Gaia Communications Technologies
Terms and Conditions
Gaia North America, Inc., d/b/a Gaia Communications Technologies (“GCT,” “Company,” “we,” or “us”) provides its GAIA Software as a Service (“SaaS”) products (the “Services”) to its Clients for use by its Clients and its Client’s employees (collectively, “you”), as described more fully on the Internet at www.gaiact.com (the “Website” or “GAIA Website”). The Services comprise our Portal and all mobile applications, software, services, extensions, and application programming interfaces related to the Portal.
Please read the TOU carefully before activating or using an account with GCT for the Services. By registering for the Services, and using the Services, you agree to be bound by, abide fully with, and accept all of the terms, conditions, and guidelines set forth in the TOU. GCT reserves the right to amend the pricing of the Services at any time with 30 (thirty) days prior notice. Any changes to the pricing of the Services will be effective following posting of such change to the Website and payable commencing with the next billing cycle following the 30 (thirty) day notice period. Any such notice may be communicated in or as part of an invoice or through a separate email communication to your Client Administrator assigned and maintained by your organization through the GAIA administration portal at admin.gaiact.com.
Please note that GCT may change the TOU (except for pricing) at any time with or without notice, and such changes will be effective immediately upon the posting of such modified TOU on the Website. Your use of the Services after any such changes have been posted on the Website constitutes your acceptance of all changes, your agreement to be bound by such changes, and your agreement to abide fully with such changes.
Please also note that at any time, if it is determined by GCT that you have abused or violated the letter, spirit, or intent of any of the terms of the TOU, GCT reserves the right, in its sole discretion, to terminate or suspend your account immediately without notice to you and without penalty or liability of any kind to GCT.
The Services are being offered only to natural persons age eighteen (18) years or older and legal entities whose authorized principals are age eighteen (18) years or older. By registering for the Services, and using the Services, you hereby represent and warrant to GCT that you are a natural person or authorized representative of a legal entity who is age eighteen (18) years or older.
In order to access the Services during the term of service, Client must, at its sole expense: (1) provide and be responsible for payment for all equipment necessary to establish a connection to the Internet; (2) provide for access to the Internet and directly pay any Internet connection service fees from the Internet service provider (“ISP”) Client selected that is associated with such access; and (3) supply all phone service features required for Client’s use of the Services. GCT shall not be responsible for service issues within, caused by, or attributable to Client’s ISP. In addition to any charges for Services billed to Client by GCT, Client is also responsible for all charges associated with its telephone, all telephony equipment, long distance charges and charges for connecting to the Internet. Client agrees that any telephone or other communications mode charges incurred are Client’s sole responsibility. Client may be subject to other charges from its ISP or phone company and such other charges are also Client’s sole responsibility.
Client shall appoint an individual to be the authorized point of contact with GCT for the duration of provision of the Services, and this individual shall be Client’s GAIA administrator and have the authority to delegate administration and implementation to other of Client’s employees as required. Client hereby assumes all liability of any kind arising out of or related to the use of the Services by such authorized person(s). Each party agrees to immediately notify the other party of any unauthorized use of Client’s account or any other breach of security such party knows of or suspects.
Client is solely responsible for all messages, files, documents, graphics, images, other content, data, materials, or information Client transmits, uploads, submits, stores, or sends through the Website or Services (the “Client Content”). The Services include features that involve Client Content.
Client may not upload, post, or transmit any Client Content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of GCT or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; or (4) puts in jeopardy the security of your account, the Website, GCT, or the Services. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all Client Content from the Service or Website. You understand and expressly acknowledge that by using the Services or Website you may be exposed to content that you find offensive, indecent, or objectionable and that we will not be liable to you or any other person or entity for your consumption of any content on the Services or Website.
