Software As A Subscription – Service Terms

 
These GatherUp Software as a Service Subscription Terms (the Agreement”) are made between EARLY ECHO LLC, doing business as GatherUp, at 5205 Prospect Road #135-163, San Jose, California, 95129 (“GatherUp”), and YOU (“Subscriber”). The Effective Date” is the date Subscriber has ordered the Services electronically via the Service.
 
SUBSCRIBER SHOULD CAREFULLY READ THE TERMS OF THIS AGREEMENT BEFORE ACCESSING OR USING ANY SERVICES OF GatherUp. BY ACCESSING OR USING SUCH SERVICES, SUBSCRIBER CONFIRMS THAT SUBSCRIBER HAS READ AND ACCEPTS THISAGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS SUBSCRIBER MAY REFERENCE OR PROVIDE, GatherUp’S OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH SUBSCRIBER WITH RESPECT TO GatherUp SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT, AND CONDITIONED ON SUBSCRIBER’S ASSENT HERETO. The terms and conditions of this Agreement shall govern the Service(s) to be provided by GatherUp ordered by Subscriber and accepted by GatherUp. A Definitions section is included at the end of this Agreement. Subscriber agrees thatpurchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by GatherUp regarding future functionality or features.
 
1. License Grants & Restrictions
 
Subject to the terms and conditions of this Agreement, GatherUp hereby grants Subscriber a non-exclusive, non-transferable, non-assignable worldwide right to use the Service provided hereunder solely for Subscriber’s own business purposes and only for the Term. All rights not expressly granted to Subscriber are reserved by GatherUp and its licensors. GatherUp reserves the right to make changes, modifications, and enhancements to the Services from time to time. Subscriber agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by GatherUp regarding future functionality or features.
 
Subscriber hereby grants GatherUp a non-exclusive, non-transferable, non-assignable, fully paid-up worldwide right to use the identifying materials provided by Subscriber to GatherUp, including trademark and copyright interests therein (the “Identifying Materials”), as identifying marks on Subscriber’s instance of the Service, as agreed by GatherUp and Subscriber in writing from time to time.
 
2. Limitations on Use
 
Subscriber may not release to any third party the results of any evaluation of the Service performed by or on behalf of Subscriber for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, without the prior written approval of GatherUp.
 
Subscriber 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) “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (iv) reverse engineer the Service; or (v) access the Service to build a competitive product or service. For the avoidance of doubt, nothing in this Section 2 shall be deemed to prohibit Subscriber from allowing Subscriber’s Subscribers from accessing the functionality of the Service, via interfaces, portal applications and the like, for its internal business purposes.
 
Additionally, Subscriber shall not use the Service to: (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. Subscriber shall use the Service for purposes that are legal and that GatherUp reasonably believes is the proper and intended use by Subscriber of the Service.
 
Use of the Services is limited to the GatherUp URL(s) specified herein.
 
3. Subscriber’s Responsibilities
 
Subscriber is responsible for all activity occurring under Subscriber’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Subscriber’s use of the Service, including those related to data privacy and export control. Subscriber shall: (i) notify GatherUp immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Service; (ii) report to GatherUp immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Subscriber or Subscriber’s Users; and (iii) not impersonate another GatherUp user or provide false identity information to gain access to or use the Service. Subscriber acknowledges that the Services are subject to U.S. export control laws and regulations and Subscriber represents that Subscriber is not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations, and lists. Subscriber represents that Subscriber is not an individual less than 18 years of age.
 
Subscriber shall indemnify and hold harmless GatherUp, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents, from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with any claim related to this Agreement, including any breach of this contract by Subscriber, or any claim alleging that use of the Subscriber Data or Identifying Materials infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party, or arising from or related to theuse of, access to, interaction with or reliance upon, Subscriber’s website, provided in any such case that GatherUp (a) promptly gives notice of the claim to Subscriber; (b) gives Subscriber control of the defense and settlement of the claim subject to reasonable consultation with GatherUp and provided that Subscriber may not settle such claim unless such settlement unconditionally releases GatherUp of all liability and does not adversely affect GatherUp’s business or Service; (c) provides to Subscriber all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim.
 
Subscriber is responsible for drafting the terms of use and privacy policy for any website operated by Subscriber. However, the terms of use for Subscriber’s website must contain intellectual property, limitations of liability, limitations of remedy, disclaimers of warranty and indemnification provisions each for the benefit of GatherUp which are at least as favorable to GatherUp as contained in this Agreement.
 
