1. Your Acceptance
This is an agreement (“Agreement”) between Katz Web Services, Inc. (“GravityKit”), the owner and operator of gravitykit.com, try.gravitykit.com and the GravityKit website, software, plugins, API, downloadable applications, components, and the GravityKit Services (defined below) offered (collectively the “Platform”) and you (“you”, “your”, or an “Authorized User”), an Authorized User that has been permitted by a GravityKit Subscriber (as defined in the GravityKit Subscriber Agreement) to access the Platform. Where this Agreement and the Subscriber Agreement conflict, the Subscriber Agreement shall control.
Throughout this Agreement, the words “GravityKit,” “us,” “we,” and “our,” refer to our company, GravityKit, as is appropriate in the context of the use of the words.
2. Authorized User Information and Accounts
After registering and being permitted to access the Platform by a Subscriber, we shall grant you access to the Platform as permitted by us and in accordance with this Agreement. All rights not explicitly granted are reserved for GravityKit. Where you download software to use the Platform, we grant you a limited, fully revocable, non-exclusive license to download one copy of the software for internal business purposes only. The license granted is solely for you to access and use our Platform as permitted by a Subscriber. If you breach this Agreement, your access or license to use our Platform may be terminated at our discretion. Additionally, we may revoke your access or license to use our Platform if we believe that your actions may harm us, our business interests, or any third party rights. Failure by us to revoke your access does not act as a waiver of your conduct.
4. Platform and Services
The GravityKit Platform allows Subscribers to provide access to Subscriber’s websites via login tools for a Subscriber’s vendors, support staff, and third party service providers (“GravityKit Services”). Please be aware that any GravityKit Services are offered without warranty and are “as-is” and “as-available.” Additionally any information or content found on our Platform, including any notifications or tools provided, are offered only for informational purposes only. Further, GravityKit does not endorse, recommend, and is not otherwise affiliated with any Subscribers. GravityKit has no liability to you for any content including but not limited to all Authorized User Content (defined below), Subscriber Content (defined below), information, copy, images, URL names, and anything else provided by any third parties using the Platform. We shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Platform, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you; inability to access to the Platform; failure of a communications satellite, strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation of or access to the Platform.
5. Subscribers and Authorized Users
Any contracts entered into between an Authorized User and Subscriber are solely between the parties. GravityKit may not be obligated and is not a party to any contract that you enter into with any Subscriber. THE AUTHORIZED USER AGREES TO HOLD GravityKit FREE FROM RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF YOUR ACCESS TO ANY SUBSCRIBER CONTENT. GravityKit IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY AUTHORIZED USER OR SUBSCRIBER, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY SUBSCRIBER OR ANY SUBSCRIBER CONTENT ENCOUNTERED BY AUTHORIZED USER.
7. Use of the Platform
When using our Platform, Authorized Users are responsible for your use. You agree to the following:
• You way not copy, distribute or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”;
• You may not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform;
• You may not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract data;
• You may not use automated bots or other software to send more messages through our Platform than humanly possible;
• You may not use the Platform on a computer that is used to operate nuclear facilities, life support, or other mission critical applications where life or property may be at stake;
• You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to the Platform or any portion of it;
• You may not access our Platform in an attempt to build a similar or other competitive product;
• You may not use the Platform in an unlawful manner;
• You may not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
• You may not collect or harvest any personally identifiable information, including account names, except where permitted, from the Platform;
• You may not impersonate any person or entity or misrepresent your affiliation with a person or entity;
• You may not violate or infringe other people’s intellectual property, privacy, or other contractual rights while using our Platform;
• You may not violate any requirements, procedures, policies or regulations of networks connected to GravityKit;
• You may not sell, lease, loan, distribute, transfer, or sublicense the Platform or access to it or derive income from the use or provision of the Platform unless enabled through the functionality of our Platform;
• You may not interfere with or disrupt the Platform;
• You may not violate any law or regulation and you solely are responsible for such violations;
• You agree that you will not hold GravityKit responsible for your use of our Platform; and
• You agree not to cause, or aid in, the disruption, destruction, manipulation, removal, disabling, or impairment of any portion of our Platform, including the de-indexing or de-caching of any portion of our Platform from a thirty party’s website, such as by requesting its removal from a search engine.
