By using our Services, you are agreeing to these terms. Please read these Terms and Conditions ("Terms", "Terms and Conditions") carefully before using the https://ltiaas.com website and the mobile application (the "Service") operated by GatherAct LLC ("us", "we", or "our"). All references to you, the Customer, under this Agreement refer equally to an Affiliate ordering under this Agreement. “Affiliate” means any entity controlling, controlled by, or under common control with Customer.
Our Services are very diverse, so sometimes additional terms or product requirements (including age requirements) may apply. Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with us if you use those Services.
Access to the service provided by GatherAct at https://ltiaas.com and its mobile application (the “Platform” or “Service”) is purchased through user subscriptions (“User Subscriptions”). Subject to the terms and conditions of this Agreement, GatherAct grants to Customer a non-transferable, non-sublicensable, non-exclusive license to access and use the Platform, GatherAct Apps, and Services during the Subscription Term. Use of GatherAct's Application Program Interface (“API”) and/or Software Development Kit (“SDK”) is subject to Customer's acceptance of GatherAct's then-current applicable license terms at the time of access.
“Authorized User” or “User” means individuals authorized by Customer to administer and use the GatherAct Platform, provided that Authorized Users are strictly limited to Customer's employees, agents, and contractors (1) who are bound by confidentiality obligations at least as protective as those contained herein, (2) whose access is permitted only for Customer's ordinary business purposes, and (3) whose access or use is in strict compliance with the terms of this Agreement. Without limiting the foregoing, neither Customer nor any User shall: (1) use the GatherAct Platform or GatherAct Apps in connection with (a) any infringement or misappropriation of any intellectual property right of any third party; (b) any false, deceptive, or otherwise intentionally misleading practices directed towards GatherAct, GatherAct's customers, or other Users; (c) any attempt to bypass or override the GatherAct Platform operating system, network, or security measures, or any component thereof; (2) alter, damage, or reverse engineer, reproduce, modify, publicly display or perform, encode, translate, or create derivative works from, any portion of the GatherAct Platform, GatherAct Apps, or related intellectual property, including its source code, object code, and documentation, or permit others to do any of the preceding; (3) loan, lease, sell, license or sublicense, or otherwise commercially exploit any part of the GatherAct Platform or GatherAct Apps without GatherAct's express written consent; (4) use the GatherAct Platform or GatherAct Apps as part of any effort to compete with GatherAct or to provide similar products or services; (5) use any robot, spider, other automated device, or manual process to monitor any content from the GatherAct Platform or GatherAct Apps without express written consent; or (6) transmit or transfer (by any means) information or technology derived from the GatherAct Platform or GatherAct Apps to foreign countries or certain foreign nations in violation of US export control laws.
Each Authorized User must have unique log-in credentials (“User Identification”) to access and use the GatherAct Platform. Customer shall use commercially reasonable efforts to secure all User Identification data and immediately notify GatherAct of any unauthorized use of any User Identification or any disclosure of User Identification to any unauthorized party of which Customer becomes aware. Customer shall not knowingly permit any person or entity other than an Authorized User to access or use the GatherAct Platform.
“Customer Data” means any information or data of any kind or nature, in any form of digital media or file type created, uploaded, processed or stored in connection with Customer's or a User's use of the GatherAct Platform. Customer retains all rights, title, and interest in Customer Data. During the term of this Agreement, Customer grants to GatherAct a worldwide, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to use, reproduce, store, archive, and index Customer Data solely as necessary to support the GatherAct Platform and Services provided to Customer in accordance with this Agreement. All Customer Data is provided by Customer “as-is” without warranty of any kind. The foregoing license granted by Customer to GatherAct will terminate automatically upon the expiration or termination of this Agreement.
