Acceptance of these Terms of Service
Thank you for using our software, Local Leads 365 and our consumer Web sites (e.g., gibbssoftwaresolutions.com, localleads365.com), (our “Services”), which are made available to help you find people and businesses as leads for your business.
This Terms of Service agreement (the “Agreement” or “Terms”) is between you and Gibbs Software Solutions, Inc. (“Gibbs”, “we”, “us” or “our”), and sets forth the legally binding terms for your access and use of the Services. Gibbs provides the Services, and any text, graphics, photos, data or other materials downloaded from or appearing on the Services (such materials, “Content”). Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted in or on the Services in connection with such features. All such additional terms, guidelines and rules are incorporated by reference into this Agreement.
IF YOU DISAGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.
Electronic Communications: By accessing the Services, you consent to have this Agreement provided to you in electronic form and that all agreements, disclosures, and other communications that we may provide to you in electronic form satisfy any legal requirements that our communications with you be in writing. You acknowledge that when you provide us with your contact information, including an email address or telephone number (“Contact Information”), sharing this information with us constitutes a “purchase” or “inquiry” that establishes a business relationship between you and us.
You expressly agree that we may communicate with you about the Services, using any or all Contact Information you provide to us. You also represent and warrant that you have the legal authority over any telephone number you provide to us. We may contact you, in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text message (SMS or MMS), or any other means of communication that your telecommunications device may be capable of receiving. You may elect to opt out of receiving marketing emails at any time by following the instructions and link provided in the email. Please allow up to ten business days for our systems to reflect your marketing communication preferences.
1. General Policies
1.1 Eligibility to Use the Services
In order to use the Services, you must be 18 years of age or older and have the legal capacity to enter into this Agreement. In addition, you must not be barred from receiving services under United States law or the laws of any other jurisdiction. The Services are not for use by anyone under the age of eighteen years. If you are using any pay-to-use Services on behalf of your employer, you represent and warrant that you are authorized by them to accept these Terms, and that you will be using the Services for internal business use only. We reserve the right to suspend, terminate or deny your access to the Services for any (or no) reason, with or without notice and without further obligation.
1.2 Accounts and Security
Account Creation. In order to access and use certain Services, we will create a user account (an “Account”). As part of the Account creation process, login credentials will include your e-mail address, your password should be changed upon accessing the account. You agree: (i) to maintain and update such account data to keep it true, accurate, current and complete; and (ii) that Gibbs may contact you and require you to confirm some or all of your account data before using or continuing to use these Services. We reserve the right to terminate the limited licenses granted to you and to refuse to provide you with any and all current or future use of the Services if, in our sole discretion, we determine or are of the opinionx that any of your account data is, or appears to be, untrue, inaccurate, not current or incomplete.
Account Security. You are responsible for maintaining the confidentiality of your account credentials, including your password, and for all activities, charges and/or liabilities that occur from your Account, whether or not authorized by you. You agree that you will not share your username and password, or transfer, sub-license, sell or assign your rights in your Account to any other person or entity. You may not open multiple Accounts for the same service, and we will close Accounts associated with the same credit or debit card. You must immediately notify Gibbs of any unauthorized use of your Account, login credentials, or any other breach of security of which you become aware by emailing [email protected]
We will not be liable for any loss or damage arising from your failure to comply with this section. Any fraudulent, abusive, or otherwise illegal activity may be grounds for immediate suspension or termination of your account, at our sole discretion, and we may refer you to appropriate law enforcement agencies. Gibbs has no obligation to retain any data associated with your Account if it is terminated.
Audit. Gibbs reserves the right to audit your use of the Services and Content. You agree to cooperate and to provide us all documentation reasonably requested related to the use of your account.
1.4 Payment Policy for Pay-To-Use Services
Paid Content. Some, if not all, of the Content offered through the Services is only available for a fee (such Content, “Paid Content”). By purchasing Paid Content, you agree to receive the services offered, Both compiled reports and subscription plans for pay-to-use Services are considered Paid.
