a) Welcome to Gooten (“Gooten” or “we” and its derivatives), a service provided by Breakout Commerce, Inc., a Delaware corporation, with a principal place of business at 228 Park Avenue South New York, NY 10003. Gooten makes available a multi-component SaaS platform at our website located at https://www.gooten.com/ (the “site”) and provides related services (the platform, services and site, collectively, the “Services”) that facilitate on-demand production and fulfillment of products such as prints, wall décor, photo gifts, printed apparel, and other branded and/or personalized merchandise that incorporate user-provided text, graphics, or imagery (collectively, “Products”). As used herein, “you” and “user” are used interchangeably and refer to any individual that visits the site or uses the Services and/or the entity named as the account holder on the site. If you are entering into these Terms on behalf of an entity, you represent and warrant that you have the authority to bind such company to these Terms.
c) Your use of certain Services may be subject to additional terms (“Supplemental Terms”) which will either be listed in these Terms as they may be revised or be presented for acceptance when you sign up to use the supplemental Service. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to such Service. Any applicable Supplemental Terms are included within the definition of “Terms” as used herein.
d) These Terms do not apply to the practices of third parties that we do not own or control, including any third party websites, services and applications (“Third Party Services”) that you may access through the Services. We are not responsible for the content or practices of Third Party Services and provide links to Third Party Services only for the convenience of our users. We encourage you to carefully review the terms of service of all Third Party Services you access through the site or services.
e) SECTION 15 OF THESE TERMS REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IF THERE IS A DISPUTE ABOUT THE SERVICES OR THESE TERMS.
f) WE MAY CHANGE THESE TERMS AT ANY TIME. When we do so, we will make a new copy of the Terms available at this page and any new Supplemental Terms will be made available from within, or through, the affected service on the site. We will also update the “Last Revised” date above. If we make any material changes, and you have an Account (as defined in Section 4(a) below) with us, we will also send an e-mail to you at the e-mail address currently associated with your Account. Any changes to the Terms will be effective immediately for new users and thirty (30) days after posting notice of such changes on the site for existing users, provided that changes regarding how Orders are processed will be effective immediately for any new Order placed after we post the updated Terms (but will not affect any Orders in process as of the date such updated Terms are posted)
g) If you have any questions or comments about these Terms, please contact us at email@example.com.
2. AGE REQUIREMENT
a) IN ORDER TO USE THE SERVICES, YOU MUST BE 18 OR OLDER (or the age of majority in the jurisdiction from which you are accessing the Services), OR BE 13 OR OLDER AND HAVE YOUR PARENT OR GUARDIAN’S CONSENT. If you are a parent or guardian agreeing to these Terms for an individual between 13 and 18 years old, you are fully responsible for his or her use of the Services, and any legal liability that he or she may incur. The Services are not intended for anyone under age 13. If you are under age 13 you may not use the Services. By accessing or using the Services, you represent and warrant that you have the legal right to do so, meet the requirements set forth in this provision, have the power to enter into a binding contract with us, and have not previously been barred from using the Services.
Gooten uses the Services to process user orders for Products (“Orders”), accept images for the purpose of providing Products, process user payments, aggregate user Orders, and transfer them to a network of unaffiliated, third party manufacturers (each, a “Vendor”) for production and fulfillment. Gooten does not manufacture Products, and once an Order is accepted by a Vendor, the Vendor is responsible for Order fulfillment. Subject to these Terms, Gooten will make the Services available to you. In addition to the Product manufacturing performed by Vendors, Gooten does and may engage third parties to provide elements of the Services (“Third Party Service Providers”) at its sole discretion, provided that we remain responsible for the compliance of Third Party Service Providers with these Terms to the same extent as if we had performed those functions ourself.
i. Users submit all Orders to Gooten via the Services, and all requested Order information must be provided for the Services to accept an Order. You are responsible for the accuracy of all Order information you submit. Gooten is not responsible for delays in processing or fulfilling Orders caused by incomplete or incorrect Order information.
ii. Gooten will not accept Orders without valid payment information or receipt of payment from you as otherwise set forth herein. Orders are not cancellable or refundable (except as set forth below) once accepted by the Vendor for production (indicated as “InProduction” by the Services).
iii. You are responsible for ensuring that the quality of each image submitted meets the requirements provided in the documentation for the Services provided on the site. Gooten will not be responsible for the print quality of Products produced using images that do not meet these requirements, and such Products will not be eligible for replacement subject to Section 3(d).
