These Terms of Use (this "Agreement") are entered into between Gierd Inc., a Delaware corporation ("Gierd", "We", or "Us") and the entity identified during registration or on the Order Form ("Customer" or "You"). This Agreement governs Customer's access and use of the Services (as defined below). Please see Section 13 for certain defined terms.
By accessing or using the Services, you agree to be bound by this Agreement. If you disagree with any part of this Agreement, then you do not have permission to use the Services. This Agreement applies to all users who access and use our Service.
BY ACCESSING OR USING THE SERVICES YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT.
1. Access to the Services
1.1.
License Grant. Gierd will make the Services available to Customer as a software as a service and grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Services and Gierd Content during the Term solely for use in accordance with these terms and conditions.
1.2.
Restrictions. Neither you nor any User will use the Services or Gierd Content in any manner or for any purpose other than as expressly permitted by this Agreement. Except as expressly authorized in this Agreement, Customer will not, and will ensure Users do not directly or indirectly:
-
(i)
reverse engineer, disassemble, or decompile the Services or Gierd Content or apply any other process or procedure to derive the source code of the Services;
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(ii)
modify, translate, copy, or create derivative works of a Service or any part, feature, function, or user interface thereof;
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(iii)
Make any Service or Gierd Content available to anyone other than Customer or its Users, or use any Service or Gierd Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation;
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(iv)
Sell, resell, license, sublicense, distribute, rent or lease any Service or Gierd Content, or include any Service or Gierd Content in a service bureau or outsourcing offering;
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(v)
Attempt to gain unauthorized access to any Service or Gierd Content or its related systems or networks;
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(vi)
Use the Services for any purpose other than those outlined in Section 1.1, including for benchmarking, competitive analysis, or creating a competing product; or
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(vii)
Use the Services to violate third-party rights or applicable laws.
1.3.
Professional Services. If Gierd provides Professional Services to Customer, the scope and fees for such services will be described on an Order Form which will be governed by this Agreement.
2. Proprietary Rights; Feedback; Customer Data
2.1.
Gierd Ownership. Gierd or its licensors own all right, title, and interest in and to the Services, Gierd Content, and all related technology and Intellectual Property Rights. Except for the limited license provided in Section 1.1, you obtain no other rights under the Agreement from Gierd, its Affiliates or suppliers to the Services or Gierd Content, including any related Intellectual Property Rights.
2.2.
Customer Ownership. Except for the rights granted in Section 2.4, Customer owns and reserves all right, title, and interest in and to the Customer Data, and any Intellectual Property Rights therein.
2.3.
Feedback. If Customer provides any Feedback to Gierd or its Affiliates, Gierd and its Affiliates will be entitled to use the Feedback without restriction. Customer hereby irrevocably assigns to Gierd all right, title, and interest in and to the Feedback and agrees to provide Gierd any assistance it requires to document, perfect, and maintain its rights in the Feedback.
2.4.
Customer Data. Customer Data is and will remain the property of Customer, and Customer is solely responsible for the procurement, accuracy, legality, and content of Customer Data. Customer hereby grants Gierd the right to host and process Customer Data for providing and improving the Services and to support Customer under this Agreement. Use of Customer Data is also subject to the Gierd, Inc. Privacy Policy
2.5.
Usage Data. Gierd may collect and use Usage Data to: (i) provide, analyze, support, and improve Gierd's products and services; and (ii) enforce the rights and obligations in this Agreement. Usage Data is the exclusive property of Gierd.
2.6.
Sensitive Data. Customer expressly acknowledges and agrees that Customer will not submit to, or process via the Services, and Gierd shall have no liability for any Sensitive Data. Gierd may immediately upon notice suspend all or portion of Customer's access to the Services (without any liability to Gierd in connection with such suspension), if Gierd has a good faith belief that Customer has breached the restrictions in this Section.
2.7.
Control of Services. Gierd has and will retain sole control over the operation, provision, maintenance and management of the Services and Gierd Content. Gierd may change or discontinue any of the Services from time to time.
3. Customer Obligations
3.1.
Responsibility for Users. Customer is responsible for all activities conducted under all login credentials assigned to or created by Customer and its Users, including the failure to adequately safeguard login credentials or as a result of any sharing of login credentials. Gierd reserves the right, in its sole discretion, to deactivate, change and/or require Customer to change Customer's user credentials for any reason and at any time, with or without prior notice.
3.2.
