Updated 1/12/2025 

These TERMS OF SERVICE (these “​Terms of Service”) are made by and between Gingr, LLC (“​Gingr”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “you​”). 

Gingr offers an online service platform known as ​Gingr ​(the “​Platform​”) through the web site located at ​www.gingrapp.com (the “​Website​”) that provides you with the ability to access and use information, data, and other content for the operation of pet boarding, daycare, grooming, and other pet care businesses, as well as additional services, functionality, and resources made available through the Platform (“Services​”). 

All access to and use of the Services available through the Platform is subject to these Terms of Service.  If you have placed or later place an order (whether in the form of an online order submitted through the Platform, by way of an executed Statement of Work or other document, or by way of email, phone, or otherwise) with Gingr (your “​Order​”) seeking to access and use certain of the Services, and if Gingr accepts that Order, then your access to and use of the Services is also subject to the terms of that Order. 

In addition to these Terms of Service and any accepted Order, your access to and use of the Platform and Services is subject to Gingr’s then-current policies relating to the Platform and Services, including, without limitation, Gingr’s Privacy Policy.  You are responsible for compliance with these policies and all other Gingr policies applicable to the access and use of the Services posted to the Platform or provided through Services. 

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU.  PLEASE READ IT CAREFULLY. 

THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. 

BY ACCESSING OR USING THE PLATFORM OR SERVICES (OR BY SUBMITTING AN ORDER FOR ANY SERVICES), YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. 

IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS OF SERVICE, GINGR IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR SERVICES.  IF YOU ACCESS OR USE THE PLATFORM OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS OF SERVICE AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. 

THESE TERMS OF SERVICE ARE ENTERED INTO AS OF THE EARLIER OF THE DATE YOU (I) FIRST SUBMIT AN ORDER RELATING TO THE SERVICES OR (II) FIRST ACCESS OR USE THE SERVICES OR THE PLATFORM (THE “​EFFECTIVE DATE​”).  THESE TERMS OF SERVICE ARE SUBJECT TO CHANGE BY GINGR WITHOUT PRIOR WRITTEN NOTICE AT ANY TIME, IN GINGR’S SOLE DISCRETION.  THE LATEST VERSION OF THESE TERMS OF SERVICE WILL BE POSTED ON THE WEBSITE, PLATFORM, OR OTHERWISE DELIVERED TO YOU ELECTRONICALLY.  YOUR CONTINUED USE OF THE PLATFORM OR SERVICES AFTER A POSTED CHANGE IN THESE TERMS OF SERVICE WILL CONSTITUTE YOUR ACCEPTANCE OF AND AGREEMENT TO SUCH CHANGES.   

  1. DEFINITIONS.  Capitalized terms have the meanings below or as otherwise provided in these Terms of Service. 

1.1 “Affiliate” means any entity that (as of the Effective Date, or thereafter) directly or indirectly Controls, is Controlled by, or is under common Control with, you or Gingr, respectively, and as the context requires.  “Control” means the power to direct or cause the direction of the affairs, policies or management of a person or entity, whether through the ownership of voting securities, by contract or otherwise; except that with respect to you only, direct or indirect ownership of at least 20% of voting securities, equity interest or the equivalent also constitutes Control. 

1.2 “Aggregated Anonymous Data” means any of the following information as has been aggregated with other similar information of other of Gingr’s customers, and anonymized so that it does not reveal any personally identifying information or information identifying you: (a) information related to how Gingr’s customers are using the Platform and Services; and (b) information related to the performance of the Platform or Services. 

1.3 “Applicable Law” means all laws, rules, regulations, rulings, decrees, directives, or other requirements of any governmental authority, and all current industry self-regulatory principles that (a) apply to the Services; (b) relate to Gingr’s or your rights and obligations under these Terms of Service, as may be amended or otherwise revised; or (c) apply to the collection, processing, and storage of Personal Information including, but not limited to, California data privacy and European Union General Data Protection Regulation (GDPR) regulations.  

1.4 “Documentation” means the description of the Services, including any specifications, requirements, training guides, or manuals, and any other information about installation, configuration, interoperability, and use, including any updates thereto, as provided or made available by or on behalf of Gingr.  

1.5 “Intellectual Property Rights” means any (a) trademarks, service marks, trade names, trade dress and Internet domain names, together with all goodwill and common law rights associated therewith; (b) patents; (c) copyrights; (d) registrations and applications for registration of any of the foregoing in (a)-(c); (e) trade secrets; and (f) rights of privacy and/or publicity; and all other forms of intellectual property or proprietary rights, and derivatives thereof.  

1.6 “Personal Information” has the meaning set forth in the Data Processing Addendum. 

1.7 “Personnel” means, with respect to each of Gingr and you, respectively, Gingr’s or your employees, subcontractors, vendors, agents, officers, directors, and other persons and/or entities that may be engaged by either of Gingr or you from time to time.  

1.8 “Subscription Term” means the term you selected on the Platform when signing up for the Services, subject to any auto-renewals thereof; in each case, unless as otherwise set forth on an Order Form. 

1.9 Systems” means websites, mobile or tablet devices or sites, applications and other digital properties, services, platforms, software, servers, computers, hardware, firmware, middleware, networks, systems, workstations, data communications lines, routers, hubs, switches, magnetic, optical or electrical data storage devices, and all other information technology equipment. 

1.10 “Updates” means all updates, modifications, enhancements, corrections, bug fixes, patches, upgrades, and new versions of the Platform.  References in these Terms of Service to the “Platform” include all Updates thereto. 

