Terms of Service updated: Dec. 20, 2022
Welcome to Get The Referral! GetTheReferral.com (the “Website”) and the GetTheReferral application (“GTR Application, together with the Website, the “Platform”) is an online platform that manages and creates referral and affiliate marketing programs for businesses. GetTheReferral.com connects businesses with advocates (“Advocates”) via the GTR Container application (“Container App”) and through specially developed custom applications (“Custom Apps”, together with the Container App, the “Referral Apps”).
Please read this Terms of Service Agreement (“TOS”) carefully. These TOS are between GetTheReferral.com, Inc. (“GTR”, “we”, “us”) and its business customers (collectively, “you”), and govern the use of the Platform, the Referral Apps and other related services provided by GTR (“Services”). In order to have access to the Referral Apps, you must execute an order form with GTR (“Order Form”). The Order Form shall set forth a description of the Services and may contain additional terms and conditions that apply to your access to the Services. If these TOS are inconsistent with the Order Form, the Order Form shall control with respect to such Services. These TOS, including the Referral Terms, and any applicable Order Form are referred to herein as the “Agreement.”
BY EXECUTING AN ORDER FORM, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE; (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH GTR; AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE PLATFORM OR IN A REFERRAL APP. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE PLATFORM OR THE SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES ON A SERVICE PLAN FOR A GIVEN TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED ON THE SAME SERVICE PLAN FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT GTR’S THEN-CURRENT FEE FOR SUCH SERVICE PLANS. UNLESS YOU OPT-OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 5.6 (AUTOMATIC RENEWAL) BELOW.
1.0 USE OF THE SERVICES AND GTR PROPERTIES.
1.1 Service Plan. Your right to access certain features of the Services is determined by the service plan specified on the Order Form (“Service Plan”). Your Service Plan will be in effect for the term specified on the Order Form and will auto-renew in accordance with Section 5.6 (Autorenewals). If you wish to upgrade your Service Plan, please notify GTR at support@GetTheReferral.com.
1.2 Use of Services. The Platform, the Referral Apps, and the Services, and the information and content made available in connection with them (each, a “GTR Property” and collectively, the “GTR Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, GTR grants you a limited license to reproduce portions of GTR Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by GTR in a separate license, your right to use any and all GTR Properties is subject to the Agreement.
1.3 Application License. Subject to your compliance with the Agreement, GTR grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the GTR Application, and/or if applicable, the Referral App, on a single mobile device or computer that you own or control and to run such copy of the GTR Application and/or the Referral App solely for your own personal or internal business purposes. Furthermore, with respect to any GTR Application or the Referral App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system); and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this Section, with respect to any GTR Application or the Referral App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the GTR Application on a shared basis within your designated family group.
1.4 GTR Software. Your use of any software and associated documentation, including the software comprising the Referral Apps, that are developed or provided in connection with the Services or otherwise made available via the GTR Properties (“Software”) is governed by these TOS. Any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. Subject to your compliance with the Agreement, GTR grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement. Some Software may be offered under an open-source license that we will make available to you. There may be provisions in the open-source license that expressly override some of these terms.
1.5 Referral Apps. While GTR may develop and make available the Referral Apps to facilitate the interaction between you and the Advocates, you remain the provider of the Referral App and GTR does not take part in the interaction with Advocates. You must give GTR developer access to your developer account with Apple and/or Google as applicable to facilitate our development the Referral App for you. You are solely responsible for providing the terms and privacy practices that will apply to Advocates with respect to their use of the Referral Apps in accordance with applicable law. NEITHER GTR NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR YOUR CONDUCT, OR THE CONDUCT OF ANY ADVOCATE, WHETHER ONLINE OR OFFLINE IN CONNECTION WITH ANY REFERRAL APP. GTR AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR RELATIONSHIP WITH AN ADVOCATE.
1.6 Sample Terms and Privacy Policy. For your convenience, GTR may from time to time, but is not obligated to, provide a sample terms of service and privacy policy that you may wish to use as a starting place for your relationship with Advocates on your Referral App (“Sample Terms”). THE SAMPLE TERMS ARE PROVIDED AS A SAMPLE ONLY AND ARE NOT CUSTOMIZED, AND MAY NOT BE APPROPRIATE, FOR YOUR BUSINESS OR BUSINESS PRACTICES. You are responsible for complying with any applicable legal requirements. GTR does not assume any responsibility for the Sample Terms. The Sample Terms template is not intended to and does not: (a) constitute legal advice; (b) create an attorney-client relationship between you and GTR; or (c) constitute advertising or a solicitation of any type. Each business, and each business’s relationship with Advocates, varies significantly and is highly fact-specific and requirements vary by situation and jurisdiction therefore you should seek legal advice from a licensed attorney in any applicable jurisdictions before using the Sample Terms. The GTR expressly disclaims any and all liability with respect to actions or omissions based on the Sample Terms.