Gooten does not manufacture Products. All Product production is performed by independent Vendors who (i) have agreed to accept and fulfill orders from the Services, (ii) we regularly review to ensure that their performance meets user expectations, and (iii) guarantee to make Products at the prices displayed when the Order is placed. We work with Vendors to ensure that Orders are processed, produced and shipped as quickly as possible, and estimated timing for most Orders is provided by the Services when the Order is placed, but these are estimates only, and Gooten makes no guarantees respecting Vendor performance. Note that Orders placed in November and December often take longer than the provided estimates to produce due to seasonal demand. While we constantly review Vendors and work with them to ensure that they meet user expectations, all Vendors are independent contractors, and we are not responsible for their performance.
Gooten will work with you to address any issues related to Products, but will only be responsible for returns or refusal of Products if such Products (A) do not conform to the Product specifications published in the Services when ordered, or (B) have clear manufacturing defects not caused by incorrect submission of the image to the Services (i.e., missing pages in a calendar). In such instances, Gooten will use commercially reasonable efforts to work with the Vendor to promptly reproduce the affected Product. You must inform Gooten of the issue within three (3) days of delivery of the allegedly defective Product and provide reasonable evidence of the defect.
Gooten is not responsible for Products that are lost, damaged, or delayed in transit. Gooten will work with you to address problems with shipping suppliers. For certain Orders, insured shipping options may be available upon checkout.
4. ACCOUNTS AND SECURITY
b) In order to keep your Account secure, you agree not to share your password or log-in credentials with any other person who is not authorized to use your Account. Your password and/or log-in credentials protect your Account, and you are solely responsible for keeping such information confidential and secure. You understand that you are responsible for any use of your username and password on the Services. We cannot and will not be liable for any loss or damage arising from your failure to safeguard your password. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your Account by third parties, please notify us immediately and change your password as soon as possible.
c) You may close your Account at any time by going to the “My Account” or equivalent page in the Services. Any open Orders will not be affected and you will remain responsible for all your obligations under these Terms with respect to such Orders until they are completed.
d) Data Protection Addendum: To the extent that Gooten processes any Personal Information (as defined in the DPA) contained in User Content that is subject to the GDPR (as defined in the DPA), on your behalf, in the provision of the Service, the terms of the data processing addendum at https://help.gooten.com/knowledge/signing-a-data-protection-agreement-dpa- (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your agreeing to these Terms of Service shall be treated as signing of the DPA, including, without limitation, the Standard Contractual Clauses and their Appendices.
6. INTELLECTUAL PROPERTY RIGHTS
a) Limited Grant and Restrictions
Gooten grants you a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable and revocable license to access and use the Services, subject to these Terms. You may not (i) copy, reproduce, record, or make available to the third parties any part of the Services or content delivered to you via the Services (other than your own User Generated Content as defined below) except as explicitly contemplated or allowed via the Services, (ii) use the Services to import or copy any local files you do not have the legal right to import or copy, (iii) reverse-engineer, decompile, disassemble, modify or create derivative works based on the Services or any part thereof (other than your own User Generated Content), (iv) circumvent any technology used by Gooten, its licensors, or any third party to protect content accessible through the Services, (v) use any manual or automated means to “scrape” or download data from the site (except that public search engines may do so to create publicly available searchable indices, but may not cache or archive any information from the site); (vi) rent or lease any part of the Services to third parties, (vii) circumvent any territorial restriction of the Services, (viii) manipulate the Services by using a script or other automated process, (ix) remove or alter any copyright, trademark or other intellectual property notices contained on or provided through the Services, or (x) provide your password to any other party or use any other party’s user name and password.
b) Reservation of Other Rights
You acknowledge and agree that (excluding your User Generated Content) Gooten retains all right, title and interest in and to all data, information, content and materials provided on or through the Services (including the selection and arrangement of elements displayed on or through the Services, the compilation of all content and materials on the Services, and the business process, procedures, methods and techniques used in the Services) and all associated patents, copyrights, trademarks, and other intellectual property and proprietary rights recognized anywhere in the world. Gooten™, and the Gooten logo are the sole and exclusive trademarks of Gooten, and, all other proprietary trademarks, service marks, trade names, slogans, logos, and other indicia of origin that appear on or in connection with the Services are the sole and exclusive property of Gooten or its licensors. You may not use Gooten’s intellectual property, including its trademarks, without our prior written consent. All rights not granted herein are expressly reserved.
