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SOFTWARE SUBSCRIPTION AGREEMENT FOR
GigTally, LLC
(Ver. 2022.1)
This
Platform Software Subscription Agreement is a legal contract entered into by
you, the Subscriber, and GigTally, LLC. All terms of this agreement are
accepted by Subscriber upon the account creation at any level of a Subscriber
account plan, by and between GigTally, LLC, and Subscriber.
Recitals. WHEREAS, GigTally, LLC (“Company”) is engaged in the business
of the development of computer- smart device related software systems and
related products and has created and developed a software package called
GigTally, (including GigTally.com, GigTally, LLC, etc., that is providing a
Platform Software as a Service to manage jobs and which is described in greater
detail in the attached Exhibit "A" (the "Software"); and
WHEREAS, YOU (“Subscriber”) desires to utilize
such Platform Software on cloud based relational Job Management tools to manage
the job and provide a connection point between Subscriber and Subscriber’s
Talent, Agents, Team, Partner, Friend, Connection and/or Customers.
WHEREAS, Company and Subscriber believe it is in
their mutual interest and desire to enter into an agreement whereby Subscriber
would use Company Software on Subscriber’s Legally Accessed Computer and/or
Smart Device pursuant to the terms and conditions hereinafter provided.
TERMS
& CONDITIONS
IN ACCEPTANCE OF A SUBSCRIPTION PLAN AND
USE OF SOFTWARE DESCRIBED HEREIN, the parties hereto, intending to be legally
bound hereby, have each caused to be affixed hereto its or his/her electronic
seal the day indicated. Electronic records (including signatures,
confirmations, and authorizations), that are otherwise valid, shall be accepted
under this Agreement.
Electronic Records (including Signatures
or selected checkbox), that are otherwise valid, shall be accepted under this
Subscription Agreement. Subscriber agrees to receive electronic records, which
may be provided via a web browser or e-mail application connected to the
internet.
In the event of any conflict between
Subscriber and GigTally all terms and conditions stated herein the GigTally
Platform Subscription Agreement, You, the Subscriber, agree to the provisions
of this agreement and invoice shall control.
Subscribers’ account creation and
acceptance of a subscription agreement is, without prejudice, an act of
acceptance and agreement with all terms and conditions set forth herein.
Subscriber has read and understands,
and has had the opportunity to review all terms and conditions of this
contract, and hereby accepts all terms and conditions through the account
creation, including for any level of Acceptance of a Subscription or
Subscription services to GigTally.com.
EXCEPT AS EXPRESSLY STATED HEREIN, COMPANY
MAKES NO WARRANTY, REPRESENTATION OR INDEMNITY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERY OR PERFORMANCE OF ANY SERVICE
OR WORK PERFORMED UNDER THIS
AGREEMENT, ANY SERVICE ORDER, AMENDMENT,
ADDENDUM AND/OR INVOICE SUBJECT TO THIS AGREEMENT, INCLUDING ANY AND ALL
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR USE, OR
ARISING FROM A COURSE OF DEALING, USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE
HEREBY EXPRESSLY DISCLAIMED. THE WARRANTIES SET FORTH IN THIS AGREEMENT
CONSTITUTE THE ONLY WARRANTIES MADE BY COMPANY TO CUSTOMER WITH RESPECT TO THE
SERVICES AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants of this Agreement, including the use and
provision of the Company software and web portal, having acknowledged as given,
received, or to receive, pursuant to hold a paid subscription or free account,
pursuant to the affirmation of the parties hereto, the parties hereto agree as
follows:
1.
SUBSCRIBER.
Company
hereby grants to Subscriber, for the term of this Agreement, a
nonexclusive, non-assignable, right and Subscription to “use”www.gigtally.com, to track and manage jobs on the Platform
Software in connection with its business of job management accesses on the
world wide web, ie. internet, accessed through
Subscriber’s personal or business device at and through the website www.gigtally.com (the “Subscription”).
This Subscription is expressly limited to
use devices the Subscriber has legal right or permission to use. No right or
license is being conveyed to Subscriber to use the Software. Subscriber is
prohibited from making any copies, archival or otherwise, of the Software.
