GearLaunch Terms of Service

 

Effective date: May 1, 2016

Welcome to GearLaunch.com ("Website"). GearLaunch, Inc. (“Company”) offers customized white labeled websites and end-to-end ecommerce solutions (“Services”).  The following Terms of Service (“Terms”) will govern your use of the Website and GearLaunch’s Services. You understand that by using the Website and Services, you have agreed to these Terms.

Intellectual Property Rights of GearLaunch

GearLaunch is the owner (or licensee) of the GearLaunch trademark and other trademarks made available through the Website, including logos, color choices, pattern, design patterns and design trademarks. You understand and agree that GearLaunch (and its licensors) owns all right, title and interest in and to the GearLaunch Website and Services.  You agree not to use GearLaunch’s trade name, trademark, service mark, logo, branding features, or domain name without GearLaunch’s express written consent in each individual instance.

Restrictions on Your Use of the GearLaunch Services

You agree to not use GearLaunch’s Services to create any material that is unlawful, threatening, tortious, abusive, harassing, defamatory, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable, or that infringes on any patent, trademark, trade secret, copyright or other third party proprietary rights.  Your violation of this or any other provisions of these Terms may result in the suspension or termination of your GearLaunch account.

You further agree not to reproduce, duplicate, sell or resell or otherwise exploit any part of the Service, use of the Website or Service, or access to the Website or Service without GearLaunch’s express written permission.

Finally, you will comply with the laws applicable to your use of the Service, including, without limitation, the laws in the jurisdiction where you reside, the laws applicable to your customers or end-users, California law and the Federal laws of the United States.

License Grant

You grant GearLaunch a worldwide, perpetual, irrevocable, royalty-free and non-exclusive license to reproduce, modify and distribute any content (“Content”) you post on the Website or through the Services solely to enable us to perform the Services under these Terms of Service.

Links to Third Party Websites

The Website and Services may include links to third-party websites.  You agree that GearLaunch is not responsible for any loss you experience as a result of using third-party websites or for unlawful or objectionable content on any third party website.

Privacy Policy

By agreeing to these Terms of Service you confirm that you have also read and agreed to our Privacy Policy, a copy of which is available here [insert link].   

Your Age

You confirm that you are at least 18 years of age.  If you are under 18, please refrain from using the Website or the Services until you reach the age of 18.

Password Security

You are responsible for keeping your password secure. GearLaunch cannot and will not be liable for any loss or damage from your failure to maintain the security of your account and password.

Disputes

Any claim or dispute between you and GearLaunch connected to these Terms of Service, the Website or the Services will be resolved exclusively by final and binding arbitration conducted in San Francisco, California, by the American Arbitration Association (the “AAA”) pursuant to the AAA rules and procedures.  One arbitrator will be appointed pursuant to the AAA Rules and will apply California law.  If this arbitration clause is rendered invalid, then any claim or dispute between you and GearLaunch connected to these Terms of Service will be governed by California law without regard to its conflict of law provisions and you and GearLaunch agree to submit to the exclusive jurisdiction of the State and Federal courts located within the County of San Francisco, California.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.

DISCLAIMER OF WARRANTIES

THE SERVICES ARE PROVIDED ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL GEARLAUNCH (OR ITS LICENSORS, AGENTS, PARTNERS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO GEARLAUNCH IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Subject to Change

These Terms of Service may change from time to time.  Please reread these Terms of Service each time you visit our Website or use our Services.  Your continued use of the Services after the modified Terms of Service are posted to the Website constitutes your agreement to, and acceptance of, the amended Terms of Service.  If you do not agree to any modifications to the Terms of Service, do not continue to use the Service.

GearLaunch Privacy Policy

Effective date: August 17th, 2015

We at GearLaunch.com know you care about how your personal information is used and shared, and we take your privacy seriously. Please read the following to learn more about our Privacy Policy. By using or accessing our services, including this site, in any manner, you acknowledge that you accept the practices and policies outlined in this Privacy Policy, and you hereby consent that we will collect, use, and share your information in the following ways.

What does this Privacy Policy cover?

