THE FOLLOWING TERMS AND CONDITIONS APPLY IF YOU ARE ACCESSING GEARLAUNCH’S SERVICES ON GEARLAUNCH’S SHOPIFY APP (AS THOSE TERMS ARE DEFINED BELOW):
For clarity, these terms constitute a “EULA” as set forth in the Shopify App Store Terms and Conditions (available at https://www.shopify.com/partners/app-store-terms).
SECTION 1. SERVICES
1.1 Subject to the terms and conditions of these Terms, GearLaunch, its affiliates, contractors and/or agents will use commercially reasonable efforts to, in connection with sales made through the Seller Store, provide data processing, order processing, manufacturing, fulfillment, returns processing, customer service and web and sales analytics through the GearLaunch application software product (the “App”) available on the Shopify App Store (collectively, the “Services”). The Services and these Terms may be altered or modified from time to time in GearLaunch’s sole discretion, except that if we alter or modify these Terms, we will bring it to your attention by updating the Terms on the Shopify App Store, by sending you an email, and/or by some other means.
1.2 Access to the Services may require Seller to install certain software applications and/or access other software services operated or provided by third parties (“Third Party Services”). GearLaunch is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Seller is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. GearLaunch does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Seller and a third party provider is solely between Seller and such third party provider and is governed by such third party’s terms and conditions.
1.3 Seller acknowledges and agrees that GearLaunch has the right to remove any content, including Seller Content (as defined below) or Product from the Services at any time, for any reason (including, but not limited to, upon receipt of threats, claims or allegations relating to such content or Product). GearLaunch is also free to suspend access to your use of the Services or your account, for any reason, in our reasonable discretion.
SECTION 2. LICENSE
Subject to the terms and conditions of these Terms (including, without limitation, the restrictions set forth in Section 4 below), GearLaunch hereby grants Seller a limited, non-sublicensable, non-transferable, non-exclusive license to access and use the Services in accordance with the terms of these Terms. This license will terminate automatically upon termination of these Terms.
SECTION 3. INTELLECTUAL PROPERTY
3.1 Seller acknowledges and agrees that GearLaunch owns all right, title and interest (including proprietary and intellectual property rights and all other rights of any sort throughout the world) relating to any and all inventions, works of authorship, artistry, designations, designs, the “look and feel,” know how, ideas, programs and information in connection with the Services (including without limitation the App) and all derivatives, modifications, upgrades, or versions thereof and GearLaunch’s name, trademark, and logo (“GearLaunch Marks”). Seller acknowledges that, except for the limited license expressly granted in these Terms, Seller has not acquired and will not acquire any right, title or interest in the Services or the GearLaunch Marks or any intellectual property relating to any of the foregoing.
3.2 GearLaunch acknowledges and agrees that Seller retains all right, title and interest in and to Seller’s name, trademark(s) and logo (“Seller Marks”) and all unique content, including without limitation images, artwork, and designs created or provided by Seller on the Seller Store (“Seller Content”). Seller hereby grants GearLaunch and its successors a worldwide, non-exclusive, royalty-free, sublicensable license to use, display, reproduce and distribute the Seller Marks and Seller Content (i) for the purposes of these Terms, including for the purpose of fulfilling GearLaunch’s obligation of providing the Services and (ii) as reasonably necessary to publicize the parties’ relationship and Seller’s use of the Services.
SECTION 4. SELLER RESPONSIBILITIES
4.1 Seller will upload Seller Content in an acceptable format (which, subject to GearLaunch’s discretion, may include .png, .eps, .svg, .jpg, .jpeg, and .gif formats of at least 300 dpi) and comply with all other technical requirements for the Seller Content, all as determined by GearLaunch in its discretion.
4.2 Seller will meet any minimum launch and/or threshold sales requirements specified by GearLaunch, in GearLaunch’s sole discretion.
4.3 Seller will integrate the App and display content provided through the App on the Seller Store by installing the App and connecting it to the Seller Store, or by following other instructions which may be provided by GearLaunch from time to time.
4.4 Seller will not, and will not permit anyone else to, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, data or algorithms of any part of the Services (except to the extent such restriction is prohibited by applicable law); (b) copy, modify, translate, or create derivative works based on the Services; (c) rent, sell, lease, distribute, provide on a service bureau basis or otherwise use the Services for the benefit of any third party; (d) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (e) use or refer to the Services or any portion thereof for benchmarking or to research, build, or modify a product or service competitive with the Services; or (f) or use the Services other than in accordance with these Terms and in compliance with all applicable laws and regulations. Seller is responsible for all of Seller’s activity in connection with the Services.
4.5 Seller acknowledges and agrees that the terms of sale available here (as updated by GearLaunch from time to time) will apply to any purchase through the Seller Store, and Seller will comply with its obligations set forth in such terms, and will not modify or obscure such terms or otherwise take any action that would impede the effectiveness of such terms.
4.8 You may be required to sign up for an account in connection with the App and Services, and select a password and user name (“GearLaunch User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your GearLaunch User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.
