End User License Agreement

END USER LICENSE AND SERVICES AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND OMNEGO INC. ("OMNEGO") STATING THE TERMS THAT GOVERN YOUR DOWNLOADING AND USE OF OMNEGO'S "WALGO" SOFTWARE APPLICATIONS FOR MOBILE DEVICES, INCLUDING ASSOCIATED DOCUMENTATION AND ANY UPGRADES WHERE APPLICABLE (COLLECTIVELY, THE "SOFTWARE") AND OMNEGO SERVICES (AS DEFINED BELOW). THIS AGREEMENT - TOGETHER WITH ALL ADDITIONAL TERMS (AS DEFINED BELOW) INCORPORATED HEREIN - COLLECTIVELY CONSTITUTE THE "AGREEMENT" BETWEEN YOU AND OMNEGO. TO AGREE TO THESE TERMS, CLICK "AGREE." IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK "AGREE," AND DO NOT DOWNLOAD OR USE THE SOFTWARE.

  1. AGE REQUIREMENTS. The Software is available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review these terms and conditions with your parent or guardian to make sure that you and your parent or guardian understand and agree to these terms and conditions.
  2. TERRITORY. The Software is available to you for use only in the continental United States (including Alaska and Hawaii), Canada, and Mexico and is not generally available and may not function properly or at all in any other location.
  3. LICENSE OF SOFTWARE. The Software is licensed, not sold, to you. This license granted to you for the Software by Omnego is limited to a non-transferable license to use the Software for your own personal use subject to the system requirements below and the terms of this Agreement. You may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Software. You may not copy (except as expressly permitted by this Agreement) decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, any updates or upgrades (collectively, "Upgrades"), or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by the express licensing terms governing use of any open source components included with the Software). Any attempt to do so is a violation of the rights of Omnego and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any Upgrades provided by Omnego that replace and/or supplement the original Software, unless such Upgrade is accompanied by a separate license in which case the terms of that license will govern. Omnego reserves all rights in and to the Software not expressly granted to you. The Software is licensed to end user customers only.
  4. THIRD PARTY CONTENT. You acknowledge that any additional, supplemental or complementary downloads (including weblinks which may be provided by Omnego for your convenience only), software, products, applications, or content for the Software that you purchase, license or otherwise obtain or, as applicable, are required to obtain, from or with respect to a merchant or any other third party, including but not limited to merchant cards ("Third Party Content") is subject to agreements and terms and conditions between you and such third party (the "Third Party Content Provider") only. The Third Party Content Provider is solely responsible for that Third Party Content, including but not limited to accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, security, quality or any other aspect of such Third Party Content, any warranties associated therewith, and any claims that you or any other party may have relating to that Third Party Content or use thereof. Omnego is not a party to the license or any other agreement between you and the Third Party Content Provider with respect to that Third Party Content, and you are solely responsible for compliance and adherence to the terms and conditions applicable to such Third Party Content, including but not limited to for the creation and use of any digital cards self-made by you ("MyCards") or from structures made available by Omnego to replicate an existing hard copy card ("Add+Cards", and collectively, with MyCards, "Template Cards"). You agree that you will not use any Third Party Content in a manner that would infringe or violate the rights of any other party, and that Omnego is not in any way responsible for any such use by you. Omnego and its licensors reserve the right to change, suspend, remove, or disable access to any Third Party Content, including but not limited to the availability, compatibility and usability of Template Cards, at any time without notice, to the extent controlled by Omnego, including the removal or change in compatibility with the Software. In no event will Omnego be liable for the removal of or disabling of access to or compatibility or usability with any such Third Party Content, and no purchase or obtaining of any other product, including but not limited to Third Party Content, shall be construed to represent or guarantee you continued access to the Software. Omnego may also impose limits on the use of or access to certain Third Party Content in conjunction with the Software, in any case and without notice or liability.
  5. SYSTEM REQUIREMENTS. Your downloading and use of the Software and all the components thereof requires one or more compatible devices (list provided and updated on the Omnego website at http://walgo.com/faq, Internet access (fees may apply), and certain software (fees may apply) and features, and may require obtaining updates or upgrades thereto, or Upgrades, from time to time. With respect to BlackBerry users, please be advised that the Software will involve or otherwise make certain use of BlackBerry Push Notification, which allows Omnego to push data to your device (data charges might apply). Because downloading and use of the Software involves hardware, software, and Internet access, your ability to use the Software may be affected by the performance of these factors. High speed Internet access is strongly recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility.