GCT provides unfiltered services, which means that Client Content is not routinely reviewed before being transmitted through the Services, and GCT will have no liability related to any such Client Content, whether or not arising under the laws of copyright, patent, trade secret, defamation, privacy, or obscenity; the reliability, accuracy, or truthfulness of such Client Content; whether such Client Content is or may be mislabeled, deceptive, harmful, offensive, inaccurate or inappropriate; whether such Client Content may contain errors or omissions; any loss or damage of any kind incurred as a result of the use of any such Client Content; or otherwise. Furthermore, GCT shall not be responsible for any unsolicited telephone calls (e.g., telemarketing calls) or calls made by any type of payphones received by Client through the Services. GCT does not control Client Content accessed, posted, recorded, or otherwise transmitted or received via the Services and does not guarantee the accuracy, integrity or quality of such Client Content. Under no circumstances will GCT be liable for any Client Content accessed, retrieved, recorded, heard, posted, or otherwise transmitted or received via the Services, regardless of where or how such Client Content originated.
CLIENT CONTENT LICENSE.
By submitting Client Content to the Services, you grant GCT a transferable, nonexclusive, worldwide, perpetual, irrevocable, royalty-free right and license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense, and create derivative works of, and compilations incorporating, Client Content for the purposes of: (1) providing the Services; (2) performing other obligations that GCT owes to Client under the TOU, including the applicable Master Services Agreement; and (3) carrying out other business purposes. We reserve the right to remove Client Content or GCT Content from the Services at any time and for any reason without notification to you.
YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, CLIENT CONTENT THAT YOU POST OR PROVIDE THROUGH THE SERVICES. THE RESULTS OF ANY ACTIONS YOU TAKE BASED CLIENT CONTENT, GCT CONTENT, CLIENT DATA, OR OTHER CONTENT YOU FIND ON THE SERVICES ARE SOLELY YOUR RESPONSIBILITY.
Under no circumstances will we be liable in any way for Client Content or for any loss or damage of any kind incurred as a result of the transmission of any of Client Content through the Services. Client expressly warrants that it has the right to grant this license in any Client Content it uploads, stores or transmits to or through the Website or Services. Client agrees that it will evaluate, and bear all risks associated with, the use of any Client Content, including any reliance on the accuracy, completeness, or usefulness of such Client Content. In this regard, Client acknowledges that it may not rely on any Client Content created by, or submitted to, GCT.
The Services include Client’s: (1) data created, input into, and/or processed by GCT in connection with the Master Services Agreement and Client Purposes; (2) summary reports and other materials that contain Client Content, as prepared by GCT; (3) other materials as provided by Client (collectively, the “Client Data”). Client retains all rights in and to Client Data.
GCT INTELLECTUAL PROPERTY RIGHTS.
GCT Content. The Content provided by GCT or by third parties (that is, Content other than as submitted by you) on the Website or through the provision of Services, such as text, graphics, logos, button icons, images, audio clips, digital downloads, and data compilations is the property of GCT or its content suppliers, partners, or affiliates, and is protected by U.S. and international copyright laws (the “GCT Content”). The compilation of all GCT Content on the Website or as provided through the Services is the exclusive property of GCT and is protected by U.S. and international copyright laws.
GCT Marks. Except as expressly authorized by GCT, Client agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Website, the Services, or other logos and product and services names, in whole or in part, that are owned or used by, or are trademarks of, GCT (the “GCT Marks”). Unless Client receives express written permission from GCT, Client agrees not to display or use in any manner, GCT Marks. GCT reserves all rights to its intellectual property. Unless otherwise expressly and explicitly authorized in the Website, by the TOU or the applicable Master Services Agreement, no right to use any such intellectual property rights is granted hereunder. Trademarks owned by third parties are the property of those respective third parties.
GCT Intellectual Property. All GCT Content, GCT Marks, and all software, interface, platform, Portal, application, and extensions, in whole or in part, used on the Website or the Services is the property of GCT or its third party suppliers and is protected by U.S. and international copyright, trademark, intellectual property, and other laws. Client acknowledges and agrees that the Website and Services contain proprietary and confidential information that is protected by applicable U.S. and international intellectual property and other laws.
Our Services, our systems, our databases, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans, specifications, or reports, that are provided or used by GCT or any subcontractor engaged by GCT in connection with the Services or otherwise comprise or relate to the Services, and the designs of each of the foregoing and any and all intellectual property rights in the foregoing (collectively, the “GCT Materials”) shall at all times remain the exclusive property of GCT and its third party licensors. The GCT Materials are confidential information of GCT. Any third party software included in the Services is licensed subject to the additional terms of the applicable third party license. Client is not acquiring any rights in or to the GCT Materials other than a non-exclusive right to access and use the Services solely in accordance with TOU and, where applicable, the Master Services Agreement.
