1.1 Acceptance. By using the Website or Services in any manner, you are bound by these Terms of Service, as well as the Incorporated Terms identified below (collectively, the "Terms"). If you do not agree to the Terms, then do not use the Website or Services. If you are accepting these Terms on behalf of a company, organization, government, or other legal entity, you represent and warrant that (a) you are authorized to do so, (b) the entity agrees to be legally bound by the Terms, and (c) neither you nor the entity are barred from using the Services or accepting the Terms under the laws of the applicable jurisdiction.
1.2 Scope.These Terms govern your use of the Website and the Services. Except as otherwise specified, these Terms do not apply to Third-Party Products, which are governed by their own terms of service.
1.4 Modifications.GemEye reserves the right, in its discretion, to change, modify, add to, or remove portions of the Terms (collectively, "Changes"), at any time. GemEye will notify you of Changes by sending an email to the address identified in your Account or by posting a revised version of the Terms incorporating the Changes to its Website. Your continued use of the Website or Services following notice of the Changes (or posting of the Terms incorporating the Changes in the event your email address is no longer valid, is blocked, or is otherwise not able to receive the notice) will mean that you accept and agree to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Website.
1.5 Contracting Entity."GemEye" means the GemEye entity with which you are entering into this Agreement. If you have previously entered into an agreement with a GemEye entity, then "GemEye" means that entity. If you have not previously entered into an agreement with a GemEye entity, then "GemEye" means the entity identified below:
|Country of Residence of Merchant||GemEye Entity||Governing Law|
|United States||GemEye, a New York corporation in the United States||New York|
1.6 Certain Definitions.
|a.||"Order Form" or "Order" means one or more GemEye order forms executed by the parties for the purchase of Services and that reference these Terms.|
|b.||"Services" means all GemEye products, services, and materials located on or accessible through the Website or otherwise described in an Order.|
|c.||"Third-Party Products"means any third-party information, website, product, service, or materials referenced in, accessible through, or provided in connection with, the Website or Services.|
|d.||"Website"means the GemEye website located at https://gemeye.com/ (including all associated internet country codes), together with all GemEye websites and webpages accessible there, and the Account control panel.|
2.1 Minimum Age. The Services and Website are available only to persons who are the age of majority and can form legally binding contracts under applicable law. Without limiting the foregoing, the Services and Website are not intended to be used by individuals under the age of 18. If you do not qualify, please do not use the Services or access the Website.
2.2 Registration. In order to use the Services, you must establish a Services account ("Account") by registering with GemEye. You may be required to submit a valid means of payment for which you are authorized to purchase Services. You will provide true, accurate, current, and complete information when registering for an Account and will update the information as necessary to keep your Account and payment information current. As part of the registration process, you will provide GemEye with a user name and password for your Account (together "Account Credentials"). GemEye reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
3.1 Generally. You are responsible for maintaining the security of your Account Credentials and for all Services ordered, accessed, or otherwise used in connection with your Account Credentials and all actions taken in association therewith. You will not share your Account Credentials with any third party.
3.2 Payment Cards. GemEye is responsible for the security of credit cardholder data to the extent that GemEye has control of that data. To that end, GemEye undertakes regular assessments consistent with the Payment Card Industry Data Security Standards. You represent and warrant that you will determine the PCI DSS merchant requirements applicable to you and your use of the Services.
