Terms of Service
Gemma Labs Terms of Service
Effective Date: July 15, 2020
1. Acceptance of Terms. This Terms of Service (this “Agreement”) is between you and Gemma Labs Inc. (“Gemma,” “we” or “us”), and governs your access to and use of the Gemma websites (www.gemmist.com, www.gemmalabs.com, www.mygemma.com) (the “Sites”), any Gemma mobile applications that provide a link to this Agreement, and all related services (the Sites, applications, and services are referred to collectively as the “Services”). The Services are not intended for use by persons under 13 years of age. Persons under 13 years of age may not use the Services. By accessing or using the Services, you affirm that you are: (a) (i) at least 18 years of age, (ii) an emancipated minor at least 13 years of age, or (iii) at least 13 years of age and possess legal parental or guardian consent; and (b) are able and competent to enter into a binding legal agreement. If you do not agree to the terms of this Agreement, you may not access or use the Services.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 13, BELOW, OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT ANY DISPUTES BETWEEN YOU AND GEMMA WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. PLEASE READ SECTION 13 FOR ADDITIONAL INFORMATION REGARDING RESOLUTION OF DISPUTES.
3. Changes to this Agreement. We may make changes to this Agreement at any time. If we make changes to any material terms of this Agreement, we will notify you via email if you have created an account (sent to the e-mail address specified in your account) or by posting the revised Agreement on the Sites or through the Services prior to any changes becoming effective. You should review this Agreement each time you access or use the Services. Your continued access or use of the Services following notice to you of the changes or the posting of any changes to the Sites constitutes your agreement to such changes.
4. Your Access to and Use of the Services
4.1 License to Access and Use the Services. We grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services solely in accordance with the terms of this Agreement. All rights not expressly granted in this Agreement are reserved by us. You may not distribute any part of the Services or any content appearing on or through the Services other than your User Content (described below) unless we have authorized such distribution and provided the means for such distribution through functionality offered by the Services.
4.2 Restrictions on Your Access to and Use of the Services. In connection with your access to or use of the Services, you are prohibited from:
- violating or circumventing any applicable local, state or federal laws, rules, or regulations or any technical measures, security measures or policies of the Services;
- violating, infringing, or breaching the rights of Gemma, Gemma users or third-parties, including, but not limited to any copyrights, trademark rights, patent rights, trade secrets rights, rights of publicity or personality, moral rights, or any other proprietary rights of such persons or entities;
- accessing data not intended for you or logging onto a server or an account which you are not authorized to access;
- using any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to access, navigate, or search the Sites or Services, other than generally available third-party web browsers (e.g., Mozilla Firefox, Google Chrome and Microsoft Explorer);
- using any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any activity being conducted on or through the Services;
- attempting to probe, scan or test the vulnerability of a Gemma system or network or to breach security or authentication measures without proper authorization;
- attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Sites or through the Service, overloading, “flooding,” “spamming,” “mailbombing” or “crashing”;
- sending unsolicited email, including promotions and/or advertising of products or services;
- forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting;
- copying, modifying, adapting, reproducing, reverse engineering, decompiling, disassembling, or preparing derivative works of our software or content, or any content that is not your own;
- distributing viruses, malicious code, malware or any other technologies that may harm the Services or any user of the Services;
- submitting to or through the Services any false, inaccurate, misleading, deceptive, defamatory, or libelous materials or content; and
- collecting or harvesting any personally identifiable information, including account names, from the Service, or soliciting, for commercial purposes, any users of the Service with respect to their User Content.
Violations of system or network security may result in civil or criminal liability. Gemma will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
4.3 Ownership and Intellectual Property Rights. All content and materials, including text, images, audio, videos, illustrations, designs, icons, photographs, software, programs and written and other materials that are part of the Sites or accessible through the Services (collectively, “Gemma Content”), excluding User Content (defined below) is owned by Gemma or its licensors. No right, title or interest in any Gemma Content is transferred to you by way of this Agreement or otherwise. You may not reproduce, publish, transmit, distribute, display, modify, or create derivative works from any Gemma Content without Gemma’s prior written consent. You may not sell, license or sublicense, or participate in any sale, licensing or sublicensing of, or exploit in any way, in whole or in part, any of the Gemma Content. The Gemma name and all Gemma logos are trademarks of Gemma Labs Inc. Other trademarks appearing on or through the Services are the trademarks of their respective owners. The Services, the Gemma Content, and the Gemma trademarks are protected by copyright, trademark, and/or other intellectual property laws.
