Terms of Service
Last updated July 1, 2023 PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THE SERVICE (DEFINED BELOW) IS AN ONLINE PLATFORM THROUGH WHICH CREATORS ARE MATCHED WITH CERTAIN PRODUCTS TO CREATE CONTENT IN EXCHANGE FOR DISCOUNT CODES. YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS. IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE THAT SECTION 20 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES WITH GUMDROP ARE RESOLVED. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY. 1. Acceptance of Terms; Privacy Notice Miami Labs, Inc. owns and operates www.getgumdrop.app and powers mobile, touch or affiliated websites or applications under our name and for our customers (collectively, the “Site”), and includes those that we have now or have in the future which refer to these Terms of Service. Gumdrop operates the Site to provide individuals wishing to promote or support certain consumer products or brands (“Products”), including those who review or comment on products or services (“Creators”) with opportunities to promote, advertise and/or support a variety of Products in exchange for discount codes and/or other forms of consideration (collectively, the “Services”). By using the Site or Services, you agree to comply with and be legally bound by the terms, conditions, and restrictions of these Terms of Service (“Terms”). If you do not agree to these Terms, you must not use our Site or Services and you have no right to obtain information from or otherwise continue using the Site or Services. If you (or your employer) have entered into a separate agreement with us, then these Terms will apply except where expressly superseded by that other agreement. Individuals who use the Services are referred to as Creators, and “you” and “your” also refer to Creators. If you access the Service or accept these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that legal entity and, in such event, you and your will refer to that legal entity. “We”, “us”, or “our” refer to Gumdrop. In addition, in these Terms, unless the context requires otherwise, words in one gender include all genders and words in the singular include the plural and vice-versa. You may provide certain information to Gumdrop in connection with your access or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. The Services include providing notifications to Creators upon the occurrence of certain events, such as when a new campaign is launched or an agreement is finalized. You agree to receive emails, SMS or text messages, and other types of communication from us via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to Gumdrop in connection with the Services is accurate. For information about how we collect, use, share and otherwise process information about you, please see our Privacy Notice. 2. Modification Gumdrop reserves the right, at its sole discretion, to modify or discontinue, temporarily or permanently, the Site or the Services, or to modify these Terms at any time and without prior notice. If we modify these Terms, we will post the modification on the Site. We will also update the Last Updated date at the top of these Terms. Modifications to these Terms will automatically take effect upon posting; provided, however, that material adverse changes to the Terms will be effective as to an existing Creator thirty (30) days after posting. By continuing to access or use the Site or the Services after we have posted a modification, you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease accessing or using the Site and Services. 3. Eligibility The Services are intended solely for persons who are 16 or older. Users between 16 and 18 years of age (or the age of legal majority where the user lives) may only use our Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The parent or legal guardian of a user under the age of 18 (or the age of legal majority) is fully responsible for the acts or omissions of such user in relation to our Services. If you are a parent or legal guardian and you believe that your child under the age of 18 is using our Services without your consent, please contact us at [email protected]. By accessing or using the Services you and your parent or legal guardian represent and warrant that you are not legally prohibited from accessing the Services under the laws of the country in which you access or use them. 4. About the Service; Registration The Service allows Creators to access information, and provides opportunities for Creators to create Accounts, view Product promotion opportunities and take on those opportunities, which consist of agreeing to post content to their social media account(s) in exchange for a coupon code. To access and use the Services, you must register an account (“Account”). Direct Registration: To create an Account by using your email address, follow the prompts on the Site. You agree to provide accurate, current and complete information during registration and keep it current, accurate and complete. You agree that you will safeguard your password and that you are solely responsible for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Account. You are solely responsible for your Content (defined below) and Account. Linking TPS Accounts After Registration: After creating an Account, you may link it to certain of your third-party social networking sites (“SNS”) (including, but not limited to, Facebook) (each a “Third Party Service” or “TPS”), by either: (i) providing your TPS login information through the Services; or (ii) expressly authorizing us to access your TPS account, as is permitted under the applicable terms and conditions of each TPS. You represent that you are entitled to disclose your TPS login information to us and/or grant us access to your TPS account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable TPS and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third party service providers. For example, to use any aspect of the Services which pertain to YouTube, you agree to be bound by the YouTube Terms of Service (https://www.youtube.com/t/terms). You acknowledge and agree that you are solely responsible for your Account and all Account information. You represent and warrant that any Account information that you post, and any agreements you enter into with Gumdrop (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) comply with all applicable laws, tax requirements, licenses, rules and regulations that may apply to you and (b) not conflict with the rights of third parties. 