This is a legally binding agreement. Please read these terms and conditions carefully. By clicking the button during the Registration to accept this agreement, you represent that you have the full legal authority to enter this agreement on behalf of the party identified in the registration process, and in that capacity you acknowledge such party’s agreement to be bound by the terms and conditions set forth or referenced below. If you do not agree to these terms and conditions, do not subscribe to the Platform.
This agreement (the “Agreement”) for use of the Platform (as defined below) is between Gun.io Incorporated, a Delaware corporation (“Gun.io”), and the party (the “Licensee”) indicated during the online registration process (such process and the information provided during such process as amended from time to time through Licensee’s login to its account in the Platform, the “Registration”). This Agreement is effective upon Licensee’s acceptance of it in the course of the Registration (the “Effective Date”). The information entered by or on behalf of Licensee during the Registration is incorporated herein and made a part of this Agreement.
1. Certain Definitions
|Short Version: We use these basic terms throughout the Agreement, and they have specific meanings. You should know what we mean when we use each of these terms. This is very useful information.|
“Affiliate” means, as to a party, any other entity that directly or indirectly controls, is under common control with, or is controlled by, such party; as used in this definition, “control” and its derivatives mean possession, directly or indirectly, of power to direct the management or policies of an entity.
“Confidential Information” means any information of any type in any form that (i) is disclosed to or observed or obtained by one party from the other party (or from a person the recipient knows or reasonably should assume has an obligation of confidence to the other party) in the course of, or by virtue of, this Agreement, and (ii) either is designated as confidential or proprietary in writing at the time of such disclosure or within a reasonable time thereafter (or, if disclosure is made orally or by observation, is designated as confidential or proprietary orally by the person disclosing or allowing observation of the information) or is of a nature that the recipient knew or reasonably should have known, under the circumstances, would be regarded by the owner of the information as confidential or proprietary. Without limiting any other provisions of this Agreement, and whether or not otherwise meeting the criteria described herein, the Licensed Materials, Licensee Data, and the content of this Agreement (other than the fact of its existence and the identities of the parties hereto) shall be deemed conclusively to be Confidential Information. For purposes of this Agreement, however, the term “Confidential Information” specifically shall not include any portion of the foregoing that (i) was in the recipient’s possession or knowledge at the time of disclosure and that was not acquired directly or indirectly from the other party, (ii) was disclosed to the recipient by a third party not having an obligation of confidence of the information to any person or body of which the recipient knew or which, under the circumstances, the recipient reasonably should have assumed to exist, or (iii) is or, other than by the act or omission of the recipient, becomes a part of the public domain not under seal by a court of competent jurisdiction. A selection or combination of information will not meet any of the foregoing exceptions solely because some or all of its individual component parts are so excepted and will meet such exception(s) only if the selection or combination itself is so excepted. In the event of any ambiguity as to whether information is Confidential Information, the foregoing shall be interpreted strictly and there shall be a rebuttable presumption that such information is Confidential Information.
“Documentation” means all documentation (whether printed or in an electronic format) supplied or made available to Licensee by Gun.io for use with or in support of the Platform or its implementation, including without limitation any and all revisions, modifications, and updates thereof as may be supplied or made available by Gun.io to Licensee during the Term of this Agreement and all copies thereof made by or on behalf of Licensee.
“Hosting Services” means the provision, administration, and maintenance of servers and related equipment, the provision of bandwidth at the hosting facility, and the operation of the Platform for access and use by Licensee Users pursuant to this Agreement.
“Licensed Materials” means the Platform and the Documentation.
“Licensee Data” means all data entered into the Platform (i) by Licensee Users or (ii) by or on behalf of Licensee pursuant to a conversion or migration of data from another system, in each case as such data is maintained in the Platform from time to time.
“Licensee User” means Licensee, if an individual, or an employee or individual independent contractor of Licensee or of an Affiliate of Licensee duly authorized by Licensee to use the Platform pursuant to Gun.io’s then-current procedure for such authorization.
“Loss” means all losses, liabilities, damages, awards, settlements, claims, suits, proceedings, costs, and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, expert witness fees, settlement, judgment, interest, and penalties).
“Platform” means the online service and application offered by Gun.io, accessed at https://app.gun.io, together with any associated software applications, database structures and queries, interfaces, tools, and the like, together with any and all revisions, modifications, and updates thereof, as made available by Gun.io to Licensee pursuant to this Agreement.
“System Administrator” means the individual identified as such in the Registration or such substitute designated by Licensee from time to time in accordance with Gun.io’s then-current procedures therefor.
This Agreement shall commence as of the Effective Date and shall expire when terminated as provided in this Agreement (the “Term”).
