ACCEPTANCE TO SUBSCRIBE GAVel SERVICES:
You have elected to subscribe to the platform and related services offered by either GAVel or a subsidiary of GAVel (such platform and services, collectively, the “GAVel Services”) made available at http://gavel.solutions (or any successor URL controlled by GAVel) (the “GAVel Website”).
Depending on your selection at the time of subscription, all references hereinafter to “Selected Services” shall refer to the specific GAVel Services provided by either GAVel or a subsidiary of GAVel. All references hereinafter to “GAVel” shall refer solely to the specific provider of the Selected Services, be it GAVel. or GAVel subsidiary.
These terms of service (“Terms of Service” or “Agreement”) govern the provision to you (if you are accepting these Terms of Service in your individual capacity) or the company of which you are a duly authorized employee or agent (“Customer”) of the Selected Services, and Customer’s usage of the same. By using the Selected Services, Customer agrees to be bound by these Terms of Service to the exclusion of all other terms. If Customer does not unconditionally agree to all of the terms and conditions of this Agreement, then Customer should not use (and has no right to use) the Selected Services or the GAVel Website.
Modifications to Terms and Additional Terms: GAVel may update these Terms of Service from time to time, and will notify Customer of such updates either via email or by posting such changes on the GAVel Website, or other reasonable means. Customer’s continued use of the Selected Services following notification of an updated version of the Terms of Service shall constitute Customer’s consent thereto. GAVel may make modifications to the Selected Services in its discretion, provided that such modifications do not materially adversely affect the features or functionality of the Selected Services. This Agreement applies solely to the Selected Services and no other.
Digital Signature: by registering for GAVel account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, Customer is deemed to have executed this Agreement and the other Terms of Service electronically, effective on the date Customer registers their Account or click to accept the Terms of Service, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Customer Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
1. GAVel: Our Services to You
3. Restrictions; Compliance with Laws and Other Matters
(b) Security. Customer shall take all reasonable security precautions in connection with its use of the Selected Services. Customer shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Selected Services and shall change its passwords periodically. If the Customer Application is hacked or otherwise accessed by a third party without authorization, then GAVel may take the Customer Application offline until GAVel determines that the intrusion is finally resolved.
(c) Compliance with Laws. Customer shall comply with all laws applicable to the use and operation of the Customer Application and Selected Services including, as applicable, the CAN-SPAM Act of 2003 and all laws and regulations applicable to bulk or commercial email. Customer shall establish a process to respond to notices of alleged infringement or illegal content that complies with applicable law. Customer acknowledges and agrees that (i) GAVel may, but is not obligated, to monitor Customer’s compliance; and (ii) GAVel may, without liability to Customer, block or take down the transmission of email or other content in Customer’s Application or otherwise that in GAVel’s opinion violates any such law or regulation or otherwise imposes any liability on GAVel. GAVel reserves the right to suspend or terminate Customer’s accounts or Application if GAVel determines, in its reasonable opinion, that the content in Customer’s Application or otherwise is in breach of applicable law.
(d) Cooperation with Investigations and Legal Proceedings. GAVel may, without notice to Customer: (i) report to the appropriate authorities any conduct by Customer or Users that GAVel believes violates applicable criminal law; and (ii) provide any information that it has about Customer or its Users in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request.
4. Customer Application; Customer Account
5. Suspension of Selected Services
6. Customer Warranties
8. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL SELECTED SERVICES ARE PROVIDED “AS IS” AND GAVEL (FOR ITSELF, ITS PARENT, AND ALL OF GAVEL’S SUBSIDIARIES, AFFILIATES, SUPPLIERS AND LICENSORS) DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NEITHER GAVEL (NOR ANY OF ITS PARENT, SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SELECTED SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
9. Limitation of Liability
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL GAVEL OR ANY OF ITS PARENT, SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR EMPLOYEES, OFFICERS, AGENTS, LICENSORS OR SUPPLIERS, BE LIABLE UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) FOR:
I. PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (HOWEVER CAUSED AND UNDER ANY THEORY OF LAW INCLUDING BREACH OF CONTRACT, STATUTE, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR
II. ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES ACTUALLY RECEIVED BY GAVEL FROM CUSTOMER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES THAT EACH OF THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT AND THAT ABSENT SUCH LIMITATIONS GAVEL WOULD NOT PROVIDE THE SELECTED SERVICES TO CUSTOMER OR ENTER INTO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE SELECTED SERVICES DO NOT INCLUDE DATA BACKUP OR DATA STORAGE SERVICES, AND CUSTOMER HEREBY RELEASES GAVEL AND ITS CONTRACTORS FROM ANY LIABILITY FOR LOSS OF DATA. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ITS NEGLIGENCE, OR FOR FRAUD.
