Gingr Terms of Service
These TERMS OF SERVICE (this "Agreement") is made between Gingr, LLC. (“Gingr”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You”).
Gingr offers an online service platform known as Gingr (the “Platform”) through the web site located at byrrod.com (the “Site”) that provides You with the ability to access and use information, data, and other content on a variety of topics, as well as additional services, functionality and resources made available through the Platform (“Services”).
All access to and use of the Services available through the Platform is subject to the terms of this Agreement. If You have placed or later place an order (whether in the form of an online order submitted through the Platform, by way of email, phone or otherwise) with Gingr (Your “Order”) seeking to access and use certain of the Services and if Gingr accepts that Order, then Your access to and use of the Services is also subject to the terms of that Order.
In addition to the terms of this Agreement and any accepted Order, Your access to and use of the Platform and Services is subject to Gingr’s thencurrent policies relating to the Platform and Services, including, without limitation, the Gingr Privacy Policy available on the Platform. You are responsible for compliance with these policies and all other Gingr policies applicable to the access and use of the Services posted to the Platform or provided through Services.
PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE PLATFORM OR SERVICES (OR BY SUBMITTING AN ORDER FOR ANY SERVICES), YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE DISPARAGEMENT CLAUSE.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, GINGR IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR SERVICES. IF YOU ACCESS OR USE THE PLATFORM OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date You first submit an Order relating to the Services or first access or use the Services or a Platform (the “Effective Date”).
1. DEFINITIONS. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
2. ELIGIBILITY. You must be 13 years or older to access or use the Platform or Services. If You are under 13, then You may not use or access the Platform or Services under any circumstances. If You are 13 or older and younger than 18, then You may access and use the Platform or Services only if You have Your parents' or guardians' prior permission. By accessing or using the Platform or Services, You represent that You are at least 18 or that you are at least 13 and have Your parents' prior permission to do so. If You are a parent or guardian providing permission for a child age 13 or older to access or use the Platform or Services, then You agree to accept full responsibility for that child’s use of and access to the Platform or Services under this Agreement. You may access and use the Platform or Services solely for lawful purposes and only in accordance with the terms of this Agreement and any other agreement You are required to agree to before being given access to any specific areas of the Platform or Services (any such additional agreements are in addition to this Agreement and will govern Your use of the portions of the Platform or Services to which those additional agreements apply in the event of a conflict between the terms of this Agreement and those additional agreements). Gingr reserves the right at any time and in its sole discretion to modify, suspend, or discontinue the Platform or Services (or any portion thereof) with or without notice.
3. MODIFICATIONS TO THE PLATFORM AND SERVICES. Gingr reserves the right, at any time, to modify the Platform, Services or this Agreement, by making such modification available on the Platform or by providing other notice to You. Any modification will be effective immediately upon posting on the Platform or such other notice. As applicable, You will be deemed to have agreed to such modification through Your continued use of the Platform or Services.
4. ORDERS AND CONFIRMATION. All Orders placed by You for any Services will be governed by the terms of this Agreement. Gingr will confirm Your Order either through the Platform at the time You submit Your Order or by providing You with access to the Services specified in Your Order (each, a “Confirmation”). If the terms of any Order conflict with the terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with respect to the Services provided to You. This Agreement will govern and control the terms of each Order and Confirmation under this Agreement. By accessing or using any of the Services, You agree to be bound by the terms of this Agreement and each applicable Order and Confirmation with respect to those Services.
5. TERM. This Agreement will be effective upon the Effective Date. If You have ordered a trial subscription to the Services or a subscription to any free Services, as indicated through the Platform or Services or in an applicable Order or Confirmation (a “Trial/Free Subscription”), then the term of this Agreement will continue for the period of the Trial/Free Subscription indicated in the applicable Order or Confirmation and will thereafter expire unless You obtain an extension of the Trial/Free Subscription from Gingr or place an Order for a nontrial subscription to the Services that is confirmed by Gingr. If You have ordered a nontrial subscription to the Services, then the term of this Agreement will continue for the initial period stated in the applicable Order or Confirmation for the Services and will thereafter automatically renew for successive additional periods of equal duration. If no initial period is stated in the applicable Order or Confirmation for the Services, this Agreement will continue for an initial period of 1 month and will thereafter automatically renew for successive additional 1month periods. Unless terminated as set forth herein, the term of this Agreement will continue to renew until You notify Gingr that You do not wish to renew the Agreement at least 14 days prior to the end of the thencurrent period. In all other cases, the term of this Agreement will continue until terminated as set forth herein.
