End User Licence Agreement

Last updated: January 3, 2014

Thank you for your interest in this software application for your mobile device (the “App”) provided to you by Capigami, Inc. (“Capigami”), which enables you to use certain features of Capigami’s online list management service known as “Out of Milk” (the “Service”) from your mobile device. This End User License Agreement (the “EULA”), together with the Out of Milk Terms of Use located at http://www.outofmilk.com/Terms.aspx into which this EULA is incorporated by reference (collectively the “Terms”), as may updated from time to time, govern your use of the App and the Service. Defined terms used, but not defined in this EULA, have the meanings given to them elsewhere in the Terms or associated policies. You may request a copy of this EULA by emailing us at info@capigami.com

BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE APP, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE EULA AND BY USING THE APP TO ACCESS OR USE THE SERVICE YOU FURTHER AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT AGREE, YOU MAY NOT USE THE APP OR THE SERVICE.

You acknowledge and agree that, as may be provided in greater detail in the EULA, Terms and Privacy Policy:

- The App is licensed, not sold to you, and that you may use App only as set forth herein;

- the use of the App may be subject to separate third party terms of service and fees, such as the terms of service fees charged by your mobile network operator (the “Carrier”). Compliance and payment are your sole responsibility;

- you consent to the collection, use, and disclosure of your personal information as set forth in Capigami’s Privacy Policy, including with respect to the collection, use and disclosure of your location information to third parties to provide you and tailor for you deals, advertisements and other content;

- the App is provided “as is” with no warranties, and Capigami’s liability to you is limited;

- disputes between us will be resolved by binding arbitration as set forth in the Terms, and by accepting this EULA, as provided in greater detail in Section 13 of this EULA, we each waive certain rights to trial by jury or to participate in a class action;

- the App requires access to the following services or permissions on your mobile device: mobile device, network and wi-fi state, internet, camera functionality, coarse and fine location, vibrate functionality, wake lock functionality, run on boot functionality, get accounts functionality (to obtain email accounts registered on the device), and write external storage functionality and any other services or permissions that are reasonably necessary to provide you the Service through the App or that you grant; and

- if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.

1. LIMITED LICENSE.

Subject to your complete and ongoing compliance with all the terms and conditions set forth in this EULA and the Terms (including without limitation payment of any applicable fees and compliance with all license restrictions), Capigami grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to use one copy of the App downloaded directly from Capigami or from a legitimate marketplace (such as Apple’s iTunes store or Google Play), solely in object code format and solely for your own use for lawful purposes, on a single compatible mobile device that you own or control, and (2) permission to access and use the Service, only for your own use, and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to the App; or (b) interfere with, disable, or circumvent, or attempt to disable or circumvent, any feature of the App, including without limitation any security, access control mechanism, or other technological measure designed to protect the App or any content available through the App. 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 and intended. The term App, as used herein, includes any update or modification to the App made available to you by Capigami in its sole discretion (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights.

2. USE OF THE APP AND THE SERVICE – THIRD PARTY TERMS AND FEES.

You are solely responsible for your use of the Service on your mobile device, including without limitation compliance with these and any applicable third party terms, and payment of any applicable third party fees. Without limiting the generality of the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier.

3. CONSENT TO USE AND DISCLOSURE OF DATA.

You consent to the collection, use, and disclosure policies set forth in Capigami’s Privacy Policy, including without limitation with respect to the collection, use and disclosure of location information to third parties to provide you deals, advertisements and other content that may interest you. Please see Capigami’s Privacy Policy, located at http://www.outofmilk.com/Privacy.aspx for more information regarding the information Capigami collects, and how it uses and discloses that information.

4. RESERVATION OF RIGHTS.

App, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service you may access through the App (the “Capigami 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 Capigami, all Capigami Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of Capigami or its subsidiaries or affiliated companies and/or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the Capigami Materials except as expressly authorized hereunder. Capigami reserves all rights in and to the Capigami Materials not expressly granted in the Terms. You shall not acquire any right, title or interest to the Capigami Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in the Terms.

5. FEEDBACK.

If you provide Capigami with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Service or App (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Capigami 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 or App. You hereby grant Capigami a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose without compensation to you.

6. TERM AND TERMINATION.

This EULA will remain in effect until terminated, or until the Terms terminate for any reason (the “Term”). The EULA, and your rights and licenses hereunder, will terminate immediately upon your breach of the EULA. You may terminate the EULA by uninstalling and ceasing all use of the App, and you must do so (and return any delivery media, if any, to Capigami) immediately upon any termination. Capigami may terminate this EULA at any time for any reason, including without limitation any actual or suspected misuse or abuse by you of the App or the Service. Sections 3-6 and 8-15 shall survive any termination of this EULA.

