Terms of Service

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Last updated: January 28, 2020

Please carefully read the terms and conditions set forth in this Ungapped Service Agreement (“Agreement”) that governs your use of: (i) the Ungapped Platform (as defined below and which includes any and all underlying software and technology); (ii) the Integration Software (as defined below), (iii) the websites owned or operated by Ungapped, including the website located at ungapped.com (“Ungapped Website”); and (iv) any other Ungapped products or services (clauses (i)-(iii) collectively referred to as, the “Ungapped Service”) offered by Ungapped. You must accept this Agreement to create an account for the Ungapped Service and if you do not have an account you accept this Agreement by using and accessing the Ungapped Website as set forth below in Section 2.1.

PLEASE NOTE, THIS AGREEMENT ALSO CONTAINS AN AGREEMENT TO ARBITRATE IN SECTION 16 BELOW WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.

IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, OR IF YOU DO NOT HAVE AUTHORITY OR MEET THE ELIGIBILITY REQUIREMENTS AS SET FORTH IN SECTIONS 2.1 AND 2.2 BELOW, DO NOT CLICK “I ACCEPT,” DO NOT CREATE AN ACCOUNT, AND DO NOT USE THE UNGAPPED SERVICE OR VISIT THE UNGAPPED WEBSITE. IF YOU ARE A COMPETITOR OF UNGAPPED YOU MAY NOT ACCESS OR USE THE UNGAPPED SERVICE WITHOUT UNGAPPED’S PRIOR WRITTEN CONSENT.

TERMS & CONDITIONS

1 Definitions

• “Anonymous Data ” means any and all aggregated non-personally identifiable data or information resulting from Customer’s or its Authorized Users’ use of the Ungapped Software, Ungapped Service or other services provided by Ungapped.
• “Authorized Users” means Customer Users and End Users.
• “Billing Period” means the period for which you agree to prepay fees under a Purchase Order, which will be the same as or shorter than the Subscription Term.
• “Contact” means a single customer, prospect, lead, or other individual whose Contact Information is stored by, or on behalf of, you or your Authorized Users in the Ungapped Service.
• “Contact Limit” means the maximum number of Contacts you are permitted in accordance with the Subscription Service purchased by Customer pursuant to a Purchase Order.
• “Customer Application” means the software application(s), website(s), or other interface(s) developed, owned or operated by, or for, Customer.
• “Customer Data” means any and all, data or information or Customer Content (including personally identifiable information) of Customer and its Authorized Users and Contacts provided by Customer or its Authorized Users in connection with the Ungapped Service or any services provided hereunder.
• “Customer Users” means employees or contractors of Customer who are authorized to use the Ungapped Service, solely for Customer’s internal business purposes, and otherwise in compliance with this Agreement.
• “Documentation” means the operating instructions, user manuals, product specifications, “read-me” files, and other documentation that Ungapped makes available to Customer in hard copy or electronic form for the Ungapped Software or Ungapped Service, and any modified, updated, or enhanced versions of such documentation.
• “End Users” means Customer’s end user Contacts who are authorized to access and use the Ungapped Service, subject to this Agreement and the Developer Terms.
• “Feedback” means any and all suggestions and feedback provided to Ungapped by Customer or Authorized Users regarding the functioning, features, and other characteristics of the Ungapped Service, Ungapped Software, Documentation, or other materials or services provided or made available by Ungapped hereunder.
• “Integration Software” means any and all Ungapped proprietary software, whether in object code or source code form, including application programming interfaces, and any and all modified, updated, or enhanced versions of such integration software provided or made available to Customer under this Agreement for integrating the Ungapped Service into any Customer Application.
• “Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
• “Monthly Email Limit” means the number of emails that you may send in any given calendar month. For our Basic, Pro and Enterprise marketing products this limit is equal to four (4) times the Contact Limit number per month.
• “Personal Data” means information that can be used on its own or with other information to identify, contact, or locate an individual.
• “Price List” means the price listing for the Subscription Service, SMS Service, and any other products or services made available by Ungapped.
• “Purchase Order” means a written or electronic purchase order from Customer for the purchase of the Subscription Service to access and use the Ungapped Service, to purchase Pre-paid Credits, or to place an order for other services provided by Ungapped.
• “Server Software” means the proprietary Ungapped server software programs that are made available by Ungapped on a remote online basis and any and all modified, updated, or enhanced versions of such programs that Ungapped may make available (on a remote basis) to Customer under this Agreement.
• “Pre-paid Credits” means the credits purchased by Customer pursuant to a Purchase Order in order to, among other things, send SMS messages to Contacts in connection with the SMS Service.
• “SMS Service” means the SMS text messaging service offered by Ungapped as part of the Subscription Service.
• “Subscription Fee“ means the amount you pay for the Subscription Service.
• “Subscription Service” means our web-based tools and platform that you have subscribed to by a Purchase Order or that we otherwise make available to you, and developed, operated, and maintained by us, accessible through the Ungapped Website or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
• “Subscription Term” means the Initial Subscription Term and all Renewal Terms.
• “Ungapped Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Professional Services, including Analytic Data.
• “Ungapped Platform” means the proprietary online platform comprised of the Server Software, made available by Ungapped on a remote online basis.
• “Ungapped Software” means the Server Software and Integration Software.
• “Ungapped Website” means Ungapped’s website located at ungapped.com or any other website designated in writing by Ungapped.
• “You“ , “your“ or “Customer” means the person or entity using the Subscription Service or receiving the Professional Services and identified in the applicable billing statement, online subscription process, Purchase Order or Statement of Work as the customer.

