Gild Terms of Service

Last updated:  January 10, 2014

0. Introduction your Agreement to these Terms of Service.

Welcome to Gild. Gild is operated by Gild, Inc. (“Gild”). The following terms of service apply to the Gild web site (http://gild.wpengine.com) and other web sites, services, software applications and networks owned or controlled by Gild (individually and collectively, the “Gild Service”).The following Terms of Service for the Gild Service constitute a legal contract between you, either an individual subscriber, customer, member, or user of at least 18 years of age or a single entity (“you” or, collectively, “Users”), and Gild regarding your use of the Gild Service.

PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE. BY REGISTERING FOR, ACCESSING, BROWSING, DOWNLOADING OR USING THE GILD SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL POLICIES AND FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE GILD SERVICE.

1. Eligibility.

The Gild Service is not available to persons under the age of 18 or to any users previously suspended or removed from the Gild Service by Gild. BY REGISTERING FOR ANY GILD SERVICE, CLICKING THE “I AGREE” BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE GILD SERVICE, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE Gild SERVICE.

IF YOU ARE USING OR OPENING AN ACCOUNT WITH GILD ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A “SUBSCRIBING ORGANIZATION”) THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS; (II) HAVE READ THE FOREGOING TERMS; (III) UNDERSTAND THESE TERMS, AND (IV) AGREE TO THESE TERMS ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.

2. Incorporation by Reference.

Your privacy is important to Gild. Gild’s Privacy Policy is hereby incorporated into these Terms by reference. Please read this policy carefully for information relating to Gild’s collection, use, and disclosure of your personal information.

3. Individual Features and Services.

When using the Gild Service, you will be subject to any additional posted policies, guidelines or rules applicable to specific services and features which may be posted from time to time (the “Policies”). All such Policies are hereby incorporated by reference into these Terms.

4. Modification of these Terms; Modification of Fees.

Gild reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Gild Service. If Gild updates these Terms, it will update the “last updated” date at the top of the Terms.  Please check these Terms, including any Policies, periodically for changes. Your continued use of the Gild Service after the posting of changes constitutes your binding acceptance of such changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Gild Service, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Gild, such amended Terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on the Gild Service.

Certain functions on the Gild Service have fees associated with them. When you use a service that has a fee, you have an opportunity to review and accept the fees that you will be charged based on our stated fees, which we may change from time to time. Gild may choose to temporarily change the fees for Gild’s services for promotional events or new services, and such changes are immediately effective when Gild posts the temporary promotional event or new service on the Gild Service. Any changes to fees for Gild’s services that are not temporary or promotional will be effective thirty (30) days after we provide you with notice by posting such changes on the Gild Service. Unless otherwise stated, all fees are quoted in U.S. Dollars.

To the extent that any modifications to the Terms, Policies or fees are not allowed under applicable laws, the prior most recent version of the Terms, Policies or fees shall continue to apply.

5. Certifications and Assessments

As a User of the Gild Service, you may voluntarily take certain certifications and assessments on various subjects (the “Assessments”). These Assessments are reviewed and scored by Gild in its sole discretion (each score for each Assessment a “Result”). Without limiting the licenses and rights granted by you in these Terms, you hereby expressly authorize Gild to reproduce, distribute and otherwise use and disclose the data submitted by you during an Assessment and any Results in connection with the Gild Service and Gild’s (and its successors’ and affiliates’) business. You agree that Gild shall not be liable for Assessments or any Results and you hereby indemnify Gild from all claims, losses, damages, liabilities, including legal fees and expenses resulting from Assessments you take or any Results therefrom.

6. Digital Millennium Copyright Act.

It is Gild’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Gild’s DMCA Notification Guidelines. Gild reserves the right to terminate without notice any User’s access to the Gild Service if that User is determined by Gild to be a “repeat infringer.” In addition, Gild accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.

