Terms of Service

Gather Voices

Terms of Service and End User License Agreement

Thank you for your interest in Gather Voices®. Please read the following:

THIS TERMS OF SERVICE AND END USER LICENSE AGREEMENT ARE A BINDING LEGAL AGREEMENT BETWEEN YOU AND GATHER VOICES, INC., GOVERNING YOUR USE OF OUR SERVICE (AS DEFINED BELOW) AND THE GV APP INTENDED TO BE USED IN CONJUNCTION WITH THE SERVICE.

GATHER VOICES’ WILLINGNESS TO ENTER INTO THIS AGREEMENT IS CONTINGENT ON YOU ACCEPTING THIS AGREEMENT WITHOUT MODIFICATION. BY ACCEPTING THIS AGREEMENT, EITHER BY (A) REGISTERING WITH US OR SPONSOR TO CREATE AN ACCOUNT TO USE THE SERVICE OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, OR (B) LOGGING IN TO USE THE SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT, EITHER ON YOUR OWN BEHALF, OR ON BEHALF OF A LEGAL ENTITY (E.G., YOUR EMPLOYER OR OTHERWISE) (“ENTITY”), IN WHICH CASE YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED BY THE ENTITY TO DO SO, HAVE THE AUTHORITY TO LEGALLY BIND THE ENTITY, ARE AT LEAST OF AGE TO GIVE CONSENT OR HAVE PARENTAL CONSENT, AND AGREE THAT THE TERMS “YOU” AND “YOUR” SHALL REFER TO YOU, INDIVIDUALLY, AND THE ENTITY. IF YOU ARE NOT SO AUTHORIZED OR IF YOU CANNOT ACCEPT THIS AGREEMENT, YOUR USE OF THE SERVICE IS PROHIBITED. GV AND YOU ARE REFERRED TO INDIVIDUALLY HEREIN AS A “PARTY,” AND COLLECTIVELY AS THE “PARTIES.”

THE SERVICE IS NOT INTENDED FOR USE BY CHILDREN WITHOUT THE CONSENT OF THEIR PARENTS. CHILDREN MERIT SPECIFIC PROTECTION WITH REGARD TO THEIR PERSONAL DATA. IF OUR CUSTOMER, YOUR SPONSOR, COLLECTS PERSONAL DATA FROM CHILDREN, OUR CUSTOMER HAS AN ACCOMPANYING RESPONSIBILITY TO OBTAIN APPROPRIATE PARENTAL CONSENTS. IN THE U.S., CHILDREN UNDER 13 YEARS OLD ARE PROHIBITED FROM USING OUR SERVICE WITHOUT VERIFIED PARENTAL CONSENT. IF YOU ARE UNDER THE AGE OF EIGHTEEN (18) IN THE US, YOU REPRESENT THAT A PARENT OR LEGAL GUARDIAN ALSO AGREES TO THIS POLICY ON YOUR BEHALF. IN THAT CASE, YOUR PARENT OR GUARDIAN WILL BE THE RESPONSIBLE PARTY OPPOSITE GV UNDER THIS AGREEMENT.

FOR INDIVIDUAL DATA SUBJECTS ENTITLED TO THE PROTECTIONS OF THE GDPR, PARENTAL CONSENT MAY BE REQUIRED FOR PERSONS UNDER 13 TO 16 YEARS OLD, DEPENDING ON THE AGE SET BY THE APPLICABLE EU MEMBER STATE. WE DO NOT KNOWINGLY ALLOW PERSONS BELOW THESE AGES TO USE OUR SERVICE WITHOUT THEIR PARENT’S CONSENT. IF YOU ARE A MINOR, PLEASE DO NOT USE OUR SERVICE OR SEND US YOUR INFORMATION UNLESS YOU CAN ALSO PROVIDE VERIFIED PARENTAL CONSENT. WE DELETE INFORMATION THAT WE LEARN IS COLLECTED FROM A MINOR WITHOUT VERIFIED PARENTAL CONSENT. PLEASE CONTACT US USING [email protected] IF YOU BELIEVE WE MIGHT HAVE INFORMATION FROM OR ABOUT A MINOR WITHOUT PARENTAL CONSENT. PARENTS: PLEASE CAUTION YOUR CHILDREN NOT TO SEND US ANY PERSONAL DATA WITHOUT YOUR VERIFIABLE CONSENT. CONSISTENT WITH THE CHILDREN’S ONLINE PRIVACY PROTECTION ACT AND RULES, IF A CHILD UNDER 13 HAS PROVIDED PERSONAL DATA TO US THROUGH THE SERVICE WITHOUT VERIFIABLE PARENTAL CONSENT, A PARENT OR GUARDIAN MAY INFORM US USING THE INFORMATION IN THE “CONTACTING GV” SECTION BELOW, AND WE WILL USE COMMERCIALLY REASONABLE EFFORTS TO DELETE SUCH INFORMATION, SUBJECT TO APPLICABLE LAW AND THIS PRIVACY POLICY.

THIS IS NOT AGREEMENT BETWEEN YOU AND APPLE INC. (“APPLE”) EVEN IF YOU OBTAINED THE GV APP FROM THE APP STORE OR ANY OTHER APPLE SITE FROM WHICH IOS-COMPATIBLE APPS ARE MADE AVAILABLE, NOR IS THIS AN AGREEMENT BETWEEN YOU AND GOOGLE INC. (“GOOGLE”), EVEN IF YOU OBTAINED THE GV APP FROM GOOGLE PLAY OR ANY OTHER SITE FROM WHICH ANDROID-COMPATIBLE APPS ARE MADE AVAILABLE. ADDITIONAL TERMS AND CONDITIONS NOT CONTAINED IN THIS AGREEMENT AND IMPOSED BY APPLE AND GOOGLE SHALL APPLY TO YOUR USE OF THE FOREGOING THIRD PARTY SERVICES, FOR WHICH GV IS NOT RESPONSIBLE. NEITHER APPLE NOR GOOGLE ARE RESPONSIBLE FOR THE SERVICE, INCLUDING THE GV APP.

NOTE: IF YOU ARE A COMPETITOR OR PROSPECTIVE COMPETITOR OFFERING OR CONSIDERING OFFERING PRODUCTS OR SERVICES SIMILAR TO OR COMPETITIVE WITH THOSE OFFERED BY GATHER VOICES, YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICE. IN ADDITION, ANY ACCESS TO OR USE OF THE SERVICE FOR COMPETITIVE PURPOSES, INCLUDING MONITORING OR DETERMINING THE SERVICE’S AVAILABILITY, FEATURES, FUNCTIONALITY OR PERFORMANCE, BENCHMARKING OR FOR ANY SIMILAR OR OTHER PURPOSE, IS PROHIBITED.

