Updated as of February 12, 2020
GIFgram (“GIFgram”, “We”, “us”, “our”) provides and makes available the GIFgram mobile application (“App”) and affiliated products or services (collectively, “Services” or “Service”), subject to the Terms of Service (“Terms”, “Agreement”, “TOS”, “TOU”). These Terms create a contractual agreement between you (“user,” “you,” “your”, “Customer”) and GIFgram regarding your use of the Services. Please note that GIFgram may update, modify, or amend the Terms from time to time as GIFgram deems necessary, in its sole discretion, and without prior written notice to you. Such modifications, alterations, and updates to the Terms shall be effective immediately upon email notification to you or upon posting within the App. You agree to be bound by such modified, altered and updated terms if you access or use the Services after GIFgram has posted notice of modifications, alterations or updates.
DO NOT USE THE SERVCIES IF YOU DO NOT AGREE WITH THESE TERMS.
License. GIFgram grants You a non-exclusive, non-transferable, limited revocable license to use the Service and make its features and functions available to You solely for its intended purpose as described herein and as permitted by these Terms, to enable Users to create User Content (defined herein), and post, distribute, or otherwise transmit such User Content to, through or from the Service and Your account with GIFgram. “User Content” means pictures, images, photographs, videos, text, audio, code, reviews, responses, profile entries, posts, questions or any other content or data, regardless of form, which You post, upload, download, distribute, or otherwise transmit to, through or from the Service or create, in whole or in part, using the Service. User Content does not include any component or element of the Service itself, nor any of the foregoing items created by GIFgram.
User IDs and Logins. You are responsible and liable for all access to and use of the Service through any user login or other ID and password used by You to access the Service (collectively, “Access Credentials”). You shall notify GIFgram immediately (via email at support@GIFgram.co) of any unauthorized use of any Access Credentials, or any other actual or suspected breach of security related to the Service of which You become aware. All Access Credentials are and shall remain the property of GIFgram, are hereby assigned to GIFgram and constitute confidential information of GIFgram, which must be safeguarded as such.
Children’s Privacy and Parental Consent. The Service, including the GIFgram App, may not be used by any person or User under thirteen (13) years old. If you reside in the United States, You agree to use reasonable means to verify that any User is at least 13 years old before permitting any such User to use or access the Service, including the GIFgram App. Any User under the age of 18 in the United States must have his or her parent or guardian’s consent to such use and to these Terms. If You reside in or operate Your organization in a jurisdiction that would restrict the use of the Service or the App or any other feature or function of the Service because of the age of the User, You must abide by such age limits, rules, laws or regulations and You must not permit use of the Service by any Users legally prohibited from using it in that jurisdiction.
Suspension of Access. GIFgram may immediately suspend or disable Your access to and use of the Service or Website if, as a result of Your use of the Service or breach of this Agreement, GIFgram reasonably believes: (a) GIFgram is likely to be subject or exposed to criminal or civil sanctions, prosecution or suit; (b) such use or breach is likely to cause harm to GIFgram or GIFgram’s other customers or their respective employees or interfere with the integrity, operations or security of the Service; or (c) GIFgram’s network or systems or those with which GIFgram is interconnected, or interfere with another customer’s use of any of the foregoing. GIFgram may also suspend or disable Your access to and use of the Service if required in order to comply with a court order or government notice. In the exercise by GIFgram of its right to act immediately under this paragraph, GIFgram shall provide such advance notice as is reasonably practicable under the circumstances. If advance notice is not reasonably practicable, GIFgram shall provide subsequent notice promptly thereafter. You shall promptly cooperate with GIFgram in attempting to resolve the issue giving rise to any suspension or disablement of Your access to and use of the Service. The foregoing shall be in addition to the termination rights of either Party hereunder.