Other than the rights expressly granted to Customer under this Agreement, GatherAct reserves all right, title, and interest in and to the GatherAct Platform, GatherAct Apps, Services, Documentation, and any of GatherAct's products and services, including any and all intellectual property rights therein. No rights are granted other than as expressly set forth in this Agreement. “Feedback” means any suggestion or idea for improving or otherwise modifying the GatherAct Platform, GatherAct Apps, or any of GatherAct's products or services. Feedback is excluded from Customer's Confidential Information. Customer hereby assigns to GatherAct any and all rights in and to Feedback, including all aspects, embodiments, modifications, additions, and all derivative works thereof. To the extent such rights may not be assigned as a matter of law, Customer grants to GatherAct an irrevocable, royalty-free, worldwide, transferable, sublicensable, perpetual license to use or incorporate the Feedback into any of GatherAct's products or services.
Each party may refer to the other as a customer or vendor (as the case may be) by reference on its website. Customer grants to GatherAct a non-exclusive, non-transferable right to use the Customer logos made available to GatherAct and pursuant to Customer's applicable logo use policies (the “logos”), provided that GatherAct strictly complies with any applicable criteria and requirements in any such policies. Customer may modify any of the logos from time to time, and GatherAct will stop using any prior version following notice of any such modification. GatherAct shall not use the logos in a manner that misrepresents its relationship with Customer or is otherwise misleading, or that reflects negatively on Customer. GatherAct will immediately discontinue use of any Customer logo immediately upon request. Any use of Customer trademarks (including the “logos”) by GatherAct shall inure to the sole benefit of Customer. GatherAct agrees to provide reasonable assistance to Customer in connection with the protection and prosecution of Customer's trademarks.
GatherAct will invoice Customer on a recurring monthly basis. Customer shall pay all undisputed invoiced amounts without deduction and within thirty (30) days of the invoice date.
Subscription Fees are based on Subscriptions and Services purchased.
Amounts due under this Agreement are payable to GatherAct without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source (“Transaction Taxes”). Customer shall pay all Transaction Taxes, together with any interest or penalties assessed thereon, that are imposed upon Customer's purchases hereunder, unless Customer has provided GatherAct with a certificate of exemption with respect thereto. Customer is responsible for providing GatherAct with the ultimate location of use for purposes of calculating Transaction Taxes.
“Confidential Information” means all nonpublic 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. Customer's Confidential Information includes Customer Data. GatherAct's Confidential Information includes the confidential elements of the GatherAct Platform and Services. Confidential Information of each party includes the terms and conditions of this Agreement, as well as such party's business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (1) is or becomes generally known to the public without breach of any obligation of confidentiality, (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation of confidentiality, (3) is received from a third party without breach of any obligation of confidentiality, or (4) was independently developed by the Receiving Party without reference to or reliance on the Disclosing Party's Confidential Information as evidenced by contemporaneous written records.
Except as otherwise permitted in writing by the Disclosing Party, (1) 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) and will not disclose or use any Confidential Information of the Disclosing Party for any purpose beyond the scope of this Agreement, and (2) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to (a) those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less protective than those herein, and (b) Receiving Party's attorneys, accountants, financial advisors, and auditors, for the sole purpose of enabling such parties to provide counsel and advice to the Receiving Party.
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 written 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. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Receiving Party agrees that its breach of Article III would cause the Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the Disclosing Party will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
Each party represents and warrants that it has all right, power, and authority to enter into and perform this Agreement and will comply with applicable laws in its performance of this Agreement.