6. SUBSCRIPTION. Subject to this Agreement, during the term of this Agreement Gingr will provide You with a limited subscription to access and use the Services subject to Confirmations under this Agreement, solely for Your own use in connection with your own business purposes. Your rights to access and use the Services are personal, nonexclusive, nontransferable and nonsublicensable. You understand that Gingr may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
7. ACCESS TO THE SERVICES.
7.1 Account SetUp. Upon confirmation of Your first Order by Gingr, You will be granted access to the Services through an account (Your “Account”) within 1 business day. Gingr may charge You a onetime setup fee to cover any required training or data migration for each User (as defined below).
7.2 Users. If You are an organization, you may authorize designated employees within Your organization to access the Services through Your Account (each such individual, as applicable, a “User” of the Account). If You are an individual, then You may access the Services through Your Account as the sole User of that Account. You (and if you are an organization, each User) will be provided with a user identification and will select a password (each such user identification and password, a “User ID”). Each User ID is personal in nature and may be used only by You or, if You are an organization, by the applicable User.
7.3 Responsibility for User Actions. You are solely responsible for all use of the Services through Your Account, for the actions of each User of Your Account, and for compliance by each User with the applicable terms of this Agreement. You will ensure the security and confidentiality of each User ID and will notify Gingr immediately if any User ID is lost, stolen or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees, liabilities or damages incurred, and material transferred, stored, modified or shared through use of each User ID (whether lawful or unlawful). You acknowledge that any Services ordered or transactions completed through Your Account under any User ID will be deemed to have been lawfully completed by You. In no event will Gingr be liable for the foregoing obligations or the failure by You to fulfill such obligations. You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for You and each User to connect to, access, and use the Services and the Platform.
7.4 Account Authority. If You are an organization, then the individual who establishes Your Account (the “Account Authority”) will have control over Your Account. If You are an individual, then You will be the Account Authority for Your Account, unless You designate a different Account Authority as specified below. The Account Authority may: (a) add or remove new Users to or from the Account; (b) grant or revoke permissions for Users under the Account; (c) direct Gingr in the case of any dispute among Your Users; (d) receive notices and other communications from Gingr; and (e) take such other actions as Gingr may provide to Account Authorities through the Services. There must be one and only one Account Authority for each Account at all times. The Account Authority may be changed (i) by an email sent to Gingr from the registered email address of the current Account Authority; (ii) by bona fide legal written notice provided to Gingr by one of Your corporate officers; or (iii) as separately set forth in an Order or Confirmation. The Account Authority must be designated during the initial registration for an Account. If the Account Authority is not designated, the User submitting the Account registration shall be deemed the Account Authority. It is Your responsibility to properly designate a new Account Authority whenever appropriate. In the event of a dispute where multiple persons claim to be the rightful Account Authority, Gingr reserves the right, at its election and in its sole discretion, to (1) suspend all access to Your Account until the Account Authority is properly designated to Gingr’s sole satisfaction, or (2) terminate Your Account and delete Your Content (as defined below).
8. SOFTWARE. Gingr may make software or code available to You on or for download through the Platform or Services (“Software”) that is protected by IPR (as defined below). Unless otherwise expressly stated in a license or other agreement separate from this Agreement that You may have entered into (or may enter into) with Gingr relating to any Software (each such license or other agreement, a “Software License Agreement”), Gingr grants you a limited, nonexclusive right and license to download, install and execute the Software in accordance with the instructions provided on the Platform and solely for Your own business purposes in connection with Your access to and use of the Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any IPR therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of Gingr. Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement.
9. THIRDPARTY PRODUCTS AND SERVICES. The Services may include products or services or functionality developed, provided, or maintained by thirdparty providers (“Third Party Providers”). In addition to the terms of this Agreement, Your purchase, access to, or use of any Third Party Provider products or services is also subject to any other agreement separate from this Agreement that You may enter into (or may have entered into) relating to those Third Party Provider products or services (each, a “Third Party Provider Agreement”). The terms of any Third Party Provider Agreement will apply to the applicable Third Party Provider products or services provided under that Third Party Provider Agreement in addition to the terms of this Agreement. Except as set forth in this Agreement, the terms of any Third Party Provider Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Provider Agreement. All other Third Party Provider products and services will be subject to the terms of this Agreement. Third Party Provider products or services may be subject to additional Fees as set forth on the Platform. Notwithstanding the terms of any Third Party Provider Agreement, Gingr may change, modify, replace, or discontinue products and services from any Third Party Provider at any time and without notice to You. Except as expressly set forth in this Agreement or any Third Party Provider Agreement, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any products or services from any Third Party Provider as a result of this Agreement.