This Privacy Policy covers our treatment of personally identifiable information ("Personal Information") that we gather when you are accessing or using this site, but not to the practices of companies we don't own or control, or people that we don't manage. We gather various types of Personal Information from our users, as explained in more detail below, and we use this Personal Information internally in connection with the services we provide, including to personalize, provide, and improve our services, to allow you to set up a user account and profile, to contact you, to fulfill your requests for certain products and services, and to analyze how you use the services. In certain cases, we may also share some Personal Information with third parties, but only as described below.

We do not knowingly collect or solicit personal information from anyone under the age of 13. If you are under 13, please do not attempt to register for the services or send any personal information about yourself to us. If we learn that we have collected personal information from a child under age 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at .

Will We Ever change this Privacy Policy?

We're constantly trying to improve our services, so we may need to change this Privacy Policy from time to time as well, but we will alert you to changes by placing a notice on the GearLaunch.com, by sending you an email, and/or by some other means. Please note that if you've opted not to receive legal notice emails from us (or you haven't provided us with your email address), those legal notices will still govern your use of the services, and you are still responsible for reading and understanding them. These changes will only apply to Personal Information we collect after we have posted the revised Privacy Policy. If you use the services after any changes to the Privacy Policy have been posted, that means you agree to all of the changes.

What Information Do We Collect?

Information You Provide to Us:

We receive and store any information you knowingly provide to us. For example, when you create an account, place an order or subscribe to our newsletter we may collect Personal Information such as your name, email address, password, phone number, third-party account credentials (for example, your log-in credentials for Facebook or other third party sites), transactional information and credit card information. If you provide your third-party account credentials to us, or otherwise sign in to our services through a third party site or service, you understand some content and/or information in those accounts (“Third Party Account Information”) may be transmitted into your account with us, and that Third Party Account Information transmitted to our services is covered by this Privacy Policy; for example, your name and email address. Certain information may be required to register with us or to take advantage of some of our features.

We may communicate with you if you've provided us the means to do so. For example, if you've given us your email address, we may email you about your use of the services. Also, we may receive a confirmation when you open an email from us. This confirmation helps us make our communications with you more interesting and improve our services. If you do not want to receive communications from us, please indicate your preference by opting out using the link provided at the base of our email communications.

Information Collected Automatically

Whenever you interact with our services, we automatically receive and record information on our server logs from your browser or device, which may include your IP address, device identification, “cookie” information, the type of browser and/or device you're using to access our Services, and the page or feature you requested. “Cookies” are identifiers we transfer to your browser or device that allow us to recognize your browser or device and tell us how and when pages and features in our Services are visited and by how many people. You may be able to change the preferences on your browser or device to prevent or limit your device's acceptance of cookies, but this may prevent you from taking advantage of some of our features.

Our advertising partners may also transmit cookies to your browser or device, when you click on ads that appear on the services. Also, if you click on a link to a third party website or service, a third party may also transmit cookies to you. Again, this Privacy Policy does not cover the use of cookies by any third parties, and we aren't responsible for their privacy policies and practices. Please be aware that cookies placed by third parties may continue to track your activities online even after you have left our services, and those third parties may not honor “Do Not Track” requests you have set using your browser or device.

We may use this data to customize content for you that we think you might like, based on your usage patterns. We may also use it to improve our services – for example, this data can tell us how often users use a particular feature of the services, and we can use that knowledge to make the services interesting to as many users as possible.

Information Collected From Other Websites and Do Not Track Policy

Through cookies we place on your browser or device, we may collect information about your online activity after you leave our site. Just like any other usage information we collect, this information allows us to improve the services and customize your online experience, and otherwise as described in this Privacy Policy. Your browser may offer you a “Do Not Track” option, which allows you to signal to operators of websites and web applications and services (including behavioral advertising services) that you do not wish such operators to track certain of your online activities over time and across different websites. Our services do not support Do Not Track requests at this time, which means that we collect information about your online activity both while you are using the services and after you leave our services.

Will We Share Any of the Personal Information We Receive?

We may share your Personal Information with third parties as described in this section:

Information that's no longer personally identifiable. We may anonymize your Personal Information so that you are not individually identified, and provide that information to our partners. We may also provide aggregate usage information to our partners, who may use such information to understand how often and in what ways people use our services, so that they, too, can provide you with an optimal online experience. However, we never disclose aggregate usage information to a partner in a manner that would identify you personally, as an individual.