GatherAct warrants the availability and functionality of the GatherAct Platform for the duration of the Subscription in accordance with GatherAct's written service level agreement located at the following url: https://ltiaas.com/service-level-agreement. GatherAct warrants that the GatherAct Platform will perform the material functions described in the applicable Documentation. “Documentation” means the documentation, manuals, and usage guides provided or made accessible by GatherAct to Customer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS AND THIS AGREEMENT EXPRESSLY EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (1) ANY WARRANTY THAT THE GATHERACT PLATFORM, GATHERACT APPS, OR SERVICES ARE ACCURATE, ERROR-FREE, FAULT-TOLERANT OR FAIL-SAFE, WILL OPERATE WITHOUT INTERRUPTION, ARE COMPATIBLE WITH ALL CUSTOMER EQUIPMENT OR CONFIGURATIONS THEREOF, AND (2) ANY WARRANTY OF NONINTERFERENCE OR SYSTEM INTEGRATION. GATHERACT WILL NOT BE LIABLE FOR FAILURES CAUSED BY CUSTOMER'S EQUIPMENT (OR THIRD-PARTY EQUIPMENT PROCURED BY OR ON BEHALF OF CUSTOMER), MISUSE OF THE GATHERACT PLATFORM, GATHERACT APPS, OR SERVICES, OR THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CUSTOMER OR ITS USERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, GATHERACT MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO CUSTOMER OR TO ANY OTHER PERSON OR ENTITY REGARDING THE GATHERACT PLATFORM, GATHERACT APPS, SERVICES, DOCUMENTATION, OR ANY OTHER ITEM OR SERVICE PROVIDED BY GATHERACT UNDER THIS AGREEMENT, OR OTHERWISE, OR THE RESULTS TO BE DERIVED FROM THE USE THEREOF, AND GATHERACT EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE, OR COURSE OF PERFORMANCE. NO INFORMATION, REPRESENTATION, OR ADVICE GIVEN BY GATHERACT SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY SET FORTH IN THIS AGREEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR ANY OTHER NON-DIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR FUTURE REVENUES, COST OF CAPITAL, LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, LOSS OR INTERRUPTION OF USE OF ANY DATA OR EQUIPMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY'S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION UNDER ANY LEGAL THEORY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF PAYMENTS PAID BY CUSTOMER TO GATHERACT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. EACH PARTY AGREES TO RELEASE THE OTHER PARTY, ITS EMPLOYEES, CONTRACTORS, AGENTS, AND AFFILIATES FROM AND AGAINST ANY AND ALL LIABILITY EXCEEDING THE LIMITS STATED IN ARTICLE V SECTION D, REGARDLESS OF THE REMEDY OR THEORY OF LIABILITY UNDER WHICH DAMAGES ARE SOUGHT. THE LIMITATIONS OF ARTICLE V SECTION D WILL APPLY EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT. The limitations of liability under Article IV Section D shall not apply to breach of confidentiality under Article III and indemnification obligations under Article V. If applicable law limits the application of the provisions of Article IV Section D, each party's liability will be limited to the maximum extent permissible.
Each party (“Indemnitor”) agrees to defend, indemnify, and hold harmless (collectively “indemnify” or “indemnification”) the other party (“Indemnitee”), including Indemnitee's officers, directors, shareholders, and employees (collectively “Related Persons”), from and against, and pay or reimburse Indemnitee and such Related Persons for, any and all third-party actions, claims, demands, proceedings, investigations, inquiries (collectively, “Claims”), and any and all liabilities, obligations, fines, deficiencies, costs, expenses, royalties, losses, and damages (including reasonable outside counsel fees and expenses) associated with such Claims, to the extent that such Claim(s) arises out of (1) Indemnitor's material breach of this Agreement or (2) any allegation(s) that Indemnitor's actions (or in the case of Customer, the actions of any Authorized User) (a) infringe or violate any third-party intellectual property right, including without limitation, any U.S. copyright, patent, or trademark; (b) violate publicity, privacy, or other similar rights of third parties; or (c) are otherwise found to be tortious or criminal (whether or not such indemnified person is a named party in a legal proceeding). For purposes of Article V, “third party” means a person or entity wholly unrelated to Indemnitee or any Affiliate thereof and does not include any Affiliate or assignee of Indemnitee or any other person or entity under the control of or acting in concert with Indemnitee, whether directly or indirectly.
Indemnitee shall promptly notify Indemnitor of any Claim(s) for which indemnification is sought following actual knowledge of such Claim(s), provided however, that the failure to give such notice shall not relieve Indemnitor of its obligations hereunder except to the extent that Indemnitor is materially prejudiced by such failure. In the event that any third-party Claim(s) is brought, Indemnitor may undertake and control the defense of such action with counsel of its choice, provided that (1) Indemnitee at its own expense may participate and appear on an equal footing with Indemnitor in the defense of any such Claim(s), (2) Indemnitee may undertake and control such defense in the event of the material failure of Indemnitor to undertake and control the same, and (3) the defense of any Claim(s) relating to the intellectual property rights of GatherAct or its licensors and any related counterclaims shall be solely controlled by GatherAct with counsel of its choice. Indemnitee shall not consent to judgment or concede or settle or compromise any Claim(s) without the prior written approval of Indemnitor (which approval shall not be unreasonably withheld) unless such concession or settlement or compromise includes a full and unconditional release of Indemnitor and any applicable Related Persons from all liabilities in respect of such Claim(s).
