You” in this EULA refers to the individual or business entity using the Beacon.
1. License Grant. Subject to and conditioned upon Your compliance with the terms and conditions of this EULA, GIMBAL hereby grants You a limited, nonexclusive, nontransferable, non-sublicensable, revocable license under GIMBAL’s copyrights to display the Beacon Software, only as embedded in the Beacon and as authorized in this EULA, for your personal and non-commercial use, unless you are expressly authorized by GIMBAL in writing to use the Beacon(s) for commercial purposes. Your limited right of use will automatically expire upon the termination or cancellation of this EULA, by either GIMBAL or You, for any reason.
2. Updates. This EULA will govern any upgrades, updates, supplements and add-on components (if any) to the Beacon Software that GIMBAL may provide to You or make available to You after the date You obtain Your initial copy of the Beacon Software (collectively, the “Updates“), unless we provide other terms along with such Updates. After upgrading, You may no longer use the older version of the Beacon Software. You acknowledge and agree that GIMBAL may automatically check the version of the Beacon Software and/or its components that You are utilizing and may provide Updates to the Beacon Software.
3. Restrictions. You agree not to exceed the scope of the foregoing license, copy, create derivative works, reproduce, modify or distribute the Beacon Software. Subject to applicable law, you agree not to decompile, reverse engineer, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the Beacon Software. You agree not to (i) remove any copyright or other proprietary notice from the Beacon Software, (ii) sublicense or transfer the Beacon Software to a third party; (iii) extract or replace any part of the Beacon Software; or (iv) sell, rent, lease, lend, provide commercial hosting services or otherwise transfer the Beacon Software for value. This EULA does not allow you to use the Beacon Software on a Beacon that you do not own or control, and you may not distribute or make the Beacon Software available over a network where it could be used by multiple devices at the same time. You are not permitted to make any copies of the Beacon Software.
4. Third Party Materials. The Beacon Software and any other materials licensed and provided by GIMBAL under this EULA, if any, may contain certain software code and/or materials that are owned by third parties (the “Third Party Materials“). Such Third Party Materials, if applicable, are licensed by third parties under separate or different terms, and are not licensed to You under the terms of this EULA. Your use of such third Party Materials is subject to the terms and conditions set forth in the applicable third party license(s). Copies of the applicable licenses are either provided to You as part of the delivery of the Software or by such other delivery means as GIMBAL reasonably elects. These licenses impose certain obligations on You as a condition of the right to use and license the third party’s software.
5. Term; Termination. This EULA will commence when you first use the Beacon and will continue until terminated. Your rights under this EULA will terminate immediately and automatically without notice from GIMBAL if you fail to comply with any of the terms and conditions of this EULA. In addition, GIMBAL may terminate this EULA at any time upon notice to You by posting on our website located at https://www.manager.gimbal.com/beacon-eula. Upon termination of this EULA, You shall cease all use of the Beacon, including without limitation the Beacon Software, in Your possession or control. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 shall survive termination of this EULA.
6. Privacy; Data Collection and Use. Beacons are part of a system to help provide certain information (e.g., proximate location) to enable services to you and others. We refer to such services as “Proximity-Enabled Services.” Beacons work as follows: Beacons periodically broadcast: (i) a rolling (i.e., intermittently changing) identifier, (ii) battery power level, and (iii) ambient temperature. Such broadcasted information is received by software installed on mobile or fixed devices such as mobile phones, tablets, or devices plugged into wall outlets. We refer to such devices as “Receiver Devices“. The software on any Receiver Device periodically sends us the Beacon’s broadcast information along with the time and location of receipt. We will process and share the information we receive with the applicable Proximity-Enabled Service provider to enable the relevant Proximity-Enabled Service.
To stop a Beacon from transmitting data, remove the battery. If you wish to unsubscribe from any Proximity-Enabled Service, please follow the instructions provided by the Proximity-Enabled Service provider.
7. Intellectual Property Ownership. The Beacon Software is licensed, and not sold to You. You acknowledge and agree (and if You are a business entity, you acknowledge and agree on behalf of yourself and Your Subsidiaries (defined below)), that nothing in this EULA shall convey, assign or otherwise transfer to You any title or ownership rights (including without limitation any Intellectual Property Rights (as defined below)) in or to any of the Beacon Software or any Intellectual Property Rights of GIMBAL. “Subsidiary” of an entity that is a party to this EULA (each, a “First Person“) means any other entity (i) in which the majority (more than fifty percent (50%)) of the voting power held by the shares or other securities entitled to vote for election of directors (or other managing authority) is now or hereafter owned or controlled by such First Person either directly or indirectly or (ii) that does not have outstanding shares or securities but the majority (more than fifty percent (50%)) of the equity interests in which is now or hereafter owned or controlled by such First Person, either directly or indirectly, but only for so long as such ownership or control referenced in clause (i) or (ii) above exists. “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, right of privacy, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, worldwide.