GATHER VOICES AND YOU AGREE TO THE FOREGOING, AND AS FOLLOWS:

1. DEFINITIONS. As used in this Agreement, and in addition to any other terms defined herein, the following defined terms will have the following meanings:
2. “Affiliate” means a person or entity that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified person or entity. “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of more than fifty percent (50%) of the shares or voting securities, by contract or otherwise. Any such person or entity shall be considered an Affiliate for only such time as such control is maintained.
3. “Agreement” means the terms of this Agreement for the Service, including the GV App.
4. “AUP” means GV’s Acceptable Use Policy set forth in Section 4.3.2, below.
5. “Confidential Information” means: (a) information of GV in all forms which derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, as well as business and marketing plans, technology and technical information, and product plans and designs, and business processes disclosed by GV; and (b) other information that is provided to or obtained by You and that is valuable to GV and not generally known by the public, whether disclosed orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Under any circumstances, even if not marked as such, GV’s Confidential Information includes the non-public-facing elements of the Service, Documentation, GV IP and all elements and components and elements thereof, regardless of form, each of which consist of and comprise trade secrets of GV.
6. “Device” means an Apple iOS-based or Android-based mobile phone (smartphone) or, as applicable, any tablet, laptop, or desktop computer having access to the Internet.
7. “Documentation” means any electronic “Help” features of the Service (and the GV App) made available by GV describing the functionality or operation of the Service, including the GV App.
8. “Effective Date” means the effective date of this Agreement, commencing on the date you accepted this Agreement as described above.
9. “GV App” means the software application made available under the Sponsor’s auspices, sponsorship and/or branding for downloading and installation on Your Devices as part of the Service for Your use to aid in creating User Content and through which You may upload User Content to the Service.
10. “Maintenance” means the provision of Updates which, in the case of the GV App, if made available by GV will be made available through the Apple Store or Google Play, depending on Your Device operating system.
11. “Personal Data” means personally identifying information pertaining to an individual.
12. “Service” means the online, hosted computer software application, its website interfaces and portals, the GV App and its component Modules, and the features and functionality of each of the foregoing known as “Gather Voices,” as described in the applicable Order Form, including all related Documentation, Updates, and all components and elements thereof, tangible and intangible, in computer software and other form and the GV IP embodied therein, as made available by GV and/or Sponsor. Reference to the Service in the context of Your obligations shall refer to the Service in its entirety and any part thereof.
13. “Sponsor” means the organization or other entity which has arranged with GV to make the Service, including the GV App, available to You under its auspices, sponsorship and/or branding.
14. “Sponsor Terms of Service” means the terms of service or other legal agreement between You and Sponsor governing the relationship between You and Sponsor with regard to Your use of the Service.
15. “Support” means the provision by Sponsor of limited technical support services related to the use and operation of the GV App and the Service consisting of commercially reasonable efforts by Sponsor to respond, during Sponsor’s normal business hours, to Your inquiries submitted via email to Sponsor.
16. “Subscription” means the subscription license purchased by Sponsor from GV allowing Sponsor to use and make the Service available to You under its auspices for the duration of Sponsor’s Subscription Term.
17. “Subscription Term” means the period of time during which Sponsor’s applicable Subscription remains valid.
18. “User Content” means pictures, images, photographs, videos, text, audio, code, reviews, responses, profile entries, questions or and any other content or data, regardless of form, which users of the Service upload, view, distribute, or otherwise transmit to, through or from the Service or create, in whole or in part, using the Service, including Personal Data to the extent included in User Content. User Content does not include any component or element of the Service itself, nor any of the foregoing items created by GV.
19. “You” or “Your” refers to the individual or Entity (as defined above) which has accepted this Agreement as described above. GV Terms of Service and End User Agreement – August 6, 2019
20. “Updates” means updates, corrections, modifications and/or functional enhancements to the Service, GV App and/or Documentation, including new versions thereof.
21. THE SERVICE.
22. License. GV grants You a non-exclusive, non-transferable, limited, revocable license, for the duration of Sponsor’s Subscription Term (subject to Sponsor’s consent, which it may grant or withdraw in its discretion) to use the Service, including the GV App, as made available to You through your account with Sponsor, to create, upload, distribute, or otherwise transmit to, through or from Sponsor’s account to use the Service, as permitted by its functionality and as described in the Documentation and permitted by this Agreement and the Sponsor Terms of Service, and to download and use the GV App on any Device that You own or control and with which the Service, including the GV App, is designed to be used, as permitted by the Usage Rules set forth in the App Store and Google Play Terms of Service. You understand and agree that in order for you to use the Service, you must establish a user account with Sponsor and that the administration of the Service and Your User Content as it pertains to You and Your account is controlled by Sponsor, and not GV. GV is an independent contractor and service provider of Sponsor as it pertains to the Service. Under the EU General Data Protection Regulation (GDPR), Sponsor is the “controller” and GV is the “processor” with regard to Your Personal Data. Your account to use the Service is with Sponsor and not GV, but your right to use the Service is contingent upon your compliance with this Agreement and the Sponsor Terms of Service. GV may exercise any of its rights hereunder on its own behalf or at the direction of Sponsor.
23. User IDs and Logins.
24. You are responsible and liable for all access to and use of the Service by anyone through any user login or other ID and password chosen by or assigned to You, or which you otherwise use to access the Service as permitted under this Agreement (collectively, “Access Credentials”). You agree to immediately notify GV (via email at [email protected]) and Sponsor of any unauthorized use of any Access Credentials, or any other actual or suspected breach of security related to the Service of which You become aware. All Access Credentials created using the Service (but not, for example, your Facebook or Google Access Credentials, or Your Sponsor’s account Access Credentials permitting You to access Your Sponsor’s site(s)), are and shall remain the property of GV, are hereby assigned to GV and constitute Confidential Information of GV, and must be safeguarded as such.
25. GV provides you the ability to create an account with GV and log in to the Service using your Facebook or Google access credentials. In each case, you authorize us to collect your authentication information, such as your username and encrypted access credentials, and other information available from Facebook or Google, as explained in further detail in our Privacy Policy. You further agree that when you use Facebook or Google or Your Sponsor’s websites and/or Access Credentials, You will be subject to their respective terms of use and privacy policies.
