End User Agreement
(a) “You” means a user of the Applications.
(b) “Content” means text, emoticons, images, photos, audio, video, location data, and all forms of data or communication.
(c) “User Content” means Content that You submit or transmit to, through, or in connection with the Applications.
(d) “GnoTech Content” means Content that GnoTech creates and makes available in connection with the Applications.
You affirm that You are either more than 16 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement and to abide by and comply with these Terms of Applications. In any case, You affirm that You are at least 16 years old as the Applications are not intended for children under 16. If You are under 16 years of age, You are not permitted to use the Applications. You further represent and warrant that 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 that You are not listed on any U.S. Government list of prohibited or restricted parties.
To access and use the features of the Applications, You may be required to establish an account with GnoTech (“Account”). As part of the Account, You acknowledge and agree that You will have to provide GnoTech with Your mobile phone number. When creating the Account, GnoTech requires that You provide complete and accurate information about Yourself. You may not impersonate someone else, create or use an account for anyone other than Yourself, or provide a telephone number other than Your own.
As part of creating an Account, You may be required to establish payment information associated with the Account. As described in more detail in Section 4, You authorize GnoTech to use the payment information to receive payment for any products or services purchased through Your Account, including but not limited to advanced features and specialized emoticons and audio files.
You are responsible for all activities that occur in connection with Your Account. You must notify GnoTech immediately of any breach of security or unauthorized use of Your mobile phone or Your Account. Although GnoTech will not be liable for Your losses caused by any unauthorized use of Your Account, You may be liable for the losses of GnoTech or others due to such unauthorized use.
Your Account is for Your personal and non-commercial use. By creating an Account, You agree to receive certain communications in connection with the Applications. To the extent such communications are not created by GnoTech, GnoTech is not responsible for the content of communications You receive in connection with the Applications.
GNOTECH MAY TERMINATE YOUR ACCOUNT AND/OR SUSPEND YOUR ABILITY TO USE PORTIONS OF THE APPLICATIONS FOR ANY OR NO REASON AND WITHOUT NOTICE OR LIABILITY OF ANY KIND, including, without limitation, termination and/or suspension for violation of this Agreement or inactivity. YOU MAY ALSO TERMINATE YOUR ACCOUNT. YOU MAY NOT ACCESS OR USE THE APPLICATIONS IF GNOTECH HAS PREVIOUSLY SUSPENDED OR CLOSED YOUR ACCOUNT.
4. Charges and Payments
You acknowledge and agree that accessing, utilizing and/or downloading any product or service that comprises a part of the Applications, such as advanced features or fee-based emoticons or audio files, constitutes a purchase by You of such product or service (hereinafter, the “Purchased Content”). You agree to pay all charges incurred by You (or any user of Your Account) for any Purchased Content and You hereby authorize GnoTech to charge Your credit card, debit card or any other payment method provided by You to GnoTech for such Purchased Content. The price for Purchased Content will be the price in effect at the time of purchase plus applicable sales tax. All payment obligations are non-cancelable and all amounts paid are non-refundable. If any Purchased Content becomes unavailable following a purchase transaction but prior to download, Your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of Purchased Content, Your exclusive and sole remedy is either replacement or refund of the price paid, as determined by GnoTech.
6. Contact List
You expressly acknowledge and agree that in order to provide the Applications, GnoTech may periodically access Your contact list and/or address book on Your mobile device to find and keep track of mobile phone numbers of other users of the Applications. You hereby give Your express consent to GnoTech to access Your contact list and/or address book for mobile phone numbers in order to provide and use the Applications.
7. The Applications
GnoTech may modify or update the Applications at its sole discretion without prior notice to You. GnoTech makes no guarantees to You as to the availability of the Applications. However, GnoTech will inform You if GnoTech plans to terminate the Applications.
You are responsible for all User Content and GnoTech has no responsibility to verify the accuracy of User Content. By providing User Content, You represent that You own or have the necessary permission to use and authorize the use of User Content as described herein. You may not imply that User Content is in any way sponsored or endorsed by GnoTech.
By providing User Content, You grant GnoTech a worldwide, royalty-free, non-exclusive, and fully sub-licensable (through multiple tiers) right to use, reproduce, modify, adapt, publish, translate, create derivate works from, distribute, perform, and display the User Content (in whole or in part) and/or to incorporate such User Content into other works in any form, media, or technology now known or later developed.
GnoTech (and its designees) shall have the right but not the obligation in their sole discretion to refuse or remove any User Content. Without limiting the foregoing, GnoTech (and its designees) shall have the right to remove any User Content that violates this Agreement or is otherwise objectionable in GnoTech’s sole discretion.
GnoTech respects rights granted under copyright law to copyright holders. Title II of the Digital Millennium Copyright Act (“DMCA”) creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities. GnoTech is a “service provider” as defined under the DMCA. Therefore, if GnoTech (or its designees) receives proper notification of claimed infringement as required under Title II of the DMCA, GnoTech will take down or block access to the alleged infringing Content as required under Title II of the DMCA.
Content may include links to other sites or resources (hereinafter referred to as “Linked Content”). Because GnoTech has no control over Linked Content, You acknowledge and agree that GnoTech is not responsible for the availability of Linked Content and GnoTech does not endorse and is not responsible or liability for any content, advertising, products, or other materials on or available through Linked Content. You acknowledge and agree that GnoTech shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Linked Content.
The Applications may include a feature that automatically responds to a message received through the Applications, such as when You are driving or otherwise preoccupied. As described below in Section 16, GnoTech is not liable for any damages resulting from the use of the Applications including the use or non-use of this feature, and the availability of the feature does not give rise to any warranties or representations regarding the use of the feature or that the feature will prevent or mitigate the dangers associated with using the Applications while driving or being otherwise preoccupied. You should not use the Applications while driving or otherwise operating heavy machinery and should abide by all local, state, and federal laws regarding the same.
11. Intellectual Property Rights
The Applications and GnoTech Content (excluding Linked Content) are intellectual property of GnoTech. Use of the Applications by You does not constitute a transfer of any such intellectual property rights to you and GnoTech reserves all rights not expressly granted in and to the Applications and GnoTech Content. You agree to not engage in the use, copying, or distribution of any of the Applications other than expressly permitted herein, including any use, copying, or distribution of GnoTech or User Content for any commercial purposes. However, GnoTech permits You to link to materials available through the Applications for personal purposes only.
GnoTech is under no obligation to enforce this Agreement on Your behalf against another user of the Applications or enforce any other legal agreement against another user of the Applications on Your behalf. While GnoTech encourages You to inform GnoTech if You believe another user of the Applications has violated this Agreement or any other legal agreement with GnoTech, GnoTech reserves the right to investigate and take appropriate action at GnoTech’s sole discretion.
13. General Restrictions on Use
You will not nor encourage anyone else to:
• violate any laws or third-party rights through use of the Applications;
• use the Applications if You are unable to form legally binding contracts or are temporarily or indefinitely suspended from using the Applications;
• post false, inaccurate, misleading, defamatory, or libelous content (including information provided to setup an Account) through the Applications;
• provide abusive, racist, obscene, vulgar, defamatory, libelous, hateful, threatening, sexist or any other Content (including information provided to setup an Account) through the Applications that may violate any applicable laws, including copyright laws;
• transfer Your Account to another party without prior consent of GnoTech;
• copy, modify, or distribute content from the Applications in violation of the intellectual property rights of GnoTech or other users;
• harvest or otherwise collect information about users of the Applications, including email addresses, without their consent;
• take any action that imposes or may impose (in GnoTech’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Applications;
• use any robot, spider, scraper or other automated means to access the Applications for any purpose without the express hand written permission of GnoTech;
• distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes through the Applications;
• distribute viruses or any other technologies through the Applications that may harm the Applications or the interests or property of GnoTech or other users;
• interfere or attempt to interfere with the proper working of the Applications or any activities conducted on or with the Applications; or
• bypass or attempt to bypass any measures taken by GnoTech to prevent or restrict access to the Application.
You agree to indemnify, defend, and hold GnoTech, and the officers, directors, employees, agents, representatives, licensors, affiliates, service providers and suppliers of GnoTech harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) Your access to or use of the Applications, (ii) Your violation of this Agreement, (iii) any providers or services provided by You in connection with the Applications or promotions thereof, or (iv) the infringement by You, or any third party using Your Account, of any intellectual property or other right of any person or entity. GnoTech reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify GnoTech and You agree to cooperate with GnoTech’s defense of these claims. You agree not to settle any matter for which You are required to indemnify GnoTech without the prior written consent of GnoTech.
(A) Except as expressly noted in this Agreement, the Applications (including content AVAILABLE THROUGH the Applications) are made available to You oN AN “as IS” AND “AS AVAILABLE” BASIS and GnoTech expressly disclaims all warranties, if any, whether express or implied, relating to the applications including but not limited to WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, and NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. GnoTech does not warrant that the applications will be uninterrupted or error-free, that defects, if any, will be corrected, or that the Applications are free of viruses or other harmful components; nor does GnoTech make any representations or warranties about the accuracy, reliability, currency, quality, performance, or suitability of the applications OR any content available through the applications. In the event of any dissatisfaction, frustration, loss, or damages suffered in connection with the Applications, the sole remedy for You is to cease using the applications. also, in consideration for GnoTech making the Applications accessible to You, You agree that YOU will not hold GnoTech responsible for any User Content or actions or inactions of any other users associated with the applications.
16. Limitation of Liability
You agree that GnoTech will not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses (even if GnoTech had been advised of the possibility of such damages, resulting from (i) the use or the inability to use the applications; (2) the cost of procurement of substitute goods and services resulting from any use or inability to use the applications; (iii) unauthorized access to or alteration of transmission or data; or (iv) Any statements or conduct of any third party on the applications.
Notwithstanding the previous paragraph, if GnoTech is found liable, GnoTech’s liability to You or any third party is limited to the greater of (i) the total charges You paid to GnoTech in the 12 months prior to the action giving rise to the liability or (ii) $5,000.