2 Acceptance of Terms and Eligibility

• Acceptance of Terms . This Agreement sets forth the legally binding terms and conditions for your use of the Ungapped Service. By using or accessing the Ungapped Service in any manner, including, but not limited to, visiting or browsing the Ungapped Website, you: (i) acknowledge that you have read, understand, and agree to be bound by this Agreement, including Ungapped’s privacy policy located at ungapped.com/legal/privacy-policy (the “Privacy Policy”), and Ungapped’s acceptable use policy located at ungapped.com/legal/acceptable-use-policy (the “AUP”); (ii) represent that you have the authority to enter into this Agreement (including the Privacy Policy, the AUP and all of the terms and conditions specified or referenced below), on behalf of the entity or person in respect of whom the Ungapped Service was ordered as named on the Purchase Order submitted to Ungapped; (iii) represent that you are eligible to enter into this Agreement pursuant to the eligibility requirements set forth below in Section 2.2; and (iv) agree that you are entering into this Agreement (including all of the terms and conditions specified or referenced below, including the Privacy Policy and the AUP) with Ungapped AB, a company organized under the laws of Sweden. In addition, when using particular services or materials through or in connection with the Ungapped Service, you shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in the terms (“Additional Terms”). All such Additional Terms are hereby incorporated by reference into this Agreement.
• Eligibility . You may use the Ungapped Service if you are over eighteen (18) years of age and are not barred from receiving services under applicable law. By accessing or using the Ungapped Service you affirm that you are over the age of eighteen (18) and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. If for any reason, we, in our sole discretion, believe you do not meet the eligibility requirements set forth above, we reserve the right, without provision of any notice to you to terminate your account and this Agreement. If you do not meet the eligibility requirements as set forth in this Section, we have no obligations to you under this Agreement.

