Terms of Service
Last updated April 1, 2019
These Terms of Service ("Terms") apply to your access and use of the mobile application (the "App"), website, and other online products and services (collectively, the "Service") of Gesso, Inc. (“Gesso" "we," "us" or "our").
Accepting These Terms
BY DOWNLOADING THE APP OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF THESE TERMS BELOW. Please read all of the terms before you use the Service. If a term does not make sense to you, please let us know. If you don’t agree to all of the terms below, you may not use the Service.
Changes to these Terms
We reserve the right to change these Terms from time to time. For example, we may need to change these Terms if we come out with a new feature. If we make changes, we will notify you by revising the date at the top of the policy and, in some cases, we will provide you with additional notice (such as adding a statement to our homepage or sending you an email notification). We encourage you to review these Terms periodically to stay informed about our practices.
Whenever we make changes to these Terms, they are effective when the revised Terms are posted unless we notify you otherwise. If you continue to use the Service after the revised Terms have been posted, then you will be deemed to have accepted the changes to these Terms.
Description of the Service
The Service allows users to listen to our location based audio experiences through our mobile app.
You are responsible for your use of the App. Gesso is not responsible for any of the equipment that you may use to access the App (including any earphones, headphones, earplugs, or any other listening device, or any mobile device or any other device used to access the Service). Also, Gesso is not responsible for anything you may encounter while using the App (including, but not limited to, physical hazards, traffic, and other people). Accordingly, you must exercise due care when using the App -- Always be fully aware of your surroundings at all times while using our App.
When you create an account you must maintain the security of your password and accept all risk that someone may access your account without your permission. If you discover or suspect any security breaches, please let us know as soon as possible. You represent and warrant to us that all information that you provide in connection with your account is accurate, truthful, current and complete. Gesso reserves the right to deny any account at our discretion.
Right to Use the Service
On the condition that you fully comply with these Terms, Gesso grants you a limited, nonexclusive, non-transferable and revocable license to access and use the Service for your own personal, non-commercial use. However, the App may only be used on mobile devices that you own or control. The terms of this license will also govern any upgrades provided by Gesso that replace and/or supplement the original App, unless the upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Except as expressly authorized by these Terms, you may not (a) modify, disclose, alter, translate or create derivative works of the Service, (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Service, (c) disassemble, decompile or reverse engineer any of the software components of the Service, (d) copy, frame or mirror any part of the Service, (e) interfere with or disrupt the integrity or performance of the Service or (f) attempt to gain unauthorized access to the Service or its related systems or networks.
Fees and Payment Terms
Certain tours may be available for purchase either on a subscription basis or one at a time. Where applicable, payment for a Gesso tour is due upon purchase of a Gesso tour. Alternatively, if you select a subscription, payment is due at the beginning of each subscription term. Gesso, at its sole discretion, may modify its pricing during any subscription term and such pricing changes will be effective as of the directly subsequent subscription term. All payments must be made in U.S. Dollars and by credit/debit card via an authorized Gesso payment processor. You hereby authorize Gesso (or its authorized payment processor) to charge the credit/debit card number provided to Gesso, and you represent and warrant that you are authorized to use and have fees charged to the credit/debit card number provided to Gesso. You may withdraw such authorization by utilizing the cancellation mechanism provided via the Service, or by emailing us at email@example.com.
You may not do any of the following in connection with the Service:
Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service;
Use the Services for any illegal or unauthorized purpose or to engage in, encourage or promote any activity that unlawful or that violates these Terms; or
Circumvent or attempt to circumvent any filtering, security measures, rate limits or other features designed to protect the Service, its users, or third parties.
As between you and Gesso, all information, materials and content of the Service, including text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms and other content is owned by Gesso or is used with permission. Gesso reserves all rights not expressly set forth in these Terms.
Gesso will own exclusive rights, including all intellectual property rights, to any feedback, suggestions, ideas, or other information or materials that you provide regarding Gesso, whether by email, posting through the App, or otherwise ("Feedback"). Any Feedback you submit is non-confidential and will become the sole property of Gesso. Gesso will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You waive any rights you may have to the Feedback (including any copyrights or moral rights). Do not send Feedback to Gesso if you expect to be paid or want to continue to own or claim rights in your Feedback. Gesso also has the right to disclose your identity to any third party who is claiming that any content posted by you constitutes a violation of their intellectual property rights, or of their right to privacy. Further, you agree not to submit any Feedback that is defamatory, illegal, offensive, or otherwise violates any right of any third party, or breaches any agreement between you and any third party.
You acknowledge and agree that by accepting these Terms or using the Service you affirmatively consent to Gesso’s collection, use, disclosure and storage of your location information.
You may revoke your consent with respect to Gesso’s collection, use, disclosure and storage of your location information at any time by contacting firstname.lastname@example.org and deleting the App from your mobile device. Please know that if you revoke your consent by doing one of the foregoing or you delete or deactivate your account, we may retain certain information as required by law or for legitimate business purposes. We may also retain cached or archived copies of information about you for a certain period.
If you consent to our collection of location information and you do not subsequently stop the collection of this location information, Gesso will continue to collect this location information.
If you consent to our collection of location information, subsequently stop the collection of this location information and later consent to the collection of this location information, Gesso will resume the collection of location information.
Gesso takes reasonable measures to protect your location information from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction.
