TERMS OF USE

Welcome to the website or mobile applications of Gherry Inc., a Delaware corporation, its subsidiaries (including Gherry Operations Inc.), parents, affiliates, successors and assigns (the “Company”, “Gherry”, “we” or “us”). The following Terms of Use, together with any documents they expressly incorporate by reference (collectively, these “Terms”), govern your access to and use of our website, accessible at www.gherry.com, and our applications for the iOS or Android operating systems, and any other platforms through which you may access the Gherry Services, including progressive web applications (PWA) and software as a service applications (Saas) (collectively, the “Platform”), including any content, functionality and services offered on or through the Platform, whether as a guest or a registered user.

Please read the Terms carefully before you start to use the Platform. By using the Platform or by clicking to accept or agree to the Terms when this option is made available to you, you accept and agree to be bound and abide by these Terms and our Privacy Policy, found at https://www.gherry.com/legal/privacy-policy/, incorporated herein by reference. If you do not want to agree to these Terms or the Privacy Policy, you must not access or use the Platform. 

The Platform and the online services provided to help organize, store, and manage information related to your care or the care of your loved ones or other care recipients (the “Gherry Services”) are offered and available to users who are 18 years of age or older. By using the Platform, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Platform.

1. NO MEDICAL ADVICE

IF YOU ARE HAVING A MEDICAL EMERGENCY, DIAL 911 IMMEDIATELY. We do not provide any medical or pharmaceutical advice. We are not health care providers. As a result, the Gherry Services are not intended to provide medical or pharmaceutical information or replace the advice of a healthcare professional. The Gherry Services are solely designed to support, not replace, the relationship that exists with any physician, pharmacist and other healthcare professionals. What we do is provide a way for you to manage and take control of your caregiving duties and health care data.

2. PROFILES

When you register with us for access to the Gherry Services and successfully complete the account registration process you will become a “Member Administrator,” “Care Recipient,” or “Caregiver” of the Gherry Service (each such person, a “Member”). As a Member, you will have the opportunity to create one or more care profiles (“Profiles”) and to add information, data, and images to your Profile(s) (collectively, the “Profile Content”). A Profile will relate to the Care Recipient, which may by you or another individual. As a Member, you will have the opportunity to invite individuals who care for the Care Recipient (each, a “Caregiver”) to access the Care Recipient Profiles that you create or have administrator privileges over. Caregivers that you invite to access your Profile(s) will have partial or full access to Profile Content within your Profile(s) and may have the ability to add, delete, distribute, download, and edit the same. Because of the sensitive and private nature of your health care and the health care of those Care Recipients on whose behalf you may be creating a Profile, we recommend that you protect the private and sensitive information contained within your Profile(s) and consider carefully whether to permit any Member to access your Profiles. All Members are responsible for monitoring the Profile Content uploaded or added to their Profiles, whether uploaded by the Member who created such Profile(s) or by Members authorized to partially or fully view and/or edit the Profile Content.

If you are creating a Profile on behalf of another person, by accepting these terms you attest that you are authorized by that person to create a Profile on their behalf. To the extent you take action on behalf of the person you are caring for, you also attest that you have valid legal authority to take that action on their behalf.

Please note that you, and not Gherry, are responsible for maintaining and protecting all Profile Content. Gherry will not be liable to you for any loss or corruption of your Profile Content, or for any costs or expenses associated with backing up or restoring any of your Profile Content.

3. ACCOUNT REGISTRATION

In order to access the Gherry Services, including to (i) create and manage a Profile and (ii) post any Profile Content through the Gherry Services, you must register to create an account (“Account”) and become a Member. Gherry reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete. You will be asked to create a password when you create your Account. Gherry does not have access to your passwords and if you forget your password you will be asked to create a new one. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Gherry if you become aware of any unauthorized use of your Account.

4. GHERRY ADVISORS

We have a team of dedicated Gherry Advisors whose job is to support you in whatever way they can. By registering with us to access Gherry Services, you agree and accept that Gherry and the Gherry Advisors may contact you to discuss Gherry’s services as well as third party services and products Gherry may make available to you in connection with your health, care, and wellness. You agree that Gherry may contact you about Gherry Services or third-party services in various ways including, but not limited to, email, Inbox in the app, direct mail, telephone, cell phone, and SMS/text messages. If you do not wish to be contacted you can opt out by changing your contact preferences on the Platform.

5. PRIVACY

Please review carefully Gherry’s Privacy Policy, found at https://www.gherry.com/legal/#privacypolicy, for information and notices concerning Gherry’s collection and use of your personal information and the Profile Content you submit.

