Terms & Conditions
Welcome to Gemtera.com. The Gemtera-owned websites and webpages (located within the top-level domain http://www.Gemtera.com, among other addresses, and referred to hereinafter as the “Site”), are exclusively owned by Gemtera LLC (d/b/a Gemtera) (referred to hereinafter as the “Company,” "we," "us," or "Gemtera"). Your use of the Site, and all Information, Materials, Products or Services (also referred to as "Materials," hereinafter) accessible through the Site, or purchased from the Site or otherwise from Gemtera is subject to several very important terms and conditions (referred to herein as the “Terms and Conditions”). BY ACCESSING THE SITE, OR ANY INFORMATION, MATERIALS, PRODUCTS OR SERVICES MADE AVAILABLE THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO ANY INFORMATION AND PRODUCTS CUSTOM OR OTHERWISE ORDERED FROM GEMTERA, YOU AGREE TO BE LEGALLY BOUND BY EACH PROVISION SET FORTH IN THIS DOCUMENT - THESE "TERMS AND CONDITIONS". IT IS YOUR DUTY TO READ THE TERMS AND CONDITIONS CAREFULLY, WHICH MAY DIFFER IN IMPORTANT RESPECTS FROM THOSE OF OTHER WEBSITE AND MANUFACTURER AGREEMENTS THAT YOU MAY ALREADY BE FAMILIAR WITH; ANY AND ALL USE OF THE SITE AND ANY AND ALL INFORMATION, MATERIALS, PRODUCTS AND SERVICES ACCESSIBLE THROUGH IT ARE ONLY PERMITTED IF YOU AGREE TO EACH AND EVERY ONE OF THESE TERMS AND CONDITIONS. If there is any Term or Condition set forth herein that you do not understand or do not or may not agree with, any use by you of the Site or any Information, Materials, Products or Services gained or made available through it or as a result of contact with Gemtera, is not authorized and must cease immediately. Please contact us info@Gemtera.com if you have any questions or concerns regarding any of these Terms and Conditions, before any use of the Site or the information, Materials, Products or Services made available through it or as a result of contact with Gemtera.
If you are accessing the Site or any related Information, Materials, Products or Services on behalf of or as an agent for or as some other person or entity with some relationship to another person, organization, or party (or more than one of such person, organization, or other party) you represent and warrant that you have been provided with all necessary authority to enter into and agree with the Terms and Conditions on such person's (or persons'), organization's (or organizations'), or party's (or parties'), as well as your own, behalf, and that you do so enter these Terms and Conditions on your own and such other person's(s') or entity's(ies') behalf. You agree to indemnify us and hold us harmless from any claim from any such other person or entity or other third party's claim whatsoever with any relation to the Site or any related Information, Materials, Products or Services, including but not limited to any claim that you did not have such authority and you further agree that you are separately, severally and individually responsible for payment for any orders and for any other conduct that you have carried out on the Site. The Site and Information, Materials, Products or Services available in connection with the Site or Gemtera are not intended for use by minors or by anyone else for whom use might violate the laws, regulations or community standards of jurisdictions governing such person`s conduct. Use of the Site and Information, Materials, Products or Services available in connection with the Site or Gemtera in any way is not permitted by users outside of the United States, or by persons under the age of 18, or by persons without the capacity or competency to enter these Terms and Conditions.
These Terms and Conditions may change from time-to-time. You are responsible for, and agree to, any such changes by any continued use or enjoyment of the Site or Gemtera-provided Information, Materials, Products or Services and any benefit therefrom, after those times. It is your responsibility to check this Site and these Terms and Conditions for changes prior to such continued use and benefit.
1. NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE LICENSE
1(a). Scope of Grant.
If you have paid the required fees or prices, and all applicable sales and other taxes (which are subject to periodic change without advance notice) to access, use and receive any Information, Materials, Products or Services available from Gemtera or through the Site (also referred to as “Materials,” hereinafter), or related to Gemtera or the Site, whether or not it is prepared or custom-ordered work that you may have solicited, and thereafter you received authorized Materials directly from Gemtera, and if you are in compliance with all of the Terms and Conditions and if you have not been barred from and have not otherwise been de-authorized or had any license revoked with respect to the Site or Materials, you are granted a non-exclusive, non-transferable, revocable, limited license to use the Materials that have been distributed to you for the correct price or fee in effect, and all applicable taxes and other fees. If the materials are electronic or another form of written work, this license is limited to one copy and one computer system per fee or price paid, and further distribution of an insubstantial part of the reports or screenshots and descriptions of the authorized Materials for client service or promotional purposes, provided that proper attribution is made in substantially the form of “created by Gemtera." You agree to proper citation and attribution to Gemtera whenever any of the authorized Materials or anything relating to or encompassing Gemtera Materials is published or republished, no matter how great the republication. Proper citation in written form is any substantial equivalent of the following:
© 2018, Gemtera.com
Proper citation orally is permitted if the publication is by sound only, and may be by any fair, widely accepted journalistic technique for oral citation in the United States.