3 Access and Use of the Ungapped Service

• Creating an Account . In order to access and use the Ungapped Service you must create and register a user account. In registering a user account for the Ungapped Service, you agree to provide and maintain up to date information that is true, accurate, current and complete. You agree that you will not (a) create a user account using a false identity or information, (b) create a user account or use the Ungapped Service if you have been previously removed or banned by us from use of the Ungapped Service. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your user account. You are solely responsible for any activity originating from your user account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your user account.
• Access to the Ungapped Service . Subject to the terms and conditions of this Agreement, Ungapped hereby grants to Customer a non-exclusive, non-transferable, limited license, solely during the Subscription Term, to (i) access and use, and permit Customer Users to access and use, the Ungapped Service, over the Internet, solely for Customer’s own internal business purposes; and (ii) reproduce and use a reasonable number of copies of the applicable Documentation in support of the exercise of the licenses granted in this Section.
• Restrictions . Customer acknowledges that the Ungapped Software and Documentation embodies, contains, and constitutes valuable trade secrets of Ungapped. Customer agrees that it will not, and it will not permit any Authorized User or third party to: (i) modify, adapt, translate or create derivative works based on the Ungapped Software or Documentation; or (ii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Ungapped Software, except as expressly permitted by applicable law; or (iii) distribute, license, sublicense, assign, transfer or otherwise make available to any third party any Ungapped Software or Documentation, except to the extent expressly permitted in Section 3.2. Ungapped reserves all rights and licenses not expressly granted to Customer in Section 3.2 and no implied license is granted by Ungapped. Customer agrees not to remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Ungapped or its suppliers on or within the Ungapped Service, Ungapped Software or Documentation. Customer acknowledges and agrees that any non-compliance by any Authorized User with any of the requirements above will be deemed a breach by Customer of this Agreement.
• Authorized Users . Customer agrees that it shall not permit any person other than Authorized Users to access and use the Ungapped Service. With respect to each Authorized User, Client shall ensure that: (a) such Authorized User uses the Ungapped Service solely in accordance with this Agreement and the applicable usage permissions, and (b) such Authorized User complies with Ungapped’s then-current AUP. Customer acknowledges and agrees that any non-compliance by any Authorized User with any of the requirements above will be deemed a breach by Customer of this Agreement.
• Integration with Customer Applications . Integration with Customer Applications. Customer’s integration of the Ungapped Service into Customer Applications is controlled by the Developer Terms located at ungapped.com/legal/developer-terms . The Developer Terms are incorporated into and are made a part of this Agreement. In the event there is any inconsistency or conflict between this Agreement and the Developer Terms, the Developer Terms shall control solely with respect to the subject matter therein.

4 Subscription Services; SMS Services; Professional Services; Training; Support; Payment Terms

4.1 Subscription Services & Fees

1. Subscription Services . During the Subscription Term, Ungapped will provide you access to the Subscription Service set forth in the Purchase Order. The initial subscription term shall begin on the effective date of the Subscription Service purchased by you pursuant to a Purchase Order (“Initial Term”); thereafter, the Subscription Term shall automatically renew for successive periods equal to the Initial Subscription Term (“Renewal Term”), unless you provide us with written notice of non-renewal or termination prior to the expiration of your then-current Subscription Term. For more information regarding Subscription Services, including pricing, please see our Price List located here ungapped.com/pricing.
2. Subscription Fees . Unless otherwise set forth on a Purchase Order, the Subscription Fee will remain fixed during the Subscription Term unless you (i) exceed your Contact Limit; Monthly Email Limit, Authorized Users or other applicable limits, (ii) upgrade your subscription, or (iii) subscribe to additional features or products. In the event a price change applies to you, you will be charged at the start of the next Billing Period in the Subscription Term in accordance with the appropriate price structure. Subscriptions shall renew at Ungapped’s then-current pricing for your then-existing subscription
3. Pre-paid Credits . Ungapped offers the SMS Service as a feature of the Subscription Service. In order to send SMS messages through the SMS Service to its Contacts, Customer must purchase pre-paid Credits pursuant to a Purchase Order. Ungapped will calculate and deduct the applicable SMS fees from Customer’s Pre-paid Credit balance in connection with Customer’s use of the SMS Service. For more information regarding SMS Services, including SMS pricing, please see our Price List located here ungapped.com/pricing.