1.11 “Your Content” means all electronic information transferred, stored, modified, communicated, or shared through your use of the Services and any Personal Information relating to you or any of your Users, customers, service providers, employees, contractors, recipients, or agents generated or received through your use of the Platform or Services. 

 

2 SCOPE OF AGREEMENT.   
2.1 License Grant.  During the Subscription Term, Gingr hereby grants to you a revocable, non-exclusive, worldwide, non-transferable, non-sublicensable (except to your Affiliates), license to access and use the Platform as set forth in these Terms of Service and the applicable Order.  You may display, reproduce, modify, and distribute the Documentation to any Users of the Platform solely as necessary to facilitate your exercise of the licenses granted above.  The license set forth in this Section 2.1 will automatically terminate at the conclusion of the Subscription Term. 

 

2.2 Your Use of the Platform and Services. 
2.2.1 Following Gingr’s acceptance of your initial Order, you will be granted access to the Services through an account (“Account”) within one business day, to the extent that your Account has not been previously established.  You may authorize designated employees within your organization to access the Services through your Account (each such individual, as applicable, a “User” of the Account).  You and each User will be provided with a user identification and will select a password (each such user identification and password, a “User ID”).  Each User ID is personal in nature and may be used only by the applicable User. 

2.2.2 You are solely responsible for all use of the Platform and Services through your Account, for the actions of each User of your Account, and for compliance by each User with these Terms of Service.  You will use commercially reasonable practices to protect the security and confidentiality of each User ID and will notify Gingr immediately if any User ID is lost, stolen, or otherwise compromised.  You acknowledge that you are fully responsible for all costs, fees, liabilities, and damages incurred, and material transferred, stored, modified or shared through use of each User ID (whether lawful or unlawful).  You will be solely responsible, at your own expense, for acquiring, installing, and maintaining all hardware, software, and other equipment as may be necessary for you and each User to connect to, access, and use the Services and Platform. 

2.2.3 You acknowledge that the Services, Platform, and the databases, software, hardware, and other technology used by or on behalf of Gingr to provide the Services and operate the Platform (the “Technology”) and their structure, organization, and underlying data, information, and source code constitute valuable trade secrets of Gingr.  You will not, and will not permit any third-party to: (a) access or use the Services or Platform, in whole or in part, except as expressly provided in these Terms of Service; (b) violate Gingr’s Privacy Policy or other terms or policies governing your use of the Site, Platform, or Services, in effect and as updated from time to time; (c) use the Platform or Services in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Platform or Services; (d) use automated scripts to collect information from or otherwise interact with the Platform or Services, except for the sole purpose of collecting and extracting Your Content in compliance with your rights or obligations set forth in these Terms of Service and any applicable Order; (e) use the Platform or Services to intimidate or harass any other people or entities; (f) alter, modify, reproduce, create derivative works of the Services, Platform, or Technology; (g) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use the Services or any Technology (except as expressly provided for in these Terms of Service), including providing outsourcing, service bureau, hosting, application service provider or on­line services to third parties, or otherwise make the Services or any Technology, or access thereto, available to any third-party; (h) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Platform, Services, or any Technology; (i) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Platform, Services, or any Technology; or (j) interfere in any manner with the operation or hosting of the Platform, Services, or any Technology, or attempt to gain unauthorized access to the Platform, Services, or any Technology.  You will not allow any access to or use of the Services by anyone other than your authorized Users, and any such use will be consistent with the terms, conditions, and restrictions set forth in these Terms of Service.  

2.2.4 You will be solely responsible for all of Your Content uploaded or posted to, or generated or transmitted through, your Account by any User or other third-party, or that Gingr may receive, collect, or obtain through your use of the Platform or Services. You grant to Gingr a limited, revocable, non-sublicensable license in and to Your Content throughout the United States while these Terms of Service or an Order is in effect for the sole purpose of Gingr providing the Services under these Terms of Service and such Order.  As between you and Gingr, you own and retain all of your rights in and to Your Content and do not convey any proprietary interest therein to Gingr other than the licenses set forth in these Terms of Service.  You agree that none of Your Content or the use of Your Content: (a) violates these Terms of Service or any Applicable Laws; (b) is libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitutes an infringement or misappropriation of the rights of any third-party; (d) is illegal or advocates illegal activity; (e) is an advertisement or solicitation of funds, goods, or services; (f) is false, misleading, or inaccurate; or (g) is or could be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message, or disruptive advertisement.  In addition, you acknowledge that you (and your Users) may grant access to Your Content through the Services, and you are solely responsible for all access to or permission to share access to Your Content provided through your Account to any User or other third-party.  Gingr has no responsibility for any such activity, or the actions taken or not taken by Users or other third parties to whom you have granted any such access or permission.  Gingr may take remedial action if any of Your Content violates these Terms of Service, including deletion of any of Your Content from the Platform and Services; provided, that Gingr is under no obligation to review any of Your Content for accuracy or potential liability.  You represent and warrant to Gingr that you have all necessary right, title, interest, and consent necessary to allow Gingr to use Your Content for the purposes for which you provide Your Content to Gingr, including the transfer, storage, modification, communication, and sharing of Your Content. 

2.3 Standards of Service.  Gingr will perform the Services in a professional, competent, and workmanlike manner in accordance with industry standards, using Personnel who are fully trained and qualified to perform the Services, in accordance with the applicable Order and these Terms of Service. 