Subscriber is further prohibited from using the Software in any manner other
than as described above and agrees the jobs managed are legal commerce, goods
and/or services.
2.
TERM.
This Agreement shall be effective as of
the date of execution by both parties and shall extend and auto renew for the
period until Subscriber ceases payment, or the subscription is terminated. This
Agreement shall be automatically renewed upon the close of the payment cycle
based on Subscriber’s plan choice unless Subscriber provides Company notice in
writing of its intention not to renew the Agreement, said notice to cancel the
auto renewal be provided at least 30 days prior to the auto renewal payment
process date of the then in-effect Term.
3.
COMPENSATION AND SUBSCRIPTION.
In consideration for the subscription plan
granted hereunder and during the Initial Term of the Agreement and for each
Extended Term, Subscriber agrees to pay to Company the Subscription Fee recited
in Schedule A (the “Subscription
Fee”) in accordance with the Fee Payment Schedule recited in Schedule A. In the event that Subscriber should add additional services,
Subscriber agrees to pay Company an Additional Service Fee per Specialty
Service. At the time of order, Subscriber agrees to pay Company the
Subscription and Special Service Fees in the event that
additional services are rendered. Subscriber further agrees to pay any
Additional Service Fees recited upon special request.
Subscription orders are not binding upon
Company until payments are authorized by and received from PayPay,
credit card issuer or other financial institution as agreed. Terms of payment
are within Company’s sole discretion. Invoices are due and payable within the time period noted on the invoice, measured from the date of
the invoice. Company may invoice parts of an order separately. Subscriber is
responsible for sales and applicable taxes associated with the subscription.
●
Fees. Subscriber will pay
Company the Fees specified during the Subscription purchase process. If
Subscriber orders additional products or services, the fees for such additional
products or services will be charged at the then-current pricing for such
additional products or services and will commence on the applicable purchase or
order date therefore. All amounts payable under this
Agreement are denominated in United States dollars, and Subscriber will pay all
such amounts in United States dollars.
●
Taxes. Other than net income
taxes imposed on Company, Subscriber will bear all taxes, duties, and other
governmental charges (“Taxes”) resulting from Subscriber’s purchase or use of
the Service.
●
Refunds. In the event of
cancellation of a Subscription, Subscriber is not entitled to any refunds or
credits for partial month of access to the Service or for any Subscription
downgrades.
●
Payment Terms. Subscriber
will pay all amounts due for the Initial Subscription Period at the time of
purchase unless otherwise indicated on the sign up/enrollment form or
Company-provided invoice (if any). Subscriptions will automatically renew until
Subscriber cancels the Subscription. Fees for each Renewal Subscription Period
will be automatically charged to Subscriber’s payment method. SUBSCRIBER
REPRESENTS AND WARRANTS THAT SUBSCRIBER HAS THE LEGAL RIGHT TO USE ANY PAYPAL
ACCOUNT, CREDIT CARD(S), AND/OR OTHER FINANCIAL INSTITUTION OR METHOD, UTILIZED
IN CONNECTION WITH ANY TRANSACTION HEREUNDER. By submitting such information,
Subscriber grants Company or any third party collecting that information on
Company’s behalf the right to provide such information to third parties for
purposes of facilitating the completion of transactions initiated by
Subscriber. Verification of information may be required prior to the
acknowledgment or completion of any transaction.
4.
INTELLECTUAL PROPERTY AND CONFIDENTIALITY.
Company will retain
exclusive interest in and ownership of its intellectual property rights in and
to the Software Platform and expressly reserves all rights not expressly
granted under this agreement. Subscriber
recognizes that the Platform Software is the proprietary and confidential
property of Company. Accordingly, Subscriber shall not, without the prior
express written consent of Company, during the term of this Agreement and
surviving thereafter, disclose or reveal to any third party or utilize for its
own benefit other than pursuant to this Agreement, any Software provided by
Company, provided that such information was not previously known to the general public. Subscriber further agrees to take all
reasonable precautions to preserve the confidentiality of Company's Software
and shall assume responsibility that its employees, sub-agents, partners,
talent, customers and assignees will similarly
preserve this information against third parties. Subscriber shall take no steps
in attempting to reverse engineer the Software. The provisions of this clause
shall survive termination of this Agreement.
