END USER LICENSE AGREEMENT AND TERMS OF SERVICE
Last Updated: 22th Jan, 2022
This End User License Agreement and Terms of Service (“EULA”) is between 54GAG Limited (“54GAG”) and you, an individual user (“you”), and governs your use of 54GAG’s website at 54gag.com (“Website”), mobile software application that has been made available for download (“App”) and any related websites or other online properties owned or controlled by 54GAG (together with the App, the “Service”). BY INSTALLING ANY APP OR OTHERWISE ACCESSING OR USING ANY PORTION OF THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, THEN YOU MAY NOT USE ANY PORTION OF THE SERVICE.
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
the Service is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (“Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
you are responsible for clearing the rights to all User Content you Post to the Service;
54GAG provides the App to you on an “as is” basis without warranties of any kind and 54GAG’s liability to you is limited;
disputes arising between you and 54GAG will be resolved by binding individual arbitration. By accepting this EULA, as provided in greater detail in Section 12 below, you and 54GAG are each waiving the right to a trial by jury or to participate in a class action;
you agree to and acknowledge the “Notice Regarding Apple” below; and
if you Post (defined in Section 5.1 below) any Objectionable Content (defined in Section 5.8 below) on the Service, then 54GAG may – but has no obligation to – take any remedial action that 54GAG, in its sole discretion, deems necessary and/or appropriate under the circumstances, such as, without limitation, suspending or terminating your Account (defined in Section 3.1 below), removing all of your User Content (defined in Section 5.1 below) from the Service and/or reporting you to law enforcement authorities, either directly or indirectly.
1. GENERAL TERMS AND CONDITIONS
1.1 Description. 54GAG is an online platform and social media website that allows users to upload and share user-generated content. It is a leading platform for entertainment content in Africa. As used in this EULA, “User” means any user of the Service.
1.2 Eligibility. IN KENYA, THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 14. FOR USERS OUTSIDE OF THE UNITED STATES, THE SERVICE IS NOT FOR PERSONS UNDER THE AGE FOR WHICH RULES APPLY ON A AGE-BASED BASIS FOR THE COLLECTION OF DATA (“RESTRICTED AGE”). IN ALL CASES, THE SERVICE IS NOT FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY 54GAG. IF YOU ARE UNDER 14 YEARS OF AGE IN KENYA OR THE RESTRICTED AGE IN THE TERRITORY WHERE YOU RESIDE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age and entered into this EULA on your behalf. If you are using the Service on behalf of an entity or organization, then you represent and warrant that you have the authority to bind that entity or organization to this EULA and you agree to be bound by this EULA on behalf of that entity or organization.
1.3 Changes. As the Service may undergo changes over time, we need the right to modify this EULA to match the changing functionalities of the Service. You therefore agree that 54GAG may change this EULA at any time without prior notice other than posting an updated EULA to the 54GAG website or within our App. 9GAG will endeavor to provide you with prior notice when there are any material changes, and may require that you subsequently take an affirmative action acknowledging agreement to the revised EULA before continuing to access the Service. You may read a current, effective copy of this EULA at any time at https://54gag.com/terms. The revised EULA will become effective at the time of posting on the Service, and your use of the Service after such time will constitute your acceptance of the revised EULA. If any change to this EULA is not acceptable to you, then your sole remedy is to stop using the Service. Notwithstanding the preceding sentences of this Section 1.3, no revisions to this EULA will apply to any dispute between you and 54GAG that arose prior to the effective date of those revisions.
1.4 Consideration. 54GAG currently provides you with access to the Service for free. In return for enjoying this free access, you acknowledge and agree that 54GAG may generate revenues (including, by way of example and not limitation, through the sale of advertising and sponsorships, and the sublicensing of your User Content), increase goodwill or otherwise increase the value of 54GAG from your use of the Service, and you will have no right to share in any such revenues, goodwill or value whatsoever. 54GAG in its sole discretion may eventually charge you fees to access certain features on the Service. 54GAG will provide you with advance notice of any such changes before they take effect. Even if we charge you a fee for the use of the Service, you will have no right to share in the revenues we charge you or other Users or to share in any goodwill or value created.