The Site and all Gemtera-related Materials are owned and controlled by Gemtera, and are protected by trade dress, trade secret, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws, among other applicable laws and protections. You may not copy, download, store, publish, republish, transmit, distribute, transfer, sell, post, sublicense, publicly display, translate, encode or otherwise use or share the Site (including “mirroring”), or any portion or related Materials, in any form or by any means, except (A) as expressly permitted elsewhere by the Terms and Conditions, or (B) with Gemtera's prior written permission. You may not modify or create any derivative works from the Materials of, or accessible through, Gemtera or the Site in any way. You may not reverse engineer, decompile, disassemble or otherwise attempt to discern the source data, code or architecture of the components of the Site, any Materials related to Gemtera, or any information about usage or users. You may not make any illegitimate or illegal use of Gemtera or the Site or attempt to discern any information concerning its other users, including, but not limited to, use of any “robot,” “spider,” “deep link,” "bot," probe, password mining or process, other automatic device, process, or manual activity to access, acquire, hack (including any attempt to test the vulnerability of or circumvent the structure and presentation of the site), scrape, monitor or copy Gemtera-provided Materials or any part of the Site without Gemtera's prior express, specific written permission to you in particular, permitting exactly the activity in question. Among other legal remedies, Gemtera reserves the right to bar access to the Site and any Gemtera-provided Materials and report the activity to law enforcement personnel, seeking prosecution of you, in the event of any such activity.
Use and downloading of data and articles concerning product support, including, but not limited to, user support manuals, tutorials, forum comments and data sheets, if authorized and available, may be permitted for users who have paid the required licensing and other applicable fee for the product to which such Materials relate. In any event, if downloaded, such Materials must not be “cribbed,” partially copied, modified, decontextualized or distributed in any way, including but not limited to any attempt to obscure or remove limitations, terms, provisions, attribution and other information within such Materials. You may not add any additional information or make any representations or warranties regarding the Site or any Materials.
You may not make any other unreasonable use of the Site, including any use that places a disproportionate load on, or otherwise may interfere with the proper working of, the resources of the Site.
1(c). Intellectual Property Rights.
Unless otherwise explicitly noted, all elements and Materials of Gemtera and/or the Site, including, but not limited to, reports, information, text, articles, logos, trademarks, images, sounds, videos, graphics, any other materials and the overall “look and feel” related to Gemtera or the Site and Materials are the property of Gemtera and protected by copyright, trademark and other intellectual property, contract and unfair competition laws. Nothing herein shall be construed to confer any license or right, by implication, estoppel or otherwise, under copyright, trademark, contract, unfair competition or other laws either now or in the future, other than as noted elsewhere in these Terms and Conditions with respect to the limited, non-exclusive, non-transferable right to use licensed, authorized Materials, if applicable. You acknowledge that Gemtera and the Site are protected by copyrights, trademarks, service marks, and other proprietary rights and laws.
1(c). IMPORTANT WARNINGS AND GUIDELINES RE: THE USE OF GEMTERA PRODUCTS.
- Candles: Gem CandlesTM, and any other candles available through Gemtera are Materials, as set forth above, and subject to each of the limitations and other provisions set forth in these Terms and Conditions for the use of candles. In addition, the following guidelines and warnings must be strictly adhered to, or any license to use any Gemtera candles purchased or otherwise available to you ceases immediately. In the event that you do not agree with or understand any of these important warnings or limitations, your use of any of Gemtera candles must cease immediately, and you must contact us at firstname.lastname@example.org with any questions or concerns regarding the candles immediately. If it has been more than 30 days since the purchase of the Gemtera Candles, or, earlier than that, you have had a reasonable opportunity to inspect Gemtera Candles for claims or concerns, you hereby waive any known or unknown claims or concerns related to Gemtera Candles.
WARNINGS AND GUIDELINES REGARDING GEMTERA CANDLES
As with any candles, you must never leave Gemtera Candles unattended when lit, smoking, hot or warm-to-the-touch, or recently extinguished (within 3 hours since extinguished). Keep Gemtera candles within your field of vision, so that you can react quickly if anything happens. Also as with any candles, never place Gemtera Candles near or on anything flammable or otherwise vulnerable to heat and flames (e.g., do not place them on or under drapes, wood tables or paper items).
