Last updated on 8/20/2014
THE TERMS AND CONDITIONS SET FORTH BELOW (the "Terms") GOVERN YOUR USE OF THIS SITE (AS DEFINED BELOW) AND THE SERVICES (AS MORE FULLY DESCRIBED BELOW) MADE AVAILABLE TO YOU ON OR THROUGH THIS SITE (the "Services"). THESE TERMS INCLUDE ALL OTHER GATHERSPACE TERMS, CONDITIONS AND POLICIES WHICH ARE REFERENCED IN THESE TERMS AND ACCESSIBLE VIA HYPERTEXT LINK FROM THESE TERMS, OR OTHERWISE AVAILABLE ON THE SITE. THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND STS MEDIA, INC. D/ B/A GATHERSPACE ("GATHERSPACE", "we" or "us") AND GOVERN YOUR ACCESS TO, AND USE OF, THE GATHERSPACE WEBSITE LOCATED AT THE URL: WWW.GATHERSPACE.COM AS WELL AS ALL ASSOCIATED GATHERSPACE SITES, SUBDOMAINS, MOBILE APPLICATIONS AND PRODUCTS, LINKED TO WWW.GATHERSPACE.COM BY GATHERSPACE, ITS PARENTS, AFFILIATES AND SUBSIDIARIES (THE "Site"). ALL REFERENCES TO "SITE" INCLUDE ANY GATHERSPACE SOFTWARE THAT GATHERSPACE PROVIDES TO YOU, INCLUDING WITHOUT LIMITATION, IN A MOBILE APPLICATION OR EQUIPMENT). IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES MADE AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE. YOUR USE OF THIS SITE OR SERVICES SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH GATHERSPACE. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
If you register for a "beta" GATHERSPACE Account or other pre-release version of the Site and Services ("Beta Release"), you acknowledge and agree that the Beta Release may contain, in GATHERSPACE's sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Site and/or Services that may be offered. You further acknowledge and agree that any "beta" GATHERSPACE Account will automatically convert to a commercial release version GATHERSPACE Account upon the launch date of the Site and Services to the public ("Public Launch Date"). If you do not wish to continue using the Site or Services after the Public Launch Date, you may contact GATHERSPACE to terminate your subscription to the Services in accordance with the terms set forth below in the section titled "Termination". While GATHERSPACE generally intends to distribute commercial release versions of the Site and Services, GATHERSPACE reserves the right not to release later commercial release versions of any Beta Release. Without limiting any disclaimer of warranty or other limitation stated in these Terms, you agree that any Beta Release is not considered by GATHERSPACE to be suitable for commercial use, and that it may contain errors affecting its proper operation. BY CLICKING TO ACCEPT THESE TERMS OR BY OTHERWISE USING THE SITE AND SERVICES, YOU ACKNOWLEDGE AND AGREE THAT USE OF A BETA RELEASE MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT YOUR USE OF THE SITE IN GENERAL AND ANY SERVICES. GATHERSPACE SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM YOUR USE OF ANY BETA RELEASE.
Services and Equipment.
We currently offer the following Services, in each case on a prepaid monthly subscription model (unless another payment or subscription model if made available to you at the time you purchase the relevant Service):
"Broadband Service" consisting of mobile broadband Internet connectivity provided by GATHERSPACE;
"Value Added Services" consisting of additional premium services or features provided by GATHERSPACE that enhance the Broadband Service and which may include for example, guaranteed data speed;
"Other Services" consisting of other services which you may purchase from GATHERSPACE, but which are provided by GATHERSPACE's third party service providers and which may include for example, security and data storage features).
In order to use the Broadband Service and Value Added Services, you are required to purchase Equipment made available by GATHERSPACE. You will not be able to use the Broadband Service or Value Added Services without the Equipment. You do not need to purchase Equipment in order to use the Other Services. From time-to- time in its sole discretion, GATHERSPACE may permit you to lease Equipment instead of purchasing it. Please visit our Service Plan, Equipment and Payment Terms to learn more about Equipment. "Equipment" means mobile broadband usb modems, wireless hotspot devices, iPhone/iPod Touch sleeves, and/or any other equipment, and associated software and other technology included in such equipment, made available to you by GATHERSPACE, its licensors or third party service providers for use in connection with the Broadband Service and Value Added Services.
