END USER LICENSE AGREEMENT
This END USER LICENSE AGREEMENT (“Agreement”) is entered into by and between GiANT WORLDWIDE, LP, an Oklahoma limited partnership ("GiANT"), and you (herein “you” or “User”). By accessing and using the content, documentation, and related materials made available to you through the GiANT TV Portal (defined herein), you are accepting and agreeing to the following terms on behalf of yourself and the entity you represent in connection with the access and use of the content, documentation, and related materials made available to you through the GiANT TV Portal. You represent and warrant that you have the right, authority, and capacity to accept and agree to these terms on behalf of yourself. If you do not agree with any of the following terms, you should immediately cease accessing and using the GiANT TV Portal and the materials contained therein and GiANT will not and does not license the materials contained on the GiANT TV Portal to you and you must not download, access or utilize the materials contained on the GiANT TV Portal.
1. "User Resources" are the suite of content, information, material, documents, data, presentations, videos, resources, and services provided by GiANT. GiANT provides its User Resources through the "GiANT TV Portal".
2. The "GiANT TV Portal" can be accessed at http://home.giant.tv. The GiANT TV Portal provides: (a) general-access content which is displayed to all site users and does not require a user account to access; and (b) secured content and data which requires application to GiANT for a user account and password prior to access.
3. "Confidential Information" is all of the User Resources contained in the secured access portions of the GiANT TV Portal.
4. "Licensed Confidential Information" is the subset of Confidential Information disclosed to you through your secured access to the GiANT TV Portal and User Resources, as well as, any derivative works created based on the Licensed Confidential Information.
5. "Access Level" is the scope of Licensed Confidential Information that GiANT discloses to you based on your profile and the purpose for which the data will be used. To gain access to any Licensed Confidential Information, you must register for a GiANT user account, meet the eligibility criteria for the desired level of access, and be approved by GiANT.
B. GRANT OF LICENSE
1. Subject to the terms of this Agreement, GiANT hereby grants to you, a non-exclusive, non-assignable, non-transferable, revocable license to use Licensed Confidential Information for the viewing of the Licensed Confidential Information solely in connection with your status as a User of GiANT in good standing.
3. User Resources are not available to any users previously prohibited from using the GiANT TV Portal, data, services, or content. It is a violation of this Agreement to use or access any User Resources, data or content under any identity that is not your own identity.
C. USE OF LICENSED CONFIDENTIAL INFORMATION
1. To access/use Licensed Confidential Information, you must register for a GiANT user account ("Account") and provide certain information about yourself as prompted by the registration form. Your Account Access Level will be granted based on the information that you provide in the registration form. You represent and warrant that: (a) all required registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you meet all of the eligibility criteria for the Access Level you have requested; and (d) your use of User Resources does not violate any U.S. or other applicable law or regulation.
2. You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account.
3. You may not use another user's account. You agree to use "strong" Account passwords, and to maintain Account passwords securely to prevent others from gaining access without your permission. You agree to immediately notify GiANT of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security.
4. You agree that all data provided to you pursuant to this Agreement shall be deemed to be Licensed Confidential Information regardless of whether it is marked as “Licensed Confidential Information”, "Confidential" or "Proprietary" or is not marked at all.
5. You agree not to distribute the Licensed Confidential Information for viewing or use by third parties. You agree not to transfer or distribute Licensed Confidential Information to any person over email, web, or any other means of conveyance that can be similarly copied and/or distributed with ease.
6. You agree to use all Licensed Confidential Information provided to you only for the specific purposes identified herein and otherwise pre-approved in writing by GiANT.
7. You agree not to make any externally accessible copies of the Licensed Confidential Information unless agreed to in writing by GiANT.
8. You agree not to make download, whether through a single download or multiple downloads, the entire contents of the User Resources at any time.
9. You agree to keep and maintain all of the Licensed Confidential Information in a safe and secure place with adequate safeguards to ensure that unauthorized persons do not have access to the Licensed Confidential Information.
10. Except for the agreed-to disclosures specified in this Agreement, you agree to treat all Licensed Confidential Information as confidential and not to disclose the same to any third party. You hereby agree that your rights as related to the Licensed Confidential Information are non-assignable and non-transferable.
11. You agree that any oral or written discussions between GiANT and you that relate to the Licensed Confidential Information is also Licensed Confidential Information and you agree to keep all such information secret and confidential.