2.4 Modifications to the Platform or Services.  Gingr reserves the right, at any time, to modify the Platform or Services, or any part thereof, subject to these Terms of Service and an applicable Order, provided that any such modification does not diminish any functionality thereof utilized by you, and further provided that Gingr will provide you with not less than thirty (30) days’ written notice of such modification.
 
2.5 Suspension of Your Account.  Without limiting Gingr’s right to terminate these Terms of Service, Gingr may also immediately and indefinitely suspend your access to the Platform or Services, including, without limitation, your Account and all of Your Content, by providing notice to you, upon any actual, threatened, or suspected breach of any Applicable Law or upon any other conduct deemed by Gingr to be inappropriate or detrimental to the Platform, Services, Gingr, or any other Gingr customer or user, until the breach of Applicable Law or inappropriate conduct is cured by you.  Gingr may at any time following any suspension, suspend access to or delete any of Your Content held by Gingr or the Platform or Services. 

 

3. ORDERS. ​ All Orders placed by you and accepted by Gingr for any Services will be governed by these Terms of Service.  Gingr will confirm your Order through (i) the Platform at the time you submit your Order, (ii) by providing you with access to the Services specified in your Order, or (iii) via a document executed by both Gingr and you. 

 

4. FEES AND PAYMENT; TAXES.   
4.1 Fees and Invoicing.  You agree to pay Gingr all fees set forth in each Order, as well as all other fees and expenses incurred through your Account in connection with additional services or products obtained through the Platform or Services, whether by you or by any User or other individual accessing or using your Account (all such fees, collectively, the “Fees”).  Gingr will invoice you for Fees at the frequency and in the manner set forth in the applicable Order; provided, that, if not set forth in the applicable Order, invoicing shall be monthly, and payment shall be in US Dollars.  Except as expressly set forth in these Terms of Service or any Order, all Fees will be non-refundable once paid to Gingr (including upon any termination or suspension of your Account).  Gingr only guarantees its subscription rates for the current Subscription Term you have selected.  Unless expressly set forth in an Order, Gingr may increase such subscription rates following the conclusion of the Subscription Term.  Unless expressly set forth in an Order, Gingr may otherwise increase any portion of the Fees by posting the changes to the Platform or otherwise notifying you through the Services of the change, such changes to take effect upon your next billing period. 

4.2 Late Payments.  You agree to pay all undisputed Fees, including the actual costs of any expenses pre-approved by you in writing, within thirty (30) days of the date you receive the applicable invoice.  Gingr may charge you interest on any amounts more than sixty (60) days past due equal to the lesser of (a) eighteen percent (18%) per annum, or (b) the greatest amount permitted to be charged by Applicable Law.   

4.3 Payment Method.  If you have specified a credit card or a debit card, or direct withdrawal from a bank account, as an applicable payment method, you grant Gingr the right to charge such credit card or debit card, or draw funds from such bank account, for all Fees incurred under these Terms of Service. 

4.4 Taxes.  Except as otherwise stated in an applicable Order, if and to the extent any payments due by you to Ginger under these Terms of Service are subject to any applicable value added, goods and services, sales, use, consumption, or other similar taxes imposed by a governmental authority, for which you are liable under Applicable Law (“Taxes”), Gingr may charge and you agree to pay such Taxes; provided, that such Taxes are separately stated and identified by jurisdiction on a valid tax invoice that includes the Services that are subject to such Taxes.  Notwithstanding the foregoing, Gingr will not invoice you for Taxes where you provide Gingr with a valid direct pay or exemption certificate. 

 

5. CONFIDENTIAL INFORMATION.  “Confidential Information” is any information and materials disclosed or made available by or on behalf of one of Gingr or you (“Discloser”), to the other or that the other (“Recipient”) obtains in connection with these Terms of Service that is designated as confidential or is reasonably expected to be confidential or proprietary.  Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, trade secrets, business, technical, and financial information not generally known to the public, such as business plans, strategies, practices, products, and Personnel-related data; and in the case of you, Your Content and Personal Information.  Confidential Information does not include information that (a) the Recipient rightfully possessed without a duty of confidentiality before obtaining it from the Discloser; (b) is or becomes generally available to and known by the public through no fault of Recipient; (c) Recipient received on an unrestricted basis from a source other than Recipient, and not under a duty of confidentiality; or (d) Recipient developed independently without the use of any of Discloser’s Confidential Information.  Recipient’s obligations under this Section 5 regarding Discloser’s Confidential Information terminate two (2) years after the end of the Term or the last Subscription Term (whichever is later), except that Recipient’s obligations survive (a) in perpetuity for backed up Personal Information; and (b) for Confidential Information that is a trade secret, for as long as such Confidential Information is a trade secret under Applicable Law. 

5.1 Protection.  Each of Gingr and you, respectively, will maintain in confidence and protect the other’s Confidential Information from any unauthorized disclosure, access, use, destruction, alteration, or loss, using at least the same standard of care Gingr or you use to protect Gingr’s or your own respective Confidential Information, but no less than a reasonable degree of care.  

5.2 Use and Disclosure.  Subject to Section 5.3 (Required Disclosure), Recipient will not, nor permit any person or entity to use, copy, or disclose Discloser’s Confidential Information to any person or entity other than (i) to Recipients’ Affiliates and authorized Personnel as strictly necessary for Recipient to perform or receive the Services or to comply with these Terms of Service or Applicable Law, or (ii) to legal counsel, accountants, banks, and other financing sources and advisors as strictly necessary for such parties to advise or perform services on behalf of Recipient (such persons, “Authorized Persons”).  Recipient (a) will ensure that its Authorized Persons with access to Discloser’s Confidential Information are bound by substantially similar confidentiality obligations no less restrictive than those set forth in these Terms of Service and (b) is liable to Discloser for the failure of Recipient’s Authorized Persons to comply with this Section 5 to the same extent that Recipient would have been had Recipient failed to comply.  Nothing in this Section 5 will be construed to restrict the licenses or rights granted by or on behalf of Gingr or its Personnel hereunder. 