3. License to Licensee
|Short Version: We let you use the Licensed Materials during the Term, but only for your internal business purposes. Your use of the Platform and Documentation is subject to all of the terms in this agreement.|
Subject to terms and conditions of this Agreement, Gun.io grants to Licensee a nonexclusive, nontransferable (except as otherwise provided herein) license during the Term of this Agreement for a Licensee User to access and use the Platform and relevant Documentation in accordance with the terms of this Agreement solely for Licensee’s internal business purposes.
|Short Version: We provide the hosting for the Platform, but it may not always be available. We provide our standard support and maintenance services, but we will need your help. We may update the Platform, but we will decide if you receive the updates. You must use computers and technologies that meet our standards, which we will provide to you. If you breach this Agreement, we may stop providing these services.|
Subject to terms and conditions of this Agreement and provided Licensee is not in material breach of its obligations hereunder, Gun.io shall provide the following “Services” during the Term:
(a). Hosting. Gun.io shall use reasonable efforts to provide the Hosting Services; provided, however, that the Hosting Services may be interrupted and the Platform unavailable for use for reasonable periods from time to time for Gun.io to perform scheduled or unscheduled system maintenance, for Gun.io to address security threats or security incidents, or due to the acts or omissions of third parties or the fault of Gun.io.
(b). Support. Gun.io shall provide to Licensee Users consultation and assistance with operational and technical support issues arising from use of the Platform during Gun.io’s then-current normal business hours pursuant to requests for support services submitted by telephone or e-mail at such numbers and e-mail addresses as Gun.io shall provide to Licensee from time to time.
(c). Maintenance. In response to a reported error, Gun.io shall use commercially reasonable efforts to correct the error or to provide a reasonable workaround sufficient to alleviate any substantial adverse effect of the problem on the utility of the Platform, provided that Licensee assists Gun.io in its efforts by making available, as reasonably requested by Gun.io, information, documentation, access to personnel, and testing.
(d). Enhancements. From time to time at its discretion, Gun.io may implement releases of the Platform that contain changes, updates, patches, fixes, enhancements to functionality, and/or additional functionality. Gun.io in its sole discretion will determine whether to include in the Platform, as part of the maintenance Services hereunder, features or functionality not originally specified for the Platform, and Gun.io shall have no obligation to disclose or offer to Licensee any such features or functionality.
(e). Supported Use and Environment. Gun.io’s support and maintenance obligations pursuant to this Agreement are conditioned upon access to and use of the Platform by Licensee Users in accordance with the Documentation and using browsers and other information technology meeting the criteria set forth in the Documentation, published on Gun.io’s website, or otherwise provided or made available to Licensee by Gun.io from time to time. Upon reasonable notice to Licensee from time to time, Gun.io may revise the specifications described in this paragraph or implement new such specifications to address the evolution of such technology.
5. Licensee Responsibilities and Restrictions
|Short Version: You are responsible for your equipment and connections. Your System Administrator creates and disables accounts for your Licensee Users and must do so in accordance with industry practices. You must tell us if the System Administrator changes. You alone are responsible for your account and the accounts of your Licensee Users, including keeping them secure. All activities that happen via these accounts are your responsibility. You may only use the Platform for its intended purpose, and you must follow the terms of this section, which include some restrictions. We will not be responsible for Losses caused by your breach of this section.|
(a). Licensee shall be responsible for selecting, obtaining, and maintaining any equipment and ancillary services needed to access the Platform, in each case meeting any information technology environment criteria described in the Documentation, published on Gun.io’s web site, or otherwise provided or made available to Licensee by Gun.io from time to time.Licensee Connection to Platform. Licensee shall be responsible for selecting, obtaining, and maintaining any equipment and ancillary services needed to access the Platform, in each case meeting any information technology environment criteria described in the Documentation, published on Gun.io’s web site, or otherwise provided or made available to Licensee by Gun.io from time to time.
(b). System Administrator. Licensee acknowledges and agrees that the System Administrator, utilizing mechanisms provided therefor within the Platform, will have the sole responsibility for authenticating and provisioning access to the Platform for other Licensee Users and for disabling access to the Platform for Licensee Users. Licensee shall cause the System Administrator to perform such authentication in accordance with generally-accepted information security standards and shall cause the System Administrator to disable such access immediately upon the termination of employment or engagement of any Licensee User by Licensee or its Affiliate or when a Licensee User otherwise is no longer eligible to use the Platform pursuant to this Agreement. Licensee shall notify Gun.io immediately, by telephone and in writing, to disable access to the Platform for System Administrator who is so terminated or otherwise is no longer eligible to use the Platform pursuant to this Agreement.
(c). Account Passwords and Data Security. Licensee shall maintain and cause to be maintained the confidentiality of all user IDs and passwords of Licensee Users, including implementing and enforcing policies and procedures as reasonable and appropriate thereto, and Licensee at all times shall maintain (and shall cause any Affiliate having Licensee Users to maintain) adequate technical, physical, and administrative safeguards, including access controls and system security requirements and devices, to ensure that access to the Platform by or through Licensee is limited to Licensee Users. Licensee shall be solely responsible for all use or misuse of the user IDs of Licensee Users, and except as otherwise required by applicable law Gun.io shall have no obligation to monitor for or report any use or attempted use of the user IDs of Licensee Users. All such user IDs and passwords are deemed to be Confidential Information of both Licensee and Gun.io. Licensee shall take reasonable steps to ensure that Licensee Users not share user IDs or passwords.