Advertisers: We allow advertisers and/or merchant partners (“Advertisers”) to choose the demographic information of users who will see their advertisements and/or promotional offers and you agree that we may provide any of the information we have collected from you in non-personally identifiable form to an Advertiser, in order for that Advertiser to select the appropriate audience for those advertisements and/or offers. For example, we might use the fact you are located in San Francisco to show you ads or offers for San Francisco businesses, but we will not tell such businesses who you are. Or, we might allow Advertisers to display their ads to users with similar usage patterns to yours, but we will not disclose usage information to Advertisers except in aggregate form, and not in a manner that would identify you personally. Note that if an advertiser asks us to show an ad to a certain audience or audience segment and you respond to that ad, the advertiser may conclude that you fit the description of the audience they were trying to reach.

We may deliver a file to you through the services (known as a “web beacon”) from an ad network. Web beacons allow ad networks to provide anonymized, aggregated auditing, research and reporting for us and for advertisers. Web beacons also enable ad networks to serve targeted advertisements to you when you visit other websites. Because your web browser must request these advertisements and web beacons from the ad network's servers, these companies can view, edit, or set their own cookies, just as if you had requested a web page from their site. You may be able to opt-out of web beacon tracking conducted by third parties through our services by adjusting the Do Not Track settings on your browser; please note that we don't control whether or how these third parties comply with Do Not Track requests.

Affiliated Businesses: In certain situations, businesses or third party websites we're affiliated with may sell or provide products or services to you through or in connection with the services (either alone or jointly with us). We will share your Personal Information with such affiliated businesses only to the extent that it is related to such transaction or service. We have no control over the policies and practices of third party websites or businesses as to privacy or anything else, so if you choose to take part in any transaction or service relating to an affiliated website or business, please review all such business' or websites' policies.

Agents: We employ other companies and people to perform tasks on our behalf and need to share your Personal Information with them to provide products or services to you; for example, we may use a payment processing company to receive and process your credit card transactions for us, and we use GearLaunch, Inc., to operate our website and provide us with order processing services. We do not control the privacy policies and practices of these companies and people.

User Profiles and Submissions: If you sign into the services through a third party social networking site or service, your list of “friends” from that site or service may be automatically imported to the services, and such “friends,” if they are also registered users of the services, may be able to access certain non-public information you have entered in your services user profile. Again, we do not control the policies and practices of any other third party site or service.

Business Transfers: We may choose to buy or sell assets, and may share and/or transfer customer information in connection with the evaluation of and entry into such transactions. Also, if we (or our assets) are acquired, or if we go out of business, enter bankruptcy, or go through some other change of control, Personal Information could be one of the assets transferred to or acquired by a third party.

Protection of Company and Others: We reserve the right to access, read, preserve, and disclose any information that we reasonably believe is necessary to comply with law or court order; enforce or apply our Terms of Sale, located at GearLaunch.com and other agreements; or protect the rights, property, or safety of company, our employees, our users, or others.

Is Personal Information about me secure?

Your account is protected by a password for your privacy and security. If you access your account via a third party site or service, you may have additional or different sign-on protections via that third party site or service. You must prevent unauthorized access to your account and Personal Information by selecting and protecting your password and/or other sign-on mechanism appropriately and limiting access to your computer or device and browser by signing off after you have finished accessing your account.

We endeavor to protect the privacy of your account and other Personal Information we hold in our records, but unfortunately, we cannot guarantee complete security. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of user information at any time.

What Personal Information can I access?

Through your account settings, you may access, and, in some cases, edit or delete the following information you've provided to us:

  • name and password
  • email address
  • location
  • order history

The information you can view, update, and delete may change as the services change. If you have any questions about viewing or updating information we have on file about you, please contact us at [email protected]

Under California Civil Code Sections 1798.83-1798.84, California residents are entitled to ask us for a notice identifying the categories of Personal Information which we share with our affiliates and/or third parties for marketing purposes, and providing contact information for such affiliates and/or third parties. If you are a California resident and would like a copy of this notice, please submit a written request to: [email protected]

What choices do I have?