26. Rules to Safeguard Children. Children merit specific protection with regard to their personal data. If our Customer, your Sponsor, collects personal data from children, our Customer has an accompanying responsibility to obtain appropriate parental consents. In the U.S., children under 13 years old are prohibited from using our Service without verified parental consent. If you are under the age of eighteen (18) in the US, you represent that a parent or legal guardian also agrees to this policy on your behalf. For individual data subjects entitled to the protections of the GDPR, parental consent may be required for persons under 13 to 16 years old, depending on the age set by the applicable EU member state. We do not knowingly allow persons below these ages to use our Service without their parent’s consent. If you are a minor, please do not use our Service or send us your information unless you can also provide verified parental consent. We delete information that we learn is collected from a minor without verified parental consent. Please contact us using [email protected] if you believe we might have information from or about a minor without parental consent. Please see the “Contacting GV” section below. Parents: please caution your children not to send us any Personal Data without your verifiable consent. Consistent with the Children’s Online Privacy Protection Act and Rules, if a child under 13 has provided Personal Data to us through the Service without verifiable parental consent, a parent or guardian may inform us using the information in the “Contacting GV” section below, and we will use commercially reasonable efforts to delete such information, subject to applicable law and this Privacy Policy. If You reside in in a jurisdiction that would restrict the use of the Service or any other feature or function of the Service because of the age of the user, You must abide by such age limits, rules, laws or regulations and You must not use the Service if You are legally prohibited from using it in that jurisdiction.
27. Security; Privacy. GV will implement reasonable and appropriate technical and organizational safeguards and security measures in accordance with Applicable Privacy Laws and consistent with prevailing information technology data security and privacy standards to minimize the risk of accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access to User Content and any Personal Data therein, in all cases subject to events outside GV’s reasonable control and as stated in Section 13.6 (Force Majeure), and the rights granted to GV and Sponsor set forth herein. GV’s Privacy Policy describes how GV collects and treats Personal Data, and You agree to the provisions of GV’s Privacy Policy. Nevertheless, because there is no such thing as absolute, 100% security or privacy on the Internet, GV makes no guarantee that any data, including Personal Data and Your User Content, will be 100% secure. Your User Content and Your Personal Data will also be subject to the data security and privacy practices of the Sponsor. GV does not control the data security or privacy practices of the Sponsor and urges you to consult the Sponsor’s privacy policy and the Sponsor Terms of Service. Nothing in this paragraph shall be interpreted to limit GV’s rights under Section 6.2 (License to GV and Sponsor), nor any of such rights sublicensed to Sponsor.
28. Maintenance; Support. Updates to the GV App, maybe made available by GV, in its sole discretion, through Google Play and such other third party sites through which GV has elected to make the GV App available, when GV makes them available to its customers and users generally. GV shall be under no obligation to make Updates available to the GV App or Service. Sponsor may provide limited Support with regard to the GV App and the Service. Neither Apple nor any other third party has no obligation whatsoever to furnish any maintenance and support services with respect to the GV App.
29. Limitations on Usage. Use of the Service and the quantity or volume of User Content You may upload to the Service shall be subject to the quantities of disk storage space, memory, and/or data transfer (“in” and “out”) purchased by Sponsor and other factors.
30. Included Third Party Software. Certain features of the Service may be implemented by included third party software. GV may be required to publish the terms, disclaimers and notices applicable to such third party software. If so, they will be made accessible through the Service and/or GV App, and Your use of the Service and/or GV App constitutes your agreement to same.
31. Suspension of Access. GV or Sponsor may immediately suspend or disable Your access to and use of the Service if, as a result of Your use of the Service or breach of this Agreement, GV or Sponsor reasonably believes: (a) GV or Sponsor is likely to be subject or exposed to criminal or civil sanctions, prosecution or suit; (b) such use or breach is likely to cause harm to GV or Sponsor or GV’s or Sponsor’s other customers or their respective employees or interfere with the integrity, operations or security of the Service or GV’s or Sponsor’s network or systems or those with which GV or Sponsor’s is interconnected, or interfere with another customer’s use of any of the foregoing. GV or Sponsor may also suspend or disable Your access to and use of the Service if required in order to comply with a court order or government notice. In the exercise by GV or Sponsor of the right to act immediately under this paragraph, GV shall provide such advance notice as is reasonably practicable under the circumstances. If advance notice is not reasonably practicable, GV shall provide subsequent notice promptly thereafter. You shall promptly cooperate with GV and Sponsor in attempting to resolve the issue giving rise to any suspension or disablement of Your access to and use of the Service. The foregoing shall be in addition to the termination rights of either Party hereunder.
32. Links to Third Party Services. The Service may contain links to or integrate with various third party services, applications, functions, websites and otherwise (collectively, “Third Party Services”), not under GV’s or Sponsor’s control. Accordingly, You agree that neither GV nor Sponsor shall be responsible for the quality, safety, security, availability, completeness, accuracy, or nature of the content or any other aspect of such Third Party Services, nor can GV or Sponsor make any guarantee or warranty with regard to Third Party Services. Any such links or integration are provided solely as a convenience to You and shall not be regarded as an endorsement by GV or Sponsor of these Third Party Services, the companies which own or provide them, their content or their services, applications, functions, products or otherwise. Your use of Third Party Services may be subject to the separate policies, privacy practices, terms of use and/or fees imposed by their operators, is entirely at Your own risk, and GV and Sponsor disclaim any and all representations, warranties and liability with respect to Third Party Services.
33. The Service is Not a Data Backup Service. You agree that the Service is not provided by GV as a data backup or offsite redundant storage service. You will not rely on the Service for backup or storage of Your User Content or any other data. Furthermore, neither GV nor Sponsor will be liable to You for any modification, suspension, or discontinuation of the Service, the GV App or the loss of or damage to any User Content. You also acknowledge that the Internet may be subject to breaches of security and that Your User Content or other information may not be secure.
34. Account Deletion. You may delete or deactivate your account on the Service (including your username and profile) once it is created. Deletion of Your Account does not result in deletion of Your User Content, as stated in Section
35. USER CONTENT.
36. GV Does Not Monitor or Review User Content. GV has no obligation to, and does not during the normal course of business, monitor, review or examine User Content, but GV reserves the right to do so in connection with any legal action between GV, You and/or Sponsor, as required by law or judicial or regulatory order, or as reasonably necessary to protect the interests of GV, its Customers and/or users of the Service.
37. You Are Responsible for Your User Content. As between You and GV and Sponsor, You have sole responsibility and liability for Your User Content and for ensuring that it does not violate GV’s Acceptable Use Policy (AUP) set forth in Section 4.3.2 below or otherwise violate the legal rights of any third party. You, and not GV or Sponsor, are entirely responsible and liable for any claims, losses or damages relating to all User Content that You upload or otherwise transmit via the Service, including with regard to: (a) any information or material or data, including video, audio or other content, contained within Your User Content, and any resulting violation or infringement of intellectual property rights, privacy rights or other legal rights of any third party; (b) Your failure to obtain model releases, property releases, or any other required waiver or release; or (c) any other violation of law related to User Content or its subject matter. You agree not to upload any User Content containing the image or likeness of any individual unless you obtain that individual’s consent. You agree to indemnify, defend and hold harmless GV and Sponsor with respect to any claims arising in any way from Your User Content or Your use of the User Content of others, and to provide the indemnity set forth in Section 11 (Indemnification). Neither GV nor Sponsor shall have any obligation or responsibility to review, filter or edit User Content, but they shall have the right to do so if they choose. For purposes of defamation and other laws, neither GV nor Sponsor is the publisher of User Content.
38. User Content of Others. User Content does not necessarily reflect the views of GV or Sponsor, nor should GV or Sponsor be viewed as endorsing any User Content in any way. User Content uploaded or viewable through the Service by You or others, is provided by users like You who are unaffiliated with GV or Sponsor, and the user providing User Content is solely responsible for his/her own User Content. It is possible that the Service may contain User Content of others that violates the AUP, is offensive or objectionable, contains errors, violates intellectual property, privacy, publicity or other rights of third parties, or is harmful to Your Devices, computers or networks. Your use of the Service or any User Content of others is entirely at Your own risk, and GV and Sponsor disclaim any and all representations, warranties and liability with respect to User Content. Neither GV nor Sponsor, or their respective Affiliates, and their respective officers, directors, and employees, are responsible for any User Content, the accuracy or opinions expressed on the Service, nor shall they have any liability for any User Content. You are responsible for implementing safeguards and taking precautions necessary to protect Yourself and others, and Your Devices, computers and network from any possible harm resulting from access to User Content.
39. No Compensation for User Content. GV, its licensees, Affiliates, successors and assigns, will be entitled to retain any and all revenue generated from any sales, licenses, assignments and other transfers of the rights granted by You hereunder, as well as any and all revenue generated by the display of any advertising, publicity, promotional materials or distribution rights in connection with Your User Content. Nothing in this Agreement obligates GV or any other person or entity to exercise any of the rights granted by You under this Agreement. You will not receive any compensation of any kind for Your User Content or its use, regardless of any industry practice or custom. Neither GV nor Sponsor, nor their respective Affiliates, successors and/or assigns, shall have any obligation to give You credit or attribution for Your User Content, but in their sole discretion may choose to do so.
40. User Content Cannot be Deleted, is Not Confidential, and is Non-Returnable. Uploading any of Your User Content to the Service is completely voluntary. However, subject to Section 3.7 (Request That User Content No Longer Be Made Publicly Accessible), even if you delete Your account on the Service, You may not you edit or delete any User Content once it has been submitted to the Service. GV and/or Sponsor may retain your User Content to the fullest extent permitted by applicable law and as described in this Agreement and in Sponsor’s Terms of Service. GV and/or Sponsor may also discard your User Content at their respective discretion and will have no obligation to notify you or provide you with a duplicate copy; therefore, you should retain your own records of any content or other information that you submit to GV or Sponsor through use of the Service or otherwise.
41. Sponsor and/or GV shall have sole discretion as to the disposition of Your User Content, including whether Your User Content will be used, stored, deleted, modified, made publicly viewable on Sponsor’s website or on the Service, or otherwise, subject to applicable laws, and You agree that You shall no longer have any control over Your User Content. You should have no expectation of confidentiality with regard to Your User Content, as it will not be held in confidence, and uploading User Content does not create any fiduciary or confidential relationship or obligation to You with or on the part of GV or Sponsor. Neither GV nor Sponsor shall have any obligation to You, either during the term of this Agreement or afterwards, to preserve, maintain, store, delete or make Your User Content available to You, and may delete or destroy, at any time, Your User Content and all copies on the Service, their respective systems or otherwise in their respective possession or control, except to the extent prohibited by law.
42. Request That User Content No Longer Be Made Publicly Accessible. If you have a good faith reasonable belief that any of Your User Content violates the AUP or is otherwise in violation of applicable law, and You therefore wish that it no longer be accessible through the Service, You must contact Sponsor directly in writing and describe in detail the nature of the User Content, the approximate date(s) on which it was uploaded, the nature of your concerns and why you believe they justify removal of the User Content from the Service. You must also send a copy of your request to GV in accordance with Section 13.4 (Notices).
43. Your Rights Regarding Your Personal Data. Your rights, and GV’s and Sponsor’s respective rights and obligations, regarding Personal Data are as provided by applicable law and as stated in GV’s and Sponsor’s respective Privacy Policies; provided, however, that Your inclusion of Personal Data within Your User Content shall not diminish GV’s or Sponsor’s rights under this Section 3 (User Content) with regard to such User Content, except to the extent such rights conflict with applicable law.
44. ADDITIONAL RESPONSIBILITIES; RESTRICTIONS.
45. Internet Access; Computing Environment. You are responsible for obtaining, installing, maintaining, and operating all Devices, computer hardware, software, and Internet access services necessary to use or access any aspect of the GV App or browser-based functionality and the Service, and GV will not be responsible or liable for any errors or issues that arise from the malfunction or failure of any of the foregoing. You are responsible for all data charges you incur through use of the Service, including downloading or use of the GV App.
46. Sponsor Terms of Service. You are responsible for complying with the Sponsor Terms of Service. GV is not responsible or liable for your relationship with Sponsor, nor for any representations, warranties or other commitments made by Sponsor to You, nor which You make to Sponsor. In the event of any inconsistency or conflict between this Agreement and the Sponsor Terms of Service as they pertain to your rights and obligations with regard to the Service and Your User Content, and GV’s liability, this Agreement shall govern to the extent of such inconsistency or conflict.
47. Restrictions.
48. General. You agree that the Service contains content, information and material proprietary to GV and/or its licensors that is protected by applicable intellectual property laws and other laws, including copyright laws, as more fully described in Section 6.4 (The Service; GV Materials) below, and that You will not use the Service except in accordance with this Agreement, the Sponsor Terms of Service and as permitted by its included functionality. No portion of the Service, including the GV App may be reproduced in any form or by any means. You agree not to decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any part thereof, or rent, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, nor use or exploit the Service in any unauthorized way, whether by trespass, “data mining,” “data scraping,” unduly burdening network capacity, or in any other manner prohibited under GV’s AUP or otherwise in violation of this Agreement or the Sponsor Terms of Service. You further agree that You will not use the Service for framing or linking to other websites or locations on the Internet, without GV’s prior written consent, nor attempt to circumvent or defeat the Service’s security features or access parts of the Service that are not expressly authorized for Your use.