GRANT OF LICENSE TO EMPLOYEES OF CLIENT; CONDITIONS AND RESTRICTIONS OF USE.
On the condition that you comply with all your obligations under the TOU, including the applicable Master Services Agreement, and subject to additional terms of any third party licenses applicable to third party software included in the Services, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely in connection with matters relating to, arising out of, or within the scope of your employment relationship with the Client (“Client Purposes”). We reserve all rights not otherwise expressly granted by the TOU and the applicable Master Services Agreement. If you do not comply with the TOU and the applicable Master Services Agreement, we reserve the right to revoke any license granted in the TOU and the applicable Master Services Agreement and limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in the TOU and the applicable Master Services Agreement is strictly prohibited and constitutes a violation of the TOU and the applicable Master Services Agreement, which may result in the termination of your right to access and use the Services. At any time, Client may cause your access to the Services and GCT Materials to be terminated immediately.
We may discontinue or alter any aspect of the Services, restrict the time the Services are available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to the Services without prior notice or liability to you. Your only remedy is to discontinue using the Services if you do not want a modification we make to the Services.
Your access to the Services is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to the Services or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of the TOU and the applicable Master Services Agreement or other incorporated agreements or guidelines; (2) discontinuance or material modification to the Services; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or to any third party.
You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of the Services in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based; (3) use the Services, GCT Marks, GCT Materials, or GCT Content to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Services, servers, or networks connected to the Services or take any other action that interferes with any other person’s use of the Services; (5) decrypt, transfer, create Internet links to the Services, or “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (6) use or merge the Services or any component thereof with other software, databases, or services not provided or approved by us; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to the Services; (8) use the Services for unlawful purposes; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with the Services; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on or from the Services for any reason; (11) access or attempt to access any other user’s account; (12) use any GCT Materials or GCT Content made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into the Services any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm the Services, or perform any such actions; (14) introduce into the Services any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of any person; (15) delete, modify, hack, or attempt to change or alter the Services, GCT Materials, GCT Content, or notices on the Services; (16) connect to or access any GCT computer system or network other than the Services; or (17) impersonate any other person or entity to use or gain access to the Services.
We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate the TOU and the applicable Master Services Agreement.
You acknowledge that Client retains all rights in and to Client Data. You agree that when using the Services and accessing any Client Data, you are not obtaining any rights in or to such Client Data. You understand and acknowledge that the Client deems Client Data to be Client’s confidential information and you shall not: (1) disclose any such Client Data to anyone to whom Client has not authorized you to make such disclosure; or (2) use such Client Data for any purpose other than the Client Purposes without Client’s prior written authorization. You also acknowledge that Client Data may be protected by applicable employment, privacy, or other consumer laws. You must confer with Client before using or disclosing any Client Data in any way that may result in a violation of law.
CLIENT AND CLIENT EMPLOYEE ACCOUNTS.
2. Unauthorized Use and Information Changes. You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
3. Storing Credentials. The Services may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access the Services. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to any third party, GCT, or the Services resulting from unauthorized access to the Services from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
CLIENT AND CLIENT EMPLOYEE ACCESS – MOBILE DEVICES.
1. Mobile Use. Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Services on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Services, for data downloading, email, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.
2. Additional Terms Applicable on the Android Market/Google Play. GCT and you both agree and acknowledge that neither Google Inc., nor any of its subsidiaries or affiliates (“Google”), are a party to the TOU and the applicable Master Services Agreement, and you will look to GCT for any recourse, and not Google. You agree to be bound by the then-current Android Market Terms of Services as found on Google’s website: http://www.google.com/mobile/android/market-tos.html) and the Google Play Terms of Services (located at https://play.google.com/about/play-terms.html). You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in either the Android Market Terms of Services or Google Play Terms of Service, the Android Market Terms of Services or Google Play Terms of Services, whichever is applicable, will prevail and govern.
