IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE, GATHEROUND.COM (THE “SITE”), AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “SERVICES”) OF ELEPHANT TECHNOLOGIES, INC., DOING BUSINESS AS GATHEROUND (“COMPANY”) IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS OF SERVICE (“TERMS”).
BY ACCESSING THE SITE OR BY UTILIZING COMPANY SERVICES YOU AGREE TO BE BOUND BY THESE TERMS. COMPANY SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.
Any software and content associated with the Services are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
1. ELIGIBILITY. If you are under 13 years of age, you may not use the Services. You affirm that you are of legal age or, if not of legal age, you have received parental consent to use the Services and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. Although Company cannot absolutely control whether minors gain unauthorized access to the Services, access may be terminated without warning if Company believes that you are underage or otherwise ineligible.
2.1. Company will provide the Services in accordance with these Terms unless you and Company have entered into a written agreement superseding these Terms. Company may, at its sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, your ability to use such Services may be affected by the performance of these factors. High-speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility.
2.2. The following defined terms apply to the Services:
2.3. Subject to these Terms, and your continued compliance therewith, you may access and use the Services subject to the limitations set forth (a) on the pricing page located at https://gatheround.com/pricing (the “Pricing Page”) (b) in the Services, and (c) in the Services documentation located at https://intercom.help/gatheround/en/.
Company imposes limits on the number of Participants in any Event, and such limits are set forth on the Pricing Page. If you want or require any access to the Services that is outside of the scope of these Terms, please contact Company at firstname.lastname@example.org to discuss a separate agreement.
3. LIMITATIONS ON USE. The Services may be used for internal business or personal purposes only. You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose or use the Services for the development, production, marketing or operation of a service or product the same as or substantially similar to the Services. Other than with respect to Events created by you or in which you participate for your internal business or personal purposes, you will not enable any third party to use the Services. You may not charge or collect any fee or other consideration for the use by any Participant or other third party of the Services. You may not display on any website or otherwise publish the Services or any content obtained from the Services (other than User Content). You shall not engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or Company’s security systems.
5. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF YOUR COMMUNICATIONS.
5.1. You may be required to provide information about yourself in order to create an Account. You represent and warrant that any such information shall be accurate. You may also be asked to choose a username and password. You are solely responsible for maintaining the security of your username and password, and you agree not to disclose your username or password to any third party.
5.2. Company reserves the right to investigate and take appropriate action against anyone who, in Company’s sole discretion, is suspected of violating this Section 4, including without limitation, reporting you to law enforcement authorities. Use of the Services is void where prohibited. Although Company is not responsible for any User Content in violation of this provision, Company may delete any such User Content of which Company becomes aware, at any time without notice to you.
6. RESPONSIBILITY FOR CONTENT OF OTHERS. While using the Services, you may be exposed or have access to content created or provided by other Users (“Third-party Content”). It is possible that other Users may violate one or more of the prohibitions in Section 5. Company assumes no responsibility or liability for any such violation or for any Third-party Content. If you become aware of any violation of these Terms in connection with use of the Services by any person, please contact Company at email@example.com. Company may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to issuing warnings, removing any content or terminating accounts and/or User profiles. However, because situations and interpretations vary, Company also reserves the right not to take any action. Under no circumstances will Company be liable in any way for any data or other content accessed or provided by Users, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content. If at any time you are not happy with the Services, your sole remedy is to cease using the Services.
7. PROPRIETARY RIGHTS.
7.1. Company, and/or its suppliers or licensors, as applicable, retains ownership of all right, title and interest in and to the Services, including without limitation all content, trade names, trademarks, service marks, logos, and domain names incorporated in or associated or displayed with the Services and all copyrights, trademark rights, rights of publicity, patent rights and other proprietary rights (“Proprietary Rights”) therein or related thereto (collectively, “Company Property”). Company does not grant you any title to, ownership of, right in or license to Company Property except as is set forth expressly in these Terms. All rights not explicitly granted to you are reserved by Company. In the event that you suggest improvements or modifications to Company regarding any features, functionality or performance that Company adopts for any of its products including the Services, such features, functionality or performance shall be deemed to be automatically assigned to, and shall become the sole and exclusive property of, Company, and shall be deemed Company Property. You may not frame or utilize framing techniques to enclose any Company Property (including images, text, page layout, or form) without express written consent. You may not use any meta tags or any other “hidden text” utilizing Company Property without Company’s express written consent.