Gemtera Candles include a mineral oil-based "gel wax" fuel, which makes them BURN HOTTER THAN ORDINARY CANDLES, and may make them adhere to skin and other items, presenting. The candle itself, its gel wax, AND THE CONTAINERS THEMSELVES SHOULD NOT BE TOUCHED WHILE BURNING OR WITHIN 2 HOURS AFTER THEY ARE EXTINGUISHED. You agree not to touch the gel wax or any other part of any gemtera candle, and especially not while it is burning or within 3 hours after it has been extinguished. Because Gemtera candles burn hot, special care must be taken in selecting a surface on which to place them. Never place them on or near (minimum, 4 feet away) any surface or item that is vulnerable to heat or flame (such as, but not limited to, clothing, fabric, petroleum products and plastics, paper, painted, finishes, chemicals and wood.) Gemtera candles must never be taken out of the container provided, or placed in any other container than the heat-resistant, glass containers provided. Any "refill" candle provided by Gemtera must be inserted into the heat-resistant, glass container that they are sold for refilling, and must never be burned on their own. Candle refills, such as the tealight refills, must be placed in the glass holder of the same size purchased from Gemtera.
To reduce the risk of fire and burns, and to extend the burn time of Gemtera Candles, never burn Gemtera Candles for more than 2 hours at a time (allowing at least 12 hours between burning sessions). Never allow Gemtera Candles to burn all the way through, to the bottom: Leave at least 1/4 inch of wax from the bottom. Never allow children under the age of 18 to use or handle Gemtera candles, due to the risk that a child may play with, injure the candle, or harm him or herself. If accidental ingestion or consumption or contact with any part of any Gemtera Candle, call 911 immediately, and ask for assistance regarding poison control.
If you notice any discoloration, a flame greater than 1/4 inch or emanating anywhere but from the wick, a cracking sound or any other changed conditions during burning, extinguish your Gemtera Candle immediately (preferably, with a fire extinguisher suitable for oil-based fires and/or sand, if any leaking or expanded flame is occurring) and contact Gemtera at email@example.com to report the incident immediately. You understand that both your safety and the safety of others may be at risk otherwise, and you agree to the obligation to make such reports to Gemtera. You agree to keep a fire extinguisher suitable for oil-based fires on hand and accessible at any location where you intend to burn Gemtera Candles.
You agree to hold Gemtera harmless, and indemnify Gemtera for any failure to heed any of the above warning and guidelines. If you raise a claim, complaint or any other issue that could have been prevented by heeding the above warnings and guidelines, you agree to pay any attorneys fees and other costs required to address and defend Gemtera against any such claim, complaint or issue. You agree that, at a minimum, those fees and complaints total more than $5,000 for any complaint raised with a third party, and $100,000 for any law suit brought in any court of competent jurisdiction anywhere in the world.
WARNINGS AND GUIDELINES REGARDING GEMTERA ESSENTIAL OILS, BATH, AND BODY PRODUCTS
You understand that any product may contain unforeseen allergens, and that a very limited test contact, waiting at least 24 hours afterwards, should first be made to assess any potential allergies. Take a small pinch of the product and rub it on an inconspicuous patch of skin (never on the face or near the eyes). If any redness, itching, dryness or burning results, discontinue any further use of the product immediately.
Do not use Gemtera bath and body products on any open wounds, sores or other sensitive areas. If you have an existing skin or other health condition, consult with your licensed physician regarding whether you should use Gemtera products prior to purchasing them.
Never allow children under the age of 18 to use or handle Gemtera Essential Oils or Bath and Body Products, due to the risk that a child may play with, injure the product, or harm him or herself. If accidental ingestion or contact with the skin occurs of any part of any Gemtera Product, call 911 immediately, and ask for assistance regarding poison control.
Some sections of the Site may require registration to access and use information, Materials and/or services. If you choose to so register, you agree to provide Gemtera and the Site with completely accurate registration information, and full registration information that is requested as well as all registration information that may be necessary for your use of the Site or Gemtera Materials. You will immediately update the registration information that you or our representative provided whenever events affect your registration information. You warrant that registration is for a single person only and that you will not permit anyone other than yourself to access and use sections of the Site requiring registration using your name and password. You will not access or use the Site under the username of another entity or individual. You are responsible for the security of your registration information; you will be held responsible for all access to and use of the Site through your registered username and password, including access of any Materials, information or services the use of which results in monetary charges to you, whether or not you have knowledge of or authorize such access and use. You will notify Gemtera immediately of any unauthorized use of your username and password, if you suspect that the privacy of your username or password has been jeopardized, or if you believe that another individual has fraudulently represented themselves as you or as being associated with you, your organization or any other person, organization or entity bearing any relationship to you. However, Gemtera has no responsibility to investigate or otherwise act on any such notification and you remain solely responsible for barring any future unauthorized access by, among other things, immediately changing your password and/or password.