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended. Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but GravityKit reserves the right to suspend or terminate any account at any time without notice or explanation.
8. Subscriber Content
Through the Platform Authorized User may be able to access a Subscriber’s website or applications including any data, code, written content, images, videos, or any other information contained within the website or application (collectively “Subscriber Content”). GravityKit is not responsible for any Subscriber Content. Further, GravityKit is not responsible for any other errors in any Subscriber Content displayed or any delays in accessing any Subscriber Content. All Subscriber Content is transmitted directly to you and your Subscriber is solely responsible for the Subscriber Content. GravityKit neither endorses nor is responsible for the accuracy or reliability of any Subscriber Content including any opinions, advice, or statements made. You agree that under no circumstances will GravityKit be liable for any loss or damage caused by any Subscriber Content or your reliance on such content. If you have any questions regarding Subscriber Content please contact your Subscriber.
9. Platform Availability
Although we try to provide continuous availability to you, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. Specifically, we do not guarantee any uptime or specific availability of the Platform. You agree and acknowledge that the Platform may not always be either 100% reliable or available.
10. Modification of Platform
We reserve the right to alter, modify, update, or remove the Platform or any portions thereof, at any time. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications or provide you access to previous versions of our Platform. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Platform for security, legal or other purposes.
11. Platform Security
GravityKit implements administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your information located within the Platform. Those safeguards used or based on industry standards. Aside from such industry standard safeguards, GravityKit can make no guarantees regarding any Platform security.
12. Intellectual Property
The GravityKit Platform along with the design of the GravityKit Platform and any text, writings, images, templates, scripts, graphics, interactive features and any trademarks or logos contained therein (“Marks”), are owned by or licensed to GravityKit, subject to copyright and other intellectual property rights under US and foreign laws and international conventions. GravityKit reserves all rights not expressly granted in and to the Platform. You agree to not engage in the use, copying, or distribution anything contained within the Platform unless we have given express written permission.
13. Idea Submission
GravityKit or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to GravityKit. The sole purpose of this policy is to avoid potential misunderstandings or disputes when GravityKit’s products might seem similar to ideas you submitted to GravityKit. If, despite our request that you not send us your ideas, you agree to the following: (1) your Submissions and their contents will automatically become the property of GravityKit, without any compensation to you; (2) GravityKit may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for GravityKit to review the Submission; and (4) there is no obligation to keep any Submissions confidential.
THE PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER GravityKit, NOR ANY OF OUR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS, AFFILIATES, OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (1) THE PLATFORM OR ANY GravityKit SERVICES; (2) ANY INFORMATION OR SUBSCRIBER CONTENT PROVIDED VIA THE PLATFORM; OR (3) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO GravityKit, OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. GravityKit DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. GravityKit DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PLATFORM IS ACCURATE, COMPLETE, OR USEFUL. GravityKit DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND GravityKit SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.
15. Limitation of Liability
IN NO EVENT SHALL GravityKit, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE GravityKit IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES, INCLUDING NEW JERSEY, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU OR ANY NEW JERSEY RESIDENTS. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. SPECIFICALLY, IN THOSE JURISDICTIONS NOT ALLOWED, WE DO NOT DISCLAIM LIABILITY FOR: (1) DEATH OR PERSONAL INJURY CAUSED BY GravityKit’S NEGLIGENCE OR THAT OF ANY OF ITS OFFICERS, EMPLOYEES OR AGENTS; (2) FRAUDULENT MISREPRESENTATION; OR (3) ANY LIABILITY WHICH IT IS NOT LAWFUL TO EXCLUDE EITHER NOW OR IN THE FUTURE. WHERE A TOTAL DISCLAIMER OF LIABILITY IS DISALLOWED YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED USD.
You agree to defend, indemnify and hold harmless GravityKit, its officers, directors, employees, affiliates, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
• your use of and access to the GravityKit Platform;
• your interactions with any Subscribers;
• your violation of any term of this Agreement; or
• your violation of any third party right, including without limitation any copyright, property, or contractual right.