7. MODIFICATIONS.

Capigami reserves the right, in its sole discretion, to change, modify, add, or remove portions of the App, or to change, modify, add, or remove portions of this EULA at any time by making such modified EULA available to you through the App. The EULA will be identified as of the most recent date of revision at the beginning of this EULA and will be effective immediately upon being made available through the App, except as follows: a) in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the email address you have provided to Capigami, if any, or through a pop-up window or other notification when you access or use the App, b) such materially modified EULA will be effective upon the earlier of your use of the App 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 Capigami that arose prior to the date of such modification. Your use of the App 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.

8. WARRANTY DISCLAIMER.

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, CAPIGAMI 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. CAPIGAMI 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. CAPIGAMI FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH AN EVENT THE ABOVE LIMITATIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

9. LIMITATION OF LIABILITY.

UNDER NO CIRCUMSTANCES WILL CAPIGAMI 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 CAPIGAMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL CAPIGAMI’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS EULA OR THE TERMS EXCEED THE GREATER OF AMOUNTS PAID BY YOU FOR THE APP OR TWENTY FIVE DOLLARS ($25 USD). SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON 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.

10. THIRD PARTY DISPUTES.

CAPIGAMI IS NOT AFFILIATED WITH ANY CARRIER, OR SERVICE PROVIDER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, OR OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY OTHER USER OF THE CAPIGAMI SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE CAPIGAMI (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

11. INDEMNITY.

You agree to indemnify, defend and hold Capigami 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 App and/or the Service, and your violation of this EULA, any applicable law or regulation, or the rights of any third parties related to the use of the Service.

12.THIRD PARTY SOFTWARE.

The App may be distributed alongside certain third party software ("Third Party Software") provided under separate license terms (the "Third Party Terms"), as set forth in more detail via the App’s Help menu. Your use of such Third Party Software in conjunction with the App in a manner consistent with the terms of this EULA is permitted; however, you may have broader rights under the applicable Third Party Terms and nothing in this Agreement is intended to impose further restrictions on your use of the Third Party Software.

13. DISPUTE RESOLUTION.

a. In the interest of resolving disputes between you and Capigami in the most expedient and cost effective manner, you and Capigami agree that any and all disputes arising in connection with this EULA 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 these Terms, 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 these Terms. You understand and agree that, by entering into these Terms, you and Capigami are each waiving the right to a trial by jury or to participate in a class action.

b. Exceptions. Notwithstanding subsection (a), we 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 Capigami will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, 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 Capigami.

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"). Capigami's address for Notice is: Capigami, Inc., 156 2nd St., San Francisco, CA 94105. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Capigami may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Capigami shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Capigami shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Capigami in settlement of the dispute prior to the arbitrator’s award.

e. Fees. In the event that you commence arbitration in accordance with these Terms, Capigami will reimburse you for your payment of the filing fee, unless your claim is for greater than $5,000, 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 Santa Clara County, California, provided that if the claim is for $5,000 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. 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 Capigami 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 CAPIGAMI 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 Capigami 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 Capigami makes any future change to this arbitration provision (other than a change to the Capigami's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Capigami's address for Notice, in which case your account with Capigami shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.

h. Enforceability. If only Subsection f of this Section 13 or the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in the “Governing Law; Venue” Section, below, shall govern any action arising out of or related to these Terms.

14. GOVERNING LAW; VENUE.

This EULA, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents, and without regard to conflict of law principles, and all disputes hereunder will be resolved in accordance with the dispute resolution provisions set forth in Section 13 above.

15. MISCELLANEOUS.

This EULA (including the Terms and any associated policies) is the entire agreement between you and Capigami, and supersedes any and all prior agreements, negotiations, or other communications between you and Capigami, whether oral or written, with respect to the App, and cannot be modified except as expressly provided herein. 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, or of the Terms generally, shall in no way be affected or impaired thereby. You may not assign this EULA without the prior written consent of Capigami, directly or indirectly, 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. Capigami 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 Capigami has no liability to you for any harm resulting from a force majeure event. A force majeure event means any event beyond the reasonable control of Capigami. 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. Capigami’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.

16. NOTICE REGARDING APPLE.

If you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This EULA is between you and Capigami 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.