5. Accounts and Information.
5.1 Registration. In order to access and use some aspects of the Services, you are required to register and create a Gemma account and establish a username and password. If you create a Gemma account, you agree to submit only accurate, complete information about yourself and to keep the information you submit up-to-date. You are responsible for maintaining the security and confidentiality of your username and password, and you agree not to authorize or allow anyone else to access or use your user account, username, or password. You are solely responsible for all actions taken under or in connection with your account, whether by you or any third party. You agree to notify us promptly in the event you learn of any unauthorized use of your account. By creating an account, or by submitting your email address through the site (including without limitation, by providing your email address in connection with a quiz) you agree to receive electronic communications from us and our affiliates, including, but not limited to, account notices, updates, offers, and newsletters. If at any time you no longer wish to receive updates, offers, and newsletters, you may opt-out by following the “unsubscribe” instructions in the communication. You may not opt-out of receiving account notices via electronic communications.
5.2 Account Termination or Restriction. We reserve the right to immediately terminate or restrict your Gemma account or your use of the Services at any time, with or without notice or liability, if we determine in our sole discretion that you have breached this Agreement, violated any law, rule, or regulation, or for any other business reason.
6. Products; Ordering; Payments; Subscriptions
6.1 Product Descriptions and Pricing. Although we strive to provide accurate descriptions and pricing for all Gemma products, typographical errors, omissions and inaccuracies may occur. We do not warrant that product descriptions or product prices are accurate or error-free. Unless we agree otherwise, in the event that any product you purchase is not correctly described or priced, Gemma’s sole liability and your sole remedy is to return the product for a refund. We reserve the right to change product descriptions or pricing, or discontinue the sale of any product, at any time, in our sole discretion. Products may be made available in only limited quantities.
6.2 Products Not For Resale. Gemma products are intended for personal use by the original purchaser. You agree not to sell or resell Gemma products or otherwise use or distribute Gemma products for any commercial purpose. If we reasonably believe that a product has been ordered for other than personal use, we reserve the right to not process the order or to cancel the order and refund the amount you paid.
6.3 Ordering. We may accept or reject any order in our sole discretion, for reasons that include, but are not limited to, breach of this Agreement, product availability, errors in product pricing or product descriptions, or if we suspect fraudulent or illegal activity. If we do not accept your order, we will notify you at the time you attempt to submit the order or attempt to notify you by email or telephone (if you have provided a telephone number to us) following order submission. If we accept your order, we will send you an order confirmation via email. If we cancel your order, in whole or in part, we will send a cancellation notice via email and we will refund the amount paid for the part of the order that was cancelled.
6.4.1 Payment Information. You agree that any payment information you provide to us through the Services is current, complete, and accurate. You will promptly notify us if your payment information changes (e.g., a new expiration date or change of billing address), if your payment method is no longer valid, or if you become aware that your payment method has been stolen or its security has been compromised.
6.4.2 Payment Authorization. By providing Gemma with your payment information, you authorize Gemma to: (a) process payment for any products you order using the payment information you provided; (b) share your payment information with any third-party payment processing service providers that Gemma may use; and (c) obtain updated payment information from your debit or credit card issuer, Gemma’s third-party payment processing service provider(s), and/or other applicable third-party service providers.
6.5 Recurring Subscriptions. SOME GEMMA PRODUCTS ARE SOLD ON A RECURRING SUBSCRIPTION BASIS, WITH THE DELIVERY OF PRODUCTS OCCURRING AT A SPECIFIED FREQUENCY (E.G., EVERY TWO WEEKS, EVERY FOUR WEEKS, ETC.) (A “SUBSCRIPTION”). BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE GEMMA AND ITS THIRD-PARTY PAYMENT PROCESSING SERVICE PROVIDER(S) TO CHARGE THE TOTAL COST FOR EACH ORDER, INCLUDING, THE PRODUCT PRICE, TAXES, SHIPPING CHARGES, AND OTHER APPLICABLE FEES, TO THE PAYMENT METHOD YOU’VE PROVIDED, AT THE FREQUENCY YOU’VE CHOSEN.