5. Service Process; Fees Creators may use the Services to offer and accept opportunities to participate in one of Gumdrop’s marketing campaign. Gumdrop may control which Creators are allowed to see and/or accept a proposal for a campaign. Agreements between Gumdrop and Creators may provide for the creation of Content by a Creator that Creator may then share through Creator’s social media accounts or other channels. “Content” means text, graphics, images, music, software, audio, video, information or other content or materials either created by a Creator or Gumdrop, or shared by a Creator related to the Services. When a Creator decides to enter into an agreement with us, Creator will share information with us as necessary or requested, such as (i) the first and last name, social media account handles, and contact information, or (ii) links to Creator profiles. Creators may enter into agreements with us through the Services by following the prompts to establish all terms and then confirm acceptance of those terms. We do not currently charge Creators any service fee for use of the Service. 6. Posted Content When you post Content, whether on the Site or on a Third Party Service, you represent and warrant that you have the right, power, and authority to post that Content and grant the licenses specified below. You further represent and warrant that by posting or providing such Content you will not violate third-party rights of any kind, including, without limitation, any copyrights, patents, trademarks, trade secrets, moral rights, rights of publicity, privacy rights, and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”). To the extent your Content may be subject to copyright, you represent, warrant, and covenant that you are the owner of all the copyright rights to such Content and that we may exercise the rights to your Content granted under the Terms without any liability or obligation for any payment. In addition, you are responsible for all social media postings you make, and you represent and warrant regarding those social media postings that: (a) they will be in compliance with all applicable laws, rules, regulations and guides, including the Federal Trade Commission’s (“FTC”) Guides the Concerning the Use of Endorsements and Testimonials in Advertising (16 C.F.R. Part 255), which requires disclosure that you are paid to promote a Product, and the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements; (b) you have all necessary Intellectual Property Rights to any posting; and (c) your posting does not infringe the Intellectual Property Rights of any third party. We assume no responsibility for compliance with any duties owed by a Creator to a third party, or a Creator’s compliance with applicable laws, rules, regulations and guides. We reserve the right, at any time and without prior notice, to remove or disable access to any Account, profile or Content for any reason, including when we, in our sole discretion, deem it to be objectionable for any reason, in violation of these Terms or any of our then-current policies and guidelines, or otherwise harmful to Gumdrop or the Service. 7. Earning Commissions Subject to the terms and conditions herein, you may earn compensation (“Commission”) when someone clicks on an eligible Product link or uses a Product code that you include in your Content that you post on Third Party Services and there is a resulting Completed Transaction. “Completed Transaction” means: (a) a transaction for which eligible Products have been purchased from a merchant’s website using the applicable Product link or code provided to you through the Services, (b) the applicable return period (if any) has expired, and (c) such transaction has not been subject to a chargeback or other refund, and at least thirty (30) days have passed since the Product was paid for in full by the purchaser. You will receive a Commission from us in accordance with the percentage of the Product price (taking into account any discounts and excluding, taxes and shipping fees) that is specified on the Site. Commission percentages are dynamic and may change or be terminated without additional notice to you. You must create or link your PayPal account to your Account to receive Commissions. We will pay Commissions for Completed Transactions on a monthly basis via PayPal. We are not responsible for paying you for any period during which you do not have an active PayPal account linked to your Account. If you delete your Content or terminate your account on a Third Party Service, we are not responsible for paying you for any Commissions in connection with that Content or account, except for those that are from Completed Transactions as of the time of such deletion or account termination. Gumdrop shall not be liable for any payments on transactions that have not become Completed Transactions or on accounts that have not been approved for payment. Gumdrop also reserves the right to deny payment for reasons that include, but are not limited to: (i) conversions resulting from any bot, automated program or similar device, as determined by Gumdrop, in its sole discretion; (ii) conversions generated through deceptive, abusive, fraudulent, or other invalid means, as determined by Gumdrop, in its sole discretion, including, without limitation, any conversions originating from your IP addresses or computers under your control; (iii) conversions solicited by payment of money or misrepresentation; (iv) your breach of these Terms; (v) your violation of applicable laws, rules, or regulations; or (vi) if Gumdrop determines, in its sole discretion, that payment to you will violate applicable laws, rules, or regulations. If your unique Product code or Product link is included on a third-party coupon aggregator site, Gumdrop reserves the right to reduce or suspend all Commission payments, at its sole discretion, and provide you with a new Product code or Product link to be added to your Content. Once the new code or link is posted and the old code or link is removed, normal payment of Commissions will resume on a going forward basis. 