1.6 Jurisdiction. The Service is controlled and operated by 54GAG from its offices in NAIROBI KENYA. 54GAG makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than KENYA. Those who choose to access or use the Service from locations outside KENYA, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the content or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
1.7 Mobile Services. The Service will be accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Service and the related Mobile Services must be in accordance with this EULA.
1.8 Additional Terms. 54GAG may require you to agree to additional terms and/or policies that it makes available to you from time-to-time in connection with your use of the Service (“Additional Terms”), including the 54GAG Rules. Except as expressly stated otherwise in Additional Terms, such Additional Terms are hereby incorporated into and subject to this EULA, and this EULA will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency, unless such Additional Terms expressly supersede a term in this EULA.
1.9 Fun Off Contest Rules. By signing up, entering into, submitting User Content in connection with, or otherwise participating in a 54GAG Fun Off contest, you agree that you have read and understood, and, as a condition to your entering into the contest, you agree to be bound by the 54GAG Fun Off Contest Rules located here (“Content Rules”). The Contest Rules are incorporated by this reference into, and made a part of, this EULA. To the extent there is a conflict between the Contest Rules and this EULA, the Contest Rules will govern.
2. COMMUNITY GUIDELINES
In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to (and not attempt to or assist any other person or entity in doing any of the following):
a. take any action or Post any User Content in violation of the 54GAG Rules;
b. delete, alter or make unauthorized copies of any content (whether 54GAG Content, User Content, or otherwise) made available on or through any part of the Service, excluding any User Content that you have Posted (as defined in Section 5.1);
c. attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up any part of the Service, except to the extent any such restrictions are expressly prohibited by applicable law;
d. rent, lease, loan, resell, sublicense, distribute or otherwise transfer any part of the Service or content thereon to any third party;
e. remove, circumvent, disable, damage or otherwise interfere with security-related features of any part of the Service, features that prevent or restrict use or copying of any content accessible on any part of the Service, or features that enforce limitations on use of any part of the Service or any content thereon;
f. delete any copyright or other proprietary rights notices on any part of the Service;
g. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access accounts of others without permission, forge another person’s digital signature, misrepresent the source, identify or content of information transmitted via the Service, or perform any other fraudulent activity;
h. create a new Account with 54GAG, without 54GAG’s express written consent, if 54GAG has previously disabled an Account of yours;
i. restrict, discourage or inhibit any person from using the Service or disclose personal information about a third person on the Service or obtained from the Service without the consent of that person;
j. use the Service, without 54GAG’s express written consent, for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
k. gain unauthorized access to the Service, to other Users’ Accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
l. Post any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment or any other aspect of the Service or communications equipment and computers connected to the Service;
m. access, tamper or interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers; or
n. violate any applicable federal, state or local laws or regulations or the terms of this EULA.
3.1 Accounts. While you may always browse any public-facing portions of the Service without registering with 54GAG, in order to enjoy the full benefits of the Service, you must register an account with 54GAG (“Account”). You may also register and log into the Service using credentials from a supported External Service (defined in Section 8 below), such as Facebook or Google. When you register for an Account, you must provide us with some information about yourself such as your name and email address. You may not select or use as an Account username that is: (i) a name of another person with the intent to impersonate that person; or (ii) a name subject to any rights of any person, entity, or organization other than yourself without appropriate authorization.
3.2 Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify 54GAG immediately at [email protected] if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. 54GAG will not be liable for any loss or damage (whether direct or indirect) arising from unauthorized use of your credentials prior to you notifying 54GAG of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Services.
