BY REGISTERING FOR THE SERVICE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS ("AGREEMENT") GOVERNING YOUR USE OF GANDER'S ONLINE SERVICE, INCLUDING ANY OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
As part of the Service, Gander will provide you with use of the Service, including a browser interface and data transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Gander website incorporated by reference herein, including but not limited to Gander's privacy [and security] policies. For reference, a Definitions section is included at the end of this Agreement.
Gander's privacy and security policies may be viewed at www.gandercpg.com. Gander reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, Gander occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.
Gander hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Gander and its licensors.
You may not access the Service if you are a direct competitor of Gander, except with Gander's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way, (ii) modify or make derivative works based upon the Service or the Content, (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device, or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses may not be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights, (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein, or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall (i) notify Gander immediately of any unauthorized use of any password or account or any other known or suspected breach of security, (ii) report to Gander immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users and (iii) not impersonate another Gander user or provide false identity information to gain access to or use the Service.
Gander does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Gander, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Gander shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Gander reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Gander shall have no obligation to maintain or forward any Customer Data.
Notwithstanding anything to the contrary, Gander shall have the right collect and analyze Customer Data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies and will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Gander offerings, and (ii) disclose such data solely in aggregate or other non-personally identifiable form in connection with its business.
Gander alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Gander Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Gander Technology or the Intellectual Property Rights owned by Gander. The Gander name, the Gander logo, and the product names associated with the Service are trademarks and service marks of Gander or third parties, and no right or license is granted to use them.
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. Gander and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party. Gander does not endorse any sites on the Internet that are linked through the Service. Gander provides these links to you only as a matter of convenience, and in no event shall Gander or its licensors be responsible for any content, products, or other materials on or available from such sites. Gander provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide Gander with a valid credit card number as a condition to signing up for the Service. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); and (ii) the license fee for the added licenses will be the then current, generally applicable license fee. Gander reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 14 days prior notice to you, which notice may be provided by email. All pricing terms are confidential, and you agree not to disclose them to any third party.
Gander charges and collects in advance for use of the Service. Gander will automatically renew and bill your credit card or issue an invoice to you each month or year mutually agreed upon. The renewal charge will be equal to the then-current number of total User licenses times the license fee in effect during the prior term, unless Gander has given you at least 14 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Gander's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Gander's income.
You agree to provide Gander with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Gander reserves the right to terminate your access to the Service in addition to any other legal remedies.
If you believe your bill is incorrect, you must contact us in writing within 10 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
In addition to any other rights granted to Gander herein, Gander reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). You will continue to be charged for User licenses during any period of suspension. If you or Gander initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Gander may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Gander reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Gander has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
This Agreement commences on the Effective Date. The Initial Term will be as you elect during the online subscription process, commencing on the date you agree to pay for the Service by completing the online subscription form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Gander's then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. You agree and acknowledge that Gander has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
Any breach of your payment obligations or unauthorized use of the Gander Technology or Service will be deemed a material breach of this Agreement. Gander, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Gander may terminate a free account at any time in its sole discretion. You agree and acknowledge that Gander has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Gander agrees that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Gander help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall indemnify and hold Gander, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party, (ii) a claim, which if true, would constitute a violation by you of your representations and warranties, or (iii) a claim arising from the breach by you or your Users of this Agreement, provided, in any such case, that Gander (a) gives written notice of the claim promptly to you, (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Gander of all liability and such settlement does not affect Gander's business or Service), (c) provides to you all available information and assistance and (d) has not compromised or settled such claim.
Gander shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark or service mark of a third party, (ii) a claim, which if true, would constitute a violation by Gander of its representations or warranties, or (iii) a claim arising from breach of this Agreement by Gander, provided, in any such case, that you (a) promptly give written notice of the claim to Gander, (b) give Gander sole control of the defense and settlement of the claim (provided that Gander may not settle or defend any claim unless it unconditionally releases you of all liability), (c) provide to Gander all available information and assistance and (d) have not compromised or settled such claim. Gander shall have no indemnification obligation, and you shall indemnify Gander pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
If, due to a claim of infringement, the Service is held by a court of competent jurisdiction to be or is believed by Gander to be infringing, Gander may, at its option and expense, (a) modify the Service to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (b) obtain a license that enables you to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and your rights hereunder and refund any prepaid, unused fees for the Service. THIS PARAGRAPH SETS FORTH YOUR SOLE REMEDY AND GANDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICE INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
GANDER AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. GANDER AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY GANDER AND ITS LICENSORS.
GANDER'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GANDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
Gander and its licensors make no representation that the Service is appropriate or available for use outside the United States. If you use the Service from outside the United States, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to U.S. law is prohibited.
You agree to comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export of the Service or any Customer Data outside the United States.
Gander may give notice by means of a general notice on the Service, electronic mail to your email address on record in Gander's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Gander's account information. Such notice shall be deemed to have been given12 hours after sending (if sent by email) or 48 hours after mailing or posting (if sent by first class mail or pre-paid post). You may give notice to Gander (which shall be deemed given when received by Gander) at any time by email to info@gandercpg.com.
Gander reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
This Agreement may not be assigned by you without the prior written approval of Gander. Any purported assignment in violation of this section shall be void. In the event you are party to a transaction or proposed transaction that results or would result in you being directly or indirectly controlled by a direct competitor of Gander, Gander shall be entitled to terminate this Agreement for cause immediately upon written notice.
In the event the parties hereto are not able to resolve any dispute between them arising out of or concerning this Agreement or any provisions hereof, whether arising in contract, tort, or any other legal theory, then such dispute shall be resolved exclusively through final, binding, and confidential arbitration conducted by a single neutral arbitrator and administered under the Commercial Arbitration Rules of the American Arbitration Association. The exclusive site of such arbitration shall be in Boulder, Colorado. The arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. The prevailing party shall be entitled to recover its costs and reasonable attorneys' fees. The entire dispute, including the scope and enforceability of this arbitration provision, shall be determined by the arbitrator. This arbitration provision shall survive the termination of this Agreement for any reason.
Notwithstanding the foregoing, either party may (i) bring a claim pertaining to intellectual property rights or a claim for injunctive relief or other equitable relief against the other party's violation of this Agreement in any court of competent jurisdiction in the State of Colorado or (ii) bring a suit or other legal proceeding to enforce this agreement in a small claims court of the State of Colorado having jurisdiction over the applicable claim(s), in either case without being required to observe the arbitration procedures of this section.
This Agreement shall be governed by Colorado law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Subject to the arbitration requirements set forth above, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Boulder, Colorado. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Gander as a result of this agreement or use of the Service. The failure of Gander to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Gander in writing. This Agreement constitutes the entire agreement between you and Gander and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
As used in this Agreement: "Agreement" means these online terms of use, and any materials available on the Gander website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Gander from time to time in its sole discretion; "Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; "Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service; "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service; "Initial Term" means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter); "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; "License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s); "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); "Gander" means Gander CPG, Inc., a Delaware corporation; "Gander Technology" means all of Gander's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Gander in providing the Service; "Service(s)" means [describe] identified during the ordering process, developed, operated, and maintained by Gander, accessible via www.gandercpg.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Gander, to which you are being granted access under this Agreement; "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Gander at your request).