Trademarks
Any Trademarks used in or inconnection with the Site are trademarks of Company, or
their respective owners. Nothing constrained on the Site should be construed as
granting, by implication or otherwise without the written permission of Company
or third party owner.
5.
LEGAL DISCLAIMER
Company maintains this site, www.gigtally.com, (the "Site") for your
information, education, and communication. Please feel free to browse the Site.
If you are browsing this Site as a non-commercial consumer, you may download
material displayed on the Site for your non-commercial, personal use only. If
you are browsing this Site as an employee/agent/member of any business or
organization, you may download material displayed on the Site only for non-commercial
purposes within your business or organization. This permission is specifically
conditioned on Company retaining all copyright and other proprietary notices
contained on the materials.
Additionally, you may not distribute or
transmit (except, within your business or organization), modify, reuse, report,
or use the contents of the Site for public or commercial purposes, including
the text, images, audio, and video without GIGTALLY's written permission.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT
LIMITED TO, NEGLIGENCE, SHALL GIGTALLY, INC. BE LIABLE FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO
USE, THE MATERIALS ON THIS SITE, EVEN IF GIGTALLY, INC. OR AN GIGTALLY
AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOUR USE OF MATERIALS FROM THIS SITE RESULTS IN THE NEED FOR SERVICING,
REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME
STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
6.
USE, TRAINING, AND ACCEPTANCE.
Company shall provide access to Software
on Cloud servers in accordance with the subscriber selected subscription plan.
At the time of such access, Company shall provide Subscription with appropriate
instruction for the Software reasonably acceptable to Subscriber. At the time
of Access of the Software Platform and for no additional consideration, Company
shall provide instructional tools and resources to Paid Subscriber to use the
Software Platform. If the training tools are not available or satisfactory,
Subscriber shall send in a support ticket to request additional clarification
or place a support ticket for a software fix.
During Subscribers subscription, Company
agrees to provide additional private training to Subscriber’s team for an
additional and agreed upon Specialty Service fee.
In the event that Subscriber fails to notify Company of any
difficulties or problems with the Software Platform within 72 hours after
access thereof, Subscriber shall be deemed to have accepted the Software
Platform. Prior to acceptance of such Software, Company shall have the right to
repair or replace the Software at its discretion. Upon acceptance of such
Software, Company shall be under no obligation to repair or replace such
Software except as provided for in the Warranties provision of this Agreement.
Subscriber, including but not limited to all of its employees/agents,
hereby agrees to refrain from all illegal use, and/or any use of the Company’s
property, including but not limited to the Software, in any manner that is
threatening, harassing, racist, abusive, libelous, pornographic, vulgar,
defamatory, obscene, indecent, or otherwise inappropriate, including any
messages constituting or encouraging criminal conduct, or violating another’s
legal rights, including but not limited to the Company.
7.
WARRANTIES.
Company represents and warrants that, to
Company’s knowledge, the Software does not infringe the intellectual property
rights or other rights of any third party.
Company warrants that the Software will
perform in accordance with the specifications provided to Subscriber, as
determined by Company. THE WARRANTY
PROVIDED FOR HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
THAT MAY ARISE EITHER BY AGREEMENT BETWEEN THE PARTIES OR BY OPERATION OF LAW,
INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
In the event of a claim by Subscriber
under this warranty, Company shall have the option to repair or update
software. In the event that Company fails to repair or
update the Software within a reasonable period, Subscriber’s sole recourse
shall be to terminate the Agreement and Company's sole obligation shall be to
return any Subscriber Fees paid by Subscriber during the period of Service
Interruption. In no event shall Company be liable for any incidental,
consequential, or punitive damages as a result of its
performance or breach of this Agreement.
8.
IMPROVEMENTS AND MAINTENANCE.
Company shall work to
correct bug fixes and code corrections to correct Software malfunctions and
defects in order to bring the Software into
substantial conformity with its operating specifications, as determined by
Company. Subscriber understands and accepts that these system adjustments, and
time to implement them, are a natural part of doing digital business and any
associated delays or temporary limits to data are therefore deemed reasonable.