(d). Restrictions. Except as may be expressly authorized in this Agreement, Licensee shall not do, nor shall it authorize any person to do, any of the following: (i) use the Licensed Materials for any purpose or in any manner not specifically authorized by this Agreement; (ii) make any copies or prints, or otherwise reproduce or print, any portion of the Licensed Materials, whether in printed or electronic format; (iii) distribute, republish, download, display, post, or transmit any portion of the Licensed Materials; (iv) create or recreate the source code for, or re-engineer, reverse engineer, decompile, or disassemble any Licensed Materials that is computer software or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Licensed Materials or any software, documentation or data related to the Licensed Materials; (v) modify, adapt, translate, or create derivative works from or based upon any part of the Licensed Materials, or combine or merge any part of the Licensed Materials with or into any other software, document, or work; (vi) refer to or otherwise use any part of the Licensed Materials as part of any effort to develop a product or service having any functional attributes, visual expressions, or other features or purposes similar to those of Licensed Materials; (vii) remove, erase, or tamper with any copyright, logo, or other proprietary or trademark notice printed or stamped on, affixed to, or encoded or recorded in the Licensed Materials, or use a proxy, reverse proxy, or any other such mechanism that is intended to, or has the effect of, obscuring any of the foregoing or confusing an individual or third-party as to Gun.io’s rights in the Platform, (viii) fail to preserve all copyright and other proprietary notices in any copy of any portion of the Licensed Materials made by or on behalf of Licensee; (ix) sell, market, license, sublicense, distribute, rent, loan, or otherwise grant to any third party any right to possess or utilize any portion of the Licensed Materials without the express prior written consent of Gun.io (which may be withheld by Gun.io for any reason or conditioned upon execution by such party of a confidentiality and non-use agreement and/or other such other covenants and warranties as Gun.io in its sole discretion deems desirable); (x) use the Licensed Materials to gain or attempt to gain access to any software applications, computer systems, or data not expressly authorized under this Agreement; (xi) knowingly use the Platform to store, receive, or distribute any information that violates any applicable law; or (xii) diminish or infringe any intellectual property rights in and to the Licensed Materials or impair or interfere with any copyright protection mechanisms, copyright management information systems or digital identification devices employed in association with the foregoing; (xiii) cause the Licensed materials to defame or infringe the rights of any other person, including intellectual property rights (for example, any patent, trademark, trade secret, copyright, or other proprietary rights) or rights of publicity or privacy; (xiv) promote, condone, or incite violence, dangerous acts, discrimination against individuals or groups based on race, ethnic origin, religion, disability, gender, age, nationality, veteran status, political affiliation, or sexual orientation/gender identity or any other protected characteristic, or threaten, harass, or bully any person or collect, store, receive, process, use, disclose, manipulate, track, or distribute any content or data that does any of the foregoing or is pornographic or obscene; (xv) impersonate any person or entity or generate fraudulent impressions of or fraudulent clicks on ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots, agents or other automated query tools and/or computer generated search requests, and/or the unauthorized use of other search engine optimization services and/or software; (xvi) act in a manner that is illegal, discriminatory, derogatory, hateful, abusive, racist, fraudulent, defamatory, libelous, obscene, unlawful, harassing, violent, or threatening; (xvii) collect, store, receive, process, use, disclose, manipulate, track or distribute any computer viruses, worms, trojan horses, back door, trap door, time bombs, malware, or other malicious code; (xviii) use any device, software, methodology, or routine to interfere with or disrupt the Licensed Materials or the servers or networks connected to the Licensed Materials by trespass or burdening network capacity; (xix) harvest, access, or collect information about other users or customers of Gun.io; (xx) restrict or inhibit any other person from using the Licensed Materials, including without limitation by means of “hacking” or defacing any portion thereof; (xxi) “frame” or “mirror” any portion of the Licensed Materials; (xxii) use any robot, spider, other automatic device, or manual process, to “screen scrape,” monitor, “mine,” or copy any portion of the Licensed Materials; or (xxiii) process data on behalf of any third party; or (xxiv) attempt to do or assist any party in attempting to do any of the foregoing.
(e). Disclaimer. Gun.io shall not be liable to Licensee for any Loss arising out of or relating to Licensee’s failure to comply with its obligations set forth in this Section 5.
|Short Version: You own Licensee Data, and we own the Licensed Materials, Deidentified Data, and Usage Data. If you make suggestions or we jointly develop something, we will own those suggestions and things.|
(a). Licensee Data. As between Gun.io and Licensee, Licensee has and retains exclusive ownership of all Licensee Data and all intellectual property and proprietary rights therein.
(b). Licensed Materials. As between Gun.io and Licensee, Gun.io has and retains exclusive ownership of the Licensed Materials, Deidentified Data (as defined below), Usage Data (as defined below), and all intellectual property and proprietary rights therein. Licensee acknowledges that the foregoing constitute valuable assets and may constitute trade secrets of Gun.io or its licensors.