6.6 Automatic Renewal. ALL SUBSCRIPTIONS WILL AUTOMATICALLY RENEW AT THE END OF THE SUBSCRIPTION TERM UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM, OR WE TERMINATE IT. UNLESS YOU CHANGE THE FREQUENCY OF YOUR SUBSCRIPTION, RENEWAL SUBSCRIPTIONS WILL BE FOR THE SAME DURATION AS THE ORIGINAL SUBSCRIPTION TERM (E.G., EVERY TWO WEEKS, EVERY FOUR WEEKS, ETC.), AND WILL BE BILLED AT THE THEN-CURRENT RATE OF THE APPLICABLE SUBSCRIPTION. YOU UNDERSTAND AND AGREE THAT YOU WILL BE AUTOMATICALLY CHARGED FOR ALL ORDER AMOUNTS UNTIL YOUR SUBSCRIPTION IS CANCELLED OR WE TERMINATE IT. YOU MAY CHANGE THE FREQUENCY OF YOUR SUBSCRIPTION THROUGH YOUR ACCOUNT SETTINGS.
6.7 Subscription Cancellation. YOU ARE RESPONSIBLE FOR MANAGING YOUR SUBSCRIPTION. TO MANAGE YOUR SUBSCRIPTION, INCLUDING CANCELLATION OF YOUR SUBSCRIPTION, PLEASE VISIT YOUR ACCOUNT PAGE. IF YOU CANCEL YOUR SUBSCRIPTION, YOUR SUBSCRIPTION WILL REMAIN IN EFFECT UNTIL THE END OF THE THEN-CURRENT SUBSCRIPTION TERM FOR WHICH YOU HAVE PAID (AND YOUR CURRENT ORDER WILL BE PROCESSED). YOUR SUBSCRIPTION WILL THEN EXPIRE AT THE END OF THE THEN-CURRENT SUBSCRIPTION TERM.
6.8 Shipping Charges; Taxes. Unless otherwise indicated, all product prices are exclusive of: (a) the costs of shipping; and (b) any sales tax, value added tax, or other similar tax or duty (“Taxes”) which we may be obligated to collect under applicable law. You agree to pay for all shipping charges and Taxes associated with your purchase which are disclosed to you at the time you place your order.
7. Shipping; Risk of Loss Returns; Refunds.
7.1 All shipping dates and delivery dates provided by Gemma are estimates only and are not guaranteed. Gemma will have no liability to you for any delays in shipment or delivery. Title to and risk of loss of purchased products passes to you upon Gemma’s transfer of purchased products to the shipping carrier.
7.2 Gemma currently accepts returns of defective products returned within thirty (30) days of the delivery date that have our authorization. We also accept returns of products you purchased for the first time, subject to the following conditions: (a) there is at least one-half of the product remaining; (b) must be returned within thirty (30) days of the delivery date; and (c) you must first contact Gemma at email@example.com for authorization and request a pre-paid return shipping label. In some cases, you may be offered an exchange instead of a return for a refund.
Only authorized returns will be acknowledged and eligible for a full refund. Refunds for authorized returns include the purchase price of the returned products and any sales tax. Unless a product is defective, we do not refund any original shipping fees. Any refund we issue will be credited to the same payment method used to make the original purchase.
Unauthorized returns (including refused deliveries and shipments returned as undeliverable) are ineligible for a full refund. Refunds for unauthorized returns will be subject to a deduction for the cost of return shipping and may also be subject to a restocking fee deduction. In the event your order is undeliverable to the address you provided and an address change is required, you may be charged an additional address change fee in the amount charged by the shipping carrier for making the change.
7.3 Additional policies related to the shipping and return of products ordered through the Sites or Services may be found here.
8. User Content
8.1 When you transmit any information, content, materials or data to or through the Services (“User Content”), you are not forfeiting any ownership rights you may have in the User Content. However, by submitting User Content on or through the Services, you hereby grant Gemma and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content, including throughout the world in any media: (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly authorized by you. You represent and warrant that you own or have obtained all necessary rights, permissions and/or licenses to User Content that you transmit, and that our use of such User Content as authorized under this Agreement does not violate or infringe upon the rights of any other person or entity. Gemma shall have no liability for any lost, destroyed, altered, or damaged User Content submitted by you.
8.2 You understand that when using the Services, you may be exposed to content of other users of the Services, and that Gemma is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content. You further understand and acknowledge that you may be exposed to content of other users of the Services that is offensive, objectionable, or inaccurate, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Gemma with respect thereto.