SECTION 5. CONFIDENTIALITY
Seller agrees that all code, inventions, algorithms, know-how and ideas and all other proprietary business and technical information obtained from GearLaunch is the confidential property of the GearLaunch (“Confidential Information’’). Except as allowed herein, during the term of these Terms and after any termination hereof, Seller will hold in confidence and not use or disclose any Confidential Information and will be responsible for any use or disclosure of such Confidential Information by its employees, agents, and contractors. Confidential Information will not include information Seller can document: (a) is or has become readily publicly available without restriction through no fault of the Seller or its employees, agents or contractors; (b) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; (c) was rightfully in the possession of Seller without restriction prior to its disclosure by GearLaunch; or (d) was independently developed by Seller employees or consultants without use of or reference to the Confidential Information. If required by law or court order, Seller may disclose Confidential Information provided that Seller provides prior notice to GearLaunch of any such intended disclosure (to the extent permitted by law), uses reasonable efforts to limit such disclosure and to obtain confidential treatment of or a protective order governing any such disclosure, and allows GearLaunch to participate in the proceedings.
SECTION 6. REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER
6.1 Seller represents and warrants that (a) Seller owns, controls, or has all licenses, rights, consents and permissions necessary to use and authorize GearLaunch and its agents, contractors and service providers to use the Seller Content and Seller Marks; (b) neither the Seller Marks the Seller Content, nor performance of these Terms by either party will infringe, misappropriate or violate any intellectual property rights or other rights or agreements; (c) neither the Seller Marks nor the Seller Content contain anything that defames, libels or otherwise injures or interferes with the privacy or publicity rights of any third party or anything that is obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party; (d) no part of the Seller Marks, the Seller Content, or these Terms (or their performance) will require payment of any kind to any third party; (e) Seller will not (and will not permit anyone else to) upload, download, post, submit or otherwise distribute or facilitate distribution of any content or software through the Services that is able to disrupt, damage or interfere with the proper function of any software, hardware, or telecommunications equipment, system, data or other information; circumvent or manipulate GearLaunch’s fee structure or the billing process; impose an unreasonable or disproportionately large load on GearLaunch’s (or its third party providers’) infrastructure; or interfere or attempt to interfere with the proper working of the Services or any activities conducted on or through the Services; (f) Seller’s use of the Services will comply with all applicable law.
6.2 ALL SERVICES PROVIDED BY GEARLAUNCH AND/OR ITS AGENTS, VENDORS, PARTNERS, CONTRACTORS AND SUPPLIERS ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF ACCURACY, RELIABILITY, TIMELINESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
SECTION 7. FEES AND PAYMENT
7.1 Platform Fee: By accepting these Terms, you confirm that you will automatically be charged a monthly platform fee associated with the Services (the “Platform Fee”) through your Payment Provider (as defined below), until you cancel your enrollment. The Platform Fee is listed at http://help.gearlaunch.com/shopify/account/how-much-does-the-shopify-app-cost and may change from time to time. You can cancel your enrollment at any time [from your Shopify account page].
7.2 Product Fees: For each Product sold through Seller’s use of the Services, Seller will pay GearLaunch the applicable Product fee, as listed on GearLaunch’s Seller wholesale price list then in effect (each, a “Product Fee”). Seller will pay such Product Fees in accordance with the then-current applicable payment terms Seller has selected through the Services (the Seller’s “Payment Terms”) through Seller’s selected method of payment (the Seller’s “Payment Method”). Seller agrees to make payment in accordance with its Payment Terms and hereby authorizes GearLaunch to charge Seller’s Payment Method in accordance therewith. GearLaunch is not responsible for any error by any payment providers associated with Seller’s Payment Method. GearLaunch may update the Product Fees from time to time.
7.3 For clarity, both the Payment Terms and the Payment Method must be selected by Seller through the sign-up process and/or through Seller’s account on the Services (Seller’s “Billing Account”). If GearLaunch does not receive payment from Seller, Seller agrees to pay all amounts due on its Billing Account upon demand. For clarity, GearLaunch is not responsible for fulfilling any Product order until GearLaunch receives all applicable payments from Seller.
7.4 SELLER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR SELLER’S PAYMENT METHOD AND BILLING ACCOUNT. SELLER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP ITS PAYMENT METHOD AND BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE). IF SELLER FAILS TO UPDATE ITS PAYMENT METHOD, SELLER AGREES THAT GEARLAUNCH MAY CONTINUE CHARGING SELLER FOR ANY USE OF THE SERVICES UNDER SELLER’S BILLING ACCOUNT IN ACCORDANCE WITH SELLER’S THEN-CURRENT PAYMENT METHOD, UNLESS SELLER HAS TERMINATED THE SERVICES AS SET FORTH HEREIN.
7.5 Seller will pay GearLaunch any development, service and other fees which GearLaunch may introduce from time to time. Upon the introduction of new fees, GearLaunch will notify Seller through the Services. If Seller does not consent to the new fees, then Seller must cease use of the Services or follow the instructions provided by GearLaunch in the applicable notice.
