GSINK FREE EDITION AGREEMENT
This GSink Free Edition Agreement (the “Agreement”) is entered into by
and between The Spencer Company, a California corporation, with offices at
1130 North Lima Street, Burbank, California 91505 (“GSink”) and the
entity agreeing to the terms herein (“Customer”). This Agreement will
be effective as of the date you click the “I Accept” button below (the
“Effective Date”). If you are accepting on behalf of your employer or another
entity, you represent and warrant that: (i) you have full legal authority to
bind your employer or such entity to these terms and conditions; (ii) that you
have read and understand this Agreement; and (iii) that you agree, on behalf
of the party that you represent, to this Agreement. If you don't have the
legal authority to bind, please do not click the “I Accept” button below. This
Agreement governs Customer's access to and use of the Service (as defined
below).
1. Definitions.
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1.1 “Customer Data” means the data, whether public or private, owned
by Customer and approved by GSink for use with the Service (as defined
below).
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1.2 “End Users” mean Customer's end users who utilize any of the
GSink functions.
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1.3 “End User Account” means GSink-hosted accounts provided to
Customer's End Users through the Service for the purpose of enabling such
End Users to use the Service. GSink may limit the number of available End
User Accounts it provides to End Users of Customer at its sole discretion.
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1.4 “Services” means the services referred to by GSink that are
hosted by GSink and described in this Agreement, which may include without
limitation, the synchronization services or any other services provided by
GSink.
2. Services. GSink will use commercially reasonable efforts to
provide the Services to Customer during the term of this Agreement. Customer
agrees that GSink may serve advertisements (“Ads”) in connection with
the Services. Subject to the terms and conditions of this Agreement, Customer
may use the Service to (a) provide End User Accounts to its End Users, and (b)
administer such End User Accounts through the provided administrative console.
Both parties acknowledge that an End User is a customer of both Customer and
GSink. Information collected by GSink may be stored and processed in the
United States or any other country in which GSink or its agents maintain
facilities. By using the Services, Customer consents to any such transfer,
processing and storage of information. Customer is solely responsible for
monitoring, responding to, and otherwise processing emails sent to them by
GSink. Customer agrees that any revenue generated by GSink from the Ads or
otherwise derived by GSink from the Services will be retained by GSink and not
be subject to any revenue sharing.
3. Appropriate Customer Content. Customer agrees
that all Customer Content is the sole responsibility of Customer. GSink
reserves the right, but shall have no obligation, to pre-screen, refuse or
remove Customer Content. Without limiting the foregoing, GSink and its
designees shall have the right to remove any Customer Content or other content
that violates this Agreement or is otherwise objectionable. Customer
understands that by using the Services, that Customer and End Users may be
exposed to content that is offensive, indecent or objectionable, and that
Customer and its End Users use the Start Page Service at their own risk.
4. Customer Obligations.
Customer agrees to use the Service only for purposes that are legal, proper
and in accordance with this Agreement and any applicable policies or
guidelines. Customer agrees that it will not engage in any activity that
interferes with or disrupts the Service or servers or networks connected to
the Service. In addition to this agreement, Customer's use of some specific
GSink services is governed by the policies or guidelines that are presented to
Customer when Customer signs up for or accesses those services and which are
specifically incorporated into this Agreement. Customer agrees to comply with
all applicable export and reexport control laws and regulations, including the
Export Administration Regulations (“EAR”) maintained by the U.S.
Department of Commerce, trade and economic sanctions maintained by the
Treasury Department's Office of Foreign Assets Control. A Customer in a
country outside of the United States agrees to additionally comply with any
local rules regarding online conduct and acceptable content, including laws
regulating the export and reexport of data to and from the United States or
such other country. Customer agrees that the Services will only be used to
benefit End Users who have specifically asked for the contact sharing.
5. Technical Support Services. Customer is responsible for
responding to any questions and complaints by End Users or other third parties
relating to Customer or its End Users’ use of the Service, with such support
services to be provided at Customer's own expense. The free Services do not
come with any support of any kind whatsoever.
6. Ownership; Restricted Use. GSink and its licensors shall own
all right, title and interest, including without limitation all Intellectual
Property Rights (as defined below) relating to the Service (and any derivative
works or enhancements thereof), including but not limited to, all software,
technology, information, content, materials, guidelines, and documentation.
Customer shall not acquire any right, title, or interest therein, except for
the limited use rights expressly set forth in the Agreement. Any rights not
expressly granted herein are deemed withheld.
7. “Intellectual Property Rights” means any and all rights existing
from time to time under patent law, copyright law, semiconductor chip
protection law, moral rights law, trade secret law, trademark law, unfair
competition law, publicity rights law, privacy rights law, and any and all
other proprietary rights, and any and all applications, renewals, extensions
and restorations thereof, now or hereafter in force and effect worldwide.