6. OWNERSHIP

The Platform, Gherry Services, and the news and other content provided by Gherry through the same, including the trademarks, trade dress and copyrightable text (collectively, the “Gherry Content” and, together with the Profile Content, the “Collective Content”), are protected by copyright, trademark, and other laws of the United States and foreign countries and are the proprietary designations of Gherry. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties. You acknowledge and agree that the Platform, Gherry Services, and Gherry Content, including all associated intellectual property rights, are the exclusive property of Gherry and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform, Gherry Services, or Gherry Content.

As between any Member and Gherry, all Profile Content is and remains the sole and exclusive property of you as the Member. Gherry does not own any Profile Content and its use of the same is subject to these Terms and our Privacy Policy, found at https://www.gherry.com/legal/#privacypolicy.

7. LICENSE GRANTED BY MEMBER

By making available any Profile Content on or through the Gherry Services, you hereby grant to Gherry a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid up right and license to access, use, view, copy, adapt, reformat, and download, such Profile Content only on, through or by means of the Gherry Services and for the limited purpose of making such Profile Content available to you and any Members with whom you choose to share access to one or more of your Profiles via the Gherry Services and as otherwise set forth in our Privacy Policy, found at https://www.gherry.com/legal/#privacypolicy. In the event you do elect to make one or more Profile(s) and their corresponding Profile Content available to one or more Members, you further grant Gherry a right to sublicense the Profile Content to such Members to allow access to and use of the same as permitted by the Gherry Services. ALTHOUGH ANY MEMBER IS SUBJECT TO THESE TERMS AS A MEMBER, WE CANNOT CONTROL ANY USE OF PROFILE CONTENT BY ANY MEMBER AND YOU ARE SOLELY RESPONSIBLE FOR THE SAME AND ANY LIABILITY FOR SUCH ACCESS.

You acknowledge and agree that you are solely responsible for all Profile Content that you make available through the Gherry Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Profile Content that you make available through the Gherry Services or you have all rights, licenses, consents and releases from the applicable Care Recipient that are necessary to grant to Gherry the rights in such Profile Content, as contemplated under these Terms, including the provision to Gherry of Personal Information (as defined in the Gherry Privacy Policy) submitted to us as part of a Profile; and (ii) neither the Profile Content nor your posting, uploading, publication, submission, or transmittal of the Profile Content or Gherry’s use of the Profile Content (or any portion thereof) on, through or by means of the Gherry Services will infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

8. LICENSES GRANTED BY GHERRY TO GHERRY CONTENT AND MEMBER CONTENT

Subject to your compliance with the terms and conditions of these Terms, Gherry grants you a limited, non-exclusive, non-transferable license to view, download, and print any Gherry Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, download, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform, Gherry Services or Gherry Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Gherry or its licensors, except for the licenses and rights expressly granted in these Terms. Any misuse of the Platform, Gherry Services or Gherry Content available via the same may be pursued by Gherry to the fullest extent permitted by law.

In addition, if you are invited as a Member to receive access to one or more Profile(s) by another Member subject to your compliance with the terms and conditions of these Terms, Gherry grants you a limited, non-exclusive, non-transferable license to access and use the Profile Content to which you are granted access by another Member. You have no right to sublicense the license rights granted in this section. Unless otherwise agreed between you and the Member granting you access to such Profile Content, all Profile Content is deemed to be confidential and you may not publicly disclose, display, distribute, transmit, stream, broadcast or otherwise use or exploit any Profile Content for any purpose other than the lawful provision and assistance of the management of the personal health care of the individual to whom the Profile Content relates.

9. MODIFICATION

We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them. However, any changes to the dispute resolution provisions set forth in Governing Law and Dispute Resolution sections will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Platform. 

Your continued use of the Platform following the posting of revised Terms means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. 

10. OTHER SERVICES

From time to time, we may present you with offers or promotions we believe to be helpful or relevant, which may be from us at Gherry or they may be from third parties. Certain of these offers may require you to share or enter additional information about you or your Care Recipient. You are responsible for managing the information you choose to share. Gherry is providing the platform through which these services can be coordinated and managed, and although we do our best to select the highest quality third party partners and providers, we are not responsible for the choices you make to share your private information, or the accuracy or quality of such third-party services. In that instance the Gherry Services are only a venue for you to access those third-party services and Gherry is not a party to, nor are we otherwise involved in any transactions entered into via or facilitated by the Gherry Services. Furthermore, Gherry is not liable or responsible for any dispute that arises between you and any third party.

In addition, Gherry will do its best to enable you to use the Gherry Service as a singular console through which these third-party services may be managed, including facilitating the delivery and receipt of communications between you and your healthcare providers, which may include but are not limited to pharmacies, physician’s offices, or other healthcare and care institutions. We cannot guarantee that we can or will be able to maintain our relationship with any particular third party. We also are not responsible for any of the service levels, availability, or quality of any such connections with third parties, and disclaim any responsibility for errors or miscommunication with the same. To the extent providing other services requires actions on your behalf, you consent to appointing Gherry as your agent as reasonably needed to facilitate those services.