8. Creator Affirmations, Conduct and Use By using the Service, you represent, warrant and agree to the following: • You will comply in all respects with Gumdrop’s Acceptable Use Policy (see “Acceptable Use Policy”). • You are at least 18 years of age. • You are solely responsible for compliance with, and agree to comply with, any and all laws, rules, regulations, or obligations that may apply to your use of the Service or your Content. Nothing that you upload, publish, represent, warrant or transmit using the Site or Service, will infringe, misappropriate or violate any Intellectual Property Rights, or result in the violation of any applicable laws, rules, or regulation. • You will not use manual or automated software, devices, scripts, redirects, robots, other means or processes to access, frame, mirror, scrape, crawl or spider any web pages or other services contained in the Service. • You will not use the Service for any commercial or other purposes that are not expressly permitted by these Terms. • You will not copy, store or otherwise access any information contained on the Service for purposes not expressly permitted by these Terms. • You will not interfere with or damage the Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology; • You will not impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity. • You will not systematically retrieve data or Content from the Service to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of software, bots, crawlers, or spiders, or otherwise. • You will not access, tamper with, or use non-public areas of the Site or Service, Gumdrop’s computer systems, or any third-party provider system. Gumdrop will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Gumdrop may involve and cooperate with law enforcement authorities in prosecuting Creators who violate these Terms. You acknowledge that Gumdrop has no obligation to monitor your access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. 9. Ownership; Rights The Service is protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Service, including the Site and all associated Intellectual Property Rights, are the exclusive property of Gumdrop and its licensors. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferable right to access and utilize the Services made available to you. You represent, warrant and agree that you will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any Intellectual Property Rights owned or controlled by Gumdrop or its licensors, except for the rights expressly granted in these Terms. By making any of your Content available on or through the Services or on any Third Party Service, you hereby grant to Gumdrop a worldwide, irrevocable, perpetual, non- exclusive, transferable, royalty-free license, with the right to create derivative works, to use, edit, view, copy, adapt, modify, distribute, host, market, transfer, display, perform, transmit, stream, broadcast, access, and otherwise fully utilize such Content on or in connection with the Services as the Services currently exist or may be developed or modified (including replaced) in the future. Gumdrop does not claim any ownership rights in any Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your Content. 10. Advertisements Gumdrop may include advertisements on its own behalf or paid advertisements on behalf of interested companies and/or individuals on the Service. By clicking on the advertisements, you may be shifted to a website of the advertiser or receive other messages, information, or offers from the advertiser. You acknowledge and agree that Gumdrop is not liable for the privacy practices of advertisers or the content of their websites, information, messages or offers. Creators are wholly liable for all communications with advertisers and for all transactions subsequently executed. 11. Proprietary Rights Notices All trademarks, service marks, logos, trade names and any other proprietary designations of Gumdrop used herein are trademarks or registered trademarks of Gumdrop. 12. Termination We may, in our discretion and without liability to you, with or without cause, with or without prior notice, and at any time terminate these Terms or your access to the Site and/or the Services. You may cancel your Account at any time by contacting us or following the prompts on the Site. Please note that if your Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Services, including, but not limited to, any reviews or feedback. Upon termination of these Terms, (a) transactions that take place through your Content will no longer be eligible for Commissions, except as otherwise agreed between you and us in writing and (b) we will pay all Commissions that have accrued as of the effective date of termination of these Terms. 13. Disclaimers IF YOU CHOOSE TO USE THE SITE OR THE SERVICES, YOU DO SO AT YOUR SOLE RISK. THE SITE AND THE SERVICES ARE PROVIDED AS IS AND AS AVAILABLE, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, GUMDROP EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. GUMDROP MAKES NO WARRANTY THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. GUMDROP MAKES NO WARRANTY REGARDING THE QUALITY OF THE SITE, THE SERVICES OR ANY PRODUCTS IDENTIFIED OR MATCHED USING THE SERVICE. 14. Limitation of Liability NEITHER GUMDROP NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUMDROP HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL GUMDROP’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE SITE, OR THE SERVICES EXCEED ONE HUNDRED U.S. DOLLARS ($100). 15. Indemnification You agree to release, defend, indemnify, and hold Gumdrop and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with (a) your access to or use of the Site or the Services, or your violation of these Terms; (b) your violation of any third party right, including without limitation any Intellectual Property Right; (c) your Content (including your selection of Products to promote or feature); (d) any claim that your use of the Services caused damage to a third party; or (e) your violation of any applicable laws, rules, regulations, or guides (including those relating to advertising and endorsements). Gumdrop shall have the right to control all defense and settlement activities. 16. Assignment You may not assign or transfer these Terms, by operation of law or otherwise, without Gumdrop’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Gumdrop may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. 17. Notices Unless otherwise specified herein, any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Gumdrop by posting to the website or via the application. For notices or communications by Gumdrop made by e-mail, if any, the date of receipt will be deemed the date on which such notice is transmitted. 