GOGIRO INTERNET GROUP
TERMS AND CONDITIONS OF SERVICE
Last Updated: February 5, 2013
These Terms and Conditions of Service (the “Agreement”) sets forth the terms and conditions that apply to the provision by Gogiro Internet Group, Inc. (“Gogiro“, “we”, “our” or “us”) of certain website building, website hosting, search engine optimization, traffic building, domain related and/or other professional services to you (the “Services”), and your access to Gogiro’s online platform and applications which is and are owned and operated by Gogiro and any associated third party applications or services (the “Platform”).
BY ACCEPTING THIS AGREEMENT, EITHER BY
- COMPLETING THE ONLINE ORDER FORM THAT REFERENCES THIS AGREEMENT BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY
- EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (AS APPLICABLE, THE “ORDER FORM”),
YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT RECEIVE THE SERVICES OR ACCESS THE PLATFORM.
Ability to Enter into this Agreement
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you in your jurisdiction of residence or otherwise. If you accept this Agreement, you represent that you have the capacity to be bound by it.
General Obligations and Responsibilities
Subject to the terms and conditions of this Agreement, including without limitation your payment obligations hereunder, Gogiro shall provide access to and use of the Platform and shall provide the Services to you, in each case as set out in the Order Form. You shall: (a) provide such Client Content (as defined below) as is reasonably necessary to enable Gogiro to perform its obligations, including any Client Content designated in the Order Form as being your responsibility; (b) perform such tasks and obligations designated in the Order Form as being your responsibility; and (c) provide all resources as Gogiro may reasonably request as required to perform the Services and provide access to the Platform. You acknowledge and agree that Gogiro will have no liability for any failure to perform its obligations under this Agreement in a timely manner to the extent such failure is due to you not performing your obligations in a timely manner. You agree to use the Platform and any other products provided by Gogiro for lawful purposes, and agree not to post or transmit any Client Content or other materials in violation of applicable laws and regulations.
Your Profile Information and Account
You agree and understand that you are responsible for maintaining the confidentiality of your password which, together with your email address, allows you to access the Platform. That email address and password, together with any or other user information you provide, form your “Profile Information” and allow you to access your account (“Account”). You agree to provide true, accurate, current and complete information about yourself, and you may not misrepresent your Profile Information.
Your right to access and use the Platform is personal to you and is not transferable by you to any other person or entity. You agree not to disclose your password to any third party. You are solely responsible for all activities that occur under your Account or under your Profile Information. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying Gogiro immediately.
By providing us with your e-mail address, you agree to receive all notices and communications made in connection with this Agreement electronically, to that e-mail address. You have an affirmative obligation to provide Gogiro with a correct and operational e-mail address, and to notify Gogiro promptly as to any changes or cancellations of any and all e-mail addresses that you have provided to Gogiro. Gogiro will not be responsible or liable for any undelivered e-mail communications or any costs you incur for maintaining Internet access and an e-mail account.
Scope of Services
Hosting, Services and Platform Access. If the Order From specifies that you are to receive website hosting services or any Platform features, you acknowledge and agree that such services and features are only made available by Gogiro to qualified small businesses, as determined by Gogiro in its sole and absolute discretion. Without limiting Gogiro’s ability to exercise such discretion, you acknowledge and agree that in order to qualify as a small business for the purposes of this Agreement, a business must: (a) have a good-faith intention not to abuse or misuse the product and service offerings of Gogiro; (b) not be serving content to other domains; and (c) not regularly use more than triple the average small business resources provided by Gogiro to its qualified small businesses. Gogiro reserves the right to cancel your account or charge you additional fees if you, in Gogiro’s sole discretion, are abusing account privileges or are determined ineligible for Gogiro’s small business offerings
Domain Name Services. You acknowledge and agree that Gogiro only offers domain name registration services if you engage Gogiro to register your domain name. Domain name registration fees, domain parking fees, and certain other fees may be included in the monthly fees payable by you to Gogiro hereunder if your Order Form includes a valid subscription to Gogiro’s “Traffic Builder” or other related products. You acknowledges and agree that domain names registered on your behalf as part of the “Traffic Builder” or other related products shall be owned by Gogiro, and that you will not receive any rights to such domain names except for the license to access and use such domain names as part of the Work Product (as defined below) provided by Gogiro hereunder.