12. You agree to immediately notify GiANT in writing of any misuse or misappropriation of the Licensed Confidential Information or violation of this Agreement that may come to your attention.
13. You acknowledge that the Licensed Confidential Information is proprietary and confidential information of GiANT, and agree to keep the information confidential so as to protect and maintain the confidentiality of the information. Any works created by you while using the Licensed Confidential Information shall not disclose or in any way abrogate the confidentiality of the Licensed Confidential Information.
14. To the extent the Licensed Confidential Information contains any personally identifiable information, you agree that it will comply with all applicable laws regarding protection of personally identifiable information, and will in any event use the same standard of care that the you use to protect your own confidential information, and in no event will use less than a reasonable standard of care. You agree to indemnify and hold GiANT harmless against any causes of action arising out of your use or misuse of personally identifiable information.
15. Except for the agreed-to disclosures in this agreement, you will not, for yourself or for the benefit of any person or entity, other than GiANT, use or disclose the Licensed Confidential Information, whether written or oral, or any portion thereof, for any purpose, at any time or in any place, without the express prior written approval of GiANT.
16. You agree that you do not acquire any title, ownership, or any other intellectual property right, interest, or license under this Agreement, except the license explicitly granted to you herein. All Licensed Confidential Information disclosed to you hereunder, either before or after the Effective Date of this Agreement, constitutes the confidential and proprietary information of GiANT and is and shall remain the sole and exclusive property of GiANT.
D. PROHIBITION AGAINST COMMERCIAL USE
You agree that you will not sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit Licensed Confidential Information, or any data, content, or service provided through the GiANT TV Portal. Use of Licensed Confidential Information to develop products or services for sale, license, or similar commercial distribution is strictly prohibited.
E. PUBLIC DERIVATIVE MATERIALS
You shall not modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Licensed Confidential Information or any part thereof without the prior written consent of GiANT and subject to terms of a separate, written agreement.
F. NON-CONFIDENTIAL INFORMATION
Licensed Confidential Information does not include, and you have no obligation to preserve the confidentiality of, information that: (a) was previously known to you prior to the execution of this Agreement and not disclosed to you by GiANT; (b) is or becomes publicly available, other than by an unauthorized disclosure; (c) is independently developed by you without knowledge of the Licensed Confidential Information as shown by the your written records; (d) is disclosed to third parties by GiANT without restriction; or (e) is lawfully received by you from a third party whose disclosure did not violate any confidentiality or other legal obligation.
G. DISCLOSURES REQUIRED BY LAW
If you receive a subpoena, request, or directive by a court or governmental body under other law, you agree to immediately notify GiANT of such request so that GiANT has a reasonable opportunity to protect the confidentiality of its information to the extent permitted by law. If no protective order or other remedy is obtained, you agree to disclose only that portion of the Licensed Confidential Information that you are legally compelled to disclose.
H. TERM AND TERMINATION
1. The term of this Agreement, and your access to Licensed Confidential Information, the GiANT TV Portal and User Information, shall begin on the date that your Account access is approved by GiANT will remain in full force and effect so long as you continue to access and use the GiANT TV Portal and User Resources, or until terminated in accordance with the terms of this Agreement. The obligations of this Agreement with respect to the confidentiality of Licensed Confidential Information shall survive termination of this Agreement for a period of ten years.
2. At any time, GiANT may (a) suspend or terminate your rights to access or use User Resources or the GiANT TV Portal, (b) terminate the terms of this Agreement with respect to you if GiANT in good faith believes that you have violated the terms of this Agreement, or (c) terminate the terms of this Agreement with respect to you for convenience upon delivery of advance notice to you.
3. Upon termination, GiANT may demand immediate return of all Licensed Confidential Information. You agree to immediately return all Licensed Confidential Information upon receipt of GiANT's written request.
I. INJUNCTIVE RELIEF
In the event you breach this Agreement, you agree that the damage to GiANT will be difficult to quantify. Therefore, GiANT may apply to a court of competent jurisdiction for injunctive or other equitable relief without waiving any other relief in either law or equity.
