TERMS OF SERVICE

 

Welcome, and thank you for visiting the Gem website (the “Site”). BitVault, Inc. (“Gem”, “we”, “us” or “our”) provides the Site, our App for iOS, and our Android app related to our cryptocurrency portfolio command services that help you take command of your cryptocurrency holdings (the “Services”).  The Services allow you to connect your accounts at major exchanges, providing you a unified view of all your holdings.  Services functionality includes detailed market data on each holding, portfolio allocation visuals, transaction history, net worth snap shots, and any other functionality we may provide.

 

Your use of the Services is subject to the following terms of service (“Terms”). The Services are offered to you conditioned on your acceptance, without modification, of the Terms; if you do not agree to the Terms, you may not use the Services. Your use of the Services constitutes your agreement to all the Terms. Please read the Terms carefully, keep a copy of them for your reference, and if you have any questions about the Terms please contact us prior to using the Services.

 

We are frequently modifying, updating, expanding, and improving the Services. We reserve the right, subject to applicable law, to make changes, modify, or add or remove portions of the Terms, our Privacy Policy, and other incorporated terms and policies at any time, in our sole discretion. Nonetheless, we encourage you to check the Site frequently to see the current Terms in effect and any changes that may have been made to them. If we make material changes to the Terms, we will post the revised Terms and the revised effective date on the Site. Your continued use of the Services after the date of any changes become effective constitutes your acceptance of the new Terms. No one at Gem is authorized to modify the Terms with you or otherwise enter into an agreement with you that conflicts with the Terms, except by means of written agreement signed by an authorized agent of Gem, and any other purported modifications or alterations or conflicting terms will be null and void.

 

PLEASE READ THE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.  THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST GEM ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.

 

Electronic Communications

 

Visiting or using the Services or sending emails to Gem constitute electronic communications. By visiting the Site, using the Services, or sending emails to Gem, you consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email or on the Services, satisfy any legal requirement that such communications be in writing.

 

Your Account

 

You are required to register with us and establish and maintain an account with us (“Gem Account”) in order to access and use certain features of the Services. If you use the Site, you are responsible for maintaining the confidentiality of your Gem Account and password and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your Gem Account or password. You may not assign or otherwise transfer your Gem Account to any other person or entity. You acknowledge that Gem is not responsible for third party access to your Gem Account that results from theft or misappropriation of your Gem Account. Gem and its associates reserve the right, in our sole discretion, to refuse or cancel service, terminate accounts, or remove or edit content. You are responsible for maintaining the confidentiality of your password and Gem Account, if any, and are fully responsible for any and all activities that occur under your password or Gem Account. You agree to (a) immediately notify us of any unauthorized use of your password or Gem Account or any other breach of security, and (b) ensure that you exit from your Gem Account at the end of each session when accessing the Services. We will not be liable for any loss or damage arising from your failure to comply with this Section.

 

Gem does not knowingly collect, either online or offline, personal information from persons under the age of 18. If you are under 8, you may not use the Services under any circumstances.

 

You acknowledge that we may establish general practices and limits concerning use of the Services, including the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on Gem’s servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You acknowledge that we reserve the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.

 

Third Party Accounts

 

We use third party product, exchange and/or account providers (collectively, “Third Party Providers”) to gather and verify information about your financial accounts, including obtaining your authority and right to access these accounts. You agree to provide true, accurate, complete, and current information about yourself and your accounts. You authorize us and these Third Party Providers to access the websites and sources of your financial accounts, on your behalf, and to gather information about you so that we can provide the Services to you. You agree to the transfer, storage, and processing of your information by these Third Party Providers in accordance with their respective privacy policies. You give us and these Third Party Providers a limited power of attorney, and appoint us and these Third Party Providers as your true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and in your name and place, in any capacity, to access third party websites and sources, servers, or documents, retrieve information, and use this information, with full power and authority to do anything with the information in connection with our Services. You license to us and these Third Party Providers any information, data, passwords, materials, or other content gathered for such purposes. You agree that, for such purposes, we and these Third Party Providers may use, modify, display, and distribute this content, create new material with it, and do the same with any new material. You understand and agree that our Services are not endorsed or sponsored by any Third Party Providers, and that such Third Party Providers are third party beneficiaries of the Terms with respect to the products and accounts provided by such providers.