Corrective Action. If Customer becomes aware of any actual or threatened activity prohibited by Section 1.2, Customer shall cause its Users to promptly: (i) take all commercially reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and taking measures designed to prevent unauthorized access to the Services and Gierd Content and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (ii) take all commercially reasonable and lawful measures to notify Gierd of any such actual or threatened activity.
4. Fees.
4.1.
Fees for Services. Customer agrees to pay the fee ("Fees") for Services as described in the applicable Order Form.
4.2.
Payment. Payments are due net fifteen (15) days.
4.3.
Overdue Charges. If any invoiced amount is not received by Gierd by the due date, then without limiting Gierd's rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
4.4.
Suspension of Service. If any amounts owed by Customer under this or any other agreement for services are 30 days or more overdue, Gierd may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full.
4.5.
Taxes. Gierd's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Gierd has the legal obligation to pay or collect Taxes for which Customer is responsible, Gierd will invoice Customer and Customer will pay that amount unless Customer provides Gierd with a valid tax exemption certificate authorized by the appropriate taxing authority. Gierd is solely responsible for taxes assessable against it based on its income, property and employees.
4.6.
Credit Card. We may require, as a condition of using our Service, that you provide us with valid credit card information from a credit card acceptable to Gierd. If you provide us with your credit card information, you authorize us to charge that credit card for any amounts that we determine you to us.
5. Terms.
5.1.
Term. This Agreement shall commence on the earlier of your agreement to these term or the Effective Date set forth in the initial Order Form and shall remain in effect for the period specified in the applicable Order Form unless earlier terminated in accordance with this Agreement ("Term").
5.2.
Termination.
5.2.1.
By Either Party. Either Party may terminate this Agreement or an Order Form for cause if the other Party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other Party.
5.2.2.
By Gierd. Gierd may terminate this Agreement immediately upon notice to you (i) for cause if we have the right to suspend under Section 6, or (ii) in order to comply with the law or requests of governmental entities.
5.3.
Effect of Termination. Upon termination or expiration of this Agreement: (i) except as provided in Section 5.4, all your rights under this Agreement immediately terminate; (ii) Customer remains responsible for all fees and charges incurred through the Termination Date; (iii) you will immediately return or, if instructed by Gierd, destroy all Gierd Content in your possession. Following the Termination Date, Gierd will have no obligation to store Customer Data and may permanently delete Customer Data. If Customer has prepaid fees and terminated the Agreement in accordance with Section 5.2.1, Gierd will refund Customer any prepaid but unused fees covering the remainder of the subscription term.
5.4.
Survival. Following any termination of this Agreement, Section 2 (Proprietary Rights; Feedback; Customer Data), Section 4 (Fees), Section 5 (Termination); Section 7 (Confidentiality), Section 9 (Indemnification), Section 10 (Disclaimer), Section 11 (Limitation of Liability), Section 12 (Miscellaneous), and Section 13(Certain Definitions) will continue to apply in accordance with their terms.
6. Suspension.
6.1.
Suspension. Gierd may suspend Customer's or any User's right to access or use any portion or all of the Services immediately upon notice to Customer if Gierd determines, in its sole discretion:
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(i)
Customer or a User's use of the Services (a) poses a security risk to the Services or any third party, (b) could adversely impact our systems or the Services, (c) could subject Gierd, its Affiliates, or any third party to liability, or (d) could be fraudulent;
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(ii)
Customer, or any User, is in breach of this Agreement;
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(iii)
Customer is in breach of its payment obligations; or
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(iv)
Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
7. Confidential Information.
7.1.
"Confidential Information" means all information disclosed by a Party or its Affiliates ("Disclosing Party") to the other Party or its Affiliates ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data. Confidential Information of Gierd includes the Services, Gierd Content, Usage Data, and the terms and conditions of this Agreement and Documentation. Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2.
Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and agrees (i) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither Party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other Party's prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this Section 7.2. Notwithstanding the foregoing, Gierd may disclose the terms of this Agreement to a contractor to the extent necessary to perform Gierd's obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein
7.3.
Compelled Disclosure. The foregoing notwithstanding, the Receiving Party may disclose the Disclosing Party's Confidential Information to the minimum extent legally required if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the Receiving Party must give the Disclosing Party prompt written notice, obtain or allow for a reasonable effort by the Disclosing Party to obtain a protective order prior to disclosure, and reasonably cooperate with Disclosing Party at Disclosing Party's request.
7.4.