10. RESTRICTIONS. You acknowledge that the Services, Platform, and the databases, software, hardware and other technology used by or on behalf of Gingr to provide the Services and operate the Platform (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of Gingr. You will not, and will not permit any third party to: (a) access or use the Services or the Platform, in whole or in part, except as expressly provided in this Agreement; (b) violate the Privacy Policy or Acceptable Use Policy; (c) use the Platform or Services in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Platform or Services; (d) use automated scripts to collect information from or otherwise interact with the Platform or Services; (e) use the Platform or Services to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Services, Platform, or Technology; (f) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of Your rights to access or use the Services or any Technology, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or online services to third parties, or otherwise make the Services or any Technology, or access thereto, available to any third party; (g) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Platform, Services, or any Technology; (h) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Platform, Services, or any Technology; or (i) interfere in any manner with the operation or hosting of the Platform, Services, or any Technology, or attempt to gain unauthorized access to the Platform, Services, or any Technology. You will not allow any access to or use of the Services by anyone other than Your authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
11. FEES AND PAYMENT. You agree to pay Gingr all fees set forth in each Order or Confirmation. You also agree to pay Gingr all other fees incurred through Your Account in connection with additional services or products obtained through the Platform or Services, whether by You or by any User or other individual accessing or using Your Account (all such fees, collectively, the “Fees”). You acknowledge that the subscription fees for the Services specified in any Order or Confirmation are subject to limitations on Your use of the Services, and that You may incur additional Fees for Your use of the Services in excess of these limitations. All Fees will be billed as indicated in each Order or Confirmation or as specified on the Platform or through the Services. If the applicable Order or Confirmation does not specify any applicable billing terms, the initial payment of Fees specified under that Order or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement; provided, however, that You will be granted a 3 day grace period to make Your payment without penalty. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Gingr the right to charge the credit card or debit the bank account provided to Gingr for all Fees incurred under this Agreement. All Fees will be nonrefundable once paid to Gingr (including upon any termination or suspension of this Agreement). If any month is not paid in full, Gingr may apply an additional late fee to all past due amounts of $50.00 per month. Gingr may change any portion of the Fees by posting the changes to the Platform or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement. If Gingr requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
12. TERMINATION.
12.1 Termination. This Agreement may be terminated by either party at any time: (a) upon any material breach of this Agreement that remains uncured for 14 days after delivery of written notice of such breach; or (b) at any time during any Trial/Free Subscription, for any reason or no reason, upon notice. This Agreement may be terminated by Gingr at any time for any reason, in its sole discretion, upon notice to You.
12.2 Refund or Payment upon Termination. If this Agreement is terminated by You within 30 days of the Effective Date in accordance with Section 12.1 (Termination), Gingr will refund to You all Fees that you have paid to Gingr during the term of this Agreement. If this Agreement is terminated by You after 30 days from the Effective Date in accordance with Section 12.1 (Termination), You will pay any unpaid Fees up to the date of termination, but will be under no further obligation to make continued payments incurred after the date of termination. In no event will termination relieve You of Your obligation to pay any Fee payable to Gingr for the period prior to the effective date of termination.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You (and all Your Users) will immediately cease all use of and access to the Platform and Services; (c) all Fees then owed by You will become immediately due and payable; (d) You will immediately either return to Gingr or, at Gingr’s discretion, destroy the Service Content (as defined below), User IDs, Gingr Confidential Information (as defined below), and other information related to this Agreement in Your possession or control; and (e) Gingr may delete any of Account information and Your Content held by Gingr at any time. All remedies provided by in this Section are nonexclusive and nonreversible. Sections 10 (Restrictions), 11 (Fees and Payment), 12 (Termination), 14 (Ownership), 16.3 (Warranties and Disclaimer: Disclaimer), 17 (Indemnity), 18 (Limitation on Liability), 19 (Data Privacy), 20 (Confidentiality), 24 (Disputes), 25 (Governing Law), 26 (Notices), and 27 (General) will survive any expiration or termination of this Agreement.