Subscription Fees. If you sign up for a subscription term plan (a “Subscription Plan”), we bill your Account using the billing information you provide to us, at the beginning of the paying portion of your subscription term and each subscription period thereafter unless and until you cancel your subscription. You agree that a one-month term is one calendar month (e.g., May 15 to June 15; January 30 to February 28).
Payment Method and Provider. You agree to pay for all charges for the purchase of credits or the use of Paid Content using your Account, plus any applicable taxes. All prices are in US Dollars and do not include foreign exchange fees or charges that you may incur from other providers, such as your Internet service provider or telephone provider. Without limiting any other terms of this Agreement, the Services may change fees and charges in effect, or add new fees and charges from time to time, but you will always know the fees that may be charged before you are asked to provide payment.
Purchases made through Gibbs. You authorize us to charge your chosen payment provider for these charges. You also authorize us (or a third party working on our behalf) to collect and store that payment method, along with other related transaction information. We may update your payment method with information provided by the applicable payment service provider, and you authorize us to continue to charge the fee for Paid Content to the updated payment method. The terms of your payment will be based on your method of payment and may be determined by agreements between you and the financial institution, credit card issuer, or other provider of your chosen method of payment (your “Payment Provider”). If your purchase results in an overdraft or other fee from your banking institution, you are responsible for paying that fee.
If Gibbs does not receive payment from your Payment Provider, you agree to pay all amounts due on your Account upon demand. In the event we are advised of insufficient funds in your account or credit to cover your payment by credit card, we may re-submit the payment to your Payment Provider. You are responsible for maintaining a current payment method to continue to access Paid Content, and if we are unable to charge your payment method, your access to Paid Content may be terminated. We reserve the right to correct any errors or mistakes that we may make, even if we have already requested or received payment, and to update your information from available third party sources.
Cancellation and Refunds. You may choose not to renew your Subscription Plan at any time, and you will continue to have access to Paid Content through the end of your subscription period. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH SUBSCRIPTION PERIODS, OR UNUSED PAID CONTENT. If you cancel your Subscription Plan, your Subscription Plan will automatically terminate at the end of your current billing period. To see when your next payment is due, or to cancel auto-renew, you should contact us at [email protected]
If you signed up for Paid Content using your account with a third party as a payment method (e.g., Google Play), and wish to cancel, including during your trial period, you may need to do so through such third party, including by visiting your account with the applicable third party and turning off auto-renew, or unsubscribing from, the applicable Service through that third party. For refunds for Paid Content purchased through the Google Play of Apple iTunes stores, please contact Google or Apple, as applicable, through your account with them. You acknowledge that any use of the pay-to-use Services or Paid Content that violates these Terms may result in termination of your access to Paid Content, without eligibility for a refund.
2. License and Access to the Services
2.1 Limited License
When you use the Services, you are not receiving a license or any other rights from Gibbs, including intellectual property or other proprietary rights of Gibbs. You understand that you have no rights to the Services or Content or any other Gibbs property except as indicated in these Terms and all rights and licenses not expressly granted to you in this Agreement are retained by Gibbs. To the extent any component of the Services or Content may be offered under an open source license, we will make that license available to you and the provisions of that license may expressly override some of these Terms.
Gibbs may revoke or terminate the license granted above in its sole discretion, at any time. Without limiting the generality of the foregoing, we may revoke or terminate the license if you: (i) breach any obligation in this Agreement or in any other agreement between you and us, (ii) violate any policy or guideline applicable to the Services or Content, or (iii) use the Services or the Content other than as specifically authorized in this Agreement, without our prior written permission.