GIFgram Does Not Review and Has No Responsibility For User Content. GIFgram is a service provider to You enabling You to make the Service available to Your Users. You agree that any use by You and/or or Your Users of any User Content, either within the Service or outside of the Service, is entirely at Your and Your Users’ own risk and GIFgram shall have no responsibility or liability for such use. GIFgram is not responsible or liable to You or any third party with regard to any information or material or data, including video, audio or other content, contained within User Content, nor for violation or infringement of intellectual property rights, privacy rights or other legal rights, nor for Your Users’ failure to obtain model releases, property releases, or any other required waiver or release, nor for any other violation of law related to User Content or its subject matter, whether posted or distributed by Your Users or other users of the Service. GIFgram has no responsibility to review or filter User Content and cannot reasonably do so. GIFgram is not the publisher of User Content. As between You and GIFgram, You and Your Users have responsibility and liability for User Content and for ensuring that User Content does not violate GIFgram’s AUP set forth below. Because GIFgram will not and cannot review User Content, it is possible the Service may contain User Content that violates the AUP, is offensive or objectionable, contains errors, violates intellectual property, privacy, publicity or other rights of third parties, or is harmful to Your or Your Users’ Devices, computers or network. Your and Your Users’ use of User Content is entirely at Your and their own risk, and GIFgram disclaims any and all representations, warranties and liability with respect to User Content. You are responsible for implementing safeguards and taking precautions necessary to protect Your organization, Devices, computers and networks from any possible harm resulting from access to User Content. You agree to indemnify, defend and hold harmless GIFgram and Sponsor with respect to any claims with respect to User Content and/or Your use of User Content or any other content, and to provide the indemnity set forth below. In the event of any inconsistency or conflict between these Terms and Your User Agreement, with regard to the Service and User Content, and GIFgram’s liability, these Terms shall govern to the extent of such inconsistency or conflict.
If you invite other Users to use the Service or Website, you agree that the other Users have consented to their email being displayed on our Service or Website and that their email can be viewed by other Users.
Changes to the Service. As a multi-tenant SaaS vendor, GIFgram reserves the right to make enhancements and other changes to the Service, including occasional reduction or removal of certain features and functionality.
Non-Production Usage. From time to time, GIFgram may make portions of the Service available for evaluation, demonstration, testing or other purposes where such use is outside a production environment (whether by using an API sandbox or some other non-production service environment). By using the Service on such a non-production basis, You accept the Service on an “as is” basis and acknowledges that GIFgram provides no express or implied warranties, indemnities or security-related or other commitments, and will have no liability, in connection with such use. GIFgram will make commercially reasonable efforts to notify You via email, at least thirty (30) days in advance of any scheduled changes GIFgram believes are likely to have a material, adverse impact on Your use of the Service.
You agree that the Service contains content, information and material proprietary to GIFgram and/or its licensors that is protected by applicable intellectual property laws and other laws, including copyright laws, as more fully described below and that You will not use the Service except in accordance with this Agreement and as permitted by its included functionality. No portion of the Service may be reproduced in any form or by any means. You agree not to decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any part thereof, or rent, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, nor use or exploit the Service in any unauthorized way, whether by trespass, “data mining,” “data scraping,” unduly burdening network capacity, or in any other manner outlined in the “Prohibited Uses” section below or otherwise in violation of this Agreement. You further agree that neither You nor Your Users will use the Service for framing or linking to other websites or locations on the Internet, without GIFgram’s prior written consent, nor attempt to circumvent or defeat the Service’s security features or hack into parts of the Service that are not expressly authorized for You or a User.