Nothing in this Agreement SHALL exclude or limit either party’s liability for death or personal injury arising from its negligence, or for fraud.
(a) Customer. Customer may terminate this Agreement upon ten (10) days written notice to GAVel and shall pay all amounts due for Selected Services through the effective date of termination in accordance with Section 2(c).
(b) GAVel may terminate this Agreement without liability as follows: (i) in accordance with Section 2(b) or Section 3(c); (ii) without limiting the foregoing subsection (i), upon notice if Customer materially violates any provision of this Agreement and fails to cure the violation within thirty (30) days of a written notice from GAVel; (iii) upon one (1) Business Days’ notice if Customer uses the Selected Services in violation of a material term of this Agreement more than once (after having received notice from GAVel regarding the initial violation); or (iv) upon five (5) Business Days’ notice if GAVel is threatened with a legal claim for intellectual property infringement related to the provision of a Selected Service and is unable, through commercially reasonable efforts, to obtain a license or modify such Selected Service in a way that avoids an ongoing risk of liability. A “Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Eastern Standard time, excluding any day that banks in the United States are required or permitted to be closed.
(c) Effect of Termination. Notwithstanding the foregoing, Customer acknowledges and agrees that GAVel may, in its sole discretion and without obligation, delete all data or content in GAVel’s possession or control, including but not limited to “Customer Data” as defined in Section 11(a) hereinbelow, after thirty (30) days following any termination or expiration of this Agreement for any reason, without liability to Customer. Sections 2, 7, 8, 9, 10, 12, 13, and 14 will survive any expiration or termination of this Agreement.
11. Use of Data; EU Data Subjects; Security
(a) Customer Data. GAVel may use, process, transfer and disclose information or data of Customer and its Users that is stored in a Customer Application or otherwise provided by Customer or its Users as part of the Selected Services (collectively, “Customer Data”) only to the extent necessary to provide the Selected Services or as otherwise may be permitted under applicable law; provided that GAVel may also disclose Customer Data (i) to third parties in connection with the provision of Selected Services (provided such third parties are under a duty to use, process, transfer and disclose such Customer Data only as necessary to provide the Selected Services), and (ii) in response to requests from law enforcement officials, government agencies, or as required in connection with legal proceedings. Customer Data does not include “Direct Customer Information” (as defined below).
(c) EU Data Subjects. If GAVel receives any Customer Data constituting “personal data” as defined in the EU Data Protection Directive 95/46/EC (as may be amended from time to time) from Customer or its Users in connection with the Selected Services, including any such Customer personal data that may be collected by or stored in the Customer Application or otherwise hosted on servers owned or controlled by GAVel, then Customer agrees that: (i) Customer is the data controller with respect to such Customer Data; and (ii) Customer will comply with all applicable laws, including the EU Data Protection Directive, applicable to such Customer Data, including obtaining all necessary consents from relevant EU Data Subjects and taking actions necessary to enable the Data Subjects to exercise their rights of notice, disclosure, access, accountability and other rights under the relevant data protection law. GAVel will act as the data processor of such Customer Data and in that capacity, will use commercially reasonable efforts to assist Customer in enabling it to comply with the applicable data protection law. Customer acknowledges that GAVel utilizes servers located in the United States, and consents to the transfer of Customer Data to the United States. Customer further acknowledges and agrees that any data or information stored by Customer on such servers is subject to the laws of the United States, including copyright, privacy and defamation laws.
(d) Data Security. GAVel will use commercially reasonable efforts to prevent the unauthorized access, use or disclosure of Customer Data and Direct Customer Information located on GAVel servers, including the implementation of industry-standard measures designed to maintain the security of such data. Customer acknowledges, however, that GAVel cannot guarantee the security of such data given the nature of the Internet.