7. Gild Service License Grant.

7.1 LICENSE GRANT

Subject to your compliance with all the terms and conditions set out in this Terms of Service, Gild hereby grants to you a limited, non-exclusive, non-transferable, freely revocable license to use the Gild Service as contemplated herein. The Gild Service may now or in the future permit the submission and/or posting or linking of pictures, audio and video recordings, text, data and other input for or about Assessments or provided in the course of Assessments, feedback, input, assessments, and evaluations regarding job candidates and interviews with them, hiring results, feedback regarding employee performance, data regarding candidate and employee salaries, code submissions, chat, commentary or any other content linked, posted, and/or submitted by you and/or other users, in each case whether or not made available to other Users (“Uploader Submissions”), the analysis and derivation of data from Uploader Submissions, and the hosting, sharing, and/or publishing of such Uploader Submissions.

7.2 PREVENTION OF UNAUTHORIZED USE.

Gild reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Gild Service, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.

8. Uploader Submissions License Grant; Representations and Warranties.

8.1 LIMITED LICENSE GRANT TO GILD.

By uploading, providing, posting, distributing or disseminating Uploader Submissions to or through the Gild Service, you hereby grant to Gild a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, modify and otherwise exploit your Uploader Submissions (and any copyrights, publicity, database and other proprietary rights therein), in connection with the Gild Service and Gild’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Gild Service (and derivative works thereof), in any media formats and/or through any media channels.

8.2 UPLOADER SUBMISSION USE BY OTHER USERS.

You hereby consent to the use of your Uploader Submissions by other Users that are authorized to access your Uploader Submissions in the manner contemplated by these Terms and the Gild Service.

8.3 UPLOADER SUBMISSIONS REPRESENTATIONS AND WARRANTIES.

You are solely responsible for your Uploader Submissions and the consequences of posting or publishing them. By uploading and publishing your Uploader Submissions, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Gild and Gild’s Users to use and distribute your Uploader Submissions as necessary to exercise the licenses granted by you in Section 7 and in the manner contemplated by Gild and this Terms of Service; (2) your Uploader Submissions do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (3) your Uploader Submissions do not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of the Gild Service. Violators of these third-party rights may be subject to criminal and civil liability. Gild reserves all rights and remedies against any Users who violate these Terms.

8.4 UPLOADER SUBMISSIONS DISCLAIMER.

You understand that when using the Gild Service you may be exposed to Uploader Submissions or other content from a variety of sources, and that Gild is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Uploader Submissions and other content. You further understand and acknowledge that you may be exposed to Uploader Submissions and other content that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Gild with respect thereto. Gild does not endorse any Uploader Submissions and other content or any opinion, recommendation or advice expressed therein, and Gild expressly disclaims any and all liability in connection with Uploader Submissions and other content. If notified by a User or a content owner of an Uploader Submission or other content that allegedly does not conform to this Terms of Service, Gild may investigate the allegation and determine in its sole discretion whether to remove the Uploader Submission or other content, which it reserves the right to do at any time and without notice. For clarity, Gild does not permit copyright infringing activities on the Gild Service.

9. Prohibited Conduct.

BY USING THE GILD SERVICE YOU AGREE NOT TO:

9.1

Use the Gild Service for any purposes other than to access the Gild Service as such services are offered by Gild;

9.2

Rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section 13, below);

9.3

Post, upload, or distribute any defamatory, libelous, or inaccurate content;

9.4

Post, upload, or distribute any Uploader Submissions or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;

9.5

Impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Gild Service accounts of others without permission, forge another persons’ digital signature, misrepresent the source, identity, or content of information transmitted via the Gild Service, or perform any other similar fraudulent activity;

9.6

Delete indications or notices regarding the copyright or other proprietary rights on the Gild Service or any third party content;

9.7

Make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Gild Service. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;

9.8

Use the Gild Service for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing export, intellectual property and other proprietary rights, and data protection and privacy;

