TERMS OF SERVICE
GERSTEL, Inc. (the “Company”) provides its online services to visitors to our website at www.gerstelus.com and www.webstore.gerstelus.com and any derivative, co-branded or successor site as the Company may make available from time to time (“GERSTEL Website”). This Terms of Service Agreement (the “Agreement”) sets forth the terms and conditions that govern your use of the GERSTEL Website and incorporates the terms and conditions of the Company’s Privacy and Security Policy located at www.gerstelus.com/privacypolicy. By accessing or using the GERSTEL Website, you are agreeing that you have read and accept the following terms and conditions. If you do not agree to any of these terms and conditions, please do not use the GERSTEL Website.
1. DESCRIPTION OF GERSTEL TECHNOLOGY.
The Company provides visitors to the GERSTEL Website with access to its online services (along with all related documentation and intellectual property rights, the “GERSTEL Technology”).
2. REGISTRATION AND YOUR OBLIGATIONS.
You may be asked to register or provide certain information in connection with your use of the GERSTEL Technology. You agree to provide true, accurate, current and complete information about you as prompted by the GERSTEL Technology and other application forms and registration forms (such information being the “Registration Data”). If you provide any Registration Data that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such Registration Data is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your access to and use of the GERSTEL Technology and refuse any and all current or future use of the GERSTEL Technology or any portion thereof.
3. PASSWORDS AND YOUR OBLIGATIONS.
To access and use certain online services on the GERSTEL Website, you may be required to create an account and to select a unique user name and password in order to be able to access your account. You are solely responsible for the activity that occurs on your account, including without limitation, any uploads of User Submittals and/or User Content, whether or not in fact authorized by you. You are responsible for maintaining the confidentiality and security of your user name and password. If you have any reason to believe that there has been a breach of security regarding your user name or password, including without limitation, unauthorized use of your username or password, you must promptly notify the Company in writing and change your password on the GERSTEL Website.
4. ACCESS TO THE GERSTEL TECHNOLOGY.
You shall be responsible for obtaining access to the GERSTEL Technology and for all equipment necessary to access the GERSTEL Technology and you acknowledge that obtaining the foregoing may involve third-party fees (such as internet service provider or airtime charges). You are responsible for all charges associated with connecting you to the GERSTEL Technology, including, without limitation, all telephone, equipment, airtime and internet service provider charges.
5. LINKS TO OTHER SITES.
Visitors to the GERSTEL Website should be aware that when they are on the GERSTEL Website, they could be directed to other websites that are beyond our control. There are several links to other web sites from the GERSTEL Website pages that take you outside our service. The Company has no control over these websites and is not responsible or liable for the policies, actions or content of suchwebsites. These web sites are linked only for your convenience and you access them at your own risk. We encourage you to review the terms of service and privacy policies available at these other websites. The Company is not responsible for, and expressly disclaims all liability for, damages of any kind arising out of or relating to any use, reference to or reliance on such information and any other dealings with such third parties.
6. USER SUBMITTALS AND USER CONTENT.
In connection with your use of the GERSTEL Technology, the GERSTEL Website may allow you to submit contributions, ideas, feedback, and suggestions about the GERSTEL Technology, including without limitation, comments, notes, messages or other related communications (collectively, the “User Submittals”). In connection with your use of the GERSTEL Technology, the GERSTEL Website may also allow you to transmit data, information, videos, photographs and other content (the “User Content”). You shall be solely responsible for your User Submittals and your User Content and the consequences of transmitting them via the GERSTEL Website.
You retain all of your ownership rights in and to the User Submittals and the associated intellectual property rights therein. However, subject to the terms and conditions set forth herein, you hereby grant to the Company a royalty-free, perpetual, irrevocable, world-wide, non-exclusive license to use, reproduce, sub-license through multiple tiers of sub-licensees, create derivative works from, modify, publish, edit, translate, distribute, and publicly perform, execute, and display the User Submittal and any related intellectual property rights in any media or medium, or any form, format, or forum now known or hereafter developed for any legal purposes whatsoever.
You shall retain any ownership rights in and to the User Content and the associated intellectual property rights therein. However, subject to the terms and conditions set forth herein, you hereby grant to the Company a royalty-free, perpetual, irrevocable, world-wide, non-exclusive license to use the User Content to fulfill its obligations under this Agreement.