4.2 Professional Services

Subject to the terms and conditions of this Agreement (including the payment of applicable fees), Ungapped will provide Customer integration, consulting and other professional services with respect to the Ungapped Service specified in a Purchase Order (collectively, the “Professional Services” which, for the avoidance of doubt, excludes Support). The scope, timeline and tasks of the parties with respect to the Professional Services shall be as specified in the Purchase Order. Unless the fees for Professional Services specified in any Purchase Order are set forth in that Purchase Order, the fees payable to Ungapped for Professional Services shall be based on Ungapped’s then-current rates for such Professional Services.

4.3 Support Services

Subject to the terms and conditions of this Agreement (including the payment of applicable fees), Ungapped will provide Customer technical support for the Ungapped Service purchased by Customer in accordance with Ungapped’s then-current terms and conditions for such support (“Support”). Ungapped will make available to Customer updates and upgrades for the Ungapped Software on such terms as Ungapped generally makes available such updates and upgrades to its other customers.

4.4 Payment Terms

All fees are non-refundable and non-returnable. Customer shall pay to Ungapped the fees specified in the Purchase Order, in accordance with the payment terms specified therein. Ungapped may increase the amount of fees and rates payable by Customer upon written notice to Customer, provided that any such increase shall not be more than once in any twelve (12) month period. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Ungapped’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Ungapped Software, or performance of any services by Ungapped.

5 Exclusions

Notwithstanding anything in this Agreement to the contrary, Ungapped will have no responsibility or liability of any kind under this Agreement, arising or resulting from: (i) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Ungapped; (ii) nonconformities resulting from Customer’s, its Authorized Users’, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Ungapped Software, Ungapped Service, or other services provided hereunder by Ungapped; (iii) modification, amendment, revision, or change to the Ungapped Software by any person other than Ungapped; or (iv) any other factor outside of Ungapped’s reasonable control.

6 Customer Obligations

6.1 Customer Data

Customer grants to Ungapped, during the Subscription Term, a non-exclusive, royalty-free, fully-paid, worldwide license, under all of Customer’s intellectual property and proprietary rights, to any and all Customer Data reasonably necessary for Ungapped to provide Customer the Ungapped Service and other services hereunder. Customer agrees that Customer will be solely responsible for Customer’s use, and its Authorized Users’ use, of Customer’s account. Ungapped will use reasonable measures to protect personally identifiable information of Customer and its Authorized Users. Customer represents and warrants that it has all the rights necessary to grant the licenses granted herein to Ungapped in and to such Customer Data.

6.2 Personal Data

For purposes of all applicable laws and regulations relating to data privacy, trans-border data flows and data protection, the parties acknowledge and agree that Customer will be the controller of any Personal Data collected by the Ungapped Service pursuant to this Agreement. Customer will have the rights to determine the purposes for which the Personal Data is processed, so long as it is not inconsistent with Ungapped’s service obligations hereunder and the functionality of the Ungapped Software licensed hereunder by Customer. Customer grants to Ungapped a non-exclusive, royalty-free, fully-paid, and worldwide license to use Personal Data as reasonably necessary for Ungapped to provide Customer the services hereunder and the functionality of the Ungapped Software licensed by Customer. Customer represents and warrants that it has all the rights necessary to grant the licenses granted in this Section. Customer agrees that Ungapped’s obligation to maintain any Personal Data obtained in the course of providing the services shall not extend beyond the Subscription Term. Ungapped will use Personal Data in accordance with this Agreement and the Privacy Policy located at ungapped.com/legal/privacy-policy .

6.3 Indemnification

Customer will defend at its own expense any claim or action against Ungapped or its officers, directors, employees or contractors (each an “Ungapped Indemnified Party”) brought by a third party, and will indemnify and hold harmless each Ungapped Indemnified Party from and against all costs (including reasonable attorneys’ fees) and damages incurred by such Ungapped Indemnified Party in any such claim or action, to the extent that the action is based on: (i) allegations that any Customer Application, any product or service sold or distributed by Customer, any Customer Content, or any Customer activity violates any applicable law (including the CAN-SPAM Act and federal and state contests and sweepstakes rules) or any rights (including Intellectual Property Rights) of any third party; (b) use of the Ungapped Service in such a manner that produces a recommendation that the Ungapped Software would not otherwise produce (for example, overrides Ungapped’s internal recommendation algorithms for usage parameters or limitations) or bypasses or breaches any security device or protection used by the Ungapped Service; (c) Contact claims; or (d) your breach of any warranties made by you hereunder or your violation of any other provision of this Agreement, the Developer Terms, the AUP, or any Additional Terms. The foregoing obligations are conditioned on Ungapped notifying Customer promptly in writing of such action, giving Customer sole control of the defense thereof and any related settlement negotiations, and at Customer’s reasonable request and expense, cooperating and assisting in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of Ungapped or any Ungapped Indemnified Party or requires Ungapped or any Ungapped Indemnified Party to contribute to the settlement without Ungapped’s prior written consent.

7 Ownership

Ungapped and its suppliers retain all right, title and interest in and to all Intellectual Property Rights in the Ungapped Software, Documentation, and all other materials provided or made available to Customer in connection with the services provided by Ungapped, and any and all modifications, updates, and enhancements to the foregoing items. Customer hereby licenses Feedback and Anonymous Data to Ungapped on a worldwide, perpetual, irrevocable, non-exclusive, freely-transferable, fully paid, and royalty-free basis, for Ungapped to use and exploit in any manner and for any purpose. Customer shall retain the right, title and interest, including all Intellectual Property Rights, in and to Customer Content and Customer Data, subject to the license to Anonymous Data granted to Ungapped.

8 Publicity

Ungapped may refer generally to the existence of this Agreement and use the Customer’s name in press releases, on web sites, and other promotional material, but will not reveal any non-public and proprietary information designated “confidential” in writing by Customer.

9 Termination

9.1 Termination

You may cancel or terminate your Subscription Service at any time by cancelling your account from within the Ungapped Platform or by sending an email to hello@ungapped.com. We reserve the right to deactivate your Subscription Service, or suspend your access to the Subscription Service, or terminate this Agreement, at our sole discretion, at any time and without notice or liability to you, if you violate this Agreement, the Privacy Policy, the, Developer Terms, the AUP, or any Additional Terms. Upon any such termination, we may delete your data and any other information related to your account.

9.2 Termination for Cause

Either party may terminate this Agreement for material breach by the other party that remains uncured thirty (30) days after delivery of written notice to the breaching party describing such breach in reasonable detail. The foregoing rights of termination are in addition to any other rights and remedies provided in this Agreement or under applicable law.

9. 3 Termination for Insolvency

This Agreement may be terminated by either party effective immediately upon written notice to the other party, if the other party takes any corporate action to dissolve, liquidate or wind-up its business, makes a general assignment for the benefit of its creditors, or proceedings or any case are commenced in any court of competent jurisdiction by or against such party seeking: (i) such party’s reorganization, liquidation, dissolution, arrangement or winding-up, or the composition or readjustment of its debts, (ii) the appointment of a receiver or trustee for or over such party’s property, or (iii) similar relief in respect of such party under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debt, and such proceedings or case will continue undismissed, or an order with respect to the foregoing will be entered and continue unstayed, for a period of more than thirty (30) days.

9.4 Effects of Termination

Upon expiration or termination of this Agreement (or any specific Subscription Service) for any reason, Customer shall cease (and require all Authorized Users to cease) using, and destroy, any and all information or materials supplied by Ungapped, including any related Ungapped Software and Documentation provided by Ungapped, and all copies thereof in Customer’s possession or control. Upon expiration or termination of this Agreement for any reason, all fees due Ungapped under all Purchase Orders, shall be immediately due and payable, provided that if Customer terminates this Agreement pursuant to Section 9.2, Ungapped will refund to Customer any fees paid in advance by Customer for any unused portion of the Subscription Term for which such payment was made. If Customer terminates this Agreement (or any specific Subscription Service) for any reason other than in accordance with Sections 9.2 or 9.3, the fees for Customer’s then-current Subscription Term shall be immediately due and payable. The following Sections will survive expiration or termination of this Agreement: 1, 3.3, 3.4, 4.1(ii), 4.5, 5, 6.3, 7, 8, 9.4, 10, 11, 12, 13, 14, 15, 16, 17 and 18.