(c). Suggestions, Joint Efforts, and Statistical Information. Licensee may suggest, and the parties may discover or create jointly, findings, inventions, improvements, discoveries, or ideas that Gun.io, at its sole option, may incorporate in the Licensed Materials or in other products or services that may or may not be made available to Licensee. Any such finding, invention, improvement, discovery, or idea, whether or not patentable, that is conceived or reduced to practice during the Term of this Agreement, whether by a party alone or by the parties jointly, arising from or related to this Agreement or the Licensed Materials shall be and remain solely property of Gun.io and may be used, sold, licensed, or otherwise provided by Gun.io to third parties, or published or otherwise publicly disclosed, in Gun.io’s sole discretion without notice, attribution, payment of royalties, or liability to Licensee. Licensee acknowledges and agrees that Gun.io has and retains exclusive and valid ownership of all Usage Data (as defined below) regarding Licensee Users’ use of the Platform. Licensee hereby assigns to Gun.io any and all right, title, and interest in and to any such findings, inventions, improvements, discoveries, ideas, and, to the extent not owned by Gun.io, Usage Data (as defined below). Unless otherwise expressly agreed in writing, Licensee shall not obtain any right, title, or interest (other than the license expressly set forth herein) in or to anything created or developed by Gun.io in connection with or incident to this Agreement.
7. License to Use Licensee Data
|Short Version: You let us use Licensee Data to provide, monitor, and improve the Platform; to develop new services; to perform our obligations; and to compile analyses. We may also create aggregated or de-identified data from Licensee Data. We collect Usage Data about the use or performance of the Licensed Materials. We may use and share Deidentified Data and Usage Data for any lawful purpose. You promise that you have the ability to give us the rights and licenses described in this Agreement, and you will cover us related to this promise. Please read this section carefully.|
(a). Licensee Data. Licensee grants to Gun.io a non-exclusive, transferrable, worldwide, sublicensable, irrevocable, royalty-free right and license to use, copy, encode, store, archive, translate, render into an audible and/or visual format, distribute, display, perform, transmit, and create derivative works from any Licensee Data as follows: (i) during the Term, to provide, monitor, correct, and improve the Platform and to perform the Services and develop new products or services; (ii) during the Term, to perform its obligations under this agreement; (iii) during the Term, to compile analyses and statistical information from Licensee Data regarding usage or performance of the Platform and Services and user engagement; (iv) during and after the Term for purposes of (A) de-identifying Licensee Data such that there is no reasonable basis to believe that the information can be used, alone or in combination with other reasonably available information, to identify any individual or to identify Licensee as the source of such data; and (B) aggregating Licensee Data with other data (such de-identified data and aggregated data, collectively, “Deidentified Data”). Licensee acknowledges and agrees that Gun.io has and retains exclusive and valid ownership of all Deidentified Data.
(b). Usage Data. Notwithstanding anything to the contrary herein, Gun.io shall have the right to collect, analyze, use, and disclose statistical information regarding Licensee Users’ use of the Licensed materials and the provision, use, and performance of the Licensed Materials and related systems and technologies (“Usage Data”). Licensee acknowledges and agrees that Gun.io has and retains exclusive and valid ownership of all Usage Data.
(c). Deidentified Data and Usage Data. Gun.io will be free (during and after the Term hereof) to use Deidentified Data and Usage Data to use and disclose such data for any lawful purpose, including (1) accomplishing its business purposes; (2) improving and enhancing the Licensed Materials; and (3) development, diagnostic, and corrective purposes in connection with the Licensed Materials and other product or service offerings.
(d). Representation. Licensee represents and warrants that it owns or has the legal right and authority, and will continue to own or maintain the legal right and authority, to grant to Gun.io the rights and licenses set forth herein. Licensee further represents and warrants that it has provided all necessary notices to process the Licensee Data and to transfer the Licensee Data to Gun.io. Licensee shall indemnify, defend, and hold harmless Gun.io, its Affiliates, and their respective directors, officers, employees, and agents from and against any Loss arising from or related to a claim of a third party with respect to a breach of the foregoing representations and warranties of Licensee.
8. Confidentiality and Non-solicitation
|Short Version: Each of us will keep the other’s Confidential Information secure. Both parties will only use and disclose the other’s Confidential Information as allowed under this section, and, if either of us is required to disclose Confidential Information, this section describes what each of us will do. We will each report any misappropriation of the other’s Confidential Information. We will both return the other’s Confidential Information at the termination of this Agreement. If you start pursuing a relationship via the Platform, for 6 months following initiation, you will not solicit, or in fact enter into a relationship, with that person outside of the Platform.|
(a). Security of Confidential Information. Each party possessing Confidential Information of the other party will maintain all such Confidential Information under secure conditions, using reasonable security measures and in any event not less than the same security procedures used by such party for the protection of its own Confidential Information of a similar kind.
(b). Non-Disclosure Obligation. Except as otherwise may be permitted by this Agreement, neither party shall disclose any Confidential Information of the other party to any third party without the express prior written consent of the other party; provided, however, that either party may disclose appropriate portions of Confidential Information of the other party to those of its employees, contractors, agents, and professional advisors having a substantial need to know the specific information in question in connection with such party’s exercise of rights or performance of obligations under this Agreement provided that all such persons (i) have been instructed that such Confidential Information is subject to the obligation of confidence set forth by this Agreement and (ii) are bound by contract, employment policies, or fiduciary or professional ethical obligation to maintain such information in confidence.
(c). Compelled Disclosure. If either party is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a motion or similar request that such an order be issued, then such party will not be liable to the other party for disclosure of Confidential Information required by such order if such party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such party immediately shall move for or otherwise request a stay of such order to permit the other party to respond as set forth in this paragraph; (ii) such party immediately shall notify the other party of the motion or order by the most expeditious possible means; (iii) such party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other party; and (iv) such party shall exercise reasonable efforts to obtain appropriate assurance that confidential treatment will be accorded the Confidential Information so disclosed.
