Terms of Service
GATHER STANDARD CUSTOMER TERMS
Revision date: March 22, 2018
1 Certain Definitions
means the Customer Agreement and these Standard Terms and Conditions.
means a login name and password provided to Customer or a Customer User
means the party identified as “Customer” in the applicable Customer Agreement, and any permitted transferee or successor.
1.4 “Customer Agreement”
means the order form, fee schedule, or other document provided by Gather and accepted by Customer that incorporates these Standard Customer Terms and specifies other details of Customer’s usage of the Service.
1.5 “Customer Data”
means the data and information (i) loaded into the Service by Customer in the course of Customer’s use of the Service, (ii) loaded by Gather into the Service at Customer’s direction, or (iii) loaded into the Service via Interfaces at Customer’s direction.
1.6 “Customer Locations”
means the individual Customer-managed event venues currently managed through the Service. The Customer Agreement specifies the initial Customer Locations. Customer Locations may be added or removed from time to time through the Service by the mutual agreement of Customer and Gather.
1.7 “Customer’s Users”
means individuals associated with Customer with unique Credentials for whom Customer has paid all applicable Fees for use of the Service.
means any published or electronic user guides or operating manuals that Gather may make generally available to its customers for use with the Service and as updated by Gather from time to time.
1.9 “Effective Date”
means the date that this Agreement is first signed or accepted by each of Gather and the Customer.
means Gather Technologies, Inc., a Delaware corporation, and any successor or transferee.
1.11 “Intellectual Property Rights”
means any and all rights with respect to the Service and related services and materials arising from or under any of the following, whether protected, created or arising under the laws of the United States of America or any other jurisdiction in the world: patents (including, but not limited to, any applications, extensions, divisions, continuations, continuations-in-part, reexaminations, reissues, and renewals related thereto), copyrights (including, but not limited to, any applications, registrations and renewals related thereto), trademarks and service marks (including, but not limited to, applications, registrations, and renewals related thereto), trade dress, trade names, Trade Secret and know-how and any other intellectual property or proprietary rights of any nature, by whatever name or term known or however designated.
means Gather-provided APIs or other means of accessing and storing data the Service by automatic means that Gather may officially support.
means Gather and Customer.
means the Initial Term and any Renewal Term.
1.15 “Trade Secrets”
means information that derives actual or potential economic value because it is not generally known to, and by proper means not readily ascertainable by, others who can obtain economic value from its disclosure or use; and is the subject of commercially reasonable efforts to maintain its secrecy.
2 Access to the Service
2.1 Grant of Access
. Subject to payment of the applicable Fees and Customer complying with these Standard Customer Terms, the Customer Agreement, and applicable law, Gather hereby grants to Customer and Customer’s Users the limited, non-exclusive right to, during the Term, (a) access and use the Service solely for Customer’s business purposes and (b) to embed or link to the “book event” portion of the Service on Customer’s website. Unless otherwise specified in the Customer Agreement, access to the Service will be provided within thirty (30) days of execution of this Agreement.
2.2 Service Availability
. Unless otherwise specified in the Customer Agreement, Gather represents that the Service will be Available for at least 99% of each applicable Billing Period (as determined by Gather based on the number of hours the service is Available divided by the total number of hours in the applicable Billing Period). Gather will credit Customer on its next billing statement with a portion of Customer’s Fees paid for the affected Billing Period, pro-rated for the time the Service was not Available. In no event will the amount of this credit exceed 100% of the Fees for such period. Credit awarded pursuant to this Section 2.2 will be Customer’s sole remedy for any delay, inaccessibility, or interruption in the Service. For purposes of this Section 2.2, “Available” means that the Service may be accessed and used by Customer’s Users. Service delays, failures or interruptions caused by solely by Customer-operated systems or Customer’s Internet connectivity will be considered times in which the Service was Available. An interruption in the Service will not be considered a breach of Gather’s obligations hereunder if: (i) Gather promptly takes all reasonable steps to restore the Service or (ii) the interruption in Service results from a Force Majeure event.
