GearHost Terms of Service

1. Your Agreement with GearHost
   1. Your use of the GearHost service (the "Service") is governed by this agreement (the "Terms"). "GearHost" means GearHost Inc., located at 63 Inverness Dr E, Ste 150, Englewood, CO 80112, and its subsidiaries or affiliates involved in providing the Service.
   2. In order to use the Service, you must first agree to the Terms. You can agree to the Terms by actually using the Service. You understand and agree that GearHost will treat your use of the Service as acceptance of the Terms from that point onwards.
   3. You may not use the Service if you are a person barred from receiving the Service under the laws of the United States or other countries including the country in which you are resident or from which you use the Service. You affirm that you are over the age of 13, as the Service is not intended for children under 13.
2. Your Account and Use of the Service
   1. You must provide accurate and complete registration information any time you register to use the Service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify GearHost immediately.
   2. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software. You agree not to use the Service in the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons.
   3. You agree not to (a) access (or attempt to access) the administrative interface of the Service by any means other than through the interface that is provided by GearHost in connection with the Service, unless you have been specifically allowed to do so in a separate agreement with GearHost, or (b) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).
3. Service Policies and Privacy
   1. You agree to comply with the GearHost Policies included available at http://GearHost.com/page/programpolicy (or such URL as GearHost may provide) (the "Program Policies") which is incorporated herein by this reference and which may be updated from time to time.
   2. The Service shall be subject to the privacy policy for the Service available at http://GearHost.com/page/privacypolicy (or such URL as GearHost may provide), which references and incorporates GearHost's privacy policy available at http://GearHost.com/page/privacypolicy. You agree to the use of your data in accordance with GearHost's privacy policies.
   3. You agree that you will protect the privacy and legal rights of the users of your application. You must provide legally adequate privacy notice and protection for those users. To do so, at a minimum, you must incorporate the privacy terms available at http://GearHost.com/page/privacypolicy into the privacy policy for your application. If the users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to GearHost.
4. Fees for Use of the Service
   1. Subject to the Terms, the Service is provided to you without charge up to certain quotas. These quotas will be known as the "Fee Threshold" and have not been determined yet.
   2. A bill will be issued to your online account for all charges accrued for use of non-free services. You shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Unless agreed to by the parties in writing, you shall pay all charges in accordance with the payment terms in the Service FAQ(coming soon). Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees GearHost incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on GearHost's measurements of your use of the Service, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of GearHost and only in the form of credit for the Service. Nothing in these Terms obligates GearHost to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to GearHost may be shared by GearHost with companies who work on GearHost's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to GearHost and servicing your account. GearHost may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. GearHost shall not be liable for any use or disclosure of such information by such third parties. GearHost reserves the right to discontinue the provision of the Service to you for any late payments.
   3. GearHost may change its fees and payment policies for the Service with thirty (30) days prior notice. However, GearHost may change the Fee Threshold limits at its discretion. Changes to the fees or payment policies will be posted in the Service FAQ or at http://GearHost.com/page/terms (or such other URL GearHost may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
   4. You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Service in a manner intended to avoid incurring fees.
5. Content in the Service and Take Down Obligations
   1. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Service are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content". The term Content shall specifically exclude the web application that you create using the Service and any source code written by you to be used with the Service (collectively, the "Application").
   2. GearHost reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Service. You agree to immediately take down any Content that violates the Program Policies, including pursuant to a take down request from GearHost. In the event that you elect not to comply with a request from GearHost to take down certain Content, GearHost reserves the right to directly take down such Content or to disable the Application.
   3. In the event that you become aware of any violation of the Program Policies by an end user of the Application, you shall immediately terminate such end user's account on your Application. GearHost reserves the right to terminate end user GearHost accounts or disable the Application in response to a violation or suspected violation of the Program Policies.
   4. You agree that you are solely responsible for (and that GearHost has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Service and for the consequences of your actions (including any loss or damage which GearHost may suffer) by doing so.