13. SUSPENSION. Without limiting Gingr’s right to terminate this Agreement, Gingr may also immediately and indefinitely suspend Your access to the Platform or Services, including, without limitation, all of Your Content, by providing notice to You, upon any actual, threatened, or suspected breach of any applicable law or upon any other conduct deemed by Gingr to be inappropriate or detrimental to the Platform, Services, Gingr, or any other Gingr customer or user, until the breach of law or inappropriate conduct is cured by You. Gingr may at any time following any suspension, suspend access to or delete any of Your Content held by Gingr or the Platform or Services.
14. OWNERSHIP. Gingr retains all right, title and interest, including, without limitation, all IPR, in and to the Platform, Services, Technology, and Service Content, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement. The Gingr name, logo and the product and service names associated with the Services are trademarks of Gingr (or its third party providers), and no right or license is granted to You to use them. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
15. CONTENT.
15.1 Service Content. The Services may provide You with access to certain data, information, and other content through the Platform and Services (“Service Content”). The Service Content will include or be based on data, information or content from other users of the Platform and Services and other third parties (“Third Party Content”). Gingr has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Services. You acknowledge that the level of access You (and Your Users) receive to any Third Party Content or other Service Content may be subject to permissions granted by other users of the Services or other third party content providers, and that Your permission to access or use any Service Content may be revoked without notice by such user or third party. You are solely responsible for obtaining and maintaining all permissions to access and use any Service Content made available to You (or Your Users) through the Services. Unless otherwise noted on the Platform, as between You and Gingr, all Service Content is owned by Gingr or by the user or other third party on behalf of which Gingr is providing You with access to the Service Content through the Services, as applicable. Subject to this Agreement, You (and Your Users) may: (a) access and use the Service Content as indicated and permitted through the Services solely for Your own business purposes in connection with Your use of the Services; and (b) distribute the Service Content as indicated and permitted through the Services to other users through the Services. Except as expressly provided in this Agreement, You will not, and will not permit any User to: (i) alter, modify, reproduce, or create derivative works of the Service Content; (ii) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer the Service Content, including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or online services to third parties; or (iii) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the Service Content. Gingr has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Service Content or Third Party Content. Without limiting the foregoing, Gingr will not be held liable to You or any other third party for any Content, including Your Content (as defined below), under a Federal Law called the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in this Agreement, You are granted no licenses or other rights in or to any Service Content or Third Party Content, or any intellectual property rights therein or related thereto. If You would like to use any Service Content or Third Party Content in a manner not permitted by this Agreement, please contact Gingr.
15.2 Your Content. You will be solely responsible for all data, information, and other content that You may provide or generate through Your use of the Services or that may be provided or generated through Your Account by any User or other third party, or that Gingr may receive, collect, or obtain through Your use of the Services, including, without limitation, all electronic information transferred, stored, modified, communicated, or shared through Your use of the Services and any personally identifiable information relating to You or any of Your Users, customers, service providers, employees, contractors, recipients, or agents generated or received through Your use of the Services (collectively, “Your Content”). You grant to Gingr all necessary rights and licenses in and to Your Content necessary for Gingr to provide the Services under this Agreement. As between You and Gingr, You retain all of Your rights in and to Your Content and do not convey any proprietary interest therein to Gingr other than the licenses set forth herein. You agree that none of Your Content or the use of Your Content: (a) violates this Agreement or any applicable laws; (b) is libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitutes an infringement or misappropriation of the rights of any third party; (d) is illegal in any way or advocate illegal activity; (e) is an advertisement or solicitation of funds, goods, or services; (f) is false, misleading, or inaccurate; or (g) is or could be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. During the term of this Agreement, Gingr shall permit you to make a backup of all of Your Content. You will maintain an adequate backup of all Your Content and Gingr will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or backup any of Your Content. In addition, you acknowledge that You (and Your Users) may grant access to Your Content through the Services and You are solely responsible for all access to or permission to share access to Your Content provided through Your Account to any user of the Services or other third party. Gingr has no responsibility for any such activity or the actions taken or not taken by the users or other third parties to whom you have granted any such access or permission. Gingr may take remedial action if any of Your Content violates this Agreement, including, without limitation, deletion of any of Your Content from the Platform and Services, provided that Gingr is under no obligation to review any of Your Content for accuracy or potential liability. You represent and warrant to Gingr that You have all necessary right, title, interest and consent necessary to allow Gingr to use Your Content for the purposes for which You provide Your Content to Gingr, including, without limitation, the transfer, storage, modification, communication, and sharing of Your Content. You will defend, indemnify and hold harmless Gingr from any and all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorney's fees) incurred or arising from any claim by a third party arising out of or relating to Your Content or the use thereof by Gingr in providing the Services.