3.3 Accuracy of Information. When creating an Account, you will provide true, accurate, current, and complete information as 54GAG requests. You will update such information promptly, and as necessary to keep it current and accurate. 54GAG reserves the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by 54GAG in its sole discretion, and may, with or without prior notice and without liability to you, suspend or terminate your Account if activities occur on your Account that, in 54GAG’s sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of 54GAG, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then 54GAG may terminate your Account immediately without notice to you and without any liability to you or any third party.
4. GENERAL USE OF THE SERVICE
4.1 License. Subject to your complete and ongoing compliance with this EULA, 54GAG hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to: (i) download, access and use an object code version of the App on any device that you own or control; and (ii) access and use all other portions of the Service, in each case, solely for your personal use. Any third-party code that may be incorporated into any App is covered by the applicable open source or third party license, if applicable. For a list of the open source components included in the App, please refer to the document located here.
4.2 Content. Except for User Content (defined in Section 5.1), the content that 54GAG provides to Users on or through the Service, including, without limitation, any sound recordings (and the musical works embodied therein), audiovisual works (and the sound recordings and musical works embodied therein), text, graphics, photos, software and interactive features, are protected by copyright or other intellectual property rights and owned by 54GAG or its third party licensors (collectively, the “54GAG Content”). Moreover, 54GAG solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
4.3 Marks. The 54GAG trademarks, service marks, and logos (collectively, the “9GAG Trademarks”) used and displayed on the Service are 54GAG’s registered and/or unregistered trademarks or service marks. Any other product and service names located on any part the Service may be trademarks or service marks owned by third parties (collectively with the 54GAG Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage 54GAG or the applicable third party, 54GAG’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any website without 54GAG’s prior express written consent. All goodwill generated from the use of any 54GAG Trademark will inure solely to 54GAG’s benefit.
4.4 Reservation of Rights. 54GAG hereby reserves all rights not expressly granted to you in this Section 4. Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any 54GAG Content or Trademarks located or displayed therein.
4.5 Functionality. Certain features and functionalities may only be available on the Website or the App but not both. 54GAG, in its sole discretion, may provide functionalities across both the Website and the App, and may disable functionalities, temporarily or permanently, at any time, without any liability to you.
5. USER CONTENT; LICENSE TO 54GAG; FEEDBACK
5.1 Definition. This Section 5 governs any content that Users upload, post or transmit to or through the Service (collectively, “Post”) including, without limitation, photographs, text, sound recordings, musical works, or audiovisual works, and any other works subject to protection under the laws of Kenya or any other jurisdiction, including, without limitation, patent, trademark, trade secret and copyright laws (collectively, “User Content”). User Content also includes any content hosted on or accessible through an External Service that is made accessible through the Service. For clarity, User Content excludes any and all 54GAG Content.
5.2 Screening Content. 54GAG does not pre-screen any User Content, but reserves the right to remove, disallow, block or delete any User Content in its sole discretion. In addition, 54GAG has the right – but not the obligation – in its sole discretion to remove, disallow, block or delete any User Content: (i) that 54GAG considers to violate this EULA, applicable law or otherwise constitute Objectionable Content; or (ii) in response to complaints from other Users, licensors or copyright owners or their agents, with or without notice and without any liability to you. Without limiting the preceding sentences of this Section, 54GAG also has the right – but not the obligation – to take remedial action in connection with any Objectionable Content Posted to the Service as described more fully in Section 5.8 below. 54GAG recommends that you save copies of any User Content that you Post on your personal device(s) or other storage media to ensure that you have permanent access to copies of such User Content.
5.3 Ownership. SUBJECT TO ANY THIRD PARTY RIGHTS IN ANY PREEXISTING CONTENT THAT IS A PART OF YOUR USER CONTENT, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND POSTING YOUR USER CONTENT DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS TO 54GAG OR ANY THIRD PARTY.