8. No Grant of Patent or Certain Other Rights. Except for the express copyright license rights granted to You in Section 1 (License Grant), no other rights under any Intellectual Property Rights are granted by GIMBAL under or as a result of this EULA (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise). You acknowledge and agree, and if You are a business entity you acknowledge and agree on behalf of Yourself and Your Affiliates, that neither the delivery or other conveyance of any hardware or software, including without limitation the Beacon Software, nor any provision of this EULA (including, without limitation, any provision in any exhibit, SOW, addendum, etc. forming a part hereof) will be deemed or construed to grant (whether expressly, by implication or by way of estoppel or otherwise) any right, license, authority to infringe, or immunity from infringement liability under or to: (i) any patents of QUALCOMM Incorporated or any of its Affiliates (collectively, “QC Entities“), or (ii) any other Intellectual Property Rights of QC Entities covering or relating to any technology (including, without limitation, any product or invention) not embodied solely in the Beacon Software. “Affiliates” of (a) GIMBAL means any present or future corporation or other legal entity that controls, is controlled by, or is under common control with QUALCOMM Incorporated; and (b) of You, if you are a business entity, means any present or future corporation or other legal entity that controls, is controlled by, or is under common control with You, in each of (a) and (b) where control means ownership of more than fifty percent (50%) of the shares, equity interest or other securities entitled to vote for election of directors (or other managing authority)).
9. Other Obligations. You acknowledge and agree (and if You are a business entity You acknowledge and agree on behalf of Yourself and Your Subsidiaries), that (a) this EULA does not modify or abrogate any obligations that You or any of Your Subsidiaries has under any license or other EULA with QUALCOMM Incorporated, including, without limitation, any obligation to pay any royalties, and (b) You will not, and will ensure that each of Your Subsidiaries do not, contend that it has obtained any right, license, authority to infringe, or immunity from infringement liability with respect to any patents of QC Entities under or as a result of this EULA (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise).
10. Open Source. You shall not incorporate, link, distribute or use any third party software or code in conjunction with (i) the Beacon Software (ii) any Beacon Software, products, documentation, content or other materials developed using the Beacon Software, nor (iii) any derivative works that You make using the source code portions of the Beacon Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Beacon Software or other GIMBAL Beacon Software, including without limitation the distribution or disclosure of any source code; or (b) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any intellectual property rights or proprietary rights of GIMBAL or its Affiliates, including without limitation as such rights exist in or relate to the Beacon Software. Without limiting the generality of the foregoing, You shall not incorporate, link, distribute or use (1) the Beacon Software or any other Beacon Software provided by GIMBAL, (2) any Beacon Software, products, documentation, content or other materials developed using the Beacon Software, nor (3) any derivative works that You make using the source code portions of the Beacon Software (if any), with any code or Beacon Software licensed under any version of the GNU General Public License (“GPL“), Affero General Public License (“AGPL“), Lesser General Public License (“LGPL“), European Union Public License (“EUPL“), Apple Public Source License (“APSL“), Common Development and Distribution License (“CDDL“), IBM Public License (“IPL“), Eclipse Public License (“EPL“), Mozilla Public License (“MPL“), or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Beacon Software or other GIMBAL Beacon Software (or any modifications thereto) to become subject to the terms of the GPL, AGPL, LGPL, EUPL, APSL, CDDL, IPL, EPL, MPL, or such other open source license. You, and each party receiving Beacon Software or any copies thereof from You, shall not receive any rights to use such Beacon Software or copies thereof in a manner that will cause any patents, copyrights or other Intellectual Property Rights which are owned or controlled by GIMBAL or any of its Affiliates (or for which GIMBAL or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license (including, without limitation, any open source license listed on http://www.opensource.org/licenses/alphabetical) (each an “Open Source License“). These restrictions, limitations, exclusions and conditions shall apply even if GIMBAL or any of its Affiliates becomes aware of or fails to act in a manner to address any violation or failure to comply therewith. Also, no act by GIMBAL or any of its Affiliates that is undertaken under this EULA as to any Beacon Software or technology shall be construed as being inconsistent with the intent not to cause any patents, copyrights or other intellectual property rights which are owned or controlled by GIMBAL or any of its Affiliates (or for which GIMBAL or any of its Affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any Open Source License.