   5. You agree that GearHost has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Application and any Content.
6. Proprietary Rights
   1. You acknowledge and agree that GearHost (or GearHost's licensors) own all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
   2. Unless you have agreed otherwise in writing with GearHost, nothing in the Terms gives you a right to use any of GearHost's trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
   3. Except as provided in Section 8, GearHost acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or the Application that you create, submit, post, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with GearHost, you agree that you are responsible for protecting and enforcing those rights and that GearHost has no obligation to do so on your behalf.
7. License from GearHost and Restrictions
   1. GearHost gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by GearHost as part of the Service as provided to you by GearHost (referred to as the "GearHost Software" below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by GearHost, in the manner permitted by the Terms.
   2. You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the GearHost App or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by GearHost, in writing (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the Service or any Application; (c) use the Service to create an Application that performs a malicious activity, including but not limited to spamming users, harvesting usernames and passwords, performing unauthorized scans of machines or ports or creating DoS attacks; or (d) upload or otherwise process any malicious content to or through the Service.
   3. Unless GearHost has given you specific written permission to do so (e.g., through an open source software license), you may not assign (or grant a sub-license of) your rights to use the GearHost Software, grant a security interest in or over your rights to use the GearHost Software, or otherwise transfer any part of your rights to use the Software.
   4. Open source software licenses for components of the Service released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with GearHost for the use of the components of the Service released under an open source license.
8. License from You
   1. GearHost claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Service you give GearHost a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling GearHost to provide you with the Service in accordance with its privacy policy. Furthermore, by creating an Application through use of the Service, you give GearHost a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling GearHost to provide you with the Service in accordance with its privacy policy.
   2. You agree that GearHost, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.
9. Add-ons
   1. GearHost may make available through the GearHost Services additional features, functionality, and services offered by its third-party partners (“Add-ons”). Your use of Add-ons is subject to these Terms and to the applicable fees. You acknowledge for each Add-on you subscribe to or purchase through the GearHost Services, these Terms constitute a binding agreement between you and the third party licensor of that Add-on (“the Add-on Provider”) only. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Provider of that Add-on; GearHost is acting as agent for the Add-on Provider in providing each such Add-on to you; GearHost is not a party to the license between you and the Add-on Provider with respect to that Add-on; and GearHost is not responsible for that Add-on, the content therein, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that GearHost, and GearHost’s subsidiaries, are third party beneficiaries of the agreement between you and the Add-on Provider for each Add-on, and that GearHost will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.
   2. By subscribing to or purchasing an Add-on, you grant GearHost permission to share your Application, Content, and user information with the Add-on Provider as necessary in order to provide you the Add-on.
   3. The license granted to you to use any Add-on is personal to you, and is not sublicensable to your End Users. You may not provide or resell Add-ons to others.
10. Software Updates
    1. The Software which you use may automatically download and install updates from time to time from GearHost. These updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit GearHost to deliver these to you) as part of your use of the Service.
11. Modification and Termination of the Service
    1. GearHost is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which GearHost provides may change from time to time without prior notice to you, subject to the terms in Sections 4.3 and 11.2. Changes to the form and nature of the Service will be effective with respect to all versions of the Service (including the Deprecated Version of the Service); examples of changes to the form and nature of the Service include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
    2. If GearHost in its discretion chooses to cease providing the current version of the Service whether through discontinuation of the Service or by upgrading the Service to a newer version, the current version of the Service will be deprecated and become the Deprecated Version of the Service. GearHost will issue an announcement if the current version of the Service will be deprecated. For a period of 3 years after an announcement (the “Deprecation Period”), GearHost will use commercially reasonable efforts to continue to operate the Deprecated Version of the Service and to respond to problems with the Deprecated Version of the Service deemed by GearHost in its discretion to be critical. During the Deprecation Period, no new features will be added to the Deprecated Version of the Service.