5.4 License to 54GAG. You hereby grant 54GAG an unrestricted, assignable, sublicensable, revocable (except as set forth below), royalty-free, fully paid-up license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Services, and otherwise exploit and use, whether in a linear or on-demand basis (collectively, “Use”) all or any part of all User Content you Post by any means and through any media and formats, whether now known or hereafter developed, for the purposes of: (i) advertising, marketing, and promoting 54GAG, the Service, and the availability of your User Content on the Service; (ii) displaying and sharing your User Content to other Users of the Service; (iii) providing the Service as authorized by this EULA; (iv) reproducing and distributing your User Content in merchandise offered for free or for a fee; and (v) sublicensing third parties to Use your User Content as 54GAG deems appropriate in its sole discretion, including, by way of example and not limitation, to advertise, market and promote such third parties’ products, goods or services (whether in or out of context) and the availability of your User Content as made available by such third parties. For the avoidance of doubt, the rights granted in the preceding sentences of this Section include, but are not limited to, the right to: (A) reproduce audiovisual works (and any sound recordings and musical works embodied therein), sound recordings (and any musical works embodied therein), and musical works; (B) publicly display audiovisual works; (C) publicly perform and communicate to the public audiovisual works (and any sound recordings and musical works embodied therein), sound recordings (and any musical works embodied therein), and musical works; and (D) sublicense third parties to do all of the foregoing with your User Content on a royalty-free basis. You acknowledge and agree that you are not entitled to any payments from 54GAG, and sublicensees of 54GAG, or any other third party for Uses of your User Content as authorized in this EULA. Following any termination of the licenses set forth in this Section, 54GAG may make and retain archival copies of your User Content in a manner consistent with 54GAG’s practices regarding data retention and backups. Notwithstanding any other provision in this EULA, the licenses granted in this Section 5.4 are perpetual and irrevocable with respect to any of your User Content that 54GAG sublicenses to any third party prior to the effective date of termination of your license grant with respect to any item of your User Content as set forth below. This means that, content you Post to the Service may live on the Internet in perpetuity, and you should think carefully before Posting any User Content to the Service.
5.5 You Must Have Rights to the Content You Post; Certain of Your Representations and Warranties. You must not Post any User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post any audiovisual works containing such sound recordings unless you have all necessary rights, authorizations and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to 54GAG under this EULA. You represent and warrant that: (i) you own the User Content Posted by you or otherwise have all rights necessary to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content does not violate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights, or any other rights of any party, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person resulting from Posting your User Content, including from 54GAG’s exercise of the license set forth in Section 5.4.
5.6 Through-To-The-Audience Rights. All of the rights you grant in this EULA are provided on a through-to-the-audience basis, meaning the owners or operators of External Services or third party sublicensees of 54GAG will not have any separate liability to you or any other third party for User Content Posted or Used on such External Services or by such third party sublicensees via the Service.
5.7 Waiver of Rights to User Content. By Posting User Content, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post.
5.8 Non-Confidentiality. You must not Post any User Content on or through the Service or transmit to 54GAG any User Content that you consider to be confidential or proprietary. Any User Content Posted by you or otherwise transmitted to 54GAG will be considered non-confidential and non-proprietary, and treated as such by 54GAG, and may be used by 54GAG in accordance with this EULA without notice to you and without any liability to 54GAG.
5.9 Objectionable Content. You are not permitted to and agree not to Post any User Content that is or could be interpreted to be, as 54GAG may determine in its sole discretion, (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar or in violation of any applicable laws; or (ii) promoting any product, good or service, or bigotry, discrimination, hatred, intolerance, racism or inciting violence ((i) and (ii) collectively, “Objectionable Content”). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. You also agree not to use the Service for illegal or unlawful purposes. If you encounter any Objectionable Content on the Service, then please immediately email 54GAG at [email protected]. You acknowledge and agree that 54GAG provides you with the ability to report Objectionable Content as a courtesy, and 54GAG has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to 54GAG. However, 54GAG in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content, including, without limitation, warning the User, suspending or terminating the User’s Account, removing some or all of the User’s User Content and/or reporting the User to law enforcement authorities, either directly or indirectly. By accessing and using the Service, you acknowledge and agree that you may be exposed to Objectionable Content.