7.2. You retain copyright and any other rights you already hold in User Content which you submit, post or display on or through the Services. Any content which you create through the Services, or using Company Property, including without limitation any modification you make to any templates, games, game templates and other content created by Company, shall be deemed to be automatically assigned to, and shall become the sole and exclusive property of, Company, and shall be deemed Company Property. You hereby grant Company the right to transmit, use and disclose User Content solely to provide the Services to you or any other Users or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which Company believes in the good faith requires Company to disclose information to assist in preventing the death or serious bodily injury of any person. You hereby grant all other Users the right to transmit and use User Content solely for such Users to use the Services.
7.3. All Proprietary Rights in Third-party Content are reserved by the owner of such Third-party Content.
9. THIRD-PARTY SERVICES.
9.1. Generally. To provide you with the Services, Company may integrate or otherwise use certain services offered by third parties (“Third-party Services”). Different terms of service may apply to such Third-party Services, and by using the Services you agree to such different terms of service.
9.2. YouTube. One such Third-party Service is an API provided by YouTube. By using the Services, you agree to be bound by YouTube’s terms of service, which may be found at https://www.youtube.com/t/terms.
9.3. Google. You may create an Account by signing in through your Google account. By using your Google account, you agree to be bound by Google’s terms of service, which may be found at https://policies.google.com/terms?hl=en-US.
9.4 Twilio. Company uses Twilio to route audio and video content between participants, and the terms and conditions for the use of Twilio by you are incorporated herein. Such terms may be found at https://www.twilio.com/legal/tos.
10.1. If you sign up for a Premium or other paid account, you agree to pay the applicable fees set forth on the Pricing Page or as otherwise agreed upon in writing by you and Company. You also agree that Company may charge to your credit card or other payment mechanism, including third-party payment services or integrated payment APIs, selected by you and approved by Company (your “Payment Method”) all fees due and owing for the Services, including taxes and service fees, set-up fees, subscription fees, or any other fee or charge associated with your Payment Method.
10.2. Company may change the fees for any Service at any time, including changing a free plan to a paid plan and charging fees for Services that were previously offered free of charge; provided, however, that Company (a) will provide you with prior notice and an opportunity to terminate your access to the Services if Company changes the price of a Service and (b) will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees.
10.3. You agree that in the event Company is unable to collect the fees owed to Company for the Services through your Payment Method, Company may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by Company in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that Company may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
11.1. You may terminate your access to the Services at any time. If you terminate a paid plan, you will not receive a refund of any fees already paid, and all unpaid fees for Services delivered shall be immediately due and payable, but no further fees for Services will be charged to your Payment Method. The Site contains information on how to terminate your access to the Services. If you have purchased a Service for a specific term, such termination will be effective on the last day of the then-current term.
11.2. If you fail to comply with any provision of these Terms, Company may terminate your use of the Services immediately and retain any fees previously paid by you.
11.3. These Terms shall survive any termination of the Services. Upon any termination of the Services, you must cease any further use of the Services and destroy any copies of associated software within your possession and control.
12. WARRANTIES AND DISCLAIMER.
12.1. Each party represents and warrants to the other party that (a) these Terms constitute a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s performance of these Terms; and (c) the performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
12.2. Company warrants that, so long as any applicable fees have been paid in full, the Services will perform according to the specifications therefor under normal use and circumstances. Your sole and exclusive remedy and Company’s entire liability for a breach of this warranty shall be for Company to use commercially reasonable efforts to modify the Service to substantially achieve such performance, and, if Company is unable to restore such performance, you shall be entitled to terminate your plan and, if such plan is a paid plan, receive a prorated refund of the applicable fees paid to Company for the corresponding remaining portion of the term of Services. The warranties set forth herein are made to and for the benefit of you only.
12.3. You represent and warrant to Company that (a) you own all right, title and interest in and to User Content; and (b) you will not violate the terms of Section 5.
12.4. EXCEPT AS PROVIDED IN THIS SECTION 12, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT USER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH AN EVENT THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW. COMPANY PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS.