3. Additional Terms Applicable to iOS Devices. GCT and you both agree and acknowledge that neither Apple Inc., nor any of its subsidiaries or affiliates (“Apple”), are a party to the TOU and the applicable Master Services Agreement, and you will look to GCT for any recourse, and not Apple. You agree to be bound by the then-current Apple Media Services Terms and Conditions as found on Apple’s website: https://www.apple.com/ca/legal/internet-services/itunes/ca/terms.html. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions will prevail and govern.
CLIENT AND CLIENT EMPLOYEE REPRESENTATIONS.
Client and Client’s employees agree not to directly or indirectly use the Services to:
1. Use or transmit any material protected by copyright, trademark, trade secret, patent, or other intellectual property right without proper authorization;
2. Threaten, harass, defame, embarrass, or distress any other person or group;
3. Transmit any harmful, defamatory, pornographic, obscene, or vulgar messages or material;
4. Transmit unsolicited fax or voice advertisements or solicitations (“fax/voice spam”) in violation of federal or state laws, including but not limited to any “do not call” list restrictions;
5. Transmit any information in violation of the Patriot Act or which otherwise may be deemed in furtherance of terrorist activity or in breach of the national security of the United States or any other state or nation;
6. Abuse payphone compensation;
7. Re-transmit, re-bill or resell the services to third parties;
8. Spoof, strip or alter the call data stream to disguise the origination or termination of the Services;
9. Route services in such a manner as to arbitrage the costs;
10. Upload any Content that contains viruses, Trojan horses, time bombs, corrupted files, or any other equivalent software or programs that may damage the operation of the Website or any part of the Website, another’s computer or property, or the provision by GCT of the Services;
11. Restrict or inhibit another user or Client from using the Website or Services;
12. Falsify or delete any copyright management information, including material contained in an uploaded file;
13. Attempt to gain unauthorized access to part of the Website, another user or Client’s account, computer systems, or networks connected to a GCT server;
14. Attempt to damage, disable, overburden, or impair the Website, GCT server, or any network connected to a GCT server;
15. Download, access, use, or distribute any material or file that you know or reasonably should know cannot be lawfully reproduced, displayed, performed, or distributed in such manner;
16. Harvest or collect information about others, including email address and personal information;
17. Impersonate any person or entity, or misrepresent your affiliation with any person or entity;
18. Create a false identity for the purpose of misleading GCT or any other person or entity; or
19. Violate any applicable laws, regulations, or codes of conduct including, but not limited to, the TOU.
Client acknowledges and agrees that it is aware of and will fully abide by the statutory and regulatory rules prohibiting unsolicited fax advertisements set forth in the Telephone Consumer Protection Act of 1991, Federal Consumer Protection Act 47 U.S.C. Paragraph 227, FCC’s rules on unsolicited fax communications, and in any applicable state statutes. Violations may subject Client to statutory fines and penalties, and compensatory damages. For further information, see http://www.fcc.gov/cgb/consumerfacts/unwantedfaxes.html. Client understand that the Services MAY NOT be used for fax/mail/phone/text spamming campaigns.
Client expressly agrees to fully defend, indemnify, and hold harmless GCT, its directors, officers, employees, or representatives, and GCT’s suppliers from and against any complaints and any and all claims, damages, expenses (including reasonable attorneys’ fees), losses, or liabilities arising out of or in connection with Client’s or Client’s employee’s access to or use of the Website or Services in violation of any federal or state statutes or regulations. Client understands that inappropriate use of the Services may result in cancellation of Client’s account by GCT. GCT reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
GCT assumes no responsibility for the deletion or failure to deliver or store voice or other messages.
Client acknowledges and agrees that GCT makes no representation, and does not purport to offer any enhancements, with respect to processing of Caller ID information from incoming callers. GCT will attempt to display and log caller’s Caller ID information as it is provided to GCT by the originating network provider(s), but GCT makes no representations of any kind that such attempts shall be successful. GCT EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO BLOCKING OUT CALLER ID INFORMATION IF IT IS PRESENTED TO GCT AS UNBLOCKED OR UNBLOCKING SUCH INFORMATION IF IT IS PRESENTED AS BLOCKED, OR IF IT IS OTHERWISE UNAVAILABLE TO GCT. CLIENT EXPRESSLY AGREES TO FULLY INDEMNIFY AND HOLD HARMLESS GCT FROM ANY LIABILITIES PERTAINING TO INAPPROPRIATE OR UNAUTHORIZED USE OF THE CALLER ID INFORMATION BY CLIENT, AS WELL AS ANY FAILURE BY GCT TO BLOCK OUT CALLER ID INFORMATION, IF IT IS PRESENTED TO GCT AS UNBLOCKED, OR UNBLOCKING SUCH INFORMATION IF IT IS PRESENTED AS BLOCKED, OR IF IT IS OTHERWISE UNAVAILABLE TO GCT.