5.10 No Liability. For the avoidance of doubt, 54GAG will not be liable for any use or misuse of User Content by any User or any third party sublicensee, whether arising from a breach of this EULA or any other agreement entered into between a User or a third party and 54GAG.
5.11 FTC Endorsement Guidelines. Notwithstanding any other provision in this EULA, you represent and warrant that you will comply with all laws and regulations regarding endorsements or testimonials made by you in any User Content, including that you will (i) make only accurate statements that represent your genuine experience with any product, good or service and (ii) make all required disclosures pursuant to the Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising, as such guides may be amended from time-to-time by the FTC. Follow this link for further information on complying with the FTC’s guidance: https://www.ftc.gov/sites/default/files/documents/one-stops/advertisement-endorsements/091005revisedendorsementguides.pdf.
5.12 Feedback. If you choose to provide 54GAG with input or suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant to 54GAG a perpetual, irrevocable, non-exclusive, fully-paid and royalty-free right to use and exploit the Feedback in any manner and for any purpose without any restriction, credit, attribution or fees due to you.
5.13 Engaging with User Content and Other Users. User engagement with User Content and other Users through the Service (e.g., “liking,” “commenting,” “sharing,” “tagging,” “messaging,” or “ranking”) or any External Service for which we provide “sharing” functionality will be tracked and recorded by 54GAG. You hereby consent to the monitoring of this activity on the Service.
6. GENERAL PAYMENT TERMS
6.1 Fees. Certain features of the Service may require you to pay fees, such as the purchase of 54GAG Pro on the App. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars unless otherwise specified and are non-refundable, except as otherwise required by law.
6.2 Price. 54GAG reserves the right to determine pricing for any paid features of the Service. 54GAG may change the fees for any feature of the Service, including additional fees or charges, if 54GAG gives you advance notice of changes before they apply. 54GAG, at its sole discretion, may make promotional offers with different features and different pricing to any User. These promotional offers, unless made to you, will not apply to your offer or this EULA.
6.3 Authorization. You authorize 54GAG to charge all sums for the orders that you make and any level of Service you select to the payment method specified in your account or the applicable third-party App Store, such as the Apple App Store or Google Play. If you pay any fees with a credit card, 54GAG may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
7.1 Merchandise. We may offer merchandise, physical or digital goods or services (collectively, “Merchandise”) for sale on the Website. The price for Merchandise shall be displayed at the point of purchase. You shall be responsible for the payment of any Merchandise purchased by you, as well as any shipping costs, taxes or other fees associated with Merchandise. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Merchandise sold or offered for sale.
7.2 Currency. All charges and payments for Merchandise will be made in U.S. Dollars unless otherwise specified. Currency exchange settlements and foreign transaction fees are based on your agreement with your credit card, debit card or other payment method provider.
7.3 Orders. All purchases of Merchandise made through the Service will be confirmed by an e-mail sent to the e-mail address affiliated with your User account or the e-mail address provided at the time of purchase. If you have any questions regarding any purchase confirmation you receive, please direct your questions to [email protected]. The purchase of Merchandise from any External Services shall be governed by the terms of such External Services and you are responsible for ensuring that you read, understand and agree to the terms of any External Services used by you to purchase any Merchandise.
7.4 Shipment. We will arrange for shipment of Merchandise sold by us to you at the address set forth in any order information you provide to us. Please check the individual order pages for specific delivery options. We cannot currently ship Merchandise to Crimea, Cuba, Iran, Iraq, Syria and North Korea. Promotion code discounts do not apply to any shipping fees.
7.5 Title and Risk of Loss. Title and risk of loss to Merchandise that you buy will pass to you upon delivery of the Merchandise, but the purchase of Merchandise shall not transfer any intellectual property rights in any Merchandise unless specifically noted.
