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
2 Acceptance of Terms and Eligibility
3 Access and Use of the Ungapped Service
4 Subscription Services; SMS Services; Professional Services; Training; Support; Payment Terms
4.1 Subscription Services & Fees
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.
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
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.
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.
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.
9.2 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.
“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.
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.
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 email@example.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.
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 firstname.lastname@example.org.