Whether or not you register with the Site, you are not permitted to visit the site by proxy, forge headers or otherwise distort or hide identifiers to withhold any information concerning the origin of any visit, request or transmission made to or from the Site.
In addition to other rights and remedies, Gemtera may terminate your account or otherwise bar your registration or access in the event that you violate the law, community standards, the Terms and Conditions, or for any other reason in Gemtera's sole discretion. You understand that, despite registering, Gemtera has no ongoing obligation to maintain the Site, your account or any other Materials, each of which may be unavailable or cease operation at any time.
3. INTERACTIVE ASPECTS OF THE WEBSITE
3(a). Grant of License.
By publishing, uploading, submitting or distributing any messages, data, information, text, graphics, links, or any other materials whatsoever ("User-Submitted Content") to the Site, including, but not limited to, messages posted on message boards and materials published in directories on the Site, you automatically grant or warrant that the owner of the following rights has expressly granted, to Gemtera, a perpetual, fully-paid, royalty-free, irrevocable, nonexclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, sublicense and sell any and all User-Submitted Content that you have submitted, and incorporate that User-Submitted Content into any medium or technology, now known or later developed.
3(b). Unlawful Use.
You will not publish, upload, submit or distribute any User-Submitted Content on the Site which is unlawful, deceptive, misleading, or abusive in any way, including but not limited to User-Submitted Content that is defamatory, libelous, pornographic, obscene, threatening, indecent, invasive of privacy or publicity rights, hateful, or that would constitute or encourage a criminal offense, violate the rights of any party, contain any corrupted data or malicious code that may impair or alter the appearance or functionality of the Site, Gemtera's property, or any property of any other party, or give rise to liability or violate any local, state, federal or international law or regulation, or the rules of any governmental or regulatory body, such as, but not limited to securities exchanges, such as the New York Stock Exchange or NASDAQ, either intentionally or unintentionally. Gemtera may delete any of your User-Submitted Content, or your account in its entirety, and may bar your access to the Site at any time, without prior notice or your or anyone else's permission and at UR's sole discretion. In addition to avoiding any illegal or inappropriate conduct yourself, you must not solicit any other person or entity to engage in any illegal or inappropriate conduct in relation to the Site or Materials.
3(c). User-Submitted Content: Proper Attribution, Truthfulness.
Posted Materials submitted for publication on the Site might be accompanied by your username, and may not be submitted anonymously. You warrant that such User-Submitted Content will not misrepresent or obscure your identity or affiliation with any person or entity. Furthermore, you warrant that you will not, by any method or action, directly or through a third party, seek to unwarrantedly or unfairly enhance, degrade, or otherwise manipulate the recommendations or endorsements of any user or users, individuals, or groups on the Site including your own or otherwise use the Site or Materials to mislead any other party.
3(d). No User-Submitted Content Monitoring by Gemtera.
Gemtera has no duty to, and will not, regularly edit, monitor or screen User-Submitted Content, and is not otherwise responsible for any part or aspect of User-Submitted Content, including any other content linked to or from User-Submitted Content. Gemtera may, and retains the right to, examine any submitted content affecting the Site for adherence to the Terms & Conditions and remove any materials that it may deem to be objectionable, violate the Terms & Conditions, or law, but expressly disclaims any and all warranties or representations that it will do so in any regular manner, or in any specific instance. By using the Site, you acknowledge and agree that Gemtera is under no obligation to monitor, edit, or remove any User-Submitted Content upon your, or any other user's, request.
3(e). Commercial User-Submitted Content Is Not Permitted.
Aspects of the Site that may allow users to contact or interact with other users, Gemtera or its customers, if provided now or in the future, are provided solely for personal, non-commercial use. You will not include any advertising, promotion, solicitation for goods, services, funds or activities, or solicitation for anyone to become members of a group, movement, belief system, or commercial enterprise or organization in User-Submitted Content submitted through the Site without the prior express written permission of Gemtera.
3(f). No Client/Services or Partnership Relationship or Confidentiality.