18. Controlling Law and Jurisdiction You agree that (i) the Site and Services shall be deemed solely based in Florida, and (ii) both parties irrevocably consent to personal jurisdiction over Gumdrop and you, either specific or general, in Florida. These Terms shall be governed by the internal substantive laws of the State of Florida, without respect to its conflict of laws principles. You and we agree to submit to the personal jurisdiction of a state court located in Miami, Florida for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution Provision below. YOU AND GUMDROP AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE, SERVICES OR CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND WAIVED. 19. Severability These Terms are intended to govern the agreement between Gumdrop and you to the extent permitted by all applicable laws, ordinances, rules, and regulations. If any provision of these Terms or the application thereof to any person or circumstances shall, for any reason or to any extent, be invalid or unenforceable, the remainder of these Terms and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law. 20. Dispute Resolution Provision You and Gumdrop agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Site or Service (collectively, Disputes) will be settled by binding arbitration; except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of any Intellectual Property Rights. You acknowledge and agree that you and Gumdrop are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. YOU AND GUMDROP 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 we 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. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void and, in that case, the parties agree that the exclusive jurisdiction and venue described above will govern any action arising out of or related to these Terms. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms. Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (AAA) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the AAA Rules) then in effect, except as modified by this Dispute Resolution section. (The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/ and a separate form for California residents at www.adr.org/). The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAAs roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. Arbitration Location and Procedure. Unless you and Gumdrop otherwise agree, the arbitration will be conducted in the county where you reside. If either party’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Gumdrop submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If either party’s claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the Limitation of Liability section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorney’s fees and expenses, to the extent provided under applicable law. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if a party’s claim for damages does not exceed $20,000, Gumdrop will pay all such fees unless the arbitrator finds that either the substance of the claim or the relief sought in the Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Multiple Claims. The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Gumdrop or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Gumdrop understand and agree that when twenty-five (25) or more similar claims are asserted against Gumdrop or you by the same or coordinated counsel or are otherwise resolved, your or Gumdrop’s Claim might be delayed. For such coordinated actions, you and Gumdrop also agree to the following coordinated bellwether process. Counsel for the claimants and counsel for Gumdrop shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this staged process from the time the first cases are selected for a bellwether process until the time your case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Gumdrop or you. Changes. Notwithstanding the provisions of the Modification section above, if Gumdrop amends this Dispute Resolution section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms) you will be notified in accordance with these Terms. You may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the Last Updated Date above or in the date of Gumdrop’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Gumdrop in accordance with the provisions of this Dispute Resolution section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms). Right to Opt Out of Arbitration and Class Action/Jury Trial Waiver: You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying us in writing within 30 days of the date you first registered for the Services. To opt out, you must send a written notification to Miami Labs, Inc., Attn: Legal, 2916 N. Miami Ave., Suite 1005, Miami, FL 33127 that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions. Alternatively or in addition, you may send this written notification to [email protected]. 21. International Creators Gumdrop makes no claim that the Site is appropriate or may be downloaded outside the United States. If you access the Site from a location outside the United States, you do so at your own risk and are responsible for compliance with all applicable laws, rules, regulations or decrees of your jurisdiction. 22. Feedback and Reporting Misconduct We welcome and encourage you to provide feedback, comments and suggestions (collectively “Feedback”) for improvements to the Site. You may submit feedback by emailing us at [email protected]. You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or our Services, or to improve or develop new products, services, or the Services in our sole discretion. Gumdrop will exclusively own all improvements to, or new, Gumdrop products, services, or Services based on any Feedback. You understand that Gumdrop may treat Feedback as nonconfidential. 23. General The failure of either party to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gumdrop. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. These Terms do not, and shall not be construed to, create any partnership, joint venture, employer- employee, agency or franchisor-franchisee relationship between you and Gumdrop. Certain Services features, or website and/or application areas (and your access to or use of certain aspects of the Services or content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Services, or Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the website, application, Services, or content. By registering or by clicking to accept these Terms, you are deemed to have executed these Terms electronically, effective on the date you register your Account, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your creating of a Registered Customer account constitutes an acknowledgment that you are able and willing to electronically receive, download, and print these Terms, any amendments, and any other agreements with us. 24. Notice to California Residents. If you are a California resident, under California Civil Code 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 Services or to receive further information regarding use of the Services. 