9.9

Defame, harass, abuse, threaten or defraud Users of the Gild Service, or collect, or attempt to collect, personal information about Users or third parties without their consent, or use the content on the Gild Service for any commercial use, it being understood that the content available on the Gild Service is for personal, non-commercial use only, other than as contemplated expressly on the Gild Service;

9.10

Use the Gild Service if you are under the age of eighteen (18) years old;

9.11

Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Gild Service or Uploader Submissions, features that prevent or restrict use or copying of any content accessible through the Gild Service, or features that enforce limitations on the use of the Gild Service or Uploader Submissions;

9.12

Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Gild Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

9.13

Modify, adapt, translate or create derivative works based upon the Gild Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

9.14

Intentionally interfere with or damage operation of the Gild Service or any user’s enjoyment of the Gild Service, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;

9.15

Take any action that may undermine our Assessments or assessment system (such as displaying, importing or exporting information off the Gild Service, using information on the Gild Service for purposes unrelated to the Gild Service, or improperly manipulating or using the Assessments or assessment system);

9.16

Take any action that imposes or may impose (in Gild’s sole discretion) an unreasonable or disproportionately large load on Gild’s infrastructure;

9.17

Interfere or attempt to interfere with the proper workings of the Gild Service or any activities conducted on the Gild Service; or

9.18

Bypass robot exclusion headers or other measures Gild may use to prevent unauthorized access to the Gild Service.

9.19

Use bots or other automated methods to access the Gild Service, download contacts or any other information, send or redirect messages or perform any other activities through the Gild Service.

9.20

Use manual methods or automated software, devices, scripts, robots, or any other means or processes to access, “scrape”, “crawl”, or “spider” any web pages or other services that are part of the Gild Service.

10. Account

When you use the Gild Service or any products, services, or information from Gild, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to Gild on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If at any time you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you agree to immediately notify Gild. You may be liable for the losses incurred by Gild or others due to any unauthorized use of your Gild Service account.

11. Third-Party Sites, Products and Services; Links.

The Gild Service may include links or references to other web sites or services (“Third Party Sites”) solely as a convenience to Users. Gild does not endorse any such Third Party Sites or the information, materials, products, or services contained on or accessible through Third Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Gild Service are solely between you and such advertiser. Access and use of Third Party Sites, including the information, materials, products, and services on or available through Third Party Sites are solely at your own risk.

12. Termination; Terms of Service Violations.

12.1 GILD.

You agree that Gild, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) you may have with Gild or your use of the Gild Service and remove and discard all or any part of your account, User profile, and any Uploader Submission, at any time. Gild may also in its sole discretion and at any time discontinue providing access to the Gild Service, or any part thereof, with or without notice. You agree that any termination of your access to the Gild Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Gild will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Gild may have at law or in equity. As discussed herein, Gild does not permit copyright infringing activities on the Gild Service, and shall be permitted to terminate access to the Gild Service, and remove all Uploader Submissions or other content submitted by any Users who are found to be repeat infringers.

12.2 YOU.

Your only remedy with respect to any dissatisfaction with (i) the Gild Service, (ii) any term of this Terms of Service, (iii) any policy or practice of Gild in operating the Gild Service, or (iv) any content or information transmitted through the Gild Service, is to terminate your account and your use of the Gild Service. You may terminate your use of the Gild Service and your account at any time. After such termination, you must refrain from use of the Gild Service until authorized by Gild.

13. Ownership; Proprietary Rights.

The Gild Service is owned and operated by Gild, Inc. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Gild Service provided by Gild (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Uploader Submissions that are provided and owned by Users, all Materials contained on the Gild Service are the property of Gild or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Gild or its affiliates and/or third-party licensors. Except as expressly authorized by Gild, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Gild reserves all rights not expressly granted in these Terms.

14. Indemnification.

You agree to indemnify, save, and hold Gild, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Gild Service, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. Gild reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Gild, and you agree to cooperate with Gild’s defense of these claims. Gild will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

15. Disclaimers; No Warranties.

15.1 NO WARRANTIES.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GILD AND ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “GILD PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE GILD PARTIES OR THROUGH THE GILD SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

15.2 “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS”.