Gemtera does not offer or provide business consulting, legal or other advisory services. Gemtera does not accept unsolicited ideas, partnership offers, or otherwise seek services through the Site, except as expressly stated in any “Employment” or “Partnership” sections of the Site. Any submission on these subjects may not be treated confidentially, and will immediately become the property of Gemtera with no monetary or other special compensation to you, regardless of the language or content of your contact or attempted contact with Gemtera. No information, materials or communications accessible through the Site or Gemtera shall be interpreted as providing legal or professional advice, services or service offers, nor creating any Attorney/Client or other Client relationship. You acknowledge that no Attorney/Client relationship is, or will be, formed through any use of the Site or Gemtera-related Materials, including any and all products, services, information or materials that may be, or have been, accessible through the Site or Gemtera. You have no expectation, reasonable or otherwise, of privacy or confidentiality of communications occurring through your use of the Site or contact with Gemtera, including any contact with any person acting or purporting to act or communicate on behalf of the Site or Gemtera.
You understand and agree that any transmission or communication over the internet may not be confidential or completely private and secure, and may be intercepted and understood by third parties, whether or not encoded or encrypted. You are solely responsible for any risk associated with any transmission over the internet in connection with your use of the Site. Gemtera may share any information concerning or originating from you to aid in any process regarding, among others, compliance with the Terms and Conditions, government investigations and claims from third parties involving your conduct, or regarding the safety and welfare of the community, the United States of America, or people and the Earth in general.
4. USER ETHICS, AUTHORITY
If you are planning to use Gemtera to support activity on behalf of another person or entity, you warrant that you have been provided with all necessary authority to so act on their behalf and that you do so act on their behalf but also, individually and severally, on your own behalf and that you are individually and severally responsible for your conduct or any fees or costs associated with your ordering of any data or materials, or other conduct in connection with Gemtera. You represent and warrant that you will not use any Gemtera Materials in any illegal, unethical or untruthful manner, or in any way that may defame, libel or cause disruption, confusion or mental anguish to any third party(ies). You represent and warrant that none of your activities will in any way violate any laws, regulations or professional rules of conduct of any jurisdiction under which you operate. You understand and hereby acknowledge that the Materials include historical, factual data only, and do not make or imply any statement or guarantee concerning any future event. Historical facts do not, and cannot Guarantee or Suggest any future outcome. Gemtera disclaims any and all responsibility for your activities using the Site or any Materials from the Site or Gemtera. Gemtera reserves the right to revoke any license granted to any Materials if, in its sole discretion, it determines that your use of such Materials is or would be inappropriate or undesirable. In such instances, Gemtera may, in its discretion, but is not required to, refund the purchase price of the Materials actually paid by the former licensee subject to the revocation. In no event, under this provision or otherwise under the Terms and Conditions, will Gemtera be responsible for any claims, damages, or complaints whatsoever arising from such revocation that exceed any purchase price actually paid by the licensee.
5. NO RESPONSIBILITY FOR SYSTEMS OR DATABASES
As explained further in other sections of these Terms and Conditions, the Site, and any Materials or services provided by or through the Site or by Gemtera, are provided on an “AS IS” basis, with no warranties or guarantees whatsoever. Use of the Site and Materials from Gemtera may impact or affect your databases, computers, computer systems or other hardware. Gemtera is not responsible in any way for such affects, or any such alleged damage and is not responsible for installing, uninstalling, immunizing, integrating, optimizing or otherwise protecting or manipulating your databases, software, computers, computer systems or other hardware. You acknowledge that under no circumstances is Gemtera, its agents, affiliates, customers, or users providing database, computer, computer system, software or hardware consulting services or products, product guarantees or warranties.
6. NO ENDORSEMENT OF OTHER SERVICE PROVIDERS OR ENTITIES
Gemtera does not select, approve, or otherwise endorse any particular provider of services related to the Site or other Gemtera-provided Materials or databases in general. Any and all such recommendations, whether they appear in advertisements or in User-Submitted Content, are from third parties and are inherently subjective in nature, could be inaccurate or incomplete, and may be difficult or impossible to verify. Gemtera expressly disclaims any representation or warranty that such posted Materials are correct or reliable, and further disclaims any representation or warranty of merchantability or fitness for any particular purpose of such alleged information concerning any service provider. UNDER NO CIRCUMSTANCE SHALL GEMTERA HAVE ANY LIABILITY TO YOU FOR ANY RELIANCE ON INFORMATION CONTAINED ON OR OBTAINED THROUGH GEMTERA. SUCH RELIANCE SHALL BE SOLELY AT YOUR OWN RISK.
7. THIRD-PARTY CONTENT
Content, information or other materials originating from third parties may appear on the Site or may be accessible through links from the Site. Gemtera is not responsible, and assumes no liability, for any mistakes, misstatements, defamation, slander, libel, omissions, falsehood or obscenity in the statements, opinions, representations or any other form of content contained in any third party content appearing on or accessible from the Site. You acknowledge that the information and opinions in the content are neither endorsed or controlled by, nor reflect the beliefs of, Gemtera.