You can always opt not to disclose information to us, but keep in mind some information may be needed to register with us or to take advantage of some of our features.

You may be able to add, update, or delete information as explained above. When you update information, however, we may maintain a copy of the unrevised information in our records.

What if I have questions about this policy?

If you have any questions or concerns regarding our privacy policies, please send us a detailed message to [email protected], and we will try to resolve your concerns.

 

 

GearLaunch Copyright Dispute Policy

Effective date: August 17, 2015

In accordance with the DMCA, we’ve adopted the policy below toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.

Remember that your use of GearLaunch’s Services is at all times subject to the Terms of Use, which incorporates this Copyright Dispute Policy. Any terms we use in this Policy without defining them have the definitions given to them in the Terms of Use.

(1) Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to GearLaunch’s Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):

(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;

(b) Identification of works or materials being infringed;

(c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that GearLaunch is capable of finding and verifying its existence;

(d) Contact information about the notifier including address, telephone number and, if available, email address;

(e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and

(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

(2) Once Proper Bona Fide Infringement Notification Is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:

(a) remove or disable access to the infringing material;

(b) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and

(c) terminate such content provider's access to the Services if he or she is a repeat offender.

(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:

(a) A physical or electronic signature of the content provider;

(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;

(c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and

(d) Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider's address is located outside the United States, for any judicial district in which GearLaunch is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Designated Agent, GearLaunch may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that GearLaunch may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at GearLaunch’s discretion.

Please contact GearLaunch’s Designated Agent at the following address:

Barrett Summerlin

234 Front Street, Level 3

San Francisco, CA 94111

[email protected]

Intellectual Property

At GearLaunch, our priority is providing services that best support sellers in building successful e-commerce businesses. Part of our efforts involve informing our sellers about intellectual property and how to respect the rights of others.

What is Intellectual Property (“IP”)?

Intellectual Property is a type of intangible property that relates to invention or creation. Elements such as design, description, shop name, and logo can be considered intellectual property. The law protects IP in a variety of ways. For example, an inventor can get patent rights on a novel invention, a business might get trademark rights over its name and logo, and an artist is entitled to a copyright on his or her original painting. Here are two ways IP is relevant to a seller’s business:

  1. A seller is alleged to be copying, modifying, reproducing and/or distributing someone else’s IP, either in whole or in part (i.e. the seller is alleged to be “infringing” someone else’s IP).  The owner of the IP may take legal action against the seller and, if a court finds that the allegations are true (no matter whether the infringement was intentional or unintentional), the owner may be entitled to money damages or injunctive relief (for example, a court order prohibiting the seller from selling certain designs).
  2. A seller thinks someone else is violating his or her IP rights. If it turns out to be an infringement, then whether the infringement is intentional or not, it means the seller’s  rights have been violated and the seller’s business could be negatively impacted. The seller may take legal action against the infringer and may be entitled to money damages and/or injunctive relief.

In either scenario, knowing the law and abiding by the rules can help better protect a business.

As IP laws may be unfamiliar to some businesses, below is some basic information about them. We focus primarily on United States intellectual property law, but this information may also apply to countries that have similar laws or related treaties with the USA.

This is very high-level information. Please note that the information we provide is not the same as legal advice – legal advice is the application of law to an individual’s specific circumstances.  Also, we are not lawyers. If you are unsure of whether or not your business is compliant with IP laws, it is your responsibility to consult an attorney.

What is a copyright?

Copyright is a type of protection given to authors of original works for exclusive control over the reproduction and distribution of their original work.

It is important to note that copyright protects only the form of expression– not the underlying idea or subject matter. There is no copyright protection for ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. For example, an artist could receive copyright protection over her photograph of a boat in a harbor – including her particular choices regarding colors, composition, and perspective, but could not receive a copyright for her idea of photographing the boat in the first place. Anyone copying her photo (for example, by putting it on a website or on printed flyers) could be liable for infringement, but someone independently photographing a similar boat in a similar harbor would not.

Generally speaking, it is illegal to copy, modify, reproduce, or sell a copyrighted work that you do not own or have a license to.

What is “fair use” of a copyright?