2.3 Acceptance of Terms and Changes
2.3.1 Initial Acceptance. Customer’s acceptance of the Customer Agreement and these Standard Customer Terms (and modifications thereto) may be by written signature or through an electronic signature, prompt, or “click through” process. The person providing this acceptance on behalf of Customer warrants that he, she, or it has the legal authority to bind Customer to the Customer Agreement and these Standard Customer Terms.
2.3.2 Changes to Customer Locations and Customer Users. Customer may add Customer Locations, Customer Users, or otherwise supplement the Services or purchase additional professional services from Gather, by modifying or replacing the Customer Agreement. The Customer Agreement may be so modified, renewed, or replaced by the written or electronic signatures of Gather and Customer or through Customer’s acceptance of changes through the Service’s account management features, if any. Added Customer Users and/or Customer Locations will be coterminous with the preexisting Term (either initial Term or renewal Term). If Customer adds Customer Users or Customer Locations, then Customer’s committed Number of Customer Users and/or committed Customer Locations, as applicable, will be increased for the remainder of such Term in which Customer increases the number of committed Customer Users and/or Customer Locations, and for any additional Terms if Customer renews the Service. Customer will pay for any increase in Customer Users or Customer Locations at the time of execution of the Customer Agreement Form setting forth the additional Customer Users or Customer Locations. Customer may only reduce the number of Customer Users and Customer Locations set forth herein at the end of each Term.
2.3.3 Other Changes to these Standard Customer Terms. The current revision of these Standard Customer Terms is stated above under the title. Gather may from time to time update these Standard Customer Terms by giving Customer notice of the change and providing access to the revised Standard Customer Terms. Following this notice and, subject to the limitation in the following sentence, Customer’s continued use of the Service will be deemed to be acceptance of the updated Standard Customer Terms and such updated Standard Customer Terms will apply prospectively. Notwithstanding the foregoing, updates to the Standard Customer Terms increasing Subscription Fees or increasing the length of an Initial Term or Renewal Term will not be effective until accepted by the Customer as provided in Section 2.3.1, Section 2.3.2 or Section 7.8.
2.4.1 Customer must implement reasonable controls to ensure the security of any Credentials issued to Customer Users.
2.4.2 Customer will also be responsible for issuing or providing information to Gather necessary to issue Credentials.
2.5 Restrictions; Prohibited Actions
2.5.1 Except as expressly permitted by Section 2.1, Customer shall not: (a) sell, rent, lease, loan, sublicense, disseminate, assign, transfer, hypothecate, grant a security interest in or otherwise provide the Service to third parties, make the Service available for use by third parties or use the Service for the benefit of any third party including through any outsourcing, timesharing, service bureau, facilities management, practice management, billing or data processing service basis; (b) copy, reproduce, modify, adapt, translate or create any derivative works from the Service; (c) disassemble, decompile, reverse engineer, or make any other attempt by any means to discover or obtain the source code for, the Service; (d) remove, alter, obscure or tamper with any trademark, copyright or other proprietary markings or notices affixed to or contained within the Service; (e) take any action that may adversely impact or impair Gather’s or its suppliers’ or licensors’ rights, title and interest in the Service; or (f) encourage or permit any Customer User or other third party to engage in any of the foregoing. Customer shall require that all Customer Users comply with the terms of this Agreement, and Customer will be liable for any breach by any Customer User of the terms of this Agreement.
2.5.2 Except for the use of Interfaces according to their respective Documentation, Customer shall not cause or permit the installation or use of any programs or device that attempts to interface directly to the Service or Customer Data without Gather’s express prior written authorization.
2.6 Ownership Rights Reserved
2.6.1 Customer acknowledges and agrees that, as between Customer and Gather, all Intellectual Property Rights, including without limitation all worldwide right, title and interest in and to the Service and related materials (including all modifications, alterations and enhancements thereto and derivative works thereof) and all copies thereof, including all trademarks, service marks, patents, copyrights, Trade Secrets, designs, algorithms and all other intellectual property, industrial property and proprietary rights in or related to the Service, are and will remain the exclusive property of Gather and its suppliers or licensors.