9. Third Parties. References on the Sites or Services to any third parties or any products or services of such third parties, are provided solely as a convenience to you. We do not endorse, recommend, approve of or make any representations or warranties regarding any third parties or their products or services. We are not responsible for the content of any third-party websites and do not make any representations regarding the content or accuracy of material on such websites. If you decide to follow a link to any third-party website, you do so entirely at your own risk.
10. Warranties; Disclaimers of Warranties.
10.1 THE SITE AND SERVICES ARE PROVIDED BY GEMMA ON AN “AS IS” AND “AS AVAILABLE” BASIS. GEMMA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SITE, SERVICES, OR INFORMATION, CONTENT, OR MATERIALS OFFERED ON OR THROUGH THE SITE OR SERVICES. WITHOUT LIMITING THE FOREGOING, GEMMA DOES NOT WARRANT THAT THE SITE OR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK.
10.2 GEMMA WARRANTS THAT PRODUCTS PURCHASED BY YOU THROUGH THE SERVICES WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP. WE DO NOT WARRANT THAT THE QUALITY OF ANY PRODUCTS PURCHASED BY YOU WILL MEET YOUR EXPECTATIONS.
10.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, GEMMA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
10.4 THE DISCLAIMERS OF WARRANTIES SET FORTH ABOVE CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT GEMMA WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITH YOU WITHOUT YOUR AGREEMENT TO THE TERMS OF THESE DISCLAIMERS OF WARRANTIES.
11. Limitations of Liability.
11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL GEMMA, ITS AFFILIATES, PARTNERS, AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES OR YOUR PURCHASE OF ANY PRODUCTS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF GEMMA, ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
11.2 IN NO EVENT WILL GEMMA BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNTS PAID BY YOU TO GEMMA.
11.3 OUR RESPONSIBILITY FOR ANY DEFECTIVE PRODUCT IS LIMITED TO REPAIR, REPLACEMENT, OR REFUND.
11.4 CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. Indemnification. You agree to defend, indemnify and hold harmless Gemma, its affiliates, and their respective directors, officers and employees from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your breach or alleged breach of this Agreement, your improper use of the Sites or Services, your breach of any applicable law, rule, or regulation, or your violation or infringement of the rights of a third party. Gemma shall have the right to participate in the defense of any such claim at its own cost. You may not settle or negotiate any claim that results in liability to, or imposes any obligation upon, Gemma, financial or otherwise, without the written consent of Gemma.
13. Dispute Resolution
13.1 Summary. We believe that most customer issues can be resolved quickly by emailing us at firstname.lastname@example.org. If Gemma is unable to resolve your issue to your satisfaction (or if we have not been able to resolve a dispute with you after trying to do so informally), then with limited exceptions discussed below, we each agree to resolve the issue or dispute through binding arbitration rather than in a court. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, limits discovery, and is subject to very limited review by courts.
13.2 Class Action Waiver. YOU AND GEMMA AGREE THAT ANY ACTION OR PROCEEDING TO RESOLVE ANY DISPUTE BETWEEN US, INCLUDING ARBITRATION AND LITIGATION IN COURT, WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. NEITHER OF US WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A CLASS-WIDE ARBITRATION, A PRIVATE ATTORNEY-GENERAL ACTION, OR ANY OTHER PROCEEDING IN WHICH EITHER OF US ACTS OR PROPOSES TO ACT AS A REPRESENTATIVE FOR OTHERS. You and Gemma also agree that no arbitration or other proceeding will be combined with another arbitration or proceeding without the written consent of you, Gemma, and every other party to that arbitration or proceeding.
13.3 Mandatory Arbitration; Waiver Of Jury Trial
13.3.1 Federal Arbitration Act. The Federal Arbitration Act governs the interpretation and enforcement of this mandatory arbitration provision.
13.3.2 Mandatory Arbitration. EXCEPT FOR CERTAIN TYPES OF DISPUTES IDENTIFIED IN SECTION 13.3.3 BELOW, YOU AND GEMMA EACH AGREE THAT ANY DISPUTE BETWEEN US RELATING TO THIS AGREEMENT, THE SITE, THE SERVICES, AND ANY GEMMA PRODUCTS WILL BE SETTLED ONLY THROUGH ARBITRATION. This means that neither you nor Gemma may commence litigation in court to have the dispute resolved before a judge or jury. Instead, one neutral arbitrator will decide the dispute, and the arbitrator’s decision will be final except for a limited right of appeal under the Federal Arbitration Act.