5.3 Required Disclosure.  Recipient will, to the extent not prohibited by Applicable Law, (a) promptly notify the Discloser if any Applicable Law or a governmental authority of competent jurisdiction requires or requests Recipient to disclose any of Discloser’s Confidential Information; and (b) use reasonable efforts to allow Discloser an opportunity to seek injunctive relief from, or a protective order with respect to, the contemplated disclosure.  Notwithstanding the foregoing, Recipient (i) may disclose only that portion of Discloser’s Confidential Information that Recipient’s counsel advises is not subject to privilege and must be disclosed, and (ii) will, at Discloser’s expense and to the extent not prohibited by Applicable Law, cooperate with Discloser to ensure the disclosed Confidential Information is treated in a confidential manner. 

5.4. Use of Aggregated Anonymous Data.  Notwithstanding anything herein to the contrary, Gingr may (i) collect information to generate, and process, Aggregated Anonymous Data, and (ii) freely use and make available Aggregated Anonymous Data for the purpose of operating the Platform and marketing it to other similar customers (including without limitation, for purposes of improving, testing, operating, promoting and marketing Gingr’s current and future products and services).  Gingr is and will remain the sole and exclusive owner of all right, title, and interest in and to all Aggregated Anonymous Data, including all intellectual property rights related thereto, and may freely use all Aggregated Anonymous Data during the term of these Terms of Service and thereafter.  

6 DATA AND SECURITY.   
6.1 Data Processing.  Each of Gingr and you, respectively, agree to comply with all Applicable Laws with respect to collecting, processing, accessing, sharing, storing, and disposing of Personal Information as set forth on the Data Processing Addendum that follows and forms part of these Terms of Service. 

6.2 Security.  To protect Your Content, we will (a) implement and maintain administrative, technical, physical, and organizational safeguards regarding security, continuation, backup, and disaster-recovery that are consistent with industry standards and practices and comply with Applicable Law, and (b) only access and use your Systems to the extent necessary to perform the Services.   

7. INTELLECTUAL PROPERTY.  Except for the rights provided in these Terms of Service, as between Gingr and you, Gingr is the sole and exclusive owner of the Services, Platform, Technology, and Documentation, including all associated Intellectual Property Rights.   

8 REPRESENTATIONS AND WARRANTIES.   
8.1 Duly Authorized.  Each of Gingr and you, respectively, represent and warrant to the other that it (a) is duly organized and in good standing in the jurisdiction of its organization; and (b) has all requisite power and authority to execute, deliver, and enter into these Terms of Service.   

8.2 No Consents or Conflicts.  Each of Gingr and you, respectively, represent and warrant to the other that the acceptance and performance of these Terms of Service does not and will not: (a) violate, conflict with, or result in the breach of any provision of its charter, bylaws, or organizational documents; or (b) conflict with, result in a breach of, constitute a default of, require any consent under, or give any other person or entity a right to terminate, amend, accelerate, suspend, revoke, or cancel any other agreement to which it is a party or by which it is bound. 

8.3 No Default.  You represent and warrant that (a) you are and will remain current on all payment and re-payment obligations to vendors, suppliers, contractors, lenders, and governmental authorities (including, without limitation, all tax obligations) in connection with your business operations, (b) there are no pending or threatened claims, liens, levies, or garnishments against your or your Affiliates’ assets (including, without limitation, bank accounts) by any such parties, and (c) no secured party has taken or threatened any action under Article 9 of the Uniform Commercial Code to claim or collect against your or your Affiliate’s assets (including, without limitation, bank accounts). 

8.4 Compliance with Applicable Law.  Each of Gingr and you, respectively, will comply with all Applicable Laws relative to its performance under these Terms of Service. 

8.5 OFAC.  Each of Gingr and you, respectively, certify that (a) it is not acting on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department, through its Office of Foreign Assets Control (“OFAC”) or otherwise, as a terrorist, “Specially Designated Nation”, “Blocked Person”, or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by OFAC or another department of the United States government, and (b) it is not engaged in this transaction on behalf of, or instigating or facilitating this transaction on behalf of, any such person, group, entity, or nation. 

8.6 Warranty Disclaimer.  EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS OF SERVICE AND ANY ORDER, EACH OF GINGR AND YOU, RESPECTIVELY, DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 

9. INDEMNIFICATION. 
9.1 Indemnification by Gingr.  Gingr will defend, indemnify, and hold harmless you, your Affiliates, and your and their respective officers, directors, employees, agents, successors, and assigns from and against any and all liabilities, losses, claims, damages, costs, and expenses as incurred, to the maximum extent permitted by law (including reasonable attorneys’ fees and any applicable fines or penalties) (collectively, “Losses”) arising from any third-party claim, suit, action, or proceeding (each, a “Third-Party Claim”) that: (a) the Platform, Services, Systems, Technology, or Documentation, infringed, misappropriated, or otherwise violated or conflicted with Applicable Law or such third-party’s Intellectual Property Rights; (b) Gingr breached its obligations under Section 6 (Data and Security); (c) Gingr breached its obligations, representations, or warranties under these Terms of Service; and (d) Gingr and/or its Personnel failed to comply with Applicable Law. 