11. GENERAL PROHIBITIONS

You may use the Platform only for lawful purposes and in accordance with these Terms. You agree not to use the Platform:

• In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries). 

• For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.

• To send, knowingly receive, upload, download, use or re-use any material which does not comply with the content standards set out in these Terms.

• To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.

• Impersonate or misrepresent your affiliation with any person or entity.

• Collect or store any personally identifiable information, including any Profile Content and/or personal information (as defined in the Privacy Policy) from the Gherry Platform and/or Gherry Services from other Members of the Gherry Platform and/or Gherry Services without their express permission.

• Post, upload, publish, submit, or transmit any Profile Content that: (i) infringes, misappropriates, or violates a third party’s privacy or any rights of publicity, or any patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading, or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.

• To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).

• Use, display, mirror, or frame the Platform, or any individual element within the Gherry Services or Gherry Content, or Gherry’s name, any Gherry trademark, logo, or other proprietary information, without Gherry’s express written consent.

• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined by us, may harm the Company or users of the Platform or expose them to liability.

Additionally, you agree not to:

• Use the Platform in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Platform, including their ability to engage in real time activities through the Platform.

• Use any robot, spider or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform.

• Use any manual process to monitor or copy any of the material on the Platform or for any other unauthorized purpose without our prior written consent.

• Use any device, software or routine that interferes with the proper working of the Platform.

• Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.

• Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Platform, the server on which the Platform is stored, or any server, computer or database connected to the Platform. 

• Attack the Platform via a denial-of-service attack or a distributed denial-of-service attack.

• Otherwise attempt to interfere with the proper working of the Platform.
• Access, tamper with, or use restricted areas of the Platform, Gherry’s computer systems, or the technical delivery systems of Gherry’s providers.
• Attempt to probe, scan, or test the vulnerability of any Gherry system or network or breach any security or authentication measures.
• Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Gherry or any of Gherry’s providers or any other third party (including another user) to protect the Platform, Gerycare Services, and content on the Platform.
• Use the Gherry Services or Platform to send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation.
• Use any meta tags or other hidden text or metadata utilizing a Gherry trademark, logo URL, or product name without Gherry’s express written consent.
• Use the Platform, Gherry Services, or content on the Platform for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms.
• Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform or Gherry Services to send altered, deceptive or false source-identifying information.
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform or Gherry Services.
• Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Platform or Gherry Services.
• Encourage or enable any other individual to do any of the foregoing.

12. LINKS

If the Platform contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links shown or contained in blog posts and advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Platform, you do so entirely at your own risk and subject to the terms and conditions of use for such websites. Links to such websites or resources do not imply any endorsement by Gherry of such websites or resources or the content, products, or services available from such websites or resources.

13. NOTIFICATION OF COPYRIGHT INFRINGEMENT

We respect the intellectual property rights of others and expects its users to do the same. It is Gherry’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.

In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website, Gherry will respond expeditiously to claims of copyright infringement committed using the Platform that are reported to Gherry’s Designated Copyright Agent, identified in the sample notice below.

If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Platform by completing a DMCA Notice of Alleged Infringement and delivering it to Gherry’s Designated Copyright Agent. Upon receipt of the Notice as described below, Gherry will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Platform.

1. Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
2. Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Platform where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
   • “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
   • “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”

5. Provide your full legal name and your electronic or physical signature.

Deliver this Notice, with all items completed, to Gherry’s Designated Copyright Agent at [copyright@gherry.com].

14. TERMINATION AND ACCOUNT CANCELLATION

If you breach any of these Terms, Gherry will have the right to suspend or disable your Account or terminate these Terms and disable access to your Profiles, including those Profiles to which you have been permitted access by other Members, at its sole discretion and without prior notice to you. Gherry reserves the right to revoke your access to and use of the Platform and Gherry Services at any time, with or without cause. You may cancel your Account at any time through available methods within the Platform.

15. WARRANTIES

You warrant and represent to Gherry that your use of the Gherry Services, whether as a Member Administrator, a Caregiver, or a Care Recipient, is solely for lawful purposes to facilitate the care of the individual that is the subject of the Profile. Neither the Gherry Services, nor the Platform, nor any Gherry Content, nor any Profile Content may be used in any instance for any unlawful purpose.

16. DISCLAIMERS

Although we try to ensure the highest level of service, you understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Platform for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER OR OTHER ELECTRONIC DEVICES, PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE OR OTHER APPLICATION LINKED TO IT.