These Terms form a legally binding contract between you and GATHERSPACE. By using the Site and Services, you affirm that you are at least 13 years of age. If you are under the age of 18 years, you may not access or use the Site or Services without the consent of your parent or legal guardian and his or her agreement to these Terms on your behalf and his or her agreeing to take full responsibility for your compliance with these Terms; by agreeing to these Terms, your parent or legal guardian agrees to make all required payments for the Services on your behalf. You agree that you and/or your parent or legal guardian are fully able and competent to enter into the terms, conditions, obligations, representations, and responsibilities set forth in these Terms, and to abide and comply with these Terms. The Site and Services are not intended for people under the age of 13. GATHERSPACE may terminate these Terms and your use of the Site and Services without notice if GATHERSPACE, in its sole discretion, believes that you are under the age of 13.
General Use Restrictions.
GATHERSPACE provides content and Services through this Site. Certain information, documents, products and services provided on and through this Site, including content, logos, graphics, images, software, technology, know-how (together, the "Materials") are provided to you by GATHERSPACE and are the copyrighted and/or trademarked work of GATHERSPACE, its licensors or third party service providers, or are otherwise subject to GATHERSPACE's, its licensors' or third party service providers' other intellectual property or other proprietary rights, including without limitation, patent and trade secret rights.
GATHERSPACE grants you a limited, personal, revocable, non-sublicensable, non-transferable and non-exclusive license to access and use the Materials solely as necessary to use the Site and Services for your personal use in accordance with these Terms. Except for the license set forth in the preceding sentence above, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials in any manner. In addition, your use of Other Services may be subject to third party terms which will be made available to you in connection with your purchase or other use of Other Services.
This limited license terminates automatically, without notice to you, if you breach any of these Terms. Upon termination of this limited license, you agree to immediately destroy any downloaded or printed Materials. Except as stated herein, you acknowledge that you have no right, title or interest in or to this Site, Services or any Materials.
Some Services may require or allow you to download software, software updates or patches, or other utilities and tools onto your computer or mobile device (collectively "GATHERSPACE Software"). Subject to your compliance with these Terms, GATHERSPACE grants you a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license to use the GATHERSPACE Software, in object code form only, solely for the purpose stated by GATHERSPACE at the time the GATHERSPACE Software is made available to you and in accordance with these Terms. Your use of the GATHERSPACE Software may also be subject to the terms of an end-user license agreement. You may not sublicense, or charge others to use or access the GATHERSPACE Software. You may not translate, reverse engineer, reverse compile or decompile, disassemble, or otherwise attempt to discover the source code of the GATHERSPACE Software, or make derivative works from or of the GATHERSPACE Software. You may not modify the GATHERSPACE Software or use it in any way not expressly authorized in writing by GATHERSPACE. You understand that GATHERSPACE's introduction of various technologies may not be consistent across all platforms and that the performance of the GATHERSPACE Software and the Services may vary depending on your computer or mobile device. From time-to-time, GATHERSPACE may provide you with updates or modifications to the GATHERSPACE Software. You understand that certain updates and modifications may be required in order to continue using the GATHERSPACE Software and the Services. GATHERSPACE and its third party licensors expressly reserve ownership of all intellectual property rights applicable to the GATHERSPACE Software. All rights not granted herein are expressly reserved; there are no implied rights. The license granted to you in this paragraph shall immediately terminate (without any notice to you) if you breach any of the terms set forth in this paragraph. In addition, your use of third party software made available to you in connection with Other Services, may be subject to third party terms which will be made available to you in connection with your purchase or other use of Other Services.