We cannot and do not assume any responsibility for your use or misuse of GCT Content, GCT Materials, Client Content, Client Data, or any other information transmitted, monitored, stored, or received while using the Website or Services. We reserve the right to amend or delete any GCT Content, GCT Materials, or Client Content (along with the right to terminate or restrict use of or access to the Services or Website) that in our sole discretion violates any of the above. By providing Client Content via the Services, you further understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any such Client Content. You agree that we are not liable for any legal violation caused by your use or misuse of Client Content, Client Data, GCT Content, GCT Materials or other information transmitted, monitored, stored, or received while using the Services.
Client acknowledges that the Services are intended for business use. The Services are not intended for dedicated telecommunications services and in no case are the Services intended for resale, least cost routing, intensive auto-dialing, continuous, or extensive call forwarding, or dedicated telemarketing.
Client understands that GCT is limited in the depth of customer service that it can provide to Clients. Accordingly, telephone-based technical support may not always be available. GCT will provide email and other support resources on an as-available basis. If Client experiences a problem with the Services, it can contact support at firstname.lastname@example.org for support associated with the administration of Client’s account.
Any attempt to use the Website or Services other than as provided in the TOU and the applicable Master Services Agreement shall be a breach and will subject you to possible legal action and/or penalties and fees.
DISCLAIMER OF WARRANTIES.
THE SERVICES ARE PROVIDED BY GCT ON AN “AS IS” BASIS AND “AS AVAILABLE” BASIS. NEITHER GCT NOR ANY OF ITS SUBSIDIARIES, PARTNERS, PROVIDERS, OR AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION AND FUNCTIONALITY OF THE SERVICES OR ANY CONTENT TRANSMITTED OR MADE AVAILABLE BY OR THROUGH THE SERVICES. GCT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORTS, LACK OF NEGLIGENCE, AND NON-INFRINGEMENT. FURTHERMORE, GCT DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY LOCATION, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
GCT makes no warranty that the Services, Website, GCT Materials, GCT Content, results, or materials that may be obtained from the use of the Website or Services will be accurate or reliable, or that the quality of the Website or Services will meet your expectations.
The Website may include technical inaccuracies or typographical errors. GCT does not warrant that the electronic functions contained in the Website or through the Services will be uninterrupted or error free, that defects will be corrected, or that the Website, GCT server(s), or Services are free of viruses or bugs or represents the full functionality, accuracy, or reliability of the information, GCT Content, GCT Materials, Website, or Services available through the Website or through the Services. GCT does not endorse and is not responsible for the accuracy or reliability of any GCT Content on the Website, or for any offensive, defamatory, obscene, unlawful, or infringing GCT Content made thereon by anyone other than an authorized representative of GCT acting in their official capacity.
We use commercially reasonable efforts to maintain the Website and the Services, but we are not responsible for any defects or failures associated with the Website or the Services, any part thereof, any Feedback you provide, or any damages (such as lost profits or any other consequential or indirect damages) that may result from any such defects or failures. The Website or the Services may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that the Website and the Services are provided over the Internet, so the quality and availability of the Website and the Services may be affected by factors outside of our control. The Website and the Services are not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of the Website or the Services. We do not represent, warrant, or guarantee that the Website or the Services will always be available or are completely free of human or technological errors. We will not be liable to you or to any third party for damages or losses related to the Website or the Services being unavailable.
CUSTOMER PROPRIETARY NETWORK INFORMATION (“CPNI”).
Certain of the information GCT possesses concerning Client may be deemed CPNI. GCT will refrain from using CPNI or passing on CPNI to any third party in violation of CPNI regulations.