49. Acceptable Use Policy (AUP). Your use of the Service is subject to Your compliance with GV’s Acceptable Use Policy set forth in this Section 4.3.2. You may not use the Service, nor permit anyone else to use the Service, to create, upload, store, process, display, transmit or distribute material, User Content or any other information or materials:
50. that infringe or misappropriate a third party’s intellectual property or proprietary rights, including patents, copyrights, trade secrets and trademarks;
51. that disclose confidential or trade secret information or materials in breach of a legal obligation not to disclose such information or materials;
52. that violate or encourage conduct that would violate any applicable laws, including any criminal laws, or any third party rights, including confidentiality, publicity or privacy rights;
53. that constitute Protected Health Information (PHI) under the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), and its associated rules and regulations;
54. that is obscene or excessively profane;
55. that may be harmful to minors;
56. that promote or advocate hatred or violence, or promote or encourage discrimination against or intolerance of any person or group based on race, ethnicity, religion, sex, sexual orientation or on any other basis which would constitute a violation of law;
57. that advocate or provide instructions regarding computer hacking or cracking;
58. that advocate or provide instructions for use of illegal explosive or other devices, weapons or weapons of mass destruction;
59. intended to recruit individuals to join a terrorist organization or which otherwise further the agenda of a terrorist organization;
60. related to phishing or other methods of identity theft;
61. related to illegal drug paraphernalia;
62. related to or consisting of illegal or harmful malware such as viruses, worms, time bombs, trojan horses and other harmful or malicious files, scripts, agents or programs;
63. that is false and defamatory;
64. material or information constituting “fake news,” i.e., information of public interest depicted to be actual or true but known to be false, or which should reasonably be known to be false, for political or other purposes, except for satire; or
65. unsolicited commercial email (spam), including: (i) sending communications or email in violation of the CAN-SPAM Act or any other applicable anti-spam law or regulation; (ii) spoofing, imitating or impersonating GV, another person or his, her or its email address, or creating false accounts for the purpose of sending spam; (iii) data mining, scraping or harvesting any web property (including any part of the Service) to find email addresses or other user account information; (iv) sending unauthorized email via open, third-Party servers; (v) sending email to users who have requested to be removed from a mailing list; (vi) selling to, exchanging with, sharing with or distributing to a third party Personal Data, including the email addresses of any person without such person’s knowing and continued consent to such disclosure; or (vii) sending spam to significant numbers of email addresses belonging to individuals and/or entities with whom You have no preexisting relationship.
66. Any violations of this AUP will constitute a material breach of the Agreement and may result in termination of this Agreement or suspension and/or termination of Your account and access to the Service.
67. WARRANTIES; REMEDIES.
68. By GV. GV represents, warrants and agrees, solely for Your benefit, as follows:
69. It has the full right and authority to enter into this Agreement and owns all rights, title and interest in and to the Service, or has the right to make the Service available to You.
70. By You. You represent, and warrant and agree, for the benefit of GV and Sponsor, as follows:
71. You have the full right and authority to enter into this Agreement and Your use of the Service will comply with all applicable laws and regulations;
72. You own or otherwise have sufficient rights to Your User Content, and have obtained all approvals and permissions required, for uploading, distributing, or otherwise transmitting to the Service, or creating using the Service, Your User Content, including any necessary model releases from people, and property releases with regard to buildings, cars, works of art, statues, pets, etc., appearing in any images and videos and other materials and information contained within Your User Content, and as otherwise may be required by law in order to comply with this representation and warranty, and for granting to GV and Sponsor the rights to Your User Content contained in this Agreement. You further represent and warrant that none of the foregoing acts or any other act or omission by You involving Your User Content or the Service will violate, misappropriate or infringe the rights of any third party, including privacy rights, publicity rights, copyrights, trademark or other intellectual property rights, and that You will pay for all royalties, fees, damages and any other monies owed as a result of a claim resulting from any of the foregoing acts or omissions associated with Your User Content and Your use of the Service; and
73. You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and You are not listed on any U.S. Government list of prohibited or restricted parties.
74. Exceptions. GV’s warranties do not apply: (a) if You are or were in breach of this Agreement at the time the alleged breach of warranty occurred; (b) with regard to any element of the Service which has been altered, misused or damaged in any way by You; or (c) if the claimed breach is caused by changes in, or modifications to, the operating characteristics of any Device or computer hardware or software within Your computing environment or which occur as a result of the use of the Service in conjunction with incompatible Devices, hardware or software.
75. Exclusive Remedies.
76. You agree that because You paid nothing to use the Service or any element of it, GV’s entire liability and Your sole and exclusive remedy for GV’s breach of the above representation and warranty of GV shall be that GV shall either, in its sole determination, use commercially reasonable efforts to correct such breach or terminate this Agreement upon notice to You and without liability to You. To receive this remedy, You must report an alleged breach of warranty to GV in writing and in reasonable detail within ten (10) days the date you became aware of the breach. You may also terminate this Agreement. In all cases where this Agreement has been terminated, pursuant to this paragraph or otherwise, You agree to delete all copies of the GV App on all Devices in Your possession or control.
77. Notwithstanding anything to the contrary in this Section 5 (Warranties; Remedies), in the event of any failure of the GV App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price (if any) for the GV App to You. Further, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the GV App, and no claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty may be made against Apple.
78. No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5 (Warranties; Remedies), THE SERVICE, INCLUDING THE GV APP AND ALL OTHER ELEMENTS OF THE SERVICE, ARE PROVIDED “AS IS,” AND GV MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. GV SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA RELEASES OF THE SERVICE, INCLUDING THE GV APP, ARE PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND WHATSOEVER.
79. OWNERSHIP RIGHTS; LICENSE RIGHTS.
80. Ownership of Your User Content. As between You and GV and Sponsor, You are the owner of Your User Content, subject to the rights granted to GV and Sponsor in Section 3 (User Content) and Section 6.2 (License to GV and Sponsor), below.