a) Fees for the Services are included in the amount paid when placing an Order for a Product via the Services (the “Order Price”).
i. Where Gooten processes individual Orders through Gooten’s payment platform (which may be administered by a Third Party Service Provider), Gooten will charge users directly for the Order Price of each Product.
ii. You may place occasional direct Orders (i.e., for in-stock inventory, trade shows, or any other situation where you will not be ordering individual Products through the Services) by contacting Gooten Customer Service and requesting a manual order form. Once payment in full has been received, Gooten will submit the order to a Vendor for production.
b) On Account Ordering
i. If you meet Gooten’s credit requirements (at Gooten’s sole discretion), which may require a personal guarantee of payment from an individual associated with the entity entering into the Terms, you may place orders with Gooten for immediate processing and submission to Vendors (“On-Account Orders”). If you are interested in On-Account Ordering privileges, please email us at firstname.lastname@example.org.
ii. Gooten will issue bi-monthly invoices for On-Account Orders, detailing the Orders accepted for production in the period since the last invoice was issued, and such invoices will be due in full ten (10) days after receipt. The Invoices will include the shipping charges and any other required fees (I.e., customs, VAT) related to the On-Account Orders included in such invoice. In addition to any applicable late fees as set forth in Section 7(d), Gooten may, without further notice to you, suspend your access to the Services if payment for any invoice for On-Account Orders is not received by five (5) days following the due date.
c) Other Charges
Shipping charges (and any customs or related fees) plus VAT or any applicable sales taxes related to an Order are added to each Order when invoiced, and are the responsibility of the user. The full amount of all such charges for an Order must be received by Gooten prior to accepting the Order for production (except for On-Account Orders).
d) Late Payment
Gooten may charge interest of 1.5% per month (or the greatest amount allowable by law, if less), calculated daily, for any invoiced amounts not received when due.
8. CONTENT YOU PROVIDE
a) You acknowledge and agree that you are responsible for all text, images, photographs, or other materials provided or uploaded by you to the Services (“User Generated Content”), whether publicly posted or privately transmitted, on or through the Services. You, and not Gooten, are solely responsible for all User Generated Content that is associated with your Account. For each piece of User Generated Content that you submit, you represent and warrant that: (i) you have the right to submit the User Generated Content to us and grant the licenses set forth in this Section 8; (ii) Gooten will not need to obtain licenses from any third party or pay royalties to any third party to use such User Generated Content; (iii) the User Generated Content does not infringe, violate or misappropriate any third party’s rights, including any copyrights, trademarks or other intellectual property rights and privacy rights; and (iv) the User Generated Content complies with these Terms and all applicable laws.
b) While Gooten does not review User Generated Content as a matter of course, we may determine, in our sole discretion, that certain User Generated Content violates these Terms, and in such case, we may terminate the Order(s) incorporating such content and delete such content. Gooten does not actively monitor or control any User Generated Content on the Services and, as such, does not guarantee the accuracy, reliability or quality of such content. You understand that by using the Services, you may be exposed to content that you may consider offensive, indecent or objectionable. Under no circumstances will Gooten be liable for any User Generated Content posted by any other user of the Services, including any loss or damage of any kind incurred as a result of the use of any User Generated Content. You agree that Gooten may, in its sole discretion, refuse to post, store or transmit any User Generated Content.
c) You acknowledge and agree that Gooten may access, preserve and disclose Account information and/or User Generated Content that you provide if Gooten is required to do so by applicable law or if we believe in good faith that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce these Terms, (iii) respond to claims that any User Generated Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Gooten, our employees, directors or officers, partners and agents, or members of the public.
d) By posting, displaying, sharing or distributing the User Generated Content on or through the Services, you grant Gooten, its affiliates, and any Third Party Service Providers a nonexclusive license to use the User Generated Content solely for the purpose of operating the Services. Gooten will not modify, copy, translate or make any derivative works of User Generated Content except as required to deliver the benefits of the Services. Gooten acknowledges that it is acquiring no rights in the User Generated Content except for the limited rights set forth herein.
e) Any feedback, comments, or suggestions you may provide regarding us or the Services (“Feedback”) is entirely voluntary and we will be free to use such Feedback as we see fit and without any obligation to you.