You acknowledge that the Site may contain advertising and sponsorships. Advertisers and sponsors are solely responsible for ensuring that material submitted for use on the Site is accurate and complies with any and all applicable laws. You agree that Gemtera will not be responsible for the illegality of, or any error or inaccuracy, in advertisers' or sponsors' materials or for the acts or omissions of advertisers or sponsors.
9. DIGITAL MILLENIUM COPYRIGHT ACT
Gemtera will register an agent with the United States Copyright Office as outlined in Title II of the Digital Millennium Copyright Act (17 U.S.C. § 512) prior to any publication of User-Submitted or other third-party Content. Upon notice of alleged copyright infringement, Gemtera will remove or block access to the material, provide notice to the user who posted the material and proceed as dictated by Title II of the Digital Millennium Copyright Act (17 U.S.C. § 512). Gemtera may block access to the Site or areas of the Site to repeat infringers.
10. OTHER INFORMATION SYSTEMS AND PROVIDERS
All usage of other information systems and providers as a result of linkage from the Site is governed by the terms of those particular providers. Gemtera does not endorse, and can not be held responsible for, any use or content of such linked providers. You responsible for any and all of your conduct with and any and all fees generated when visiting sites and materials linked from the Site.
11. DISCLAIMER OF WARRANTIES AND GUARANTEES
GEMTERA AND ALL INFORMATION, REPORTS, PRODUCTS OR OTHER MATERIALS OR SERVICES PROVIDED THROUGH THE SITE OR OTHERWISE BY GEMTERA ARE PROVIDED "AS IS," WITH NO GUARANTEE OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, GEMTERA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS AND DELAYS, SUPPORT OR OPERABILITY ON ANY PARTICULAR SYSTEM OR WITH ANY PARTICULAR DATABASE OR WITH RESPECT TO ANY PARTICULAR USER PROJECT OR APPLICATION. GEMTERA MAKES NO WARRANTY THAT ACCESS TO THE SITE, ANY GEMTERA-PROVIDED MATERIALS, OR ANY PORTION THEREOF, WILL BE UNINTERRUPTED, SECURE, COMPLETE, ERROR-FREE, VIRUS OR MALWARE-FREE OR THAT DEFECTS WILL BE CORRECTED. GEMTERA DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF, OR IN ANY WAY RELATED TO (A) ANY MATERIALS, SUCH AS SOFTWARE, IMAGES, REPORTS AND DATA AVAILABLE THROUGH GEMTERA, (B) THE ACCESS OR USE OF THE SITE, INCLUDING ANY INTERACTIVE FEATURES, USER-SUBMITTED CONTENT AND OTHER THIRD PARTY CONTENT AND SERVICES DELIVERED THROUGH THE SITE OR OTHERWISE, (C) THE ACCESS OR USE OF THIRD PARTY WEB SITES AND CONTENT OR SERVICES THEREIN THROUGH LINKS IN THE SITE, (D) THE UNAVAILABILITY OF THE SITE, GEMTERA-PROVIDED MATERIALS OR ANY PORTION THEREOF FOR ANY PERIOD OF TIME, OR (E) USER'S USE OF EQUIPMENT, HARDWARE, SYSTEMS OR SOFTWARE IN CONNECTION WITH ACCESS AND USE OF THE SITE OR MATERIALS AVAILABLE THROUGH GEMTERA. MATERIALS THAT MAY BE AVAILABLE THROUGH GEMTERA ARE OF A HISTORICAL, FACTUAL AND NON-RECOMENDATIONAL AND NON-ADVOSORY NATURE. PAST HISTORICAL OUTCOMES DO NOT STATE OR IMPLY, AND CANNOT GUARANTEE ANY FUTURE RESULTS OR OUTCOME. THE HISTORICAL, FACTUAL DATA AVAILABLE THROUGH GEMTERA IS NOT A LEGAL ADVICE. IF YOU NEED A LEGAL ADVISOR CONTACT A LICENSED ATTORNEY IN THE FIELD ADMITTED IN THE JURISDICTION IN WHICH YOUR MATTER, IF ANY, ARRISES.
