Term of Service
Acceptance. By using the Website or Services in any manner, you are bound by these Terms of Service, as well as the Incorporated Terms identified below (collectively, the “Terms”). If you do not agree to the Terms, then do not use the Website or Services. If you are accepting these Terms on behalf of a company, organization, government, or other legal entity, you represent and warrant that (a) you are authorized to do so, (b) the entity agrees to be legally bound by the Terms, and (c) neither you nor the entity are barred from using the Services or accepting the Terms under the laws of the applicable jurisdiction.
Scope. These Terms govern your use of the Website and the Services. Except as otherwise specified, these Terms do not apply to Third-Party Products, which are governed by their own terms of service.
Incorporated Terms. The following policies, guidelines, and agreements (“Incorporated Terms”) are hereby incorporated into, and form an integral part of, the Terms to which you are agreeing to be bound:
Incorporated Terms. The following policies, guidelines, and agreements (“Incorporated Terms”) are hereby incorporated into, and form an integral part of, the Terms to which you are agreeing to be bound:
- Acceptable Use Policy
- Payment & Fees Terms
- Infringing Materials Protocol
- Warehouse & Fulfillment Policy
- Contracting Entity. “Geargag” means the Geargag entity with which you are entering into these Terms. If you have previously entered into an agreement with a Geargag entity, then “Geargag” means that entity.
- Certain Definitions
- “Order Form” or “Order” means one or more Geargag order forms executed by the parties for the purchase of Services and that reference these Terms.
- “Services” means all Geargag products, services, and materials located on or accessible through the Website or otherwise described in an Order.
- “Third-Party Products” means any third-party information, website, product, service, or materials referenced in, accessible through, or provided in connection with the Website or Services.
- “Website” means the Geargag website located at www.Geargag.com (including all associated internet country codes), together with all Geargag websites and webpages accessible there, and the Account control panel.
- Minimum Age. The Services and Website are available only to persons who are the age of majority and can form legally binding contracts under applicable law. Without limiting the foregoing, the Services and Website are not intended to be used by individuals under the age of 18. If you do not qualify, please do not use the Services or access the Website.
- Registration. In order to use the Services, you must establish a Services account (“Account”) by registering with Geargag. You may be required to submit a valid means of payment for which you are authorized to purchase Services. You will provide true, accurate, current, and complete information when registering for an Account and will update the information as necessary to keep your Account and payment information current. As part of the registration process, you will provide Geargag with a username and password for your Account (together “Account Credentials”). Geargag reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
- Generally. You are responsible for maintaining the security of your Account Credentials and for all Services ordered, accessed, or otherwise used in connection with your Account Credentials and all actions taken in association therewith. You will not share your Account Credentials with any third party.
- Payment Cards. Geargag is responsible for the security of credit cardholder data to the extent that Geargag has control of that data. To that end, Geargag undertakes regular assessments consistent with the Payment Card Industry Data Security Standards. You represent and warrant that you will determine the PCI DSS merchant requirements applicable to you and your use of the Services
- Use Restrictions.
This is an agreement for Services, and you are not granted a license to any software by these Terms. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the Services or any software, documentation or data related to the Services (“Software”); modify, translate or create derivative works based on the Services or any Software; or copy (except for archival purposes), distribute, pledge, assign or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
- Intellectual Property.
4.1. User Content.
License: We do not claim any intellectual property rights over the content you provide to Geargag. All of your content remains yours. When providing content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "IP Rights") you have in that content or associated with your store in connection with our provision of the Services, in any media known now or developed in the future.
Representations and Warranties: You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under these Terms. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with these Terms, does not and will not infringe any IP Rights of any third party. Geargag takes no responsibility and assumes no liability for any content provided by you or any third party.
Name and Marks: Geargag shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your store(s) to promote the Services.
4.2. Geargag Content.
Restrictions. All rights not expressly granted by Geargag to you in these Terms are hereby reserved by Geargag. There are no implied rights. You may not use, imitate, or copy, in whole or in part, any Geargag trademark, service mark, trade dress, logo, or other branding (collectively, “Marks”) without, in each instance, Geargag’s prior written consent, in Geargag’s discretion. All permitted use of Geargag’s Marks will inure to the benefit of Geargag.