 

Exchange Data

 

To use the Services, you must link your exchange accounts to your Gem Account.  Only accounts from exchanges that permit your exchange account to be linked to your Gem Account and that provide us any information we need to provide the Services may be successfully linked to your Gem Account.  We use transaction data (“Transaction Data”) from your linked exchange accounts to provide you the Services.  In order to do this, you direct us and give us your permission to obtain Transaction Data from the exchanges you identify.  We may work with Third Party Providers to obtain Transaction Data with your permission.  The permissions you provide also allow our service providers to use your Transaction Data to provide their services to us.  We and our service providers will not provide Transaction Data to you in the original form received from any exchange.  We provide a summary of Transaction Data to help you manage your exchange holdings in one place within your Gem Account. We do not review Transaction Data for accuracy or completeness.  We have no liability for any actions or inactions on the part of any service provider or exchange.  We and our service providers are not responsible for Transaction Data or the Transaction Data summary we provide you.  We and our service providers are not responsible for delays in obtaining Transaction Data, the accuracy, completeness, storage or loss of Transaction Data or the Transaction Data summary provided to you, personalization settings or service interruptions.  Transaction Data may only be current at the time accessed and is provided on an “as is” and “as available” basis from the exchanges.  Transaction Data may be more current if obtained directly by you from the exchanges.

 

You are solely responsible for your Transaction Data and the consequences of linking your exchange accounts to your Gem Account.  We may, in our sole discretion, refuse to link any exchange account for any reason.  You grant us a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, summarize, reproduce, distribute, prepare derivative works of, and display your Transaction Data to provide the Services and for our own business purposes, including for improving the Services and developing new products and services.  We may share your Transaction Data with service providers to provide the Services and other products and services to you.  We may share aggregated Transaction Data with third parties to compile usage trends and statistics, for research purposes, general analysis, or any other use that we deem to be to the benefit of us or our customers. 

 

Mobile Services

 

The Services include certain services that are available via a mobile device, including the ability to (i) upload content to the Services via a mobile device, (ii) browse the Services and the Site from a mobile device and (iii) access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply.  In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.  In the event you change or deactivate your mobile telephone number, you agree to promptly update your Gem Account information to ensure that your messages are not sent to the person that acquires your old number.

 

Third Party Sites

 

The Services may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of Gem and Gem is not responsible for the contents of any Linked Site, including any link contained in a Linked Site, or any changes or updates to a Linked Site. Gem is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Gem of the site or any association with its operators. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

 

Certain services made available via the Services are delivered by third party sites and organizations. By using any product, service or functionality originating from the Services domain, you acknowledge and consent that Gem may share any related information and data with any third party with whom Gem has a contractual relationship to provide the requested product, service or functionality.

 

We are Not an Agent, Broker, Insurer, or Advisor

 

The Services are designed to provide you facilities and information for you to manage and make decisions about your cryptocurrency holdings. We are not a money services business, money transmitter, exchange, broker, agent of a third party product provider, insurer, or otherwise a party to any transaction you enter into with any third party product provider. We are not an investment or financial advisor, and our Services are not designed or intended to offer investment or financial advice of any kind. You acknowledge and agree that you are not relying on us to provide advice regarding any cryptocurrency exchange or financial transaction. You acknowledge and agree that we are not a party to any transactions or agreements entered into between you and any third party product providers. If you enter into a transaction with a third party, you are contracting directly with that third party provider and not with us. Lastly, the agreements governing the terms and conditions of any transaction with a third party are separate from the Terms and the Services.

 

Prohibited Uses and Intellectual Property

 

You are granted a non-exclusive, non-sublicenseable, non-transferable, revocable license to access and use the Services strictly in accordance with the Terms. As a condition of your use of the Services, you warrant to Gem that you will not use the Services for any purpose that is unlawful or prohibited by the Terms. You may not use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services.