The Service is for your use and to collect your location information. You may not use the Service to collect another individual's location information. If you violate any of these restrictions or any other restriction, you will have breached these Terms, which may subject you to prosecution and damages.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. GESSO DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, THE SERVICE AND ALL THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT GESSO KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (C) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. GESSO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APP WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY GESSO OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL GESSO, OR ITS AGENTS, VENDORS, TOUR LOCATIONS, PARTNERS OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROPERTY, PHYSICAL LOSSES, DEATH OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICE (INCLUDING, THE APP AND ANY GESSO AUDIO EXPERIENCE), AND/OR THIRD-PARTY SERVICES OR MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF GESSO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
FOR ANY LOSS OR DAMAGE THAT IS NOT EXCLUDED UNDER THESE TERMS, THE TOTAL LIABILITY OF GESSO AND ITS DIRECTOR, EMPLOYEES, AGENTS, AFFILIATES, TOUR LOCATIONS, VENDORS AND INVESTORS WILL NOT EXCEED THE FEE FOR THE PARTICULAR GESSO AUDIO EXPERIENCE FROM WHICH THE LOSS OR DAMAGES AROSE (AS OPPOSED TO ANY OTHER FEES/COSTS INCLUDING, BUT NOT LIMITED TO, ANY FEES ASSOCIATED WITH YOUR DEVICE).
You will defend, indemnify, and hold Gesso and its employees, agents, vendors, tour locations, partners, and affiliates harmless from and against any actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising from or related to any conduct with respect to the Service or violation (or alleged violation) of these Terms or the rights of any third party by you or any person using your Gesso account.
Third Party Software
The software you download consists of a package of components, including certain third party software provided under separate third party license terms. Your use of this third party software in conjunction with the App in a manner consistent with the terms of these Terms is permitted, however, you may have broader rights under the applicable third party license terms, and nothing in these Terms is intended to impose further restrictions on your use of this third party software.
Changes to the Service
Gesso reserves the right in our discretion to review, improve, change or discontinue, temporarily or permanently, the Service and/or any features, information, materials or content on the Service with or without providing notice to you. Gesso will not be liable to you or any third party for any changes or discontinuance of the Service or any part of the Service.
Consent to Electronic Communications
By using the Service, you agree that we may communicate with you electronically regarding your use of the Service and that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify us at email@example.com.
Suspension and Termination
Gesso may suspend or terminate your rights to access or use the Service (including the App) for any reason or for no reason at all and with or without notice at Gesso’s discretion. Suspension or termination may include restricting access to and use of the App. All of the terms of these Terms (excluding the license grant) will survive any termination or suspension.
Governing Law; Arbitration
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH GESSO AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM GESSO.
These Terms shall be governed by and construed in accordance with the laws of the United States of America, without resort to any conflict of law provisions.
In the event of any controversy or claim arising out of or relating in any way to these Terms or the Service (including, the App or any Gesso audio experience), you and Gesso agree to consult and negotiate with each other and, recognizing your mutual interests, try to reach a solution satisfactory to both parties. If we do not reach settlement within a period of 60 days, then either of us may, by notice to the other demand mediation under the mediation rules of the American Arbitration Association in San Francisco, California. We both give up our right to litigate our disputes and may not proceed to arbitration without first trying mediation, but you and Gesso are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. Whether the dispute is heard in arbitration or in court, you and Gesso will not commence against the other a class action, class arbitration or other representative action or proceeding.
If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in San Francisco, California. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys' fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
For any disputes that are not handled by arbitration, you agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in San Francisco County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms or the use or the Service (including, the App or any Gesso audio experience).
Enforcement of these Terms is solely at Gesso’s discretion. Failure to enforce any part of these Terms in some instances does not constitute a waiver of our right to enforce the same or other part of these Terms in other instances. If any provision of these Terms is or becomes unlawful, void or otherwise unenforceable (including the warranty disclaimers and liability limitations above), then that provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and
the remaining provisions of these Terms will continue in full force and effect. As used in these Terms, "including" means "including (without limitation)." The section headings these Terms and are for reference purposes only and will not affect the meaning or interpretation of these Terms.
These Terms (and the other policies and terms referred to above) make up the entire agreement between you and us regarding the Service, and they supersede any prior agreements that may have been made.
If you have any questions about these Terms, please email us at firstname.lastname@example.org.
NOTICE REGARDING APPLE
Notwithstanding any terms to the contrary in these Terms, the following additional terms will apply to the download of the App for use on the iPhone, iPod Touch or iPad:
You and Gesso acknowledge that these Terms are solely between you and Gesso, and not with Apple, Inc. ("Apple"), and that Gesso, not Apple, is solely responsible for the Service, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You acknowledge and agree that the availability of the App is dependent on the third party from which you received the App, e.g., the Apple iPhone App Store ("App Store"). You agree to pay all fees charged by the App Store in connection with the App (if any). You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service ("Apple Usage Rules") as of the date you download the App. In the event of any conflict between the terms and conditions of the Apple Usage Rules and the terms and conditions of these Terms, the terms and conditions of the Apple Usage Rules will govern if they are more restrictive.
Scope of License
The license granted to you is limited to a non-transferable license to use the App on any iPhone, iPod Touch or iPad that you own or control as permitted by the Apple Usage Rules.
Maintenance and Support
Gesso is solely responsible for providing maintenance and support services with respect to the App. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. You also acknowledge and agree that to the extent that there are any applicable warranties, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty, such will be the sole responsibility of Gesso. However, you understand and agree that, in accordance with these Terms, Gesso has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App, except those implied by law.
You and Gesso acknowledge and agree that as between Apple and Gesso, Gesso, not Apple, is responsible for addressing any of your claims or any third party claims relating to the App or your possession and/or use of the App, including, but not limited to (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
Intellectual Property Rights
You and Gesso acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Gesso, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address
Any end-user questions, complaints or claims with respect to the App should be directed to: Gesso, Inc.
205 Hudson Street
c/o WeWork 7th Floor
New York, NY 10013
Third Party Beneficiary
The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce any of the terms and conditions of these Terms against you as a third party beneficiary thereof. However, the right of Gesso to terminate, rescind or make any change to these Terms is not subject to the consent of any other person.