J. LIMITATION OF LIABILITY
GiANT is not liable for any loss or damage arising from your use of User Resources. YOU AGREE THAT NEITHER GIANT NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, OFFICERS OR OWNERS SHALL BE LIABLE FOR ANY LOSS OF DATA OR PRIVACY, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, COST OF RECOVERY, LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING FROM YOUR USE OF THE USER RESOURSES OR ANY OTHER SERVICE DELIVERED HEREUNDER, OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY PRODUCTS, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR YOUR EXPORTATION, REEXPORTATION, OR IMPORTATION OF ANY OR ALL OF THE SAME. THIS LIMITATION WILL APPLY EVEN IF GIANT, ITS AFFILIATES, SUPPLIERS, EMPLOYEES, OFFICERS OR OWNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF GIANT, ITS AFFILIATES, SUPPLIERS, EMPLOYEES, OFFICERS OR OWNERS EXCEED THE AMOUNT PAID FOR THE USER RESOURCES OR ANY OTHER SERVICE DELIVERED HEREUNDER AT ISSUE. YOU ACKNOWLEDGE THAT THE USER RESOURCE FEES REFLECT THESE ALLOCATIONS OF RISK. SOME JURIDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. For purposes of this Agreement, the term “Affiliate” shall mean any entity that controls, is under common control with, or is controlled by GiANT, where “control” means the ownership, direct or indirect, of a majority of GiANT’s partnership interests or other interest entitled allowing the owner to direct the affairs of GiANT.
K. JURISDICTION AND VENUE
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Oklahoma and of the United States of America, without regard to conflicts of laws principles which would apply the law of any other jurisdiction. Venue for any dispute concerning this agreement shall be proper and lie exclusively in the district court of Oklahoma County, State of Oklahoma, if in state court, and if in federal court then in the United States District Court for the Western District of Oklahoma, sitting in Oklahoma City, Oklahoma.
L. INTELLECTUAL PROPERTY RIGHTS
In the event that the Licensed Confidential Information is or becomes the subject of a patent application, patent, copyright application, or copyright, the you agree and understand that GiANT will have all resulting rights available to it under the law, and that disclosure of Licensed Confidential Information to the you does not affect those rights.
You may not assign or otherwise transfer this Agreement. GiANT may assign or transfer this Agreement at any time upon delivery of written notice to you of such assignment or transfer.
You agree to indemnify and hold GiANT harmless from all losses, damages, causes of action, and attorneys' fees incurred by GiANT arising from your breach of this Agreement.
GiANT reserves the right to make changes to the terms of this Agreement. You should ensure that you have read and agree with our most recent Terms and Conditions of Use when you use or access the GiANT TV Portal or any User Resources, data, content or service provided by GiANT. Continued use of the GiANT TV Portal or User Resources following notice of such changes shall indicate your acknowledgement of such changes and your agreement to be bound by the terms and conditions of such changes.
P. NO WARRANTY
The Licensed Confidential Information disclosed hereunder may relate to User Resources as well as products that are under development or planned for development. GIANT DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, AND ANY EXPRESS WARRANTY WITH RESPECT TO ANY INFORMATION DISCLOSED HEREUNDER. GiANT accepts no responsibility as a result of any expenses, losses, damages, or actions incurred or undertaken by you as a result of your receipt or use of the Licensed Confidential Information, GiANT TV Portal or any User Resources.
Q. NO WAIVER; AMENDMENT; EXCLUSIVE AGREEMENT
No failure or delay by GiANT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement may not be modified, supplemented or amended orally. This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior or contemporaneous oral or written agreements or understandings between you and GiANT regarding such subject matter.
R. EFFECTIVE DATE
The Effective Date of the Agreement is the date that your Account access is approved by GiANT.
All notices and requests under this Agreement must be in writing and made to:
For GiANT: GiANT Worldwide, LP
435 NW 23rd St.
Oklahoma City, OK 73103
Attn: GiANT TV Customer Service
For you: The email address submitted with your registration form shall be used for contact.
You affirmatively “sign” and indicate your acceptance of this Agreement by clicking the "Submit" button to create an account on the GiANT TV Portal. GiANT indicates its acceptance of this Agreement by then allowing you access to the GiANT TV Portal.
GIANT PROVIDES THE USER RESOURCES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, THE TERMS AND CONDITIONS SET FORTH IN THE TERMS AND SERVICES AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “SUBMIT” BUTTON, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ALL TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, GIANT WILL NOT AND DOES NOT LICENSE THE USER RESOURCES TO YOU AND YOU MUST NOT DOWNLOAD OR UTILIZE THE USER RESOURCES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY USER RESOURCES THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF ANY OF THE USER RESOURCES.