12. Third Party Services and Separate Products
- Third Party Services Changes. GAVel may suspend or terminate a Third Party Service upon written notice to Customer if the Third Party Service is suspended or ceases to be provided for any reason (whether generally or through GAVel), and GAVel may modify the pricing charged to Customer or features available with respect to such Third Party Service if the Third Party Service Provider modifies the pricing or features of such Third Party Service. GAVel shall use reasonable efforts to provide Customer a reasonable notice period with respect to any such suspension, termination or price or feature modification, which period Customer acknowledges may be determined in part by the amount of notice the Third Party Service Provider provides to GAVel of such events.
13. Notices and Communications
(b) Communications with Customer. GAVel shall communicate with Customer regarding day-to-day operational issues using email, the GAVel Website, and the product user interface, as relevant.
(c) Customer Responsibilities. Customer shall be responsible for (i) ensuring that Customer email addresses used in communicating with GAVel are kept current and that spam and other filters for such email accounts are configured to accept emails from GAVel, and (ii) routinely checking the GAVel Website and product user interface for additional information relevant to Customer’s use of the Selected Services.
GAVel will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including our privacy policies). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by ContractSafe); (b) was lawfully known to ContractSafe before receiving it from you; (c) is received by ContractSafe from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by ContractSafe without reference to your Content.
During the term of this Agreement and for 12 months thereafter, Customer agrees that it shall not solicit for employment any employee of GAVel with whom it has had direct contact in connection with this Agreement. Notwithstanding the foregoing, Customer shall not be precluded from (i) hiring an employee of GAVel who independently approaches Customer, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. If Customer violates this provision, in addition to any other right GAVel may have at law or in equity, Customer shall make a one-time payment to GAVel in the amount of thirty percent (30%) of the employee’s then-current annual base salary.
16. Ownership; Licenses; Customer Data
As between the parties, GAVel owns and shall retain all rights in the Selected Services (including all related infrastructure), GAVel’s trademarks and service marks, and all modifications to any of the foregoing and all related intellectual property rights. Customer grants GAVel (and its subcontractors) during the term of this Agreement a non-exclusive, worldwide, royalty-free, sublicensable, license to use, reproduce, modify, publicly perform, publicly display and distribute Customer Data for purposes of providing the Selected Services hereunder. In addition, GAVel shall have the right, but not the obligation, to retain copies of Customer Data for legal compliance purposes.
17. Site Material Revisions
The materials appearing on the GAVel Site and Services may include technical, typographical, or photographic errors. GAVel does not warrant that any of the materials on its Site and Service are accurate, complete, or current. GAVel may make changes to the materials contained on its Site and Service at any time without notice. GAVel however, makes no commitment of any kind to update the materials.
18. Assumption of Risk
Customer uses the Internet solely at their own risk and subject to all applicable local, state, national, and international laws and regulations. While GAVel has endeavored to create a secure and reliable Site and Service, GAVel is not responsible for the security of any information outside of its control,. GAVel shall have no liability for interruptions or omissions in Internet, network or hosting services. Customer assumes the sole and complete risk of using the Site.
19. Customer’s Responsibility to Protect Data and Password
It is Customers to maintain the confidentiality of your user information and password. Customer is responsible for immediately notifying GAVel of any unauthorized use of your account, or breach of your account information or password. GAVel will not be liable for any loss that Customer may incur as a result of someone else using their username or password, either with or without their knowledge. To the extent allowable by law, Customer shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for your failure to safeguard user and password information and/or promptly notify GAVel about unauthorized use of their account or breach of their account information or password.
The Site may include links to certain website, materials, or content developed by third parties. GAVel has not reviewed all of the sites linked to its Internet Site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by GAVel of the Site. Use of any such linked website is at their own risk. GAVel reserves the right in its sole and absolute discretion to discontinue links to any other sites at any time and for any reason.
21. Enforcing Security
Actual or attempted unauthorized use of any of the Site and Service may result in criminal and/or civil prosecution. For Customers protection, we reserve the right to view, monitor, and record activity on the Site and Service without notice or further permission from you, to the fullest extent permitted by applicable law and only in accordance with these Terms and Conditions. This right extends to our review of tracking activity and details pertaining to claimed violations by users. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Site and Service.