2.2 No Unauthorized Access
You may not do any of the following while accessing or using the Services:
use any robot, spider, site search/retrieval application, or other automated device to download, retrieve, scrape, distribute or index any portion of the Content, or permit any third party to do the same;
gain unauthorized access to any of the Services, other accounts, computer systems or networks connected to any Gibbs servers, through hacking, cracking, and/or distribution of counterfeit software, password mining or any other means;
reproduce, modify, distribute, decompile, disassemble, or reverse engineer any portion of the Services;
probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
falsify or alter any unique identifier assigned to you, or otherwise obscure or alter the source of queries to the Service;
forge any TCP/IP packet header or any part of the header information in any email, or in any way use the Services to send altered, deceptive, or false source-identifying information;
engage in “framing,” “mirroring” or otherwise simulating the appearance or function of the Services;
make the functionality of the Services available to multiple users through any means including, but not limited to, deep-linking to one of our Web sites or uploading one of our apps to a network; or
interfere with, interrupt, destroy or limit the functionality of the Services or any computer software or hardware or telecommunications equipment, including, without limitation, sending viruses, overloading, flooding, spamming, or mail-bombing the Services.
3. Using the Services: Requirements and Restrictions
3.1 Fair Credit Reporting Act
Gibbs is not a Consumer Reporting Agency. Gibbs is not a consumer reporting agency for purposes of the Fair Credit Reporting Act, 15 U.S.C. Sec. 1681 et seq. (“FCRA”). None of the information in our databases has been collected, in whole or in part, for the purpose of furnishing “consumer reports,” as defined in the FCRA, and the additional protections afforded to consumers, and obligations placed on credit reporting agencies, are not contemplated by, nor contained within, these Terms.
FCRA Restrictions on Your Use of the Services. You may not use any information obtained from the Services and Content in connection with determining a prospective candidate’s suitability for:
Health insurance or any other insurance,
Credit and/or loans,
Employment (including but not limited to, household workers such as nannies),
Education, scholarships or fellowships,
Housing or other accommodations,
Benefits, privileges or services provided by any business establishment,
or for any other purpose covered by the FCRA, by the Federal Trade Commission’s interpretations of the FCRA, and/or by similar state statutes.
3.2 Resale Restrictions
You may not allow a third party to use the Services or Content for any purposes, Content may not be published, sold, or rented to any third party.
3.3 Automated Searching
We do not allow scraping or automated collection of our Content. If we determine that you are using use automated means (e.g., robot or spider) to retrieve, distribute or index any portion of our Content, or more than one individual is using your Account at any one time, your Account may be turned off or your access otherwise blocked, without notification, for further investigation. If you feel your Account has been turned off or your access to the Services has been blocked in error please contact us.
3.4 General Restrictions
You also agree to adhere to the following:
You will use the Services only for appropriate, legal purposes, and in compliance with all applicable federal, state, and local laws and regulations, including export control laws. Any unauthorized use of the Services or Content is expressly prohibited.
You are responsible for determining which laws apply based on your use of the Content. You will obtain any and all necessary licenses, certificates, permits, approvals or other authorizations required by federal, state or local statute, law or regulation that govern your use of the Services
You will take reasonable steps to ensure that the information you receive from the pay-to-use Services is stored in a secure manner.
You will not use the Services or information derived from the Services in combination with any purpose, or personal information, covered under the Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act, or the Children’s Online Privacy Protection Act.
You will not use the Services in a manner that may cause emotional or physical harm to anyone, or to stalk, threaten, defame, libel, or otherwise harass another person. You may not use the Services for the furtherance of any criminal activity, including fraud and identity theft, or in the violation of any person’s privacy rights.
You will not use the Services to seek information about or locate any person under the age of 18.
You will not falsely state, impersonate, or otherwise misrepresent your identity or your affiliation with any person or entity while using the Services.
You will not use the Services to send any commercial email or SMS that does not comply with CAN-SPAM, the Telephone Consumer Protection Act, or any other applicable federal or state law.
You will not use the Services or Content in connection with credit repair or credit counseling services.
Gibbs has the right to investigate and bring claims for violations of any of the above to the fullest extent of the law. We may, but are not required to, provide notice of such violations beforehand.