This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the Services or any software, documentation or data related to the Services ("Software"); modify, translate or create derivative works based on the Services or any Software; or copy (except for archival purposes), distribute, pledge, assign or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
|a.||License."Order" We do not claim any intellectual property rights over the content you provide to GemEye. All of your content remains yours. When providing content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "IP Rights") you have in that content or associated with your store in connection with our provision, expansion, and promotion of the Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce against GemEye, our assignees, our sub-licensees, and their assignees your IP Rights in that content in connection with our, those assignees', and those sub-licensees' use of that content in connection with our provision, expansion, and promotion of the Services.|
|b.||Representations and Warranties. You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this Agreement, does not and will not infringe any IP Rights of any third party. GemEye takes no responsibility and assumes no liability for any content provided by you or any third party.|
|a.||Restrictions.All rights not expressly granted by GemEye to you in these Terms are hereby reserved by GemEye. There are no implied rights. You may not use, imitate, or copy, in whole or in part, any GemEye trademark, service mark, trade dress, logo, or other branding (collectively, â€œMarksâ€) without, in each instance, GemEyeâ€™s prior written consent, in GemEyeâ€™s discretion. All permitted use of GemEyeâ€™s Marks will inure to the benefit of GemEye.|
|b.||Ownership. As between the parties, the Website and Services, including, without limitation, any and all APIs, Software, documentation, images, video, content, logos, page headers, custom graphics, design and user interface elements, scripts, and other materials contained therein or provided in connection therewith, and all modifications, enhancements, and updates thereto, as well as all IP Rights associated with any of these materials (collectively, " GemEye IP") are owned by GemEye and/or its third party sponsors, partners, and suppliers. You have no right or license in or to the GemEye IP other than the right to use the Services, in compliance with the Terms, during the applicable subscription period.|
5.3 Feedback. You may provide GemEye with ideas, opinions, recommendations, feedback, or advice in connection with your use of the Services (collectively, "Feedback"). If you submit Feedback to GemEye, you hereby grant GemEye an irrevocable, perpetual, transferable, non- exclusive, fully-paid-up, royalty-free, worldwide license (sublicensable through multiple tiers) to: (a) use, copy, distribute, reproduce, modify, create derivative works of, adapt, publish, translate, publicly perform, and publicly display such Feedback (or any modification thereto), in whole or in part, in any format, medium or application now known or later developed; and (b) use, and permit others to use, Feedback in any manner and for any purpose (including, without limitation, commercial purposes) that GemEye deems appropriate in its discretion (including, without limitation, incorporating Feedback, in whole or in part, into any technology, product or service).
6.1 Term. The Services will be provided to you for the duration of your Services subscription or Order Form, unless earlier cancelled by you or terminated by GemEye. You may cancel your Services subscription at any time. These Terms will automatically terminate upon the cancellation of all of your Services subscriptions. GemEye may terminate these Terms or your Services subscription(s) at any time, with or without cause, upon written notice. GemEye will have no liability to you or any third party because of such termination. Termination of these Terms will terminate all of your Services subscriptions.
6.2 Effect of Termination. Upon termination of these Terms by either party for any reason, or cancellation or expiration of your Services subscriptions: (a) GemEye will cease providing the Services; (b) you will not be entitled to any refunds of any subscription or usage fees, or any other fees, pro rata or otherwise; (c) any fees you owe to GemEye will immediately become due and payable in full; and (d) GemEye may delete your archived data within 30 days. All sections of the Terms that expressly provide for survival, or by their nature should survive, will survive termination of the Terms, including, without limitation, indemnification, warranty disclaimers, and limitations of liability.
6.3 Third-Party Service Integration. Certain Third-Party Products may be integrated with the Services. GemEye may, in its discretion and without liability to you, decide to no longer support such integration and migrate your Services subscription to a different integration.
|a.||Excluded Damages and Theories. GEMEYE AND ITS SUPPLIERS AND AFFILIATES ASSUME NO RESPONSIBILITY WITH RESPECT TO YOUR OR YOUR USERâ€™S USE OF THE WEBSITE, SOFTWARE, OR SERVICES AND WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, LOSS OF PROFITS, AND LOST REVENUE, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT GEMEYE IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.|
|b.||Aggregate Liability. GEMEYE AND ITS SUPPLIERS AND AFFILIATES WILL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY GEMEYE FROM YOU FOR THE SERVICES DURING THE 12-MONTH PERIOD BEFORE THE CLAIM OR CAUSE OF ACTION AROSE.|
|c.||Multiple Claims; Time Limits. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE, SOFTWARE, OR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CLAIM AND CAUSE OF ACTION WILL BE PERMANENTLY BARRED.|
|d.||Jurisdictions; Limitations. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, THE LIABILITY OF GEMEYE AND ITS SUPPLIERS AND AFFILIATES FOR SUCH DAMAGES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATION OF LIABILITY SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS.|
|a.||General. YOUR USE OF THE WEBSITE, SOFTWARE, AND SERVICES WILL BE AT YOUR OWN RISK AND ARE PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". GEMEYE AND ITS SUPPLIERS AND AFFILIATES DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT.|
|b.||Specific. GEMEYE MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT (a) THE ABILITY OF THE WEBSITE, SERVICES, OR SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (b) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE WEBSITE, SERVICES, OR SOFTWARE, (c) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY LINKED SITES (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE), AND/OR (d) THIRD-PARTY PRODUCTS, AND GEMEYE ASSUMES NO LIABILITY OR RESPONSIBILITY THEREWITH.|
|c.||Third-Party Products. THE REFERENCE TO, OR AVAILABILITY OF, THIRD-PARTY PRODUCTS IN CONNECTION WITH THE SERVICES OR WEBSITE DOES NOT CONSTITUTE, AND WILL NOT BE CONSTRUED AS CONSTITUTING, AN ENDORSEMENT, AUTHORIZATION, SPONSORSHIP, OR AFFILIATION BY OR WITH GEMEYE WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS.|
|d.||Legal, Tax, Financial, Other Communications. NO ORAL OR WRITTEN INFORMATION OR ADVICE OR COMMUNICATIONS PROVIDED BY GEMEYE OR ANY OF ITS EMPLOYEES WILL CONSTITUTE PERSONAL, LEGAL, TAX OR FINANCIAL ADVICE OR CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND.|
|e.||Jurisdictions; Limitations. THESE DISCLAIMERS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, GEMEYEâ€™S WARRANTIES, CONDITIONS AND REPRESENTATIONS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.|
7.3 Indemnification. You will defend, indemnify, and hold GemEye and its suppliers and affiliates, and the respective directors, officers, employees and agents of each, harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneysâ€™ fees and court costs) arising out of or relating to your breach of any of these Terms or use by you or any third party (authorized, permitted or enabled by you) of the Services, except to the extent the foregoing directly result from GemEyeâ€™s own gross negligence or willful misconduct. GemEye reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. This Indemnification Section will survive any termination or expiration or these Terms.