13.3.3 Exceptions To Mandatory Arbitration. This mandatory arbitration provision does not: (a) prohibit you or Gemma from bringing an individual action in a small claims court having jurisdiction over the dispute; (b) prohibit you or Gemma from bringing an individual action in a court of proper jurisdiction seeking injunctive relief ancillary to arbitration; (c) preclude you from bringing issues to the attention of any local, state, or federal government agencies, and such agencies can, if the law allows, seek relief against us on your behalf; or (d) apply to disputes regarding the enforcement or validity of Gemma’s or your intellectual property rights, or the intellectual property rights of each of our respective licensors.
13.3.4 Commencement of Arbitration. A party who intends to seek arbitration must first send, by U.S. certified mail, a written Notice of Dispute (“Notice”) to the other party. A Notice to Gemma should be addressed to: email@example.com (the “Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought (“Demand”). If Gemma and you do not resolve the claim within 30 days after the Notice is received, you or Gemma may commence an arbitration proceeding.
13.3.5 Governing Rules of Arbitration. The arbitration will be governed by the Consumer Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (the “AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope, enforceability, and interpretation of the arbitration provision are for the court to decide.
13.3.6 Arbitration Procedures. After we receive notice at the Notice Address that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for more than $75,000 (excluding attorney’s fees and expenses). (Currently, the filing fee for consumer-initiated arbitrations is $200, but this is subject to change by the arbitration provider. If you are unable to pay this fee, Gemma will pay it directly after receiving a written request at the Notice Address.) If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such a case, you agree to reimburse Gemma for all monies previously disbursed by Gemma that are otherwise your obligation to pay under the AAA Rules.
13.3.7 Arbitration Location. Unless Gemma and you agree otherwise, any arbitration hearing(s) will take place in the county (or parish) where you reside. If your claim is for $10,000 or less, you may choose whether to conduct the arbitration solely on the basis of documents submitted to the arbitrator, by a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If you choose to proceed either in person or by telephone, we may choose to respond only by telephone or submission. If your claim exceeds $10,000, the AAA Rules will determine whether you have a right to a hearing. The parties agree that in any arbitration of a dispute or claim, neither party will rely for preclusive effect on any award or finding of fact or conclusion of law made in any other arbitration of any dispute or claim to which Gemma was a party.
13.3.8 Arbitration Award. If the arbitrator issues an award in your favor that is greater than the value of our last written settlement offer made before an arbitrator was selected, Gemma will:
- pay you either the amount of the award or $2,000 (the “Alternative Payment”), whichever is greater; and
- pay your attorney, if any, the amount of attorney’s fees, and reimburse any expenses (including expert witness fees and costs), that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (the “Attorney’s Payment”).
If Gemma did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the Alternative Payment and the Attorney’s Payment, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney’s fees at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. In assessing whether an award that includes attorney’s fees or expenses is greater than the value of our last written settlement offer, the arbitrator shall include in his or her calculations only the value of any attorney’s fees or expenses you reasonably incurred in connection with the arbitration proceeding before our settlement offer.
The right to attorney’s fees and expenses discussed in this Section 13.3.8 supplements any right to attorney’s fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorney’s fees or costs. Although under some laws we may have a right to an award of attorney’s fees and expenses from you if we prevail in an arbitration proceeding, we will not seek such an award.
13.3.9 Appeals. If the amount in dispute exceeds $75,000 (excluding attorney’s fees and expenses) either party may appeal the award to a three-arbitrator panel administered by AAA by a written notice of appeal within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to AAA rules. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, subject to any right of judicial review that exists under the FAA.
13.3.10 Changes to Arbitration Provision. Notwithstanding any provision in this Agreement or elsewhere to the contrary, Gemma agrees that if we make any changes to this arbitration provision (other than a change to any notice address, website link or telephone number provided herein), that change will not apply to any dispute of which we had written notice on the effective date of the change. Moreover, if we seek to terminate this Agreement, any such termination will not be effective as to this Arbitration Agreement until at least thirty (30) days after written notice of such termination is provided to you and shall not be effective as to disputes which arose prior to the date of termination.
