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Effective date: July 12, 2018
THESE "TERMS OF SERVICE" (THE "AGREEMENT") GOVERN THE USE OF THE SERVICES PROVIDED BY GATHER INC. AND FORM A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL OR LEGAL ENTITY OR ASSOCIATION INTENDING TO USE THE SERVICES ("YOU" OR "CUSTOMER") AND GATHER. BY REGISTERING FOR OR BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND TO THE TERMS OF THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, OR YOU DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THE AGREEMENT, YOU MAY NOT USE THE SERVICES.
Any new features or tools which are added to the Services, including updates, upgrades and enhancements, shall also be subject to this agreement unless otherwise stipulated by Gather in such update, upgrade or enhancement. We reserve the right to update, change, or replace any part of this Agreement by posting the amendments to our Website. We will notify you when significant changes are made. Your continued use of or access to the Services following the posting of any changes constitutes acceptance of those changes. Any rights not expressly granted herein are reserved by Gather.
You can find the most current version of the agreement at https://gatherdata.co/legal/terms.
"Site" refers to our website, gatherdata.co.
"Service" and "Services" means the Gather service provided on the website, together with any associated tools, products, services, media, downloaded software, and other content delivered to you through the Site or otherwise by Gather.
"Gather", “We”, "Us" and "Our" means Gather, Inc, its employees, representatives and contractors, Site, Service, or a combination of all or some of the preceding definitions, depending on the context of the word.
"Authorized User" refers but is not limited to customers, browsers, vendors, and/or merchants of our Site and, without limiting the generality of the foregoing, includes general visitors to our Site.
"Active Staff User Account" means a staff user account that has been validly registered and is active in the context of the Software; such account is fully functional and has been authenticated to access and use the Services.
"Staff User Account" means a staff user account that has been validly registered for use with the Software.
“Software” means the proprietary software developed by Gather and its corresponding documentation or data which are related to the Services.
"Subscription Term" means the period during which You have agreed to subscribe to a Service with respect to any individual Staff User Account.
"Third Party Software" means any third-party products incorporated into the Software, including any open source software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
"Party" means you (the customer, including all Authorized Users) or Gather.
"Parties" means you (the customer, including all Authorized Users) and Gather.
License. Subject to the terms of this Agreement, Gather grants you a revocable, non-exclusive, non-transferable, and non-sublicensable license to access and use the Services through your Active Staff User Accounts.
Staff User Accounts. You shall ensure that the number of your Active Staff User Accounts is equal to or less than the number of total Staff User Accounts for which you have subscribed. You are responsible for ensuring that access to any Staff User Account, whether or not active, is not shared. Only one individual may be authenticated to one Staff User Account. If you are a legal entity or association, all persons using your Staff User Accounts must be either your employees or your contractors who have agreed to be bound by the Agreement. Hardware or software you use to pool connections, reroute information, or reduce the number of users that directly access or use the Software (sometimes referred to as "multiplexing" or "pooling"), does not reduce the number of licenses or Active Staff User Accounts required to access or use the Services.
Eligibility, Errors, and Inaccuracies. Gather makes every effort to provide complete, accurate, and up-to-date information through our Services. Unfortunately, it is not possible to ensure that any website is completely free of human or technological errors. Occasionally, our Services may contain typographical mistakes, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies, or omissions — including after an order has been submitted — and to change or update information at any time without prior notice.
Modifications to the Service and Prices. At Gather’s sole discretion, we reserve the right at any time to modify or discontinue the Service (or any part or content thereof) or modify pricing, for any purpose deemed appropriate by Gather. Gather will generally use reasonable efforts to give you prior written notice of any material modification, though we are not obligated to do so. We shall not be liable to you or to any third-party for any modification, price change, suspension, or discontinuance of the Service, except as provided for in this Agreement.
Server Downtime. Our Service may become unavailable from time to time for security reasons, legal reasons, technical updates, or other reasons. You agree that we are not obligated to inform you of such downtime — even if we are aware that it may occur — or to provide a reason for it, and that you release us from all liability relating to the unavailability of our Service. These govern unless we have a negotiated terms with you that explicitly supersedes these terms.
Support. Subject to the terms of this Agreement, Gather will provide a reasonable level of support to you as agreed to by you in writing (which can be satisfied via email).
