Gem Terms of Service
Last Updated: July 26, 2022
Welcome, and thank you for your interest in Gem Technologies Holdings Inc. d/b/a Pearl App and its affiliates (“Gem,” “Pearl,” “we,” or “us”) and our website at https://pearl.app, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Gem regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND GEM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
ADDITIONAL TERMS. For the avoidance of doubt, in addition to these Terms, you are subject to any additional terms set forth in any agreements to which you are a party governing your purchase and sale of Creator Tokens (as defined below) or any other transactions that you may enter into in connection with your use of the Service.
ACKNOWLEDGMENT OF RISK. We do not intend to provide any financial, investment, legal or tax advice, or any other advice of any kind. Although the Service may provide data, information, research, or content provided by third parties or by us relating to Creator Tokens, you should not interpret any such content as tax, legal, financial, or investment advice or a recommendation to purchase any Creator Tokens. The Creator Tokens listed on the Service may involve a high degree of risk. Purchasing or selling Creator Tokens poses certain risks, including without limitation the risks that certain content relating to a Creator Token may not be provided as anticipated, and that the Creator Tokens may fluctuate in value. You should not purchase Creator Tokens if you cannot afford to lose the entire amount of your investment. Before purchasing or selling Creator Tokens, you should (i) conduct your own investigation and analysis, (ii) carefully consider the purchase or sale of Creator Tokens and all related charges, expenses, uncertainties and risks, and (iii) consult with your own tax, financial and legal advisors. YOUR USE OF THE SERVICE AND ANY DECISIONS YOU MAKE TO PURCHASE OR SELL CREATOR TOKENS ARE AT YOUR SOLE RISK.
1. Gem Service Overview. Gem has created a money-native, decentralized social media platform built on blockchain technology that, among other things, assists content creators (“Creators”) in monetizing their content and allows users to purchase tokens associated with a Creator (“Creator Tokens”) that can be used for a variety of purposes, including, without limitation, purchasing access to restricted Creator content or buying, selling, or trading Creator Tokens through the Service.
2. Eligibility. You must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration.
3.1 General. To access the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, phone number, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at email@example.com. You may also be required to provide us with certain tax information about yourself in order for us to provide you the Services. You certify, under penalty of perjury, that: (i) the Taxpayer Identification Number or Social Security Number you provided is correct; (ii) you are not subject to backup withholding because (1) you are exempt from backup withholding, (2) you have not been notified by the Internal Revenue Service (“IRS”) that you are subject to backup withholding as a result of a failure to report all interest or dividends, or (3) the IRS has notified you that you are no longer subject to backup withholding; and (iii) you are a U.S. citizen or other U.S. person. The IRS does not require your consent to any provision of this document other than the certifications required to avoid backup withholding.
4. Creator Tokens.
4.1 The DeSo Blockchain. The Services are built on the DeSo blockchain, which has its own native cryptocurrency, $DESO, that can be used to purchase Creator Tokens. You can purchase and sell $DESO (i) through the Services with fiat currency or (ii) on a third-party cryptocurrency trading platform that supports $DESO and then transferring the $DESO you purchase to your account. When you purchase Creator Tokens using $DESO, new Creator Tokens are “minted” for you and the $DESO used to purchase the Creator Tokens are “locked” into the profile associated with the Creator which are only “unlocked” when you sell the Creator Token.
4.2 No Liability for Legal Compliance of the DeSo Blockchain. Gem is not the issuer of $DESO, which are used solely on Gem’s platform as a means to transfer value with respect to the Services. Gem has no responsibility for, and will have no liability based on, $DESO or any use of $DESO, including without limitation based on the compliance of $DESO, of any distributions of or transactions in $DESO, or by Deso Foundation as the issuer of the $DESO with applicable law. If $DESO or the Deso Foundation are found to be out of compliance with applicable law, including without limitation the US federal securities or commodities laws, the $DESO you hold and related assets you hold based on the Services (such as the Creator Tokens) may decrease in value and potentially lose their value entirely. Gem will have no responsibility for any such events.