(d). Non-Use Obligation. Except as expressly authorized in this Agreement, during the Term of this Agreement and forever thereafter (or for such shorter period as may be imposed by applicable law), neither party shall use any Confidential Information of the other party, except at the request of and for the benefit of such other party, without the express prior written consent of the other party.
(e). Copying of Confidential Information. Except as otherwise may be permitted by this Agreement, neither party shall copy or otherwise reproduce any part of any Confidential Information of the other party, nor attempt to do so, without the prior written consent of the other party. Any embodiments of Confidential Information of a party that may be generated by the other party, either pursuant to or in violation of this Agreement, will be deemed to be solely the property of the first party and fully subject to the obligations of confidence set forth herein.
(f). Proprietary Legends. Without the other party’s prior written consent, neither party shall remove, obscure, or deface on or from any embodiment of any Confidential Information any proprietary legend relating to the other party’s rights.
(g). Reports of Misappropriation. Each party shall report to the other party without unreasonable delay any act or attempt by any person of which such party has knowledge or reasonably suspects (i) to use or disclose, or copy Confidential Information without authorization from the other party or (ii) to reverse assemble, reverse compile, or otherwise reverse engineer any part of the Confidential Information.
(h). Post-Termination Procedures. Except with respect to Licensee Data as provided in Section 11(c) or as otherwise expressly provided in this Agreement, promptly upon the expiration or any termination of this Agreement or other expiration or termination of a party’s right to possess and/or use Confidential Information, each party shall turn over to the other party (or destroy and certify the same in writing, if agreed in writing by the other party) any embodiments of any Confidential Information of the other party.
(i). Non-solicitation. In order to ensure that Gun.io receives value for the Platform and to ensure that Licensee has the ability to compete fairly in the marketplace for freelance relationships, the Parties agree to this non-solicitation provision, which prohibits Licensee from engaging certain other licensees and users of the Platform outside the Platform for a certain period of time. Specifically, in the event Licensee requests, schedules, or attends an interview, or otherwise begins pursuit of a business relationship with another licensee or user as facilitated through the Platform, Licensee agrees that for a period of 6 months following the initiation of that pursuit of business relationship, Licensee shall not make any solicitation, or in fact enter into a relationship, outside of the Platform to provide services to or receive services from that licensee or user with whom a business relationship was pursued as facilitated by the Platform.
9. Representations and Warranties; Disclaimers
|Short Version: We provide the Licensed Materials and Services as is, and we make no promises or guarantees about them. Please read this section carefully.|
(a). REPRESENTATION AND WARRANTY DISCLAIMERS. THE LICENSED MATERIALS AND ALL SERVICES PROVIDED OR TO BE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED MATERIALS. GUN.IO DISCLAIMS, ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE LICENSED MATERIALS OR ANY PART THEREOF OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY (INCLUDING, WITHOUT LIMITATION, AS TO THE SEQUENCE, COMPLETENESS, TIMELINESS, ADEQUACY, ACCURACY, AND/OR RELIABILITY), OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT GUN.IO KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. GUN.IO EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE. GUN.IO DOES NOT WARRANT THAT THE SERVICES OR LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE.
(b). Other Disclaimers. Licensee will be exclusively responsible as between the parties for, and Gun.io makes no representation or warranty with respect to, determining whether the Licensed Materials will achieve the results desired by Licensee, ensuring the accuracy of any Licensee Data, and selecting, procuring, installing, operating, and maintaining the technical infrastructure for Licensee’s access to and use of the Licensed Materials. Gun.io shall not be liable for, and shall have no obligations with respect to, any aspect of the Licensed Materials that is modified by any person other than Gun.io or its contractors, use of the Licensed Materials other than in accordance with the most current operating instructions provided by Gun.io, errors or other effects of problems, defects, or failures of software or hardware not provided by Gun.io or of acts or omissions of Licensee or any third party. Licensee acknowledges that the operation of the Licensed Materials will not be error free in all circumstances and that all defects in the Licensed Materials may not be corrected.
10. Breach; Termination; Disposition of Data
|Short Version: If there is a breach of this Agreement, the non-breaching party will notify the other party as described in this section. If the breach isn’t timely cured, the non-breaching party may terminate the Agreement. If you ask us within 30 days of termination, we will destroy, where possible your Licensee Data. If we’re required to keep the data, we’ll treat it as your Confidential Information.|
(a). Notice of Breach; Cure Period. In the event of a breach of a provision of this Agreement, the notice and cure procedures set forth in this paragraph shall apply. The non-breaching party shall give the breaching party notice describing the breach and stating the time, as provided herein, within which the breach must be cured. If a provision of this Agreement sets forth a cure period for the breach in question, then that provision shall take precedence over any cure period set forth in this paragraph. No cure period shall be required, except as may be provided otherwise in this Agreement, if this Agreement sets forth specific deadline dates for the obligation allegedly breached. If the breach is of an obligation to pay money, the breaching party shall have five business days to cure the breach after written notice thereof by the non-breaching party. If the breach is a material breach of an obligation relating to the other party’s Confidential Information, including Licensee’s use or disclosure of the Platform other than in compliance with the license granted in this Agreement, or the non-solicitation obligations hereunder then the non-breaching party, in its sole discretion, may specify in the notice of breach that no cure period will be permitted. If the breach is other than a breach of the kind described above in this paragraph, then the cure period will be 30 days after the notice of the breach by the non-breaching party.
