This terms of service agreement (“Terms”) sets forth the terms under which the website Carbonology Interactive LLC (“we,” “our,” or “us”), through the subsidiary product "Gatsby.af" provides our messaging services, including our apps, features, software, and website (“Gatsby”).
IF YOU ARE LOCATED IN THE UNITED STATES OR CANADA, EXCEPT WHERE PROHIBITED BY LAW (WHICH MAY INCLUDED THE PROVINCE OF QUEBEC),YOU AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. WE EXPLAIN SOME EXCEPTIONS BELOW. PLEASE REVIEWSECTION 13.
By registering for or using Gatsby, you agree to these Terms.
We issue unique phone numbers (“Gatsby Numbers”) to individuals and entities or their designees (collectively, “Gatsby Leaders”).
Gatsby Leaders can use Gatsby to message with the individuals who havesigned up to receive messages from their Gatsby Number (“Gatsby Members”).
If you are under the age of 13, you are not permitted to use Gatsby. If you are at least 13 and under 18 years of age (or under the applicable age of majority in your state or territory of residence), you may use Gatsby, but only if you have the consent of your parent or legalguardian, including consent to these Terms on your behalf.
If you are registering for Gatsby on behalf of an organization, then you are entering into these Terms on behalf of the organization, and you represent that you have the authority to bind the organization to these Terms.
You must not use Gatsby to transmit any content or data that is unlawful, that infringes any intellectual property rights, or that otherwise violates our Acceptable Use Policy.
Though we have no obligation to do so, we may access, review, block, or delete your messages at any time and for any reason, including (i) to provide and develop Gatsby, (ii) if we think your messages violate these Terms, and (iii) to comply with applicable law or any request or requirement of a court, law enforcement or other administrative agency or governmental body.
To become a Gatsby Member, you must: (i) start a conversation with a Gatsby Leader (for example, by sending a text message to their Gatsby Number); (ii) provide certain information, such as your name, date of birth, gender identity, city, and phone number; and (iii) give prior express signed written consent to receive recurring messages (which may be marketing and/or automated) from or on behalf of the applicable Gatsby Leader via Gatsby. Your consent to receive such messages is not a condition of any purchase.
You agree that:
We have no control over and do not guarantee: (a) the suitability or legality of messages sent by Gatsby Leaders; (b) the truth or accuracy of messages sent by Gatsby Leaders; (c) the performance or conduct of Gatsby Leaders; or (d) who a Gatsby Leader permits toaccess and use Gatsby on their behalf. If you think a Gatsby Leader is sending messages in violation of our Acceptable Use Policy, please email us at email@example.com.
By sending messages to a Gatsby Leader, you grant that Gatsby Leader(including individuals and entities working or affiliated with such Gatsby Leader) a worldwide, royalty-free, sublicensable, transferable, and perpetual license to reproduce, distribute, display, publish, and otherwise use your messages in any way and for any purpose, and you grant us all of the same rights to use your messages for the purpose of operating, providing and improving Gatsby (such as to allow us to deliver your messages to the Gatsby Leader, and to storeyour messages on our servers).****
You acknowledge and agree that (i) a Gatsby Leader may share your messages publicly (including for marketing purposes); (ii) you have no expectation of privacy with respect to messages you send to a Gatsby Leader; and (iii) we may collect, analyze and use your messages together with your information, including demographic and location information, on an aggregated, de-identified or anonymized basis together with the messages and information of others, for any purpose, including to improve, enhance, further develop and test Gatsby and any of our technology, to create and refine algorithms and other machine learning methods and processes, to identify and predict patterns and trends, and to train and refine machine learning or analytical models or engines.
If you are signing up as a Gatsby Leader, please also read our Additional Terms for Gatsby Leaders, which you are also agreeing to.
If you are signing up to use Gatsby on a Gatsby Leader’s behalf, you acknowledge that you may only use Gatsby with their permission and in ways that would be permitted by that Gatsby Leader (for example, messages you send on their behalf must not violate our **Acceptable Use Policy**).
You agree to pay fees in accordance with the then-current applicable rates available at https://www.gatsby.af/pricing.