2.6.2 Except for the rights expressly granted in Section 2.1, Customer will have no rights to or other interests in the Service. Gather reserves all rights not explicitly granted to Customer under this Agreement.
3 Term and Renewal
3.1 Initial Term
. The initial term of this Agreement (the “Initial Term”) will begin on the Effective Date and will continue for the period or until the end date specified in the Customer Agreement.
. This Agreement will automatically renew for successive additional terms (each, a “Renewal Term”) unless either Party gives notice to the other of its intent not to renew the agreement at least 30 days prior to the end of the then-current Term, in which case the notifying Party may then terminate upon the conclusion of the then-current Term.
4 Account Information and Customer Data
4.1 Customer Data
. Gather does not own any Customer Data. Customer, not Gather, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Gather shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any data that result from Customer’s actions. Gather is not responsible for restoring lost data or damage to Customer Data that results from Customer’s actions.
Customer represents and warrants that: (i) Customer owns or otherwise has the right to grant the license set forth in this section for the Customer Data, and (ii) the Customer Data does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity. Gather has the right (but not the obligation) to review any Customer Data and delete any Customer Data that in the sole judgment of Gather violates this Agreement; is prohibited content; is illegal; violates the rights, harms, or threatens the safety of any user or any other person; or creates liability for Gather, its suppliers, or any user upon 30 days’ written notice specifying the alleged default or violation if the default or violation is not remedied within the notice period.
4.3 Limited License
. Solely for the purposes of providing and supporting the Service, Customer hereby grants to Gather a worldwide, perpetual, fully paid-up, royalty-free and non-exclusive license to, during the Term, use and combine the Customer Data with other data and to use, transmit, reproduce, modify, edit, adapt, translate and reformat Customer Data in any manner, in whole or in part.
4.4 Usage Statistics
. Gather will configure and administer the Service to comply with the following security requirements: The Service will be hosted on Heroku and Amazon Web Services at SSAE 16 certified data centers located in the United States. The Service will use industry-standard encryption to protect sensitive data while in transit. Systems storing Customer Data will be protected by multiple security measures including firewalls and will be subject to periodic security audits. Gather will promptly notify Customer of any actual or suspected unauthorized access to systems containing Customer Data. This paragraph sets forth Gather’s only obligations with respect to the security of Customer Data and Gather does not otherwise guarantee that Customer Data shall not be disclosed or destroyed. Notwithstanding any obligation of Gather hereunder, the security of communication sent over the Internet is subject to many factors outside of Gather’s control and, as a result, Gather cannot guarantee the security or privacy of such communication.
4.6 Return to Customer
. During the Term, Customer will have the responsibility for maintaining a local backup copy of all Customer Data, if so desired. For thirty (30) days after the end of the Term, Customer may request that Gather provide to Customer a copy of the Customer Data in an industry standard format. Customer shall pay Gather at its then current rates for any such transition services provided.
5 Limited Warranty
5.1 Conformance with Documentation
. Gather represents and warrants, for the ninety (90) day period following the effective date of this Agreement, that the Service will materially perform as represented in the Documentation, when operated under normal use and within the Terms stated herein. Gather will use commercially reasonable efforts to correct any errors in the Service that are deemed material in Gather’s sole discretion of which Gather has been notified by Customer in a timely manner. If Gather determines that is unable to correct the Service after using commercially reasonable efforts to do so, then Gather ‘s sole and exclusive obligation will be to refund a prorated amount of the subscription service fee which has been actually paid for such Service; provided that Customer discontinues all use of the Service and certifies that it has done such. This warranty will not apply if: (a) the Service is not used in accordance with this Agreement or the Documentation or is used in a manner for which it is not designed, contemplated or specifically recommended by Gather; (b) the Service is adapted, modified, altered or tampered with by anyone other than Gather or its authorized agents; (c) the Service is used in conjunction with any programs, services or other products not specified in writing by Gather for use with the Service; or (d) the error is caused by Customer, the Internet, or any third party hardware, programs or other products. Customer acknowledges and agrees that this Section 5.1 sets forth Gather’s exclusive liability, and Customer’s exclusive remedy, for any breach of the warranty set forth herein.
. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, GATHER, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, LICENSORS AND SUPPLIERS (COLLECTIVELY, “GATHER PARTIES”) MAKE NO WARRANTIES WHATSOEVER AND PROVIDE THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE GATHER PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF CUSTOMER ABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, ACCURACY OF INFORMATIONAL CONTENT AND SYSTEM INTEGRATION. GATHER DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES TO BE UNINTERRUPTED OR ERROR FREE AND IS NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR SERVICES.
6.1 Confidentiality Obligations
. Neither Party shall use or disclose, or permit others to use or disclose, any of the other Party’s Proprietary Information without the disclosing Party’s prior written consent or except as expressly authorized hereunder or as required to provide the Service under this Agreement. Each Party shall safeguard the confidentiality of the Proprietary Information including, at a minimum, taking those precautions used by the receiving Party to protect its own Proprietary Information of a similar nature, which in no event shall be less than a reasonable degree of care. The receiving Party shall restrict the possession, knowledge and use of Proprietary Information to its employees, agents and subcontractors who have a need to know for purposes of this Agreement and are bound by confidentiality obligations no less stringent than those contained herein. The receiving Party may disclose Proprietary Information as required by law, regulation or judicial process, in which case, the receiving Party will use reasonable efforts under the circumstances to disclose only such information as is required and to seek confidential treatment for any Proprietary Information so disclosed. The receiving Party shall promptly notify the disclosing Party of any facts known to such Party regarding any unauthorized disclosure or use of the Proprietary Information. All Proprietary Information will remain the exclusive property of the disclosing Party. The terms of this Section 6.1 will survive termination or expiration of this Agreement so long as such information continues to be subject to reasonable secrecy efforts by the disclosing Party. “Confidential Information” means non-public information of value to its owner and that is the subject of its owner’s reasonable efforts to maintain confidentiality thereof. Confidential Information will not include any information that the receiving Party can demonstrate: (a) was in the receiving Party’s possession at the time of disclosure by the disclosing Party without confidentiality obligation; (b) becomes known to the receiving Party through disclosure by sources other than the disclosing Party who have the legal right to disclose such Proprietary Information without confidentiality obligation; or (c) is independently developed by or for the receiving Party without reference to or reliance upon the disclosing Party’s Proprietary Information. The placement of a copyright notice on the Service will not constitute publication or otherwise impair the confidential nature thereof. “Proprietary Information” is, collectively and without regard to form, any third-party information that either party has agreed to treat as confidential, and Confidential Information and Trade Secrets. Without limiting the generality of the foregoing, Customer acknowledges that the Service, including the ideas, methods of operation, architecture, processes and know-how embodied in such items, constitute Proprietary Information of Gather or its licensors.
6.2 Return/Destruction of Proprietary Information
. Upon termination of this Agreement for any reason or upon the other Party’s written request, each Party promptly shall: (a) return or securely destroy, at the other Party’s direction, all tangible material embodying the Proprietary Information in such Party’s possession or under such Party’s control; and (b) if requested by the other Party, deliver an affidavit, signed by an executive officer of such Party, certifying that such Party has complied with the obligations set forth in subsection (a) above.
7 Fees and Payment
7.1 Subscription Fees
. The Customer Agreement states the recurring fees for Customer’s use of the Service (“Subscription Fees”) during the Initial Term. Subscription Fees for Renewal Terms are subject to adjustment as provided in Section 7.8. Subscription Fees for each applicable “Billing Period” specified in the Customer Agreement will be payable in advance and prior to start of such period.
7.2 Other Fees
. The Customer Agreement may describe other fees payable in connection with Customer’s use of the Service (“Other Fees”) including referral, payment processing, or booking fees. Such Other Fees will be invoiced and will be payable as described in the Customer Agreement.
. Subscription Fees and Other Fees (collectively “Fees”) will be due as outlined in the payment terms specified in the Customer Agreement. All payments must be made in U.S. dollars in accordance with instructions provided by Gather. Any amount not paid when due, will accrue interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is greater.
7.4 Third-Party Payment Processing
. The Service does not directly accept or process payments for event bookings. Instead, the Service provides optional integrations with third-party payment processors, such as Stripe or Braintree, and facilitates payments through these third-party payment processors via hosted fields. These third-party payment processors collect, process and store payment information at the direction of the Customer’s Users and provide only tokens and notifications to Gather. Accordingly, it is Customer’s responsibility to ensure that Customer’s use of a third-party payment processor complies with any applicable data security or payment card requirements of Customer and Customer’s Users. Gather also maintains the PCI compliance of Gather’s operations (as applicable) via yearly attestations and quarterly vulnerability scans.
7.5 Disputed Amounts
. In the event Customer reasonably disputes any amount that appears on an invoice issued by Gather pursuant to this Agreement, Customer must notify Gather in writing detailing the basis for the dispute within twenty (20) calendar days of Customer’s receipt of the invoice. Customer will not be required to pay that portion of the amount which Customer reasonably disputes until the dispute is resolved by the parties or Gather determines the amount owed by Customer after a reasonable investigation. Notwithstanding the forgoing, Customer shall pay any interest calculated pursuant to Section 7.3 above on any and all amounts eventually determined as payable to Gather and the placement of the amount in dispute will not modify the due date for such calculation.
7.6 Actions for Non-Payment
. Should Customer fail to satisfy any payment which it has not disputed in accordance with Section 7.5 within thirty (30) days of the due date, then, in addition to any and all other remedies available to it and upon prior written notice to Customer, Gather may disable access to the Service for Customer and Customer Users, suspend bookings through the Service to Customer Locations, and/or suspend any professional services being performed for Customer pursuant to this Agreement until such time as the outstanding payment is made. Should Gather disable access to the Service under this Section 7.6, then Customer may reinstate such Service by paying all amounts owed to Gather, including interest thereon, plus prepayment of the Fees that will be payable from the date the Service is reinstated through the end of the Term. For the sake of clarity, any action taken by Gather pursuant to this Section 7.6 will not relieve Customer of any obligations under this Agreement or any other agreement.
. All prices and Fees set forth herein are net amounts to be received by Gather. Customer will be responsible for any and all taxes and assessments that arise from this Agreement and related transactions, except for taxes based upon Gather’s net income. If Customer represents that it is a tax-exempt entity it shall provide to Gather a copy of its tax exemption certificate or similar documentation substantiating its tax exemption prior to or immediately after the Effective Date.
7.8 Changes to Fees
. Unless otherwise set forth in the Customer Agreement, Gather may modify the Subscription Fees and Other Fees applicable to a Renewal Term by notifying Customer of such Subscription Fee or Other Fee changes prior to the start of that Renewal Term. Notice of a Fee change may be given electronically through the Service, via an invoice setting forth the revised Fees, or any other method provided in this Agreement. Among other changes, Gather may change the scope or structure of existing Fees or introduce new Fees to cover new features, Service subscription tiers and terms and payment. This notification will operate as an amendment to the Customer Agreement effective as of the next Renewal Term. Gather may also modify Fees during a Term if such changes are accepted by Customer as provided in Section 2.3.1.
8.1 Indemnification by Gather
. Gather, at its own option and expense, shall defend, indemnify, and hold Customer harmless from and against, or settle, at Gather’s option, any and all claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with any third party claim, suit or proceeding (“Third Party Claim”) brought against Customer claiming that the Service infringes upon a United States patent, copyright, trademark or trade secret of such third party, and Gather shall pay any final judgment entered against Customer by a court of competent jurisdiction or settlement agreed to by Gather with respect to any such Third Party Claim, but only if: (a) Customer notifies Gather in writing within ten (10) days after first being notified of such Third Party Claim setting forth in reasonable detail the facts and circumstances surrounding the claim; (b) Gather has control over the defense and settlement of such Third Party Claim, provided that Gather shall not enter into any settlement or other arrangement that admits liability of the Customer without Customer’s prior written consent; (c) at Gather’s request and expense, Customer reasonably cooperates with Gather in defending such Third Party Claim; and (d) Customer takes no action that is contrary to Gather’s interests with respect to such Third Party Claim, unless required by law, regulation, judicial process or a pre-existing obligation to a third party. In addition to its obligation set forth under this Section, upon assertion of any such Third Party Claim, Gather will have the right, at its option and expense, to: (x) obtain the right for Customer to continue using the affected Service or Documentation; (y) replace or modify the affected portions of the Service or Documentation so that the they are no longer infringing; or, if neither of the foregoing options is reasonably acceptable to Gather, then (z) terminate the rights granted Customer hereunder.
. This Section 8 states Gather’s entire liability and Customer’s exclusive remedies for infringement. Gather will have no liability or obligation to Customer under this Section 8 to the extent that the Third Party Claim results from: (a) the Service being used other than in accordance with this Agreement or the Documentation or being used in a manner for which it is not designed, contemplated or specifically recommended by Gather; (b) adaptations, modifications or alterations to the Service made by Customer or a party other than Gather or its authorized agents; (c) Customer’s use of the Service in combination with any programs, hardware or materials not provided or specifically approved by Gather if such claim would have been avoided without such use; (d) Customer’s use of the Service in conjunction with inaccurate or improper Customer Data; (e) the use or possession of Customer Data in violation of a third party’s intellectual property rights, or (f) any use of the affected Service after Customer receives notice of any such Third Party Claim (collectively, the “Exclusions”).
8.3 Indemnification by Customer
. Customer shall indemnify, defend (at Customer’s own expense) and hold harmless the Gather Parties from and against any and all claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with (i) any of the Exclusions, and (ii) Customer’s material breach of its rights and obligations under this Agreement with regard to the Service or (iii) Customer Data.
9 Limitation of Liability
. IN NO EVENT WILL THE GATHER PARTIES (i) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES FOR LOSS OF DATA, GOODWILL, BUSINESS INTERRUPTION OR THE LIKE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) HAVE AN AGGREGATE LIABILITY FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL SERVICE FEES ACTUALLY PAID BY CUSTOMER TO GATHER FOR THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EARLIEST DATE ON WHICH THE EVENTS GIVING RISE TO THE LIABILITY OCCURRED. THE FOREGOING LIMITATIONS WILL APPLY REGARDLESS OF THE CAUSE OR THE FORM OF ACTION (WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE) AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES HEREUNDER BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMITATION.
. Notwithstanding anything to the contrary herein, the limitations of liability contained in Section 9.1 will not apply to Customer’s obligations under Section 6.
9.3 Cumulative Remedies
. Except as otherwise expressly provided herein, all remedies provided for in this Agreement will be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
. Each Party acknowledges that the limitation of liabilities and disclaimers contained herein constitute an agreed upon allocation of risk between the Parties, have been factored into Gather’s pricing and are an essential element of the bargain between the Parties.
10.1 Termination with Cause
. Either Party will be entitled to terminate this Agreement in the event of any material breach by the other Party (including any failure by Customer to make payments when due) if such breach is not cured within thirty (30) days after receipt of written notice thereof or reasonable actions to cure such breach have not been initiated.
10.2 Cessation of Business
. This Agreement, including all rights and access grants hereunder will terminate automatically if either Party ceases conducting business in the normal course, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization which are not dismissed within ninety (90) days. In the event that Customer becomes the subject of any voluntary or involuntary bankruptcy proceeding, liquidation, dissolution, receivership or attachment or make a general assignment for the benefit of creditors, amounts that have been paid to Gather are hereby deemed earned upon receipt and are Gather’s sole property, irrespective of whether goods or services, have been delivered and may be applied, in whole or in part, in satisfaction of any obligations owed by Customer to Gather under this Agreement or any other agreement between Customer and Gather.
10.3 Suspension of Service
. Gather reserves the right to suspend its performance obligations hereunder in its sole discretion if Customer is in breach of its obligations hereunder or Gather reasonably believes that by providing the Services to Customer may subject it to liability. Under such circumstances, Gather shall promptly notify Customer of its decision and the reasons therefor. If Customer addresses Gather’s concerns to Gather’s satisfaction, Gather may resume performance.
10.4 Effect of Expiration or Termination
. Upon termination of this Agreement for any reason or expiration or non-renewal of any applicable Term, all rights granted to Customer hereunder with respect to the Service will cease, and Customer shall: immediately cease all use of the Service. In addition, Customer promptly shall pay to Gather all Fees and other amounts due and owing under this Agreement. Notwithstanding anything to the contrary contained herein, Sections 1, 5.2, 7 (with respect to unpaid Fees accruing prior to termination) and 8 through 11, as well as any provisions, which, by their nature, are intended to survive any expiration or termination of this Agreement, will survive such termination.
10.5 Termination Without Cause; Early Termination Fee
. If this Agreement is terminated other than by Customer for cause, or if Customer notifies Gather of its intention not to renew its subscription to the Service more than 30 days prior to the end of the then-current Term, then, in either case, Customer shall pay Gather, within 30 days of such termination or notice of non-renewal, an amount equal to the remaining Subscription Fees that would become due during the remainder of the Term (the “Early Termination Fee”). Customer acknowledges that Gather’s damages from an early termination are difficult to ascertain and that the Early Termination Fee is a reasonable measure of Gather’s damages arising from the termination. Likewise, in the event of Customer’s non-renewal, Gather shall treat the Early Termination Fee as pre-payment for the Services for the remainder of the Term and shall continue performing the Services for Customer until the end of the Term. Customer’s obligation to pay the Early Termination Fee is in addition to any other unpaid Fees that are due as of the termination or notice of non-renewal.
. The Customer hereby acknowledges that Gather may issue a press release generally referencing this Agreement and that thereafter Gather, and its affiliates, may reference its customer relationship with the Customer in any and all documents distributed in connection with any financing transactions and any marketing documents.
. Customer may not assign this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, without Gather’s express prior written consent, not to be unreasonably withheld. Gather may transfer and/or assign some or all of this Agreement by operation of law due to a merger or change of control, without prior notice to Customer or Customer’s consent. For the purposes of this Agreement, “change of control” means consolidation, or any sale of all or substantially all of Gather’s assets or any other transaction in which more than 50% of its voting securities are transferred. This Agreement will inure to the benefit of and be binding upon the Party’s successors and permitted assigns. Unless otherwise specifically agreed to by the nonassigning Party, no assignment by either Party will relieve the assignor from its obligations pursuant to this Agreement. Any assignment in violation hereof will be null and void.
. All notices or approvals required or permitted hereunder must be in writing and shall be deemed to have been given upon: (a) receipt if sent by certified or registered mail, postage prepaid, return receipt requested; (b) delivery if sent by a courier service that confirms delivery in writing; (c) the date sent by facsimile or e-mail, if to Customer; or (d) the date sent through the Service, if to Customer, in each case addressed to the applicable address set forth on the first page of this Agreement.
11.4 Injunctive Relief
. Each Party recognizes that irreparable injury would result to the other Party in the event of a failure to comply with any of the terms of Sections 6 and 11.1, as applicable, and that the full amount of the damages that would be incurred by the non-breaching Party as a result of any such breach would be difficult to ascertain. Accordingly, each Party hereby agrees that, in the event of any such breach or threatened breach, the non-breaching Party will be entitled to seek appropriate injunctive relief without the need to post bond or prove the inadequacy of monetary damages.
11.5 Export Control
. Customer agrees to comply with all U.S. export and re-export control laws and regulations and the U.S. economic sanctions, including the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State, and not cause Gather to violate the same. Without limiting the foregoing, Customer covenants that Customer shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Gather under this Agreement to or for use in or by any country (such as Cuba, Iran, North Korea, Sudan, or Syria), entity, or person subject to restrictions under the laws or regulations of any jurisdiction, including without limitation, the United States, without providing advance notification to Gather and obtaining prior authorization from the relevant government authorities as required by those laws and regulations. Prior to any such export event, Customer and Gather shall execute a written agreement to govern the use, control, and transfer of the applicable software and data. Customer hereby indemnifies and holds harmless, to the fullest extent permitted by law, Gather and our assigns from and against any fines, penalties, judgments, settlements, and reasonable documented costs, including attorney’s fees, that may arise as a result of Customer and Customer’s agents, officers, directors or employees breach of this provision.
11.6 Independent Parties; No Authority to Bind
. The relationship of Gather and Customer is that of independent contractors. Neither Party will have any authority to bind the other Party to any obligation by contract or otherwise.
11.7 Severability; No Waiver
. If any provision of this Agreement is deemed invalid or unenforceable, in whole or in part, this Agreement will be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the Parties. The failure of a Party to require performance of any obligations of the other Party hereunder will not be deemed a waiver and will not affect its right to enforce any provision of this Agreement at a subsequent time.
11.8 Third Party Beneficiaries
. No provisions of this Agreement are intended to create any third party beneficiary rights or any other rights of any kind in any other party under this Agreement, except that Gather’s affiliates and suppliers will be deemed third party beneficiaries under this Agreement for purpose of enforcing their rights in their respective intellectual property rights and Proprietary Information.
11.9 Construction; Headings
. Titles and headings to sections in this Agreement are inserted for convenience of reference only and are not intended to affect the interpretation or construction of this Agreement. The terms “herein,” “hereof,” “hereunder” and similar expressions refer to this Agreement and not to any particular section or other portion hereof. Except as expressly provided otherwise, references herein to “days” are to calendar days. Any use of the term “including” in this Agreement will be construed as if followed by the phrase “without limitation.”
. This Agreement may be executed in one or more duplicate counterparts and by electronic signature or other electronic acceptance process. If duplicate counterparts are used, each counterpart will be deemed an original and all of them will collectively constitute one and the same instrument.
. Any term or provision of this Agreement may be amended or waived only by a writing signed or electronically accepted by both Parties.
11.12 Entire Agreement
. These Standard Customer Terms and the Customer Agreement constitute the entire understanding and agreement of the Parties, whether written or oral, with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings between the Parties with respect to the Services.
11.13 Order of Precedence
. If any conflict or ambiguity arises between these Standard Customer Terms and any term or condition of the Customer Agreement, then, in every case, the order of precedence will be the Customer Agreement and then these Standard Customer Terms.
. Customer shall not solicit, recruit, divert or attempt to divert any employee of Gather to cease his or her relationship with Gather during the Term and for a period of one (1) year thereafter. Notwithstanding the foregoing, this provision will not restrict the right of either party to solicit or recruit generally in the media, and will not prohibit either party from hiring an employee of the other who answers any advertisement or who otherwise voluntarily applies for hire without having been initially solicited or recruited by the hiring party.
11.15 Force Majeure
. Neither Party will be held liable to the other Party for failure of performance (except for the payment of money) caused by the other Party or otherwise due to circumstances beyond the non-performing Party’s reasonable control, including acts of God, war, terrorism, strikes or labor disputes, civil disturbances or interruptions in power, communications, transportation, or intervention by governmental authority, provided that such Party gives prompt written notice thereof to the other Party. The party so excused shall remedy any such failure as soon as reasonably possible.
11.16 Governing Law, Venue
. This Agreement will be governed in accordance with and interpreted under the laws of the State of Georgia without giving effect to its choice of law provisions. Any action, suit, or other proceeding brought by either Party against the other Party must be brought in a State or Superior court or the United States District Court of competent jurisdiction in the metropolitan area of Atlanta, Georgia. Both Parties hereby submit to the exclusive jurisdiction of such courts and waive any objection to jurisdiction or venue in any such proceeding. In the event of any suits or actions or other proceedings to enforce the terms of this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees and other costs and expenses incurred therein. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application of this Agreement.
11.17 Security/Network Access
. Customer’s access to the Service will require access to the Internet, and access to the Internet is solely customer’s responsibility. No hardware, software, training, or support for customer’s access to the public Internet will be provided by Gather.