  6. PRIVACY. Except as otherwise expressly provided for in this Agreement, the Software, Omnego Services (as defined below) and your downloading and use thereof is subject to Omnego's Privacy Policy at http://walgo.com/privacy_policy, which is expressly made a part of this Agreement. If you have not already read Omnego's Privacy Policy, you should do so now.
  7. YOUR INFORMATION. You agree to provide accurate, current, and complete information ("Registration Data") required to download, enable and otherwise effectively utilize the Software and at other points as may be required in the course of ordering any ancillary services, downloads, work product and the like from Omnego ("Omnego Services"). You further agree to maintain and update your Registration Data as required to keep it accurate, current, and complete, where applicable.
  8. USER ACCOUNT, SECURITY AND ACCEPTABLE USE. You understand that the Software may include a security framework using technology that protects digital information and may limit your usage. You agree not to violate or attempt to violate any security components. You agree not to attempt to, or assist another person to, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security components for any reason whatsoever. You will not access the Software or Omnego Services by any means other than through software, links or protocols provided by Omnego for accessing the Software. You further agree not to use the Software in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Omnego is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Software, Omnego Services or Third Party Content.
  9. USE OF SOFTWARE. Whether or not the Software is limited by security technology, you agree to use the Software and Omnego Services in compliance with this Agreement, as modified from time to time. In the event that Omnego changes any part of the Software or discontinues the Software or support thereof or parts thereof, which Omnego may do at its election, you acknowledge that you may no longer be able to use the Software or Omnego Services to the same extent as prior to such change or discontinuation, and that Omnego shall have no liability to you in such case.
  10. INTELLECTUAL PROPERTY.
    1. You agree that the Software and certain Omnego Services, including but not limited to graphics, user interface, scripts, features and functionality, contains proprietary information and material that is owned by Omnego, its principals, affiliates or licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary information or materials in any way whatsoever except for use in compliance with the terms of this Agreement. No portion of the Software may be reproduced in any form or by any means, except as expressly permitted hereunder. You shall not exploit the Software in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
    2. All copyrights in and to the Software are owned by Omnego, its principals, affiliates or licensors who reserve all their rights in law and equity. The use of the Software or any Omnego Services, except for use as permitted in this Agreement, is strictly prohibited and infringes on the intellectual property rights of others and may subject you to civil and criminal penalties, including possible monetary damages, for copyright infringement.
    3. Omnego, the Omnego logo, Walgo, Add+Card, MyCard and other Omnego trademarks, service marks, graphics and logos used in connection with the Software and Omnego Services are trademarks or registered trademarks of Omnego in Canada, the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
    4. Without limiting the foregoing, you understand and acknowledge that the Software contains or may contain, or is based on or may be based on, or links with or may link with to create executables, certain open source elements, which require that certain terms, rights and obligations be provided to you as part of this Agreement. Click here for a list of those open source elements and associated additional terms and conditions: http://walgo.com/open_source_disclosure.
  11. TERMINATION. If you fail, or Omnego suspects that you have violated or failed to comply with any of the provisions of this Agreement, including but not limited to failure to provide Omnego with accurate and complete Registration Data, violation of the security provisions herein, security aspects of the Software or any license to the Software or Omnego Services, or infringement or other violation of third parties' rights, Omnego, at its sole discretion, without notice to you may: (i) terminate this Agreement; and/or (ii) terminate the license to the Software and access to Omnego Services.
  12. GENERAL COMPLIANCE WITH LAWS. The Software is controlled and operated by Omnego from its offices in Canada and the United States. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your downloading and use of the Software and Omnego Services. You may not use or otherwise export or re-export the Software except as authorized by United States and Canadian law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Software or Omnego Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software or Omnego Services for any purposes prohibited by United States or Canadian law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. The Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. section 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. section 12.212 or 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212 or 48 C.F.R. section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
  13. ENFORCEMENT OF THESE TERMS. Omnego reserves the right to take steps Omnego believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to Omnego's right to cooperate with any legal process relating to your use of the Software or Omnego Services, and/or a third party claim that your use of the Software or Omnego Services is unlawful and/or infringes such third party's rights).