GATHERSPACE Software Obtained From iTunes
Without limiting the terms of the previous section, the following applies to any GATHERSPACE Software that you obtain from the iTunes Store ("iTunes-Sourced Software"): You acknowledge and agree that these Terms are solely between you and GATHERSPACE, and not Apple Inc. or its subsidiaries (collectively, "Apple"), and that Apple has no responsibility for the iTunes-Sourced Software, the Services, Materials or Third Party Content. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service and any other applicable terms provided by Apple and may only be used on an iOS product that you use or control and as otherwise permitted in the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software or Services. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty and if you have paid a fee for the iTunes-Sourced Software, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the iTunes-Sourced Software to conform to any warranty will be solely governed by these Terms and any law applicable to GATHERSPACE as provider of the iTunes-Sourced Software. You acknowledge that Apple is not responsible for addressing any claims of yours or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; all such claims are governed solely by these Terms and any laws applicable to GATHERSPACE as provider of the iTunes-Sourced Software. You acknowledge that in the event of any third party claim that the iTunes-Sourced Software, or your possession and use of the iTunes-Sourced Software, infringes that third party's intellectual property rights, GATHERSPACE, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent (if any) required by these Terms. You and GATHERSPACE acknowledge and agree that Apple, (including Apple's subsidiaries), are third party beneficiaries of these Terms as relates to the iTunes-Sourced Software, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relating to the iTunes- Sourced Software against you as a third party beneficiary thereof. You acknowledge that these Terms are between GATHERSPACE and you, and are not between Apple and you, and that GATHERSPACE, and not Apple, is solely responsible for the Services, Materials, Third Party Content and GATHERSPACE Software, including the iTunes-Sourced Software.
Using the Site and Services.
You need not register with GATHERSPACE to simply visit and view the Site. However, in order to use any Services accessible through the Site, you must register with GATHERSPACE for a GATHERSPACE account (a "GATHERSPACE Account") and receive a password.
If you wish to register for a GATHERSPACE Account, you must submit the following information through the GATHERSPACE registration page on the Site: your name, email address and zip code. We may also ask you to create and user name and password. You may also have the ability to provide additional optional information, which is not required to register for a GATHERSPACE Account but may be helpful to GATHERSPACE in providing you with more a more customized experience when using the Site and Services. (You may in the future, also be asked to provide additional information (e.g., a phone number) in connection with your purchase of Services). Once you have submitted your GATHERSPACE Account registration information, a GATHERSPACE administrator shall have the right to approve or reject the requested registration, in the GATHERSPACE administrator's sole discretion. If your GATHERSPACE Account is approved, you will be sent an e-mail that contains a password that will allow you to log-on to the Site using that password (the "GATHERSPACE Password") to complete the GATHERSPACE Account registration process. You are responsible for providing and maintaining truthful, accurate, complete and current information (including identity and payment information) in connection with your GATHERSPACE Account. You may also be provided with, or asked to create, separate accounts and passwords to access Other Services that you purchase or otherwise access through this Site.
You are responsible for maintaining the confidentiality of your GATHERSPACE Password and any Other Services passwords (collectively, "Passwords"), and you are responsible for all activities that occur using your Passwords. You agree not to share your Passwords, let anyone else access your Passwords or do anything else that might jeopardize the security of your Passwords. You agree to notify GATHERSPACE if any of your Passwords is lost, stolen or disclosed to an unauthorized third party; if there is any unauthorized use of your Passwords; or if you know of any other breach of security in relation to this Site or Services.
By using this Site, you represent and warrant that all the information that you provide when registering for a GATHERSPACE Account and otherwise through the Site is accurate, complete and up to date. You may change, correct or remove any information from your GATHERSPACE Account by either logging into your GATHERSPACE Account directly and making the desired changes or by using the Support feature on our Site.
Purchases and Payment Terms.
You are not currently required to pay GATHERSPACE any fees to simply access the Site. Except to the extent GATHERSPACE may permit you to use a specified allocation of Broadband Services free of charge for a limited period, you will be required to pay fees to access and use the Services. Please visit our Service Plan, Equipment and Payment Terms to learn about the different fee structures and payment plans that we offer for the Services.
By using the Site and Services, you consent to receive electronic communications from GATHERSPACE. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and Services. These electronic communications are part of your relationship with GATHERSPACE. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Third Party Content.
Certain information and other content may be provided by third party licensors and service providers of GATHERSPACE ("Third Party Content"). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. You agree to only display the Third Party Content on your personal computer or mobile device solely for your personal use. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. GATHERSPACE DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Communicating with Other Services Users.
As part of the Services, GATHERSPACE may enable you to communicate with other users of the Services. You will be solely responsible and liable for all your communications with other users. You acknowledge and agree that GATHERSPACE does not control the content of user communications, and does not guarantee the accuracy, integrity, quality or suitability of such communications. GATHERSPACE does not pre-screen user communications. To the extent permitted by applicable law, GATHERSPACE may, but is not required to, monitor the communications of users and may in its sole discretion, edit or delete any content and/or restrict a user's ability to communicate content through the Services. By using any communications feature, you understand that you may be exposed to content that is offensive, indecent or objectionable, and your use of such features is solely at your own risk and GATHERSPACE have no responsibility or liability to you in connection therewith. You should exercise common sense and appropriate caution before communicating any of your own personally identifiable information or other confidential information to another Services user, and GATHERSPACE has no responsibility or liability to you in respect of your decision to make your personally identifiable information or other confidential information available to other Services users.
Links to Third Party Sites.
GATHERSPACE provides links to the Third Party Sites to you as a convenience, and GATHERSPACE does not verify, make any representations or take responsibility for such Third Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Sites. We are not liable for any harm you suffer as a result of visiting Third Party Sites or using Other Services. Without limiting the foregoing, by permitting you to purchase Other Services through this Site, GATHERSPACE is not endorsing Other Services or the provider of Other Services, although GATHERSPACE may receive payment from Other Online Service providers for purchases made on this Site. You access Third Party Sites and use Other Services at your own risk. You should use your common sense, exercise reasonable caution and carry out your own due diligence before visiting Third Party Sites or purchasing any Other Services.
YOU AGREE THAT GATHERSPACE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES (INCLUDING WITHOUT LIMITATION, OTHER ONLINE SERVICES), INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY WEB SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY. To the extent that you purchase any Other Services through the Site, we may in our sole discretion, offer to reasonably assist you in resolving any dispute or claim that you have with the Other Services provided, but we are under no obligation to do so.
When using this Site and Services, you agree not to without limitation: (a) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (b) use racially, ethnically, or otherwise offensive language; (c) discuss or incite illegal activity; (d) use explicit/obscene language or solicit/ post sexually explicit images (actual or simulated); (e) post or transmit anything that exploits children or minors or that depicts cruelty to animals; (f) post or transmit any copyrighted or trademarked materials without the express permission from the owner; (g) disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation; (h) use any robot, spider, scraper or other automated means to access the Site or Services; or (i) take any action that imposes an unreasonable or disproportionately large load on our infrastructure or the infrastructure of our third party service providers.
This list of prohibitions provides examples and is not complete or exclusive. Please visit our Acceptable Use Policy to learn more about how you are permitted to use the Services. Also, your use of Other Services may be subject to additional terms, policies and restrictions which will be made available to you in connection with your purchase or other use of such services. GATHERSPACE reserves the right to terminate your use of the Site and Services with or without notice for any action you yours that we determine in our sole discretion is inappropriate or disruptive to this Site or to any other user of this Site and/or Services. If GATHERSPACE terminates your access to the Site and/ or Services as a result of your breach of these Terms, any applicable third party terms or your breach of applicable laws, you will not receive any refund for fees that you have paid or owe to us. You acknowledge that unauthorized use of any Materials, Third Party Content or Services contained on, or accessible from, this Site may violate certain laws, rules and regulations.
GATHERSPACE may report to law enforcement authorities, and its third party service providers, any actions that may be illegal or otherwise in breach of these Terms, and any reports it receives of such conduct. When legally required or at GATHERSPACE's discretion, GATHERSPACE will cooperate with law enforcement agencies and its third party service providers in any investigation of alleged illegal activity on this Site, involving the Services or on the Internet.
You agree to indemnify, defend and hold GATHERSPACE and its parents, affiliates and subsidiaries and their respective officers, directors, employees, agents, licensors, third party service providers and business partners harmless from and against any and all costs, damages, liabilities, suits, claims, and expenses (including, without limitation, attorneys' fees and costs of defense) that GATHERSPACE or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of this Site or any Service or the use of this Site or any Service by any person using your user name and/or Password violates any applicable law or regulation, or the copyrights, trademark rights, patent rights, trade secret rights, publicity rights, privacy rights, or other rights of any third party. Without limiting the foregoing, the terms and conditions provided to you in connection with your purchase or other use of Other Services may contain other terms regarding your responsibility and liability. You should read those terms carefully.
"GATHERSPACE" is a trademark of GATHERSPACE in the United States of America. Other trademarks, names and logos on this Site or in the Services and Equipment are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of GATHERSPACE, Copyright © 2011 to 2012 GATHERSPACE.
All rights not expressly granted herein are reserved; there are no implied rights. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or under a duly authorized license.
GATHERSPACE will use commercially reasonable efforts to establish and maintain administrative, technical and physical safeguards in connection with GATHERSPACE's internal data center facilities, servers, networking equipment, and host software systems that are within GATHERSPACE's reasonable control, and that are used to provide the Services, that are designed to: (a) protect the security and integrity of the GATHERSPACE network; (b) guard against anticipated threats or hazards to the security and integrity of the GATHERSPACE network; and (c) protect against the accidental or unauthorized access, use, alteration or disclosure of any of your information that you may provide to GATHERSPACE in connection with your use of the Services. The safeguards will be at least equal to the generally accepted security standards within the information technology industry. However, GATHERSPACE is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, any of your information, unless otherwise required by applicable law. You are solely responsible for taking your own steps to back-up your information, and for routinely archiving your information.
Intellectual Property Infringement.
GATHERSPACE respects the intellectual property rights of others, and we ask you to do the same. GATHERSPACE may, in appropriate circumstances and at our discretion, terminate Services and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide GATHERSPACE's designated agent with the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled on the Site, and information reasonably sufficient to permit GATHERSPACE to locate the material;
Information reasonably sufficient to permit GATHERSPACE to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law;
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
GATHERSPACE's agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Disclaimer of Warranties.
Your use of this Site, Services and Equipment is at your own risk. Neither the Materials nor Third Party Content have been verified or authenticated in whole or in part by GATHERSPACE, and they may include inaccuracies or typographical or other errors. GATHERSPACE does not warrant the accuracy, appropriateness or timeliness of the Materials, Third Party Content or Services contained on, or accessible from, this Site. GATHERSPACE has no liability for any errors or omissions in the Materials, Third Party Content, Site, Services or Equipment, whether provided by GATHERSPACE, our licensors or third party service providers.
GATHERSPACE, FOR ITSELF AND ITS LICENSORS AND THIRD PARTY SERVICE PROVIDERS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, SERVICES, EQUIPMENT, ANY MATERIALS OR THIRD PARTY CONTENT, RELATING TO QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL, OR OTHERWISE. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, SERVICES, EQUIPMENT, MATERIALS, THIRD PARTY CONTENT AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE OR THROUGH THE SERVICES IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHERE-IS" BASIS WITH NO EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR SECURITY. GATHERSPACE DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER OR MOBILE DEVICE OR THAT MAY DAMAGE YOUR COMPUTER, MOBILE DEVICE OR DATA.
