TRAY End User License Agreement

Last Updated: 01/29/2014

 

Thank you for your interest in this application for your mobile device (the “App”) provided to you by Vendsy, Inc.  (“Vendsy”), which enables you to use certain features of Vendsy’s online service (the “Service”) from your mobile device.  This End User License Agreement, together with the Tray Terms of Service (the “Terms”) and any additional policies (the “Policies”) (collectively, the “EULA”), as may updated from time to time, govern your use of the App and the Service. You may request a copy of this EULA by emailing us at support@vendsy.com

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 THE 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 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;
  • you consent to the collection and use of your personally identifiable information and information about your location in accordance with Vendsy’s Privacy Policy, including without limitation the collection of location information;
  • the Service is provided “as is” without warranties of any kind and Vendsy’s liability to you is limited;
  • the App requires access to the following services on your mobile device:  UDID, MAC address, or other applicable device identifier, phone state and identity, Server side pushes, internet, SMS/MMS messaging, and location; and
  • if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.

 

1.     LIMITED LICENSE.  

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 and compliance with all license restrictions), Vendsy grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Vendsy 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 Vendsy (unless provided with separate terms).  If you are prohibited under applicable law from using the App or the Service, you may not use them.

 

2.     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 Vendsy immediately to suspend services.

 

3.     LOCATION-BASED SERVICES. 

Some of the features of the Service may enable Vendsy 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 Vendsy 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 Vendsy.  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.  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) Vendsy may provide Location-based Services related to and based on your then-current location, and (iii) Vendsy may use any such information collected in connection with the provision of Location-based Services in connection with its provision of the Service.  PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND VENDSY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.

 

4.     RESERVATION OF RIGHTS.  

The Service, including the App, is owned and operated by Vendsy.  The App, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service (the “Vendsy 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 Vendsy, all Vendsy Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of Vendsy 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 Vendsy Materials except as expressly authorized hereunder.  Vendsy reserves all rights not expressly granted in this EULA.  You shall not acquire any right, title or interest to the Vendsy Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.

 

5.     FEEDBACK. 

If you provide Vendsy with any comments, bug reports, feedback, or modifications proposed or suggested by you relating to 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 Vendsy 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 Vendsy a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose.

 

6.     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.  Vendsy 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 4, 6891011, and 12 shall survive any termination of this EULA.

 

7.     MODIFICATIONS.  

Vendsy reserves the right, in its sole discretion, to change, modify, add, or remove portions of the App, or 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 Vendsy, 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 Vendsy 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.

 

8.     WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY.  

THE APP AND THE SERVICE ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VENDSYAND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES, SUBSIDIARIES AND AGENTS (COLLECTIVELY, THE “VENDSY ENTITIES”) DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, QUIET ENJOYMENT AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.  THE VENDSY ENTITIES EXPRESSLY DISCLAIM ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE.  THE VENDSY ENTITIES FURTHER DISCLAIM ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE.  UNDER NO CIRCUMSTANCES WILL THE VENDSY ENTITIES 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 ANY OF THE VENDSY ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  IN NO EVENT WILL THE VENDSY ENTITIES’ 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.

 

9.     INDEMNITY.  

You agree that you will be responsible for your use of the App and the Service, and you agree to defend, indemnify, and hold harmless the Vendsy Entities from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the App or Service; (ii) your violation of this EULA or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.

 

10.  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.

 

11.  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, and all disputes hereunder will be resolved in accordance with the dispute resolution provisions set forth in the Terms.

 

12.  MISCELLANEOUS.  

This EULA (including the Terms and Policies) is the entire agreement between you and Vendsy, and supersedes any and all prior agreements, negotiations, or other communications between you and Vendsy, 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 Vendsy, 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.  Vendsy 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 Vendsy is unable to provide the Service as a result of a force majeure event, Vendsy will not be in breach of this EULA. A force majeure event means any event beyond the control of Vendsy.  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.  Vendsy’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.

 

13. NOTICE REGARDING APPLE. 

You acknowledge that this EULA is between you and Vendsy 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.

 

CONTACTING VENDSY.  

The App and the Service are offered by Vendsy, located at 2211 Rock Street, Mountain View, CA 94043, info@vendsy.com