Welcome, and thank you for your interest in Gainfully (“Gainfully”, “we,” or “us”) and our Web site at https://gainfully.com (the “Site”), as well as all related web sites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), and other services provided by us and on which a link to these Terms of Use is displayed (collectively, together with the Site, our “Service”).
PLEASE READ THESE TERMS OF USE CAREFULLY. BY CLICKING “I ACCEPT,” YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS AND THE Gainfully PRIVACY POLICY (COLLECTIVELY, THESE “TERMS”). These Terms are a legally binding contract between the Service recipient, whether an entity or individual (“you,” “your,” or “user”), and Gainfully. If you are not eligible to use the Service, or do not agree to these Terms, then you may not use the Service.
These Terms provide that all disputes between you and Gainfully will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 11 below for the details regarding your agreement to arbitrate any disputes with Gainfully.
Services.
- Gainfully Service Overview. Gainfully provides an online marketing service that includes social networking tools and a platform to license third party applications to help financial professionals save time, nurture communications with clients and generate new business. Gainfully also provides a service that permits you to (i) license products and content for your use and (ii) license products and content to other users of the Service; under the terms and conditions set forth in these Terms.
- Eligibility. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least 18 years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization. If you make the Services available to your employees, agents or affiliated individual financial brokers (“Entity Users”), you represent and warrant that (i) such Entity Users have the right to access the information and data made accessible to them through the Services, (ii) you will cause such Entity Users to comply with these Terms, and (iii) you will be fully liable for any breach of these Terms by your Entity Users.
- Accounts and Registration.
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address, broker-dealer affiliation or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@gainful.ly.
- Payment. Access to the Service, or to certain features of the Service, may require you to pay fees. You shall pay the fees, as set forth in the price schedule available to authorized users that corresponds to the tier of access to the Service for which you register or to which you later select. All fees are in U.S. Dollars and are non-refundable. Gainfully may change the fees for the Service or any feature of the Service, including by adding additional fees or charges, on a going-forward basis at any time but will provide 30 days notice in advance of any such fee change. You may authorize Gainfully or a third party payment processor to charge all sums described herein automatically based on a mutually acceptable process. If you pay any applicable fees with a credit card, Gainfully, or a third party payment processor acting on behalf of Gainfully, may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You represent and warrant that the credit card that you provided to Gainfully for payment of the applicable fees is your credit card, or, if the credit card provided is that of an entity, you are authorized to use such credit card for payments related to the Service. Content.
- User Content Generally. Certain features of the Service may permit users to post content, including messages, reviews, photos, video, images, folders, data, text, and other types of works (collectively, “User Content”) and to publicly display or publish User Content on the Service. For clarity, User Content does not include App Content, as such term is defined in Section 2.5. By posting, publicly displaying or publishing User Content, you affirm, represent, and warrant that:
- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Gainfully and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 2 and in the manner contemplated by Gainfully and these Terms; and
- your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party.
- Limited License Grant to Gainfully. By posting, displaying or publishing User Content, you grant Gainfully and its affiliates a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, publish, perform, reproduce, modify, prepare derivative works of, improve, distribute, use and commercialize your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) without any further consent or notice. Any such use of your User Content by Gainfully may be without any compensation paid to you or any third party.
- Limited License Grant to Other Users. By sharing User Content publicly or with another user of the Service, you hereby grant other users of the Service a non-exclusive license to access and use such User Content as permitted by these Terms and the functionality of the Service.
- Digital Millennium Copyright Act - User Content Disclaimer. You are solely responsible for your User Content and the consequences of posting or publishing User Content. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Gainfully may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you may be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Gainfully with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Gainfully does not permit infringing activities on the Service.
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address: Gainfully, Inc. 650 California St., Floor 7, San Francisco, CA 94108 E-mail: copyright@gainful.ly.
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Repeat Infringers. Gainfully will promptly terminate without notice the accounts of users that are determined by Gainfully to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
- Third-Party Products.
