BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS PLATFORM END USER LICENSE AGREEMENT (THE “AGREEMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT WILL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE PLATFORM.
“You” and “your” refers to the individual or entity that desires to access and use the software as a service from Gutter Gnome’s (“Gutter Gnome”) software and platform (“Platform”). The term “program documentation” refers to the program user manual as well as any other materials provided or made available by Gutter Gnome as part of the Platform. The term “ Gutter Gnome programs” refers to the software products owned or distributed by Gutter Gnome to which Gutter Gnome grants you access as part of the Platform, including program documentation, and any program updates provided as part of the Platform. The term “users” will mean those individuals authorized by you or on your behalf to use the Platform. The term “your data” refers to the data provided by you that resides on the Platform and expressly excludes any data, including customer data, provided or otherwise made available to you by Gutter Gnome.
2.1 During the Term and subject to the terms and conditions of this Agreement, Gutter Gnome hereby grants you a nonexclusive, non-assignable, royalty free, worldwide limited right to access and use the Platform solely for your internal business operations. You may allow your users to access and use the Platform for this purpose and you are responsible for your users’ compliance with this Agreement.
2.2 You acknowledge that Gutter Gnome has no delivery obligation and will not ship copies of the Gutter Gnome programs to you as part of your use of the Platform. You agree that you do not acquire under this Agreement any license to use the Gutter Gnome programs or the Platform other than as set forth herein. Upon termination of this Agreement, your right to access or use the Platform and any Gutter Gnome programs will terminate.
Gutter Gnome may charge a fee for your access to and use of the Platform, or elements thereof. If Gutter Gnome charges a fee for your access to and use of the Platform, or elements thereof, you hereby agree to pay the fee on the terms set forth by Gutter Gnome or Gutter Gnome may terminate this Agreement and your access to and use of the Platform. This termination may result in the forfeiture and destruction of all of your data, subject to Section 7.3.
4.1 You retain all ownership and intellectual property rights in and to your data. Gutter Gnome or its licensors retain all ownership and intellectual property rights to the Platform and any data, including customer data, that it provides or otherwise makes available to you on the Platform. Gutter Gnome retains all ownership and intellectual property rights to anything developed and delivered under this Agreement.
4.2 Third party technology that may be appropriate or necessary for use with some Gutter Gnome programs is specified in the program documentation or on the Platform, as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by Gutter Gnome and not under this Agreement.
4.3 You may not:
Payment processing services for providers on Gutter Gnome are provided by Stripe and are subject to the Stripe Connected Account Agreement , which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to operate as a provider on Gutter Gnome, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Gutter Gnome enabling payment processing services through Stripe, you agree to provide Gutter Gnome accurate and complete information about you and your business, and you authorize Gutter Gnome to share it and transaction information related to your use of the payment processing services provided by Stripe.
5.1 Gutter Gnome warrants that the Platform will perform in all material respects in accordance with the program documentation. If the Platform in any given month during the Term do not perform as warranted, you must provide written notice to Gutter Gnome no later than five business days after the last day of the applicable month.
5.2 Gutter Gnome DOES NOT GUARANTEE THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT Gutter Gnome WILL CORRECT ALL ERRORS. YOU ACKNOWLEDGE THAT Gutter Gnome DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. Gutter Gnome IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM THESE PROBLEMS.
5.3 Should an element of the Platform become, or be likely to become, in Gutter Gnome’s opinion, the subject of infringement of a third party intellectual property right, Gutter Gnome will (a) procure for you the right to continue using the same, or (b) replace or modify it to make it non-infringing, provided that the replacement or modification performs the same functions and matches or exceeds the performance and functionality of the Platform. In the event that Gutter Gnome reasonably determines that neither (a) nor (b) above is commercially practicable, Gutter Gnome may terminate this Agreement.
5.4 WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, Gutter Gnome DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.1 Each party (“Indemnifying Party”) hereby releases and will defend, hold harmless, the other party and its subsidiaries, affiliates, directors, officers, employees, agents, successors and assigns (collectively “Indemnified Parties”), from any third party allegation or claim and against any loss, damage, settlement, cost, expense and any other liability (including reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) (“collectively “Claims”), to the extent arising from or related to the Indemnifying Party’s breach of its representations or warranties under this Agreement, gross negligence, strict liability or willful misconduct. Indemnifying Party’s duty to defend is independent of its duty to indemnify.
6.2 The Indemnified Party will give the Indemnifying Party prompt written notice of any claim subject to indemnification. The Indemnifying Party will use counsel reasonably satisfactory to the Indemnified Party to defend each Claim, and the Indemnified Party will cooperate (at the Indemnifying Party’s expense) with the Indemnifying Party in the defense. The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement without the Indemnified Party’s prior written consent, which may not be unreasonably withheld. At its discretion and expense, the Indemnified Party may participate in the defense, any appeals, and settlement with counsel of its own choosing. If at any time the Indemnified Party reasonably determines that the Indemnifying Party is not effectively and diligently defending any Claim, the Indemnified Party may take control of the defense of the Claim at the Indemnifying Party’s expense (without limiting the Indemnifying Party’s indemnification obligations).