7.6 Methods of Payment. Merchandise purchases made through 54GAG can only be made using an approved payment mechanism (e.g., debit and credit cards). We use one or more third parties to process payments for orders, such as, by way of example and not limitation, Apple Pay, PayPal, Stripe, and Shopify Payments. (“Payment Processors”). Payment Processors may require you to agree to their own terms and conditions. We are not liable for any problems or disputes that you may have with such Payment Processors. You authorize 54GAG and our Payment Processors to charge all sums for the purchases that you make on the Website. Any processing or other transaction fees, whether imposed by an issuing bank of a credit card or Payment Processor involved in the processing of a payment transaction, are the sole responsibility of the User, as established by the Payment Processor. You must be authorized to use the payment method used to make purchases through the Service. 54GAG may seek pre-authorization of your credit card prior to a purchase or charge to verify the credit card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Charges for Merchandise occur within a reasonable time of the transaction or shortly thereafter, and 54GAG reserves the right to aggregate multiple charges together into one transaction where such multiple charges occur in close proximity to one another. This aggregation will help reduce 54GAG’s credit card transaction fees and enable us to continue to offer the Service for free.
7.7 Taxes. When you are a buyer of Merchandise, you are solely responsible for the payment of any taxes and fees arising out of such transaction. You agree to indemnify and hold 54GAG harmless from any claims by any taxing authority arising out of your purchase of Merchandise on or through the Service.
7.8 Refunds and Exchanges. ALL SALES OF MERCHANDISE FROM THE SERVICE (BUT NOT NECESSARILY FROM EXTERNAL SERVICES) ARE FINAL, and 54GAG does not offer refunds for any purchased Merchandise. If the Merchandise you purchased is misprinted, damaged, or defective, then in order to be eligible to exchange the Merchandise, you must submit a claim to us by sending an email to [email protected] within four weeks from the date of receipt of the Merchandise. If you do not receive your purchased Merchandise and believe it was lost in transit, then in order to be eligible to receive replacement Merchandise, you must submit a claim to us by sending an email to [email protected] within four weeks of the estimated delivery date. 54GAG is not obligated to provide you with any exchanges or replacement merchandise if you fail to comply with the timing requirements set forth in this Section 7.8.
7.9 Cancellation of Payments and Purchases. Payments and purchases may not be cancelled by the User, except as required by law. However, 54GAG reserves the right to refuse or terminate any purchase or attempted purchase at any time in its sole discretion. You understand and agree that if you authorize a payment transaction with your credit card, debit card or other payment method, but your charge is rejected for any reason, there may be a hold on your use of that transaction amount for several days.
7.10 Disputed Charges. NOTWITHSTANDING ANY OTHER PROVISION OF THIS EULA, YOU AGREE TO SUBMIT ANY DISPUTES REGARDING ANY CHARGE TO YOUR ACCOUNT OR CREDIT CARDS FOR PURCHASES THROUGH THE SERVICE (BUT NOT ANY EXTERNAL SERVICES) IN WRITING TO 54GAG WITHIN 60 DAYS OF SUCH CHARGE, OTHERWISE SUCH DISPUTE WILL BE WAIVED AND SUCH CHARGE WILL BE FINAL AND NOT SUBJECT TO CHALLENGE.
8. EXTERNAL SERVICES
The Service may contain links to or the ability to share information with third party websites and services (“External Services”), including through features that allow you to link your Account on 54GAG with an account on an External Service, such as Facebook and Google. 54GAG does not endorse any External Services or the content made available on such External Services. All External Services and any content thereon is developed and provided by others. You should contact the site administrator or webmaster for those External Services if you have any concerns regarding such content located on such External Services. 54GAG is not responsible for the content of any External Services and does not make any representations regarding the content or accuracy of any materials on such External Services. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Services, purchase any content from External Services or subscribe to services offered by such External Service, then you do so at your own risk. You agree that 54GAG will have no liability to you arising from your use, engagement, exposure to or interaction with any External Services.