No Unlawful Use or Objectionable Content. You shall not use the Services in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Services and its components or infringes on the rights of another party. You shall not modify, adapt or hack any protected (encrypted or compiled) parts of the Software, or otherwise attempt to gain unauthorized access to those parts or its related systems or networks. You undertake not to promote any material that is unlawful, threatening, abusive, malicious, defamatory, false, materially inaccurate, or otherwise objectionable. You will not reproduce, publish, or otherwise distribute content in connection with the Service that infringes any third party’s trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right. Gather offers no assurance that your use of the Service under the terms of the Agreement will not violate any law or regulation applicable to you. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
You will not, and will not permit any third party or Authorized User to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or Software (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws, intellectual property, consumer and child protection, obscenity or defamation).
You and your Authorized Users will cooperate with Gather in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Gather may reasonably request. You will also cooperate with Gather in establishing a password or other procedures for verifying that only designated employees have access to any administrative functions of the Services.
You will be responsible for maintaining the security of your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account with or without your knowledge or consent, including any use by Authorized Users. The license granted hereunder does not extend to employees and contractors of any of your affiliates or any entity that controls or is controlled by you, unless you have obtained Gather’s prior written consent. You shall ensure that your Authorized Users are familiar with and agree to all applicable obligations contained in this Agreement, and you are responsible and liable for any breach of this Agreement by any Authorized User.
You acknowledge and agree that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Gather is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. You are solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Gather does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between you and a third party provider is solely between you and such third party provider and is governed by such third party’s terms and conditions.
Unsolicited Email. You may not use the Services to send unsolicited email ("spam") to anyone, including mailing lists which you have purchased. If reports of unsolicited email are received, Gather may suspend or terminate your Services without notice.
Gather may revoke its license to you at any time for any reason without notice or explanation, and we shall not, in any event, be liable to you for any losses suffered as a result of any unanticipated cancellation of our Service. We will generally attempt to notify you prior to cancelling your access to our Service unless you have breached this Agreement or any applicable law, though we are not obligated to do so.
Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees or contractors of yours with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the Party takes with its own proprietary information, but in no event will a Party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything to the contrary, Gather may collect, use, disclose, and freely exploit data with respect to the aggregate response rate and other aggregate measures of the Services’ performance, and any other information received by Gather in connection with this Agreement provided such information has been anonymized such that it does not identify you.
You acknowledge that Gather does not wish to receive any Proprietary Information from you that is not necessary for Gather to perform its obligations under this Agreement, and, unless the Parties specifically agree otherwise, Gather may reasonably presume that any unrelated information received from you and any Authorized User is not confidential or Proprietary Information.
Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such Party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
Except as expressly set forth herein, Gather alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service and the Software and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party or Authorized User relating to the Service and/or the Software, which are hereby assigned to Gather. You and your Authorized Users will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or Software, or any intellectual property rights therein.
Gather will obtain and process content and data provided by or on behalf of you (“Content”) only to perform its obligations under this Agreement. You and your licensors shall (and you hereby represent and warrant that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content, which includes obtaining all requisite consent from relevant individuals to the extent the Content contains personal information. If Gather receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Gather may (but is not required to) suspend activity hereunder with respect to that Content and you will indemnify Gather from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
Notwithstanding anything to the contrary, Gather may freely use and disclose any data or other information provided by or collected from you in connection with its use of the Services, if it has been aggregated or otherwise anonymized such that it does not personally identify you or any of your personnel.
Unless otherwise indicated on an Order Form or Statement of Work referencing this Agreement, subject to Section 5.2, all charges associated with Your access to and use of the Services (“Subscription Charges”) are due in full upon commencement of Your Subscription Term. If you submit credit card information to Gather for payment of Subscription Charges, unless your account is terminated, you hereby authorize Gather to charge such credit card for the Subscription Charges incurred automatically for a Subscription Term equivalent in length to the then expiring Subscription Term. If the Parties agree that Gather will invoice you for the Subscription Charges, payments will be due within fourteen (14) days of the date of the invoice.
The Subscription Charges You pay is dependent on the number of Staff User Accounts. If You choose to increase the number of Staff User Accounts authorized to access and use the Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade. Downgrading may cause loss of content, support, features, or capacity of the Service as available to You, and Gather does not accept any liability for such loss.