Time Limit. Upon any termination or expiration of this Agreement, the Receiving Party will continue to maintain the confidentiality of the Disclosing Party's Confidential Information for three years from date of receipt, except that source code will be held in confidence in perpetuity and Customer Data will be held in confidence for so long as it is in Gierd's possession.
8. Representations and Warranties.
8.1.
Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iii) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding to which it is a party or by which it may be bound.
8.2.
Customer Representation and Warranties. Customer represents and warrants that (i) Customer has all rights to grant the licenses to Gierd set forth in this Agreement, including to Customer Data, without infringement or violation of any applicable laws or third-party rights, including, any privacy rights or any intellectual property or proprietary rights, and (ii) Customer's use of the Services will comply with applicable law.
9. Indemnification
9.1.
General. You will defend, indemnify, and hold harmless Gierd and our Affiliates and each of our respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) ("Losses") arising out of or relating to any claim, action, suit, or proceeding ("Claim") concerning: (i) Your use of the Services or Gierd Content (including any activities and use by your employees and personnel); (ii) Customer Data including any Processing of Customer Data by or on behalf of Gierd in accordance with this Agreement; or (iii) breach of this Agreement or violation of applicable law by Customer or Customer Data.
9.2.
Intellectual Property.
9.2.1.
Subject to the limitations in this Section 9.2, Gierd will defend you and your employees, officers, and directors from and against any Losses arising out of a Claim brought by a third party alleging that the Services or Gierd Content infringe or misappropriate that third party's Intellectual Property Rights and will pay the amount of any adverse final judgment or settlement;
9.2.2.
You will defend and hold harmless Gierd, its Affiliates, and their respective employees, officers, and directors from and against any Losses arising out of a Claim: (i) alleging that any of the Customer Data infringes or misappropriates that third party's Intellectual Property Rights; or (ii) arising out of or related to your use of the Services with any other product, service, software, data, content or method. In each case, you will pay the amount of any adverse final judgment or settlement.
9.2.3.
For any claim covered by Section 9.2.1, Gierd will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.
9.3.
Exclusive Remedy. This Section 9 states the indemnifying Party's sole liability to, and the indemnified Party's exclusive remedy against, the other Party for any third-party claim described in this Section.
9.4.
Exclusions. Notwithstanding the foregoing, Gierd will have no obligation under this Section 9 or otherwise with respect to any Claim(s) which would not have arisen but for: (i) a combination of Gierd Content with non-Gierd products or services; (ii) use of the Services in violation of this Agreement, an Order Form, or the Documentation; (iii) any modification to the Services made by Gierd pursuant to Customer specifications, Customer, or a User; or (iv) trade secret misappropriation that is the result of Customer's actions. Additionally, Gierd will have no obligations or liability toward Customer whatsoever for any use of the Services: (A) after Customer's access rights to the Services have been effectively terminated; or (B) 30 days after a new version of the Services has been made available to Customer and Customer has been notified of a need to upgrade.
DISCLAIMER. EXCEPT FOR GIERD'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, THE SERVICES AND GIERD CONTENT ARE PROVIDED "AS IS." EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, GIERD AND ITS AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR GIERD CONTENT OR ANY THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES OR GIERD CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, (IV) WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS AND (V) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. ANY ADVICE OR OTHER INFORMATION OBTAINED THROUGH GIERD'S PRODUCTS AND SERVICES WILL BE USED BY CUSTOMER AND ITS AUTHORIZED USERS SOLELY AT THEIR OWN RISK.
LIMITATION OF LIABILITY. GIERD AND IT'S AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER GIERD NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES OR GIERD CONTENT, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES OR GIERD CONTENT, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER ANY POLICIES, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (C) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 9.2.2, GIERD AND ITS AFFILIATES' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO GIERD UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 11 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. Miscellaneous.
12.1.
Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party's prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety, without the other Party's consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and insure to the benefit of the parties, their respective successors and permitted assigns. Gierd may from time to time in its sole discretion engage third parties to perform Services.
12.2.
Export Compliance. The Services, Gierd Content, other Gierd technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Gierd Content in a U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, or Syria) or in violation of any U.S. export law or regulation.
12.3.
Entire Agreement and Order of Precedence. This Agreement, any Order Forms entered into between the Parties, and any Documentation we make available to you is the entire agreement between Gierd and Customer regarding Customer's use of Services and Gierd Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form; (2) this Agreement, and (3) the Documentation. In the event of any conflict among the Documentation or the Order Forms, the document later in time will prevail.
12.4.
Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.5.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6.
Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
12.7.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.8.