Ownership. As between the parties, the Website and Services, including, without limitation, any and all APIs, Software, documentation, images, video, content, logos, page headers, custom graphics, design and user interface elements, scripts, and other materials contained therein or provided in connection therewith, and all modifications, enhancements, and updates thereto, as well as all IP Rights associated with any of these materials (collectively, "Geargag IP") are owned by Geargag and/or its third party sponsors, partners, and suppliers. You have no right or license in or to the Geargag IP other than the right to use the Services, in compliance with the Terms, during the applicable subscription period.
Feedback. You may provide Geargag with ideas, opinions, recommendations, feedback, or advice in connection with your use of the Services (collectively, "Feedback"). If you submit Feedback to Geargag, you hereby grant Geargag an irrevocable, perpetual, transferable, non-exclusive, fully-paid-up, royalty-free, worldwide license (sublicensable through multiple tiers) to: (a) use, copy, distribute, reproduce, modify, create derivative works of, adapt, publish, translate, publicly perform, and publicly display such Feedback (or any modification thereto), in whole or in part, in any format, medium or application now known or later developed; and (b) use, and permit others to use, Feedback in any manner and for any purpose (including, without limitation, commercial purposes) that Geargag deems appropriate in its discretion (including, without limitation, incorporating Feedback, in whole or in part, into any technology, product or service).
You will defend, indemnify, and hold Geargag and its suppliers and affiliates, and the respective directors, officers, employees and agents of each, harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to your breach of any of these Terms or use by you or any third party (authorized, permitted or enabled by you) of the Services, except to the extent the foregoing directly result from Geargag’s own gross negligence or willful misconduct. Geargag reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. This Indemnification Section will survive any termination or expiration or these Terms.
- Discussion Areas.
No Warranty. Geargag makes no representations or warranties with respect to any forums, blogs, private messages, emails, or other electronic discussion mediums made available through or in connection with the Services (collectively, "Discussion Areas") or with respect to any information or materials contained in the Discussion Areas. Your use of, or reliance upon, any such information or materials is at your sole risk.
Your Postings. All information, content, or materials you post to a Discussion Area must comply with the Acceptable Use Policy. Geargag will have no obligation to monitor the Discussion Areas, but may do so at its discretion and may delete, move, or edit any information or materials in the Discussion Areas.
- Limitations of Liability.
Excluded Damages and Theories. Geargag AND ITS SUPPLIERS AND AFFILIATES ASSUME NO RESPONSIBILITY WITH RESPECT TO YOUR OR YOUR USER’S USE OF THE WEBSITE, SOFTWARE, OR SERVICES AND WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, LOSS OF PROFITS, AND LOST REVENUE, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT Geargag IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
7.1. Aggregate Liability. Geargag AND ITS SUPPLIERS AND AFFILIATES WILL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY Geargag FROM YOU FOR THE SERVICES DURING THE 12-MONTH PERIOD BEFORE THE CLAIM OR CAUSE OF ACTION AROSE.
7.2 Multiple Claims; Time Limits. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE, SOFTWARE, OR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CLAIM AND CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
7.3. Jurisdictions; Limitations. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, THE LIABILITY OF Geargag AND ITS SUPPLIERS AND AFFILIATES FOR SUCH DAMAGES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATIONS OF LIABILITY SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS.
- CGA Terms
8.1. Modifications. Geargag reserves the right, in its discretion, to change, modify, add to, or remove portions of the Terms (collectively, “Changes”), at any time. Geargag will notify you of Changes by sending an email to the address identified in your Account or by posting a revised version of the Terms incorporating the Changes to its Website. Your continued use of the Website or Services following notice of the Changes (or posting of the Terms incorporating the Changes in the event your email address is no longer valid, is blocked, or is otherwise not able to receive the notice) will mean that you accept and agree to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Website.
8.2. Term; Termination.
- Term. The Services will be provided to you for the duration of your Services subscription or Order Form, unless earlier cancelled by you or terminated by Geargag. You may cancel your Services subscription at any time. These Terms will automatically terminate upon the cancellation of all of your Services subscriptions. Geargag may terminate these Terms or your Services subscription(s) at any time, with or without cause, upon written notice. Geargag will have no liability to you or any third party because of such termination. Termination of these Terms will terminate all of your Services subscriptions.