13.1. Company will defend you against any third-party claim that your use of the Services infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of your actions) (“Claim Against You”), and will indemnify you for the resulting costs and damages finally awarded against you to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, Company will have no liability to you under this Section 13.1 for any Claim Against You that arises out of: (a) any unauthorized use, reproduction, or distribution of the Services by you or any third party or (b) any modification or alteration of the Services by anyone other than Company without the written approval of Company. In the event of a Claim Against You pursuant to this Section 13.1, Company may (at Company’s option and expense): (i) obtain for you the right to continue using the Services; (ii) modify the Services to make them non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by Company in its sole discretion), terminate your plan and, if such plan is a paid plan, refund to you on a prorated basis any applicable fee pre-paid to Company for the corresponding unused period of the Services.
13.2.You will defend Company against any third-party claim: (i) that any User Content, or any use of the Services by you or another User authorized by you, infringes a registered patent, registered trademark, or copyright, or misappropriates a trade secret (to the extent that such infringement or misappropriation is not the result of Company’s actions); or (ii) relating to any User Content or any use of the Services in violation of Section 5 by you or a User authorized by you. You will, with respect to any claim against Company, indemnify Company for the resulting costs and damages finally awarded against Company to such third party by a court of competent jurisdiction or agreed to in settlement.
13.3.Indemnification Process. As a condition of receiving an indemnification under this Section 13, the party seeking indemnification hereunder (the “Indemnified Party”) will provide the other party (the “Indemnifying Party”) with (a) prompt written notice of the claim; (b) complete control over the defense and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission, which will not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim); and (c) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
13.4.This Section 14 states the Indemnified Party’s sole and exclusive remedy against, and the Indemnifying Party’s sole liability to, the other party for any type of claim under this Section 13. Notwithstanding the foregoing, Company will have the right to terminate your right to use the Services.
14. LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY’S TOTAL AND CUMULATIVE LIABILITY, OR THAT OF ITS DISTRIBUTORS AND RESELLERS, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THESE TERMS EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY FOR THE SPECIFIC USE OF THE SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM UNDER THESE TERMS. THE FOREGOING LIMITATION DOES NOT LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS DISTRIBUTORS AND RESELLERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF USE OR DATA) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF COMPANY OR ITS DISTRIBUTORS AND RESELLERS HAVE BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
15. INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to these Terms, or any actual or attempted transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Company, its affiliates, suppliers and any other party authorized by Company to resell, distribute, or promote the Services (“Resellers”), and under such circumstances Company, its affiliates, suppliers and Resellers will be entitled to equitable relief, including, but not limited to, preliminary and permanent injunctive relief, without posting bond or other security.
16.1. Choice of Law and Forum. These Terms shall be governed by and construed under the laws of the State of Nevada, U.S.A., as applied to agreements entered into and to be performed in Nevada by Nevada residents. The parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Reno, Nevada, for any dispute, claim, or controversy between the parties arising in connection with or relating in any way to the Services or these Terms.
16.2. Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, these Terms will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of these Terms is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of these Terms will remain in full force and effect.
16.3. General Provisions. These Terms embody the entire understanding and agreement between the parties respecting the subject matter of these Terms and supersede any and all prior understandings and agreements between the parties respecting such subject matter, except that if you have executed a separate written agreement governing your use of the Services, then such agreement shall control to the extent that any provision of these Terms conflicts with the terms of such agreement. Company may elect to change or supplement these Terms from time to time at its sole discretion. Company will post a notice on the Site whenever Company makes any material changes to these Terms. Within five (5) business days of posting a notice about changes to these Terms, the changes will be binding on you. If you do not agree with the changes, you should discontinue using the Services. If you continue using the Services after such five-business-day period, you will be deemed to have accepted the changes to these Terms. In order to participate in certain Services, you may be notified that you are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into these Terms.
16.4. Reporting security incidents. If you suspect a security issue or that your account, or another User’s account, may have been compromised, please contact us at firstname.lastname@example.org. If you are a security researcher who has potentially discovered a security weakness or vulnerability in the Services, please send an email to email@example.com with information and Company will provide details on secure, responsible disclosure.