YOU EXPRESSLY AGREE THAT THE USE OF THE GILD SERVICE IS AT YOUR SOLE RISK. THE GILD SERVICE AND ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, UPLOADER SUBMISSIONS, THIRD PARTY SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE GILD SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

15.3 PLATFORM OPERATION AND CONTENT.

THE GILD PARTIES DO NOT WARRANT THAT THE DATA, ASSESSMENTS, RESULTS, UPLOADER SUBMISSIONS, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE GILD SERVICE OR ANY THIRD PARTY SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

15.4 ACCURACY.

THE GILD PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE GILD SERVICE OR ANY THIRD PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

15.5 HARM TO YOUR COMPUTER.

YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, ASSESSMENTS, RESULTS OR DATA THROUGH THE GILD SERVICE OR ANY THIRD PARTY SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

16. Limitation of Liability and Damages.

16.1 LIMITATION OF LIABILITY.

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL THE GILD PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS, ASSESSMENTS, RESULTS OR UPLOADER SUBMISSIONS ON THE GILD SERVICE OR ANY THIRD PARTY SITES, OR ANY OTHER INTERACTIONS WITH GILD, EVEN IF GILD OR A GILD AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, GILD’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

16.2 LIMITATION OF DAMAGES.

IN NO EVENT WILL THE GILD PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE GILD SERVICE OR YOUR INTERACTION WITH OTHER GILD SERVICE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO GILD DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.

16.3 RELEASE FOR DISPUTES BETWEEN USERS.

If you have a dispute with one or more Users, you release Gild (and Gild’s officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

16.4 THIRD PARTY SITES.

THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN GILD AND RECEIVED THROUGH OR ADVERTISED ON THE GILD SERVICE OR RECEIVED THROUGH ANY THIRD PARTY SITES.

16.5 BASIS OF THE BARGAIN.

YOU ACKNOWLEDGE AND AGREE THAT GILD HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND GILD, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND GILD. GILD WOULD NOT BE ABLE TO PROVIDE THE GILD SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

16.6 LIMITATIONS BY APPLICABLE LAW.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.

17. United States Export Controls.

You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under this Terms of Service are contingent on your compliance with this provision.

18. Miscellaneous.

18.1 NOTICE.

Gild may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on the Gild Service. Notice will be deemed given twenty-four hours after email is sent, unless Gild is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Gild Service. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Gild Service is deemed given 30 days following the initial posting.

18.2 WAIVER.

The failure of Gild to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Gild.

18.3 DISPUTE RESOLUTION.

If a dispute arises between you and Gild, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Gild agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, Gild strongly encourages you to first contact Gild directly to seek a resolution. Gild will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.

a) Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Gild must be resolved by a court located in Santa Clara County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.

b) Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

c) Improperly Filed Claims. All claims you bring against Gild must be resolved in accordance with this Section 18.3 (Dispute Resolution). All claims filed or brought contrary to this Section 18.3 (Dispute Resolution) shall be considered improperly filed. Should you file a claim contrary to this Section 18.3 (Dispute Resolution), Gild may recover attorneys’ fees and costs up to $1000, provided that Gild has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

 

18.4 SEVERABILITY.

If any provision of these Terms (including any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

18.5 ASSIGNMENT.

These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Gild without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.

18.6 SURVIVAL.

Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2, 3, 4, 5, and 7-18.

18.7 HEADINGS.

The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

18.8 ENTIRE AGREEMENT.

This is the entire agreement between you and Gild relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Policies made by Gild as set forth in section 4 above.

18.9 NO AGENCY.

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

18.10 DISCLOSURES.

The services are offered by Gild, Inc., located at: Gild, 660 Third Street, San Francisco, CA 94107 and email: support@gild.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.