We welcome your comments, feedback, information, or materials regarding the Website or the Services or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
GCT receives many inquiries and suggestions regarding new product ideas, but does not accept any unsolicited submissions of new products, creative suggestions, ideas, notes, drawings, concepts or other information (each, “Information”). Although we are honored Client would think of us, GCT relies on its employees to supply its new product and other creative ideas. GCT has found it necessary to adopt this policy because some companies in our industry have had claims made against them by people who allege that a company used an idea, even though the company had received only the most general of concepts. Since the employees of GCT are constantly working on a number of ideas in many areas, some of which might be similar to an idea Client may seek to send to GCT, we cannot accept any outside submissions or the risks associated with these submissions.
If Client sends GCT any Information despite our request that it not do so, Client agrees that any and all such Information it sends to GCT is in the public domain, is not confidential or secret and is sent by Client for use by GCT without payment or compensation to Client or acknowledgement of the source. For any such Information Client submits to GCT, Client grants GCT a perpetual, worldwide, irrevocable, non-exclusive, royalty-free, fully paid-up and non-exclusive license(s) to use, distribute, reproduce, modify, translate, publish, transmit, distribute, and adapt such Information (or any part of such Information) for the sole benefit of GCT in any form, medium, or technology known now or later developed with the right for GCT to sublicense any or all such rights. GCT makes no warranty to Client, whether express or implied, regarding its use of any Information it may submit to GCT.
1. No agency, partnership, joint venture, or employment is created as a result of the TOU, the applicable Master Services Agreement, access to the Website, or use of the Services, and neither party has any authority of any kind to bind the other party in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
2. Compliance with Applicable Laws.
Client agrees to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination prohibited under such laws, without first obtaining (at your own expense), and then complying with, any requisite government authorization. Client further agrees not to upload to the Website any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of the TOU and of the applicable Master Services Agreement. Client agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of the Website or Service. Any GCT Content, GCT Materials, GCT software, or Service may not be downloaded or otherwise provided or made available, either directly or indirectly, to any country subject to United States trade sanctions, to individuals or entities controlled by such countries, or to national or residents of such countries other than national who are lawfully admitted permanent resident of countries not subject to such sanctions; or to persons listed by the United States Treasury Department as “Specially Designated Nationals and Blocked Persons” or by the United States Commerce Department in its “Table of Denial Orders.” By agreeing to the TOU and the applicable Master Services Agreement, you represent and warrant that you and the Client on whose behalf you are acting, if applicable, are not located in, under the control of, or a national or residence of, any such country; or a person on the “Specially Designated nationals and Blocked Persons” or “Table of Denial Orders” lists.
GCT’s enhanced telephony services are not intended to be Client’s primary access to telecommunications services. Therefore, Client acknowledges GCT’s service cannot be used to access United States 911 or E-911 services, or comparable international emergency services numbers. Client acknowledges it has communicated this limitation to its employees and agrees to indemnify and hold GCT harmless from any damages claimed or assessed against GCT for the inability to access 911 or E-911 services, or comparable international emergency services.
3. Headings. The section titles in the TOU and applicable Master Services Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
4. Limitation of Liability. Neither GCT nor any of its directors, officers, employees, or other representatives will be held liable for errors contained herein, or for any direct, indirect, special, punitive, incidental, or consequential damages such as, but not limited to, loss of data, loss of profits or revenues, loss of business, loss of reputation, or any economic loss arising out of, or in connection, the furnishing, access, use, or inability to access or use the Website or the Services, or reliance on any of the information provided or materials contained in the Website or provided through the Services even if advised of the possibility of such damages. In no event will GCT nor any of its directors, officers, employees, or other representatives be held liable for or in connection with any Client Content or Client Data posted, transmitted, exchanged, or received by or on behalf of you, any user, or other person on or through the Website or the Services.
The aggregate liability of GCT and any of its directors, officers, employees, or other representatives to you for all damages, losses, and causes of action (whether in contract or tort, including negligence) arising from the TOU and applicable Master Services Agreement or your use of the Website or the Services will not exceed, in the aggregate, the amount, if any, paid by you to GCT for your use of the Website or purchase and use of the Services. Certain jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages; therefore, the above limited or exclusion may not apply to you to the extent prohibited by applicable law.