16. WARRANTIES AND DISCLAIMER.
16.1 By Gingr. Except in the case of any Services provided during a Trial/Free Subscription, Gingr represents and warrants to You that Gingr will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. Gingr’s sole obligation and Your sole and exclusive remedy in the event of any failure by Gingr to comply with the foregoing sentence will be for Gingr to, at Gingr’s option, reperform the affected Services or refund to You the fees (if any) You have actually paid for the affected Services during the month in which the failure occurred. Notwithstanding the foregoing, You remain solely and entirely responsible for Your compliance with, and will defend, indemnify and hold harmless Gingr from and against any claims arising from any actual or alleged violation by You of any international, federal, state or local treaties, laws, rules, regulations or ordinances regarding Your use of or access to the Platform or Services or regarding your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited.
16.2 By You. You hereby represent, warrant, and covenant for the benefit of Gingr that: (a) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (b) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; and (c) Your Content, and any other data, information or content You provide to Gingr in connection with this Agreement and Your access to the Platform and use of the Services, is correct and current.
16.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM AND SERVICES (AND ALL SERVICE CONTENT PROVIDED THROUGH THE PLATFORM AND SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND GINGR AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GINGR, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 16.
17. INDEMNITY. You hereby indemnify, defend, and hold harmless Gingr and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your accessing or using the Platform, Services, Your Content, Service Content, or any breach of this Agreement. Gingr will provide You with notice of any such claim or allegation, and Gingr will have the right to participate in the defense of any such claim at its expense.
18. LIMITATION ON LIABILITY. IN NO EVENT WILL GINGR OR ITS THIRD PARTY PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, SERVICES (OR ANY SERVICE CONTENT PROVIDED THROUGH THE PLATFORM OR SERVICES WHETHER DIRECTLY OR ON BEHALF OF ANY USER OR OTHER THIRD PARTY), EVEN IF GINGR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. GINGR’S TOTAL CUMULATIVE LIABILITY OF GINGR OR ITS SERVICE PROVIDERS IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO GINGR HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $10). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT GINGR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, GINGR’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
19. DATA PRIVACY. You expressly consent to the use and disclosure of personally identifiable and other data and information as described in Gingr’s thencurrent privacy policy displayed on the Platform (“Privacy Policy”) and agree that as required by applicable laws You will obtain the consent of all Users to such use and disclosure. Notwithstanding anything in the Privacy Policy, Gingr will have the right to collect, extract, compile, synthesize, and analyze nonpersonally identifiable data or information (data or information that does not identify an entity or natural person as the source thereof) resulting from Your access to the Platform and Your use and operation of the Services (including, by way of example and not limitation, information relating to number of files, file types and sizes, number of collaborators, and frequency of access to the electronic information provided through the Services). To the extent any such data or information is collected or generated by Gingr, the data and information will be solely owned by Gingr and may be used by Gingr for any lawful business purpose without a duty of accounting to You, provided that the data and information is used only in an aggregated form, without directly identifying You, any User or customer, or any other entity or natural person as the source thereof.
20. CONFIDENTIALITY. For purposes of this Agreement, “Confidential Information" means all nonpublic information disclosed or made available under this Agreement that relates to the Technology, the provision or receipt of the Services, or either party's technology, finances, operations, customers or business. For the avoidance of doubt, (a) the Services, Technology, and Service Content are the Confidential Information of Gingr, (b) Your Content is Your Confidential Information, and (c) the data and information specified in Section 19 will not be Your Confidential Information. Each party agrees to protect the other party's Confidential Information with the degree of care that such party uses to protect its own confidential information of like nature, but in no case less than reasonable care. Each party agrees that, except as expressly directed by the other party, it will not at any time during or after the term of this Agreement: (i) disclose any Confidential Information to any third party; (ii) permit any third party to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or (iii) use any of the Confidential Information for any reason other than for the purposes of this Agreement. Each party may disclose Confidential Information to personnel having a need to receive the Confidential Information in the performance of their duties under this Agreement, provided, however, that such personnel are informed of the confidentiality obligations hereunder and each party uses its best efforts to ensure their compliance therewith. If either party is required to disclose the other party’s Confidential Information pursuant to any statute, regulation, order, subpoena or document discovery request, it will furnish written notice of such disclosure to the other party as soon as practicable in order to afford such party the opportunity to seek a protective order and the party required to make such disclosure will reasonably cooperate in such efforts (at the other party’s reasonable expense). In the event of any conflict between the Privacy Policy and the provisions of this Section 20, the provisions of this Section 20 shall control.