- Gainfully may allow you to acquire products and content developed or provided by a third party and made available through the Service (an “App” or, the “Apps”). Such Apps are licensed, not sold, to you by such App provider (“App Provider”). Your license to each App is subject to the App Provider’s end user license agreement for such App (“App EULA”). You acknowledge that: (i) you are acquiring the license to each App from the App Provider; (ii) Gainfully is acting as agent for the App Provider in providing each such App to you; and (iii) Gainfully is not a party to the App EULA between you and the App Provider with respect to that App. The App Provider is solely responsible for the applicable App, the content therein (“App Content”), any warranties to the extent that such warranties have not been disclaimed, and any claims that you or any other party may have relating to that App. You acknowledge and agree that as between you and Gainfully, Gainfully is a third-party beneficiary of the applicable App EULA. You also agree that, upon your acceptance of the terms and conditions of the applicable App EULA for any such App, as between you and Gainfully, Gainfully will have the right (and will be deemed to have accepted the right) to enforce such App EULA against you as a third-party beneficiary thereof.
- If you are an App Provider, in addition to complying with these Terms, you must comply with the App Provider Terms and Conditions (“App Provider Terms”), located at [WEBSITE] and expressly incorporated herein. In the event of any conflict between these Terms and the App Provider Terms, the App Provider Terms control. If we have entered into a separate, written agreement with you, the terms of that agreement will govern your use of the Services and our distribution of the Apps.
- Third-Party Services; Linked Websites. Gainfully may provide tools through the Service that enable you to export or publish information, including User Content and App Content, to third parties and to third party services, including through features that allow you to link your account on Gainfully with an account on a third party service (such as Twitter, LinkedIn, Facebook or a similar service) and share information, including with your contacts via third party services or via email, including through our implementation of third party buttons (such as “like” or “share” buttons). By using these services, you hereby authorize us to transfer such information, including User Content and App Content, to the applicable third party and third party service. Further, you hereby acknowledge that we do not control and are not responsible for any third party service or their use of your information. The Service may also contain links to third party websites. Such linked websites are not under our control, and we are not responsible for their content. Linking your account on Gainfully with an account on a third party service or sharing information with, accessing or otherwise using a third party service or website through the Service as set forth herein may be subject to additional terms established by the applicable third party, and it is your sole responsibility to comply with such third party terms.
- Financial Information. Gainfully or an App Provider may make available to you through the Service solely on a pass-through basis a broad range of financial information that is obtained from or provided by third party service providers, including news, market data, analyst opinions and research reports (collectively, “Financial Information”). Gainfully may check certain Financial Information against applicable broker-dealer rules and requirements, but Gainfully does not endorse or approve Financial Information, and it is made available to you only as a service and convenience. Gainfully does not (i) guarantee the accuracy, timeliness or completeness of Financial Information, (ii) warrant any results from your use of or reliance on Financial Information, (iii) warrant the compliance of such Financial Information with broker-dealer rules and requirements, legal requirements or applicable industry rules and standards, including those of the U.S. Securities and Exchange Commission (“SEC”) and the Financial Industry Regulatory Authority (“FINRA”), or (iv) warrant that the Financial Information does not infringe or violate any third party rights. Financial Information may quickly become unreliable for various reasons including, for example, changes in market conditions or economic circumstances. Gainfully is under no obligation to update any information or opinions contained in any Financial Information, and we may discontinue offering Financial Information at any time without notice. You agree that Gainfully will not be liable to you in any way for the termination, interruption, delay, or inaccuracy of any Financial Information. You should not construe any Financial Information, features, tools or other content available through the Service as legal, tax, investment, financial or other advice. If you, as a broker-dealer or individual financial advisor, provide to Gainfully broker-dealer rules and requirements for the use of Financial Information by individual financial advisors, you represent and warrant that such rules and requirements comply with all applicable legal requirements or applicable industry rules and standards, including those of the SEC and FINRA.
Restrictions on Conduct. BY USING THE SERVICE YOU AGREE NOT TO (and you agree not to assist, permit or encourage others to):
- use the Service for any illegal purpose, or in violation of any local, state, national, or international law, statute, code, ordinance, rule, regulation, treaty, executive order, injunction, judgment, decree, writ or other legal requirement, and applicable industry rules and standards, including those of the SEC and FINRA;
- violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
- post, upload, or distribute any User Content, App Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any other user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect personal information about users or third parties without their consent; (iv) engaging in any prohibited conduct listed on our Restrictions on Conduct page; or (v) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
- perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth; or
- sell or otherwise transfer the access granted herein or any Materials (as defined in Section 4 below) or any right or ability to view, access, or use any Materials.