13.4 Jurisdiction for Disputes Not Subject to Arbitration. To the maximum extent permitted by law, and solely with respect to a dispute or claim not subject to mandatory arbitration, you and Gemma irrevocably consent to the exclusive personal jurisdiction of the state and federal courts located in King County, Washington for resolution of such dispute or claim.
13.5 Limitation On Time To Bring Claims. TO HELP RESOLVE ANY ISSUES BETWEEN US PROMPTLY, YOU AND GEMMA AGREE TO BRING ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, GEMMA PRODUCTS, OR YOUR USE OF THE SITE OR SERVICES WITHIN ONE (1) YEAR AFTER A CLAIM ARISES; OTHERWISE, THE CLAIM IS WAIVED. THIS LIMITATION APPLIES REGARDLESS OF THE VENUE IN WHICH SUCH CLAIM IS OR COULD OTHERWISE BE ASSERTED.
14. Changes To or Suspension of Services. We may change, suspend, or discontinue (temporarily or permanently) some or all of the Services, with respect to any or all users, at any time with or without notice. In our continued assessment of the Services, we may from time to time, with respect to any or all of our users, experiment with or otherwise offer certain features or other elements of the Services. You acknowledge that Gemma may do so in its sole discretion at any time with or without notice. You also agree that Gemma will not be liable to you for any modification, suspension, or discontinuance of the Services, although if you are a subscriber to any Services, and we suspend or discontinue your subscription, Gemma may, in its sole discretion, provide you with a credit, refund, discount or other form of consideration (for example, we may credit additional days of service to your account). However, if Gemma terminates your account or suspends or discontinues your access to Services due to your violation of this Agreement, then you will not be eligible for any such credit, refund, discount or other consideration.
15. Termination. This Agreement shall remain in force and effective unless and until terminated by either you or us. You may terminate this Agreement at any time by providing written notice to us, via email to firstname.lastname@example.org. We may terminate this Agreement immediately with or without notice, and/or may deny you access to the Services, in our sole discretion, in the event you breach, or threaten to breach, any term of this Agreement. Upon any termination of this Agreement, you must immediately discontinue use of the Services. Even after your rights under this Agreement are terminated, all provisions of this Agreement which by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
16. Copyright Infringement Notices (Digital Millennium Copyright Act). We respect the intellectual property of others. We strive to respond promptly to proper notices of copyright infringement by removing or disabling access to allegedly infringing material. It is our policy to terminate the access privileges of those who repeatedly infringe the copyrights of others.
If you believe that any content appearing on the Sites or through the Services infringes the copyright in a work you own, please send a notification containing the following information to Gemma’s Copyright Agent:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the work in which you hold a copyright interest which you believe is being infringed;
- a description of the location on the Sites or Services where the allegedly infringing material is located (preferably including a URL address);
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent can be reached at the following address:
Gemma Labs Inc.
Attn: Copyright Agent
240 Second Avenue South, #300
Seattle WA 98104
17. Referral Program. Gemma may offer a referral program through which Gemma account holders (each a “Referrer”) may refer friends or family to Gemma and the Referrer and/or referred friends or family may receive an incentive. Your participation in the Gemma referral program is subject to the following Referral Program Terms and Conditions.
- Referrals may be made using only the methods made available by Gemma, as specified on the Sites or within your account.
- Any referral award provided by Gemma to a Referrer is non-transferable, has no cash value, and may not be redeemed for cash.
- Eligibility for a referral award is limited to individuals only. The Gemma referral program cannot be used by businesses for affiliate lead generation as determined in Gemma’s sole discretion.
- Referrers must comply with all applicable laws, rules, and regulations, including but not limited to those relating to the sending of unsolicited commercial emails (i.e., “spam”). Any distribution of a referral link or other communication that could constitute unsolicited commercial email or "spam" under any applicable law, rule, or regulation is expressly prohibited.
- Referrers may not conduct their own public promotion, marketing, or advertising in connection with the Gemma referral program. Referral links may be used only for personal, non-commercial purposes. Referrers may share referral links only with their personal connections through email, Facebook, Twitter, and other sites where Referrer is the primary content owner. Public distribution of any referral link on sites where Referrer is not the primary content owner is prohibited.
- Referrers are not agents of Gemma and are not authorized to make any promises or commitments on behalf of Gemma.
- Gemma is not responsible for the conduct of Referrers, and Referrers agree to hold Gemma harmless from and against any claims arising from Referrer's conduct.