GSink does not own third party content used as part of the Service, including
the content of communications appearing on the Service. Title, ownership
rights, and Intellectual Property Rights in and to the content accessed
through the Service are the property of the applicable content owner and may
be protected by applicable copyright or other law. Customer agrees not to, or
to allow others to: (i) adapt, translate, or modify the Software; (ii)
decipher, decompile, disassemble, reverse engineer, or otherwise attempt to
discover the source or object code of the Software, except to the extent
applicable laws specifically prohibit such restriction; (iii) copy the
Software; (iv) use the Service for High Risk Activities as described in
Section 13; or (v) sublicense, loan, sell, rent or lease the Service, or any
component thereof. Any and all third party binary or source code included in
each portion of the Service may be used only in conjunction with such portion
of the Service, and such use shall be subject to all the terms and conditions
of this Agreement. THE SERVICE OR ANY PORTION THEREOF MAY NOT BE USED, COPIED,
TRANSFERRED, OR MODIFIED EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT.
8. Brand Features. As used in this Agreement, “Brand Features” shall
mean the trade names, trademarks, service marks, logos, domain names, and
other distinctive brand features of each party, respectively, as secured by
such party from time to time. Except as expressly allowed
by GSink, any Brand Features, copyright, or other proprietary notices,
legends, symbols, or labels appearing on or in the Service provided to
Customer shall not be removed or altered. Subject to the terms and conditions
of this Agreement, Customer grants to GSink a limited, nonexclusive and
nonsublicensable license during the term of this Agreement to display those
Customer Brand Features expressly authorized for use in this Agreement, solely
for the purposes expressly set forth herein. Notwithstanding anything to the
contrary, Customer may revoke the license granted herein to use Customer's
Brand Features upon providing GSink with written notice thereof and a
reasonable period of time to cease such usage. The pages displaying the
Service to End Users
9. PR. Customer agrees not to issue any public announcement
regarding the existence or content of this Agreement without GSink's prior
written approval. GSink may (i) include Customer's Brand Features in
presentations, marketing materials, and customer lists (which includes,
without limitation, customer lists posted on GSink's web sites and screen
shots of Customer's implementation of the Service) and (ii) issue a public
announcement regarding the existence or content of this Agreement. Upon
Customer's request, GSink will furnish Customer with a sample of such usage or
announcement.
12. Representations and Warranties. Each party represents and
warrants that it has full power and authority to enter into the Agreement.
Customer represents, warrants, and covenants that: (i) Customer has and will
maintain all rights, authorizations and licenses that are required to permit
Customer to use the Service; (ii) the execution and delivery of this
Agreement, and the performance by Customer of its obligations hereunder, will
not constitute a breach or default of or otherwise violate any agreement to
which such party or any of its affiliates are a party or violate any rights of
any third parties arising therefrom; and (iii) Customer shall comply with all
laws, regulations and ordinances applicable to or otherwise connected with
Customer's use of the Service.
13. Warranty Disclaimer. CUSTOMER UNDERSTANDS AND AGREES THAT
EACH SERVICE MAY CONTAIN BUGS, DEFECTS, ERRORS AND OTHER PROBLEMS THAT COULD
CAUSE SYSTEM FAILURES. CONSEQUENTLY, THE SERVICE INCLUDING ALL CONTENT,
SOFTWARE (INCLUDING ANY UPDATES OR MODIFICATIONS TO THE SOFTWARE), FUNCTIONS,
MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE,
AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS IS” AND ANY USE THEREOF
SHALL BE AT CUSTOMER'S OWN RISK. GSINK AND ITS LICENSORS MAKE NO WARRANTY OF
ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND
NON-INFRINGEMENT. GSINK ASSUMES NO RESPONSIBILITY FOR THE PROPER USE OF THE
SERVICE. GSINK AND ITS LICENSORS MAKE NO REPRESENTATIONS ABOUT ANY CONTENT OR
INFORMATION MADE ACCESSIBLE BY THE SERVICE. GSINK MAKES NO REPRESENTATION THAT
GSINK (OR ANY THIRD PARTY) WILL ISSUE UPDATES OR ENHANCEMENTS TO THE SERVICE.
GSink does not warrant that the functions contained in the Service will be
uninterrupted or error free. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT
EVENT, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN
DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE. THE SERVICE IS NOT
FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USES SUCH AS
THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT
SYSTEMS, WHERE THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL
INJURY, OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”).
14. Indemnification. Customer shall indemnify, defend and hold
harmless GSink, its subsidiaries and other affiliates, and its and their
officers, directors, owners, agents, co-branders or other partners, employees,
information providers, licensors and licensees (collectively, the “Indemnified
Parties”) from and against any and all liability, costs, losses, damages,
claims and demands, including without limitation attorneys fees and costs
incurred by the Indemnified Parties, arising out of or related to (i) Customer
Domain Name(s) and/or Customer Brand Features; (ii) Customer's use of the
Service; (iii) Customer's disclosure of End User information; (iv) any
Customer Content; (v) any breach or non-compliance by Customer of this
Agreement, any of GSink's policies, or Customer's representations or the
provision of warranties contained herein; and (vi) any End User's use of the
Service.