- Effect of Termination.Upon termination of these Terms by either party for any reason, or cancellation or expiration of your Services subscriptions: (i) Geargag will cease providing the Services; (ii) you will not be entitled to any refunds of any subscription or usage fees, or any other fees, pro rata or otherwise; (iii) any fees you owe to Geargag will immediately become due and payable in full; and (iv) Geargag may delete your archived data within 30 days. All sections of the Terms that expressly provide for survival, or by their nature should survive, will survive termination of the Terms, including, without limitation, confidentiality, indemnification, warranty disclaimers, and limitations of liability.
8.3. Limitations of Liability.
- Excluded Damages and Theories. Geargag AND ITS SUPPLIERS AND AFFILIATES ASSUME NO RESPONSIBILITY WITH RESPECT TO YOUR OR YOUR USER’S USE OF THE WEBSITE, SOFTWARE, OR SERVICES AND WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, LOSS OF PROFITS, AND LOST REVENUE, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT Geargag IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
- Aggregate Liability. Geargag AND ITS SUPPLIERS AND AFFILIATES WILL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY Geargag FROM YOU FOR THE SERVICES DURING THE 12-MONTH PERIOD BEFORE THE CLAIM OR CAUSE OF ACTION AROSE.
- Multiple Claims; Time Limits. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE, SOFTWARE, OR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CLAIM AND CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
- Jurisdictions; Limitations. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, THE LIABILITY OF Geargag AND ITS SUPPLIERS AND AFFILIATES FOR SUCH DAMAGES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATIONS OF LIABILITY SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS.
- General. YOUR USE OF THE WEBSITE, SOFTWARE, AND SERVICES WILL BE AT YOUR OWN RISK AND ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. Geargag AND ITS SUPPLIERS AND AFFILIATES DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- Specific. Geargag MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT (i) THE ABILITY OF THE WEBSITE, SERVICES, OR SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (ii) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE WEBSITE, SERVICES, OR SOFTWARE, (iii) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY LINKED SITES (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE), AND/OR (iv) THIRD-PARTY PRODUCTS, AND Geargag ASSUMES NO LIABILITY OR RESPONSIBILITY THEREWITH.
- Third-Party Products. THE REFERENCE TO, OR AVAILABILITY OF, THIRD-PARTY PRODUCTS IN CONNECTION WITH THE SERVICES OR WEBSITE DOES NOT CONSTITUTE, AND WILL NOT BE CONSTRUED AS CONSTITUTING, AN ENDORSEMENT, AUTHORIZATION, SPONSORSHIP, OR AFFILIATION BY OR WITH Geargag WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS.
- Legal, Tax, Financial, Other Communications. NO ORAL OR WRITTEN INFORMATION OR ADVICE OR COMMUNICATIONS PROVIDED BY Geargag OR ANY OF ITS EMPLOYEES WILL CONSTITUTE PERSONAL, LEGAL, TAX OR FINANCIAL ADVICE OR CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND.
- Jurisdictions; Limitations. THESE DISCLAIMERS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, Geargag’S WARRANTIES, CONDITIONS AND REPRESENTATIONS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
- Definition. “Confidential Information” means the business, technical and financial information disclosed to one party (the “Receiving Party”) by the other party (the “Disclosing Party”) pursuant to these Terms and includes all information marked by the Disclosing Party as confidential and any other information, whether written or oral, that the Receiving Party should reasonably understand is confidential to the Disclosing Party.
- Obligations. The Receiving Party will: (i) hold the Confidential Information of the Disclosing Party in trust and confidence and not disclose or release the Confidential Information to any third party except as provided herein; and (ii) not use the Confidential Information for any purpose except for the purposes described in these Terms. The disclosure of Confidential Information pursuant to these Terms is not intended in any way to transfer or grant any right, title or interest in or to such Confidential Information to the Receiving Party unless otherwise expressly indicated by the Disclosing Party in writing.
- Standard of Care. The standard of care imposed on each party pursuant to this Section will be the same degree of care as it uses to avoid the unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than a commercially reasonable degree of care.