1.7 Updates. You understand that GTR Properties are evolving. As a result, GTR may require you to accept updates to GTR Properties that you have installed on your computer or mobile device. You acknowledge and agree that GTR may update GTR Properties with or without notifying you. You may need to update third-party software from time to time in order to use GTR Properties.
1.8 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit GTR Properties or any portion of GTR Properties; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other GTR Properties (including images, text, page layout or form) of GTR; (c) you shall not use any metatags or other “hidden text” using GTR’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of GTR Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained on the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of GTR Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in GTR Properties. Any future release, update or other addition to GTR Properties shall be subject to the Agreement.
2.0 ACCOUNT REGISTRATION.
2.1 Registering Your Account. In order to access certain features of GTR Properties, you will be required to register an account (“Account”). In registering an Account, you agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using GTR Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of GTR Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify GTR immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or GTR has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, GTR has the right to suspend or terminate your Account and refuse any and all current or future use of GTR Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time.
2.2 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to GTR Properties, including but not limited to, a mobile device that is suitable to connect with and use GTR Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing GTR Properties.
3.0 RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all Content is the sole responsibility of the party from whom such Content originated. This means that you, and not GTR, are entirely responsible for all Content that you, by yourself or through GTR, upload, post, e-mail, transmit or otherwise make available through the Referral Apps (“Your Content”), and that you, and not GTR, are similarly responsible for all Your Content that you make available through GTR Properties. You acknowledge that GTR has no obligation to pre-screen Your Content before making it available on the Referral Apps or other GTR Properties.
3.2 Content Responsibility. GTR has no responsibility or liability for the deletion or accuracy of any of Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving the use of GTR Properties. You are solely responsible for applying the appropriate level of access to Your Content. You agree that GTR retains the right to create reasonable limits on GTR’s use and storage of Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Services or as otherwise determined by GTR in its sole discretion.
4.0 OWNERSHIP.
4.1 GTR Properties. Except with respect to Your Content, you agree that GTR and its suppliers own all rights, title, and interest in GTR Properties (including but not limited to, any Referral App, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Software). You will not remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying any GTR Properties.
4.2 Trademarks. GetTheReferral.com and all related graphics, logos, service marks, and trade names used on or in connection with any GTR Properties or in connection with the Services are the trademarks of GTR and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks, and trade names that may appear on or in GTR Properties are the property of their respective owners.
4.3 Your Content. GTR does not claim ownership of Your Content. However, when providing Your Content to GTR for inclusion on the Referral Apps, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.4 License to Your Content. You grant GTR a fully-paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing GTR Properties to you. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not GTR, are responsible for all of Your Content that you make available on or in GTR Properties.
4.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to GTR through its suggestion, feedback, wiki, forum, or similar pages or in other communications between you and GTR (“Feedback”) is at your own risk and that GTR has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to GTR a fully-paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, reformat, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of GTR Properties and/or GTR’s business.
5.0 FEES.
5.1 Fees. The fees payable for the Services are specified on the Order Form. You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide GTR with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account of a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing GTR with your credit card number or PayPal account and associated payment information, you agree that GTR is authorized to immediately invoice your Account for all fees and charges due and payable to GTR hereunder and that no additional notice or consent is required. You agree to immediately notify GTR of any change in your billing address or the credit card or PayPal account used for payment hereunder. GTR reserves the right at any time to change its prices and billing methods, either immediately upon posting on GTR Properties or by e-mail delivery to you.
5.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your Service Plan (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable.
5.3 Advocator Pay. As part of the Referral Apps, you may reward Advocates for referrals by using the Advocator Pay feature which is powered by XTRM Inc. If you elect to pay an Advocate, you are agreeing to have the payment processed by the Advocator Pay feature and the reward payment will be sent electronically directly to the Advocate’s Advocator Wallet contained within the Referral Apps. By electing the Advocator Pay feature, you agree to comply with XTRM Inc.’s standard terms and conditions. If there are insufficient funds at the time of payment, GTR will not responsible to pay the Advocate. GetTheReferral.com will not be responsible in any way to pay any Advocate of any partner company. All payments made through the Advocator Pay feature are subject to the Advocator Pay transaction fee specified on the Order Form.