25. Entire Agreement These Terms constitute the entire and exclusive understanding and agreement between Gumdrop and you regarding the Service, and supersede and replace any and all prior oral or written understandings or agreements between Gumdrop and you regarding the same. Disclaimer: The original, legally binding version of this document is written in English. If it is translated into other languages by non-native English-speakers or by software, there may be discrepancies between the English version and the translated version. If so, the English version supersedes the translated version. Copyright 2022 Miami Labs, Inc. All rights reserved.
Gumdrop Acceptable Use Policy
(Last Updated March 9, 2022) 1. Scope This Acceptable Use and External Facing Services Policy (“Policy”) applies to customers’ use of all services offered by our website, www.getgumdrop.app or our mobile application (collectively, “Gumdrop”). 2. Changes to Policy Gumdrop may change this Policy by posting an updated version of the Policy at https://www.getgumdrop.app/terms-of-service and such updates will be effective upon posting. 3. Violations A customer’s violation of this Policy will be considered a material breach of the terms of service governing the customer’s use of the services. 4. Prohibited Material and Uses Customers may not, and may not allow any third-party, to use services to display, store, process or transmit, or permit use of services to display, store, process or transmit: • Material that infringes or misappropriates a third party’s intellectual property or proprietary rights; • Hate-related or violent material, and/or material advocating discrimination or intolerance against individuals or groups; and/or material related to glorification of violence and/or hate • Obscene, excessively profane material or otherwise objectionable material; • Material advocating or advancing criminal hacking, cracking, or phishing; • Material related to illegal drugs or paraphernalia; • Material related to/and or material promoting the sale and use of firearms and related accessories • Material related to/and or material promoting political content; including but not limited to: content that references a candidate, political party, elected or appointed government official, election, referendum, ballot measure, legislation, regulation, directive, or judicial outcome • Material related to/and or material promoting PACs or SuperPACs • Malicious material; • Unlawful software; • Malicious code, such as viruses, worms, time bombs, Trojan horses and other harmful or malicious files, scripts, agents or programs; or • Material that violates, encourages or furthers conduct that would violate any applicable laws, including any criminal laws, or any third-party rights, including publicity or privacy rights. 5. Prohibited Actions Customers may not use a service to, nor allow its users or any third-party to use a service to: • Send, upload, distribute or disseminate, or offer to do the same, with respect to unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, excessively profane, hateful, violent, or otherwise objectionable material, or promote, support or facilitate unlawful, hateful, discriminatory, or violent causes; • Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; • Conduct or forward multi-level marketing, such as pyramid schemes and the like; • Generate or facilitate SMS, MMS, or other text messages or push notifications in violation of the Telephone Consumer Protection Act, the Do-Not-Call Implementation Act, or any other applicable law including anti- spam, telemarketing or telephone consumer protection laws or regulations; • Use the services in any manner that violates any applicable industry standards, third party policies or requirements that Gumdrop may communicate to its users, including all of the applicable guidelines published by the CTIA, the Mobile Marketing Association, the Self- Regulatory Principles as directed by the Digital Advertising Alliance and the Network Advertising Initiative or any other generally accepted industry associations, carrier guidelines or other industry standards; • Transmit material that may be harmful to minors; • Illegally transmit another’s intellectual property or other proprietary information without such owner’s or licensor’s permission; • Impersonate another person, entity or Gumdrop (via the use of an email addressor otherwise) or otherwise misrepresent themselves or the source of any communication; • Violate the rights (such as rights of privacy or publicity) of others; • Promote, facilitate or encourage illegal activity; • Interfere with other users’ enjoyment of a service; • Mislead people about voting processes or census processes; • Engage in activity in connection with illegal peer-to-peer file sharing; • Engage in or promote gambling, or run a gambling operation; • Sell, distribute or export illegal or prescription drugs or other controlled substances or paraphernalia; • Access (including through any interfaces provided with a service), any Gumdrop product or service, or other service or website, in a manner that violates the terms for use of or access to such service or website; • Operate an “open proxy” or any other form of Internet proxy service that is capable of forwarding requests to any end user or third party-supplied Internet host; • Perform significant load or security testing without first obtaining Gumdrop’s written consent; • Remove any copyright, trademark or other proprietary rights notices contained in or on the service or reformat or frame any portion of the web pages that are part of the service’s administration display; • Access a third party web property for the purposes of web scraping, web crawling, web monitoring, or other similar activity through a web client that does not take commercially reasonable efforts to identify itself via a unique User Agent string describing the purpose of the web client and obey the robots exclusion standard (also known as the robots.txt standard), including the crawl-delay directive; or • Use a service in any manner that would disparage Gumdrop.