Company may, but will not be required to, provide these maintenance services if
Subscriber has modified the Software, breached the agreement or is otherwise in
default.
9.
TERMINATION.
The following termination rights are in
addition to the termination rights that may be provided elsewhere in the
Agreement:
Right
to Terminate Upon Notice.
Either party may terminate this Agreement on 30 days' written notice to the
other party in the event of a breach of any provision of this Agreement by the
other party, provided that, during the 30-day period, the breaching party fails
to cure such breach.
Subscriber Right to Terminate. Subscriber shall have the right to
terminate this Agreement at any time on (One) months' written notice to Company
for any reason.
10.
POST-TERMINATION RIGHTS.
Upon the expiration or termination of this
Agreement, all rights granted to Subscriber under this Agreement shall
forthwith terminate and immediately revert to Company and Subscriber shall
discontinue all use of the Software and the like.
Upon expiration or termination of this
Agreement, Subscriber shall be permitted to retain a free
account permissions, so long as Subscriber has not breached the
agreement.
11.
INDEMNITY.
Subscriber (as an indemnifying party)
agrees to indemnify Company (as an indemnified party) against all losses and
expenses, including incurred attorneys
fees, in connection with any proceeding arising out of Subscriber's
unauthorized use, customization, modification, or other alterations to the
Software, including claims that its customization, modification, or other alterations
infringe a third party's Intellectual Property rights.
12.
NOTICES.
Any notice required to be given pursuant
to this Agreement shall be in writing and delivered by electronic notice or
certified mail, return receipt requested, or delivered by a national overnight
express service.
Either party may change the address to which
notice or payment is to be sent by written notice to
the other party pursuant to the provisions of this paragraph.
13.
AGREEMENT BINDING ON AGENTS AND SUCCESSORS.
This Agreement shall be binding on and
shall inure to the benefit of the parties hereto, and their heirs,
administrators, successors, and assigns.
Subscriber acknowledges that it shall be
responsible for all actions and liability on behalf of, or taken by, its
agents, assigns, employees, authorized third-parties, andor any other person or entity working on, for, behalf
of, or at the instruction of the Subscriber, not the the
exclusion of any liability as to such a person or entity.
14.
WAIVER.
No waiver by either party of any default
shall be deemed as a waiver of any prior or subsequent default of the same or
other provisions of this Agreement.
15.
SEVERABILITY.
If any provision hereof is held invalid or
unenforceable by a court of competent jurisdiction, such invalidity shall not
affect the validity or operation of any other provision and such invalid
provision shall be deemed to be severed from the Agreement.
16.
ASSIGNABILITY.
The Subscription granted hereunder is
personal to Subscriber and may not be assigned by any act of Subscriber or by
operation of law unless in connection with a transfer of substantially all the
assets of Subscriber or with the consent of Company.
17. WAIVER
Waiver of breach of this Agreement shall
not constitute waiver of another breach. Failing to enforce a provision of this
Agreement shall not constitute a waiver or create an estoppel from enforcing
such provision. Any waiver of a provision of this Agreement shall not be
binding unless such waiver is in writing and signed by the party waiving such
provision.
18.
INTEGRATION.
This Agreement constitutes the entire
understanding of the parties, and revokes and supersedes all prior agreements
between the parties and is intended as a final expression of their Agreement.
It shall not be modified or amended except in writing signed by the parties
hereto and specifically referring to this Agreement. This Agreement shall take
precedence over any other documents that may be in conflict therewith.
19.