Website and Traffic-Building Services. If you engage Gogiro to provide Services related to website and/or traffic-building, you acknowledge and agree that the Services related to each such website or traffic-building order include a maximum set of revisions and a maximum time period within which revisions are permitted, depending on the specific Service ordered. All Services provided by Gogiro that are additional to the maximum set of revisions or work required beyond the maximum time period shall be paid for by you at Gogiro’s then-current standard hourly rates. Gogiro may, in its sole discretion, refuse website building orders that exceed five modifications.
Storage and Bandwidth. You acknowledge and agree that any product or service offerings of Gogiro that provide for unlimited storage and/or bandwidth are subject to availability of space on a single clustered server, and that you are subject to a maximum limit of 100,000 inodes and a maximum database size of 100 megabytes.
Fees and Payment Terms
You shall pay all fees specified in the Order Form and that are otherwise agreed between you and Gogiro, including without limitation any up-front and monthly fees specified in the Order Form or in such a separate agreement. Unless otherwise stated in the Order Form, account activation, design and setup fees shall be considered up-front fees and are due and payable by you to Gogiro immediately upon execution of the Order Form. If you exceed any usage or fee thresholds set forth in a Order Form or under a product or service plan purchased from Gogiro, the amount you are charged will increase accordingly and will be added to your next invoice. All sales, use or goods and services taxes, customs duties, withholding taxes or similar levies of any kind arising with respect to the products and services provided by Gogiro hereunder are your sole responsibility and will be paid by you without deduction from the amounts owing to Gogiro under this Agreement. Except as otherwise specified in the Order Form or in a separate written agreement between you and Gogiro, we will invoice you for all Fees and you will pay all Gogiro invoices within 30 days after your receipt thereof. Except as otherwise expressly provided in this Agreement, all monies paid by you in connection with this Agreement are not subject to refund or credit of any kind. If you fail to pay any amount payable under this Agreement within the time limited therefore (including without limitation if your cheque or credit card payment is declined), then you shall be charged and must pay to Gogiro a default fee of $25, and the outstanding amount of such late payment will incur interest at the rate of the lesser of (a) 2.5% per month (30.04% per annum) and (b) the maximum interest rate permitted by applicable law, for each calendar month (or portion thereof) during which it remains unpaid. You will be responsible for all interest, assessments and penalties imposed on or incurred by Gogiro, and all collection and related enforcement costs incurred by Gogiro, as a result of your failure to pay any amount under this Agreement within the time limited therefore. Gogiro reserves the right to modify its fees and billing rates at any time upon thirty (30) written notice by either posting such fee changes to the Platform or notifying you by email in accordance with the terms of this Agreement.
You may from time to upload to the Platform or otherwise provide to Gogiro content for use in the provision of the Platform and Services, including but not limited to text, images, video, data, and other information or content (collectively, “Client Content”). You acknowledge and agree that you are solely responsible for all Client Content you submit, provide or upload and the consequences for submitting, providing or uploading it. Gogiro reserves the right to remove and/or refuse to utilize any Client Content for any reason whatsoever. Without limiting the generality of the foregoing, you will not submit, provide or upload any Client Content that: (a) is patently offensive, exploitative, criminal, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) harasses or advocates harassment of another person, or promotes illicit or criminal activity; (c) solicits personal information from anyone under 18; (d) constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (e) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”; (f) attempts to gain unauthorized access to the computer systems of Gogiro or disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Platform or the computer systems of Gogiro; (g) is greater than 10 megabytes in size; or (h) is stored in virtual server space or otherwise outside of locations permitted by Gogiro. You shall be fully and solely liable to any third party and to us for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your submission, provision or uploading of Client Content.