22. Governing Law, Jurisdiction, Venue
This Agreement shall be governed, construed and enforced in accordance with, the laws of the state of New York. The parties agree to exclusive jurisdiction in the federal and state courts of the County of New York in the State of New York. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Except for disputes involving the assertion of GAVel’s intellectual property rights and claims for injunctive relief,
(a) any dispute controversy or claim arising out of this Agreement or any alleged breach of this Agreement shall be resolved by means of binding arbitration before a single American Arbitration Association (AAA) arbitrator in accordance with the then existing Rules of AAA, including the Optional Rules for Emergency Measures of Protection which are available at www.adr.org or by calling 1-800-778-7879. To begin an arbitration proceeding, send a letter requesting arbitration and describing your claim to GAVel, email@example.com (“GAVel’s Mailing Address”). The arbitrator shall be a practicing attorney or retired judge with at least fifteen years total working experience as such. The arbitration shall be held in New York, or any other place agreed upon at the time by the parties. The language of Arbitration shall be English. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitation. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages. An award of damages shall include pre-award interest at the rate of ______ percent from the time of the act or acts giving rise to the award.
(b) A party may apply to the arbitrator seeking injunctive relief until an arbitration award is rendered or the dispute is otherwise resolved. A party also may, without waiving any other remedy, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party pending the arbitrator’s appointment or decision on the merits of the dispute. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to that party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees and legal costs.
(c) The arbitrator shall issue a reasoned award. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. The arbitration proceedings and arbitrator’s award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management and to family members of a party who is an individual.
(d) The arbitrator shall require exchange by the parties of (i) the name and, if known, address and telephone number of each person likely to have knowledge of relevant information, identifying the subjects of the information, and (ii) non-privileged documents, including those in electronic form, that are relevant to the issues raised by any claim, defense or counterclaim or on which the producing party may rely in support of or in opposition to any claim, defense or counterclaim. The arbitrator shall limit such production based on considerations of unreasonable expense, duplication and undue burden. These exchanges shall occur no later than a specified date within 60 days following the appointment of the arbitrator. At the request of a party, the arbitrator may at his or her discretion order the deposition of witnesses. Depositions shall be limited to a maximum of three depositions per party, each of a maximum of four hours duration, unless the arbitrator otherwise determines. The arbitrator may allow such other discovery as he or she determines is reasonably necessary for a fair determination of the dispute. Any dispute or objections regarding discovery or the relevance of evidence shall be determined by the arbitrator. All discovery shall be completed within 120 days following the appointment of the arbitrator, unless the arbitrator otherwise determines.
(e) The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York. Use of the Selected Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this Section.
WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND GAVel ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS. This Section 22 shall survive expiration, termination or rescission of this Agreement.
A party’s failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of this Agreement. A party’s waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
The headings in this Agreement are not part of this Agreement but are solely for the convenience of the parties. As used herein, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather, will be deemed to be followed by the words “without limitation.” All references in this Agreement to “Sections” refer to sections herein.
25. Force Majeure
Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
26. No Third Party Beneficiaries
Except with respect to Sections 8 and 9 as they apply to GAVel’s parent, subsidiaries, affiliates, and GAVel’s and its parent’s, subsidiaries’ and affiliates’ respective employees, officers, agents, licensors and suppliers, there are no third party beneficiaries to this Agreement.
In the event any term of this Agreement is held unenforceable, the remaining portion of this Agreement will remain in full force and effect.
28. Right Granted by Customer
Customer grants GAVel the right during the term of this Agreement to use Customer’s name, mark and logo on the GAVel Website and in GAVel’s promotional materials solely to identify Customer as a customer of GAVel, in accordance with any usage guidelines delivered by Customer to GAVel.
29. Relationship Between the Parties
The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other, and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. GAVel may provide the Selected Services to any person, including a competitor of Customer.
Neither party may assign this Agreement to a third party without the written consent of the other party, provided that GAVel may upon written notice assign this Agreement to an affiliate or to a successor in interest upon any merger, acquisition, change of control, reorganization or sale of all or substantially all of its stock or its assets that are related to this Agreement. An attempted assignment in contravention of the terms and conditions hereof shall be null and void.