12. LIMITATION OF LIABILITY
USER'S EXCLUSIVE REMEDY AND GEMTERA'S, ITS AFFILIATES', IF ANY, AND/OR CONTRIBUTORS' ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIM FOR DAMAGES RELATING TO USE OF THE SITE OR GEMTERA MATERIALS WHICH ARE MADE AGAINST THEM, INDIVIDUALLY OR JOINTLY, WHETHER BASED IN CONTRACT, NEGLIGENCE OR OTHER TORT OR CAUSE OF ACTION, SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF DIRECT CHARGES PAID BY YOU TO GEMTERA RELATIVE TO THE SPECIFIC SITE FEATURE OR REPORT OR OTHER MATERIAL WHICH IS THE BASIS OF THE CLAIM, FURTHER LIMITED TO ANY CHARGES OVER THE LENGTH OF TIME THAT YOU HAVE USED THE PARTICULAR INSTANCE OF THE FEATURE TO WHICH ANY CLAIM ALLEGEDLY APPLIES OR, IF SHORTER, THE 6-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL GEMTERA, ITS AFFILIATES OR CONTRIBUTORS BE LIABLE TO YOU FOR ANY CLAIM RELATING IN ANY WAY TO (A) (I) USER'S INABILITY OR FAILURE TO USE, WITH OR WITHOUT INCIDENT, THE SITE, REPORT(S), SOFTWARE, COMPUTER SYSTEMS, DATABASES OR PRODUCTS OR OTHER MATERIALS OR SERVICES (WHETHER OR NOT INTERRUPTED DUE TO A VIOLATION OF THE TERMS AND CONDITIONS) THAT MAY BE OR MAY HAVE BEEN ACCESSIBLE THROUGH THE SITE OR GEMTERA, EVEN IF ASSISTED BY GEMTERA, ITS AGENTS, EMPLOYEES, AFFILIATES OR CONTRIBUTORS, OR (II) ANY DECISION MADE OR ACTION TAKEN BY USER IN RELIANCE UPON GEMTERA-PROVIDED INFORMATION, SOFTWARE, REPORTS, PRODUCTS OR OTHER MATERIALS OR SERVICES THAT MAY BE OR MAY HAVE BEEN ACCESSIBLE THROUGH THE SITE OR GEMTERA; OR (B) ANY LOST PROFITS OR OTHER CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES RELATING IN WHOLE OR IN PART TO YOUR OR USER'S RIGHTS UNDER THIS AGREEMENT OR TO YOUR USE OF, OR INABILITY TO USE, THE SITE OR GEMTERA-PROVIDED MATERIALS, EVEN IF GEMTERA, ITS AFFILIATES AND/OR CONTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GEMTERA SHALL HAVE NO LIABILITY WHATSOEVER TO USER FOR ANY CLAIM RELATING IN ANY WAY TO ANY USER-SUBMITTED CONTENT OR OTHER THIRD PARTY CONTENT OR FEATURE.
You agree to defend, indemnify, and hold Gemtera and its affiliates, contractors, suppliers, directors, employees and agents harmless from any and all claims, costs, charges, damages, judgments, and liabilities (including but not limited to reasonable attorney's fees) made by any third party and arising from your use of the Site, any Materials that may have been available through the Site or Gemtera, any content you post, submit, transmit or otherwise make available through the Site, your violation of these Terms and Conditions, or the violation of the intellectual property rights of any third party, or the violation of any other law or regulation by such use.
12(b). Time Limitation of Claims.
Except for claims relating to any improper use of the Site, Gemtera Materials, Gemtera's property, and all information, Materials and services accessible through Gemtera or the Site by you, and other activities giving rise to Gemtera's legal remedies for your misconduct, no claim, regardless of form, which in any way relates these Terms and Conditions, may be made, if such claim is brought, more than one year after the basis for the claim becomes known to the party desiring to assert it.
12(c). User disputes.
You and the other Site and Gemtera Materials users that you interact with are solely responsible for your interactions with one another. Gemtera has the right, but expressly disclaims any obligation, to become involved in any dispute between you and any other user(s) of the Site or Gemtera Materials. In the event that Gemtera does elect to become involved in any such dispute, Gemtera makes no promise, guarantee, or warranty of any kind and has no obligation as to the nature or quality of its involvement or the outcome of any such dispute, and you agree to hold Gemtera, and its affiliates, employees, agents or contractors, harmless and to indemnify them against any claim arising or allegedly arising out of Gemtera's involvement or alleged involvement in any such dispute.
13. MODIFICATIONS TO TERMS AND CONDITIONS
Gemtera reserves the right to modify these Terms and Conditions at any time and in its sole discretion. Updated versions of the Terms and Conditions will appear on the Site and become the effective Terms and Conditions between you and Gemtera immediately upon publication. You are responsible for regularly reviewing the Terms and Conditions to ascertain any such changes at this web location. To assist you in determining whether such changes have taken place, a “Latest Update” provision is included at the end of the Terms and Conditions, and Gemtera may e-mail you, if you are a registered user of the Site, to alert you to such changes. Continued use of the Site or any Materials made available by Gemtera by you after any such modification of this Terms and Conditions constitutes your agreement and assent to such modifications.