81. License to GV and Sponsor. Unless specific limits on the use of Your User Content is contained in the consent you gave at the time of uploading, by uploading Your User Content to the Service, whether through the GV App or through Sponsor’s or GV’s online website providing access to the Service, You agree that You are granting, and do hereby grant, to GV and Sponsor, jointly and severally (including to their respective Affiliates, successors and assigns) a worldwide, royalty-free, perpetual, irrevocable (and in the case of GV, sub-licensable and assignable), non-exclusive right and license to use, host, store, reproduce, communicate, transmit, publish, publicly display, publicly perform, modify, create derivative works of and distribute, Your User Content, and to incorporate Your User Content in other works, in whole or in part, in any manner and any media now known or developed in the future, and to use Your User Content to make available, improve, promote and protect the Service, including to develop aggregate ratings, personalize site views, market products or services or identify or feature popular members, or otherwise as deemed necessary or desirable by GV and/or Sponsor in the operation of their respective businesses and operation and use of the Service. The foregoing may include GV and/or Sponsor featuring Your User Content or screen capture images from Your User Content on GV’s and/or Sponsor’s customer page on their respective websites, on GV’s and/or Sponsor’s respective social media sites, and GV’s and/or Sponsor’s Google Play and Apple Store pages. You hereby waive any claims against GV and Sponsor relating to any moral rights, artists’ rights or any other similar rights throughout the world that You may have in or to Your User Content, any right of inspection or approval of any such use of Your User Content, and any claim to attribution and remuneration for Your User Content and/or the rights granted herein. The foregoing rights, in the case of GV, shall include the right to create, compile, license, sell and otherwise use or dispose of, in any manner, aggregated and anonymized statistical data regarding Your use of the Service and information that may be gleaned from such aggregated and anonymized statistical data, provided that You are not identifiable by name in any such data. GV shall own all rights, title, and interest in and to such aggregated and anonymized statistical data. Notwithstanding anything to the contrary in this paragraph or elsewhere in this Agreement, and for the avoidance of doubt, all rights granted to GV and Sponsor in this paragraph shall be worldwide, royalty-free, perpetual, irrevocable, (and in the case of GV, sub-licensable and assignable), and non-exclusive to GV and Sponsor.
82. Use of Your Name and Likeness. Unless specific limits on the use of Your User Content is contained in the consent you gave at the time of uploading, by uploading Your User Content to the Service, You consent to the recording, use and reuse for any legal purpose by GV and/or Sponsor, their respective Affiliates, successors and assigns, of Your voice, actions, likeness, name, appearance, profile photograph, performance, biographical material, and any other identifying information, including any information contained in Your User Content (collectively, “Personal Elements”), which GV and/or Sponsor may edit, alter, modify, in its or their sole discretion, in any and all media now known or developed in the future, throughout the world, in perpetuity, and exercise all other rights with respect thereto as GV and Sponsor may exercise with regard to Your User Content as set forth in this Agreement, including in and in connection with the advertising, promotion and publicity of GV’s and Sponsor’s respective businesses.
83. Limitations on Rights Granted in Sections 6.2 and 6.3. The rights granted to GV in Sections 6.2 and 6.3, above, may be subject to certain restrictions imposed on GV by Your Sponsor (GV’s customer), and/or You may be requested by the Sponsor to agree to a more limited grant of rights than those set forth in Sections 6.2 and 6.3. Where GV has agreed with Sponsor to act in accordance with a more limited grant of rights by You consistent with what You have agreed to with Your Sponsor, GV will adhere to that more limited grant of rights. GV recommends you contact Your Sponsor for further information.
84. The Service; GV Materials. The Service, including the GV App and all computer software in source code, object code or other form, databases, indexing, search, and retrieval methods and routines, hypertext markup language code, active server pages, intranet pages, and similar materials, and all intellectual property and other rights, title, and interest therein, including copyrights, trade secrets, rights in patents, compilations, inventions, modifications, updates, extensions, enhancements, configurations, derivative works, discoveries, improvements, processes, methods, designs and know-how, whether or not copyrightable or patentable, pertaining to any of the foregoing (all of which shall be deemed part of the Service), whether conceived by GV alone or in conjunction with others, but except for any trademarks, service marks or trade dress of Sponsor (collectively, “GV IP”), are owned by GV and/or its licensors, protected by applicable intellectual property laws of the United States and other countries, including but not limited to copyright, and the non-public-facing elements thereof constitute trade secrets and confidential information of GV. Except for the rights expressly granted to You in this Agreement, all rights in the Service and all GV IP and any other proprietary rights thereto, are and shall remain solely owned by GV and its respective licensors and are hereby assigned to GV. GV reserves all rights not expressly granted to You in this Agreement.
85. PRICE AND PAYMENT. Use of the Service is FREE to You.
86. TERM AND TERMINATION.
87. Term. The term of this Agreement shall commence on the Effective Date and shall continue in force and effect until its termination or expiration in accordance with Section 8.2 (Termination) below.
88. Termination. This Agreement is effective until the earlier to occur of: (a) termination by You by notice to GV and Sponsor as required hereunder; (b) Your violation of any provision of this Agreement, in which case this Agreement shall automatically terminate without notice from GV or Sponsor; or (c) termination of the agreement between Sponsor and GV with regard to the Service.
89. Effects of Termination. Upon termination of this Agreement for any reason, You shall cease all use of the GV App and the Service and destroy all copies, full or partial, of the GV App on any Device, computer or storage media in Your possession or under Your control.
90. Survival. Upon termination or expiration of this Agreement for any reason, the following provisions shall continue and survive in full force and effect: the paragraphs in capitalized letters at the beginning of this Agreement, and Sections 1 (Definitions), 3 (User Content), 4 (Additional Responsibilities; Restrictions), 5.5 (No Other Warranties), 6 (Ownership Rights; License Rights), 8 (Term and Termination), 9 (Confidentiality), 10 (Limited Liability), 11 (Indemnification), 12 (U.S. Government Restricted Rights) and 13 (General Provisions), in addition to all disclaimers and limitations of damages and warranties and such other provisions which by their nature are intended to survive termination or expiration of this Agreement.
91. CONFIDENTIALITY.
92. General. You agree to hold in confidence and, without the consent of GV or as otherwise expressly permitted hereunder, not to use, reproduce, distribute, transmit, or disclose, directly or indirectly, the Confidential Information of GV except as expressly permitted hereunder. You will be responsible to GV for any damages for unauthorized use, disclosure, duplication or other misuse of the Confidential Information resulting from its possession by a third party which obtained it from You. Without limiting the foregoing, You agree to exercise at least diligent and reasonable care to protect the confidentiality of GV’s Confidential Information. GV does not agree to receive any of Your confidential information or regard it as such, and You agree not to provide any to GV, whether through the Service to GV.
93. Exceptions. Except with respect to the Service and all non-public-facing components and elements thereof which shall remain Confidential Information of GV, Confidential Information shall not include information if and only to the extent that You establish that the information: (a) is or has become a part of the public domain through no act or omission of You; (b) was in Your lawful possession prior to the disclosure and had not been obtained by You either directly or indirectly from GV or Sponsor; (c) was lawfully disclosed to You by a third party without restriction on disclosure; or (d) was independently developed by You without reference to GV’s Confidential Information. If required by a lawful, validly issued subpoena, order of a court of competent jurisdiction, or request for information from a governmental agency, You may disclose only that part of the Confidential Information of GV which You are legally required to disclose, in the opinion of Your legal counsel, and shall notify GV prior to such disclosure in order to provide GV an opportunity to seek an appropriate protective order or other judicial relief to prevent such disclosure. Notwithstanding the foregoing, You shall cooperate (at GV’s expense) in all efforts of GV to prevent disclosure of GV’s Confidential Information. A copyright notice on the Service or any part thereof or on other materials shall not be deemed evidence of publication or public disclosure.