       GearHost reserves the right in its discretion to cease providing all or any part of the Deprecated Version of the Service immediately without any notice if:

       (A) you have breached any provision of the Terms (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or

       (B) GearHost is required to do so by law (for example, due to a change to the law governing the provision of the Deprecated Version of the Service); or

       (C) the Deprecated Version of the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires GearHost to change the way GearHost provides the data or services through the Deprecated Version of the Service; or

       (D) providing the Deprecated Version of the Service could create a substantial economic burden as determined by GearHost in its reasonable good faith judgment; or

       (E) providing the Deprecated Version of the Service could create a security risk or material technical burden as determined by GearHost in its reasonable good faith judgment.

       At any time prior to discontinuing the current version of the Service or upgrading to a new version of the Service, GearHost may, in its discretion as part of its continuing innovation to provide the best possible experience for its users, label certain features or functionality of the Service as "experimental." This Section 11.2 of the Terms will not apply to any features or functionality labeled as "experimental."

       This Section 11.2 of the Terms also will not apply to the GearHost Software (as defined in Section 7.1).

    3. You may discontinue your use of the Service at any time. GearHost may, at any time, terminate your use of the Service if (A) you have breached any provision of the Terms (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or (B) GearHost is required to do so by law (for example, due to a change to the law governing the provision of the Service); or (C) the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires GearHost to change the way GearHost provides the data or services through the Service; or (D) providing the Service could create a substantial economic burden as determined by GearHost in its reasonable good faith judgment; or (E) providing the Service could create a security risk or material technical burden as determined by GearHost in its reasonable good faith judgment.
    4. If GearHost suspends or terminates your use of the Service with cause (or you voluntarily discontinue your use of the Service), you will have access to, and the ability to export, your Content for a period of ninety (90) days following such suspension or termination. Fees will continue to be assessed for usage of the Service in excess of any portion of the Fee Threshold during the 90 day period. Notwithstanding the foregoing, the rights set forth in this Section 11.4 are subject to your payment of any outstanding fees due upon and after termination for your use of the Service.
    5. Upon any termination of the Service under Sections 4 or 11 , these Terms will also terminate, but Sections 6.1, 12, 13, 14, and 18 shall continue to be effective after these Terms are terminated.
12. EXCLUSION OF WARRANTIES
    1. NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT GearHost'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
    2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE."
    3. GearHost, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GearHost, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.
13. LIMITATION OF LIABILITY
    1. SUBJECT TO SECTION 12.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT GearHost, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
    2. THE LIMITATIONS ON GearHost'S LIABILITY TO YOU IN PARAGRAPH 13.1 ABOVE SHALL APPLY WHETHER OR NOT GearHost HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
14. Indemnification
    1. You shall defend, indemnify, and hold harmless us, our affiliates, parents, subsidiaries, any related companies, licensors and partners, and each of our and their respective employees, officers, directors, agents, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, losses, damages (actual and consequential), litigation costs and attorneys' fees, of every kind and nature, that arise from or relate to your (or any third party using your Service or identity in the Service) use or misuse of, or access to, the Service, Content, violation of these Terms or of any law, or infringement of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
15. Policies Regarding Copyright and Trademarks
    1. You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is GearHost's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice. For more information, please go to the GearHost DMCA Policy.
    2. Any use of GearHost's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features must be in compliance with the Terms.
16. Other Content
    1. The Services may include hyperlinks to other web sites or content or resources or email content. GearHost may have no control over any web sites or resources which are provided by companies or persons other than GearHost.
    2. You acknowledge and agree that GearHost is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
    3. You acknowledge and agree that GearHost is not liable for any loss or damage which may be incurred by you or users of your Application as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
17. Changes to the Terms
    1. GearHost may make changes to the Terms from time to time. When these changes are made, GearHost will make a new copy of the Terms available at http://GearHost.com/page/terms.
    2. You understand and agree that if you use the Service after the date on which the Terms have changed, GearHost will treat your use as acceptance of the updated Terms.
18. General Legal Terms
    1. The Terms constitute the whole legal agreement between you and GearHost and govern your use of the Service (but excluding any services which GearHost may provide to you under a separate written agreement), and completely replace any prior agreements between you and GearHost in relation to the Service.
    2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
    3. If GearHost provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
    4. You agree that GearHost may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.
    5. You agree that if GearHost does not exercise or enforce any legal right or remedy which is contained in the Terms (or which GearHost has the benefit of under any applicable law), this will not be taken to be a formal waiver of GearHost's rights and that those rights or remedies will still be available to GearHost.
    6. GearHost shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
    7. The Terms, and your relationship with GearHost under the Terms, shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. You and GearHost agree to submit to the exclusive jurisdiction of the courts located within the county of Denver, Colorado to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that GearHost shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.