4. Subscriber Data; Confidential Information
 
Subscriber hereby grants GatherUpall appropriate rights to handle any Subscriber Data provided by Subscriber to GatherUp pursuant to the terms of this Agreement, and also the right to use anonymized and/or aggregate Subscriber Data to improve the Service. GatherUp shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Data, including as required of a “business associate” pursuant to the Health Insurance Portability and Accountability Act (HIPAA) as defined at 45 CFR 160.103 and as set forth in more detail in a schedule hereto provided by GatherUp to appropriate Subscribers in connection with their registration.
 
GatherUp does not own any Subscriber Data. Subscriber, not GatherUp, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Subscriber Data, and GatherUp shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Subscriber Datanot caused by GatherUp. As part of the Service, GatherUp makes available to Subscriber at no additional charge the ability to export Subscriber Data. Subscriber agrees and acknowledges that (i) GatherUp is not obligated to retain Subscriber Data for longer than 30 days after termination and may delete such data at that time; and (ii) GatherUp has no obligation to retain Subscriber Data, and may delete Subscriber Data, if Subscriber has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 10 days of notice of such breach. Upon termination for cause resulting from an uncured breach, Subscriber’s right to access or use Subscriber Data immediately ceases, and GatherUp shall have no obligation to maintain or forward any Subscriber Data. Subscriber represents and warrants that it has all appropriate rights to any Subscriber Data shared with GatherUp pursuant to this Agreement.
 
As used herein, Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Subscriber Confidential Information shall include Subscriber Data; GatherUp Confidential Information shall include the Service; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such parties. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
 
5. Intellectual Property Ownership
 
GatherUp alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the GatherUp Technology, the Content and the Service, including to any and all enhancements, modifications, extensions and derivative works thereof, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or any other party relating to the Service. This Agreement is not a sale and does not convey to Subscriber any rights of ownership in or related to the Service, the GatherUp Technology or the Intellectual Property Rights owned by GatherUp. The GatherUp name, the GatherUp logo, and the product names associated with the Service are trademarks of GatherUp or third parties, and no right or license is granted to use them.
 
6. Third Party Interactions
 
GatherUp and its licensors shall have no liability, obligation or responsibility for any correspondence, purchase or promotion between Subscriber and any third-party made possible via the Service. GatherUp does not endorse any sites on the Internet that are linked through the Service. GatherUp provides these links to Subscriber only as a matter of convenience, and in no event shall GatherUp or its licensors be responsible for any content, products, or other materials on or available from such sites. GatherUp provides the Service to Subscriber pursuant to the terms and conditions of this Agreement. Subscriber recognizes, however, that certain third-party providers of ancillary software, hardware or services may require Subscriber’s agreement to additional or different license or other terms prior to Subscriber’s use of or access to such software, hardware or services.
 
7. Charges and Payment of Fees
 
Subscriber shall pay all fees or charges for the Services. All payment obligations are non-cancelable, and all amounts paid are nonrefundable, even in the event of a termination as specified in Section 10 below. GatherUp reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice, as specified in Section 18 below, to Subscriber. In the event that Subscriber does not provide notice of termination as described in Section 11 below, such changes shall become effective at the commencement of the next monthly Term. Neither party will disclose any pricing terms or other terms of this Agreement, including its existence, to anyone other than its attorneys, accountants,and other professional advisors except (a) as required by law; (b) with the consent of the other party; or (c) pursuant to a mutually agreeable press release.
 
8. Term, Billing and Renewal
 
The Term shall begin on the date Subscriber accepts and agrees to this Agreement and thereafter shall continue for the term of the agreement as noted in the Pricing section of the related Statement of Work until terminated pursuant to the terms of this Agreement.
 
All fees are billed in advance and due monthly, starting with the date your subscription is initiated and thereafter on the same day of the month for each subsequent month. GatherUp’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on GatherUp’s income. If GatherUp has the legal obligation to pay or collect taxes for which Subscriber is responsible, the appropriate amount shall be invoiced to and paid by Subscriber unless Subscriber provides GatherUp with a valid tax exemption certificate authorized by the appropriate taxing authority. If Subscriber believes Subscriber’s bill is incorrect, Subscriber must contact GatherUp in writing within sixty (60) days of the date of the bill containing the amount in question to be eligible to receive an adjustment or credit.
 
All payment shall be by a credit card, electronic money transfer (i.e., ACH), or such other method as agreed by the parties (which may involve an additional handling fee at the sole discretion of GatherUp), supported by GatherUp and shall be chargeable upon invoice date and no receipt will be provided. Subscriber agrees to provide GatherUp with accurate billing and contact information, including but not limited to Subscriber’s legal company name, e-mail address, and name of an authorized billing contact and Administrator.
 
Subscriber agrees to update this information within thirty (30) days of any change to it. If the contact information Subscriber has provided is false or fraudulent, GatherUp reserves the right to terminate Subscriber’s access to the Service in addition to any other legal remedies.
 