94. Remedy. You acknowledge that any use or disclosure of GV’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause GV irreparable damage for which remedies other than injunctive relief may be inadequate, and You agree that GV shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies.
95. LIMITED LIABILITY.
96. TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY, FOR ANY AND ALL CLAIMS, OF EACH OF GV AND SPONSOR, THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, PARENTS AND ANY OF THEIR RESPECTIVE LICENSORS, SUBCONTRACTORS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, OR RESELLERS, UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY AND ALL CLAIMS OR LIABILITIES, BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, WHETHER RELATING TO THE SERVICE OR ANY PART THEREOF, OR SUPPORT, MAINTENANCE OR OTHERWISE, SHALL NOT EXCEED THE PRICE YOU PAID, IF ANY, TO DOWNLOAD THE GV APP (WHICH AMOUNT MAY BE ZERO), BUT UNDER ANY CIRCUMSTANCES NOT MORE THAN THE SUM OF FIVE DOLLARS (U.S. $5.00).
97. TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL GV AND SPONSOR, THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, PARENTS AND ANY OF THEIR RESPECTIVE LICENSORS, SUBCONTRACTORS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, OR RESELLERS, UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY AND ALL CLAIMS OR LIABILITIES, BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, WHETHER RELATING TO THE SERVICE OR ANY PART THEREOF, OR SUPPORT, MAINTENANCE OR OTHERWISE, BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING RESULTING FROM UNAUTHORIZED ACCESS TO, OR THE ALTERATION, DELETION, DESTRUCTION, DAMAGE, LOSS, DISCLOSURE, UNAVAILABILITY OR FAILURE TO STORE YOUR USER CONTENT OR OTHER DATA OR CONTENT, NOR FROM DELAYS, LOSS OF PROFIT, INTERRUPTION OF SERVICE OR INABILITY TO ACCESS OR USE THE SERVICE OR ANY PORTION THEREOF, INCLUDING CESSATION OR MODIFICATION OF ANY ASPECT OF THE SERVICE, OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, BASED ON ANY THEORY OF LIABILITY, WHETHER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF GV OR SPONSOR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY OF ITS ESSENTIAL PURPOSE. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY USER CONTENT OR OTHER DATA OR INFORMATION. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER GV NOR SPONSOR NOR THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, PARENTS AND ANY OF THEIR RESPECTIVE LICENSORS, SUBCONTRACTORS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, OR RESELLERS SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE OR SERVICE, NOR, WITHOUT LIMITING THE FOREGOING, FOR ANY LOSS OR DAMAGE ARISING OUT OF: (A) YOUR FAILURE TO COMPLY WITH ANY PROVISION OF THIS AGREEMENT, OR SPONSOR’S TERMS OF SERVICE OR OTHER AGREEMENT; (B) UNAUTHORIZED USE OF YOUR ACCOUNT (OR SHARING OR SOCIAL FEATURES) BY A THIRD PARTY; OR (C) USER CONTENT POSTED TO THE SITE OR THE SERVICE BY YOU OR ANY THIRD PARTY.
98. TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT: (A) NEITHER APPLE, GV NOR SPONSOR SHALL HAVE ANY RESPONSIBILITY FOR ADDRESSING ANY CLAIMS YOU OR ANY THIRD PARTY MAY HAVE RELATING TO THE GV APP OR YOUR POSSESSION AND/OR USE OF THE GV APP, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE GV APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION; AND (B) IN THE EVENT OF ANY THIRD PARTY CLAIM THAT THE GV APP OR YOUR POSSESSION AND USE OF THE GV APP INFRINGES THAT THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER APPLE, GV NOR SPONSOR WILL HAVE ANY RESPONSIBILITY FOR THE INVESTIGATION, DEFENSE, SETTLEMENT AND DISCHARGE OF ANY SUCH INTELLECTUAL PROPERTY INFRINGEMENT CLAIM.
99. THE PROVISIONS OF THIS SECTION 10 (LIMITED LIABILITY) ARE FUNDAMENTAL AND SPECIFIC REQUIREMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND GV AND GV WOULD NOT BE ABLE TO ENTER INTO THIS AGREEMENT WITHOUT SUCH PROVISIONS.
100. BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF DAMAGES, THE LIABILITY OF THE PARTIES TO WHICH THEY APPLY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. IN ADDITION, BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU. THIS PARAGRAPH WILL ONLY APPLY IF A COURT OF COMPETENT JURISDICTION FINDS THE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY IN THIS AGREEMENT TO BE UNCONSCIONABLE.
101. INDEMNIFICATION. You agree to defend, indemnify, and hold GV, Sponsor, and their respective Affiliates, subsidiaries, parents and each of their respective licensors, subcontractors, directors, managers, employees, agents, distributors, marketing partners, or resellers, and their respective employees and subcontractors (collectively, the “Indemnitees”) harmless from and against any and all claims, actions, and other proceedings, and shall pay all losses, damages, liabilities, settlements, judgments, awards, interest, civil penalties, and reasonable expenses (collectively, “Losses,” and including reasonable attorneys’ fees and court costs), arising out of any claims (each, a “Claim”) arising from or related to: (a) Your use or modification of the Service or any part thereof; (b) the violation of any rights of any third party in connection with Your use of the Service or any part thereof; (c) Your User Content; (d) any act or omission by you; (e) any breach by you of this Agreement, including any breach by you of any covenant, representation or warranty made by you; and/or (f) Your violation of any laws, rules or regulations in connection with Your use of the Service. This indemnification obligation shall survive any termination of this Agreement. You shall have the right and obligation to assume full defense and control of such Claim and GV (or other applicable Indemnitee, as the case may be) shall reasonably cooperate with You in connection with Your obligation to defend a Claim. Nevertheless, GV (or other applicable Indemnitees, as the case may be) may reasonably participate in such defense and/or assume control of such defense at Your expense if it appears that You are not reasonably capable, for any reason, of fulfilling Your defense obligations or fail to do so or act in such a manner that GV’s or the applicable Indemnitee’s rights may be jeopardized or prejudiced. You agree not to settle or compromise any Claim in a manner other than the payment of monies without the prior written consent of GV or the applicable Indemnitee, such consent not to be unreasonably withheld or delayed.