9.2 Indemnification by You.   You will defend, indemnify, and hold harmless Gingr, its Affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns from and against any and all Losses as incurred, to the maximum extent permitted by law (including reasonable attorneys’ fees and any applicable fines or penalties) arising from any Third-Party Claim that: (a) Your Content infringed, misappropriated, or otherwise violated or conflicted with Applicable Law or such third-party’s Intellectual Property Rights; (b) you breached your obligations, representations, or warranties under these Terms of Service; and (c) your and/or your Personnel failed to comply with Applicable Law. 

9.3 Indemnification Procedure. The party seeking indemnification under these Terms of Service (the “Indemnitee”) will provide the other party (the “Indemnitor”) with prompt notice of any claim, suit, action, or proceeding (an “Action”) for which it believes it is entitled to indemnification.  The Indemnitor will immediately take control of the defense and investigation of such Action and will employ counsel approved by the Indemnitee, such approval not to be unreasonably withheld or delayed, to handle and defend the same, at the Indemnitor’s sole cost and expense.  The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  Indemnitor will not settle any Action on any terms or in any manner without Indemnitee’s prior written consent. 

9.4 Infringing Materials.  If the Platform, Services, or Technology, or any part thereof, are held by a court of competent jurisdiction to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or Gingr determines in good faith that your use of the Platform or Services may infringe upon any third-party Intellectual Property Rights, Gingr will use commercially reasonable efforts to either (a) promptly replace any allegedly infringing or misappropriating materials with functionally equivalent, non-infringing, and non-misappropriating materials; (b) modify any allegedly infringing or misappropriating materials to render them functionally equivalent, non-infringing, and non-misappropriating; or (c) obtain a license for you and licensees under these Terms of Service to continue using, receiving, and otherwise exercising your rights in and to any allegedly infringing or misappropriating materials, all subject to and in accordance with these Terms of Service and an applicable Order (collectively, the “Corrective Solutions”).  If Gingr is unsuccessful with such Corrective Solutions, Gingr will have the right to cease providing Services to you and relieve each of Gingr and you of further rights and obligations under these Terms of Service (subject to any applicable survival periods), and Gingr will, in such case, provide a refund to you of all you have paid to Gingr in the six (6) months (or number of months these Terms of Service have been in effect if less than six) prior to such termination.  Each of Gingr and you agree that, except for its obligation under Section 9.1(a) (Indemnification by Gingr), the Corrective Solutions will be your sole remedy with respect to such infringement. 

9.5 Statute of Limitations.  No Action, regardless of form, may be brought or asserted by Gingr or you, respectively (nor its affiliates or their respective officers, directors, employees, or agents) against the other (nor its affiliates or their respective officers, directors, employees, or agents) under these Terms of Service more than one year after the cause of such Action became known to the potential claimant or should have been known to the claimant based on the surrounding circumstances. 

9.6 Waiver of Jury Trial.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH OF GINGR AND YOU, RESPECTIVELY, HEREBY WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION IN ANY WAY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE. 

 

10 LIMITATIONS ON LIABILITY AND EXCLUSIONS. 
10.1 Limitations on Liability.  EXCEPT FOR ANY FEES OWED BY YOU TO GINGR UNDER THESE TERMS OF SERVICE OR ANY ORDER (INCLUDING, WITHOUT LIMITATION, ANY TAX OBLIGATIONS), IN NO EVENT WILL THE AGGREGATE LIABILITY OF GINGR OR YOU, RESPECTIVELY, ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, EXCEED THE GREATER OF (A) $50,000, OR (B) TWO TIMES (2X) THE AMOUNT OF FEES PAID BY YOU TO GINGR DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.  THE FOREGOING LIABLILITY CAP SHALL NOT APPLY WITH RESPECT TO (A) GINGR’S OR YOUR RESEPECTIVE INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS OF SERVICE, OR (B) LOSSES OR DAMAGES CAUSED BY GINGR’S OR YOUR FRAUD, GROSS NEGLIGENCE, OR WILLFUL OR DELIBERATE ACT OR OMISSION, IN WHICH CASE THE AGGREGATE LIABILITY OF GINGR OR YOU, RESPECTIVELY, ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, SHALL NOT EXCEED $500,000. 

10.2 Exclusions.  NEITHER GINGR NOR YOU, RESPECTIVELY, NOR THEIR AFFILIATES, NOR ITS OR THEIR PERSONNEL, PARTNERS, SHAREHOLDERS, SUCCESSORS, OR ASSIGNS, WILL HAVE ANY LIABILITY TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, OR OTHERWISE. 

 

11. TERM; TERMINATION.  
11.1 Term.  These Terms of Service are effective as of the Effective Date (unless otherwise set forth in the applicable Order Form) and terminate three (3) years thereafter (the “Initial Term”), unless earlier terminated in accordance with these Terms of Service.  These Terms of Service will automatically renew for subsequent one year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”); provided, that either Gingr or you, respectively, may terminate these Terms of Service upon sixty (60) days’ advance written notice after the Initial Term.  Notwithstanding the foregoing, (a) you may not terminate these Terms of Service until all Order Forms are terminated; and (b) you will have the right to terminate these Terms of Service at any time after the first two (2) years of the Initial Term if you pay to Gingr a termination fee equal to $100,000. 

11.2 Termination Rights. 

11.3 Termination for Breach.  Either Gingr or you, respectively, may terminate these Terms of Service, in whole or in part (including any affected Order(s)) (a) immediately upon written notice if the other breaches its obligations set forth in these Terms of Service and such breach is non-curable, or (b) thirty (30) business days following the other’s receipt of notice that it has breached these Terms of Service if it has not cured such breach within the thirty (30) business day period. 