MEDIATION & BINDING ARBITRATION
In the event a dispute arises from or
relates to this Agreement, any Service Order, amendment or Addendum, any
purported breach hereof or thereof, or any in connection with any services
provided hereunder, whether based on contractual rights, statutory rights, or
tort law, the Parties agree as a condition precedent to pursue any claims for
damages that a party first submit the dispute to mediation by a Florida Supreme
Court certified mediator. If, after thirty (30) days after the requesting party
makes the request for mediation, the non-requesting party refuses through
action or inaction to participate in the mediation process, the precondition
requirement to mediate shall be deemed
waived. The exclusive venue to mediate any and all
claims shall be Broward County, Florida. The prevailing Party shall be
responsible to pay all costs and legal fees, including for mediation. In the
event a dispute of any kind is not resolved through the mediation process, or
if any Party refuses to participate in mediation, the Parties hereby agree to
submit all disputes to binding Arbitration administered by the American
Arbitration Association in accordance with its Commercial Arbitration Rules,
and judgment of the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. In the event of an arbitration, the
arbitrator shall have no authority to award punitive or other damages not
measured by the prevailing party’s actual damages, except as may be required by
statute. The prevailing Party shall be entitled to an award of attorneys’ fees,
and reimbursement of any amounts paid related to mediation/arbitration
proceeding. Notwithstanding any provision contained within the American Arbitration
Rules to the contrary, any arbitration between the Parties shall be conducted
by a sole arbitrator selected by the American Arbitration Association.
20.
LIQUIDATED DAMAGES
“Liquidated Damages,” in the event
Subscriber, including but not limited to all of its employees/agents, breaches
the confidentiality, copyright clause, and/or any other clause under this
Agreement, or law, which causes harm to the Company, Subscriber hereby agrees
that that damages suffered by the Company would be difficult to determine. In
such an event, Subscriber agrees to compensate Company as follows, constituting
Liquidated Damages: one million dollars ($1,000,00.00) per violation, including
any and all legal fees.
21. JURISDICTION AND VENUE
This Agreement, any Service Order, amendment or Addendum shall be governed by the laws of the
State of Florida, without regard to any rules of conflict or choice of laws
which require the application of laws of another jurisdiction, and Subscriber
and Company consent and agree to jurisdiction and venue for any mediation
and/or arbitration being exclusively in Fort Lauderdale, Broward County,
Florida and the Parties hereto agree that such jurisdiction and venue is
proper.
The parties
consent to the jurisdiction of such courts, agree to accept service of process
by [mail or electronic] and waive any jurisdictional or venue defenses
otherwise available without reference to conflict of laws principles, subject
to the mediation and arbitration clause contained herein.
SCHEDULE
A
1.
USER FEE.
During the Initial Term of this Agreement,
the User Fee shall be based on the plan selected by the subscriber upon the
initial account set up, and will adjust to Subscriber
initiated plan change. In the event the Subscriber changes the account plan and
email will be sent to confirm the change. Hereunto, the new or adjusted rate
and fee schedule will apply. For each Extended Term, the User Fee shall be
Extended based upon the current plan agreement.
2.
ADDITIONAL USER FEE.
For every Specialty Service at
Subscriber’s request(s) have an additional fee in addition to Subscriber
Selected Payment Schedule, Subscriber shall pay Company an Additional Service
Fee at the current market rate for the type of specialty service requested.
3.
FEE PAYMENT SCHEDULE.
The User Fee and Installation Fee shall be
payable as follows:
Based on Price of the Subscription Package
Upon Marketed Rate upon Subscription Agreement at the Plan Level Selected;
either: Talent Free, Startup, Gigworker, Agency, or
Enterprise;
On a fee schedule of Free or Monthly.
Taxes
and Fees may be included and are subject to national and state regulations.
Plan
fees charted based on monthly rate |
Talent |
Startup |
GigWorker |
Agency |
Enterprise |
Monthly |
FREE |
$10.00 |
$25.00 |
$50.00 |
$100.00 |
TO
SOFTWARE Subscriber AGREEMENT
A Subscription agreement is based on the
package Subscriber Selected. Each level of Subscription provides access to
different packages.
WHEREAS, Subscriber agrees to all terms and
conditions listed in this Agreement. In the case, copyright infringement, malicious
use, defamation, libel, slander, or Illegal Use include Subscriber on Free
Talent Plan and all other Subscriber Plans are legally responsible for loss plus
additional punitive damages equal to the direct current and future loss of no
less than 10 years includes the full loss of revenue based upon the number of
active and future predicted subscribers.
GigTally,(including GigTally.com, GigTally, LLC, et
al) is a platform software as a service provider, providing varying levels of
subscriptions on a cloud based relational job management software for various
business types as a tool to manage independent jobs, talent, agent; as well as
to provide a cloud based space to connect partnership(s) and team(s) with other
GigTally subscribers with a connection to clients and business friends