102. U.S. GOVERNMENT RESTRICTED RIGHTS. If the Service is used in any manner by for the benefit of the U.S. Government, its agencies or instrumentalities, whether through agreement, subcontract or by any other authority or means, the following shall apply: The Service is provided with RESTRICTED RIGHTS and constitute “Restricted Computer Service.” “Restricted Computer Service,” as used in this clause, means computer software developed at private expense and that is a trade secret; is commercial or financial and is confidential or privileged; or is unpublished copyrighted computer software, including minor modifications of any such computer software. Use, duplication or disclosure by the U.S. Government, its agencies and/or instrumentalities, is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer software clause at 48 C.F.R. 252.227-7013 or subparagraphs (i) (1) and (2) of the Commercial Computer Service Restricted Rights of 48 C.F.R. 52.227-b19, as applicable, or their respective successor provisions. In addition, or alternatively, at GV’s option, all software and software-related items licensed herein are “Commercial Computer Service” or “Commercial Computer Software Documentation” as defined in FAR 12.212 for civilian agencies and DFARS 227.7202 for military agencies, as applicable, or their respective successor provisions. The intent of the Parties is that no intellectual property rights or confidentiality of the Service is lost, diminished or transferred as a result of the execution of this Agreement. For purposes of this Agreement, all computer code underlying the Service is unpublished – all rights reserved under the Copyright Laws of the United States.
103. GENERAL PROVISIONS.
104. Assignment. You shall not assign, delegate, or otherwise transfer this Agreement or any of Your rights or obligations hereunder, either voluntarily or by operation of law.
105. Compliance with Laws. You are responsible for complying with all laws and regulations applicable to Your User Content and to Your use of the Service. You shall not use or export (electronically or otherwise) the Service or any component thereof outside of the U.S. other than in compliance with all applicable U.S. export laws, rules, and regulations. You shall be solely responsible for such compliance. You agree to keep such books and records and to take such other actions as may be required by such applicable laws, rules and regulations.
106. No Waiver. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach.
107. Notices. Any notices, approvals, and consents by You under this Agreement or any other communications you may wish to make to GV must be sent in writing (which includes email) to Gather Voices, Inc., 4245 Knox Avenue Chicago, IL 60641; Attention: GV Legal, Email: [email protected], and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing via a national postal service with the proper postage affixed, and (c) the first business day after sending by email. All written notices shall also be sent via email. GV may communicate with you for all purposes at the email address you provided when you registered to use the Service.
108. Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
109. Force Majeure. Except for payment obligations hereunder, and notwithstanding anything in this Agreement to the contrary, neither Party will be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting from causes beyond the Party’s reasonable control, including the acts or omissions of third parties, the acts or omissions of the other Party or any delay or failure of the other Party to fulfill its obligations hereunder, acts of God, terrorism, war, civil insurrection, strikes or other organized labor interruption, communications, mechanical, electronic, Internet or other utility interruptions or failures, including denial of service and other cyber-attacks or unauthorized or malicious data or system intrusions, including computer viruses or other malicious code, fire, explosions, floods or other natural disasters, or any similar cause.
110. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without reference to its choice of law rules and as if wholly performed within Illinois, USA. Any judicial action or proceeding between the Parties relating to this Agreement must be brought in the federal or state courts located in Cook County, Illinois. Each Party consents to the jurisdiction of such courts, agrees to accept service of process by mail, and hereby waives all jurisdictional and venue defenses otherwise available to it. Notwithstanding the foregoing in this Section 13.7, this provision is not intended to derogate from any additional or different rights you may have under applicable data privacy laws and regulations.
111. Complete Agreement. This Agreement, including any Exhibits attached hereto, supersedes in full all prior discussions and agreements, oral and written, between the Parties relating to the subject matter hereof, and constitutes the entire understanding of the Parties. No additional terms proposed by You, whether electronically or otherwise or associated with any document You send to GV, shall be applicable to this Agreement or any GV products or services at present or in the future, absent the express manual written consent thereto by GV.
112. Modification. GV may update and modify this Agreement from time to time by posting a modified or replacement version on the GV website. The modified Agreement will become effective and binding on the next business day after it is posted unless otherwise stated therein and You agree that such posting constitutes sufficient notice of the modification.
113. No Third Party Benefit, Except for Apple and Sponsor. The provisions of this Agreement are for the sole benefit of the Parties hereto, and this Agreement neither confers any rights, benefits, or claims upon any person or entity not a Party hereto nor precludes any actions against, or rights of recovery from, any persons or entities not Parties hereto; provided, however, that notwithstanding the foregoing, Apple and Sponsor, and their respective subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple and Sponsor will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof.
114. Feedback. During the course of this Agreement or otherwise, You may provide, or GV may solicit, input regarding the Service, including comments, feedback or suggestions regarding the possible creation, modification, configuration, correction, improvement or enhancement of the Service, including any GV Apps, websites or any of GV’s or its Affiliates’ products or services, or their operation, functions or features (collectively, “Feedback”). Any information GV discloses to You related to or in response to Feedback shall be protected as Confidential Information of GV subject to the protections of Section 9 (Confidentiality). For the consideration provided to You in the form of the right to use Service, You agree that GV and its Affiliates shall have, and are hereby granted, a worldwide, perpetual, irrevocable, transferable, royalty-free right and license to use and incorporate the Feedback into its products and services without obligation of confidentiality or remuneration to You. You agree to provide GV any reasonable assistance GV may require to document, perfect, and maintain its rights in the Feedback, at GV’s reasonable expense.
115. Relationship of the Parties. For purposes of this Agreement, neither Party is an agent of the other, and neither Party has any express or implied authority to act on behalf of, or make any representations whatsoever on behalf of, the other. Each Party is an independent contractor with respect to the other and neither Party shall have the power or authority to bind the other Party to any contract or obligation.
116. Terms Generally. The defined terms in this Agreement shall apply equally to both the singular and the plural forms of the terms defined. The term “person” includes individuals, corporations, partnerships, trusts, other legal entities, organizations and associations, and any government or governmental agency or authority. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “approval,” “consent” and “notice” shall be deemed to be preceded by the word “written.” The word “term” shall be deemed to refer to any term, condition or other type of provision under this Agreement. The word “will” shall be deemed synonymous with “shall” when referring to the acts or obligations of a Party.
117. Construction. Each Party acknowledges that it has had the opportunity to have this Agreement reviewed by legal counsel and that the rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement or any other document executed and delivered by either Party in connection with the transactions contemplated by this Agreement. The captions in this Agreement are for convenience of reference only and shall not be used to interpret this Agreement.

End of Agreement.