4.3 Your Creator Token; Founder’s Rewards. Every account created through the Service has a Creator Token associated with it – though no Creator Tokens will be in existence at that time you successfully register an account since no one has purchased your Creator Tokens yet. When you create an account, you may allocate a certain percentage of $DESO that are used to purchase Creator Coins as a “Founder’s Reward.” Every purchase by a user of Creator Tokens is subject to this Founder’s Reward. For example, if you set the Founder’s Reward percentage to 5% and another user purchases a quantity of Creator Tokens with 100 $DESO, then you will be eligible to receive 5 $DESO as the Founder’s Reward.
4.4 Using Creator Tokens. Creator Tokens that you purchase from a Creator’s profile may be used for a variety of purposes enabled by the Services, which may include, without limitation, purchasing certain User Content uploaded by the Creator through the Service or obtaining exclusive access to a Creator. Each Creator is solely responsible for determining the utility of any Creator Tokens that it issues. Creator Tokens are not intended as investments; they are designed for use and engagement between Creators and their fans.
4.5 Restrictions. Designing or marketing Creator Tokens to give them an investment purpose or to otherwise cause them to be viewed as securities is not permitted.
4.6 Fees. The Service is currently made available to you free of charge, but we reserve the right to determine pricing for the Service and may later change the fees for any features or functionality made available to you through the Service, including, without limitation, fees for transactions you make with respect to Creator Tokens. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged by us.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Gem grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Gem an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Ownership; Proprietary Rights. The Service is owned and operated by Gem or its third party licensors. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided or made available by Gem are protected by intellectual property and other laws. All Materials included in the Service are the property of Gem or its third party licensors. Except as expressly authorized by Gem, you may not make use of the Materials. Gem reserves all rights to the Materials not granted expressly in these Terms.
7. Third Party Terms
7.1 Third Party Services and Linked Websites. Gem may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Gem with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Gem may transfer that information to the applicable third party service. Third party services are not under Gem’s control, and, to the fullest extent permitted by law, Gem is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Gem’s control, and Gem is not responsible for their content.
7.2 Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
8. User Content
8.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, comments, posts, photos, video, images, folders, data, text, and other types of works (“User Content”), and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
8.2 Limited License Grant to Gem. By providing User Content to or via the Service, you grant Gem a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute User Content that (i) you upload or publish for the general public or (ii) you upload or publish on a restricted or limited basis (but solely in accordance with the restrictions or limitations permitted through the functionality of the Service that are chosen by you at the time you upload or publish such User Content); in each case, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
8.3 Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content, subject to any restrictions or limitations you specify at the time you upload or publish such User Content (if any), as permitted by these Terms and the functionality of the Service.
8.4 User Content Representations and Warranties. Gem disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Gem and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Gem, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Gem to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Gem may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Gem with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Gem does not permit copyright-infringing activities on the Service.
9.1 Text Messaging. Gem and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service. Operational text messages are essential to the Service. If you do not wish to receive operational text messages from us, do not use the Service. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive marketing text messages is not a condition of any purchase or use of the Service. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
9.2 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
9.3 Email. We may send you emails concerning out products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
g. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
11. Digital Millennium Copyright Act
11.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Gem Technologies Holdings Inc.
ATTN: Legal Department (Copyright Notification)
548 Market St. #61915 San Francisco, CA 94104-5401
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
11. 2 Repeat Infringers. Gem will promptly terminate the accounts of users that are determined by Gem to be repeat infringers.
12. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice by sending an email notification, providing notice through the Services, or updating the “Last Updated” date at the beginning of these Terms. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. Term, Termination and Modification of the Service
13.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
13.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Gem may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by deleting your account through the functionality of the Service or contacting customer service at firstname.lastname@example.org.
13.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) we will sell, at the then-prevailing market value (in fiat currency) of $DESO on the cryptocurrency exchange platform operated by Coinbase, Inc. as of 5PM EST on the date of any such termination, any $DESO remaining in your account at the the time of termination and will promptly remit payment to you using the payment information associated with your account; (d) we will promptly sell the Creator Coins you have purchased that are remaining in your account at the time of termination and remit the proceeds to you; and (e) all payment obligations accrued prior to termination and Sections 5.3, 6, 8.2, 13.3, 15, 16, 17, and 18 will survive.
13.4 Modification of the Service. Gem reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Gem will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Gem and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Gem Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. GEM DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. GEM DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND GEM DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR GEM ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE GEM ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Gem does not disclaim any warranty or other right that Gem is prohibited from disclaiming under applicable law.
16. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE GEM ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSSES IN VALUE OF $DESO OR CREATOR TOKENS OR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY GEM ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 17.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE GEM ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO GEM FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
17.1 Generally. In the interest of resolving disputes between you and Gem in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.3, you and Gem agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GEM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2 Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to Gem Technologies Holdings Inc, Attention: Legal Department – Arbitration Opt-Out, 548 Market St. #61915 San Francisco, CA 94104-5401 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Gem receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
17.4 Arbitrator. Any arbitration between you and Gem will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Gem. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
17.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Gem’s address for Notice is: Gem Technologies Holdings Inc., 548 Market St. #61915 San Francisco, CA 94104-5401. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Gem may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Gem must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Gem in settlement of the dispute prior to the award, Gem will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
17. 6 Fees. If you commence arbitration in accordance with these Terms, Gem will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Gem for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17. 7 No Class Actions. YOU AND GEM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Gem agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.8 Modifications to this Arbitration Provision. If Gem makes any future change to this arbitration provision, other than a change to Gem’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Gem’s address for Notice of Arbitration, in which case your account with Gem will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.9 Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if Gem receives an Opt-Out Notice from you, then the entirety of this Section 177 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
18.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Gem submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.6 Contact Information. The Service is offered by Gem Technologies Holdings Inc., located at 548 Market St. #61915 San Francisco, CA 94104-5401. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
18.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
18.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
18.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
19. Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Gem only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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.
Gem Technologies Holdings Inc.
Last Updated: March 25, 2022
Information We Collect
We may collect a variety of information from or about you or your devices from various sources, as described below.
If you do not provide your Personal Information when requested, you may not be able to use our Services if that information is necessary to provide you with our Services or if we are legally required to collect it.
A. Information You Provide to Us
Registration and Profile Information. When you sign up for an account, register to use our Services, sign up for notifications or updates, or participate in our surveys, we ask you for Personal Information, including your name, username, and email address. Additionally, to access certain parts of our Services, we may require you to upload an image of your government-issued identification.
Communications with Us. If you contact us directly, we may receive additional information about you. For example, when you contact us for customer support, we may receive your name, email address, phone number, the contents of the messages or attachments that you may send to us, and other information you choose to provide. If you subscribe to our newsletter, then we will collect certain information from you, such as your email address. When we send you emails, we may track whether you open them to learn how to deliver a better customer experience and improve our Services.
Payment Information. When you make a payment to Gem, your credit card information, debit card information, billing information, and any other financial information necessary to complete your payment (“Payment Information”) is processed by our third-party payment processor (Sila), and we do not collect, store, or process your Payment Information. For more information, please see the Payment Processing section below.
Careers. If you wish to apply for a job with us, you may submit your contact information and your resume online. We will collect the information you choose to provide on your resume, such as your education and employment experience. You may also apply through our website. If you do so, we will collect the information you make available to us on our website.
B. Information We Collect When You Use Our Services
Location Information. When you use our Services, we may infer your general location information (for example, your IP address may indicate your general geographic region).
Device Information. We receive information about the device and software you use to access our Services, including (IP) address, web browser type, operating system version, phone carrier and manufacturer, application installations, device identifiers, mobile advertising identifiers, and push notification tokens.
Usage Information. To help us understand how you use our Services and to help us improve them, we automatically receive information about your interactions with our Services, such as the pages or other content you view, the searches you conduct, telemetry data, and the dates and times of your visits.
C. Payment Processing
How We Use the Information We Collect
We use the information we collect:
Legal Bases For Processing European Information
If you are located in the European Economic Area (“EEA”) or the United Kingdom (“U.K.”), we only process your Personal Information when we have a valid “legal basis,” including as set forth below.
How We Share the Information We Collect
Vendors and Service Providers. We may share any information we receive with vendors and service providers retained in connection with the provision of our Services.
Analytics Partners. We use analytics services such as FullStory and Google Analytics to collect and process certain analytics data. These services may also collect information about your use of other websites, apps, and online resources. You can learn about FullStory’s practices by going to https://www.fullstory.com/legal/privacy-policy/, and opt out of the service by going to https://www.fullstory.com/optout/. You can learn about Google Analytics’ practices by going to https://policies.google.com/privacy?hl=en-US, and opt out of the service by going to https://tools.google.com/dlpage/gaoptout. To help us understand how you use our Services and to help us improve them, we automatically receive information about your interactions with our Services, like the content you view, the features you use, the searches you conduct, and the dates and times of your visits.