10 Confidentiality

“Confidential Information” means, with respect to (i) Ungapped, the Ungapped Software, the Documentation, the Feedback, and non-public technical, marketing, or financial information furnished by Ungapped to Client that Ungapped has marked “confidential” or with a similar legend, and (ii) Customer, the Customer Data. The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. The receiving party will limit access to the Confidential Information of the disclosing party to those of its employees and contractors, who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. The receiving party will protect the Confidential Information of the disclosing party from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, and in no event with less than reasonable care. The confidentiality obligations set forth herein will not apply to any information that the receiving party can prove that the information (a) has become generally available to the public through no fault of the receiving party; (b) is lawfully provided to the receiving party by a third party free of any confidentiality duties or obligations; (c) was already known to the receiving party at the time of disclosure; or (d) was independently developed by employees or contractors of the receiving party who had no access to the Confidential Information of the disclosing party. In addition, the receiving party may disclose Confidential Information of the disclosing party to the extent that such disclosure is necessary for the receiving party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party to seek an appropriate protective order. Upon any termination or expiration of this Agreement, each party will destroy or return to the other all Confidential Information of the other party in its possession or control (except for copies retained on back-up tapes or solely for archival purposes) and upon the disclosing party’s request will certify in writing that it has fully complied with this obligation.

11 Disclaimer

UNGAPPED MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THIS AGREEMENT OR THE UNGAPPED SERVICE, UNGAPPED SOFTWARE, OR ANY OTHER SERVICES PROVIDED BY UNGAPPED, THE DOCUMENTATION OR ANY OTHER MATERIALS PROVIDED BY UNGAPPED, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. UNGAPPED DOES NOT WARRANT THAT THE UNGAPPED SOFTWARE OR UNGAPPED SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES AND THAT NO WARRANTIES ARE MADE BY ANY OF UNGAPPED’S SUPPLIERS.

12 Limitation of Liability

IN NO EVENT SHALL UNGAPPED BE LIABLE, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF OR DAMAGE TO DATA, COST OF COVER, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR UNGAPPED’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, THE UNGAPPED SOFTWARE, UNGAPPED SERVICE, DOCUMENTATION OR OTHER MATERIALS OR SERVICES PROVIDED BY UNGAPPED, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT UNGAPPED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL UNGAPPED’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT AND THE UNGAPPED SOFTWARE, UNGAPPED SERVICE, DOCUMENTATION AND OTHER MATERIALS OR SERVICES PROVIDED BY UNGAPPED, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EXCEED THE TOTAL FEES ACTUALLY PAID TO UNGAPPED BY CUSTOMER UNDER THE PURCHASE ORDER CORRESPONDING TO THE UNGAPPED SOFTWARE IN RESPECT OF WHICH THE LIABILITY AROSE AND LIMITED TO THE AMOUNT OF SUCH FEE CORRESPONDING TO THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE FIRST CLAIM GIVING RISE TO SUCH LIABILITY AROSE. CUSTOMER AGREES THAT UNGAPPED’S SUPPLIERS AND AFFILIATES WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT.

13 Application of Limitations and Disclaimers to Consumers

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 11 and 12 above may not apply to Customer if Customer is a consumer. The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to consumer Customers only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where such Customer is located.

14 Basis of Bargain

The warranty disclaimer and limitation of liability set forth above in Section 11 and 12 are fundamental elements of the basis of the agreement between Ungapped and Customer. Ungapped would not be able to provide the Ungapped Service on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Ungapped’s suppliers.

