Terms & Conditions
ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE
These Terms and Conditions (“Terms”) are provided to you (“Customer”) in connection with the Gizmo Cares, Inc. (“Gizmo Cares”) service that Customer has purchased or services provided to the Customer under this agreement (the “Service” or “Services”). These Terms comprise the entire agreement between Customer and Gizmo Cares with respect to the Services. These Terms are accepted when Customer payment is processed and remain in force for the term of service and one (1) year after termination of service.
Customer shall pay all fees stated in the Service Agreement provided to Customer. Gizmo Cares will charge for the Services on a month-to-month basis. Unless otherwise stated in writing, all fees and charges are nonrefundable and all invoices are due upon receipt. Prior to the delivery of the Services, you will provide to Gizmo Cares a valid credit card number, the expiration date and other information requested by Gizmo Cares pertaining thereto, and you hereby authorize Gizmo Cares to charge to this credit card all charges applicable to your purchase of the Services provided hereunder. Upon cancellation or expiration of such credit card, you will immediately provide a new credit card number, expiration date and other information requested by Gizmo Cares pertaining thereto. If Customer has not paid all fees and charges due Gizmo Cares in accordance with these Terms, a monthly finance charge equal to the lesser of (a) 1.5% per month or (b) the highest amount permitted by law shall accrue and be payable each month until paid in full. Furthermore, upon Customer’s failure to make payment in accordance with these Terms, a late fee of ten percent (10%) of the amount past due shall be due and payable by Customer with respect to each such late payment. The waiver of a finance charge, late fee or any portion thereof shall not be deemed to be a waiver of any future finance charges or late fees. Customer shall be liable to Gizmo Cares for any and all costs and expenses incurred by Gizmo Cares, including without limitation attorneys’ fees and expenses, in the collection of any past due amounts hereunder. Gizmo Cares may change the fees and charges then in effect, or add new fees or charges, by giving Customer 30 days advance written notice.
All notices required under these Terms shall be in writing and shall be given by personal delivery, electronic mail, overnight courier service, first-class mail postage prepaid, registered mail, or certified mail. All notices shall be deemed effective upon personal delivery, or one business day following deposit with any overnight courier service, or three business days following deposit with the U.S. Postal System, first class postage attached, or upon notification of receipt if sent by electronic mail, in accordance with this Section. Notices to Gizmo Cares shall be sent to the following address:
Gizmo Cares, Inc.
ATTN: Customer Service
1202 Kenesaw Avenue
Knoxville, TN 37919
Notice to Customer shall be sent to the contact information provided by Customer when signing up for the Services.
MODIFICATIONS TO TERMS OF SERVICE
Gizmo Cares may change these Terms from time to time. Upon any such change, Gizmo Cares will notify the Customer via email and by posting the changes to the Gizmo Cares website. Gizmo Cares reserves the right to modify or discontinue the Services with or without notice to Customer. Gizmo Cares shall not be liable to Customer or any third party should Gizmo Cares exercise its right to modify or discontinue the Services. Customer’s use of the Services constitutes an affirmative agreement by Customer to abide and be bound by these Terms and any subsequent modifications.
If Customer requests back-up services, then Gizmo Cares will provide back-up services as a convenience to Customer and Customer is responsible for verifying the completeness and accuracy of all backups. Customer agrees that prior to Gizmo Cares servicing any Customer equipment it is Customer’s responsibility to remove all videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film, or other media from Customer’s product. Gizmo Cares shall not be liable under any circumstances for any loss, disclosure, alteration, or corruption of any data, software, information, files, videotapes, compact disks, floppy disks, laser disks, cassettes, DVDs, film, or other media. Customer accepts all risk for the completeness and accuracy of all backups.
LIMITATIONS TO SERVICE
Gizmo Cares shall not be liable for delay, failure in performance, loss, or damage due to fire, strike, embargo, explosion, power irregularities or interruptions, earthquake, nuclear incident, volcanic action, flood, war, water, the elements, labor dispute, civil disturbances, governmental requirement, civil or military authority, acts of God or public enemy, inability to secure products or transportation facilities, acts or omissions of common carriers, or other causes beyond the reasonable control of Gizmo Cares. Gizmo Cares reserves the right to refrain from providing the Services ordered and instead refund Customer’s payment, wholly or in part, on the basis that the minimum system requirements are not met or the technical needs (including wiring or overcoming physical or technical barriers) or other requirements of the Customer are unusual or extensive and beyond the scope of these Terms, as determined solely by Gizmo Cares.