9. TERM AND TERMINATION
9.1 Term. As between you and 54GAG, the term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or 54GAG.
9.2 Termination. You may terminate this EULA by sending written notification to 54GAG at [email protected], deleting your Account, deleting the App from your mobile devices, and terminating all other uses of the Service. If you wish to delete any of your User Content from the Service, then you can ask 54GAG to do so for you by contacting 54GAG at [email protected]. 54GAG will delete your User Content within 30 days of receipt of your request. Notwithstanding the preceding sentence, the revocation of any license grant from you to 54GAG will not be effective until 60 days following 54GAG’s receipt of such revocation notice; provided, however, that your license grant to 54GAG for your User Content will be irrevocable with respect to backup copies made of your User Content in the ordinary course of business. 54GAG reserves the right, in its sole discretion, to restrict, suspend or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA or violate the rights of any third party copyright owner. 54GAG may further terminate this EULA immediately for any other reason with or without notice to you, using the email address associated with your account credentials. 54GAG reserves the right to change, suspend or discontinue all or any part of the Service at any time without prior notice or liability.
9.3 Survival. Sections 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 3.2, 3.3, 4.2, 4.3, 4.4, 5, 7.3, 7.5, 7.7, 7.8, 7.10, 8, 9, 10, 11, 12, 13, 14, 15.1, and all defined terms used therein will survive the termination of this EULA indefinitely.
10. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
10.1 Respect of Third Party Rights. 54GAG respects the intellectual property of others and takes the protection of intellectual property very seriously, and 54GAG asks Users to do the same. Infringing activity will not be tolerated on or through the Service.
10.2 Repeat Infringer Policy. 54GAG’s intellectual property policy is to: (i) remove or disable access to material that 54GAG believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by “repeat infringers.” 54GAG considers a “repeat infringer” to be any User that has Posted User Content and for whom 54GAG has received more than three takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. 54GAG has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon 54GAG’s own determination.
10.3 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by 54GAG with the User alleged to have infringed a right you own or control, and you hereby consent to 54GAG making such disclosure. Your communication must include substantially the following:
a. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
b. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
c. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit 54GAG to locate the material;
d. Information reasonably sufficient to permit 54GAG to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
e. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
f. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 or other applicable laws to confirm your obligations to provide a valid notice of claimed infringement.
10.4 Designated Agent Contact Information. 54GAG’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via Online Submission:
Via International Mail:
22 Ngong road
Alveric Plaza 8th floor
10.5 Counter Notification. If you receive a notification from 54GAG that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide 54GAG with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to 54GAG’s Designated Agent through one of the methods identified in Section 10.4 and include substantially the following information:
a. A physical or electronic signature of the subscriber;
b. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
c. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
d. The subscriber’s name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the Kenya, then for any judicial district in which 54GAG may be found, and that the subscriber will accept service of process from the person who provided notification under Section 10.3 above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 or other applicable laws to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
10.6 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to 54GAG in response to a Notification of Claimed Infringement, then 54GAG will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that 54GAG will replace the removed User Content or cease disabling access to it in 10 business days, and 54GAG will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless 54GAG’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on 54GAG’s system or network.
10.7 False Notifications of Claimed Infringement or Counter Notifications. The United States Copyright Act provides that: any person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of 54GAG relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
54GAG reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of applicable law.
11. LIMITATIONS ON LIABILITY AND WARRANTY DISCLAIMER
THE FOLLOWING TERMS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
11.1 NEITHER 54GAG NOR ITS AFFILIATES (COLLECTIVELY, THE “54GAG PARTIES”) MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, COMPLETENESS, APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE 54GAG PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAMED ON THE SERVICE FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
11.2 THE 54GAG PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO 54GAG PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
11.3 THE SERVICE AND ALL CONTENT THEREON AND ANY MERCHANDISE PURCHASED ON THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE 54GAG PARTIES DISCLAIM ALL WARRANTIES THERETO, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS AND FITNESS FOR PARTICULAR PURPOSE.