21. CLAIMS OF INFRINGEMENT. Just as Gingr requires users of the Platform to respect the copyrights and other intellectual property rights of Gingr, its affiliates, and other third parties, Gingr respects the copyrights and other intellectual property rights of Users of the Platform and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Platform without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
Gingr, LLC.
Attn: Copyright Infringement Agent
1600 Range St, Suite 101
Boulder, CO 80301
Please provide the following information to Gingr’s Copyright Infringement Agent: (a) the identity of the infringed work, and of the allegedly infringing work; (b) Your name, address, daytime phone number, and email address, if available; (c) a statement that You have a goodfaith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (d) 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; and (e) Your electronic or physical signature.
22. NonDisparagement. During the Term of this Agreement, You are prohibited, and You shall not permit or encourage any third party within Your reasonable control, from making any disparaging statements or representations, either directly or indirectly, whether orally or in writing, by word or gesture, to any person or entity whatsoever, about Gingr, our affiliates or our or their respective directors, officers, employees, agents, representatives, consultants, accountants, shareholders, attorneys, or advisors. DURING THE TERM OF THIS AGREEMENT, IF YOU ENGAGE IN, OR PERMIT OR ENCOURAGE ANY THIRD PARTY TO MAKE, SUCH REMARKS, GINGR SHALL BE PERMITTED WITHIN ITS SOLE DISCRETION TO IMMEDIATELY TERMINATE THIS AGREEMENT AND YOUR ACCESS TO THE PLATFORM WITHOUT PROVIDING YOU A REFUND OF ANY AMOUNTS YOU HAVE PAID. For purposes of this Section, a disparaging statement or representation is any communication which, if transmitted or publicized to another, would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, good character, or product or service quality of the person or entity to whom the communication relates. This Section does not, in any way, restrict or impede You from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order.
23. LINKED SITES. The Platform and electronic information provided through the Services may contain links to thirdparty sites that are not under the control of Gingr, and Gingr is not responsible for any content on any linked site. If You access a thirdparty site from the Platform or from electronic information provided through the Services, then You do so at Your own risk. Gingr provides links only as a convenience, and the inclusion of the link does not imply that Gingr endorses or accepts any responsibility for the content on those thirdparty sites. Gingr welcomes links to the Platform. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by Gingr or any group or individual affiliated with Gingr. You may not use on Your site any content trademarks or service marks appearing on the Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Platform without Gingr’s prior written consent.
24. DISPUTES. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and noncontractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section 23. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the International Chamber of Commerce (“ICC”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Gingr in Denver, Colorado U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the nonprevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
25. GOVERNING LAW. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado. Each party agrees that it will only bring any action or proceeding arising from or relating to this Agreement in a federal or state court in Denver, Colorado, U.S.A., and You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Gingr.
26. Notice. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Gingr by postal mail to the address for Gingr available through the Services. If permitted by the Service, Gingr shall make reasonable efforts to respond to Your questions, complaints, or support requests with respect to the Services that You make by email or phone within 24 hours. Gingr may provide You with any notices required or allowed under this Agreement by sending You an email to any email address You provide to Gingr through the Application or the Services, provided that in the case of any notice applicable both to You and other users of the Application or Services, Gingr may instead provide such notice by posting on the Services. Notices provided to Gingr will be deemed given when actually received by Gingr. Notice provided to You will be deemed given 24 hours after posting to the Services or sending via email, unless (as to email) the sending party is notified that the email address is invalid.
27. GENERAL. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Services and the Platform and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Services and the Platform. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any of Your rights or obligations hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Gingr. Any assignment in violation of the foregoing will be null and void. Gingr may assign this Agreement to any party that assumes Gingr’s obligations hereunder without Your consent. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. Gingr may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the Gingr web site and for other marketing and promotional purposes relating to the Services.