In the event that GatherAct's right to provide access to the GatherAct Platform is enjoined or in GatherAct's reasonable opinion is likely to be enjoined, GatherAct may obtain the right to continue providing access to the GatherAct Platform, replace or modify it so that it becomes non-infringing, or, if such remedies are not reasonably available, either party may terminate this Agreement, in which case GatherAct shall pay to Customer a prorated refund of any amounts prepaid by Customer for any use of GatherAct Platform or unperformed Services resulting from termination under Article V. In the event GatherAct must terminate this Agreement under Article V, GatherAct shall provide Customer with as much written notice as reasonably practicable prior to the effective date of such termination.
This Agreement continues in effect until terminated by either of the parties pursuant to this Article VI. If notice of non-renewal is not provided prior to the expiration of the Subscription Term and the parties have not agreed to a renewal in writing, the Agreement will automatically renew for the same duration and pricing (exclusive of discounts).
Either party may at any time terminate this Agreement upon thirty (30) days' prior written notice.
Either party may terminate this Agreement for the other party's material breach and failure to cure such breach within thirty (30) days of receipt of written notice. If Customer terminates under this Article VI Section C, GatherAct shall pay to Customer a prorated refund of amounts prepaid by Customer for unperformed Subscriptions or Services resulting from Customer's termination. In the event of a breach or an alleged breach of Section 1(B), GatherAct may suspend service to the Platform immediately, and/or may terminate service to the Platform and this Agreement upon 48 hours' notice.
Upon termination, unless the parties otherwise agree in writing, the following will apply: (1) all license, usage and access rights granted to Customer shall terminate, and Customer shall cease all access and use of the GatherAct Platform, GatherAct Apps, Services, Documentation; and (2) each party shall return to the other any and all Confidential Information of the other party. Excluding data retention required under applicable law and a single archival copy, GatherAct shall delete Customer Data within sixty (60) days following the date of termination. Upon Customer's written request, GatherAct shall provide written confirmation of deletion or destruction. Except as otherwise expressly provided in this Agreement, Customer remains liable for Subscription Fees and is not entitled to any refunds of prepaid Subscription Fees in connection with any termination. Articles III through VII and any other provision which by its nature should survive expiration or termination of this Agreement shall survive expiration or termination.
Neither party may assign this Agreement or any of its rights or obligations thereunder without the prior written consent of the other party which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Except to the extent prohibited by this Article VII Section A, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.
Notices pursuant to this Agreement must be in writing and are considered delivered upon (1) personal delivery, (2) three days following mailing when sent by commercial carrier, return receipt requested, or (3) upon actual receipt if sent by email. Notices will be sent to the address set forth in the signature block below or such new address as either party may specify by written notice.
This Agreement, any purchase order exchanged between Customer and GatherAct, and any legal proceeding arising from or related to any purchase order or this Agreement will be governed solely by the internal laws of the State of Delaware including without limitation applicable federal law, without reference to (1) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (2) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (3) other international laws unless otherwise agreed in writing. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Multnomah County, Oregon, waive any objection to jurisdiction or venue in such courts, waive any claim that such forum is an inconvenient forum, and waive the right to a trial by jury.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement is non-exclusive; Customer is free to use similar software and services, and GatherAct is free to market the GatherAct Platform and Services to others.
Except for the rights of Related Persons under Article V (Indemnification), there are no third-party beneficiaries to this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and each of which together shall constitute a single instrument.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Neither party shall be liable for any delay or failure in its performance of this Agreement to the extent such delay or failure is caused by conditions beyond such party's reasonable control. Such conditions include, but are not limited to, natural disasters, acts of government, power failure, fire, flood, widespread internet failure, and acts of war.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.