11.4 ALL MERCHANDISE PURCHASED ON THE WEBSITE, WHETHER PURCHASED FROM 54GAG OR A THIRD PARTY, ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY. 54GAG HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE MERCHANDISE LISTED OR PURCHASED ON THE WEBSITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 54GAG HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. 54GAG MAKES NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT.
11.5 IN NO EVENT WILL ANY 54GAG PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH 54GAG PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 54GAG’S LIABILITY, AND THE LIABILITY OF ANY OTHER 54GAG PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.
11.6 TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE 54GAG PARTIES FROM ANY AND ALL 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.
12. DISPUTE RESOLUTION
12.1 General. In the interest of resolving disputes between you and 54GAG in the most expedient and cost effective manner, you and 54GAG agree that any dispute arising out of or in any way related to this EULA or your use of the Service will be resolved by binding arbitration. Arbitration is less formal 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. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND 54GAG ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
12.2 Exceptions. Notwithstanding Section 12.1 above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable national, federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
12.3 Arbitrator. Any arbitration between you and 54GAG will be administered by the Kenya International Arbitration Centre (“KIAC”) under the KIAC Administered Arbitration Rules (“KIAC Rules”), as modified by this EULA. The HKIAC Rules are available online at http://www.kiac.org or by contacting 54GAG. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
12.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by mail (“Notice”) or, if an address is not available to such party, to the email address of such party as made available on or through the Service. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make 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 54GAG may commence an arbitration proceeding. Any arbitration under this Section will be conducted in English. During the arbitration, the amount of any settlement offer made by you or 54GAG must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by54GAG prior to selection of an arbitrator, 54GAG will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by 54GAG in settlement of the dispute prior to the arbitrator’s award; or (3) $15,000.
12.5 Fees. If you commence arbitration in accordance with this EULA, 54GAG will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the KIAC Rules. Any arbitration hearing will take place at a location to be agreed upon in Hong Kong, but you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone or videoconference hearing; or (iii) if the claim is for $15,000 or less, by an in-person hearing as established by the KIAC 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 United States Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the KIAC Rules. In that case, you agree to reimburse 54GAG for all monies previously disbursed by it that are otherwise your obligation to pay under the KIAC Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision in English sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. 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.
12.6 No Class Actions. YOU AND 54GAG 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 54GAG 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.
12.7 Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if 54GAG makes any future change to this arbitration provision, other than a change to 54GAG’s address for Notice, you may reject the change by sending 54GAG written notice within 30 days of the change to 54GAG’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and 54GAG.
12.8 Enforceability. If Section 12.6 above is found to be unenforceable or if the entirety of this Section 12 is found to be unenforceable, then the entirety of this Section 12 will be null and void.
To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the 54GAG Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (a) your breach of this EULA; (b) your access to, use or misuse of 54GAG Content or the Service; or (c) your User Content. 54GAG will provide notice to you of any such claim, suit or proceeding. 54GAG reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if 54GAG believes that you are unwilling or incapable of defending 54GAG’s interests. In such case, you agree to cooperate with any reasonable requests assisting 54GAG’s defense of such matter at your expense.
14. CONSENT TO ELECTRONIC COMMUNICATIONS
15.1 Miscellaneous. This EULA is governed by the internal substantive laws of Kenya without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment or agency relationship exists between you and 54GAG as a result of this EULA or use of the Service. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of 54GAG to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against 54GAG unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by 54GAG and you, this EULA constitutes the entire agreement between you and 54GAG with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of 54GAG’s successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of 54GAG. 54GAG may assign this EULA, including all its rights hereunder, without restriction.
15.2 Contact Us. If you would like to contact 54GAG in connection with your use of the Service, then please refer to the contact information below: at [email protected].