You agree to pay any applicable taxes not otherwise included in the fees (excluding US taxes based on Gather’s net income) unless you have provided Gather with a valid exemption certificate. In the case of any withholding requirements, you will pay any required withholding itself and will not reduce the amount paid to you on account thereof.
Subject to earlier termination as provided below, this Agreement will remain in effect for the Subscription Term or until terminated in accordance with the terms of this Agreement. This Agreement will automatically renew for successive renewal terms of equal length to the initial Subscription Term, subject to early termination unless either Party gives the other Party notice of non-renewal prior to the end of the then-current term.
Termination by You. You can terminate your account at any time by sending an email or phone request to cancel. If you cancel your account before the end of your current paid up month, your cancellation will take effect immediately, and you will not be charged again. Please note that we do not provide refunds for unused time in the last Subscription Term unless we have negotiated terms with you that explicitly supersedes these terms.
Termination and Suspension by Gather. Gather may terminate your account and/or this Agreement at any time and for any reason upon notice to you. We may also suspend our Service to you at any time, with or without cause. If we terminate your account without cause, we will refund a prorated portion of your monthly prepayment. We will not refund or reimburse you if we terminate your account for cause, including (without limitation) for a violation of these Terms of Service.
Effect of Termination. The termination of your account with Gather for any reason results in the immediate termination of your license to use the Services and upon such termination (i) you shall immediately cease all use of the Services, (ii) you will lose access to all of your Content and Gather will delete it in the normal course of business operations, and (iii) you shall destroy all copies, full or partial, of any components of the Services and Software that may have been downloaded by you or otherwise transmitted to you electronically or otherwise in connection with the Services. Your information cannot be recovered once your account is terminated. No expiration or termination will affect your obligation to pay all fees that may have become due before such expiration or termination.
THE SERVICES, SOFTWARE, GATHER CONFIDENTIAL INFORMATION, AND ANY OTHER THING PROVIDED BY GATHER IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” AND “WHERE AVAILABLE”. GATHER HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. GATHER SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL CONDITIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GATHER MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
IN NO EVENT WILL GATHER (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, SOFTWARE, OR ANY OTHER THING PROVIDED BY GATHER IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES, SOFTWARE,OR ANY OTHER THING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF GATHER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF GATHER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) FIVE THOUSAND DOLLARS, OR (ii) THE AGGREGATE FEES PAID TO GATHER HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
You agree to indemnify and hold us harmless for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our Service to you, including any damages caused by your use of our Service. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys' fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
Notwithstanding anything else, you and your Authorized Users may not provide to any person or export or re-export or allow the export or re- export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing you and your Authorized Users acknowledge and agree that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Gather are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
This Agreement shall be governed by the laws in force in the State of New York. The offer and acceptance of this contract are deemed to have occurred in the State of New York.
Forum of Dispute
You agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction in the State of New York. Specifically, where the subject matter of a dispute is eligible, you agree that the sole forum for any such disputes shall be heard within the Civil Court of the City of New York – Small Claims Part ("Small Claims Court").
If a dispute claims multiple claims and one or more of those claims would be eligible to be heard by the Small Claims Court, you agree not to bring the other claims against us and to instead proceed within the Small Claims Court.
If you would be entitled in a dispute to an amount exceeding the monetary jurisdiction of the Small Claims Court, you agree to waive your right to collect any damages in excess of the monetary jurisdiction and instead still bring your claim within the Small Claims Court. At the time of drafting this Agreement, the monetary jurisdiction of the Small Claims Court is $5,000.
You agree that if a dispute is eligible to be heard in Small Claims Court but you would be entitled to an additional or alternative remedy in a higher court, such as injunctive relief, you will waive your right to that remedy and still bring the dispute within the Small Claims Court.
If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys' fees, court costs, and disbursements in doing so.
You agree that the unsuccessful Party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful Party's reasonable attorneys' fees, court costs, and disbursements.
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other's operation, Gather shall have the sole right to elect which provision remains in force.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
Gather reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
Assignment of Rights
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
Gather, Inc. has its head office at 1111 Kearny St, San Francisco, CA, 94133, USA and is a corporation incorporated under the laws of the State of Delaware.