11.4 Termination for Bankruptcy.  Either Gingr or you, respectively, may terminate these Terms of Service (including any affected Order(s)) at any time by providing notice of termination to the other if the other: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property. 

11.5 Gingr Termination Rights.  Gingr may terminate these Terms of Service, in whole or in part (including any affected Order(s)) if: (a) you fail to pay, by the applicable payment due date, the undisputed portion of an invoice properly issued hereunder, or breach your obligations under Section 5 (Confidential Information); (b) Gingr has notified you in writing of such non-payment or breach and, in such notification, has stated its intent to terminate these Terms of Service; and (c) such non-payment or breach has not been cured within thirty (30) days of your receipt of such notice, in which case these Terms of Service will terminate upon expiration of such thirty (30) day period. 

11.6 Effect of Termination.  Upon termination of these Terms of Service, Gingr will cease all Services and, if applicable, provide to you a final invoice for the applicable Services. 

 

11.7 Survival.  All sections of these Terms of Service, which by their nature should survive the termination or expiration of these Terms of Service, will so survive, subject to any survival periods specified therein. 

 

12. GENERAL PROVISIONS. 
12.1 Notices.  All notices described in or otherwise regarding these Terms of Service must be in writing and will be deemed to have been sufficiently given: (a) upon receipt if delivered in person; (b) upon delivery if by an internationally-recognized mail service (e.g., FedEx), overnight courier, or certified or registered mail, postage pre-paid, return receipt requested; or (c) on the date transmitted if by email (on condition that the original will promptly follow in accordance with the procedures set forth in clauses (a) or (b) or a verifiable, non-automated confirmation of email receipt is provided by the email’s recipient.  All notices must be sent to Gingr or you, respectively, at the addresses set forth below or at any other address which Gingr or you, respectively, have notified the other in accordance with this Section 12.1: 

If to you: 

To the address specified in your Account or on your Order. 

If to Gingr:  

Gingr, LLC 

Two Ravinia Drive, Suite 500 

Atlanta, GA 30346  

Email: support@gingrapp.com 

With a copy to: 

Togetherwork Holdings, LLC 

Two Ravinia Drive, Suite 500 

Atlanta, GA 30346 

Attn: Legal Department  

Email: legal@togetherwork.com 

12.2 Assignment.  Neither Gingr or you, respectively, may assign, delegate, or otherwise transfer any of its rights, remedies, or obligations set forth in these Terms of Service without the other’s prior written consent, not to be unreasonably withheld; provided, however, that Gingr may (without consent or prior notice) assign its rights and obligations hereunder to any successor to all or substantially all of its business that concerns these Terms of Service (whether by sale of stock or assets, merger, consolidation or otherwise).  These Terms of Service bind and inure to the benefit of Gingr and you, respectively, and Gingr’s or your respective successors and permitted assigns. 

12.3 Third-Party Beneficiaries.  Except as expressly provided herein, these Terms of Service (i) are entered into by and between, and may be enforced only by, Gingr and you, respectively, and (ii) will not be deemed to (a) create any rights in third parties (other than Gingr’s or your respective, permitted successors and assigns and any persons or entities expressly entitled to indemnity hereunder), including without limitation, Gingr or your affiliates and their respective officers, directors, employees, and agents, or (b) create any obligations of Gingr or you (nor Gingr’s or your affiliates or their respective officers, directors, employees, or agents) to any such third parties. 

12.4 Affiliates.  Your Affiliates may either (a) receive Services under an Order signed by you, in which case you are and will be responsible for such Affiliates’ compliance with these Terms of Service, or (b) execute an independent Order or, if applicable, a purchase order that you issue (“Purchase Order”) under these Terms of Service, in the case of either (a) or (b), each such Affiliate will be deemed “you” as set forth in these Terms of Service, and in the case of (b) only, that Affiliate will be solely responsible for its compliance with these Terms of Service and the applicable Order.  Any actions pursuant to an Order (including any breach of these Terms of Service with respect to such Order) by the Affiliate will only be enforceable against such Affiliate and will not affect the application, validity, or applicability of these Terms of Service or any other Order entered into pursuant to these Terms of Service. 

12.5 Disputes.  

12.6 Exclusive Procedures.  Any controversy, claim, or dispute arising out of or related to these Terms of Service (including but not limited to any Order entered into hereunder) or the interpretation, performance, or breach hereof, including without limitation alleged violations of state or federal statutory or common law rights or duties (a “Dispute”), will be resolved according to the procedures set forth in this Section 12.5, which will constitute the sole and exclusive dispute resolution mechanism to resolve all Disputes, and no other procedure may be used with the sole exception that Gingr or you, respectively, need not comply with the terms herein before filing a claim for injunctive relief.  Gingr’s and your respective promise to resolve all Disputes as set forth herein is given in consideration for the other’s like promise. 

12.7 Confidentiality. The details and/or existence of any Dispute, any informal meetings, and any proceedings conducted hereunder, including without limitation any discovery taken in connection therewith, will be kept strictly confidential and will not be disclosed or discussed with any third-party (excluding Gingr’s or your respective attorneys, accountants, and other agents and representatives, as reasonably required in connection with any Dispute resolution procedure hereunder), except as otherwise required by Applicable Law.  All offers, promises, conduct, and statements, whether oral or written, made in the course of the resolution of any Dispute by Gingr or you, respectively, Gingr’s or your respective agents, employees, experts, and attorneys, will be confidential, privileged, and inadmissible for any purpose, including impeachment, in any litigation, arbitration, or other proceeding, except that evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its use by either Gingr or you, respectively. 