In connection with your User Submittals and your User Content, you represent and warrant that: (i) you own or have the necessary licenses and other rights to use and authorize the Company to use the User Submittals and the User Content, and the associated patent, trademark, copyright, trade secret and other intellectual property and proprietary rights therein, in connection with the GERSTEL Website and this Agreement; and (ii) you have the written consent, release and/or permission of each identifiable individual person in the User Submittal and the User Content to use the name and likeness of such identifiable individual person to enable the inclusion and use of the User Submittal and the User Content via the GERSTEL Website in accordance with this Agreement.
You acknowledge and agree that the Company is not responsible for pre-screening any User Content that is placed on or transmitted via the GERSTEL Website by any party other than the Company, and you shall not rely on the Company to ensure that such User Content is accurate, complete, current, or in compliance with any rule, regulation or law. The Company shall have the right, but not the obligation, to refuse, edit or remove any User Content that the Company, in its sole discretion and without prior notice, considers to be harmful, illegal, misleading, libelous or threatening material, offensive sexual, racial or gender related material, or otherwise offensive, disruptive or inappropriate material, or otherwise in violation of this Agreement.
The User Submittals and User Content transmitted via the GERSTEL Website shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas by the Company for any purpose whatsoever. The Company does not endorse any User Submittal, User Content or any opinion, recommendation or advice expressed therein.
7. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
You acknowledge and agree that the Company and its suppliers own all right, title and interest in and to the GERSTEL Technology and any and all copyrights, trademarks, patents, trade secrets and any other intellectual property and proprietary rights therein.
The “look and feel” of the GERSTEL Technology, meaning, the structure, sequence and layout of the audiovisual components of the GERSTEL Technology as perceived by you, including, but not limited to, the color combinations, button shapes, and all other graphical and navigational elements, the design for which was dictated by artistic and aesthetic considerations and not by utilitarian or mechanical ones, are also proprietary to the Company and fully protected under U.S. and international copyright and trademark laws.
The Company’s marks and logo, and all related product and service names, design marks and slogans are the trademarks, service marks or registered trademarks of the Company and may not be used or modified in any manner without the prior written consent of the Company.
You agree that the Company, at its sole discretion, may terminate your access to and use of the GERSTEL Technology, at any time and for any reason whatsoever, including without limitation, for lack of use or if the Company believes, in its sole discretion, that you have violated or acted inconsistently with the terms and conditions of this Agreement. The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the GERSTEL Technology (or any part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the GERSTEL Technology.
You represent and warrant to the Company that: (i) you are at least 18 years old; (ii) in the event you are an entity, you have the full right, power and authority to enter into this Agreement on behalf of such entity; (iii) the performance by you of your obligations and duties hereunder, do not and will not violate any agreement to which you are a party or by which you are otherwise bound. You further represent and warrant to the Company that: (a) your use of the GERSTEL Technology complies in all respects with all applicable laws, statutes, regulations, ordinances and other rules; (b) the Registration Data and any other information provided to the Company by you are truthful and accurate; (c) the Registration Data, your User Submittals and your User Content do not infringe the intellectual property or proprietary rights, including without limitation, patents, copyrights, trademarks and trade secrets, of any third party; (d) you will not submit any material that may disrupt or interfere with the hardware or software operating the GERSTEL Technology; and (e) you will not use the GERSTEL Website to submit or transmit offensive or disruptive material, including without limitation, spam, offensive sexual, racial or gender related material, defamatory, libelous or threatening material, or any other material that is unlawful, encourages criminal conduct or is otherwise inappropriate.
You agree to indemnify, defend and hold harmless the Company, its employees, directors, officers, agents and its affiliates and suppliers from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or resulting from this Agreement or the GERSTEL Technology including, but not limited to: (i) your breach of any representations, warranties or covenants set forth herein; (ii) your use of the GERSTEL Technology; (iii) damage caused to any third party by your User Submittals and/or User Content, or (iv) your violation of any rights of any third party, including without limitation, any trademark, copyright, patent, trade secret or other intellectual property or proprietary rights. The provisions of this Section shall survive the termination of this Agreement and your access to the GERSTEL Website.