- Limitation. Each party will disclose the Confidential Information of the other party only to those of its employees, consultants and contractors (“Personnel”) who have agreed, either as a condition of employment, representation or in a written agreement, to be bound by terms and conditions substantially as protective as the confidentiality terms and conditions applicable to the Receiving Party under this Section.
- Exclusions. Confidential Information excludes information that is (i) rightfully in the Receiving Party’s possession without obligation of confidentiality prior to receipt from the Disclosing Party, (i a matter of public knowledge through no fault of the Receiving Party, (iii) rightfully furnished to the Receiving Party by a third party without restriction on disclosure or use; or (iv) independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.
- Requests for Confidential Information. A Receiving Party may disclose Confidential Information pursuant to a valid court order or order of an authorized government agency, provided that (if not legally prohibited) the Receiving Party has given the Disclosing Party prompt notice so that the Disclosing Party will have an opportunity to defend, limit or protect against such disclosure and the Receiving Party limits such disclosure to only that Confidential Information subject to the applicable order.
- Survival. The terms of this Section will survive for as long as the Confidential Information remains confidential.
8.6. Backup Storage. For its own operational efficiencies and purposes, Geargag from time to time backup data on its servers, but is under no obligation or duty to you to do so under these Terms or otherwise. IT IS SOLELY YOUR DUTY AND RESPONSIBILITY TO BACKUP SEPARATELY YOUR FILES AND DATA THAT MAY RESIDE ON Geargag SERVERS. UNDER NO CIRCUMSTANCES WILL Geargag BE LIABLE TO YOU, YOUR USERS, OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, FOR LOSS OF FILES AND/OR DATA ON ANY Geargag SERVER.
8.7. No Assignment by You. You may not assign your rights or obligations under these Terms without the prior written consent of Geargag, which Geargag may refuse in its sole discretion. Any attempted assignment without prior written consent from Geargag will be deemed null and void. Geargag may assign its rights and/or obligations under these Terms at any time. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- a. You consent to receive electronically any communications from Geargag. We may communicate with you through the email address specified in your account or by posting notices on the Website. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any
requirement that such communications be in writing. All notices from us intended for receipt by you shall be deemed delivered and effective when sent to the email address you provide to us.
- Notices to Geargag must be sent to: email@example.com
8.9. Entire Agreement. These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms, and any modifications must be in writing signed by both parties, except as otherwise provided herein.
9.1. Governing Law; Jurisdiction. The law that will govern the validity and construction of these Terms and apply in any dispute or lawsuit arising out of or relating to these Terms is as set forth in table in the Contracting Entity Section above. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, the jurisdiction and venue of the federal and state courts located in Californmia, Texas (USA). The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is hereby expressly excluded.
9.2. Severability. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms will otherwise remain in full force and effect and enforceable.
9.3. Waiver. No waiver of any provision of these Terms, nor consent by Geargag to the breach of or departure from any provision of these Terms, will in any event be binding on or effective against Geargag unless it be in writing and signed by a duly authorized representative of Geargag, and then such waiver will be effective only in the specific instance and for the specific purpose for which given.
9.4. Section Headings. The section headings and titles in these Terms are for convenience only and have no legal or contractual effect. These Terms will be interpreted without application of any strict construction in favor of or against you or Geargag.
9.5. Independent Contractors. No agency, partnership, joint venture or employment relationship is created by these Terms or your use of the Services, and you do not have any authority of any kind to bind Geargag in any respect whatsoever.
9.6. Force Majeure. Geargag will have no liability to you, your users, or any third party for any failure by Geargag to perform its obligations under these Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of Geargag, including, without limitation, an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, or civil commotion or other force majeure event.
9.7. Third-Party Service Integration. Certain Third-Party Products may be integrated with the Services. Geargag may, in its discretion and without liability to you, decide to no longer support such integration and migrate your Services subscription to a different integration.
9.8. Hosting Services. Geargag has entered into arrangements with one or more third parties for hosting services that are essential to the Services, incorporated within the Services and without which the Services could not be provided to you.
9.9. Virtual Machine Commands and Runtime Engines. Use of Geargag’s ecommerce website design platform to author web pages (or portions thereof) that are displayed through the use of virtual machine commands or a runtime engine is prohibited.