Prohibited Uses. You may not use the Service, nor permit any User to use the Service, to create, upload, store, process, display, transmit or distribute material, information or User Content:
- that infringes or misappropriates a third party’s intellectual property or proprietary rights, including patents, copyrights, trade secrets and trademarks;
- that discloses confidential or trade secret information or materials in breach of a legal obligation not to disclose such information or materials;
- that violates or encourages conduct that would violate any applicable laws, including any criminal laws, or any third party rights, including confidentiality, publicity or privacy rights;
- that constitutes Protected Health Information (PHI) under the U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA), and its associated rules and regulations;
- that is obscene or excessively profane;
- that may be harmful to minors;
- that promotes or advocates hatred or violence, or promotes or encourages discrimination against or intolerance of any person or group based on race, ethnicity, religion, sex, sexual orientation or on any other basis which would constitute a violation of law;
- that advocates or provides instructions regarding computer hacking or cracking;
- that advocates or provides instructions for use of illegal weapons or weapons of mass destruction;
- intended to recruit individuals to join a terrorist organization or which otherwise furthers the agenda of a terrorist organization;
- related to phishing or other methods of identity theft;
- related to drug paraphernalia;
- related to or consisting of illegal or malicious malware such as viruses, worms, time bombs, trojan horses and other harmful or malicious files, scripts, agents or programs;
- that is false and defamatory;
- material or information constituting “fake news,” i.e., information of public interest depicted to be actual or true but known to be false, or which should reasonably be known to be false, for political or other purposes, except for satire; or
- unsolicited commercial email (spam), including: (i) sending communications or email in violation of the CAN-SPAM Act or any other applicable anti-spam law or regulation; (ii) spoofing, imitating or impersonating GIFgram, another person or his, her or its email address, or creating false accounts for the purpose of sending spam; (iii) data mining, scraping or harvesting any web property (including any part of the Service) to find email addresses or other user account information; (iv) sending unauthorized email via open, third-party servers; (v) sending email to users who have requested to be removed from a mailing list; (vi) selling to, exchanging with, sharing with or distributing to a third party personal data, including the email addresses of any person without such person’s knowing and continued consent to such disclosure; or (vii) sending spam to significant numbers of email addresses belonging to individuals and/or entities with whom You have no preexisting relationship.
Any violations of the above will constitute a material breach of the Agreement and may result in termination of this Agreement or suspension of Your account and/or termination or suspension of access to the Service by any User involved in such violation.
Privacy and User Data
You agree to implement reasonable and appropriate technical and organizational safeguards and security measures in accordance with EU Directive 95/46/EC and all other laws and regulations of the European Union, the European Economic Area and their member states, and the laws of the U.S., including, but not limited to, the California Consumer Privacy Act, and the Children’s Online Privacy Protection Act, applicable to the processing of personal data (collectively, “Applicable Privacy Laws”) and consistent with prevailing information technology data security and privacy standards to minimize the risk of accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access to the User Content therein.
By GIFgram. GIFgram represents and warrants, solely for Your benefit, that it has the full right and authority to enter into this Agreement and owns all rights, title and interest in and to the Service, or has the right to make the Service available to You.
By You. You represent and warrant:
- You have the full right and authority to enter into this Agreement and that You will comply with all applicable laws and regulations;
- You: (a) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (b) are not listed on any U.S. Government list of prohibited or restricted parties; and (c) will not make the Service or the GIFgram App available to any User regarding whom the representations and warranties stated in (a) and (b) cannot truthfully be made;
- You either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant GIFgram the license to the User Content as set forth below; and
- Neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor GIFgram’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You will pay all royalties, fees, damages, expenses and any other monies resulting from any of the foregoing acts or omissions associated with the User Content and/or Your use of the Service.
Exceptions. GIFgram’s warranties do not apply: (a) if You are or were in breach of this Agreement at the time the claim for breach of warranty was made; (b) with regard to any element of the Service which has been altered, misused or damaged in any way by You; or (c) if the claimed breach is caused by changes in, or modifications to, the operating characteristics of any Device or computer hardware or software within Your computing environment or which occur as a result of the use of the Service in conjunction with incompatible Devices, hardware or software.
You must report any alleged breach of warranty to GIFgram in writing and in reasonable detail within the warranty period (if any). In all cases where GIFgram terminates this Agreement pursuant to this paragraph, GIFgram’s refund obligations shall be contingent upon receipt from You of certification that You have deleted all copies of the GIFgram App on all Devices in Your possession or control. Termination by GIFgram under this paragraph shall not relieve You of Your obligation to pay any fees owed to GIFgram for the period prior to the effective date of termination.
No Other Warranties. EXCEPT TO THE EXTENT EXPRESSLY STATED IN THIS AGREEMENT: (A) GIFGRAM AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, OR ANY MATTER WHATSOEVER; AND (B) GIFGRAM AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE IS OR WILL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. GIFGRAM AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY GIFGRAM. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. GIFGRAM IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY GIFGRAM. CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES.