11. DISCLAIMER OF WARRANTIES.
THE GERSTEL TECHNOLOGY IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOU AGREE THAT YOUR USE OF THE GERSTEL TECHNOLOGY SHALL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR COMMON LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, TITLE AND NON-INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THE GERSTEL TECHNOLOGY WILL MEET YOUR REQUIREMENTS OR NEEDS, OR THAT THE GERSTEL TECHNOLOGY WILL OPERATE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE GERSTEL TECHNOLOGY WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY YOU THROUGH THE USE OF THE GERSTEL TECHNOLOGY IS OBTAINED AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA OR PERSONAL INJURY OR PROPERTY DAMAGE THAT RESULTS FROM THE DOWNLOADING OF ANY SUCH MATERIAL.
12. LIMITATION OF LIABILITY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS, AFFILIATES AND SUPPLIERS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL OR OTHER INTANGIBLE LOSSES, EVEN IF THE COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS, AFFILIATES AND/OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY’S, ITS OFFICERS’, EMPLOYEES’, AGENTS’, AFFILIATES’ AND/OR ITS SUPPLIERS’ CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED TWO THOUSAND DOLLARS ($2,000.00 U.S.).
If you believe that you have any right, title or interest in or to any materials or other information, including without limitation, User Submittals, User Content, data, images, video or any other information, and/or any intellectual property rights thereof (the “IP”), that is located within the GERSTEL Technology without your prior consent, please provide to the Company the following: (i) a description of such IP; (ii) details of where such IP is located within the GERSTEL Technology; (iii) your name, address, telephone number and email address; and (iv) a statement executed by you that the information provided regarding such IP is truthful and accurate, that you have right, title or interest in or to such IP, and that you have a good faith belief that such IP is located within the GERSTEL Technology without your prior consent.
14. GOVERNING LAW.
THE GERSTEL TECHNOLOGY IS CONTROLLED BY THE COMPANY FROM WITHIN THE STATE OF MARYLAND OF THE UNITED STATES OF AMERICA. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND GOVERNED BY THE LAWS OF THE STATE OF MARYLAND OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES AND WITHOUT APPLICATION OF THE MARYLAND UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT. THE PARTIES AGREE THAT THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT. THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED WITHIN THE STATE OF MARYLAND WITH RESPECT TO ANY DISPUTE AMONGST THE PARTIES UNDER THIS AGREEMENT.
15. ORDER OF PRECEDENCE.
This Agreement governs your access and use of the GERSTEL Website and the GERSTEL Technology. This Agreement does not modify, alter or amend any other agreement you have entered or will enter into with the Company or any of its related or affiliated entities. To the extent that any provision of this Agreement or any supplemental agreement offered as any part of any registration for use of additional GERSTEL Technology, conflicts with any provision of your other agreements with the Company or any of its related or affiliated entities, the terms of such other agreement shall, as to the subject matter of that other agreement, take precedence over the conflicting terms of this Agreement.
16. GENERAL INFORMATION.
This Agreement, together with the Company’s Privacy and Security Policy, constitutes the entire agreement between you and the Company with respect to the subject matter herein and governs your use of the GERSTEL Technology, superseding any prior agreements between you and the Company, but this Agreement may be supplemented by any other agreement you enter into with the Company pursuant to your participation in other features of the GERSTEL Website. You further acknowledge and agree that you may not assign any part of this Agreement without the Company’s prior written consent, but the Company may assign any part of this Agreement without restriction. This Agreement shall inure to the benefit of each party’s successors and assigns. The Company shall not be deemed to be in breach of the Agreement and thereby liable to you or any third party for any delays in the performance of its obligations hereunder caused by fire, explosion, act of God, strikes, war, riot, government regulation, bandwidth limitations, Internet connectivity, or act or any other cause beyond the reasonable control of the Company. The failure of the Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the GERSTEL Technology or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The Company reserves the right, at any time and at its sole discretion, to update, revise or otherwise modify the terms and conditions of the Agreement without notice to you, you can view any such update, revision or other modification on the GERSTEL Website.
18. CONTACTING US.
If you have any questions about this Agreement, the Privacy and Security Policy, or any question, problem or need to contact us regarding the GERSTEL Technology, please contact us by mail at GERSTEL, Inc., 701 Digital Drive, Suite J, Linthicum, Maryland 21090, USA or by telephone at (410) 247-5885. Effective Date: June 1, 2013.