Ownership; Proprietary Rights. As between you and Gainfully, the Service is owned and operated by Gainfully. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Gainfully are protected by all relevant intellectual property and proprietary rights and applicable laws. As between you and Gainfully, all Materials contained in the Service are the property of Gainfully. Except as expressly authorized by Gainfully, you may not make use of the Materials. Gainfully reserves all rights, including all intellectual property rights, to the Materials not granted expressly in these Terms.
Term; Termination; Additional Terms; Changes.
- Term. These Terms will take effect when you click “I Accept” or check the box presented with these Terms or, if earlier, when you use any part of the Service, and will remain in effect until terminated by you or us in accordance with these Terms (“Term”).
- Termination of Use. We may terminate this Agreement for any reason by providing you 30 days advance notice. In the event of termination without cause, we will refund to you any prepaid fees for services not rendered as of the effective date of termination.
If you materially violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Gainfully, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time upon notice, if you materially violate any provision of these Terms. You may terminate your account at any time without cause by contacting customer service at support@gainful.ly. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
- Discontinuation and Modification of the Service. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service). We will notify you of any material change to or discontinuation of the Service and upon receipt of such notice you may terminate this Agreement immediately and Gainfully will refund to you any prepaid fees for services not rendered as of the effective date of termination. We will have no liability, other than for such prepaid fees, on account of any change to the Service or any suspension or termination of your access to or use of the Service.
- Privacy Policy. Please read the Gainfully Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The Gainfully Privacy Policy is hereby incorporated by reference into, and made a part of, these Terms.
- Additional Terms. These Terms, the Gainfully Privacy Policy, our Restrictions on Conduct page and the App Provider Terms are the entire and exclusive agreement between Gainfully and you regarding the Service, with the exception of any services for which you have a separate agreement with Gainfully that is explicitly in addition to or in place of these Terms (“Additional Terms”) (e.g., end-user license agreements for any downloadable applications that we may offer). If expressly stated in any such Additional Terms, such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
- Changes to the Terms.
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will notify you such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. If the changed Terms materially modify your rights or obligations, we will require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your access to and use of the Service and will refund any prepaid fees for services not rendered as of the effective date of termination. All non-material changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose.
Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Gainfully and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Gainfully Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with
(i) your access to, use of, or alleged use of the Service;
(ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation;
(iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
Disclaimers; No Warranties THE SERVICE AND ALL MATERIALS AND CONTENT, INCLUDING FINANCIAL INFORMATION, AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE Gainfully ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT, INCLUDING FINANCIAL INFORMATION, AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE Gainfully ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT, INCLUDING FINANCIAL INFORMATION, OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Gainfully ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT, INCLUDING APPS, THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability IN NO EVENT WILL THE Gainfully ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE Gainfully ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE Gainfully ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO Gainfully FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Governing Law. These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Gainfully agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for the purpose of litigating all such disputes.
General. These Terms, together with the Privacy Policy and App Provider Terms and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Gainfully regarding your use of and access to the Service, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 1.2, 1.4, 2–4, 5.4 and 6 through 13.
Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and Gainfully in the most expedient and cost effective manner, you and Gainfully agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Gainfully ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Notwithstanding subsection 11.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Arbitrator. Any arbitration between you and Gainfully will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at adr.org, by calling the AAA at 1–800–778–7879, or by contacting Gainfully.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Gainfully’s address for Notice is: Gainfully, Inc., 220 Montgomery St, Ste 891, San Francisco, CA 94104. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Gainfully may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Gainfully shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Gainfully shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Gainfully in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
- Fees. In the event that you commence arbitration in accordance with these Terms, Gainfully will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Gainfully for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND Gainfully AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Gainfully agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. In the event that Gainfully makes any future change to this arbitration provision (other than a change to Gainfully’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Gainfully’s address for Notice, in which case your account with Gainfully shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
- Enforceability. If Subsection 11.6 is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 9 shall govern any action arising out of or related to these Terms.
Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Contact Information. The services hereunder are offered by Gainfully, Inc., located at Gainfully, Inc. 3331 W Big Beaver Rd Suite#100, Troy, MI 48084. You may contact us by sending correspondence to the foregoing address or by emailing us at support@gainful.ly. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.