11. DISCLAIMER OF WARRANTIES. THE BEACON SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY EXPRESS OR IMPLIED GUARANTEE OR ASSURANCE OF QUALITY, RELIABILITY OR FUNCTIONALITY. GIMBAL, ITS SERVICE PROVIDERS, MANUFACTURERS, LICENSORS, AND ITS AND THEIR AFFILIATES (COLLECTIVELY, “PROVIDERS“) DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THE BEACON SOFTWARE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GIMBAL AND ITS PROVIDERS DO NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU AGREE AND ACKNOWLEDGE THAT THE USE, SUITABILITY AND PERFORMANCE OF THE BEACON SOFTWARE IS ENTIRELY, OR TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED IN THOSE JURISDICTIONS.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, GIMBAL, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, PROVIDERS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES, AND OTHER AFFILIATES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE AND LOSS (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT, LOSS OF DATA, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR REASONABLE CARE, PERSONAL INJURY OR WORK STOPPAGE), COSTS, EXPENSES AND PAYMENTS, REGARDLESS OF THE ALLEGED LIABILITY OR FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, INTELLECTUAL PROPERTY INFRINGEMENT, PRODUCT LIABILITY AND STRICT LIABILITY, THAT MAY RESULT FROM, OR IN CONNECTION WITH THE USE OR THE INABILITY TO USE THE BEACON SOFTWARE, OR FROM ANY FAILURE, ERROR, OR DOWNTIME IN THE BEACON SOFTWARE, OR FROM ANY FAULT OR ERROR MADE BY GIMBAL’S STAFF, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, REGARDLESS OF WHETHER GIMBAL, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, PROVIDERS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES, OR OTHER AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVEN SHALL THE MAXIMUM CUMULATIVE LIABILITY OF GIMBAL, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, PROVIDERS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES, AND OTHER AFFILIATES FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS EULA, UNDER ANY THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE YOU PAID FOR THE BEACON. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING WITHOUT LIMITATION SECTIONS 11 AND 12) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
13. Indemnification. You hereby undertake to defend, indemnify and hold GIMBAL and its Affiliates, and its and their respective officers, employees, shareholders, directors, agents or anyone acting on their behalf, and GIMBAL’s third party licensors, harmless from and against any claim, action, or demand asserted by any third party and arising from, or otherwise related to, your use of the Beacon Software or your breach of this EULA. In such cases, you will reimburse GIMBAL, or its third party licensor(s), as the case may be, for any expenses, including court fees, attorney fees and the damages (actual and consequential), which GIMBAL or its third party licensor(s), as applicable, incur as a result of such claim.
14. Compliance with Export Restrictions. You acknowledge that all hardware, software, source code and technology (collectively, “Products“) obtained from GIMBAL are subject to the US government export control and economic sanctions laws. You assure that You, Your subsidiaries and Affiliates will not directly or indirectly export, re-export, transfer or release any Products or direct product thereof to any destination, person, entity or end-use prohibited or restricted under US laws without prior US government authorization to the extent required by applicable regulation. This section shall survive the expiration or termination of this EULA.
15. U.S. Government End Users. This section only applies to the U.S. Government or if you are or are acting on behalf of an agency or instrumentality of the U.S. Government. The Software is “commercial computer software” developed exclusively at private expense. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Software is governed by the terms of this EULA.
16. Amendments to the EULA. GIMBAL may amend and modify this EULA from time to time. Material changes will take effect upon notification to you, which may occur via email or by posting on GIMBAL’s website at https://www.manager.gimbal.com/beacon-eula. Other changes will take effect immediately. You agree to be bound by any of the changes made in the EULA, including changes to any and all documents and policies incorporated thereto. Continuing to use the Beacon will indicate your acceptance of the amended EULA. If you do not agree with any of the amended terms of the EULA, then you must avoid any further use of the Beacon.
17. Governing Law; Jurisdiction. This EULA will be governed by and construed in accordance with the laws of the State of California, U.S.A. without giving effect to any choice of law or conflict of law rules or provisions, whether Federal, or of the State of California or of any other jurisdiction, which would result in the application of the laws of a jurisdiction other than the State of California. You agree to resolve any dispute or claim that you may have against GIMBAL and to submit to personal jurisdiction in the state and federal courts in the city of San Diego, California. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this EULA.
19. Notices. The Beacon Software is protected by copyright and other intellectual property laws and treaties.
Effective Date: September 24, 2013