15. Limitation of Liability. IN NO EVENT WILL GSINK OR ITS
LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, AND INCLUDING, BUT NOT LIMITED
TO, DAMAGES FOR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF
DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
HOWEVER CAUSED (INCLUDING BUT NOT LIMITED TO USE, MISUSE, INABILITY TO USE, OR
INTERRUPTED USE) AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED
TO CONTRACT OR TORT AND WHETHER OR NOT GSINK WAS OR SHOULD HAVE BEEN AWARE OR
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE REGARDLESS OF WHETHER ANY REMEDY SET
FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; OR FOR ANY CLAIM
ALLEGING INJURY RESULTING FROM ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE
SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. THIS LIMITATION OF LIABILITY
SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY, OR WILLFUL MISCONDUCT
TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FUTHERMORE, SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO
CUSTOMER. IN NO EVENT SHALL GSink'S LIABILITY FOR ANY CLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500). THE SERVICE IS
PROVIDED WITHOUT CHARGE FOR BETA TESTING PURPOSES ONLY AND THE PARTIES AGREE
THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER
THIS AGREEMENT.
16. Termination. Customer may discontinue use of the Service at
any time. GSink reserves the right at any time and from time to time to modify
the Service (or any part thereof) with or without notice. Customer agrees that
GSink may at any time and for any reason terminate this Agreement and/or
terminate the provision of all or any portion of the Service. Notwithstanding
the foregoing, GSink will provide at least thirty (30) days notice to Customer
prior to terminating or suspending the hosted email service (if provided to
Customer); provided that such hosted Services may be terminated immediately if
(i) Customer has breached this Agreement or (ii) GSink reasonably determines
that it is commercially impractical to continue providing such hosted email
service in light of applicable laws. Customer agrees that GSink shall not be
liable to Customer, any End User, or any third party for any modification,
suspension, or termination of the Service.
17. Modification. Except as provided in Section 18, GSink
reserves the right to change or modify any of the terms and conditions
contained in this Agreement. Any changes or modifications to this Agreement
will become binding (i) when made in a writing executed by both parties, (ii)
by Customer's online acceptance of updated terms, or (iii) after Customer's
continued use of the Service after such terms have been updated by GSink.
18. Fees. Provided that GSink continues to offer the Service to
Customer, GSink will continue to provide a version of the Service (with
substantially the same services as those provided as of the Effective Date)
free of charge to Customer; GSink reserves the right to offer a premium
version of the Service for a fee.
19. Miscellaneous. Customer agrees that GSink may provide
Customer with notices, including those regarding changes to this Agreement, by
email, regular mail, or postings on GSink services. Customer may not assign or
otherwise transfer its rights or delegate its obligations under this
Agreement, without the prior written consent of GSink. Any attempted
assignment in derogation hereof shall be null and void. Customer agrees that
there shall be no third party beneficiaries to this Agreement. This Agreement
shall be governed by and construed in accordance with the laws of the State of
California and the federal U.S. laws applicable therein, excluding its choice
of law provisions, and Customer and GSink agree to submit to the personal and
exclusive jurisdiction of the courts located in Santa Clara County,
California. The parties specifically exclude from application to this
Agreement the United Nations Convention on Contracts for the International
Sale of Goods and the Uniform Computer Information Transactions Act. Neither
party shall be liable for failing or delaying performance of its obligations
(except for the payment of money) resulting from any condition beyond its
reasonable control, including but not limited to, governmental action, acts of
terrorism, earthquake, fire, flood or other acts of God, labor conditions,
power failures, and Internet disturbances. If any provision of this Agreement
is found void and unenforceable, it shall be replaced to the extent possible
with a provision that comes closest to the meaning of the original provision.
The unenforceability of any provision, however, shall not affect the validity
of the balance of the Agreement, which shall remain valid and enforceable
according to its terms. THIS AGREEMENT CONSTITUTES A COMPLETE INTEGRATION OF
ALL UNDERSTANDINGS BETWEEN THE PARTIES AND IS THE ENTIRE AGREEMENT BETWEEN
CUSTOMER AND GSINK RELATING TO THE SERVICE AND ALL TERMS HEREIN. THE TERMS AND
CONDITIONS OF THIS AGREEMENT SHALL TAKE PRECEDENCE OVER ANY PURCHASE ORDER,
WEB SITE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR OTHER DOCUMENT
WHETHER FORMALLY REJECTED BY GSINK OR NOT, AND ANY CONFLICTING, INCONSISTENT,
OR ADDITIONAL TERMS CONTAINED THEREIN SHALL BE NULL AND VOID.