12.8 Informal Dispute Resolution. Either Gingr or you, respectively, may demand, in writing, that Gingr’s and your management representatives meet at a mutually acceptable location to resolve the Dispute.  Upon receipt of this demand, Gingr and you will promptly comply and will negotiate in good faith to resolve the Dispute.  No third-party will have authority to consider or resolve any Dispute that is not first the subject of informal dispute resolution pursuant to this Section 12.5.3.  All meetings must be attended by Gingr and you, or Gingr’s and/or your representatives with full authority to settle the Disputes at issue. 

12.9 Arbitration.  If any Dispute cannot be resolved through negotiations between Gingr and you within thirty (30) days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration before a single arbitrator. The arbitration will be held in the State of Delaware in accordance with the Streamlined Arbitration Rules and Procedures of JAMS, which will administer the arbitration.  The arbitrator does not have the authority to modify these Terms of Service, but may, in the course of the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator, and the reasonable attorneys’ fees of the prevailing party.  The award of the arbitrator will be the exclusive remedy of each of Gingr and you for all claims, counterclaims, issues or accountings presented or plead to the arbitrator.  Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. 

12.10 Governing Law, Jurisdiction, and Venue.   These Terms of Service and all Disputes and Actions arising hereunder will be governed by, and construed in accordance with, the substantive laws of the State of Delaware applicable to contracts wholly made and to be performed within the State of Delaware without giving effect to the principles thereof with respect to conflicts of law.  Each of Gingr and you, respectively, hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts of the State of Delaware for any Dispute or Action arising out of or relating to these Terms of Service or the negotiation, validity, or performance of these Terms of Service. 

12.11 Entire Agreement; Conflict.  These Terms of Service (including all Orders and the Data Processing Addendum, which will be deemed to be incorporated by reference) constitutes the entire agreement between Gingr and you with respect to its subject matter.  If any provision of an Order conflicts with, expands, or limits any provision in these Terms of Service, these Terms of Service govern to the extent of such inconsistency; provided, however, those provisions of these Terms of Service that allow for modification by an Order may be so modified by an Order but only if the specific section number of these Terms of Service is identified in the Order so modifying. 

12.12 Force Majeure.  Neither Gingr or you, respectively, will be liable for any default or delay in the performance of its obligations under these Terms of Service to the extent an unforeseeable event including a natural disaster, act of God, pandemic, epidemic, fire, act of war or terrorism, riot, acts of civil or military authority, other similar unforeseeable occurrence beyond its reasonable control or any related governmental or judicial or other third-party actions taken in connection with, or as a response to the event (a “Force Majeure Event”) that makes it impossible for either Gingr or you, respectively, to perform or comply with its obligations; provided, that the affected party make all reasonable efforts to comply with its obligations despite the occurrence and, as soon as reasonably practicable, notifies the other of the occurrence and its expected duration and impact on the affected party’s performance.  Notwithstanding anything in this Section 12.8 to the contrary, you will not be relieved of any payment obligations arising under these Terms of Service as a result of a Force Majeure Event so long as the Services are still available to you. 

12.13 Construction.  The words “including,” “include,” and “includes” are not limiting and are to be read as not limiting the generality of the proceeding subject matter.  “Reasonable efforts” means, with respect to a given obligation, the efforts that a reasonable and prudent person would use in similar circumstances to perform the obligations as promptly as possible, consistent with its normal business practices and good-faith business judgment, including the incurrence of reasonable expenditures or liabilities.  

12.14 Independent Contractors.  Gingr is performing the Services as an independent contractor; and neither Gingr nor any of its Personnel is an agent, employee, affiliate, joint venturer, or partner of you or your Affiliates.  Gingr agrees that it is responsible for any and all disputes involving its Personnel. 

12.5 Severability.  If any provision of these Terms of Service is determined to be unenforceable by a governmental authority of competent jurisdiction, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Applicable Law) or disregarding it (if not).  All other provisions of these Terms of Service will remain in effect as written.   

12.6 Waiver.  Either Gingr’s or your respective failure to enforce any provisions of, or rights deriving from, these Terms of Service does not waive those provisions or rights, or Gingr’s or your respective right to enforce those provisions or rights.  Gingr’s and your respective rights and remedies in these Terms of Service are cumulative and supplement other rights and remedies available at law or in equity. 

 

DATA PROCESSING ADDENDUM  

This Data Processing Addendum (this “DPA”) forms a part of the Terms of Service between Gingr and you.  Gingr and you enter into this DPA to comply with applicable Data Protection Laws (as defined below). 

  1. Certain Defined Terms. Capitalized terms used in this DPA but not otherwise defined in this DPA or the Terms of Service have the following meanings:

a. "Data Protection Laws” means all Applicable Laws, self-regulatory rules and guidelines, and your policies relating to or impacting the processing, privacy, or security of Personal Information, including the California Privacy Rights Act of 2020. 

b. “Personal Health Information” or “PHI” has the meaning set forth under the Health Insurance Portability and Accountability Act. 

c. “Personal Information” means information processed by Gingr on your behalf through the Platform that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly to, a natural person. “Personal Information” does not include Usage Data. 

d. Usage Data" means data and information generated, collected, or derived from your use of the Services or Platform, including but not limited to: (i) technical information about device information and identifiers, IP addresses, log files, browser type and version, system configuration, and API calls and responses; (ii) Service interaction metrics such as features and functionalities accessed, frequency and duration of use, user navigation patterns, click-stream behavior, performance metrics, error rates, and system stability data; and (iii) aggregate statistics about Service utilization patterns, resource consumption, user engagement metrics, response times, and system load information. 