OWNERSHIP AND LICENSES
Of User Content. As between You and GIFgram, for purposes of this Agreement, You shall be considered the owner of all rights, title, and interest in and to User Content. However, by providing User Content to GIFgram, you grant GIFgram a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and GIFgram’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
Of the Service. The Service, including the GIFgram App and all computer software in source code, object code or other form, databases, indexing, search, and retrieval methods and routines, hypertext markup language code, active server pages, intranet pages, and similar materials, and all intellectual property and other rights, title, and interest therein, including copyrights, trade secrets, rights in patents, compilations, inventions, modifications, updates, extensions, enhancements, configurations, derivative works, discoveries, improvements, processes, methods, designs and know-how, whether or not copyrightable or patentable, pertaining to any of the foregoing (all of which shall be deemed part of the Service), whether conceived by GIFgram alone or in conjunction with others (collectively, “GIFgram IP”), constitute GIFgram trade secrets and confidential information and the valuable intellectual property and proprietary material of GIFgram and/or its licensors and are protected by applicable intellectual property laws of the United States and other countries. Except for the rights expressly granted to You in this Agreement, all rights in the Service and all GIFgram IP are and shall remain solely owned by GIFgram and its respective licensors and are hereby assigned to GIFgram. GIFgram retains the right to use and provide software and products (hosted or otherwise), work product, and all other GIFgram IP, which may be similar to those provided to You hereunder, and to use for itself or others any knowledge, skills, experience, ideas, concepts, know-how and techniques used or gained in the performance of Services or the development of work product or GIFgram IP or which may be embodied or reflected therein. GIFgram reserves all rights not expressly granted to You in this Agreement.
You understand that use of the Services may result in charges to you for the services or goods you receive (“Charges”). GIFgram will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services.
All Charges and payments will be enabled by GIFgram using the preferred payment method designated in your account, after which you will receive a receipt by email. If your primary account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that GIFgram may use a secondary payment method in your account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by GIFgram.
As between you and GIFgram, GIFgram reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in GIFgram’s sole discretion.
COMPLIANCE. GIFgram shall have the right to access your account and other technical implementations of the Service and User Content associated with your account (“Your Account”) during the normal course of this Agreement as necessary to make the Service available to You and to perform administrative assistance, support, maintenance and other activities. In addition, during the term of this Agreement and for one (1) year thereafter, GIFgram (itself or in conjunction with independent auditors retained by it and subject to obligations of confidentiality) shall have the right to examine Your Account and other records and information relating to Your use of the Service, in order to confirm Your compliance with this Agreement. GIFgram shall not in the conduct of its examination unreasonably interfere with Your business operations. If this examination reveals that You have used the Service in violation of this Agreement, such conduct shall be considered a material breach of this Agreement, which You shall immediately cure (if capable of cure) upon notice from GIFgram. If You are unable to do so, GIFgram may terminate this Agreement upon notice without further opportunity to cure, notwithstanding the Termination Section, invoice You for any fees due as a result of such material breach or unauthorized use of the Service based upon GIFgram’s standard fees in effect at the time the examination is completed. If the amount of unpaid fees exceeds five percent (5%) of the amount actually owed, You shall also pay GIFgram’s reasonable costs of conducting the examination.
TERM AND TERMINATION
Term. The term of this Agreement shall commence on the date the terms were last updated and shall continue in full force and effect unless and until terminated by either you or us.
Termination. You may terminate these Terms at any time by notifying us that you no longer wish to use the Service or by ceasing to use the Service or by deleting the App.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms, we may terminate this Agreement at any time without notice and accordingly may deny you access to the Service, your Account or any part thereof.
Effects of Termination. Upon termination of this Agreement, all rights and licenses granted hereunder with regard to the Service and otherwise shall terminate immediately. Immediately upon such termination, You shall: (a) cease all use of the Service; and (b) return to GIFgram or destroy and permanently delete all copies of any Confidential Information (defined below) of GIFgram, including any elements of the Service on any computer or storage media in your possession or under your control. Termination of this Agreement shall not relieve You of any unmet payment obligations.
Survival. Upon termination or expiration of this Agreement for any reason, the following Sections shall continue and survive in full force and effect: No Other Warranties, Ownership, Payment, Compliance, Effects of Termination, Survival, Confidentiality, Limited Liability, Indemnification by You, Access to Your Data After Termination or Expiration, and General Provisions, each to the extent of any limited survival period as may be expressly set forth therein, in addition to such provisions which by their nature are intended to survive termination or expiration of this Agreement.
General. Effective retroactive to the date a Party first disclosed Confidential Information to the other, each Party (“recipient”) will hold in confidence and, without the consent of the other Party (“disclosing Party”), will not use, reproduce, distribute, transmit, or disclose, directly or indirectly, the Confidential Information of the disclosing Party except as expressly permitted hereunder. “Confidential Information” means: (a) information of a Party in all forms which derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, including these Terms, as well as business and marketing plans, technology and technical information, and product plans and designs, and business processes disclosed by such Party; as well as (b) other information that is provided to or obtained by one Party and that is valuable to the other Party and not generally known by the public, in each Party’s case as to (a) and (b), whether disclosed 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 surrounding disclosure. Under any circumstances, even if not marked as such, in the case of GIFgram, Confidential Information includes the non-public-facing elements of the Service, Documentation, GIFgram IP and all elements and components and elements thereof, regardless of form, each of which consist of and comprise trade secrets of GIFgram. Confidential Information does not include User Content. The recipient of Confidential Information may only disclose the Confidential Information to its employees, agents and independent contractors with a need to know the information in connection with the performance of this Agreement, provided that any such employees, agents and independent contractors shall first be subject to written obligations of confidentiality to protect Confidential Information in a manner consistent with this Agreement and the recipient shall be responsible to the disclosing Party for any damages for unauthorized use, disclosure, duplication or other misuse of the Confidential Information resulting from its possession by a third party. Without limiting the foregoing, the recipient of the Confidential Information agrees that it will exercise at least the same standard of care in protecting the confidentiality of the disclosing Party’s Confidential Information as it does with its own Confidential Information of a similar nature, but no less than a reasonable degree of care. User Content shall not constitute Confidential Information and GIFgram shall not be liable for breach of its obligations of confidentiality hereunder resulting from unauthorized intrusion into, disclosure of or access to the Service or User Content, or any security breach affecting User Content.
Exceptions. Except with respect to the Service and all components and elements thereof which shall remain Confidential Information of GIFgram, Confidential Information shall not include information if and only to the extent that the recipient establishes that the information: (a) is or has become a part of the public Service through no act or omission of the recipient; (b) was in the recipient’s lawful possession prior to the disclosure and had not been obtained by the recipient either directly or indirectly from the disclosing Party; (c) was lawfully disclosed to the recipient by a third party without restriction on disclosure; or (d) was independently developed by the recipient without reference to the disclosing Party’s Confidential Information. If required by a lawful, validly issued subpoena, order of a court of competent jurisdiction, or request for information from a governmental agency, the recipient may disclose only that part of the Confidential Information of the disclosing Party which it is legally required to disclose, in the opinion of the recipient’s legal counsel, and shall notify the disclosing Party prior to such disclosure in order to provide the disclosing Party an opportunity to seek an appropriate protective order or other judicial relief to prevent such disclosure. Notwithstanding the foregoing, the recipient shall cooperate (at the disclosing Party’s expense) in all efforts of the disclosing Party to prevent disclosure of the disclosing Party’s Confidential Information. A copyright notice on the Service or any part thereof or on other materials shall not be deemed evidence of publication or public disclosure.
Representatives. Notwithstanding the foregoing, either Party may disclose Confidential Information of the other Party to its third party legal or financial advisors under existing legal obligations of confidentiality or in connection with litigation or other dispute resolution attempts between the Parties. To the extent any such recipient may not be under an existing legal obligation of confidentiality, such recipient shall sign an appropriate form of confidentiality agreement containing obligations of confidentiality substantially the same as those set forth herein.
Remedy. Both Parties acknowledge that any use or disclosure of the other Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the other Party irreparable damage for which remedies other than injunctive relief may be inadequate, and each Party agrees that the other Party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies.
Term. Each Party’s obligations under this Section shall survive the termination of this Agreement for a period of ten (10) years, except with respect to trade secrets of a Party, in which case such obligations with respect to Confidential Information constituting a trade secret shall survive the termination of this Agreement for a period of ten (10) years thereafter plus such additional period of time as such trade secret remains a trade secret under applicable law.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY, FOR ANY AND ALL CLAIMS, OF GIFGRAM, ITS AFFILIATES, SUBSIDIARIES, PARENT AND ANY OF THEIR RESPECTIVE LICENSORS, SUBCONTRACTORS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, OR RESELLERS, UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY AND ALL CLAIMS OR LIABILITIES, BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, WHETHER RELATING TO THE SERVICE OR ANY PART THEREOF, INCLUDING SUPPORT, MAINTENANCE OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF APPLICABLE FEES PAID TO GIFGRAM UNDER THE APPLICABLE ORDER FORM RELATED TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE ACT, OMISSION OR OCCURRENCE PRIMARILY GIVING RISE TO SUCH LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL GIFGRAM, ITS AFFILIATES, SUBSIDIARIES, PARENT AND ANY OF THEIR RESPECTIVE LICENSORS, SUBCONTRACTORS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, OR RESELLERS, UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY AND ALL CLAIMS OR LIABILITIES, BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, WHETHER RELATING TO THE SERVICE OR ANY PART THEREOF, INCLUDING SUPPORT, MAINTENANCE OR OTHERWISE, BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING RESULTING FROM UNAUTHORIZED ACCESS TO, OR THE ALTERATION, DELETION, DESTRUCTION, DAMAGE, LOSS, DISCLOSURE, UNAVAILABILITY OR FAILURE TO STORE USER CONTENT OR OTHER DATA OR USER CONTENT, NOR FROM DELAYS, LOSS OF PROFIT, INTERRUPTION OF SERVICE OR INABILITY TO ACCESS OR USE THE SERVICE OR ANY PORTION THEREOF, INCLUDING CESSATION OR MODIFICATION OF ANY ASPECT OF THE SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, BASED ON ANY THEORY OF LIABILITY, WHETHER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF GIFGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY OF ITS ESSENTIAL PURPOSE.
THE PROVISIONS OF THIS SECTION ARE FUNDAMENTAL AND SPECIFIC REQUIREMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND GIFGRAM AND GIFGRAM WOULD NOT BE ABLE TO ENTER INTO THIS AGREEMENT WITHOUT SUCH PROVISIONS.
Infringement by GIFgram. GIFgram shall defend, indemnify, and hold You harmless from and against any claims, actions, and other proceedings, and shall pay all losses, damages, liabilities, settlements, judgments, awards, interest, civil penalties, and reasonable expenses (collectively, “Losses,” and including reasonable attorneys’ fees and court costs), to the extent arising out of any claims (each, a “Claim”) by any third party that the Service (excluding any User Content, and other material provided by You) infringes upon any U.S. copyright or U.S. patent granted as of the date of last revision of Terms. In the event of such a Claim, GIFgram may, in its discretion, either procure the right to enable You to continue to use the allegedly infringing item or develop or obtain a non-infringing substitute of substantially equivalent functionality and performance. If GIFgram determines that neither of the foregoing options is commercially reasonable or practicable, then, notwithstanding anything to the contrary elsewhere in this Agreement, GIFgram may immediately terminate this Agreement. Notwithstanding the foregoing, GIFgram shall have no obligation to indemnify, defend, or hold You harmless from any Claim to the extent that it is based upon: (a) a modification by You (or by anyone under Your direction or control or using user IDs or passwords associated with Your Account) to the Service, including the GIFgram App; (b) a modification made to the Service, including the GIFgram App, by GIFgram pursuant to Your order or specification or in reliance on materials or information provided by You; or (c) use by You or (or by anyone under Your direction or control or using user IDs or passwords associated with Your Account) of the Service, including the GIFgram App, or the results thereof, other than in accordance with this Agreement, or in the event You are in breach of this Agreement or any User is in violation of any obligation owed to GIFgram with regard to the Service. Subject to the Limited Liability Section, this Section sets forth Your sole and exclusive remedy, and GIFgram’s entire liability, for any Claim.