This defense and indemnification obligation will survive this Agreement and your use of the GravityKit Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
We take copyright infringement very seriously. If you believe that any content owned by you has been infringed upon please send us a message which contains:
• Your name.
• The name of the party whose copyright has been infringed, if different from your name.
• The name and description of the work that is being infringed.
• The location on our Platform of the infringing copy.
• A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
• A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to our Copyright Agent: Copyright Agent of GravityKit, email@example.com
In the event that you receive a notification from GravityKit stating content posted by you has been subject to a copyright takedown notice, you may respond by filing a counter-notice pursuant to the DMCA. Your counter-notice must contain the following:
• Your name, address, email and physical or electronic signature.
• The notification reference number (if applicable).
• Identification of the material and its location before it was removed.
• A statement under penalty of perjury that the material was removed by mistake or misidentification.
• Your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your Vendor is located (if you are not in the US).
• Your consent to accept service of process from the party who submitted the takedown notice.
Please be aware that we may not take any action regarding your counter-notice unless your notification strictly complies with the foregoing requirements. Please send this counter-notice in accordance with the takedown notice instructions above.
18. Choice of Law
This Agreement shall be governed by the laws in force in the state of Colorado. The offer and acceptance of this contract is deemed to have occurred in the state of Colorado.
Any dispute relating in any way to your use of the Platform or this Agreement shall be submitted to confidential arbitration in Denver, CO. Arbitration under this Agreement shall be conducted pursuant to the applicable Commercial Rules (“Rules”) then prevailing at the American Arbitration Association. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where permitted by the Rules, both parties may make any and all appearances telephonically or electronically. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned (New Jersey Users are exempted from the foregoing one (1) year limitation). Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief), or make a claim for nonpayment, in a court of appropriate jurisdiction, and issues of intellectual property ownership or infringement may be decided only by a court of appropriate jurisdiction and not by arbitration. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Denver County, CO.
You may opt-out of this dispute resolution provision by notifying GravityKit within 30 days of the date on which you entered into this Agreement or purchased a subscription, whichever is earlier. You must do so by writing to Katz Web Services, Inc. 1855 Gaylord Street #503, Denver, CO 80206, attn: Arbitration Opt-Out, and you must include your name, address, account information, and a clear statement that you do not wish to resolve disputes with GravityKit through arbitration. Where you opt out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Denver County, CO.
20. Class Action Waiver
You and GravityKit agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action. This class action waiver does not apply to New Jersey residents.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement or any other agreement you may have with GravityKit are deemed to conflict with each other’s operation, GravityKit shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
23. Assignment and Survival
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion. All portions of this Agreement that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Access, Payment, Indemnification, and Arbitration sections.
You may terminate access to the Platform at any time via your GravityKit dashboard or contacting us at firstname.lastname@example.org. Please be aware that upon termination of your account, access to all or portions of our Platform may be become immediately disabled and your access to any Subscriber Content may become immediately inaccessible. We may terminate this Agreement and your use of our Platform, at our discretion or if we determine that: (1) you have violated any applicable laws while using our Platform; (2) if you have violated any portion of this Agreement or any of our Platform policies; or (3) if we believe that any of your current or future actions may legally harm GravityKit, our business interests or a third party, at our discretion. In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.
25. Entire Agreement
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform and our Platform.
27. Electronic Communications
The communications between you and GravityKit use electronic means, whether you visit the Platform or send GravityKit e-mails, or whether GravityKit posts notices on the Platform or communications with you via mobile notifications or e-mail. For contractual purposes, you (1) consent to receive communications from GravityKit in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that GravityKit provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
28. Export Controls
The Platform and the underlying information and technology may not be downloaded, accessed, or otherwise exported or re-exported (1) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Platform, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws.
29. Platform Issues
Where you have any questions, issues, or if you are having trouble accessing or using the Platform, please contact us at email@example.com.
30. California Authorized Users
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about the Platform must be sent to our agent for notice to: firstname.lastname@example.org
Lastly, California Service Providers are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.