5.4 Advocator Pay Transaction Fee. GTR will charge a transaction fee specified on the Order Form for each payment made through Advocator Pay. This fee includes the cost of the automated rewards transfer and processing of the payment to the Advocate. These fees are subject to change at any time and without prior notice. To load funds onto your Advocator Pay Account, you can load the account through your Payment Provider or Request to ACH these funds to your account with no additional fees. Any and all chargebacks will be your responsibility and will be charged immediately to the Payment Provider, once a chargeback is processed. Keep in mind that credit card load transactions in Advocator Pay will come through on your credit card statement as XTRM.
5.5 Taxes. The payments required under Section 5.2 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If GTR determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, GTR shall collect such Sales Tax in addition to the payments required under Section 5.2 (Service Subscription Fees) of this Agreement. If any Services, or payments for any Services, under the Agreement, are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to GTR, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify GTR for any liability or expense GTR may incur in connection with such Sales Taxes. Upon GTR’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5.6 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at GTR’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date, by notifying GTR in writing. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period regardless of whether any Services have been provided to you. By subscribing, you authorize GTR to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if GTR does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that GTR may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received). (c) In the event of non-payment, you agree to pay all collection and legal costs associated with your account.
6.0 PUBLICITY. You agree to be identified as a customer of GTR and you agree that GTR may refer to you by name, trade name, and trademark, if applicable, and may briefly describe your business in GTR marketing materials and on the GTR Properties. You hereby grant GTR a fully-paid, irrevocable, perpetual, worldwide license to use your name and any of your trade names and trademarks solely in connection with the rights granted to GTR pursuant to this Section.
7.0 TERM AND TERMINATION.
7.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use GTR Properties unless terminated earlier in accordance with the Agreement.
7.2 Termination by GTR. You will have thirty (30) days prior to any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case GTR will refund your Service Subscription Fee for such renewal, if already paid pursuant to Section 5.1 (Payment) or 5.2 (Service Subscription Fees), for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable regardless of whether you access the Services. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if GTR is required to do so by law (e.g., where the provision of the Website, the GTR Application, the Software or the Services is, or becomes, unlawful), GTR has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in GTR’s sole discretion and that GTR shall not be liable to you or any third party for any termination of your Account.
7.3 Termination by You. If you want to terminate the Services provided by GTR, you may do so by notifying GTR. Your notice should be sent, in writing, to GTR’s address set forth below and prior to 30 days before the end of your subscription period. (support@getthereferral.com) THE SERVICES WILL CONTINUE TO THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 5.6 (AUTOMATIC RENEWAL).
7.4 Effect of Termination. Termination of the Agreement includes removal of access to the applicable Services and GTR Properties and barring of further use of the Services and GTR Properties. Termination of the Agreement also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of the Agreement, your right to use the applicable Services and GTR Properties will automatically terminate immediately. You understand that any termination of the Agreement may involve deletion of Your Content associated therewith from our live databases. GTR will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
8.0 UPDATES TO THESE TOS
PLEASE NOTE THAT THESE TOS ARE SUBJECT TO CHANGE BY GTR IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, GTR will make a new copy of the Terms of Service Agreement available on the Platform and within the GTR Application and any Referral App, as applicable. We will also update the “Last Updated” date at the top of the Terms of Service Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Services and will be effective thirty (30) days after posting notice of such changes on the Services for existing Account holders. GTR may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT TERMS.
8.2 CONFIDENTIALITY.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. In addition, to the extent you have negotiated pricing with GTR, such pricing is GTR’s Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence (using reasonable methods or protection) and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can reasonably evidence: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become generally available to the public through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy. Therefore, upon any such disclosure, the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
8.3 INDEMNIFICATION.
You agree to indemnify and hold GTR, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “GTR Party” and collectively, the “GTR Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any GTR Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Advocate; or (e) your violation of any applicable laws, rules or regulations. GTR reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with GTR in asserting any available defenses. This provision does not require you to indemnify any of the GTR Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Platform or any Services provided hereunder. You agree that the provisions in this Section will survive any termination of your Account, the Agreement, and/or your access to GTR Properties.
9.0 DISCLAIMER OF WARRANTIES AND CONDITIONS
9.1 As-Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF GTR PROPERTIES IS AT YOUR SOLE RISK, AND GTR PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. GTR PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARISING FROM THE USE OF THE GTR PROPERTIES. FURTHER:
(a) GTR PARTIES MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) GTR PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF GTR PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF GTR PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS, AND OTHER DISRUPTIONS. GTR MAKES NO WARRANTY, REPRESENTATION, OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION, AND OTHER CHARACTERISTICS OF SERVICES.