SECTION 8. TERMINATION
These Terms may be immediately terminated by either party for any reason upon notice to the other party. The introduction and Sections 3, 4.4-4.7, 5, 6, 7, 8, 9, 10, 11, and 12 of these Terms will survive any termination.
SECTION 9. RELATIONSHIP OF THE PARTIES
Notwithstanding any provision hereof, for all purposes of these Terms each party will be and act as an independent contractor and not a partner, joint venturer, agent, employee or representative of the other and will not bind nor attempt to bind the other to any contract. Seller is an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort.
SECTION 10. INDEMNIFICATION
Seller, at its own expense, will indemnify and hold harmless GearLaunch, its officers, directors, employees, associates and affiliated corporations against any liabilities, damages and expenses, including, without limitation, reasonable attorneys’ fees, that are actually paid to an unaffiliated third party resulting from third party claims that arise from or relate to (a) an actual or claimed violation of any intellectual property and proprietary rights of any person or entity, including without limitation, rights of publicity, by the Seller Content, Seller Marks, or materials and marketing provided by Seller in connection with these Terms (b) Seller’s payment or failure to pay any taxes relating to the sale of Products, or (c) Seller’s use of the Services.
SECTION 11. LIMITATION OF LIABILITY
GEARLAUNCH CANNOT GUARANTEE THE IDENTITY OR INFORMATION OF ANY USERS (INCLUDING, BUT NOT LIMITED TO, CUSTOMERS) WITH WHOM SELLER INTERACTS IN THE COURSE OF USING THE SERVICES. SELLER WILL NOT HOLD GEARLAUNCH RESPONSIBLE FOR ACTIONS OR INACTIONS OF UNAFFILIATED USERS, INCLUDING ANYTHING THEY INDIVIDUALLY OR COLLECTIVELY POST. EXCEPT FOR ANY BREACH OF SECTION 6 (CONFIDENTIALITY) OR GEARLAUNCH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL GEARLAUNCH BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE), FOR ANY (A) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, (B) DATA LOSS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, TECHNOLOGY, OR RIGHTS, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNT OF GROSS REVENUES PAID TO SELLER BY GEARLAUNCH DURING THE PREVIOUS THREE (3) MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 12. GENERAL
12.1 Governing Law; Arbitration. These Terms will be construed under the laws of the State of California, without regard to its conflicts of law provisions. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California.
12.2 No Third-Party Beneficiaries. These Terms is made exclusively for the benefit of the parties hereto and not for the benefit of any third person or entity.
12.3 Notice. Any notice required or permitted by these Terms to be given to either Party will be deemed to have been duly given if sent (a) by electronic email, with confirmation of successful transmission to email@example.com when sent by Seller to GearLaunch, and to the email address provided by Seller to GearLaunch when sent by GearLaunch to Seller; or (b) in writing, hand delivered or mailed by first-class, registered or certified mail, postage prepaid and addressed to Legal Department, GearLaunch at 234 Front Street, Third Floor, San Francisco, California 94111, when mailed by Seller to GearLaunch, and to the address provided by Seller to GearLaunch when sent by GearLaunch to Seller. A notice will be deemed to be delivered: (x) in the cases of electronic mail and hand delivery, on the date it is actually delivered; and (y) in the case of first-class, registered or certified mail, postage prepaid, on the third (3rd) business day after it is delivered to the U.S. Postal Service.
12.4 Force Majeure. Neither party nor, its vendors nor their affiliates, subsidiaries, parent corporation or any of their parents’ affiliates or subsidiaries, will be liable in any way for delay, failure in performance, loss or damage related to or due to or arising out of any of the following force majeure conditions: fire, terrorism, strike, embargo, explosion, power blackout, earthquake, volcanic action, flood, war, water, the elements, labor disputes, civil disturbances, government requirement, civil or military authority, acts of God or public enemy, or other causes beyond its reasonable control, whether or not similar to the foregoing.
12.5 Severability. If any term or provision of these Terms will be held to be invalid or unenforceable, the remainder of these Terms will not be affected thereby; and each term and provision hereof will be valid and enforceable to the fullest extent permitted by applicable law.
12.6 Headings. The paragraph headings are supplied only for convenience and do not restrict or elaborate on the terms and provisions contained in such paragraphs.
12.7 Amendment. GearLaunch retains the right to modify the Services or the terms of these Terms at any time. GearLaunch will inform Seller of any smodifications or changes to the Services via the Services or other means. Seller’s use of the Services after receiving such notice will constitute acceptance of such modifications or changes.
12.8 Entire Agreement. GearLaunch and Seller acknowledge that these Terms are the complete and exclusive statement between the parties with respect to the Services and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties, relating to the subject matter of these Terms.
12.9 Assignment. These Terms will be binding and inure to the benefit of the parties. Seller may not assign or otherwise transfer these Terms without GearLaunch’s prior written consent. GearLaunch may freely assign or otherwise transfer these Terms or any of its rights or obligations hereunder. Any purported assignment or delegation, in contravention of these terms, will be null and void.
Version 1.0S 04.02.2018