YOUR USE OF THE PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE, THE SERVERS, AND THIRD-PARTY DOWNLOAD PLATFORMS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. 

THE INFORMATION ON THIS PLATFORM IS NOT INTENDED OR IMPLIED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ALL CONTENT, INCLUDING TEXT, GRAPHICS, IMAGES AND INFORMATION, CONTAINED ON OR AVAILABLE THROUGH THIS PLATFORM IS FOR GENERAL INFORMATION PURPOSES ONLY. GHERRY MAKES NO REPRESENTATION AND ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF INFORMATION CONTAINED ON OR AVAILABLE THROUGH THE PLATFORM, AND SUCH INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE. YOU ARE ENCOURAGED TO CONFIRM ANY INFORMATION OBTAINED FROM OR THROUGH THE PLATFORM WITH OTHER SOURCES, AND REVIEW ALL INFORMATION REGARDING ANY MEDICAL CONDITION OR TREATMENT WITH YOUR PHYSICIAN. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THIS PLATFORM.

GHERRY DOES NOT RECOMMEND, ENDORSE OR MAKE ANY REPRESENTATION ABOUT THE EFFICACY, APPROPRIATENESS OR SUITABILITY OF ANY SPECIFIC TESTS, PRODUCTS, PROCEDURES, TREATMENTS, SERVICES, OPINIONS, HEALTH CARE PROVIDERS OR OTHER INFORMATION THAT MAY BE CONTAINED ON OR AVAILABLE THROUGH THE PLAFORM. GHERRY IS NOT RESPONSIBLE NOR LIABLE FOR ANY COURSE OF TREATMENT OR ANY OTHER MEDICALLY RELATED INFORMATION OR SERVICES THAT YOU OBTAIN THROUGH THE PLATFORM OR THROUGH OTHER GHERRY SERVICES.

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

17. INDEMNITY

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS GHERRY, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) YOUR ACCESS TO OR USE OF THE PLATFORM, GHERRY SERVICES, ANY GHERRY CONTENT OR ANY PROFILE CONTENT (WHETHER OR NOT IT IS A PROFILE YOU CREATED OR OTHERWISE), (II) ANY USE OF OUR PLATFORM OR GHERRY SERVICES FOR ANY UNLAWFUL OR INAPPROPRIATE CONDUCT, OR (III) ANY ACT OR OMISSION BY YOU THAT CONSTITUTES AN ACTUAL OR ALLEGED VIOLATION OF THESE TERMS.

18. LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND GHERRY SERVICE REMAINS WITH YOU. NEITHER GHERRY NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM OR GHERRY SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER OR OTHER ELECTRONIC DEVICE DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR GHERRY SERVICES OR THE INABILITY TO USE OR ACCESS A PROFILE OR ANY SPECIFIC PROFILE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GHERRY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL GHERRY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR GHERRY SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO GHERRY FOR USE OF THE SAME, IF YOU HAVE MADE ANY PAYMENTS TO GHERRY FOR USE OF THE SAME OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GHERRY AND YOU.

19. GOVERNING LAW AND JURISDICTION

These Terms and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, as contemplated below in “Dispute Resolution” will be the state and federal courts located in the Miami-Dade County, Florida and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

20. ENTIRE AGREEMENT

These Terms constitute the entire and exclusive understanding and agreement between Gherry and you regarding the Platform and Gherry Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Gherry and you regarding the Platform and Gherry Services. In the event that you have elected to access restricted portions of the Platform or use additional Gherry Services, which are subject to additional terms and conditions, any additional terms and conditions applicable to that portion of the Platform or additional Gherry Service are expressly included within these Terms as well.

21. ASSIGNMENT

You may not assign or transfer these Terms, by operation of law or otherwise, without Gherry’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Gherry may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

22. NOTICES

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Gherry: (i) via email (in each case to the address that you provide); or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

23. DISPUTE RESOLUTION

You and Gherry agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Gherry Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Gherry are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Gherry otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available on their website or by calling the AAA.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Florida and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure. Unless you and Gherry otherwise agree, the arbitration will be conducted in Miami-Dade County, Florida. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Gherry submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Gherry will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

24. WAIVER AND SEVERABILITY

No waiver of by the Company of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect. 

25. FEEDBACK

This Platform is operated by Gherry. All notices of copyright infringement claims should be sent to the copyright agent indicated below in the manner and by the means set forth therein. 

We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Gherry Services (“Feedback”). You may submit Feedback by emailing us at [feedback@gherry.com]. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable, and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon, and otherwise exploit the Feedback for any purpose without any compensation to you of any kind.

CONTACTING GHERRY

If you have any questions about these Terms, please contact Gherry at support@gherry.com.

Last Updated: September 29, 2020