8.1 Governing Law; Jurisdiction. The law that will govern the validity and construction of these Terms and apply in any dispute or lawsuit arising out of or relating to these Terms is as set forth in table in the Contracting Entity Section above. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, the jurisdiction and venue of the federal and state courts located in New York (USA). YOU WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THESE TERMS. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is hereby expressly excluded.
8.2 Class Action Waiver. You and GemEye waive any right to assert any claim against one another by means of any class action or representative action, whether as a class representative or as a member of a class. If, notwithstanding the foregoing waiver, a court or law permits a party to this Agreement to participate in a class or representative action, then the prevailing party will not be entitled to recover attorneysâ€™ fees or costs associated with pursuing the class or representative action, and the party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class or representative action.
8.3 Export of Services or Technical Data. You may not export or re-export the Services, or any direct product thereof, including, without limitation, technical data, in violation of any laws of the United States and/or the laws of the jurisdiction in which you are using the Services. Without limitation by the laws of your jurisdiction, the Services may not be exported or re-exported: (a) into any embargoed country; or (b) to anyone on the U.S. Treasury Departmentâ€™s list of Specially Designated Nationals or the U.S. Department of Commerceâ€™s Table of Denial Orders. You will not provide the Services, or any direct product thereof, including, without limitation, technical data, to a person or entity located in, under control of, or a national or resident of any such country or on any such list.
8.4 Severability. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms will otherwise remain in full force and effect and enforceable.
8.5 No Assignment by You. You may not assign your rights or obligations under these Terms without the prior written consent of GemEye, which GemEye may refuse in its sole discretion. Any attempted assignment without prior written consent from GemEye will be deemed null and void. GemEye may assign its right and/or obligations under these Terms at any time. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
8.6 Waiver. No waiver of any provision of these Terms, nor consent by GemEye to the breach of or departure from any provision of these Terms, will in any event be binding on or effective against GemEye unless it be in writing and signed by a duly authorized representative of GemEye, and then such waiver will be effective only in the specific instance and for the specific purpose for which given.
8.7 Entire Agreement. These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms, and any modifications must be in a writing signed by both parties, except as otherwise provided herein.
8.8 Section Headings. The section headings and titles in these Terms are for convenience only and have no legal or contractual effect. These Terms will be interpreted without application of any strict construction in favor of or against you or GemEye.
8.9 Independent Contractors. No agency, partnership, joint venture or employment relationship is created by these Terms or your use of the Services, and you do not have any authority of any kind to bind GemEye in any respect whatsoever.
8.10 Force Majeure. GemEye will have no liability to you, your users, or any third party for any failure by GemEye to perform its obligations under these Terms in the event that such non- performance arises as a result of the occurrence of an event beyond the reasonable control of GemEye, including, without limitation, an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, or civil commotion or other force majeure event.
8.11 Hosting Services. GemEye has entered into arrangements with one or more third parties for hosting services that are essential to the Services, incorporated within the Services and without which the Services could not be provided to you.
8.12 Virtual Machine Commands and Runtime Engines. Use of GemEye's ecommerce website design platform to author webpages (or portions thereof) that are displayed through the use of virtual machine commands or a runtime engine is prohibited.