 

All content included on the Services[, except for Submissions (as defined below),] such as text, graphics, logos, images, as well as the compilation thereof, and any software (including in both object code and source code form) or other proprietary data or information used in connection with the Services (collectively, “Content”), is the property of Gem or its suppliers or licensors and is protected by copyright, trademark and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.

 

You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the Services, including any Content, in whole or in part. The Services and Content are not for resale. Your use of the Services does not entitle you to make any unauthorized use of any Content, and in particular you will not delete or alter any proprietary rights or attribution notices in any Content. You will use Content solely for your personal use, and will make no other use of Content without the express written permission of Gem and the copyright owner. You agree that you do not acquire any ownership rights in any Content. We do not grant you any licenses, express or implied, to the intellectual property of Gem or our licensors except as expressly authorized by the Terms. If you are blocked by us from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).

 

Communication Services

 

The Services may but need not contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service.

 

By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload any content that infringes any intellectual property or other proprietary rights of any party; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer; upload any content that creates or poses a privacy or security risk to any person; upload any content that constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; upload any content that is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; solicit personal information from anyone under the age of 18; further or promote any criminal activity or enterprise or provide instructional information about illegal activities; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; harvest or otherwise collect information about others, including e-mail addresses, without their consent; violate any applicable law.

 

Gem has no obligation to monitor the Communication Services. However, Gem reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Gem reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.

 

Gem reserves the right at all times to disclose any information as necessary to satisfy any applicable law, legal process or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Gem’s sole discretion.

 

Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Gem does not control or endorse the content, messages or information found in any Communication Service and, therefore, Gem specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service.

 

Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you upload the materials.

 

Special Notice for International Use; Export Controls

 

The technology and software underlying the Services (“Software”) available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls.  No Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws.  Downloading or using the Software is at your sole risk.  Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services.

 

Submissions

 

You may post, upload, input or submit to any Services or our associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submissions you are granting Gem, our affiliated companies and necessary sublicensees permission to use your Submissions in connection with the operation of their businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submissions; and to publish your name in connection with your Submissions.

 

You will receive certain tokens for your Submission, as specified on the Site. All such Submissions will also be subject to revisions and contributions by other users (“Contributors”), where such Contributors will receive certain tokens for their revisions and contributions, as specified on the Site.  Gem is under no obligation to post or use any Submissions you may provide and may remove any Submissions at any time in Gem’s sole discretion.

 

By posting, uploading, inputting, providing or submitting your Submissions you warrant and represent that you own or otherwise control all of the rights to your Submissions as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions. You are legally responsible for your Submissions on the Services, so for your own protection you should exercise caution and avoid contributing any content that may result in criminal or civil liability under any applicable law. For clarity, applicable law includes at least the laws of the United States of America. Although we may not agree with such actions, we warn editors and contributors that authorities may seek to apply other country laws to you, including local laws where you live or where you view or edit content. We cannot offer any protection, guarantee, immunity or indemnification in relation to such actions.

 

Because all Submissions are collaboratively edited, all of the content that we host is provided by users like you, and we do not take an editorial role. This means that we generally do not monitor or edit the content of the Submissions, and we do not take any responsibility for this content. Similarly, we do not endorse any opinions expressed via our services, and we do not represent or guarantee the truthfulness, accuracy, or reliability of any submitted community content. Instead, we simply provide access to the content that your fellow users have contributed and edited.

 

Because we provide a wide array of content that is produced or gathered by fellow users, you may encounter material that you find offensive, erroneous, misleading, mislabeled, or otherwise objectionable. We therefore ask that you use common sense and proper judgment when using the Services.

 

You acknowledge and agree that we may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable law or government requests; (b) enforce the Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Gem, its users and the public. You understand that the technical processing and transmission of the Services, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

 

International Users

 

The Services are controlled, operated and administered by Gem from our offices within the United States of America. If you access the Services from a location outside the USA, you are responsible for compliance with all foreign, local and other jurisdiction laws, whether in the United States or in your jurisdiction. You agree that you will not use the Content accessed through the Services in any country or in any manner prohibited by any applicable law or restriction.