4. Legal Notices About Your Searches
4.1 Public Records Disclaimer
Public Records for Informational Use. The Services provide a database of public records and publicly available sources of information aggregated for your convenience, including but not limited to, court, voter registration, property and license records (“Public Information”).
No Verification of Content. Gibbs does not verify Public Information or any other Content. While we are constantly updating and refining the Services, we do not warrant or guarantee that the results provided will be accurate and up to date and, consequently, Gibbs shall not be responsible or liable for the accuracy, completeness, usefulness, or legality of any Public Information or the availability or unavailability of the Services or Content. Gibbs does not make any representation or warranty as to the character or the integrity of the person, business, or entity that is the subject of any searches. Gibbs also reserves the right to delete any information from its databases at any time.
You agree to rely on the Public Information, and any other Content, available through the Services at your own risk.
4.3 California Consumer Notice
Under California Civil Code Section 1789.3, if you are a California resident, you are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254
or (800) 952-5210.
5. Intellectual Property
Ownership of Content and Marks. The Services, and all material published on or accessible through the Services, including, but not limited to text, photographs, video, graphics, music, images, animations, audio, “applets” incorporated into the software data, sounds, messages, comments, ratings, and other materials that are part of the Services, is owned by Gibbs or its licensors, and is protected by copyright, trademark, and other laws of both the United States and other countries.
All trademarks, service marks, trade names, and trade dress contained in the Services (“Marks”), are proprietary to Gibbs and may not be used by you unless expressly authorized to do so. This prohibition includes, but is not limited to, unauthorized copying or distribution of any of the Content displayed or used on the Services, framing Content, using Meta tags or “hidden text,” creating any unauthorized derivative work, or in any other way exploiting the Marks, the Content or the Services. You agree you will not reproduce, publish, transmit, perform, sell, create derivative works of, or in any way exploit, any of the Marks, the Content, or the Services, in whole or in part. You acknowledge that you do not acquire any ownership rights in any Content downloaded from the Services. All right, title and interest in and to the Content and Services is and will remain the exclusive property of Gibbs and its licensors. Any feedback, comments, or suggestions you may provide regarding Gibbs or the Services, including correspondence with Customer Service (collectively, “Feedback”), is entirely voluntary. We shall have no obligation to you of any kind, monetary or non-monetary, with respect to Feedback and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works from and distribute the Feedback to others without limitation or obligation.
We may use third-party trademarks in the Services to identify the owners of these marks. Use of any third-party trademark is intended only to identify the trademark owner and its goods and services, and is not intended to imply any association between the trademark owner and Gibbs.
No Other License Granted. Except for allowing you to use the Services and Content for your personal use or internal business purposes as set forth in above, when you use the Services, you are not receiving a license or any other rights from Gibbs, including intellectual property or other proprietary rights of Gibbs. You understand that you have no rights to the Services or any other Gibbs property except as described in these Terms.
Content You Provide or Transmit. In the course of using the Services, you may transmit or otherwise make available certain content to us, including information about yourself. You grant us a world-wide, royalty-free, perpetual, irrevocable license to use, reproduce, modify, perform, display, distribute, create derivative works in, store and archive such content. You understand and agree that Gibbs retains the right to reformat, excerpt or translate any content provided or transmitted by you. You also agree that we may collect and use technical information such as your IP address, device ID, and other information including, but not limited to, technical data about your mobile device and system software and peripherals, for product improvement, customer support, and to provide other services to you related to the Services. We have no obligation to monitor content you provide and submit through the Services, but we do reserve the right to monitor and review such content, for the purpose of operating the Services, to ensure your compliance with this Agreement, or to comply with applicable law or the requirement of a court, administrative agency or other governmental body.
6. Special Provisions
6.1 Special Provisions Applicable to Software
If you download or use certain Services, such as an app or a browser plug-in, you agree that, from time to time, the software may download and install upgrades, updates, and additional features from us in order to improve, enhance, and further develop the Services.
