Thank you for your interest in the Gabriel application (the “App”) provided to you by VirnetX, Inc. (“Company” or “we”), which enables you to communicate with other people using the Company’s patented secure communication technology. (The App and any related services provided by Company through its website are collectively referred to herein as the “Service”.) This EULA (available through the App’s Settings->About 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 email@example.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 in compliance with this EULA, including the payment of all fees associated with your subscription plan;
- the use of the Service may also 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 internet provider or mobile network operator (the “Network Provider“), which are your sole responsibility;
- the Service is provided “as is” without warranties of any kind and Company’s liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration, and by accepting this EULA you and Company are each waiving the right to a trial by jury or to participate in a class action;
- the App may access the following services on the device on which you use the App: UDID, MAC address, or other applicable device identifier, phone state and identity (if applicable), internet, SMS/MMS messaging, location, contacts list, camera, and microphone and photos; and
- if you are using the App on an Apple computer or iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.
1. ELIGIBILITY. THE SERVICE IS AVAILABLE ONLY TO USERS WHO ARE AT LEAST 18 YEARS OLD. THE SERVICE IS NOT AVAILABLE TO ANY USERS WHO HAVE BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY COMPANY. BY USING THE SERVICE, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND THAT YOU OR YOUR USER ACCOUNT HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE.
2. USER ACCOUNT. In order to access or use most features of the Service, you will need to create a user account and subscribe to the Service. We may not allow you to register for an account if you are located in certain territories. Once you register for an account, you can access and use the Service from one or more computers or mobile devices that are allowed under your subscription plan. You agree that any information you provide to Company on registration for an account, through the App or in any other manner, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times your account remains open.
4. LIMITED LICENSE. Subject to your complete and ongoing compliance with all the terms and conditions set forth in this EULA (including without limitation compliance with all license restrictions set forth in Section 5), Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use a copy of the App downloaded directly from Company’s website or from a legitimate marketplace (such as the Google Play store), solely in object code format, for your personal or internal business use for lawful purposes, on computer or mobile devices that you own or control and for the purpose of accessing and using the Service in accordance with this EULA.
5. LICENSE RESTRICTIONS. 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 or applicable third party license, 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. You may not use the App or the Service on more than the number of devices that are allowed under your subscription plan. The term App, as used herein, includes any update or modification to the App made available to you by Company (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them. You may not use the Service for benchmark or performance testing. You may not release the results of any performance or functional evaluation of the Service to any third party without prior written approval of Company for each such release. During and after the Term, you may not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding the Service, or to challenge any of Company’s intellectual property rights related to the Service.
6. FEES; PAYMENT. Access to the Service requires you to pay the fees associated with your subscription plan for the Service, plus any applicable sales, use, excise, or other taxes. Before you subscribe, you will have an opportunity to review the applicable fees and taxes that you will be charged under your subscription plan. All fees are in U.S. Dollars and, except as described in Section 8, are non-refundable. We may change the fees for the Service or any subscription plan or feature of the Service, including by adding additional fees or charges with respect to any of the foregoing, on a going-forward basis at any time. If any such change will increase the fees charged to you during your existing or renewal subscription term, we will notify you through a message sent to the email address you have provided to us, if any, or through a pop-up window or other notification when you access or use the App or the Service. We will charge the payment method you specify at the time of purchase (the “Payment Method“). You authorize us to charge all sums described herein to such payment method. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. You will reimburse us for any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due.
7. AUTOMATIC RENEWAL; FREE TRIAL. At the end of your subscription period (but not including any free trial periods), your subscription will automatically renew unless and until you cancel your subscription or we terminate it in accordance with Section 8 of this Agreement. You may choose to renew your subscription in accordance with any subscription plan offered by us at the time of your renewal. If you do not choose any particular subscription plan for your renewal, your subscription will renew at the subscription plan applicable to the immediately-preceding subscription period, at the then-current fees for such subscription plan. If you cancel your subscription, or choose to renew at a different subscription plan, you may permanently lose access to certain features or choices available under your previous subscription plan. By way of example, and not limitation, if your current subscription plan allows you to choose a unique private domain name, and you renew at a subscription plan that doesn’t offer unique private domains, you may permanently lose the domain name you have previously chosen. Your Payment Method will be charged automatically at the end of your subscription period all applicable fees for the next subscription period. You must cancel your subscription before it renews in order to avoid billing of the next periodic subscription fees to your Payment Method. We will bill the periodic subscription fee to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information). If you are using the Service under a free trial offered by us and wish to continue using the Service at the end of the free trial, you may be required to subscribe for the Service and enter a Payment Method which will be charged in accordance with Section 6 above.
8. TERM AND TERMINATION. This EULA will remain in effect until terminated in accordance with the terms hereof. The EULA, and your rights and licenses hereunder, will terminate immediately upon your breach of the EULA. You may terminate the EULA or your user account, at any time and for any or no reason, by uninstalling the App or deleting your user account, and ceasing all use of the Service. We may terminate the Service and/or this EULA, or terminate or suspend your user account for the Service, in our sole discretion and at any time, for any or no reason, and with or without notice. If we terminate the Service and/or this EULA or terminate or suspend your account without cause, we will refund to you any prepaid amounts you’ve paid for the period of your remaining subscription term(s) during which the Services were not provided to you. Sections 5, 6, 8, 11, 12, 13, 15, 16, 17, 19, 20 and 21 shall survive any termination of this EULA.