YOU ACKNOWLEDGE THAT SOME SERVICES ARE DIRECTLY OR INDIRECTLY PROVIDED BY GATHERSPACE'S THIRD PARTY SERVICE PROVIDERS; GATHERSPACE HAS NO LIABILITLY TO THE EXTENT IT IS UNABLE TO PROVIDE ANY SERVICE, OR FOR ANY HARM LOSS OR DAMAGES SUFFERED BY YOU AS A RESULT OF SUCH THIRD PARTY SERVICE PROVIDERS ACTS OR OMISSIONS. GATHERSPACE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, DATA LOSS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
GATHERSPACE DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY ARISING FROM ANY PERFORMANCE-RELATED ISSUES OR OTHER NEGATIVE EFFECTS, LOSSES OR DAMAGES TO THE EXTENT CAUSED BY: (A) ANY FAILURE BY YOU TO OPERATE THE EQUIPMENT IN ACCORDANCE WITH THE SPECIFIED REQUIREMENTS; OR (B) ANY OTHER PRODUCTS, SERVICES, OR TECHNOLOGY USED BY YOU IN CONNECTION WITH THE EQUIPMENT.
NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT GATHERSPACE'S WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
Without limiting the foregoing, the terms and conditions provided to you in connection with your purchase or use of Other Services may contain other terms concerning warranties, including disclaimer of warranties. You should read those terms carefully.
Limitation of Liability.
GATHERSPACE, ITS LICENSORS AND THIRD PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, LOSSES OR CLAIMS RESULTING FROM YOUR USE OF THIS SITE, ANY SERVICES OR EQUIPMENT, INCLUDING, WITHOUT LIMITATION ANY DAMAGES RESULTING FROM DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS, INFORMATION OR THIRD PARTY CONTENT FROM THIS SITE OR A SERVICE, OR YOUR RELIANCE ON ANY SUCH MATERIALS, INFORMATION, CONTENT OR SERVICES. IN NO EVENT SHALL GATHERSPACE, ITS LICENSORS OR THIRD PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWSOEVER ARISING, EVEN IF IT KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. NOTHING IN THIS PARAGRAPH SHALL EXCLUDE OR LIMIT GATHERSPACE'S LIABILITY FOR LOSSES OR DAMAGES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, GATHERSPACE'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
The parties agree that the limitations specified in this section will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
Without limiting the foregoing, the terms and conditions provided to you in connection with your purchase or other use of Other Services may contain other terms limiting the Other Online Service provider's liability. You should read those terms carefully.
Local Laws; Export Control.
GATHERSPACE controls and operates this Site and provides the Broadband Service and Value Added Services from its headquarters in the United States of America. The Other Services are controlled, operated and provided from various locations by the relevant third party service provider. The Materials, Third Party Content and Services may not be appropriate or available for use in all locations. If you use this Site or access any Services outside the United States of America, you are responsible for following applicable local laws, rules and regulations and for complying with applicable export control laws of the United States of America and other countries. Unless you are notified otherwise, the Services are only available to you if you live in the United States of America or Puerto Rico.
If you send or transmit any communications, comments, questions, suggestions, or related materials to GATHERSPACE, whether by letter, email, telephone, or otherwise (collectively, "Feedback"), suggesting or recommending changes to the Site, Services, Equipment, Materials or Third Party Content, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby irrevocably assign all right, title, and interest in, and GATHERSPACE is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, and all associated intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that GATHERSPACE is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Dispute Resolution and Arbitration Agreement; Class Action Waiver.
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer's satisfaction by contacting us through the Support feature on our Site. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and GATHERSPACE. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes (as defined below) between you and GATHERSPACE shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this arbitration agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this arbitration agreement and can award the same damages and relief as a court (including attorney's fees).
For the purpose of this Provision, "GATHERSPACE" means GATHERSPACE and its parent, affiliate and subsidiary companies, and each of their respective officers, directors, employees, and agents. The term "Dispute" means any dispute, claim, or controversy between you and GATHERSPACE regarding any aspect of your relationship with GATHERSPACE, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). "Dispute" is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as GATHERSPACE's licensors and third party service providers) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give GATHERSPACE an opportunity to resolve the Dispute. You must commence this process by mailing written notification to GATHERSPACE, 1100 Glendon Ave. Suite 700, Los Angeles, CA 90024. That written notification must include: (a) your name; (b) your address; (c) a written description of your Claim; and (d) a description of the specific relief you seek. If GATHERSPACE does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or GATHERSPACE may choose to pursue a Dispute in court and not by arbitration if: (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the "Opt-Out Deadline"). You may opt out of this Provision by mailing written notification to GATHERSPACE, 1100 Glendon Ave. Suite 700, Los Angeles, CA 90024. Your written notification must include: (1) your name; (2) your address; and (3) a clear statement that you do not wish to resolve disputes with GATHERSPACE through arbitration. Your decision to opt-out of this arbitration Provision will have no adverse effect on your relationship with GATHERSPACE. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided in the section above titled "Pre-Arbitration Claim Resolution", either you or GATHERSPACE may initiate arbitration proceedings. The American Arbitration Association ("AAA"), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before the AAA, for Disputes of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA's Commercial Arbitration Rules will apply. In either instance, the AAA's Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are currently available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are currently available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or conditions precedent to suit.
Arbitration Award: The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration: You or GATHERSPACE may initiate arbitration in either Los Angeles, California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, GATHERSPACE may transfer the arbitration to Los Angeles, California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs: GATHERSPACE will pay all arbitration filing fees and arbitrator's costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with GATHERSPACE as provided in the section above titled "Pre-Arbitration Claim Resolution" and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys' fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and GATHERSPACE specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this arbitration agreement you and GATHERSPACE are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and GATHERSPACE might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your relationship with GATHERSPACE or its affiliates, including the termination of your use of the Site and Services. Notwithstanding any provision in this Agreement to the contrary, we agree that if GATHERSPACE makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require GATHERSPACE to adhere to the language in this Provision if a dispute between us arises.
Without limiting the foregoing, the terms and conditions provided to you in connection with your purchase or other use of Other Services may contain other terms governing disputes between you and the Other Online Service provider. You should read those terms carefully.
If you violate these Terms, GATHERSPACE may terminate and/or suspend your access to this Site and Services without notice. GATHERSPACE prefers to advise you of your inappropriate behavior and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by GATHERSPACE, may result in immediate termination of your access to this Site and Services. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations Convention on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms. Except for disputes subject to arbitration as described above, any disputes relating to these Terms will be heard in the courts located in Los Angeles, California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. GATHERSPACE's failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and GATHERSPACE and supersede all prior or contemporaneous negotiations, discussions or agreements between you and GATHERSPACE about this Site, Services and Equipment.
You may stop using the Site and Services at any time, by ceasing to access the Site or otherwise ceasing to use the Services. However, most Services are set up as recurring prepaid charges. Your subscription for Services will continue until you terminate your Services by using the Support feature on our Site, or by calling GATHERSPACE at (888) 743-8107. Following your voluntary termination of the Services, you will not be entitled to receive any refund of prepaid fees, although you will be able to continue using the Services until the end of the monthly (or other periodic) subscription period for which you have paid.
In addition to the termination rights set forth above in these Terms, GATHERSPACE may at any time, for any or no reason, in its sole discretion and without prior notice to you: (a) suspend or terminate your use of the Site or any Services; and/or (b) suspend or cease to provide the Site or any Services in their entirety.
All terms and conditions of these Terms which by their nature are intended to survive, will survive the termination of your use of the Site and Services, including, without limitation, all terms which address the protection of GATHERSPACE; its licensors' and third party service providers' intellectual property rights; disclaimer of warranties; limitations of liability; representations; and assignments made by you; and your payment and indemnification obligations.
If you have any questions about these Terms or otherwise need to contact GATHERSPACE for any reason, you can reach us by using the Support feature on our Site, calling us at (888) 743-8107, or writing to us at GATHERSPACE, 1100 Glendon Ave. Suite 700, Los Angeles, CA 90024.