7. Disclaimers; Limitations of Liability; Indemnification
7.1 Disclaimer of Warranty
YOU USE THE SERVICES AT YOUR SOLE RISK. YOU EXPRESSLY AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR (A) ANY DAMAGE, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, OR LOSS OF DATA, THAT RESULTS FROM YOUR USE OF THE SERVICES, AND (B) FOR ANY DISCLOSURE OF INFORMATION THAT YOU UNDERTAKE WHILE USING THE SERVICES OR THE CONTENT. TO THE EXTENT PERMITTED APPLICABLE LAW, GIBBS PROVIDES THE SERVICES AND THE CONTENT “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, GIBBS AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF GIBBS IS ADVISED OF SUCH PURPOSE), AND IMPLIED WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING OR USAGE OR TRADE.
WITHOUT LIMITING THE FOREGOING, NEITHER GIBBS NOR ANY OF ITS AFFILIATES OR LICENSORS, NOR ANY OF THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY, THE “PROVIDERS”), REPRESENT OR WARRANT (I) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, TRUTHFUL, COMPLETE, RELIABLE, OR ERROR FREE; (II) THAT THE SERVICES WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, RESPONSIVE, OR SECURE; (III) THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES WILL BE FREE FROM VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL PROPERTIES; (IV) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES; (V) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; OR (VI) THAT THE CONTENT IS NON-INFRINGING.
NO INFORMATION OR ADVICE PROVIDED THROUGH THE SERVICES, BY THE COMPANY, OR BY THE COMPANY’S EMPLOYEES OR AGENTS SHALL CREATE ANY WARRANTY.
Some states do not allow the exclusion of certain warranties. Accordingly, some of the above limitations and exclusions may not apply to you.
7.2 Limitation of Liability
IN NO EVENT SHALL GIBBS OR ANY OF THE PROVIDERS BE LIABLE, WHETHER UNDER ANY IMPLIED INDEMNITIES OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (I) USE OF THE SERVICES OR THE CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, THE SERVICES OR CONTENT, WHETHER PROVIDED BY GIBBS OR BY THIRD PARTIES; (II) ANY USE OR INABILITY TO USE OR ACCESS THE SERVICES FOR ANY REASON, (III) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR SEARCHES, CONTENT, OR ACCOUNT, (IV) ANY CONTENT PROVIDED BY OR CONDUCT OF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF THIRD PARTIES; OR (IV) ANY CONTENT OR SERVICES DISCUSSED, PURCHASED OR OBTAINED, DIRECTLY OR INDIRECTLY, THROUGH THE SERVICES, EVEN IF GIBBS AND/OR THE PROVIDERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GIBBS OR THE PROVIDERS ARISING OUT OF OR RELATING TO THE USE OF THE SERVICES AND/OR THE CONTENT EXCEED THE GREATER OF U.S. $100.00 OR THE AMOUNT YOU PAY TO GIBBS, IF ANY, IN THE PAST SIX MONTHS, FOR ACCESS TO OR USE OF THE SERVICES.
Some states do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and exclusions may not apply to you.
You agree to hold harmless, defend, and indemnify Gibbs and the Providers from all liabilities, claims, demands and expenses, (including, but not limited to, reasonable attorneys’ fees), that are due to, arise from, or otherwise relate to your use or misuse of the Services or the Content including, without limitation, any actual or threatened suit, demand or claim made against Gibbs or any Provider that arises out of or relates to: (i) any intellectual property rights or other proprietary rights of any third party, and (ii) your breach of this Agreement. Gibbs may assume exclusive control of any defense of any matter subject to indemnification by you (which shall not excuse your obligation to indemnify Gibbs), and you agree to cooperate with Gibbs in such event. You shall not settle any dispute subject to your indemnification under this Agreement without prior written consent from Gibbs.