You represent and warrant that: (a) you own or otherwise have the necessary rights to produce, display, distribute and/or exploit all Client Content on the Platform and to utilize such Client Content as part of any Services to be performed by Gogiro; (b) you have obtained all necessary consents for the collection, export, use and storage of all Client Content; and (c) no Client Content infringes upon or violates the privacy, publicity or intellectual property rights of any third party. You agree that Gogiro is not responsible for any violations of any third party intellectual property rights by any Client Content. You agree to pay all royalties, fees and any other monies owing to any person by reason of Client Content submitted, provided or uploaded to Gogiro.
Gogiro will use Client Content you submit, provide or upload solely in connection with providing the Platform and the Services to you, and for no other reason. You agree that by uploading Client Content to the Platform or otherwise providing Client Content to Gogiro, you grant to Gogiro a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, modify and display all or any portion of such Client Content in connection with providing the Platform and the Services to you. This license includes the right to host, index, cache or otherwise format Client Content in order to provide the Platform and the Services.
Intellectual Property Rights
All right, title, interest and ownership and intellectual property rights in and to the Gogiro trademarks and the Platform, and any all work product, software, website design and implementation, algorithms, accounts, information, data and other materials developed by or on behalf of Gogiro in the performance of the Services hereunder (“Work Product”), other than Client Content, are and will remain the property of Gogiro. To the extent that you participate in the development of such Work Product or otherwise attain any rights in such Work Product, you hereby transfer and assign all rights in such Work Product to Gogiro on a worldwide basis in perpetuity and, as applicable, hereby waive any moral rights therein. Without limiting the foregoing, Gogiro retains the right to use, sell or distribute any Aggregated Data generated by our customers or users. “Aggregated Data” means records which have been stripped of information potentially identifying customers or end-users, and which have been manipulated or combined to provide generalized, anonymous information.
Subject to the terms and conditions of this Agreement, including without limitation your payment obligations contained herein, Gogiro grants to you, during the term of this Agreement, a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose license to (a) access and use the Platform services that are subject to a valid Order Form; and (b) access and use the Work Product, in each case solely for your internal business purposes and not with a view to re-sale or distribution.
Gogiro may permit you from time to time to purchase certain Work Product, including any website developed for you by Gogiro as part of the Services, at the price and on the terms specified by Gogiro. You may contact Gogiro to inquire about this possibility, but you acknowledge and agree that Gogiro is under no obligation to sell any Work Product to you.
You agree to safeguard, keep secret and not to disclose to any third party, any Confidential Information acquired, learned or provided from Gogiro or its business during the term of this Agreement or following the expiration or termination of this Agreement. “Confidential Information” means any information marked confidential or that ought reasonably to be considered confidential under the circumstances and includes, without limitation, any business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.
Disclaimer of Warranties
YOUR ACCESS AND USE OF THE PLATFORM, THE SERVICES, THE WORK PRODUCT AND ALL CONTENT FORMING PART OF OR RELATED TO ANY WEBSITE DEVELOPED OR BUILT BY GOGIRO HEREUNDER, INCLUDING ANY CLIENT CONTENT YOU UPLOAD, PROVIDE OR SUBMIT AND ANY THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE PLATFORM AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT, GOGIRO EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO THE PLATFORM, THE SERVICES AND WORK PRODUCT PROVIDED BY GOGIRO IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GOGIRO OR THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
GOGIRO DISCLAIMS ANY WARRANTY THAT THE PLATFORM OR ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR THE SERVERS THAT MAKES THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT FROM TIME TO TIME GOGIRO MAY REMOVE THE PLATFORM FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU. YOUR ACCESS AND USE OF THE PLATFORM MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE PLATFORM OR OTHER ACTIONS THAT GOGIRO, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE.