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM GTR OR THROUGH GTR PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(d) FROM TIME TO TIME, GTR MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND AND MAY BE MODIFIED OR DISCONTINUED AT GTR’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9.2 No Liability for Advocates Relationship. We are not involved in the actual transaction between you and Advocates. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH ADVOCATES THROUGH THE GTR PROPERTIES. YOU HAVE FULL RESPONSIBILITY TO CONTRACT WITH ADVOCATES THROUGH THE CUSTOM APPS IN ACCORDANCE WITH APPLICABLE LAW. ANY SAMPLE TERMS PROVIDED ARE SAMPLE-ONLY, AND WE DO NOT WARRANT OR REPRESENT THAT THEY ARE APPROPRIATE FOR OR REFLECT YOUR BUSINESS OR THAT THEY MEET ANY LEGAL REQUIREMENTS. YOUR USE OF THE SAMPLE TERMS WITHOUT MODIFICATION IS AT YOUR SOLE RISK.
9.3 Third-Party Materials. As a part of GTR Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for GTR to monitor such materials and that you access these materials at your own risk.
10.0 LIMITATION OF LIABILITY.
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL GTR PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT GTR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF GTR PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE GTR PROPERTIES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH GTR PROPERTIES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON GTR PROPERTIES; OR (E) ANY OTHER MATTER RELATED TO GTR PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A GTR PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A GTR PARTY’S NEGLIGENCE, OR FOR (ii) ANY INJURY CAUSED BY A GTR PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, GTR PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF: (A) THE TOTAL AMOUNT PAID TO GTR BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A GTR PARTY FOR: (i) DEATH OR PERSONAL INJURY CAUSED BY A GTR PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A GTR PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.3 User Content. EXCEPT FOR GTR’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE GTR’S PRIVACY POLICY, GTR ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
10.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GTR AND YOU.
11.0 DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires users to arbitrate disputes with GTR and limits the manner in which you can seek relief from us.
11.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the GTR Properties, to any products sold or distributed through the GTR Properties, or to any aspect of your relationship with GTR, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify,; and (b) you or GTR may seek equitable relief in court for infringement or other misuses of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
11.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent United States Corporation Agents, Inc. 300 Delaware Avenue, Suite 210-A, in the City of Wilmington, County of New Castle County, 19801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’ rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’ filing, administrative, hearing, and/or other fees and cannot obtain a waiver from JAMS, GTR will pay them for you. In addition, GTR will reimburse all such JAMS’ filing, administrative, hearing, and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed on location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
11.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and GTR. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
11.4 Waiver of Jury Trial. YOU AND GTR HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and GTR are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
11.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CAN NOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this Section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes claims, or requests for relief shall be arbitrated.
11.6 30-Day Right to Opt-Out. You have the right to opt-out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt-out to: support@GetTheReferral.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your GTR username (if any), the email address you used to set up your GTR account (if you have one), and an unequivocal statement that you want to opt-out of this Arbitration Agreement. If you opt-out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
11.7 Severability. Except as provided in Section 13.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
11.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with GTR.
11.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if GTR makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing GTR at the following address: support@GetTheReferral.com.
12.0 GENERAL PROVISIONS.
12.1 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: (a) You acknowledge and agree that (i) the Agreement is concluded between you and GTR only, and not Apple, and (ii) GTR, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service; (b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application; (c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between GTR and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of GTR; (d) You and GTR acknowledge that, as between GTR and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (e) You and GTR acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between GTR and Apple, GTR, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement; (f) You and GTR acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
12.2 Electronic Communications. The communications between you and GTR may take place via electronic means, whether you visit GTR Properties or send GTR e-mails, or whether GTR posts notices on GTR Properties or communicates with you via e-mail. For contractual purposes, you: (a) consent to receive communications from GTR in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that GTR 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, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
12.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without GTR’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
12.4 Force Majeure. GTR shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
12.5 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and GTR agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Diego County, California.
12.6 Notice. Where GTR requires that you provide an e-mail address, you are responsible for providing GTR with your most current e-mail address. In the event that the last e-mail address you provided to GTR is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, GTR’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to GTR at the following address: 715 J Street Suite 200, San Diego, CA 92101. Such notice shall be deemed given when received by GTR by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
12.7 Waiver; Severability. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
12.8 Export Control. You may not use, export, import, or transfer GTR Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained GTR Properties, and any other applicable laws. In particular, but without limitation, GTR Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using GTR Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use GTR Properties for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that products, services or technology provided by GTR are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer GTR products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.9 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
12.10 Entire Agreement. The Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