Customer agrees to indemnify, defend, and hold harmless Gizmo Cares (and its affiliates and their respective officers, directors, employees and agents) from and against any and all losses, costs, obligations, liabilities, damages, actions, suits, causes of action, claims, demands, liens, encumbrances, security interests, settlements, judgments, and other expenses, (including but not limited to cost of defense, settlement, and reasonable attorneys’ fees) of whatever type or nature, including, but not limited to, damage or destruction to property, injury (including death) to any person or persons, which are asserted against, incurred, imposed upon or suffered by Gizmo Cares by reason of, or arising from: (a) Customer’s breach of this Agreement; (b) Customer’s actual or alleged infringement of any patent, copyright, trademark, trade secret or other property or contract right of any other person; (c) Customer’s actual or alleged failure to promptly pay sums due Gizmo Cares; (d) Customer’s failure to comply with applicable laws, regulations or ordinances; or (e) the acts or omissions of Customer (or its officers, directors, employees or agents).
Customer agrees that Gizmo Cares would suffer significant harm if Customer or any employee or affiliate of Customer were to employ any staff member or employee of Gizmo Cares during the term of this Agreement and for a period of one (1) year thereafter. Accordingly, Customer hereby agrees that it will not directly or indirectly employ, contract with or use in any way (outside of the Services provided under this Agreement), during the term of this Agreement and for a period of one (1) after the termination, expiration or cancellation of this Agreement, any person who was employed by Gizmo Cares at any time during the term of this Agreement. Without limiting any remedies to which Gizmo Cares may be entitled by law for any breach of this provision, Gizmo Cares shall be entitled to enforce the terms of this provision by immediate temporary or permanent injunction against any violation, or threatened, proposed or continuing violation hereof. In addition, Gizmo Cares shall be entitled to pursue any and all other remedies available at law or in equity for breach or threatened breach, including the recovery of damages. The existence of any claim or cause of action of the Customer against Gizmo Cares shall not constitute a defense to the enforcement by Gizmo Cares of the terms of this provision. The parties acknowledge and agree that the determination of the amount of damages arising from a breach of this provision may be difficult, and that Gizmo Cares shall be entitled to minimum liquidated damages from the Customer in an amount equal to fifty percent (50%) of the total amount of the Gizmo Cares annual salary, wages or compensation of the employee or staff member who is the subject of said breach; provided, however, Gizmo Cares’ recoverable damages shall not be limited to said amount in the event Gizmo Cares is able to demonstrate actual damages in a greater amount. For the purposes of determining the amount of liquidated damages hereunder, the amount of the annual salary, wages or compensation of the subject Gizmo Cares employee will be the amount earned by said employee during his or her last year of employment at Gizmo Cares, or if such employment was for less than one year, an annual amount determined by the rate of salary, wages or compensation being earned by the employee at the time of his or her termination of employment with Gizmo Cares.
DISCLAIMER OF WARRANTIES
CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Gizmo Cares EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Gizmo Cares MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES Gizmo Cares MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER/SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM Gizmo Cares OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO EACH CUSTOMER. IT IS THE RESPONSIBILITY OF CUSTOMER TO BACK-UP ALL DATA ON COMPUTERS AND OTHER DEVICES; Gizmo Cares WILL NOT BE HELD LIABLE FOR LOSS OF ANY CUSTOMER DATA.
LIMITATION OF LIABILITY
Gizmo Cares SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF Gizmo Cares HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO EACH CUSTOMER.
Notwithstanding any language to the contrary, Gizmo Cares’ maximum liability to Customer with respect to any and all claims, irrespective of the form of action, whether in contract, negligence, product liability or otherwise arising under these Terms or related to the Services shall be limited to the sums paid by Customer to Gizmo Cares under this Agreement during the three months prior to the time the cause of action arose.