The “fair use” privilege is perhaps the most significant limitation on a copyright. At its foundation, fair use ensures that there are some uses of copyrighted material that otherwise would be considered infringement but that do not require permission or payment to the copyright owner. What can be deemed as fair use?

  • Criticism and comment: quoting or excerpting a work in a review or criticism to elaborate or comment.
  • News reporting: summarizing an article with brief quotations in a news report.
  • Research and scholarship: citing a short passage in a scholarly, scientific, or technical work.
  • Non-profit educational uses: creating limited photocopies of written works for classroom use.
  • Parody: imitating well-known work in a comical way.

In most other situations, copying is not legally “fair use.”

It is up to a court to decide what constitutes a fair use.  The court must consider a number of factors including the type of use, the nature of the copyrighted work, the amount and importance of the work used, and the effect on the potential market for the original copyrighted work.  As such, sellers should not assume their use of any particular work is acceptable under fair use.

What does this mean for businesses using GearLaunch?

As outlined in our seller agreement, sellers using the GearLaunch platform agree not to use third party copyrighted works, in whole or in part unless they have permission or are otherwise legally permitted to do so.

For more information on copyright, please visit copyright.gov

What is a trademark?

A trademark is a word, name, sign, or design that represents a company or product and helps consumers easily identify the source of goods.

Trademarks typically cover assets that define a brand. The importance of protecting these assets lies in protecting a brand’s public image. If consumers associate a company with positive feelings and memories, a trademark can achieve a similarly powerful effect when used. Trademark rights prevent others from copying a mark and/or using a confusingly similar mark. However, trademark does not prevent others from producing or selling similar goods under a clearly different mark.

For example, a (hypothetical) national car company named “NXTWheels” promotes its brand using a green spiral logo.  NXTWheels owns a trademark on both its name and logo.  A seller offering a teeshirt with the NXTWheels name or logo who did not get permission from NXTWheels to use that name or logo would be infringing NXTWheels’ trademark rights and could face legal liability. 

What is “fair use” of a trademark?

Courts may allow “fair use” of a trademark in two instances:

  • Descriptive fair use: Use of another’s trademark to describe the user’s products or services, rather than as a trademark to indicate the source of the products or services.
  • Nominative Fair Use: Reference to the owner of a trademark. Accurate reference to a trademark owner or to goods or services sold under a trademark constitutes as fair use. However, it cannot be misleading or defamatory, or imply endorsement or sponsorship by a trademark owner. Additionally, only minimal reference to the trademark to identify its owner is allowed.

As with copyright, it is up to a court to determine what is considered fair use.  Sellers should not assume any particular use of a trademark that isn’t theirs (that they don’t have permission from the trademark owner to use) is acceptable under fair use.

What does this mean for businesses using GearLaunch?

As outlined in our seller agreement, sellers using the GearLaunch platform agree not to use third party trademarks, in whole or in part, unless they have permission or are otherwise legally permitted to do so. Even when making changes to a logo or omitting part of a trademark altogether, sellers still risk infringing on trademark laws when making allusions to the brand and/or using a brand’s assets (e.g. team colors).

For more information on trademarks, please visit uspto.gov/trademark

What is the right of publicity?

The right of publicity is different from the legal rights of trademark and copyright. It is the inherent right of every human being to control the commercial use of their name or likeness.

For example: Unauthorized use of Stephen Curry’s image on a t-shirt violates his right of publicity where the purpose is the commercial gain for someone else’s benefit (without his consent).

For more information on the right of publicity, please visit law.cornell.edu/wex/publicity

What does this mean for businesses using GearLaunch?

As outlined in our seller agreement, businesses using the GearLaunch platform agree not to use a human being’s name or likeness without their explicit permission.

What are the consequences of violating IP laws?

GearLaunch takes IP laws very seriously. Sellers are owners of their individual businesses and are responsible for ensuring they have full rights and permissions to any images, logos, slogans or other designs used.

Consequences that any seller who violates the IP rights of others (including violating the non-infringement obligations set forth in our seller agreement) may face include removal of products,  campaign shut down, termination of access to the GearLaunch platform, monetary damages, and potentially even lawsuits by rights holders.