14. ENTIRE AGREEMENT
These Terms and Conditions embody the entire understanding between you and Gemtera with respect to the subject matter herein, and supersedes any and all prior understandings and agreements, oral or written, relating to that subject matter. You may be required to agree to Supplemental Product Terms and Conditions or Supplemental Service Terms and Conditions, in the event that you purchase Materials or Services from Gemtera. If so, you also agree to any such Supplemental Product Agreement or Supplemental Service Agreement as well, but are still bound by these Terms and Conditions.
15. FORCE MAJEURE
Gemtera's performance under these Terms and Conditions of use are subject to interruption and delay due to causes beyond its reasonable control, such as Acts of God, acts of any government, war or other hostility, civil disorder, weather and the elements, fire, explosion, power failure, equipment failure, industrial or labor dispute, inability to obtain necessary supplies and the like. In such instances, Gemtera is relieved of any obligations relating to such performance as long as those conditions persist. However, your obligations under the Terms & Conditions, as well as any purchase or subscriber agreement, may not be relieved by such conditions if Gemtera's performance is not substantially impacted. For example, delivery of purchased reports from Gemtera within two week(s) is considered to be performance that is not substantially impacted.
16. GOVERNING LAW, JURISDICTION & VENUE
These Terms & Conditions will be governed by and construed under the law of the state of New York, without regard to conflicts of law provisions. Both you and Gemtera agree that the state and federal courts sitting in New York City will have exclusive jurisdiction over any claim arising out of these Terms and Conditions and each party consents to the exclusive jurisdiction and venue of such courts.
17. ATTORNEY'S FEES, COSTS, FINES AND LEGAL PROCESS
In the event that you or someone solicited by you violates any of the Terms and Conditions, and Gemtera does take or defend legal action against you, Gemtera will be entitled to recover, and you agree to pay, any and all reasonable attorney's fees, costs, fines, sanctions arising from such action, in addition to any other damages or recovery to which Gemtera may have the right to receive. If you have purchased any data, reports or other information or services from Gemtera, payment is due in advance in the amounts stated on the Site for such products and services, or other quoted applicable prices and rates. In rare instances, such as emergencies, Gemtera may, in its sole discretion, provide such data, reports and services prior to payment, and bill you for payment of the amounts due. In such instances, full, cleared payment is due within 30 days, and, thereafter, will be subject to a late fee of 1.5% for each 30 days that a balance due remains unpaid, compounded every 30 days. If payment is not made within 120 days, you agree that a legally binding presumption, applicable in a competent court with jurisdiction, will arise that you have no intent to pay the noticed amount due, that your use of any associated materials, data, and/or other products and services provided by Gemtera is or was in violation of intellectual property and other laws, and that you are subject to collection of any statutory rates or penalties for unpermitted, willful, bad faith infringement of copyright and any other applicable violation of intellectual property rights. You further agree that a good faith estimate of Gemtera' damages for such infringement, which you will then be legally responsible for, is $100,000 per subject work, or that you will be legally responsible for the statutory limit for copyright infringement per subject work, whichever is HIGHER.
18. NO RESALE, DELEGATION OR ASSIGNMENT
Neither these Terms and Conditions nor any part or portion thereof, or any obligations to you may be assigned, sublicensed or otherwise transferred by you or any purchaser or subscriber without Gemtera's prior express written consent. Similarly, you may not delegate or otherwise transfer your obligations under any subscriber or purchase agreement, or hereunder, without Gemtera's prior express written consent. Gemtera may, in its sole discretion, assign its right to receive fees or other performance of other duties from you, for example, to a payment management or collection company.
19. SEVERABILITY AND NON-WAIVER
Should any provision of these Terms and Conditions be held to be void, invalid, unenforceable or illegal by a court or tribunal of competent jurisdiction, they shall be so held to the minimum degree necessary to maintain the validity and enforceability of all other provisions of the Terms and Conditions, to best maintain the intent of the parties. Failure of any party to enforce any provision of these Terms and Conditions will not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
20. INTERPRETATION, HEADINGS, PRONOUNS, PLURAL AND SINGULAR
The headings and captions contained in these Terms and Conditions are inserted for convenience only and do not constitute a part of the Terms and Conditions. Ambiguities in language shall be resolved in favor of Gemtera, the drafter, rather than against it, as might otherwise be the convention in certain jurisdictions. Various pronouns, gender, capitalization and number usages may be treated as interchangeable when they relate to the same party or otherwise have a common meaning in these Terms and Conditions. For example, you may be referred to as “you,” “You,” “she,” “he,” “her,” “him,” “it,” “they” or “them.”
Latest Update: April 16, 2015
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