Additionally, we will charge you, and you will pay, in accordance with Section 6.3 (Fees and Payment Terms), any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunications provider as a result of your use of the Services.
All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). You will pay all Taxes associated with these Terms, excluding any taxes based on our net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to us, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by us. You will provide us with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.
All fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, “Communications Surcharges”). You will pay all Communications Surcharges associated with your use of the Services. Communications Surcharges will be shown as a separate line item on an invoice.
If you are exempt from paying certain Taxes or Communications Surcharges, you will provide the necessary exemption information as requested by us or a valid exemption certificate issued by the appropriate authority via e-mail to firstname.lastname@example.org. You will be exempt on a going-forward basis once we approve your exemption request. If the appropriate authority determines, at any time, that you are not exempt from paying any Taxes or Communications Surcharges, you will promptly pay such Taxes or Communications Surcharges to us, plus any applicable interest or penalties.
Payment obligations are non-cancelable and fees, Taxes, and Communications Surcharges (collectively, "Fees") once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 6.4 (Payment Disputes), you will pay the Fees due under these Terms in accordance with the following applicable payment method:
If you elect to add funds to your account by credit card and use such funds to pay the Fees due, you are responsible for ensuring that such funds cover the Fees due. If your account does not have sufficient funds or your credit card declines a charge for the Fees due, we reserve the right to suspend the Services to all of your accounts until the Fees due are paid in full.
If you elect to receive invoices and we approve you for the same, invoices will be sent to you each month via email to the email address(es) you designate in your account. You will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent you procure the Services without an Order Form, the Fees are payable in United States dollars. If you fail to pay the Fees and remedy such failure within fifteen (15) days of the date we provide you with written notice of the same, we may (a) assess, and you will pay, a late fee of the lesser of 1.5% per month or the maximum amount allowable by applicable law and (b) suspend the Services to all of your accounts until the Fees are paid in full.
You will notify us in writing within sixty (60) days of the date we bill you for any Fees that you wish to dispute. You may withhold the disputed Fees until the dispute is resolved. Where you are disputing any Fees, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. We will not charge you a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless you fail to cooperate diligently with us or we determine your dispute is not reasonable or brought in good faith.
We and our licensors retain all right, title and interest, including all intellectual property rights, in and to Gatsby and all Gatsby Numbers. Any and all use of our trademarks by you will inure to our benefit and you will not obtain or retain any rights in our trademarks.
You must not (and must not assist or allow others to): (i) reverse engineer, alter, modify, create derivative works from, decompile, or extract code from our apps or websites; (ii) send, store, or transmit viruses or other harmful computer code through or onto our servers or systems; (iii) gain or attempt to gain unauthorized access to our servers or systems; (iv) interfere with or disrupt the integrity or performance of our servers or systems; (v) create accounts or send messages through unauthorized or automated means; or (vi) collect the information of or about our users in any impermissible or unauthorized manner.
We welcome and encourage you to provide us with feedback, comments, and suggestions for improvements to Gatsby (“Feedback“). Any Feedback you submit to us will be owned by us and we may use and exploit that Feedback without restriction for any purpose, withoutcompensation to you.
You may terminate these Terms at any time and for any reason by emailing us at us at email@example.com and asking us to delete your Gatsby account, and we may suspend or disable your Gatsby account and/or terminate these Terms at any time, for any reason, without advance notice. If we suspend or disable your Gatsby account for a violation of these Terms, you must not create another Gatsby account without our permission.
Regardless of who terminates these Terms, both you and we continue to be bound by sections 3, 4, 6, and 9-16 of these Terms and, if you are a Gatsby Leader, by sections 6, 7, and 8 of our **Additional Terms for Gatsby Leaders**.
If you believe that anything on Gatsby infringes a copyright that you own or control, please send us a written notice to the address or email below that meets the requirements set forth in the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”).
Carbonology Interactive LLC. DMCA Notices 1309 Coffeen Avenue STE 1200 Sheridan WY 82801
If we have taken down any material or content that you believe should not have been removed, you can send us a written counter-notice by email to firstname.lastname@example.org. Please be sure your counter-notice meets the DMCA requirements.