Sharing Between Users. We facilitate your communication with other Users, which may require the disclosure of certain Personal Information to such other Users.
Marketing. We do not rent, sell, or share Personal Information about you with nonaffiliated companies for their direct marketing purposes unless we have your permission.
As Required by Law and Similar Disclosures. We may access, preserve, and disclose your information if we believe doing so is required or appropriate to: (a) comply with law enforcement requests and legal process, such as a court order or subpoena; (b) respond to your requests; or (c) protect your, our, or others’ rights, property, or safety. For the avoidance of doubt, the disclosure of your Personal Information may occur if you post any objectionable content on or through our Services.
Merger, Sale, or Other Asset Transfers. We may disclose and transfer your Personal Information to service providers, advisors, potential transactional partners, or other third parties in connection with the consideration, negotiation, or completion of a corporate transaction in which we are acquired by or merged with another company, or we sell, liquidate, or transfer all or a portion of our business or assets.
Consent. We may also disclose Personal Information from or about you or your devices with your permission.
Marketing Communications. You can unsubscribe from our promotional emails via the link provided in the emails. Even if you opt out of receiving promotional messages from us, you will continue to receive administrative messages from us.
Your European Privacy Rights. If you are located in the EEA or the UK, you have the additional rights described below.
California Resident Privacy Notice
California Privacy Rights. If you are a resident of the State of California, under the California Consumer Privacy Act (CCPA), you have the right to request information on how to exercise your disclosure choice options from companies conducting business in California. Specifically:
To submit a request to exercise any of the rights described above, you may contact Gem either via email to firstname.lastname@example.org or contact us via postal mail, proper postage prepaid, at:
Gem Technologies Holdings Inc.
Attn: Your California Privacy Rights
548 Market St. #61915
San Francisco, CA 94104
Please indicate your preference as to how you would like us to respond to your request (i.e., email or postal mail). All requests sent via postal mail must be labeled “Your California Privacy Rights” on the envelope or postcard and clearly stated on the actual request. For all requests, please include your name, street address (if you would like a response via postal mail), city, state, and zip code. We may need to verify your identity before responding to your request, such as verifying that the email address or contact information from which you send the request matches your email address or contact information that we have on file. Authentication based on a government-issued and valid identification document may be required. We will not accept requests via telephone or fax. We are not responsible for notices that are not labeled or sent properly, or do not have complete information.
Electronic Fund Transfers (EFTs) and Account Balances.
The Below Only Applies to Users in the United States.
We take measures to delete your Personal Information or keep it in a form that does not permit identifying you when your Personal Information is no longer necessary for the purposes for which we process it unless we are required by law to keep your Personal Information for a longer period. When determining the specific retention period, we consider various factors, such as the type of service provided to you, the nature and length of our relationship with you, and mandatory retention periods provided by law and the statute of limitations.
We make reasonable efforts to protect your Personal Information by using physical and electronic safeguards designed to improve the security of the Personal Information we maintain. However, as no electronic transmission or storage of information can be entirely secure, we can make no guarantees as to the security or privacy of your Personal Information.
Our Services are hosted in the United States (“U.S.”) and intended for visitors located within the U.S. If you choose to use our Services from the European Union or other regions of the world with laws governing data collection and use that may differ from U.S. law, then please note that you are transferring your Personal Information outside of those regions to the U.S. for storage and processing. We may transfer Personal Information from the EEA or the UK to the U.S. and other third countries based on European Commission-approved Standard Contractual Clauses, as needed to perform our Services that you have requested from us, or with your consent. Also, we may transfer your Personal Information from the U.S. to other countries or regions in connection with storage and processing of data, fulfilling your requests, and operating our Services. By providing any information, including Personal Information, on or to our Services, you consent to such transfer, storage, and processing.
If you have any questions, comments, or concerns about our processing activities, please email us at email@example.com or write us at the address below.
Gem Technologies Holdings, Inc.
ATTN: Legal Department
548 Market St, #61915
San Francisco, CA 94104