7.1 This Agreement will commence as of your date of acceptance and will continue until terminated in accordance with termination provisions herein (“Term”).
7.2 Gutter Gnome may terminate your access to and use of all or any part of the Platform at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all of your data. If you wish to terminate your access to and use of the Platform, you may do so by contacting us or through the account settings.
7.3 At your request, and for a period of up to 60 days after the termination of this Agreement, Gutter Gnome may permit you to access the Platform solely to the extent necessary for you to retrieve a file of your data then in the Platform environment. You acknowledge agree that Gutter Gnome has no obligation to retain your data and that your data may be irretrievably deleted after 60 days following termination of this Agreement.
7.4 You agree that you have not relied on the future availability of any Platform, programs or updates in entering into this Agreement.
8.1 By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential Information will be limited to the terms of this Agreement, your data residing in the Platform environment, and all information clearly identified as confidential at the time of disclosure.
8.2 A party’s Confidential Information will not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party without use of or reference to the other party’s Confidential Information.
You agree that Gutter Gnome will communicate with you by email, telephone, push notification, and SMS or text message.
NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. Gutter Gnome’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF (I) THE TOTAL AMOUNTS ACTUALLY PAID TO YOU BY Gutter Gnome IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (II) $100.00.
10.2 You hereby grant to Gutter Gnome a worldwide, nonexclusive, perpetual, royalty-free, paid-up license to use, copy, modify and make derivative works of your data for Gutter Gnome’s internal business purposes.
You agree not to use or permit use of the Platform, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Gutter Gnome under this Agreement, Gutter Gnome reserves the right to terminate your access to and use of the Platform, or remove or disable access to any material that violates the foregoing restrictions. Gutter Gnome will have no liability to you in the event that Gutter Gnome takes such action. You agree to defend and indemnify Gutter Gnome against any claim arising out of a violation of your obligations under this section.
Gutter Gnome may compile statistical information related to the performance of the Platform, and may make such information publicly available, provided that such information does not incorporate your data, identify your Confidential Information, or include your company’s name. Gutter Gnome retains all intellectual property rights in such information.
The Platform may enable you to add links to websites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Gutter Gnome is not responsible for any third party websites or third party content provided on or through the Platform and you bear all risks associated with the access and use of such websites and third party content, products and services.
You agree (a) that Gutter Gnome may identify you as a user of the Platform and use your logo in sales presentations, marketing materials and press releases, and (b) to develop a brief customer profile for use by Gutter Gnome on Gutter Gnome.com for promotional purposes.
15.1 Non-Solicitation. During the Term and for a period of one year thereafter, each party agrees that it will not: (a) directly or indirectly induce any customers or clients of the other party to patronize that party or any similar business; (b) directly or indirectly request or advise any customer or client of the other party to withdraw, curtail, or cancel that customer's or client's business with the other party; or (c) make any statement disparaging the other party, any member, principal, officer, director, shareholder, employee or agent thereof, to any person, firm, corporation or other business organization whatsoever. Nothing herein will prohibit either party from performing services for or providing products to customers or clients who (x) respond to general advertising by a party, (y) voluntarily withdraw or cancel their business with a party, or (z) contact a party directly.
15.2 Relationship of the Parties. The relationship of you and Gutter Gnome established by this Agreement is that of independent parties. Nothing contained in this Agreement in intended, or is to be construed, to constitute the party’s as partners in the legal sense. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
15.3 No Waiver. Neither party waives any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver.
15.4 Assignment and Change of Control. You may not assign any part or all of this Agreement without Gutter Gnome’s prior written consent. Gutter Gnome may assign this Agreement at any time without notice or consent. Any attempt to assign in violation of this Section is void in each instance.
15.5 Governing Law, Venue, and Jurisdiction. This Agreement is governed by Texas law, excluding its conflicts of law rules. Developer irrevocably submits to venue and exclusive personal jurisdiction in the federal and state courts in Travis County, Texas, for any dispute arising out of this Agreement, and waives all objections to jurisdiction and venue of such courts.
15.6 Severability. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.
15.7 Notice. Except as expressly provided herein, all notices, requests, demands, and other communications under this Agreement will be delivered in writing and will be deemed to have been duly given: (i) on the next day if delivered personally to the party, (ii) on the date three days after mailing if mailed by registered or certified mail, or (iii) on the next day if delivered by courier. The parties will send all notices to addresses listed in the preamble above or at another address as may be provided by a party from time to time.
15.8 Survival. The following provisions of this Agreement survive termination or expiration: 1, 4-6, 7.3, 8-10, 12, 14, and 15.
15.9 Entire Agreement. This Agreement constitutes the complete and final agreement of the parties pertaining to the subject matter herein and supersedes the parties’ prior agreements, understandings and discussions relating to subject matter herein. No modification of this Agreement is binding unless it is in writing and signed by both parties.