9. Non-Payment and Suspension
 
In addition to any other rights granted to GatherUp herein, GatherUp reserves the right to suspend or terminate this Agreement and Subscriber’s access to the Service if Subscriber’s account becomes delinquent if Subscriber’s credit card is unable to be charged, or if the fees are not timely transferred electronically. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection. If GatherUp initiates termination of this Agreement for cause, as further described in Section 12, Subscriber will be obligated to pay the balance due computed in accordance with Section 9 above.
 
10. Termination
 
Either party may terminate the Agreement with effect by ninety (90) days’ notice via email. Either party may terminate this Agreement at any time if the other party breaches any material term of this Agreement and fails to cure such breach within ten (10) days after delivery of notice of such breach. Upon request by Subscriber made within 30 days after the termination of a Subscription, GatherUp will make available to Subscriber for download a file of Subscriber Data in comma separated value (.csv) format along with attachments in their native format.
 
11. Representations & Warranties
 
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Subscriber further represents and warrants that Subscriber has not falsely identified itself nor provided any false information to gain access to the Service and that Subscriber’s billing information is correct, and that it has all rights granted by Subscriber to GatherUp with respect to the Identifying Materials.
 
12. Disclaimer of Warranties
 
GatherUp 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. GatherUp 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 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 THROUGHTHE SERVICE WILL MEET 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 SUBSCRIBER 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 GatherUp AND ITS LICENSORS.
 
13. Internet Delays
 
GatherUp’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GatherUp IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
 
14. Limitation of Liability
 
IN NO EVENT SHALL GatherUp’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM SUBSCRIBER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. 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 AGREEMENT, 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, 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.
 
15. Marketing
Subscriber grants GatherUp the right to use Subscriber’s name, mark, and logo on GatherUp’s website, in GatherUp marketing materials, and to identify Subscriber as a GatherUp Subscriber. Subscriber further agrees that “Powered by GatherUp” or similar marks may appear in forms, web pages and other outputs of the Service.
 
16. Notice
 
All notices required to be provided under this Agreement must be delivered in writing by nationally recognized overnight delivery service, by confirmed electronic mail as described below, or by US mail to the other party at, with respect to GatherUp, the address set forth in the initial paragraph above, and with respect to Subscriber, the address provided by Subscriber when subscribing to the Service. Subscriber may give notice to GatherUp by emailing support@gatherup.com and GatherUp may give notice by emailing Subscriber’s billing contact as provided by Subscriber. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.
 
17. Assignment
 
Subscriber may not assign this Agreement to any third party except upon GatherUp’s prior written consent, which consent not to be unreasonably withheld. Any purported assignment in violation of this section shall be void. Subject to the preceding sentences, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
 
18. General
 
This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and 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 San Francisco, California. GatherUp reserves the right to amend this Agreement at any time, upon at least thirty (30) days prior notice, as specified in Section 16 above, to Subscriber. In the event that Subscriber does not provide notice of termination as described in 10 above, such changes shall become effective at the commencement of the next monthly Term. This Agreement comprises the entire agreement between Subscriber and GatherUp regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter, provided however that, other than as set forth in the preceding sentences, no modification, amendment, or waiver of any provision of this.
 
Agreement shall be effective unless in writing and signed by the Parties, and to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any physically executed amendment, schedule, exhibit or addendum hereto, the terms of such amendment, schedule, exhibit or addendum shall prevail. If any provision of this Agreement is held by 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 Subscriber and GatherUp as a result of this Agreement or use of the Service. The failure of either party 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 such party in writing.
 
19. Surviving Provisions
 
Sections 4-6, 11, 12, 14 and 16-20 shall survive any termination or expiration of this Agreement.
 
20. Definitions
 
As used in this Agreement:
 
Content” means the audio and visual information, documents, software, products and services contained in or made available via the Service, other than Subscriber Data; Subscriber Data” means any data, information or material that Subscriber or Subscriber’s Users, subscribers or partners may disclose or submit to GatherUp or the Service in the course of using the Service; 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; Administrator(s) means those Users designated by Subscriber who are authorized to create Subscriber accounts and otherwise administer Subscriber’s use of the Service; GatherUp Technology” means all of GatherUp’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 Subscriber by GatherUp in providing the Service; Service(s) means the GatherUp services accessible via https://gatherup.com, or another designated web site or IP address, or ancillary online or offline products and services provided or licensed to Subscriber by GatherUp, to which Subscriber is being granted access under this Agreement; User(s) means Subscriber’s Subscribers, clients, employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Subscriber (or by GatherUp at Subscriber’s request).
 
triangles

We'll help you build a better business