9. PROHIBITED USES OF THE SERVICES
a) You will comply with all applicable laws, statutes, ordinances and regulations in your use of the Services. Gooten may immediately terminate or suspend access to your Account, in its sole discretion and without notice, for conduct that Gooten reasonably believes is: (i) illegal, fraudulent, harassing or abusive, (ii) a violation of these Terms, or (iii) harmful to other users, third parties, or Gooten’s business.
b) Use of your Account for illegal, fraudulent or abusive purposes may be referred to law enforcement authorities without notice. In addition, Gooten may terminate your Account if you file any claim against Gooten, or any claim that in any way involves Gooten. All images processed through the Services are subject to all copyright, child pornography, child abuse and other applicable laws. Vendors may, in their sole discretion, reject an image or item for processing they deem to be objectionable. Such decisions will be deemed as final and are not subject to arbitration or other intervention by Gooten.
c) In addition to the limitations set forth in Section 6(a) with respect to the license to the Services granted to you by these Terms, You agree not to engage in any activity on the Services or upload User Generated Content, including registering and/or using a username, which is or includes material that: (i) is offensive, abusive, defamatory, pornographic or obscene, (ii) is illegal or promotes an illegal act of any kind, including violations of intellectual property rights, privacy or proprietary rights of Gooten or a third party, (iii) includes Personal Data of third parties or is intended to solicit such Personal Data, (iv) includes malicious content such as malware, Trojan horses or viruses, or otherwise interferes with the proper functioning of the Services or with any user’s access to the Services, (v) is intended to or does harass or bully any person, (vi) impersonates or misrepresents your identity or your affiliation with another user, person or entity, or is otherwise fraudulent, false, deceptive, or misleading (in which case, Gooten may at any time and in its sole discretion reclaim your username), (vii) uses automated means to artificially promote content, (viii) involves the transmission of unsolicited mass mailing (“spam”), junk mail, chain letters, or similar communications, (ix) involves commercial or sales activities such as advertising, contests, sweepstakes, or pyramid schemes, (x) interferes with or disrupts the Services, tampers with or attempts to prove, scan, or test for vulnerabilities in the Services or Gooten’s computer systems or network, or breaches any of Gooten’s security, encryption or authentication measures, (xi) harms or exploits people under the age of 18, or (xii) conflicts with these Terms, in each case as determined by Gooten.
10. GOOTEN VERY IMPORTANT MERCHANT PROGRAM TERMS
a) Partnership. The Gooten Very Important Merchant Program (the “Program”) is offered by us to eligible merchants who are conferred a status in the Program as outlined in these VIM Program Terms (“Partners,” “you,” or “your”). To receive Level Benefits (as defined below), you must (a) have a registered account as a Partner in good standing on the Gooten Platform, and (b) spend the required minimum amount with Gooten in each Eligibility Period as set forth on https://www.gooten.com/merchants/vim. Your membership is non-transferable and you may only have one (1) membership at a time, which will be tied to the entity named as the registrant in your Gooten account.
b) Qualifying Orders and Spend. Subject to the exclusions, terms, and conditions listed in this Section 2 and Section 3, once eligible for the Program, you will earn Level Benefits based on the U.S. dollar amount that are paid to Gooten for orders placed by you or under your account on a calendar year basis as set forth on https://www.gooten.com/merchants/vim during January through December of each calendar year (“Eligibility Period”), excluding tax, discounts, shipping and transportation fees, purchases made with a reward or Level Benefit, or other promotional credit or forms of Gooten-provided compensation (“Qualifying Spend”). Qualifying Spend is subject to change at any time.
All purchases made through your account will be treated as activity of the Partner, regardless of any other name listed on the order (e.g. different name on the method of payment, delivery recipient, etc.).
Your Qualifying Spend is non-transferable and cannot be combined with the Qualifying Spend of other partners.
Purchases made prior to July 1, 2020 will not be counted as Qualifying Spend.
The calculation of Qualifying Spend is also subject to the terms and conditions set forth in Section 6.
c) Partnership Levels. There are four levels of Partnership – Insider, Plus, Pro and Elite (“Level Status”).
Refer to most up to date level status qualification and benefit information on https://www.gooten.com/merchants/vim and FAQs available here https://gooten.zendesk.com/hc/en-us/articles/360048165912-VIM-FAQ.
You will increase your Level Status based on the Qualifying Spend you have made within the most recent qualifying period during the Eligibility Period. Once you achieve a Level Status, your level status will not decrease until the end of the calendar year in which you earned your status. For those receiving a Level Status in 2020, you will maintain that minimum Level Status through December 31, 2021. You may still increase your Level Status at any time during the course of the Eligibility Period by increasing your Qualifying Spend, and the new Level Status will be valid until the end of the following calendar year. On the day after your most recent Level Status achievement expires, your Level Status will be recalculated based on your Qualifying Spend within the preceding Eligibility Period.
We will notify you by e-mail or within your Gooten account when your Level Status changes or you are selected for a new Level Status.
d) Partnership Benefits. Each Level Status includes certain benefits as set forth here (“Level Benefits”), which may be changed by Gooten at any time in its sole discretion.
e) Additional Terms. Gooten reserves the right to restrict the use of Level Benefits in combination with other discounts and promotions.
Qualifying Spend, Level Status, and Level Benefits are automatically tracked and allocated to each Partner’s account by Gooten or our service providers and our decisions and records regarding such calculations and benefits will be final and binding in all respects. Qualifying Spend, Level Status, and Level Benefits are subject to verification. Any Qualifying Spend, Level Status, and Level Benefit that cannot be verified to the satisfaction of Gooten is subject to adjustment, cancellation, or disqualification at our sole discretion.
Gooten will not be liable for the failure of any Qualifying Spend, Level Status, or Level Benefits to be accurately credited or awarded for any reason, including, but not limited to, (i) any failure of the Gooten Platform or services; (ii) any technical malfunction or other problems relating to any network, computer system, servers, access providers, computer equipment or software; and/or (iii) any combination of the foregoing. Gooten does not issue retroactive Qualifying Spend for any reason.
Level Benefits are promotional in nature and have no cash value and are not exchangeable for cash or any cash equivalent under any circumstances. Level Benefits have no value outside of this Program.
Level Benefits cannot be assigned, exchanged, sold, traded, bartered, purchased, given by gift or otherwise transferred. Any Level Benefits so acquired are void. The accumulation of any Level Benefits does not entitle the Partner to any vested rights, and Gooten does not guarantee in any way the continued availability of any Level Status or Level Benefit.
Gooten’s computer clock is the official timekeeping device for expirations.
Please allow up to three (3) business days for Qualifying Spend, Level Status, and Level Benefits to update in your account. If more than three (3) business days have passed, please contact the Gooten Partner Support team.
Gooten reserves the right, in our sole and absolute discretion, to (i) suspend or terminate a Partner’s account at any time for any reason or (ii) invalidate any Qualifying Spend, Level Status, and Level Benefit we deem to have been awarded in error, or as the result of the use of an account to make orders by or on behalf of a third party aggregator, group, organization, or business entity or any actual or suspected fraudulent or dishonest activity (including without limitation, the use of any system, macro, script, or bot to manipulate the Program). Reasons for account suspension or termination or benefit invalidation may include, without limitation, disorderly personal conduct at a Gooten event which actually or potentially harms Gooten, its affiliates and subsidiaries, and its and their directors, officers, employees, or any third party, violations of law, or any other activity not in keeping with the letter and/or spirit of these VIM Program Terms, as interpreted by us in our sole and absolute discretion. If your account has been suspended or terminated, you forfeit any accumulated Qualifying Spend, Level Status, and Level Benefits and are prohibited from registering for a new account without the prior written permission of Gooten.
Gooten is not liable for Level Benefits sent to suspended or terminated accounts.
f) E-mail Communications. By participating in the Program, you agree to receive e-mail communications from Gooten regarding the Program, including without limitation, communications regarding your Qualifying Spend, and Level Status; incentives; promotions and events; new products; and commercial messages which may be of interest to you. To unsubscribe from Gooten’s commercial e-mail list, use the unsubscribe link in any commercial e-mail message you receive. If you request to unsubscribe, you may still receive administrative e-mails from time to time regarding your account and updates to these VIM Program Terms.
g) Program Termination/Modification. Gooten may terminate the Program at any time, with or without notice, which may result in loss of accumulated Qualifying Spend and the cancellation of all benefits and privileges associated with the Level Status or Program. Gooten reserves the right to modify any of the rules, terms, conditions, and benefits of the Program at its sole discretion, with or without notice. Interpretation of these VIM Program Terms shall be at the sole discretion of Gooten, whose decision will be final.
h) Change to Your Account Information. You must advise Gooten of any change in your name or the address, phone number and/or email address associated with your account. Name, address, email and phone number changes can be made within your Gooten account or by contacting Partner Support. Gooten is not liable for Level Benefits sent to outdated contact information.
i) Miscellaneous. Any disputes related to these VIM Program Terms and the subject matter herein will be resolved pursuant to the arbitration agreement set forth in the Terms. If any provision of these VIM Program Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of these VIM Program Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You may not assign or transfer these VIM Program Terms, or its rights or obligations herein, in whole or in part without the written consent of Gooten. In the event of a conflict between a provision in these VIM Program Terms and a provision in the remainder of the Terms, such other terms shall govern to the extent of the conflict.
11. DISCLAIMER OF WARRANTIES
a) YOUR ACCESS TO AND USE OF THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU ACCESS AND USE THE SERVICES AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, GOOTEN DISCLAIMS ANY EXPRESS AND IMPLIED WARRANTIES REGARDING THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO WARRANTY WITH RESPECT TO THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICES OR ANY CONTENT THEREON.
b) Because we do not control the security of the Internet or other networks you use to access the Services or communicate with us, we are not responsible for the security of User Generated Content and other information that you choose to communicate with us and the Services while such information is being transmitted. In addition, we are not responsible for any User Generated Content or other data lost during transmission.
c) In addition, Gooten does not warrant, endorse, guarantee or assume responsibility for any third party application, third party application content, User Generated Content, or any other product or service advertised or offered by a third party on or through the Services, a Third Party Service Provider, or any Third Party Services, or featured in any banner or other advertising.
12. LIMITATION OF LIABILITY
a) TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL GOOTEN, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE WITH RESPECT TO THE SERVICES, GOOTEN’S FAILURE TO PROVIDE SERVICES, YOUR USE OF THE SERVICES, OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY GOOTEN OR ANY OTHER SUBJECT MATTER OF THESE TERMS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY, FOR (I) ANY LOST OR CORRUPTED DATA, LOST PROFITS, OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE, OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE AGGREGATE LIABILITY OF GOOTEN, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LIMITATION OF LIABILITY, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY IN FULL TO YOU.
a) You agree that Gooten, in its sole discretion and without notice or liability to you, may terminate or suspend your use of, or access to, the Services at any time if Gooten believes in good faith that you have violated or acted inconsistently with any provision of these Terms or any applicable law, rule or regulation. In addition, Gooten may in its sole discretion, and at any time, discontinue providing the Services, or any part thereof, to all users, with or without notice to you. You may close your Account at any time as set forth in Section 4, provided that your obligations with respect to any open Orders at the time you close your Account will remain in effect until the Order is completed and payment is received, and subject to the survival provisions of this Section 12. In the event of a termination pursuant to this Section 12, (x) any Orders that have already been accepted by a Vendor will be completed and (y), for On-Account Orders (if applicable) (1) Gooten will produce a final invoice for On-Account Orders accepted but not invoiced as of the date of termination, and (2) you will pay for any On-Account Orders that have not been paid for prior to the date of termination within ten (10) days of the effective date of termination. Any provision of these Terms which, by its nature, is intended to survive termination will do so, including Sections 6, 10, 11, 12, 13, 14, 15, and 16.
a) You agree to defend, indemnify and hold Gooten, its affiliates, and their officers, directors, employees or agents, harmless from and against any claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs, and expenses (including reasonable attorneys’ fees and costs) that are attributable to your actions or fault and arise out of (i) your access, use or misuse of any of the Services, (ii) your breach or alleged breach of these Terms, (iii) your violation of any law, rule, regulation or rights of others in connection with your use of any of the Services, including infringement of anyone else’s intellectual property rights, (iv) your User Generated Content, or (v) your use or disclosure of another person’s Personal Data. We may assume the exclusive defense and control of any matter for which you are required to indemnify us if you fail to promptly do so, and you agree to cooperate with our defense of these claims.
15. COPYRIGHT INFRINGEMENT
a) Gooten respects the intellectual property rights of others and we ask our users to do the same. If you are a copyright owner and believe a user of the Services is infringing your copyright or the copyright of any third party, please notify our designated copyright agent in writing at the following address: Attn: Brian Rainey c/o Breakout Commerce, Inc. d/b/a Gooten, 142 W 57th St, Floor 10, New York, NY 10019, or via email to email@example.com.
b) Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works, (iii) identification of the material that is claimed to be 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 Gooten to locate the material, (iv) information reasonably sufficient to permit Gooten to contact you, such as an address, telephone number, and, email address, (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
c) We may remove User Generated Content and other content on the Services alleged to be infringing and to terminate the right to use the Services by any user who infringes the intellectual property rights of another person or entity, in each case without prior notice and at our sole discretion.
16. JURISDICTION, GOVERNING LAW AND DISPUTE RESOLUTION
a) These Terms, for all purposes, will be governed and interpreted according to the laws of the State of New York, without giving effect to its conflicts of laws provisions that would require a different result.
b) Any dispute that may not be brought in small claims court will be resolved by binding and confidential arbitration conducted in the English language, in New York, New York before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes and governed by the AAA’s Commercial Arbitration Rules (the “Rules and Procedures”).
i. YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY FOR ANY DIPUTE ARISING UNDER THESE TERMS EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE AS ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
ii. ANY CLAIMS BROUGHT BY EITHER PARTY MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF.
iii. The arbitration award will be final and binding upon the parties without appeal or review except as permitted by State of New York law or United States federal law. Each party will bear its own costs with respect to the arbitration procedure.
iv. Notwithstanding the foregoing, (i) either party may bring an individual action in small claims court, and (ii) claims of (A) defamation, (B) violation of the Computer Fraud and Abuse Act, or (C) infringement or misappropriation of the other party’s intellectual property rights, may be exclusively brought in the state or federal courts located in New York County, New York. The parties agree to submit to the exclusive personal jurisdiction of such courts for such purpose. A request for equitable relief will not be deemed a waiver of the right to arbitrate.
c) With the exception of Section 15(b)(i), if any part of Section 15(b) is deemed to be invalid or unenforceable for any reason then the balance of Section 15(b) will remain in effect. If, however, Section 15(b) is found to be invalid or unenforceable for any reason, or we receive a valid opt-out notice from you pursuant to Section 15(b)(iii), then Section 15(b) will be null and void, neither party will be entitled to arbitration, and any claims relating to the Terms or Services will be exclusively brought in a state or federal court located in New York County, New York.
a) Electronic Communications and Notice
You consent to receive operational communications from us electronically, including via email, text (if you have provided your cell phone number in connection with the Services) or our posting of notices on the site. You may cancel Services as set forth in Section 4(c). Communications intended to have legal effect should be sent to Breakout Commerce, Inc. d/b/a Gooten, 228 Park Avenue South New York, NY 10003, attn.: Legal by personal delivery, certified mail (postage pre-paid, return receipt requested), or a commercial courier requiring signature for delivery, and will be effective on receipt or when delivery is refused.
b) Consumer Complaints
In accordance with California Civil Code §1789.3, if you are a California resident you may report complaints related to the Services to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Our failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
d) Headings and Construction
The headings used throughout these Terms are solely for reference and are not to be used as an aid in the interpretation of the Terms. As used herein, “may” means “has the right, but not the obligation to,” “including” means “including, without limitation,” and “will” means “is required to.”
Should any provision of these Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or unenforceability will not in any manner affect or render invalid or unenforceable the remaining provisions of these Terms, and the application of that provision will be enforced to the extent permitted by law.
f) Force Majeure
Gooten will not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our control, including, without limitation, acts of god or nature or mechanical, electronic or communications failure or degradation.
You may not assign or transfer your rights or delegate any duties under these Terms. We may assign or transfer these Terms without limitation in the event of a merger, acquisition, corporate reorganization, or sale of all or substantially all of Gooten’s assets. Any purported assignment or transfer in violation of this Section will be void. Subject to the foregoing restrictions, these Terms will bind and benefit the parties and their successors and permitted assigns.
© 2021 Breakout Commerce, Inc. d/b/a Gooten.