 

Indemnification

 

You agree to indemnify, defend and hold harmless Gem, its officers, directors, employees, agents, consultants, subsidiaries, affiliates and other related parties (each an “Indemnified Party”)from and against all demands, losses, costs, liabilities, claims, actions and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of or inability to use the Services, [any user postings made by you,] your violation of the Terms or your violation of any rights of a third party, or your violation of any applicable law. Gem reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Gem in asserting any available defenses.  Notwithstanding the foregoing, you will have no obligation to indemnify, defend or hold harmless any Indemnified Party from or against any liability, damages or costs incurred as a result of the gross negligence or willful misconduct of such Indemnified Party.

 

IF YOU ARE A USER FROM NEW JERSEY, THIS SECTION IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY.  IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILLWILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.

 

Disclaimers

 

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE SERVICES. GEM AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SERVICES AT ANY TIME.

 

GEM AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY AND ACCURACY OF THE SERVICES, INCLUDING THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND GRAPHICS, FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ALL RELATED INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. GEM AND/OR ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE PRODUCT AND SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  GEM CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD IN CONNECTION WITH THE SERVICES WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES, AND, IN PARTICULAR, YOU ACCEPT ALL RISK AND LIABILITY IN CONNECTION WITH YOUR PARTICIPATION THE SERVICES.

 

IF YOU ARE A USER FROM NEW JERSEY, THIS SECTION IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY.  IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.

 

Limitation of Liability

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GEM AND/OR ITS SUPPLIERS BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR PERFORMANCE OF THE SERVICES, WITH THE DELAY OR INABILITY TO USE THE SERVICES, RELATED SERVICES OR PRODUCTS, THE PROVISION OF OR FAILURE TO PROVIDE THE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, THE SERVICES,  PRODUCTS, OTHER SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICES, OR OTHERWISE ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF GEM OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES; OR (B) ANY AMOUNT, WHETHER INDIVIDUALLY OR IN THE AGGREGATE, EXCEEDING $25. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THIS LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.

 

IF YOU ARE A USER FROM NEW JERSEY, THIS SECTION IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY.  IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THIS SECTION.

 

USE OF THE SERVICES IS UNAUTHORIZED IN ANY JURISDICTION THAT DOES NOT GIVE EFFECT TO ALL PROVISIONS OF THE TERMS, INCLUDING THIS SECTION.

 

Termination

 

Gem reserves the right, in its sole discretion, to terminate your access to the Services and its related products and other services or any portion of them at any time and for any reason, without notice.

 

Reviews and Comments

 

We may, from time to time, permit you or other visitors to post reviews, comments and other content; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of content. Gem reserves the right (but not the obligation) to remove or edit content, but does not regularly review posted content.

 

Dispute Resolution by Binding Arbitration; Jury Trail Waiver; Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

 

For any and all controversies, disputes, demands, claims, or causes of action between you and us (including the interpretation and scope of this Section and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to the Services or the Terms (as well as any related or prior agreement that you may have had with us), you and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”).  The Notice to Gem must be sent to 120 Mildred Ave, Venice, CA 90291 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought.  If Gem and you do not resolve the claim within 60 calendar days after the Notice is received, you or Gem may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Gem or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Gem is entitled. The arbitration will take place in the federal judicial district of the Los Angeles County, California, or if that is deemed inappropriate, the federal judicial district of your residence. As used in this Section, “we” and “us” mean the [LEGAL ENTITY NAME]. In addition, “we” and “us” include any third party providing any product, service, or benefit in connection with the Services or the Terms (as well as any related or prior agreement that you may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this Section.

 

Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). Where no claims or counterclaims exceed $10,000, the dispute will be resolved by the submission of documents without a hearing, unless a hearing is requested by a party or deemed necessary by the arbitrator, in which case, a party may elect to participate telephonically.