  14. DISCLAIMER OF WARRANTIES; LIABILITY LIMITATIONS.
    1. OMNEGO DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SOFTWARE OR OMNEGO SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR OMNEGO SERVICES WILL BE CORRECTED, AND YOU AGREE THAT FROM TIME TO TIME OMNEGO MAY REMOVE THE SOFTWARE OR OMNEGO SERVICES FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SOFTWARE OR OMNEGO SERVICES AT ANY TIME, WITHOUT NOTICE TO YOU. OMNEGO DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR OMNEGO SERVICES PERFORMED OR PROVIDED BY OR IN ASSOCIATION WITH THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR OMNEGO SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
    2. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE OR OMNEGO SERVICES IS AT YOUR SOLE RISK. THE SOFTWARE AND ALL OMNEGO SERVICES DELIVERED TO YOU BY OR THROUGH OMNEGO ARE (EXCEPT AS EXPRESSLY STATED HEREIN) PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED OR OTHER WARRANTIES, THE ABOVE EXCLUSION OF SUCH WARRANTIES MAY NOT APPLY TO YOU.
    3. IN NO CASE SHALL OMNEGO, ITS AFFILIATES AND EACH OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, PRINCIPALS, SHAREHOLDERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, DATA BEING RENDERED INACCURATE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR SOFTWARE, LOSSES SUSTAINED AS A RESULT OF FAILURE TO OPERATE WITH ANY OTHER PROGRAMS OR NETWORKS, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES), INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE SOFTWARE OR ANY OMNEGO SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF OR INABILITY TO USE THE FOREGOING, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY SOFTWARE, SERVICES, PRODUCTS OR CONTENT, HOWEVER CAUSED, EVEN IF ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE). BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR PERSONAL INJURY OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OMNEGO'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL OMNEGO'S (OR FOR GREATER CERTAINTY, THE OTHER RELATED PARTIES AND LICENSORS ABOVE) TOTAL COLLECTIVE LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    4. OMNEGO SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SOFTWARE OR OMNEGO SERVICES, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND OMNEGO HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
    5. OMNEGO DOES NOT REPRESENT OR GUARANTEE THAT THE SOFTWARE, OMNEGO SERVICES OR HARDWARE YOU USE TO ACCESS OMNEGO SERVICES (INCLUDING BUT NOT LIMITED TO YOUR DEVICE) WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND OMNEGO DISCLAIMS ANY LIABILITY RELATING THERETO. YOU SHALL ULTIMATELY BE RESPONSIBLE FOR BACKING UP AND OTHERWISE RECORDING THE REQUISITE INFORMATION AND DATA PERTAINING TO YOUR OWN SYSTEM AND THE INFORMATION THEREON, AS APPLICABLE, INCLUDING ANY SOFTWARE OR PRODUCTS THAT ARE STORED IN OR ON YOUR SYSTEM AND THIRD PARTY CONTENT.
    6. THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, "HIGH RISK ACTIVITIES"). OMNEGO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
  15. WAIVER AND INDEMNITY. YOU AGREE TO INDEMNIFY AND HOLD OMNEGO, ITS AFFILIATES AND EACH OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SHAREHOLDERS, PRINCIPALS AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SOFTWARE OR OMNEGO SERVICES, OR ANY ACTION TAKEN BY OMNEGO AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM OMNEGO, ITS AFFILIATES AND EACH OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, PRINCIPALS AND LICENSORS AS A RESULT OF OMNEGO'S DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SOFTWARE OR OMNEGO SERVICES, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF OMNEGO'S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
  16. CHANGES. Omnego reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Software or Omnego Services. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective immediately and incorporated into this Agreement. Your continued use of the Software or Omnego Services following will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
  17. NOTICES. Omnego may send you notice with respect to the Software or Omnego Services by sending an email message to the email address listed in your Account Registration information, or by a posting on the Omnego website. Notices shall become effective immediately.
  18. GOVERNING LAW. The laws of the state of New York, excluding conflicts of law rules or principles, govern this Agreement, except where you are ordinarily resident in Canada in which case the laws of the province of Ontario and the federal laws of Canada applicable therein shall apply. This Agreement may also be subject to other local, state, national, or international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Omnego or relating in any way to your use of the Software or Omnego Services resides in the United States District Court for the Southern District of New York and the State Courts in New York County, New York, as applicable, or if you are in Canada pursuant to the foregoing, the applicable courts in Ontario or Canada, as the case may be. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If you are an individual consumer, this shall not affect any mandatory right you may have to take action in your country of residence and under the laws of that country.
  19. MISCELLANEOUS. These terms and conditions constitute the entire agreement between you and Omnego and govern your use of the Software and Omnego Services, superseding any prior agreements, communications and statements between you and Omnego, and there are no collateral representations or warranties including but not limited to any statements or information on Omnego's website, advertising or marketing material. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Omnego's failure to enforce any right or provisions in this Agreement will not constitute a waiver of such provision, or any other provision of this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the other provisions will remain in full force and effect. Omnego will not be responsible for failures to fulfill any obligations due to causes beyond its control.