GOGIRO EXERCISES NO CONTROL WHATSOEVER OVER THE CONTENT OF THE INFORMATION PASSING THROUGH ITS NETWORK. YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS PRONE TO FAILURE, BREAKDOWNS, INTERRUPTIONS AND UNCONTROLLABLE OUTAGES AND THAT GOGIRO WILL NOT BE RESPONSIBLE FOR ANY DAMAGES YOU MAY SUFFER IN CONNECTION WITH SUCH FAILURES, BREAKDOWNS, INTERRUPTIONS AND OUTAGES. THIS INCLUDES LOSS OF DATA RESULTING FOR DELAYS, NONDELIVERIES, MISDELIVERIES, OR SERVICE INTERRUPTIONS. YOU SHALL BE RESPONSIBLE FOR MAKING AND KEEPING BACKUP COPIES OF ALL WORK PRODUCT, EMAILS, DATA, CLIENT CONTENT AND ALL OTHER INFORMATION AND MATERIALS USED IN CONNECTION WITH THIS AGREEMENT AT ALL TIMES. GOGIRO IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY GOGIRO, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY GOGIRO.
Third Party Sites and Content
The Platform may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Platform. These other websites are not under Gogiro\\’s control, and you acknowledge that Gogiro is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Gogiro or any association with its operators. You further acknowledge and agree that Gogiro shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such website or resource. Access and use of third party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.
Limitation of Liability
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, SHALL GOGIRO OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF GOGIRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION IN RELATION TO THE PLATFORM OR ANY SERVICES OR WORK PRODUCT PROVIDED BY GOGIRO IN CONNECTION WITH THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, GOGIRO’S MAXIMUM AGGREGATE LIABILITY TO YOU AND YOUR AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNTS YOU ACTUALLY PAID TO GOGIRO IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE FOR THE SPECIFIC PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, GOGIRO’S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You agree to indemnify, defend, and hold harmless Gogiro, and its subsidiaries, affiliates, third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) arising out of or relating to this Agreement, including without limitation in relation to: (a) any claim arising from or relating to any breach of this Agreement caused by any act or omission by you or any end-user of the Platform, the Services or the Work Product (including any website developed by Gogiro and forming part of the Work Product); (b) any claim arising from or relating to any misrepresentation or breach of warranty on your part contained in this Agreement; (c) any claim that may be advanced by any end-user or any other third party relating in any way to this Agreement, including without limitation with respect to the Platform, the Services, Client Content and/or Work Product (including any website developed by Gogiro and forming part of the Work Product); and (d) any claim that any Client Content or any other materials submitted, provided or uploaded by you or on your behalf to the Platform or to Gogiro infringe the intellectual property rights of a third party. Gogiro reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Gogiro and you agree to cooperate with Gogiro’s defense of these claims. You agree not to settle any matter without the prior written consent of Gogiro. Gogiro will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Cancellation and Termination
This Agreement shall continue in full force and effect unless terminated by you or Gogiro in accordance with the terms set forth herein.
You may terminate this Agreement and any month-to-month Services and Platform access purchased by you upon thirty (30) days written notice to Gogiro. Gogiro reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure by you to comply with the terms of this Agreement. However, you acknowledge and agree that all up-front or one-time fees, including without limitation account activation, website design and building, setup and disconnection fees, are non-cancellable and non-refundable and must be paid to Gogiro regardless of any termination of this Agreement. You will remain liable for all such non-cancellable and non-refundable fees and all monthly fees and charges accrued up to the time of termination. Further, Gogiro reserves the right to modify, suspend or discontinue the Platform and/or Services, or any portion thereof, at any time and for any reason, with or without notice. Gogiro shall have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result of any such modification, suspension or discontinuance.
Gogiro is under no obligation to store your Work Product or Client Content and may delete your Account and your Work Product and Client Content immediately upon cancellation. In addition to any other obligations of the parties upon termination specified in this Agreement, upon any termination of this Agreement, you will cooperate with Gogiro in effecting an orderly transition under this Agreement and, in particular, you will immediately return all documentation and materials supplied by Gogiro to you, including all Confidential Information.
The sections of “Ability to Enter into this Agreement”, “Fees and Payment Terms”, “Your Content”, “Intellectual Property Rights”, “Confidential Information”, “Disclaimer of Warranties”, “Third Party Sites and Content”, “Limitation of Liability”, “Indemnity”, “Cancellation and Termination” and “Miscellaneous” will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
You may contact Gogiro by email at firstname.lastname@example.org or by mail at:
Gogiro Internet Group
#102 – 3833 Henning Drive
Burnaby, BC, V5C 6N5