(b). Termination. If a breach of any provision of this Agreement has not been cured at the end of the applicable cure period, if any (or upon such breach if no cure period is permitted), then the non-breaching party thereupon may terminate this Agreement by notice to the other party. Termination of this Agreement shall terminate all licenses granted to Licensee herein. This Agreement and the licenses granted to Licensee herein shall terminate automatically, to the extent permitted by applicable law in the jurisdiction or jurisdictions in question, if Licensee makes an assignment for the benefit of its creditors, files a petition for bankruptcy, receivership, reorganization, or other like proceeding under any present or future debtor relief law (or is the subject of an involuntary such petition or filing that is not dismissed within 60 days after the effective filing date thereof), or admits of a general inability to pay its debts as they become due. Any termination of this Agreement shall be in addition to, and not in lieu of, any other rights or remedies available at law or in equity.
(c). Disposition of Licensee Data. Upon Licensee’s written request within 30 days following the expiration or any termination of this Agreement, Gun.io shall destroy the Licensee Data; provided, however, that to the extent Gun.io is required by applicable law or legal process to retain any portion of the Licensee Data, or to the extent that destruction of any Licensee Data is infeasible, Gun.io shall retain such Licensee Data as though it were Confidential Information for such time as is required by such law or process or until destruction is no longer infeasible, after which Gun.io promptly shall destroy the Licensee Data.
11. Risk Allocation
|Short Version: We will not be liable for damages or losses arising from your use or inability to use the Licensed Materials or Services or otherwise arising under this Agreement. Our maximum liability to you is $1,000. Please read this section carefully; it limits our obligations to you.|
(a). EXCLUSION OF INDIRECT DAMAGES. IN NO EVENT WILL GUN.IO BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER GUN.IO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b). MAXIMUM AGGREGATE LIABILITY. IN NO EVENT WILL GUN.IO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED $1,000.
(c). Intentional Risk Allocation. Each party acknowledges that the provisions of this Agreement were negotiated, as a material part of the agreement memorialized herein, to reflect an informed, voluntary allocation between them of all risks (both known and unknown) associated with the transactions involved with this Agreement. The warranty disclaimers and limitations in this Agreement are intended, and have as their essential purpose, to limit the circumstances of liability. The remedy limitations and the limitations of liability are separately intended, and have as their essential purpose, to limit the forms of relief available to the parties.
|Short Version: We may list you as a customer and display your logos, but we will not own your logo.|
Gun.io may identify Licensee as a Gun.io customer and display Licensee’s logos in its marketing materials and advertisements, on its web site, and in presentations. Gun.io shall not acquire any intellectual property rights in any such logos, trademarks, service marks, or other indicia of origin.
13. Certain Data Activities
(b). International Data Transfers. Licensee acknowledges and agrees that Personal Data will be transferred to the United States of America, a jurisdiction that has been determined not to offer an adequate level of data protection by the European Commission, and Licensee consents to such transfers. Licensee further acknowledges and agrees that Gun.io’s Processor for cloud storage and related services may in limited instances transfer Personal Data from Gun.io’s cloud solution to other jurisdictions for which the European Commission has not adopted an adequacy decision. To facilitate such transfers, the parties hereby enter into the Standard Contractual Clauses attached hereto as Exhibit 1, which are incorporated by reference herein. The parties shall work together to ensure that they have a legally-approved mechanism in place to facilitate such data transfers.
(c). GDPR. The parties acknowledge and agree that, where the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”) applies, Licensee and Gun.io are acting as independent controllers for purposes of the GDPR. To the extent Licensee (a) provides a photograph that is biometric information or reveals racial or ethnic origin or religious or philosophical beliefs or (b) provides information regarding trade union membership, Licensee specifically consents to the processing of such special categories of personal data by Gun.io for the purposes of providing the Licensed Materials and Services.
(d). CCPA. Licensee hereby directs Gun.io to disclose Licensee’s personal information to third parties in connection with the Services. Such third parties shall include organizations using Gun.io to locate and retain developers.
14. Other Provisions
|Short Version: This section describes how to provide notices, the nature of our relationship, when a party may be excused from performance for an extreme event, what law applies, where disputes will be resolved, when injunctive relief is available, when the Agreement may be assigned, what requirements survive termination, how the agreement may be amended, and how to interpret the Agreement and the actions of the parties or a court. Neither party will be entitled to a jury trial, and there are no third-party beneficiaries. This is the entire agreement between us with respect to the matters address in it.|
(a). Notice. Except as otherwise expressly provided herein, notices shall be given under this Agreement in writing in the English language, signed by the party giving the same, and shall be given (i) personally (in which case such notices shall be deemed given when so delivered), (ii) by certified or registered U.S. Mail, properly addressed and postage pre-paid, from within the United States (in which case such notices shall be deemed given on the third business day after deposit), (iii) by generally recognized overnight courier, properly addressed and pre-paid, with next business day instruction (in which case such notices shall be deemed given on the next business day after deposit), or (iv) if to Licensee, at Gun.io’s election, by e-mail (in which case such notice shall be deemed given upon transmission unless Gun.io receives a non-delivery email message within a reasonable time thereafter). Such notices shall be sent to Gun.io at Attn: VP Operations, Gun.io, 1200 Clinton St. Suite 225, Nashville, TN 37203 and to Licensee at the address for notices or email address designated in the Registration or as provided in clause (iv) of this the preceding sentence. Either party may change its address for purposes of notice by written notice thereof to the other party.