9. THIRD PARTY TERMS AND FEES. You are solely responsible for your use of the Service on your computer or 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 service plan of the Network Provider you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Network Provider). Accordingly, you should use care in selecting a service plan offered by your Network Provider.
10. LOCATION-BASED SERVICES. Some of the features of the Service may enable Company 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 on your mobile device, you must enable certain features of your mobile device, such as GPS, Wi-Fi, and Bluetooth, which enable Company to identify your location through a variety of means. 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 mobile 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) Company may provide Location-based Services related to and based on your then-current location, and (iii) Company 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 COMPANY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.
11. RESERVATION OF RIGHTS. The Service, including the App, is owned and operated by Company. The App, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service (the “Company 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 Company, all Company Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of Company or its subsidiaries or affiliated companies and/or its third-party licensors. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the Company Materials except as expressly authorized hereunder. Company reserves all rights not expressly granted in this EULA. You shall not acquire any right, title or interest to the Company Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
12. USER COMMUNICATIONS. The Service allows you to communicate with other users of the Service. You, and not Company, are solely responsible for all of your communications (“User Communications“) through the Service. Similarly, Company is not responsible to you for the User Communications you receive from other users of the Service. Company does not control the content of any User Communications and does not guarantee that any information contained in any User Submission will be kept confidential by the recipient. By submitting User Communications through the Service, you hereby grant Company and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license (without any obligation to exercise) to use, reproduce, and modify your User Communications in connection with the provision of the Service to you and other users. You further agree to indemnify and hold Company and its affiliates harmless from all claims, damages, and liabilities arising from your User Communications, or any breach by you of this EULA.
13. FEEDBACK. If you provide Company 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 Company 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 Company a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose.
14. MODIFICATIONS. Company reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Service, 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 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 Company, 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 Company 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 App and the Service.
15. 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, COMPANY 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. COMPANY EXPRESSLY DISCLAIMS 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. COMPANY FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR NETWORK PROVIDER’S NETWORK OR SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY 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 COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS EULA 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.
16. INDEMNITY. You agree to indemnify, defend and hold Company 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 Service (including without limitation the domain names registered under your account), and your violation of this EULA (including without limitation any of the license restrictions set forth in Section 5), any applicable law or regulation, or the rights of any third parties, related to your use of the Service.
17. DISPUTE RESOLUTION. Disputes arising between you and Company hereunder shall be resolved in accordance with the following:
- a. Generally. In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, you and Company 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 Company are each waiving the right to a trial by jury or to participate in a class action.
- b. Exceptions. Notwithstanding the contents of Section 15.a above, you and Company 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.
- c. Arbitrator. Any arbitration between you and Company will be governed by the Consumer Arbitration Rules (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 Company.
- d. Notice; Process. 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”). Company’s address for Notice is: VirnetX, Inc., 308 Dorla Court, Zephyr Cove, NV 89448. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties agree to use good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Company may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Company shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Company in settlement of the dispute prior to the award, Company will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- e. Fees. In the event that you commence arbitration in accordance with this EULA, Company 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 Douglas County, Nevada, 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 in the county (or parish) of your billing address. 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 Company 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.
- f. No Class Actions. YOU AND COMPANY 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 Company 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.
- g. Modifications. In the event that Company makes any future change to this arbitration provision (other than a change to the Company’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Company’s address for Notice, in which case your account with Company shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
- h. Enforceability. If only of the subsection (f) of this Section 15, or the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 17, below, shall govern any action arising out of or related to this EULA.
18. 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 Settings->About 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.
19. 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 Texas as they apply to agreements entered into and to be performed entirely within Texas by Texas residents, and without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Company agree to submit to the personal and exclusive jurisdiction of the federal courts located within the Eastern District of Texas for the purpose of litigating all such claims or disputes.
20. INTERNATIONAL VISITORS.
- The Service is hosted in the United States and intended for visitors located within the United States. If you choose to use the Service from the European Union or other regions of the world with laws governing data collection and use that may differ from U.S. law, then please note that you are transferring your personal information outside of those regions to the United States for storage and processing. Also, we may transfer your data from the U.S. to other countries or regions in connection with storage and processing of data, fulfilling your requests, and operating the Service. By providing any information, including personal information, on or to the Service, you consent to such transfer, storage, and processing.
- This EULA is the entire agreement between you and Company, and supersedes any and all prior agreements, negotiations, or other communications between you and Company, 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 Company, 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. Company 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 Company is unable to provide the Service as a result of a force majeure event, Company will not be in breach of this EULA. A force majeure event means any event beyond the reasonable control of Company. 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. Company’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.
- This paragraph only applies if you are using the App on an Apple computer or iOS-based device. You acknowledge that this EULA is between you and Company 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 VirnetX, Inc., 308 Dorla Court, Zephyr Cove, Nevada 89448;