8. General Terms
8.1 Controlling Law
These Terms will be governed by the laws of the Commonwealth of Massachusetts without regard to or application of its conflict of law provisions or your state of residence.
8.2 Severability and Waiver.
Waiver. Gibbs’s failure to enforce a provision of this Agreement is not a waiver of its right to do so later or to enforce any other provision.
Severability. If any provision of these Terms of Service are held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
You may not assign any of your rights or obligations under this Agreement, and any such attempt will be void. Gibbs may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
8.4 Changes to the Service
We reserve the right, at any time and in our sole discretion, to amend, modify, suspend, or terminate the Services, the Content, and any part thereof, without notice to you. Gibbs shall have no liability to you or any other person or entity for any modification, suspension, termination, or loss of information.
These Terms will remain in full force and effect while you use the Services. If you wish to terminate this Agreement or your Account, you may simply discontinue using the Services. Gibbs may terminate your access to all or any part of the Services or Content at any time, with or without cause, with or without notice, effective immediately. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, payment obligations, warranty disclaimers, release of claims, indemnity, and limitations of liability.
Nothing in this section shall affect Gibbs’ right to change, limit, or stop the provision of the Services without prior notice, as provided in the immediately preceding section.
8.6 No Third Party Beneficiaries
Except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
The headings of the sections contained in these Terms are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of the Terms.
< b>8.8 Changes to Terms
We reserve the right to change these Terms of Service at any time by posting the most current version of the Terms with a new Effective Date shown. It is your responsibility to review these Terms of Service prior to each use of the Services, and by continuing to use the Services, you agree to any changes. If you do not agree to these Terms, you must discontinue using the Services immediately.
< b>8.9 Additional Terms
< b>8.10 Dispute Resolution: Agreement to Arbitrate
Please read the following sections carefully, as they affect your rights.
ANY DISPUTE, CLAIM OR CONTROVERSY BETWEEN YOU AND GIBBS RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE SERVICES OR CONTENT, WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT (INCLUDING, WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY (“DISPUTE”), WILL BE RESOLVED BY BINDING ARBITRATION. IF IT CANNOT BE RESOLVED THROUGH NEGOTIATION AS SET FORTH IN THIS SECTION 8.10. ARBITRATION MEANS THAT THE DISPUTE WILL BE RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. THE ARBITRATOR WILL DECIDE ALL THRESHOLD QUESTIONS, INCLUDING BUT NOT LIMITED TO, ISSUES RELATING TO THE ENFORCEABILITY, REVOCABILITY, OR VALIDITY OF THIS SECTION 8.10 AND WHETHER EITHER PARTY LACKS STANDING TO ASSERT THEIR CLAIM(S). VENUE FOR ANY ARBITRATION CLAIM SHALL RESIDE IN BOSTON, MASSACHUSETTS.
NOTWITHSTANDING THE FOREGOING, YOU AND GIBBS AGREE THAT (A) ANY DISPUTE THAT MAY BE BROUGHT IN SMALL CLAIMS COURT MAY BE INSTITUTED IN SMALL CLAIMS COURT IN YOUR COUNTY OF RESIDENCE OR SUFFOLK COUNTY, MASSACHUSETTS INSTEAD OF BEING RESOLVED THROUGH ARBITRATION, AND (B) EITHER PARTY MAY SEEK INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION TO (I) ENJOIN INFRINGEMENT OR OTHER MISUSE OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING, WITHOUT LIMITATION, VIOLATION OF ANY DATA USE RESTRICTIONS CONTAINED IN THIS AGREEMENT OR OTHER MISUSE OF THE CONTENT), OR (II) ENJOIN SCRAPING, WEB CRAWLING OR UNAUTHORIZED ACCESS TO EITHER PARTY’S WEB SITES OR SERVICES.