Publicity. Neither Party shall publish any press release, make any other public announcement or otherwise communicate with any news media concerning this Agreement or the transactions contemplated hereby without the prior written consent of the other Party, except: (i) nothing contained herein shall prevent either Party from promptly making all filings with governmental authorities as may, in its judgement be required or advisable in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby; and (ii) Customer consents to the inclusion of its name and logo in client lists and marketing materials that may be published as part of Gierd's marketing and promotional efforts.
12.9.
Notice. All notices to a Party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to the address: (i) in the case of Customer, to the address provided to Gierd at the time of account registration or otherwise updated from to time with notice to Gierd in accordance with this Section 12.9; and (ii) in the case of Gierd, to
Gierd, Inc.,
120 E Lake Street,
Sandpoint ID 83864, USA
Notice will be deemed delivered and received on the date it is actually received.
12.10.
Injunctive Relief. Each Party agrees that, in the event of any breach or threatened breach of Section 2 or Section 7, the non-breaching Party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching Party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
12.11.
Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Washington, without giving effect to conflict of laws provisions which may direct the application of another jurisdiction's laws. All disputes, controversies or claims between the Parties arising out of or in connection with this Agreement (including its existence, validity or termination) shall be finally resolved by arbitration to be held in Seattle, Washington and conducted in English by the American Arbitration Association in accordance with its Commercial Arbitration Rules; provided, however, that each Party may enforce its or its Affiliates' rights under Section 12.10 in any court of competent jurisdiction, including but not limited to equitable relief. The arbitral award shall be final and binding on the Parties. Except to the extent entry of judgment and any subsequent enforcement may require disclosure, all matters relating to the arbitration, including the award, shall be held in confidence.
12.12.
Force Majeure. Any failure or delay by Gierd in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to circumstances beyond Gierd's reasonable control, including computer or internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of Gierd.
12.13.
Amendments. We may modify this Agreement, the Documentation, the Gierd Content, or the Services at any time. We will post any modification to this Agreement to Gierd.com (the "Site"). Except as specified in any amendment, the modification will become effective upon the earlier of posting it to the Site or otherwise communicating it to you, and you will be deemed to accept the modification if you use the Services after it has been posted. If you do not accept a change to this Agreement, Documentation, the Gierd Content, or the Services, your sole remedy is to contact us and terminate this Agreement. Except as expressly provided above, no modification or amendment of this Agreement will be binding on Gierd unless set forth in a writing signed by Gierd.
13. Certain Definitions.
13.1.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
13.2.
"API" means an application program interface.
13.3.
"Content" means software, data, text, audio, video, or images.
13.4.
"Customer Data" means any data, information, or material that Customer makes available to
Gierd by using the Services. Customer data excludes Usage Data.
13.5.
"Documentation" means the documentation for the Services - any manuals, instructions or other documents or materials that Gierd provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Gierd Content, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
13.6.
"Feedback" means all suggested improvements to the Services or Gierd Content that you
provide to us
13.7.
"Gierd Content" means APIs, software, Documentation, templates, advice, information, programs (including credit programs), data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports and any other Content made available by Gierd or its contractors related to use of the Services.
13.8.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws or practice, and all similar or equivalent rights or forms of protection, in any part of the world.
13.9.
"Non-Gierd Applications" means web-based, mobile, offline, or other software functionality
that interoperates with a Service, that is provided by Customer or a third party.
13.10.
"Order Form" means the document specifying the Services or Professional Services to be provided by Gierd and the fees to be paid by Customer, including any confirmation generated or presented by an online purchasing portal.
13.11.
"Party" means each party to this Agreement.
13.12.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings.
13.13.
"Professional Services" means consulting services offered by Gierd.
13.14.
"Sensitive Data" means collectively (i) personal health information, (ii) "Special Categories of Data" as defined by applicable regulation, including the EU General Data Protection Regulation or similar concepts under the California Consumer Privacy Act and (iii) such other personally identifiable information or data.
13.15.
"Services" means the products and services that are ordered by Customer under an Order Form or online purchasing portal and made available online by Gierd. Services excludes Non-Gierd Applications
13.16.
"Termination Date" means the effective date of termination in accordance with Section 5.
13.17.
"Usage Data" means anonymized, de-identified or aggregated information collected or generated by or on behalf of Gierd which is the exclusive property of Gierd in accordance with Section 2.5.
13.18.
"User" means an individual who is authorized by Customer to use a Service. Users may include, for example, employees, consultants, contractors and agents of Customer.