5. Term and Termination. The TOU and the applicable Master Services Agreement is effective upon your acceptance and will continue in full force until terminated. You may terminate the TOU and the applicable Master Services Agreement at any time by immediately discontinuing all access to the Services, unless otherwise specified in the applicable Master Services Agreement. Termination or cancellation of the TOU and the applicable Master Services Agreement will not affect any right or relief to which we may be entitled at law or in equity. We reserve the right to terminate the TOU and the applicable Master Services Agreement at any time and for any reason without prior notice to you, unless otherwise specified in the applicable Master Services Agreement. Further, you agree that we will not be liable to you or any third party for any termination or suspension of your access to the Website or the Services or any part thereof. GCT may, at its sole option, terminate or restrict without notice your access to the Website or the Services without prejudice to GCT’s right to claim for indemnification of damages in case of termination for breach of the TOU or the applicable Master Services Agreement. If you are an employee of a Client, your right to access and use the Services will immediately terminate in the event the Master Services Agreement is terminated or expires.
6. Independent Contractor Relationship. You understand and expressly agree that you and GCT are independent contractors and not agents or employees of the other party. Neither you nor GCT has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
7. Consent to Do Business Electronically. We use and rely upon electronic records and electronic signatures for the execution and delivery of the TOU and the applicable Master Services Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with the TOU and the applicable Master Services Agreement and in performing our obligations and exercising our rights under the TOU and the applicable Master Services Agreement. Neither you nor GCT will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, unless otherwise agreed to in writing or pursuant to the applicable Master Services Agreement, in order to be able to conduct business electronically.
8. Equitable Relief. You agree that breach of the provisions of the TOU and the applicable Master Services Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of the TOU and the applicable Master Services Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of the TOU and the applicable Master Services Agreement.
9. Entire Agreement. The TOU and the applicable Master Services Agreement constitute the entire agreement between you and GCT with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to the subject matter hereof. We may revise and update the TOU and the applicable Master Services Agreement from time to time, and will post the updated the TOU and the applicable Master Services Agreement to the Portal, unless otherwise specified in the applicable Master Services Agreement. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THE TOU AND APPLICABLE MASTER SERVICES AGREEMENT, ANY CHANGES TO SAME WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to the TOU and the applicable Master Services Agreement will not apply retroactively to events that occurred prior to such changes, unless otherwise specified in the applicable Master Services Agreement. Your continued use of the Services will constitute your agreement to any new provisions within the revised the TOU and the applicable Master Services Agreement.
10. Waiver; Severability. Our failure to enforce any provision of the TOU and the applicable Master Services Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of the TOU and the applicable Master Services Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of the TOU and the applicable Master Services Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of the TOU and the applicable Master Services Agreement.
11. Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under the TOU and the applicable Master Services Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of the TOU and the applicable Master Services Agreement. We may assign the TOU and the applicable Master Services Agreement or delegate or subcontract our obligations under the TOU and the applicable Master Services Agreement at any time.
12. Survival. The provisions of the TOU and the applicable Master Services Agreement that by their content are intended to survive the expiration or termination of the TOU and the applicable Master Services Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of the TOU and the applicable Master Services Agreement, will survive the expiration or termination of the TOU and the applicable Master Services Agreement for their full statutory period.
13. For California Residents. IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST GCT.
14. Applicable Law and Dispute Resolution. The TOU, the applicable Master Services Agreement, and all matters relating to your access to and use of the Website and the Services will be governed by the laws of the State of Maine, to the exclusion of its conflict of law provisions and where applicable, the federal law of the United States. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to the Website, Services, GCT Materials, the TOU, and/or the applicable Master Services Agreement or the breach, termination, enforcement, interpretation, or validity of same, including the determination of the scope or applicability of same (a “Dispute”) through discussions and negotiations between GCT and the Client. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). Any Dispute which cannot be resolved through discussion and negotiation between GCT and the Client giving rise to a legal action or claim will be subject to the exclusive jurisdiction of the courts of the State of Maine and the federal courts sitting in Portland, Maine. You and GCT irrevocably agree to submit to the personal and exclusive jurisdiction of these courts and that venue therein is proper and convenient. Any judgment or order by any court having competent jurisdiction against either you or GCT may be enforced in any court having jurisdiction over you or GCT as the case may be.