GnoTech does not make any claims about any Third Party and is not Responsible or liable for any Third-Party actions related to the applications. without limiting the foregoing, GnoTech is not responsible or liable for any products or services offered by Third Parties through the applications or any Third-party use of User content. GnoTech does not make any representations about Third-parties’ businesses and GnoTech is not responsible or liable for any losses, damages, or negative incidents experienced as the result of Third-Party actions.
17. General Terms
(a) Nothing in this Agreement will be deemed to create an employment, partnership, agency or joint venture relationship between You and GnoTech.
(b) If any provision of this Agreement is held invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced.
(c) This Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by GnoTech without restriction.
(d) GnoTech’s failure to act with respect to a breach of this Agreement does not waive GnoTech’s right to act with respect to subsequent or similar breaches. GnoTech does not guarantee it will take action against all breaches of this Agreement.
(e) GnoTech may amend this Agreement from time to time and will provide You with notice of such amendment (which may include posting of a revised Agreement accessible through the Applications or an associated website. Your continued use of the Applications following any amendment of this Agreement will signify Your assent to and acceptance of its revised terms.
(f) YOU AND GNOTECH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE APPLICATIONS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(g) This Agreement sets forth the entire agreement between GnoTech and You and supersedes all prior agreements, discussions, representations, and warranties.
(h) Unless otherwise prohibited by applicable law, the use of the Applications under this Agreement is governed by and will be construed in accordance with the internal laws of the State of Wisconsin, without regard to any conflict of law rules. The jurisdiction and venue for any litigation arising from or relating to this Agreement will be a state or federal court in the Eastern District of Wisconsin. You and GnoTech agree to be subject to the jurisdiction of and agree that venue is proper in these courts in any legal action or proceeding arising under this Agreement.
I. Collected Information
We collect two basic types of information through the Applications: “Personally Identifiable Information” (or “PII”) and “Non-Personally Identifiable Information” (or “Non-PII”).
a. Personally Identifiable Information. PII includes information that could identify you as a specific individual, such as your first name and middle initial or last name, your residential street address, your email address, your credit card information, your telephone number, your full email address, your social security number, and any other information that would allow someone to identify you or contact you.
II. Use of Collected Information
a. Non-Personally Identifiable Information. Because Non-PII does not identify a specific user, we may use such information for any purpose. For example, we may use Non-PII internally for any use, including but not limited, tracking Applications usage, diagnosing Application problems, selling and delivering advertising, and tailoring content provided through the Applications to your interests. We also reserve the right to share, sell, trade, or rent Non-PII with third parties for any purpose.
b. Personally Identifiable Information. We may use your PII to:
- provide content to your medical provider (if you are a patient accessing the Applications at the instruction of your medical provider);
- collect charges for an order placed by you through the Applications;
- provide products or services to you at your request;
- tailor the Applications to you;
- send you information, in any form, about us and our services, including but not limited to the Applications, including marketing materials, unless you have previously opted out of such communications;
- fulfill your requests for information;
- pre-populate forms provided to you through the Applications;
- perform internal business activities, such as target advertising, data analysis, audits, fraud prevention, and other internal business activities; and
- respond to your customer service requests and complaints.
If we enter into a contract with a third party to perform any of the above tasks, the third party will be held to the same limited use of your PII and will be subject to the same security requirements we place on ourselves in protecting your PII as specified in Section III below.
III. Security Measures
We will not share any PII as restricted by any applicable U.S. law. We will take reasonable measures (in compliance with applicable U.S. laws) that we believe are appropriate to protect your PII information from unauthorized access, loss, misuse, alteration, or destruction, and will ask any third parties, to whom we may transfer your PII information, to take comparable steps to protect the security of your PII. Nonetheless, you acknowledge that new threats and techniques of attack arise frequently, that security depends, at least in part, on your conduct (such as by keeping usernames and passwords secure), and that we cannot guarantee that the Applications are or will be completely secure. In the event of a security breach, we will use reasonable efforts to notify you of the breach by email or other electronic means (or as otherwise required by applicable U.S. laws). Should you receive such a notice from us, you will use at least reasonable efforts to mitigate the damages that might occur as a result of such a breach. You will also provide us only such information as is necessary for us to transact business with you and not send us any PII, unless we specifically request the same from you.
Notwithstanding the foregoing, you are responsible for taking reasonable steps for protecting your PII (for example, your username and password), such as by securing access to your devices (such as your computer, smart phone, tablet, or other device) through which such PII may be accessed or on which such PII may be stored. In addition, we are not responsible for security breaches at third parties, such as payment processing companies, who may obtain PII when you conduct a transaction through the Applications.
IV. Other Applications
V. Who May Use Our Applications
b. Children. We do not knowingly collect PII from children under the age of 13, and we request that children under the age of 13 not submit any PII to the Applications. Since information regarding children under the age of 13 is not collected, we do not knowingly distribute PII regarding children under the age of 13.