We may promptly terminate without notice the accounts of users who have been notified of infringing activity, including those who have had messages removed from Gatsby at least three times (“Repeat Infringers”). Repeat Infringers will not be tolerated.
The laws of certain jurisdictions, including Quebec, may not allow limitations on implied warranties or conditions. If these laws apply to you, some or all of the below disclaimers might not apply to you.
To the maximum extent permitted by law:
The laws of certain jurisdictions, including Quebec, may not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the below limitations might not apply to you.
To the maximum extent permitted by law, we and our shareholders, employees, affiliates, associated companies, licensors, agents, and suppliers (collectively, the “Affiliated Entities”) will not be liable for any indirect, incidental, special, consequential, exemplary, punitive, or multiple damages, or any loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use Gatsby; (ii) the conduct or content of other users or third parties via Gatsby; or (iii) unauthorized access, use, or alteration of your messages, even if we have been advised of the possibility of such damages.
Your sole and exclusive remedy for dissatisfaction with Gatsby or any Third Party Materials is to stop using Gatsby. In no event will the liability of us and our Affiliated Entities, in the aggregate, for all claims relating to these Terms or Gatsby, exceed the greater of $100 USD or the amount you paid us, if any, to use Gatsby in the last 12 months.
To the maximum extent permitted by law, you agree to indemnify and hold us and our Affiliated Entities harmless from any losses, including legal fees and expenses, that directly or indirectly result from (i) your messages; (ii) your use of Gatsby; (iii) your violation of any laws or regulations; (iv) third-party claims that you or someone using your password did something that, if true, would violate these Terms; (v) any misrepresentations made by you; or (vi) a breach of any representations or warranties you’ve made to us. We reserve the right to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In such an event, you shall provide us with such cooperation as we reasonably request.
(Not applicable to Quebec consumers) If you are a Gatsby user located in the United States or Canada, then section 13 below applies to you. Please also read that section carefully and completely. If you are not subject to section 13 below, then all disputes arising out of or related to these Terms or any aspect of the relationship between us (including any communications between us), whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory (“Disputes”), will be resolved exclusively in the United States District Court for the Southern District of New York or a state court located in New York City, New York, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such Disputes. Without prejudice to the foregoing, you agree that, in our sole discretion, we may elect to resolve any Dispute we have with you in any competent court in the country in which you reside that has jurisdiction over the Dispute.
(Not applicable to Quebec consumers) The laws of the United States (including federal arbitration law) and the State of California govern these Terms, as well as any Disputes, whether in court or arbitration, which might arise between us, without regard to conflict of law provisions, and regardless of your location.
For Quebec consumers: These Terms, as well as any Disputes which might arise between us will be governed by the laws of the Province of Quebec, without regard to conflict of law provisions, and the laws of Canada applicable therein, and any Disputes will be submitted to the courts of competent jurisdiction of the District of Montreal (Quebec).
(Not applicable to Quebec consumers) If you are a Gatsby user located in the United States or Canada, then this section 13 applies to you.
Except for disputes that qualify for small claims court, all disputes arising out of or related to these Terms or any aspect of the relationship between us (including any communications between us), whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. You agree that we are each waiving the right to trial by a jury. Such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. All such matters will be decided by an arbitrator and not by a court or judge.
You agree that any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by these Terms. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other relevantcircumstances. If the parties are unable to agree on a location, the AAA or the arbitrator will determine the location.
The arbitrator’s decision will follow the terms of these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
You may opt out of this agreement to arbitrate by emailing us at email@example.com with your first name, last name, phone number, and address within 30 days of accepting this agreement to arbitrate, with a statement that you decline this arbitration agreement.
Notwithstanding any of the foregoing, nothing in these Terms will prevent you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant, and covenant that you are not: (i) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (ii) on any of the U.S. government lists of restricted end users.
We may modify these Terms from time to time. When we update these Terms, we will revise the “Last updated” date above and post the new Terms on gatsby.af. Your continued use of Gatsby (including, without limitation, signing up to receive messages from an additional Gatsby Leader after an update) confirms your acceptance of the updates. If you do not agree to any update, you must stop using Gatsby. We may also modify or discontinue all or part of Gatsby at any time; or charge, modify, or waive any fees required to use Gatsby.