(b). Nature of Relationship; Subcontractors. Gun.io shall provide all Services hereunder as an independent contractor to Licensee. Subject to the provisions of this Agreement regarding confidentiality, Gun.io may perform its obligations hereunder through its employees and through subcontractors. Nothing contained herein shall be deemed to create any agency, partnership, joint venture, or other relationship between the parties or any of their affiliates, and neither party shall have the right, power, or authority under this Agreement to create any duty or obligation on behalf of the other party.
(c). Force Majeure. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control of such party and not due to such party’s own fault or negligence or that of its contractors or representatives or other persons acting on its behalf, and which cannot be overcome by the exercise of due diligence and which could not have been prevented through commercially reasonable measures, including acts of God, acts of terrorists or criminals, acts of domestic or foreign governments, change in any law or regulation, fires, floods, explosions, epidemics, disruptions in communications, power, or other utilities, strikes or other labor problems, riots, or unavailability of supplies.
(d). Governing Law; Venue. This Agreement shall be construed and enforced in accordance with the laws of the state of Tennessee (other than its conflicts of law provisions) and venue shall be exclusively in the federal or state courts sitting in Tennessee.
(e). Jury Trial Waiver. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM, OR CROSS-CLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THIS AGREEMENT, BECAUSE THE PARTIES HERETO, BOTH OF WHICH ARE REPRESENTED BY COUNSEL, BELIEVE THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALINGS WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.
(f). Injunctive Relief. Each party acknowledges that any violation of its covenants in this Agreement relating to the other party’s Confidential Information and intellectual property would result in damage to such party that is largely intangible but nonetheless real and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give such party the right to a court-ordered injunction or other appropriate order to enforce specifically those covenants without bond and without prejudice to any other rights or remedies to which such party may be entitled as a result of a breach of this Agreement.
(g). Assignment. Licensee may transfer or assign some or all of its rights and/or delegate some or all of its obligations under this Agreement only with the express prior written consent of Gun.io, which may be granted or withheld in Gun.io’s sole discretion; provided, however, that if Licensee is not a natural person, Licensee may assign all of its rights hereunder indivisibly to an entity that controls, is controlled by, or is under common control with Licensee (“control” meaning possession, directly or indirectly, of a majority of an entity’s voting interests) or to a purchaser of substantially all of Licensee’s assets so long as such assignee (i) agrees in writing to comply with Licensee’s obligations under, and to be bound by, this Agreement (this clause does not in itself authorize Licensee to delegate its duties under this Agreement) and (ii) promptly notifies Gun.io in writing of the same. Any purported transfer or assignment by Licensee of any right under this Agreement otherwise than in accordance with the provisions of this paragraph shall be null and void and a breach of this Agreement. This Agreement shall be fully assignable by Gun.io in its sole discretion.
(h). Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns permitted by this Agreement.
(i). No Third-Party Beneficiaries. Except as otherwise expressly set forth herein, nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.
(j). Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the parties with reference thereto will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under this Agreement, it does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein.
(k). Survival. The covenants herein concerning Confidential Information, indemnification, post-termination procedures, and any other provision that, by its nature, is intended to survive this Agreement shall survive any termination or expiration of this Agreement.
(l). Amendment and Waiver. Except as otherwise expressly provided herein, no modification or amendment to this Agreement will be valid or binding unless in writing and duly executed by the party or parties to be bound thereby. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right of such party to require performance of that provision. Any waiver by either party of any breach of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
(m). Severability. If any provision of this Agreement is ruled wholly or partly invalid or unenforceable by a court or other body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected; (ii) the effect of the ruling will be limited to the jurisdiction of the court or other body making the ruling; (iii) the provision held wholly or partly invalid or unenforceable shall be deemed amended, and the court or other body is authorized to reform the provision, to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (iv) if the ruling or the controlling principle of law or equity leading to the ruling subsequently is overruled, modified, or amended by legislative, judicial, or administrative action, then the provision in question as originally set forth in this Agreement shall be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.
(n). Headings. The headings of the sections used in this Agreement, including the “Short Version” descriptions, are included for convenience only and are not to be used in construing or interpreting this Agreement.
STANDARD CONTRACTUAL CLAUSES
Controller to Controller
Purpose and scope
(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’) have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Effect and invariability of the Clauses
(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.
(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.
(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:
(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;
(ii) Clause 8.5 (e) and Clause 8.9(b);
(iv) Clause 12(a) and (d);
(v) Clause 13;
(vi) Clause 15.1(c), (d) and (e);
(vii) Clause 16(e);
(viii) Clause 18(a) and (b).
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.
(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.