- If Gemma determines that you have violated the terms and conditions of the Gemma referral program, Gemma may immediately terminate your account, prohibit the user from further participation in the Gemma referral program, and any referral incentives may be forfeited, each in Gemma’s sole discretion.
- Gemma reserves the right to discontinue, terminate, or modify the terms and conditions of the referral program at any time. Gift Cards. The following terms and conditions apply to the purchase and use of Gemma Gift Cards and eGift Cards (each a “Gift Card”, collectively, “Gift Cards”). Your purchase or use of a Gift Card constitutes your acceptance of the following terms and conditions.
18 Gift Cards. The following terms and conditions apply to the purchase and use of Gemma Gift Cards and eGift Cards (each a “Gift Card”, collectively, “Gift Cards”). Your purchase or use of a Gift Card constitutes your acceptance of the following terms and conditions.
18.1 Purchase, Redemption and Use. Gift Cards and promotional credits may not be used to purchase Gift Cards. All purchases of Gift Cards are final and may not be returned for a refund except as required under applicable law. Gift Cards are only redeemable online through the Sites and may only be used to purchase eligible Gemma products and services. Some Gemma products may not be eligible for purchase using a Gift Card. Except as required under applicable law, Gift Cards may not be reloaded or redeemed for cash. Refunds will not be made for eGift Card purchases sent to an incorrect, invalid or undeliverable email address provided by the purchaser. Without Gemma’s written authorization, Gift Cards may not be used in connection with any marketing, advertising, contests, sweepstakes, or other promotional activities (including without limitation via websites, Internet advertisements, email, telemarketing, direct mail, newspaper and magazine advertisements, and radio and television broadcasts).
18.2 Gift Card Balances. Gift Card balances may not be transferred between Gemma accounts and, except as required by applicable law, may not be redeemed for cash. Gift Card balances will be applied against the total order amount. Any unused Gift Card balance will remain on the Gift Card. If a purchase amount exceeds the Gift Card balance, the excess amount must be paid using another payment method accepted by Gemma.
18.3 Lost, Stolen and Damaged Gift Cards. Title to and risk of loss for a Gift Card passes to purchaser or designated recipient upon purchase. You are solely responsible for safeguarding your Gift Card. We are not responsible for Gift Cards that are lost, stolen, damaged or used without your authorization. In our sole discretion, we may replace a lost, stolen, or damaged Gift Card upon our receipt of valid proof of purchase, and only to the extent of the unused balance shown in our records.
18.6 General Gift Card Terms. We reserve the right to refuse, cancel, or hold Gift Cards and orders placed using a Gift Card for suspected fraud, for Gift Cards mistakenly issued for an incorrect amount, or for other violations of our Gift Card terms and conditions or applicable law.
19. Miscellaneous Terms
19.1 Sites and Services in the United States. The Sites and Services are provided to you and controlled by Gemma from facilities in the United States of America. Gemma makes no representations that the Sites or Services are appropriate or available for use in other locations. If you access or use the Sites or Services from other jurisdictions, you do so at your own volition and are responsible for compliance with any laws, rules, and regulations applicable to your jurisdiction.
19.2 Consent to Electronic and Other Communications. You consent to receive communications from us via mail (to a postal address you have provided), Short Message Service (“SMS”) or Multimedia Messaging Service (“MMS”) messages (to a mobile telephone number you have provided), via desktop notifications, and electronically (via email to an email address you have provided), and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email, or on the Sites or through the Services, satisfy any legal requirement that such communications or agreements be in writing. Standard message and data rates may apply to SMS and MMS messages. You may opt out of receiving SMS and MMS messages by replying ‘STOP’. You may opt out of receiving email communications by following the opt out instructions in the email. You may opt out of receiving mail by submitting your home address at gemmist.com/opt-out. For communications sent by other means, you may opt out by contacting us at email@example.com. You represent and warrant that any telephone number you have provided to Gemma is owned by you and that you are permitted to receive calls at each such telephone number. You agree to promptly advise Gemma if you cease to own any such number.
19.3 Assignment. You may not assign your rights or obligations under this Agreement without the prior written permission of Gemma and any attempt by you to do so shall be null and void.
19.4 Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
19.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
19.8 Entire Agreement. This Agreement, including all agreements referred to and incorporated herein, sets forth the entire understanding and agreement between you and Gemma, and supersedes any and all other oral or written agreements or understandings between us.
Previous Terms of Service: