END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN GEARO INC., with an address of 4704 NORTH HARLAN STREET, SUITE 101, DENVER, CO, 80212 (“GEARO”) AND YOU (AS A USER, DEFINED BELOW) REGARDING THE SERVICE (AS DEFINED BELOW).
BY DOWNLOADING, INSTALLING, ACCESSING, OR USING THE SERVICE, YOU EXPRESSLY (A) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY; AND (B) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND BE HELD LIABLE FOR ANY NONCOMPLIANCE WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ACCESS, OR USE THE SERVICE.
If YOU ARE an ADMINISTRATOR (AS DEFINED BELOW) entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), YOU ARE ENTERING INto this Agreement for that Entity and HEREBY represent to GEARO that YOU have the authority to bind such Entity and its affiliates to these Terms, in which case the term “USER,” “CUSTOMER,” OR “RETAILER” AS APPLICABLE AND as used herein will refer to such Entity and its affiliates.
THIS AGREEMENT ALSO INCLUDES A JURY TRIAL WAIVER.
a. “Administrator” means the User who has authority to administer a Retailer’s use of the Service and designate additional Users on the Retailer’s account.
b. “Customer” means a user, including an Administrator for an Entity-user, that rents and/or purchases Equipment from Retailers.
c. “Content” means any materials a User transmits, uploads, provides, submits, or posts to the Service and any information provided by a User to Gearo in connection with the Service, including User Data.
d. “Equipment” means any gear or Equipment made available by a Retailer for purchase or rent through the Service.
e. “Intellectual Property Rights” means all forms of industrial and intellectual property rights and protections throughout the world, including any: (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and re-examinations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations with respect thereto.
f. “Order” means the form or other communication evidencing the initial designation of Service by the Administrator and any subsequent orders to use the Service.
g. “Process” means to take any action or perform any operation or set of operations that the Service is capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy.
h. “Service” means, collectively, Gearo’s Equipment rental management and marketplace solution, and all materials (whether written, printed, electronic or in another format) that are supplied or made available by or on behalf of Gearo to Users that relate to or describe Gearo’s Equipment rental management and marketplace solution or outdoor rental and purchases generally.
i. “Release Form” means the release form maintained by the applicable Entity to be executed by the user of the Equipment.
j. “Retailer” means a retailer- or merchant-user of the Services, including the Administrator, that provides Equipment on the Services for Customers to rent or purchase.
k. “User” means any user of the Services, including Customers, Retailers, and any employee, consultant, third-party service provider or agent of such parties, such as the Administrator, who is authorized by such parties to use the Service and to whom such parties have supplied a user identification and password.
l. “User Data” means any of a User’s, User’s customers’, or other individuals’ personal data, other data, information, or material that a User Processes from customers or individuals and/or submits to Gearo in the course of using the Service.
Conditioned upon your compliance with the terms of this Agreement, Gearo grants you a personal, limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use the Service during the term of this Agreement, whether accessed via an Internet browser, smartphone, tablet, or other device, (a) solely in object code form, and (b) solely via a device that meets the minimum technical requirements necessary to run the Service (as determined by Gearo). Gearo, in its sole discretion, may make updates, upgrades, or other new releases of the Service available to you.
Gearo will employ reasonable measures to provide you with access to the Service. However, there will be occasions when the Service will be interrupted for maintenance, upgrades, emergency repairs, or due to the failure of telecommunications links or equipment or other circumstances that are beyond Gearo’s control. Gearo will take reasonable steps when possible to minimize such disruptions within Gearo’s control.
4. MODIFICATION OF SERVICE
Gearo may, in its sole discretion, change, modify, add, or remove portions, features, or functions from the Service, or suspend or discontinue the Service or any portion thereof (temporarily or permanently and whether pursuant to a modification of the Service or otherwise), without notice or liability to you or to any third party (except that, in the event of a complete discontinuation or scheduled suspension of the Service, Gearo will use reasonable efforts to provide you with actual notice – rather than merely constructive notice – as soon as commercially practicable under the circumstances). You agree that Gearo shall not be liable to you for any modification, suspension, or discontinuance of the Service or any features or functions thereof.
5. Separately Licensed Software
The Service may contain or require the use of open-source software, public-source software, “copyleft” software, shareware, freeware and similar software, and other third-party software or materials, which in each case is embedded in the Service or provided by Gearo in connection with the Service (“Separately Licensed Software”). Your use of Separately Licensed Software is governed by the separate license terms specified by Gearo. This Agreement does not apply to Separately Licensed Software and Gearo hereby disclaims all warranties with respect to any Separately Licensed Software and disclaims any liability to you or any third party based on any claims arising out of use of Separately Licensed Software. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any applicable Separately Licensed Software end user license agreement.
6. third-party services
If you provide any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service to Gearo, you agree that Gearo and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in connection with the Service, other related technologies and/or for any other purpose, on a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual basis. Gearo will not be obligated to implement any Feedback or correct any defects, bugs, or errors in the Service identified in the Feedback or otherwise.
9. PERMITTED USES AND RESTRICTIONS
You may use the Service solely for its intended purpose. Without limiting the immediately preceding sentence, you will not engage in, nor will advocate, encourage, request or assist any third party to engage in any of the following:
a. Submitting any false information, including:
i. submitting false information such as name, date of birth, payment information, or other personal information;
ii. impersonating any person or entity, or falsifying or otherwise misrepresenting yourself or your affiliation with any person or entity;
iii. offering, as a Retailer, any Equipment that you do not own or have the authority to rent or sell;
iv. submitting any listing with false or misleading information, or submitting any listing with a price that you do not intend to honor;
b. Failing to honor your commitments, including:
i. failing to pay your fees or other amounts owed to Gearo or another User;
ii. failing, as either Retailer or Customer, to timely deliver, make available, or return any gear;
iii. listing Equipment on the Services that is not covered by adequate insurance;
iv. using the Service to find a Retailer or Customer, and then completing a transaction to share or purchase Equipment partially or wholly independent of the Service to circumvent the obligation to pay any fees related to Gearo’s provision of the Service or for any other reason;
v. sharing your user name or password for the Service with any other individual or allowing any third party to access or use the Service (except that you are permitted to engage with other individuals who also hold a valid subscription to the Service);
c. Violating any applicable federal, state, or local laws, codes, rules, regulations, or orders of any governmental authority (“Law”), including:
i. using the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights;
ii. reverse engineering, disassembling, decompiling, decoding, or otherwise attempting to derive or gain access to the source code of the Service or any component thereof, in whole or in part, except as and only to the extent such restriction is permitted by Law;
d. Harming or threatening to harm users of our community, including:
i. engaging in any physical or verbally abusive or threatening conduct;
ii. harassing any other User or collecting or storing any personally identifiable information about any other User other than for purposes of transactions provided by the Service;
e. Interfering with the operation of the Service, including:
i. interfering with any other Retailer’s listings;
ii. using the Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses;
iii. disrupting the integrity or performance of the Service or third-party data contained therein;
f. Using the Service for your own unrelated purposes, including:
i. selling, reselling, licensing, sublicensing, distributing, renting, or leasing the Service, including the Service in a service bureau or outsourcing offering, or otherwise accessing or using the Service other than as expressly permitted hereunder;
ii. attempting to gain unauthorized access to the Service or its related systems or networks;
iii. copying the Service or any part, feature, function, or user interface thereof;
iv. modifying, correcting, adapting, translating, enhancing or otherwise preparing derivative works or improvements of the Service;
v. framing or mirroring any part of the Service, other than framing on your own intranet or otherwise for your own internal business purposes or as permitted in the documentation for the Service;
vi. accessing the Service to build a competitive product or service, or for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
vii. “harvesting” or collecting information from the Service (including information about other users of the Service or offerings, products or services available on the Service) using an automated software tool or manually on a mass basis;
viii. integrating or linking to any open source software or freeware with the Service,
ix. removing any proprietary notices, labels, or marks from the Service.
10. USER AND ADMINISTRATOR RESPONSIBILITIES
a. User Responsibilities. You are responsible for (a) Content submitted to the Service under your username and password; (b) treating your username and/or password as confidential, and not disclosing it to any third party; (c) ensuring that the computer or device on which you access the Service has the required minimum Internet bandwidth (upload and download) and is in compliance with any other minimum requirements set forth in the documentation for the Service; (d) the accuracy, quality, and legality of all Content and/or Equipment you submit to, or make available on, the Service and the means by which you acquired such Content and/or Equipment; (e) using commercially reasonable efforts to prevent unauthorized access to or use of the Service; (f) promptly notifying Gearo in the event of any unauthorized use of or access to the Service; and (g) providing reasonable assistance to Gearo in investigating and preventing the recurrence of such unauthorized use or access. To the extent that you offer Equipment to end users, you are responsible for ensuring that each end user has received and executed a Release Form prior to using such Equipment.
b. Administrator Responsibilities. The Administrator shall have the authority to manage the subscription to the Service and designate additional Users on behalf of an Entity. The Administrator will deactivate an active username if the Administrator wishes to terminate access to the Service for any User. The Administrator is responsible for: (i) all use of the Service by Users from the same Entity, and (ii) payment of all applicable fees. Additionally, Administrator agrees to provide Gearo with accurate billing and contact information, including Administrator’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Administrator agrees to update this information in writing to Gearo within 30 days of any change to it. If the contact information Administrator has provided is false or fraudulent, Gearo reserves the right to terminate Administrator’s access to the Service in addition to any other legal remedies.
11. RETAILER-Specific TERMS
The following terms apply to Retailers:
a. Orders. To subscribe to the Service, the Administrator must execute an Order (including by electronic means) and/or complete the online sign-up process for the Service. Each such Order is hereby incorporated into this Agreement.
b. Billing. Gearo shall charge fees for Retailer’s use of the Service in accordance with the applicable Order (the “Service Fees”). All payments will be made in U.S. dollars. The Service Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Administrator shall be responsible for payment of all such taxes, levies, or duties.
c. Late Payment. In addition to any other rights granted to Gearo herein, Gearo reserves the right, as applicable, to suspend or terminate this Agreement and Retailer’s access to the Service if Retailer’s account becomes delinquent and is uncured for a period of 30 days. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by Law, whichever is less, from the date due, plus all expenses of collection. Retailer will continue to be charged for Service Fees during any period of Service suspension.
d. Equipment Pricing; Refunds. You are solely responsible for setting the prices of any Equipment purchases or rentals. Once a Customer requests to rent, you may not request that the Guest pays a higher price than in the booking request. You are also solely responsible for any refund policy that enforce with your Customers.
e. Equipment Availability. Once Equipment is booked for a rental or purchased through the Service, you must make that Equipment available or deliver the Equipment as expected to the Customer.
f. Maintenance. You are required to regularly check your Equipment for any defects in its operation or safety. You promise that, at all times, your Equipment will be in safe and functional condition. You agree to respond to any applicable recall or similar safety notices and to complete any recommended action before allowing your Equipment to be booked or sold. In addition, if Gearo believes that your vehicle does not conform to reasonable standards, Gearo may notify you and reserves the right to remove or decline listing your Equipment until its concerns have been resolved. Gearo may, but does not commit to, undertake efforts to ensure the safety of Equipment booked through the Services.
g. Insurance. You are required to maintain adequate insurance policies to cover the use of your Equipment by any Customer (as determined by Gearo in its reasonable discretion).
12. CUSTOMER-Specific TERMS
The following terms apply to Customers:
a. Fees. You are responsible for paying all fees when they come due. You authorize Gearo to charge any payment methods or stored payment credentials associated with your account for all amounts due, including but not limited to, security deposits, processing fees, fees, fines/penalties, deductibles, and damages, and you furthermore represent and warrant that you have the right to make this authorization. You will be responsible for all of the costs relating to any citations and fines incurred during your use of the Service, including any rental periods. Any refunds shall be provided by a Retailer in accordance with such Retailer’s refund policy.
b. Use of Equipment. You must return the Equipment on time and in the correct location. You must also exercise reasonable care in your use of the Equipment and only use the Equipment in accordance with Law.
c. Condition of Equipment. You understand that Retailers own the Equipment offered through the Services, not Gearo. Each Retailer is responsible for maintaining its Equipment in a safe and functional condition. Please complete a visual inspection of the Equipment before using it. Gearo may provide a rating system on the Service that allows Users to review applicable Equipment. Such reviews are made by Users and not by Gearo, and Gearo shall bear no responsibility for such reviews and/or ratings.
13. TERM AND TERMINATION
This Agreement will remain in effect until (a) Gearo terminates your rights under this Agreement, which it may do immediately, without notice or liability, if you fail to comply with any term(s) of this Agreement; (b) the Administrator cancels the subscription; or (c) you, if using the Service as a Customer, discontinue your use of the Service, whichever occurs first. For security reasons, any termination in accordance with Section 13(b) shall be performed only by an Administrator by calling 919-931-1858 or emailing Gearo at [email protected]
You acknowledge that if you breach this Agreement, Gearo may have no adequate remedy at law, will suffer irreparable harm as a result of such a breach, and therefore will be entitled to injunctive relief without the obligation of posting a bond. Upon any termination of this Agreement, (x) you agree to immediately cease using the Service, and (y) your access to the Service will be automatically terminated, and your username and password will be removed. Following a period of no less than 30 days from the cancellation or termination of this Agreement, Gearo may delete or destroy all Content that you have uploaded, submitted, or entered into the Service, subject to requirements of Law. Upon the termination of this Agreement for any reason, each party will be released from all obligations to the other arising after the date of expiration or termination. Additionally, any provisions which by their nature should survive termination will survive, including use restrictions, indemnity obligations, warranty disclaimers, and limitations of liability, including Sections 5 to 8 and 15 to 34.
14. GENERAL USER REPRESENTATIONS, WARRANTIES, AND COVENANTS
You hereby represent, warrant, and covenant that (a) you have the requisite power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have all rights and licenses necessary with respect to your submission and the use of any Content in connection with the Service; (c) your submission and the use of any Content in connection with the Service will be in compliance with Law; and (d) you will not submit any Content to the Service that is unlawful, offensive, threatening, libelous, defamatory, obscene, or otherwise violates any third party’s rights, including intellectual property rights and/or privacy rights, or that violates this Agreement.
15. COLLECTION AND USE OF DATA AND OTHER INFORMATION
Gearo may (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use data from the Service in aggregated form to create statistical analyses, and for research and development purposes ((a) and (b) collectively, “Service Analyses”). Gearo may make Service Analyses publicly available and use Service Analyses for its business purposes; however, Service Analyses shall not incorporate Content in a form that could serve to identify any individual. Service Analyses do not constitute Content, and Gearo shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.
Gearo and any third-party vendors and hosting partners it utilizes to provide the Service shall hold Content in confidence and shall not use or disclose Content except (a) as required to perform their obligations under this Agreement; (b) in compliance with Section 17 of this Agreement; or (c) as otherwise authorized by you in writing.
17. RECORD RETENTION
During and after the term of this Agreement, Gearo may (a) collect, retain, and use any Content submitted to the Service, including usage history, in order to provide and administer the Service; however, Gearo is not responsible for maintaining such Content, except as required by Law; and (b) access, read, preserve, and disclose any Content submitted to the Service that Gearo reasonably believes is necessary to (i) satisfy any Law, legal process, or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to a support request; or (v) protect its rights, property or safety, and that of its users and the public.
As between you and Gearo, all title and Intellectual Property Rights in and to the Service are owned exclusively by Gearo. The Service is licensed to you; it is not sold to you. No title to or ownership of the Service, or any proprietary rights related to the Service, is transferred under or by virtue of this Agreement. Gearo reserves all rights in and to the Service not expressly granted to you under this Agreement. Further, this Agreement does not authorize you to use any name, trademark, or logo of Gearo. The Service is protected by copyright laws and treaties, as well as Laws related to other forms of Intellectual Property Rights.
As between the parties, you are the sole and exclusive owner of all right, title, and interest in and to all Content that you submit to the Service, including all Intellectual Property Rights therein and thereto, subject to the license granted herein to Gearo. You hereby grant to Gearo a nonexclusive, worldwide, transferable, sublicensable (to its subcontractors and service providers), irrevocable, royalty-free, fully paid-up license to Process the Content in order to provide the Service.
You agree to notify Gearo if you become aware of any incident, accident, or other event causing harm to you or any third party as a result of use of the Service.
20. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. GEARO EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
GEARO DOES NOT WARRANT THAT THE SERVICE WILL PERFORM ERROR-FREE OR WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE FREE FROM BUGS, VIRUSES, HARMFUL CODE, ERRORS, OR OTHER PROGRAM OR SYSTEM LIMITATIONS (OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED); MEET your REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; or BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES. GEARO SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU FOR DOWNTIME of the service, ANY BREACH OF DATA SECURITY, OR ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM USE OF THE SERVICE, FAILURE OF the SERVICE, OR OTHERWISE RELATING TO THE SERVICE.
21. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, GEARO WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES HOWEVER CAUSED, INCLUDING DAMAGES FOR COMPUTER MALFUNCTION, LOST PROFITS, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, AND/OR THE COST TO OBTAIN SUBSTITUTE SOFTWARE OR SERVICES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SERVICE, WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF GEARO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GEARO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID TO GEARO FOR YOUR LICENSE TO THE SERVICE DURING THE LAST MONTH PRECEDING THE DATE THE CLAIM AROSE, OR PRORATED IF PAID ANNUALLY, OR U.S. $1.00. THE ABOVE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICE, THIS AGREEMENT OR ANY ORDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
You agree to indemnify, hold harmless, and defend Gearo, including its licensees and its and their subsidiaries, affiliates, officers, directors, agents, employees, successors, and assigns, from and against any and all costs, expenses, liabilities, fines, penalties, and damages, including attorneys’ fees, incurred in connection with any and all third party claims arising out of (a) your use of the Service; (b) violation of the terms of this Agreement; (c) an allegation that any Content or Feedback or the use thereof in connection with the Service and/or other subject matter of this Agreement infringes, misappropriates, or otherwise violates a third party’s Intellectual Property Rights or violates Law; (d) an allegation that your use of the Service in violation of this Agreement infringes, misappropriates, or otherwise violates a third party’s Intellectual Property Rights or other rights, or violates Law; or (e) your provision or use of, or the condition of, the Equipment and any applicable insurance, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential, or otherwise) of any kind arising in connection with or as a result of a booking, sharing, or use of such Equipment.
If you are contacted by (or otherwise become aware of) a third party claiming rights in any portion of the Service, or claiming that use of the Service infringes any right of that third party, you must immediately notify Gearo and, at Gearo’s request, immediately cease use of the Service as directed by Gearo. If Gearo determines in its sole discretion that it cannot or should not otherwise allow you to continue using the Service because of such claim, Gearo may terminate this Agreement immediately by delivering notice to you without any resulting obligation or liability to you by reason of such termination.
If you believe that any Content uploaded by a User violates your copyrights, please see our Copyright Policy (available at: ) for instructions on sending us a notice of copyright infringement. It is the policy of Gearo to terminate the user accounts of repeat infringers.
25. EXPORT CONTROL LAWS
The Service may be subject to export controls under Law. You agree to comply with such Law governing export, re-export, transfer, and use of the Service, and you shall obtain all required U.S. and local authorizations, permits, or licenses. You represent and warrant that (a) you 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; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
26. U. S. GOVERNMENT END USERS
The Service is “commercial computer software” as defined in the applicable provisions of the Federal Acquisition Regulation (the “FAR”) and supplements thereto, including the Department of Defense FAR Supplements (the “DFARS”). The Service was developed entirely at private expense and no part of the Service was first produced in the performance of a Government contract. If you are a U.S. Government agency, in accordance with FAR 12.212 and its successors or DFARS 227.7202 and its successors, as applicable, the Service is licensed to you subject to the terms of this Agreement.
27. ARBITRATION AGREEMENT.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND IMPACTS THE WAY THAT YOU AND WE BRING CLAIMS AGAINST EACH OTHER AND HOW THOSE CLAIMS ARE DECIDED.
a. Dispute Resolution. YOU AND WE AGREE THAT ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY, OR FORMATION OF THIS AGREEMENT OR YOUR USE OF THE SERVICE AND/OR CONTENT WILL BE RESOLVED EXCLUSIVELY THOUGH FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE BROADLY INTERPRETED AND INCLUDES ANY DISPUTE, CLAIM, OR CONTROVERSY BETWEEN YOU AND GEARO REGARDING ANY ASPECT OF YOUR RELATIONSHIP WITH US OR ANY CONDUCT OR FAILURE TO ACT ON OUR PART, INCLUDING CLAIMS BASED ON BREACH OF CONTRACT, TORT (FOR EXAMPLE, A NEGLIGENCE OR PRODUCT LIABILITY CLAIM), VIOLATION OF LAW OR ANY CLAIMS BASED ON ANY OTHER THEORY, AND INCLUDING THOSE BASED ON EVENTS THAT OCCURRED PRIOR TO THE DATE OF THIS AGREEMENT, WITH THE FOLLOWING EXCEPTIONS:
- You may assert claims in your local small claims court if its rules permit it;
- Any claim regarding the validity, protection, or enforcement of a party’s intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights) must be brought in court; and
- In the event this agreement to arbitrate is for any reason held to be unenforceable, any dispute or claim against us (except for small-claims court actions) may be commenced only in a federal or state court located in Denver, Colorado, and we both irrevocably consent to the jurisdiction of and venue in those courts for such purposes. We both also consent to the jurisdiction of and venue in those courts for purposes of any claim regarding the validity, protection, or enforcement of a party’s intellectual property rights (excluding its privacy or publicity rights). You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
This agreement to arbitrate is governed by the Federal Arbitration Act, including its procedural provisions, in all respects.
b. Prohibition of Class Actions and Non-Individualized Relief. ANY ARBITRATION WILL BE CONDUCTED BY THE PARTIES IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). If this specific provision is found to be unenforceable, then all of Section 27, other than subsection 27(g), will be null and void and neither of us will be entitled to arbitrate our dispute.
c. Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) and will be governed by AAA’s Consumer Arbitration Rules (“AAA Rules”), as modified by this Agreement. The AAA Rules may be accessed at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity and must enforce the same limitations stated in this Agreement as a court would. The arbitrator will issue an award decision in writing but will not provide an explanation for the award unless you or Gearo requests one. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
d. Demand for Arbitration. A party who intends to arbitrate (“Claimant”) must first send to the other party (“Respondent”) a written notice, entitled “Demand for Arbitration” (“Demand”). The Demand must: (1) briefly explain the dispute; (2) provide the Claimant’s name and address, the address of the Claimant’s representative (if the Claimant has one), and the Respondent’s name and address (for Gearo, see below); (3) specify the amount of money in dispute, if applicable; (4) if the Claimant is requesting an in-person hearing, identify the requested location for the hearing; and (5) include a statement of what the Claimant wants. The Claimant must send one copy of the Demand to AAA at the same time the Claimant sends it to the Respondent. When sending a copy of the Demand to AAA, the Claimant must also include a copy of this arbitration agreement and any amendments to it (see Section f) and the then current filing fee required by the AAA. The Demand must be sent to the AAA at the following address:
American Arbitration Association
Case Filing Services
1101 Laurel Oak Road, Suite 100
Voorhees, NJ 08043
Alternatively, the Demand may be filed with the AAA online using AAA WebFile: https://www.adr.org. Any Demand to GEARO should be addressed to: Gearo, Inc., 4704 North Harlan Street, Suite 101, Denver, CO, 80212.
e. Filing, Administration and Arbitrator Fees. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Section 27. Any request for payment of filing, administration, and arbitrator fees by Gearo should be submitted by mail to the AAA along with your Demand and Gearo will make arrangements to pay all such necessary fees directly to the AAA. In the event that the arbitrator determines that the claim(s) you assert in the arbitration are frivolous, you agree to reimburse us for all fees associated with the arbitration paid by Gearo on your behalf that you otherwise would be obligated to pay under the AAA Rules.
f. OPT-OUT PROCEDURE. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISIONS IN THIS SECTION 27, YOU MUST NOTIFY GEARO IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT FOR THE FIRST TIME. YOU MAY OPT OUT BY MAILING A WRITTEN NOTICE TO GEARO AT THE ADDRESS SET FORTH IN SUBSECTION 27(d). YOUR WRITTEN NOTIFICATION TO GEARO MUST INCLUDE YOUR NAME, MAILING ADDRESS, E-MAIL ADDRESS, PHONE NUMBER AND, IF APPLICABLE, GEARO ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH GEARO THROUGH ARBITRATION. IF YOU OPT OUT OF THE ARBITRATION PROVISIONS IN THIS SECTION 27, ALL OTHER PROVISIONS OF THIS AGREEMENT WILL CONTINUE TO APPLY, INCLUDING SECTION 27(h), BELOW.
g. Amendment to Arbitration Provisions. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to the arbitration provisions in this Section 27 in the future (other than an amendment to any notice address or site link provided herein), that amendment shall not apply to any claim that was filed in a legal proceeding against Gearo prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims that have arisen or may arise between you and Gearo. We will notify you of amendments to the arbitration provisions of this Section 27 by posting the amended terms on https://gearo.net/copyright-policy/ and/or by providing notice to you by email, at least 30 days before the effective date of the amendments. If you do not agree to the amended terms, you may terminate this Agreement and close your account with Gearo within the 30-day period and you will not be bound by the amended terms.
h. JURY TRIAL AND CLASS ACTION WAIVER. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND GEARO EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY. FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN A COURT, YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.
28. GOVERNING LAW
This Agreement will be interpreted, construed, and governed by the Laws of the State of Colorado, other than when such Laws would result in the application of the Laws of a jurisdiction other than the State of Colorado. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
29. COMPLETE AGREEMENT
30. MODIFICATIONS TO THIS AGREEMENT
Gearo reserves the right, in its sole discretion, to modify this Agreement at any time upon notice to you, including by posting a revised version of this Agreement on the Service. Any such modified Agreement will be effective immediately upon being made available to you, and your continued use of the Service thereafter constitutes your affirmative acceptance of such modified Agreement. Otherwise, the terms of this Agreement may not be modified, in whole or in part, except by written agreement executed by an authorized signatory of Gearo. If you are dissatisfied with the terms of the Agreement or any modifications thereof, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
Communications from Gearo to you may be by electronic means. You hereby consent to receiving communications from Gearo in electronic form, and agree that all terms and conditions, agreements, notices, disclosures, and other communications that Gearo provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing, other than any non-waivable rights.
Any remedy of Gearo set forth in this Agreement is in addition to any other remedy afforded to Gearo under applicable Law or otherwise. Gearo’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of the Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable. You may not assign or otherwise transfer any of your rights or obligations under this Agreement without Gearo’s prior written consent. Any purported assignment in violation of this Section shall be void. Gearo may freely assign or otherwise transfer its rights or obligations under this Agreement. The terms and conditions of this Agreement shall apply to and be binding upon the approved successors and permitted assigns of the parties hereto. 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 does not and is not intended to confer any rights or remedies upon any person other than you and Gearo. For all purposes of this Agreement, the words “including” and “includes” mean inclusion without limitation.
All notices, requests, approvals, and other communications required or permitted to be given by you hereunder must be in writing addressed to Gearo at the address indicated above and will be deemed delivered and effective: (a) when sent by overnight courier, one business day after deposit with a nationally recognized overnight courier; or (b) when sent by registered or certified mail, postage prepaid, five days after deposit with the U.S. Postal Service.
34. California Residents
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at 1-800-952-5210.
Questions regarding the Service or this Agreement should be directed as follows: 919-931-1858 (phone); [email protected] (email); or Gearo, Inc. Attn: Justine Barone, 4704 North Harlan Street, Suite 101, Denver, CO, 80212 (mail).