 

2. Scope. This DPA only applies to the extent that Gingr processes Personal Information on your behalf in the course of providing the Services. This DPA does not apply to the processing of PHI. In the event Gingr processes PHI on your behalf, Gingr and you will enter into a Business Associate Agreement that will govern such processing.  To the extent Usage Data is considered Personal Information under applicable Data Protection Laws, Gingr is the “controller” or “business” with respect to such Usage Data. 

 

3. Compliance with Laws. Each of Gingr and you respectively will comply with its obligations under applicable Data Protection Laws. You may take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Information by Gingr. If applicable Data Protection Laws related to the processing of Personal Information change, Gingr reserves the right to make any necessary amendments to this DPA. 

 

4. Instructions. Gingr will process your Personal Information in accordance with your documented lawful instructions as set forth in this DPA and the Terms of Service and as otherwise necessary to provide the Services (together “Processing Instructions”). You will ensure that your Processing Instructions comply with Applicable Laws.  If, in Gingr’s opinion, your Processing Instructions violate applicable Data Protection Laws, Gingr will notify you. Gingr may without penalty refuse further processing of Personal Information under this DPA that it believes to be in violation of any law, including Data Protection Laws. 

 

5. Use of Personal Information. Gingr may process Personal Information to provide the Services and as otherwise provided in the Terms of Service and this DPA. Gingr will not:  

a. sell, share (as such terms are defined under applicable Data Protection Laws) or otherwise disclose any Personal Information to any third party other than its duly authorized subcontractors for purposes of performing the Services;  

b. collect, retain, use, or otherwise disclose or process Personal Information, including Personal Information, for any purpose other than as necessary to provide the Services specified in the Terms of Service or outside of the direct business relationship between Gingr and you; provided that Gingr may retain, use, and disclose Personal Information obtained during the course of providing Services to retain and employ a Subprocessor (as defined below), for internal purposes to build or improve the quality of its services, to detect data security incidents or protect against fraudulent or illegal activity, or as otherwise permitted by Data Protection Laws; or  

c. combine Personal Information with personal information Gingr receives from, or on behalf of, another person or persons, or which Gingr collects from its own interactions with an individual, in each case except as expressly agreed by you and permitted by Applicable Laws. 

Gingr certifies that it understands the restrictions in this Section 5 and will comply with them.  

6. Security.  Gingr will implement and maintain appropriate technical and organizational security measures designed to preserve the security and confidentiality of Your Content processed by the Platform. Gingr may update its security measures, provided that any updates will not materially diminish the overall security of Personal Information or the Platform. 

7.  Subprocessors. You generally authorize Gingr to engage third parties to assist in the processing of Personal Information on your behalf (each, a “Subprocessor”). Gingr will require that each person processing Personal Information on its behalf be subject to a duty of confidentiality with respect to such Personal Information. If Gingr engages a new Subprocessor, Gingr will provide notice to you of that engagement and provide you with an opportunity to object to such engagement.  

8. Disposition of Personal Information Upon Termination.  Upon termination of the Terms of Service, Gingr will promptly delete all Personal Information in its custody or control, except for Personal Information retained in Gingr’s backup files, if any, which will be deleted in the ordinary course of Gingr’s business in accordance with its standard data retention schedules.   

9. Third-Party Communications. Gingr will promptly notify you if it receives any communication from a third-party (from an individual, a governmental, or otherwise) which relates to the processing of Personal Information, or to either Gingr’s or your respective compliance with Data Protection Laws, and will refer such third-party to you.  

10.  Compliance and Audit.

a. Gingr will provide all information reasonably necessary to demonstrate compliance with this DPA.  

b. Gingr will allow you or an auditor appointed by you to, not more than once every twelve (12), months unless required by Applicable Law, carry out audits or other security assessment (“Security Assessment”) relating to the processing of Personal Information by Gingr.  The scope of any Security Assessment will be mutually agreed by Gingr and you in advance.  You will be solely responsible for all costs related to any Security Assessment, including all costs incurred by Gingr in connection with cooperating with such Security Assessment. 

c. Gingr may, but is not required to, retain a qualified and independent assessor to perform an annual audit of the physical, technical, administrative, and organizational safeguards put in place by Gingr that relate to the protection of the security, confidentiality, or integrity of Personal Information using an appropriate and industry accepted control standard or framework and assessment procedure, or documentation of certification of compliance with, industry-accepted information security standards (“Third-Party Audit”).  

d. You agree to first review any available Third-Party Audit prior to conducting any Security Assessment. 

11. Personal Information Breach.  Gingr will notify you without undue delay of any unauthorized access to, or disclosure or acquisition of, to Personal Information.  Gingr will provide you with information regarding the extent of data exposure, including the number and identity of affected individuals, if known, and the status of remediation efforts. 

12. Conflict. In the event of any conflict between this DPA and the Terms of Service, the terms of this DPA will prevail.  

13. Limitation of Liability. Notwithstanding anything to the contrary in this DPA or the Terms of Service, and to the maximum extent permitted by law, each party’s liability, in the aggregate, arising out of or related to this DPA, whether in contract, tort, or under any other theory of liability, will remain subject to the limitation of liability section of the Terms of Service.  

14. Survival.  The obligations placed upon each party under this DPA will survive so long as Gingr processes Personal Information on your behalf.