Indemnification by You. Except for Claims subject to indemnification under the previous section, You shall defend, indemnify, and hold GIFgram, its affiliates, subsidiaries, parent and any of their respective licensors, subcontractors, directors, managers, employees, agents, distributors, marketing partners, or resellers, its employees and subcontractors (the “GIFgram Indemnitees”) harmless from and against all Claims, and shall pay all Losses, to the extent arising out of or related to: (a) Your use or modification of the Service or any part thereof; (b) the violation of any rights of any third party in connection with Your use of the Service or any part thereof; (c) the User Content; (d) any act or omission by You; (e) any breach by you of this Agreement, including any breach by you of any covenant, representation or warranty made by you; and/or (f) Your violation of any laws, rules or regulations applicable to Your use of the Service. This indemnification obligation shall survive any termination of this Agreement.
Defense. With regard to any Claim subject to indemnification pursuant to this Section, the indemnified Party shall grant the indemnifying Party the right to assume full defense and control of such Claim and shall reasonably cooperate with the indemnifying Party regarding such Claim. Nevertheless, the indemnified Party may reasonably participate in such defense, at its sole expense, but shall not settle any such Claim without the indemnifying Party’s prior written consent. The indemnifying Party shall not settle or compromise any Claim in a manner other than the payment of monies by the indemnifying Party without the prior written consent of the indemnified Party, such consent not to be unreasonably withheld or delayed.
ACCESS TO YOUR DATA AFTER TERMINATION OR EXPIRATION. For a period of thirty (30) days after the date of termination or expiration of this Agreement, GIFgram shall make available to You within a reasonable time after Your request within such period, a copy of User Content for download or export as it exists on the date of termination or expiration of this Agreement. Thereafter, GIFgram shall have no obligation to preserve, maintain, store or make User Content available and may delete or destroy User Content and all copies on its systems or otherwise in its possession or control, except to the extent prohibited by law.
Assignment. Neither Party may assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder, either voluntarily or by operation of law, without the prior written consent of the other Party (such consent not to be unreasonably withheld); provided, however, that either Party may assign this Agreement without the other Party’s consent in the event of a sale of all or substantially all of its assets or in the event of a merger, corporate reorganization or business consolidation of the Party (but excluding any assignment by You to a competitor of GIFgram or any of its Affiliates.). For avoidance of doubt, in the event of a permitted assignment by You of this Agreement, Your account and payment obligations hereunder would continue to be subject to the restrictions and limitations specified herein, including any limits focused on a specific business line, group, division or department of You. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
Compliance with Laws. Unless expressly stated herein, You shall not use or export (electronically or otherwise) the Service or any component thereof outside of the U.S. other than in compliance with all applicable U.S. export laws, rules, and regulations. You shall be solely responsible for such compliance. You agree to keep such books and records and to take such other actions as may be required by such applicable laws, rules and regulations.
No Waiver. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach.
Notices. All notices under this Agreement shall be in writing. Notices to GIFgram may be sent electronically to:
support@GIFgram.co. Except as explicitly stated otherwise, legal notices will be served, with respect to GIFgram, on GIFgram’s national registered agent, and, with respect to You, to the email address you provide to GIFgram during the registration process. Notice will be deemed given 24 hours after the email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice will be deemed given three days after the date of mailing.
Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
Force Majeure. Except for payment obligations hereunder, and notwithstanding anything in this Agreement to the contrary, neither Party will be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting from causes beyond the Party’s reasonable control, including the acts or omissions of third parties, the acts or omissions of the other Party or any delay or failure of the other Party to fulfill its obligations hereunder, acts of God, terrorism, war, civil insurrection, strikes or other organized labor interruption, communications, mechanical, electronic, Internet or other utility interruptions or failures, including denial of service and other cyber-attacks or unauthorized or malicious data or system intrusions, including computer viruses or other malicious code, fire, explosions, floods or other natural disasters, or any similar cause.
Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without reference to its choice of law rules and as if wholly performed within Illinois. Any judicial action or proceeding between the Parties relating to this Agreement must be brought in the federal or state courts located in Cook County, Illinois. Each Party consents to the jurisdiction of such courts, agrees to accept service of process by mail, and hereby waives all jurisdictional and venue defenses otherwise available to it.
Complete Agreement. This Agreement supersedes in full all prior discussions and agreements, oral and written, between the Parties relating to the subject matter hereof, and constitutes the entire understanding of the Parties. No additional terms proposed by You, whether electronically or otherwise or associated with any purchase order or other document You send to GIFgram, shall be applicable to this Agreement or any GIFgram products or services at present or in the future, absent the express manual written consent thereto by GIFgram.
No Third Party Benefit. The provisions of this Agreement are for the sole benefit of the Parties hereto, and this Agreement neither confers any rights, benefits, or claims upon any person or entity not a Party hereto nor precludes any actions against, or rights of recovery from, any persons or entities not Parties hereto.
Dispute Resolution. In the event of any dispute between the Parties, prior to any Party commencing an action in court for damages, each Party shall meet in person or by phone in a good-faith attempt to resolve their differences. In the event that the Parties are unable to resolve their dispute in such meeting or such meeting does not occur within thirty (30) days of the initial notice being provided by the complaining Party, then either Party shall be free to pursue other available judicial remedies at law. Notwithstanding the foregoing, this paragraph shall not prevent or delay a Party from seeking any legal and/or equitable remedies available to such Party.
Feedback. During the course of this Agreement or otherwise, You may provide, or GIFgram may solicit, input regarding the Service, including comments, feedback or suggestions regarding the possible creation, modification, configuration, correction, improvement or enhancement of the Service, GIFgram’s website, or any of GIFgram’s or GIFgram’s affiliates’ products or services, or their operation, functions or features (collectively, “Feedback”). Any information GIFgram discloses to You related to or in response to Feedback shall be protected as Confidential Information of GIFgram subject to the protections the Confidentiality Section. For the consideration provided to You in the form of the right to use the Service, You agree that GIFgram shall own all rights, title, and interest in and to the Feedback, even if You have designated the Feedback as confidential. GIFgram and its affiliates will be entitled to use the Feedback without restriction. You hereby irrevocably assign to GIFgram all rights, title, and interest in and to the Feedback and agree to provide GIFgram any reasonable assistance GIFgram may require to document, perfect, and maintain its rights in the Feedback.
Relationship of the Parties. For purposes of this Agreement, neither party is an agent of the other, and neither party has any express or implied authority to act on behalf of, or make any representations whatsoever on behalf of, the other. Each party is an independent contractor with respect to the other and neither party shall have the power or authority to bind the other party to any contract or obligation.
Terms Generally. The defined terms in this Agreement shall apply equally to both the singular and the plural forms of the terms defined. The term “person” includes individuals, corporations, partnerships, trusts, other legal entities, organizations and associations, and any government or governmental agency or authority. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “approval,” “consent” and “notice” shall be deemed to be preceded by the word “written.” The word “term” shall be deemed to refer to any term, condition or other type of provision under this Agreement. The word “will” shall be deemed synonymous with “shall” when referring to the acts or obligations of a Party. References to this Agreement in the context of any requirement of either Party to perform in accordance with this Agreement shall be interpreted to refer to the terms of this document, and such other terms as are contained in any Exhibit.
Construction. Each Party acknowledges that it has had the opportunity to have this Agreement reviewed by legal counsel and that the rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement or any other document executed and delivered by either Party in connection with the transactions contemplated by this Agreement. The captions in this Agreement are for convenience of reference only and shall not be used to interpret this Agreement.