(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II — OBLIGATIONS OF THE PARTIES
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Purpose limitation
(a) The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B. It may only process the personal data for another purpose:
(i) where it has obtained the data subject’s prior consent;
(ii) where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iii) where necessary in order to protect the vital interests of the data subject or of another natural person.
(a) In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:
(i) of its identity and contact details;
(ii) of the categories of personal data processed;
(iii) of the right to obtain a copy of these Clauses;
(iv) where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.
(b) Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.
(c) On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.
(d) Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.3 Accuracy and data minimisation
(a) Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.
(b) If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.
(c) The data importer shall ensure that the personal data is adequate, relevant and limited to what is necessary in relation to the purpose(s) of processing.
8.4 Storage limitation
The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation of the data and all back-ups at the end of the retention period.
8.5 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.
(b) The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(c) The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(d) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the personal data breach, including measures to mitigate its possible adverse effects.
(e) In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.
(f) In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.
(g) The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.
8.6 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences (hereinafter ‘sensitive data’), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.
8.7 Onward transfers
(a) The data importer shall not disclose the personal data to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:
(i) it is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679 with respect to the processing in question;
(iii) the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;
(iv) it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;
(v) it is necessary in order to protect the vital interests of the data subject or of another natural person; or
(vi) where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.8 Processing under the authority of the data importer
The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.
8.9 Documentation and compliance
(a) Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.
(b) The data importer shall make such documentation available to the competent supervisory authority on request.
Use of sub-processors
Data subject rights
(a) The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request. The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.
(b) In particular, upon request by the data subject the data importer shall, free of charge:
(i) provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);
(ii) rectify inaccurate or incomplete data concerning the data subject;
(iii) erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.
(c) Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.
(d) The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter ‘automated decision’), which would produce legal effects concerning the data subject or similarly significantly affect him/her, unless with the explicit consent of the data subject or if authorised to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:
(i) inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and
(ii) implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.
(e) Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.
(f) The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.
(g) If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter under Regulation (EU) 2016/679.
(c) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(d) The Parties agree that if one Party is held liable under paragraph (c), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(e) The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.
(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Obligations of the data importer in case of access by public authorities
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland.
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts of Ireland.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
A. LIST OF PARTIES
Name: Licensee, as defined in the Agreement
Address: Licensee, at the address set forth in the Registration
Contact person’s name, position and contact details: As set forth in the Registration
Activities relevant to the data transferred under these Clauses: Performance of its rights and obligations under the Agreement, including access to the Platform and Services
Role (controller/processor): Controller
Address: VP Operations, Gun.io, 1200 Clinton St. Suite 225, Nashville, TN 37203
Contact person’s name, position and contact details: See above
Activities relevant to the data transferred under these Clauses: Performance of its rights and obligations under the Agreement, including provision of access to the Platform and Services
Role (controller/processor): Controller
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
The data exporter and any of data exporter’s employees
Categories of personal data transferred
The data exporter’s user account credentials, name, address, telephone number, photograph, professional/employment information, and information collected via cookies and similar technologies
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
Photographs provided by data exporter may constitute biometric data, reveal racial or ethnic origin, or reveal religious or philosophical beliefs. Data exporter may also provider information regarding trade union membership.
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
Periodically throughout the term of the Agreement
Nature of the processing
The data importer will process personal data for the purposes of providing the Services and as set forth in the Agreement. Processing activities may include: collection, hosting, retrieval, organization, storage, alteration, enhancement, aggregation, de-identification, use, and disclosure.
Purpose(s) of the data transfer and further processing
The transfer is intended to enable the performance of the relationship between the parties as contemplated by the Agreement.
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Any personal data transferred between the parties may only be retained for the period of time permitted under the Agreement.
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
|Category of Processors||Subject Matter, Nature, Duration of Processing|
|Hosting Vendors (e.g. AWS, Box)||Hosting Vendors may provide data hosting, storage, and analytics services periodically throughout the term of the Agreement.|
|Document Execution Vendors (e.g. HelloSign)||Document Execution Vendors may provide document execution services periodically throughout the term of the Agreement.|
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13: Irish Data Protection Commission
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the data importer has implemented appropriate technical and organizational measures intended to ensure a level of security appropriate to the risk.
- Gun.io implements various security and compliance measures to ensure that our technical and organizational controls to ensure security and processing of data are appropriate. Gun.io implements discrete controls, made up of many various individual controls, as part of our compliance requirements to ensure that we meet these requirements.
- Gun.io encrypts all data in transit, ensuring that data cannot be accessed by any unauthorized parties while in transit. Gun.io implements various measures including regular evaluation of processing systems to ensure ongoing integrity, availability, and resilience of processing systems and services.
- Gun.io has various processes in place for regularly testing, assessing, and evaluating the effectiveness of our measures. These include, but are not limited to, audits of access levels, arbitrary spot checks to ensure control compliance, and stringent access control scope.
- In the event of a Disaster Recovery incident, Gun.io is well prepared. Our infrastructure is well documented, and we are familiar with the processes and flows needed to recover with speed and accuracy.
- Gun.io conducts vendor reviews for all material vendors deemed critical to business continuity, and infrastructure providers are required to meet industry standards for physical and digital security controls and implementations.