If you have a Dispute with Gibbs, you must send written notice describing the Dispute to Gibbs to allow Gibbs an opportunity to resolve the Dispute informally through negotiation. You must send your notice to the following address: Gibbs Software Solutions, Inc., 25 Braintree Hill Office Park, Braintree, MA 02184. If we have a Dispute with you, we will send written notice (e-mail or letter) describing the Dispute to you. The parties agree to negotiate resolution of a Dispute in good faith for no fewer than 45 days after notice of a Dispute has been provided. If the Dispute is not resolved within 45 days from receipt of notice of the Dispute, you or Gibbs may proceed to have the Dispute resolved through arbitration as each party’s exclusive Dispute resolution process (except for the limited exceptions set forth above).
Any arbitration, if required, will be conducted by the American Arbitration Association (“AAA”) under its then current and applicable rules and procedures, which are located at http://www.adr.org, and these rules will govern the payment of all filing, administration, and arbitrator fees, unless this Section 8.10 expressly provides otherwise. The party submitting a dispute for resolution through arbitration will pay AAA’s filing fee. Each party will pay their pro rata share of administration and arbitrator fees under AAA’s rules; provided however, if AAA’s Consumer Arbitration Rules are applicable, Gibbs will make arrangements to pay all necessary administration and arbitrator fees directly to AAA. If AAA’s Consumer Arbitration Rules are applicable and you lose the claim(s) you assert against Gibbs, you agree to reimburse Gibbs for your pro rata share of administration and arbitrator fees; provided however, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Gibbs will pay as much of the administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous or that you asserted the claim(s) for harassment or any other improper purpose, you agree to reimburse Gibbs for all administration and arbitrator fees paid by Gibbs. The party that ultimately loses will pay the reasonable documented attorneys’ fees and costs of both parties.
The arbitration shall be held in Boston, Massachusetts. If the value of the relief sought is US$25,000 or less, the arbitration will be conducted based solely on written submissions; provided, however, either of us may request to have the arbitration conducted by telephone or in-person hearing, which request shall be subject to the arbitrator’s discretion. Attendance at any in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. Keeping in mind that arbitration must remain a fast and economical process, no discovery or exchange of information between us is contemplated. Upon request by either of us, the arbitrator may direct specific information be exchanged and may issue a protective order limiting the use and disclosure of exchanged information; provided however, the scope of information the arbitrator may direct to be exchanged shall be limited to what the arbitrator determines is needed to provide for a fundamentally fair process. Either party may file a dispositive motion to narrow the issues.
YOU AND GIBBS EACH WAIVE ALL RIGHTS TO CONDUCT DISPUTE RESOLUTION PROCEEDINGS IN A CLASS ACTION OR CONSOLIDATED ACTION. YOU AND GIBBS EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS, WITH THE SOLE EXCEPTION OF REPRESENTATIVE SUITS THAT ARE PERMITTED BY, AND DEEMED UNWAIVABLE UNDER, STATE LAW. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
If any clause within this Section 8.10 (other than the class action waiver clause above) is determined to be illegal or unenforceable, that clause will be severed from this Section 8.10, and the remainder of this Section will be given full effect. If the arbitrator determines this Section 8.10 is unenforceable, invalid, or has been revoked as to any claim(s), then the Dispute as to such claim(s) will be decided by the courts in the Commonwealth of Massachusetts, Suffolk County, Business Section, or the United States District Court for the District of Massachusetts, and the parties irrevocably submit to the exclusive jurisdiction of such courts. If the class action waiver clause is determined to be illegal or unenforceable, this entire Section 8.10 will be unenforceable, and the Dispute will be decided by the courts of the Commonwealth of Massachusetts, Suffolk County, Business Section, or the United States District Court for the District of Massachusetts, and the parties irrevocably submit to the exclusive jurisdiction of such courts.
The Federal Arbitration Act, applicable federal law, and the laws of the Commonwealth of Massachusetts, without regard to principles of conflict of laws, will govern this Agreement and any Dispute that might arise between Gibbs and you.
12.11 Entire Agreement