15 Availability of the Services

Information describing the Ungapped Service is accessible worldwide but this does not mean the Ungapped Service or Ungapped Software or certain portions thereof are available in Customer’s country. Ungapped may restrict access to the Ungapped Service or the Ungapped Software or portions thereof in certain countries. It is Customer’s responsibility to make sure its use of the Ungapped Service or Ungapped Software is legal in Customer’s country of residence. The Ungapped Service may not be available in all languages. If at Ungapped’s reasonable determination, Customer uses the Ungapped Service, Ungapped Software, Documentation or any other material or services provided by Ungapped under this Agreement in a manner that violates laws, creates an excessive burden or potential adverse impact on Ungapped systems, in addition to any of its other rights or remedies, Ungapped may, without liability to Ungapped, immediately suspend or terminate Customer’s access to the Ungapped Service.

16 Governing Law; Arbitration

16.1 Governing Law

This Agreement will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles.

16.2 Disputes

Except as otherwise set forth in this Agreement, you agree that any dispute between you and Ungapped arising out of or relating to this Agreement, the Ungapped Service, or any other Ungapped products or services (collectively, “Disputes”) shall be governed by the provisions set forth in this Section 16.

16.3 Informal Resolution

Before resorting to formal dispute resolution in accordance with this Section, you agree to first contact us directly at hello@ungapped.com to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, you or Ungapped may institute arbitration in accordance with the procedures set forth in this Section.

16.4 Dispute Resolution

Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 16.3 above shall be resolved exclusively through final, binding and confidential arbitration and shall take place in San Francisco, California unless otherwise mutually agreed to by the parties. The arbitration shall be conducted under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (AAA) as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.

16.5 Opting-Out of Arbitration

You may opt-out of the agreement to arbitrate by providing Ungapped written notice within thirty (30) days of first accepting this Agreement. Your notice must include: (i) your full name (first and last); (ii) the email address you used to register your account; and (iii) a clear statement that you decline this agreement to arbitrate.

16.6 Exception to Arbitration

Notwithstanding anything in this Agreement to the contrary to the extent you have in any manner violated or threatened to violate any of Ungapped’s intellectual property rights, Ungapped may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts.

16.7 No Class Actions

You may only resolve Disputes with Ungapped on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed under This Agreement.

16.8 Venue and Waiver of Jury Trial

In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Ungapped agree that any judicial proceeding will be brought in the federal or state courts of San Francisco County, California. Both you and Ungapped consent to venue and personal jurisdiction there. YOU AND UNGAPPED both agree to waive ANY right EITHER PARTY MAY HAVE TO a jury trial.

16.9 Time Limitation to Bring Claims

Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Ungapped products or Ungapped Service must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.

17 Miscellaneous

Neither the rights nor the obligations arising under this Agreement are assignable by Customer, and any such attempted assignment or transfer shall be void and without effect. Any waiver, amendment or modification of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. Each party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such party’s obligations have been duly authorized and that this Agreement is a valid and legal agreement binding on the party and enforceable according to its terms. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of this Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between Ungapped and Customer. Ungapped may delegate the performance of any services hereunder to its affiliates and contractors. This Agreement, the Privacy Policy, the Developer Terms, the AUP, and the Additional Terms constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to Customer may be provided by email. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Any delay in performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.

18 Changes to this Agreement and the Ungapped Service

Ungapped reserves the right to change the terms and conditions of this Agreement in its sole discretion from time to time. All such changes will be effective when posted on the Ungapped Website or emailed to Customer at the e-mail designated in Customer’s user account. Customer agrees to review the Ungapped Website periodically for changes. Ungapped reserves the right to change or discontinue the Ungapped Service or Ungapped Software, in whole or in part, including without limitation, the Internet based services, pricing, technical support options, and other product-related policies. Customer’s continued use of the Ungapped Service and/or Ungapped Software after such changes are made to this Agreement and are provided on the Ungapped Websites or emailed to Customer will indicate Customer’s acceptance to such changes.

19 Questions or Additional Information

If Customer has questions regarding this Agreement, please send an e-mail to hello@ungapped.com.

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