Customer may terminate the Service upon 30 days advance written notice to Gizmo Cares. Upon termination of the Service by Customer, no portion of the membership fees will be refunded or prorated.
Gizmo Cares may terminate the Service upon 30 days advance written notice to Customer. Upon termination of the Service by Gizmo Cares, no portion of membership fees paid for the next 30 days of Service will be refunded or prorated. If Gizmo Cares has not terminated Service for breach of this Agreement, then Customer will be refunded any amounts paid for more than the next 30 days.
Upon termination of the Service, Customer’s right to use the Service immediately ceases. Customer shall have no rights and Gizmo Cares will have no obligations regarding the Service thereafter. To resume Services after a termination of Services, Customer must pay the initial set-up fee as indicated on the Business Plan. Once the initial set-up fee is paid, Gizmo Cares will perform an audit of all equipment.
“Confidential Information” means all information of Customer available to Gizmo Cares as a result of performing the Services.
Gizmo Cares acknowledges and agrees that Confidential Information is proprietary to and a valuable trade secret of disclosing party and that any disclosure or unauthorized use thereof will cause irreparable harm and loss to disclosing party.
In consideration of the disclosure of Confidential Information, Gizmo Cares agrees to treat Confidential Information in confidence and to undertake the following additional obligations with respect thereto: (a) to use Confidential Information for the sole purpose of fulfilling its obligations under these Terms; (b) not to copy, in whole or in part, the Confidential Information specified by disclosing party as not to be copied; (c) to limit dissemination of Confidential Information to only those individuals who have a need to know to perform the limited tasks set forth in these Terms, and to prevent further dissemination and/or the use of Confidential Information by any employee or agent for any purpose other than that set forth herein; and (d) to return Confidential Information, including all copies and records thereof, to disclosing party upon receipt of request therefor, or a decision by either party to terminate the Service, whichever occurs first.
The obligations of confidentiality shall not apply to information which (1) is or comes into the public domain through no fault of the recipient; (2) is already known to or developed independently by the recipient; (3) is disclosed by the disclosing party to a third party with no obligation of confidentiality; (4) is received by the recipient from a third party without any break of obligations of confidentiality; or (5) is disclosed with the approval of the disclosing party.
Should any person or entity who is not bound by this Agreement lawfully request or demand, whether by subpoena, discovery request, court order, or otherwise, that Gizmo Cares provide it with access to any Confidential Information that is in Neighborhood Nerd’s possession or to any information derived therefrom, Gizmo Cares has the right to comply with such request.
These Terms shall be governed by and construed in accordance with the laws of the State of Tennessee, excluding its conflict of law provisions. Customer and Gizmo Cares agree to submit to the exclusive jurisdiction of the courts in Knoxville, Tennessee. The sole and exclusive venue for any action brought under or related to these Terms or the Services is any state or federal court in Knoxville, Tennessee. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Customer and Gizmo Cares agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
The failure of either party to enforce at any time any of the terms and conditions if this Agreement does not constitute a waiver of such terms and conditions or of the right of such party thereafter to enforce any such terms and conditions.
ENTIRE AGREEMENT; MODIFICATION
These Terms along with the Membership Plan constitute the final and entire agreement between the parties and supersedes any prior agreements, written or oral. Further, Customer may not make any amendment, modification, or waiver of, or supplement to, these Terms, unless approved by Gizmo Cares in writing. This Agreement shall govern notwithstanding any inconsistent or additional terms and conditions of any other document submitted by either party.
Neither party shall assign or otherwise transfer or purport to assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement or any part thereof without the prior written consent of the other party, except that Gizmo Cares may assign all of Gizmo Cares rights and obligations under these Terms to an entity that acquires all or substantially all of the assets of Gizmo Cares or an entity that merges with Gizmo Cares and is the surviving entity. Any attempted assignment in violation of this Section is null and void.
NO THIRD PARTY BENEFICIARIES
Except as expressly provided herein, these Terms are for the benefit of Gizmo Cares and Customer and no other party.
Last Update: September 23rd, 2018