 

You should review this provision carefully. To the extent permitted by applicable law, you are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in the state or municipality of your residence within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding this agreement to arbitrate, claims of defamation, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in the Los Angeles County, California. Additionally, notwithstanding this agreement to arbitrate, you or us may seek emergency equitable relief before the state or federal courts located in the Los Angeles County, California in order to maintain the status quo pending arbitration and agree to submit to the exclusive personal jurisdiction of the courts located within the Los Angeles County, California for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.

 

Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

 

You and we must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost- prohibitive as compared to the cost of litigation, (d) we also reserve the right, in our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of the Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) you and we will pay our respective attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law.

 

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Section.  If the value of the relief sought is $75,000 or less, at your request, we will pay all Arbitration Fees.  If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, we will pay your portion of such fees.  In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Gem will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.  Any payment of attorneys’ fees will be governed by the AAA Rules.

 

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

 

This Section will survive termination of your Gem Account and the Terms as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (a) and (b) above of this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (a) or (b) above of this Section is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court located in Los Angeles County, California.

 

Notwithstanding any provision in the Terms to the contrary, Gem agrees that if it makes any future change to this arbitration section (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within 30 calendar days of the change to the Notice Address provided above.  By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).

 

For more information on the AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call the AAA at 888-778-7879 or visit the AAA website at http://www.adr.org.

 

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THE SERVICE OR THE TERMS MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IT WILL BE FOREVER BARRED.

 

Digital Millennium Copyright Act

 

If you are a copyright owner or agent of a copyright owner and believe any content infringes upon your copyrights, you may submit a written notice pursuant to the Digital Millennium Copyright Act (“DMCA”) to our copyright agent at copyright@gem.co.

 

In order to take action, your notice must:

 

We cannot take action unless you give us all required information, and you acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.

 

Please note that you can be held liable for damages (including costs and attorneys’ fees) if you wrongfully claim that content infringes your copyright. If you are not sure whether content infringes your copyright, you should first contact an attorney and seek legal advice.

 

If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to post and use such material, you may submit a written counter-notice to our copyright agent at copyright@gem.co. In order to take action, your counter-notice must: (1) include your physical or electronic signature; (2) identify your content that has been removed or to which access has been disabled and the location at which your content appeared before it was removed or access to it was disabled; (3) include a statement, under penalty of perjury, that you have a good faith belief that your content was removed or disabled as a result of mistake or a misidentification of your content; and (4) include your name, address, and telephone number and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided the DMCA notice to us or an agent of such person. If a proper counter-notice is received by our copyright agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it in 10 business days. We may, in our discretion, replace or restore access to the removed content and cease disabling access to it in 10 to 14 business days or more after receipt of the counter-notice, unless our designated agent first receives notice from the person who submitted the DMCA notice that such person has filed an action seeking a court order to restrain the owner of the removed content from engaging in infringing activity relating to such content.

 

User Disputes

 

You agree that you are solely responsible for your interactions with any other user in connection with the Services and Gem will have no liability or responsibility with respect such interaction.  We reserve the right, but have no obligation, to become involved in any way with disputes between you and any other user of the Services.

 

General

 

The Terms will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Gem agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Los Angeles County, California. The failure of Gem to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. A printed version of the Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign the Terms without the prior written consent of Gem, but Gem may assign or transfer the Terms, in whole or in part, without restriction. The section titles in the Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail.

 

You agree that no joint venture, partnership, employment, or agency relationship exists between you and Gem as a result of the Terms or use of the Services. Gem’s performance of the Services is subject to existing laws and legal process, and nothing contained in the Terms is in derogation of Gem’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Services or information provided to or gathered by Gem with respect to such use.

 

Unless otherwise specified in the Terms, the Terms constitutes the entire agreement between you and Gem with respect to the Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Gem with respect to the Services. A printed version of the Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that the Terms and all related documents be written in English.

 

Your Privacy

 

At Gem, we respect the privacy of our users. For details please see our Privacy Policy.  By using the Services, you consent to our collection and use of personal data as outlined in our Privacy Policy.

 

Notice for California Users

 

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Gem, hello@gem.co, or by telephone at (323) 487-2487.

 

Contact Us

 

Gem welcomes your questions or comments regarding the Terms via email at hello@gem.co.