Ganaz Terms of Service
Last Updated: October 10, 2023
Welcome, and thank you for your interest in Ganaz, Inc. (“Ganaz,” “we,” or “us”) and our website at www.ganaz.com, along with our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Ganaz regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING GANAZ’S PRIVACY POLICY [https://www.ganaz.com/privacy-policy] (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND GANAZ’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY GANAZ AND BY YOU TO BE BOUND BY THESE TERMS.
Arbitration NOTICE.
Except for certain kinds of disputes described in Section 16 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND GANAZ ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Ganaz Service Overview.
Ganaz provides a people management platform for the agriculture and food manufacturing industries (the “Service”). The Service helps employers (“Employers”) manage and communicate with workers (“Employees”) in the agriculture and food manufacturing industries. The Service includes various features, including the H-2A Program, HR Digital Onboarding, Workforce Communication, and Ganaz Payroll Cards. The H-2A Program feature is a full-service labor solution with integrated workforce tools. The HR Digital Onboarding feature is a paperless onboarding and data entry solution which allows Employers to export data into third-party agriculture payroll services. The Workforce Communication feature allows Employers to send and receive messages to and from Employees, including workforce surveys. The Ganaz Payroll Card feature allows Employers to manage a payroll card (the “Payroll Card”) specifically designed for the agriculture and food manufacturing industries. Your use of the Ganaz Payroll Card feature is governed by the Ganaz MasterCard Payroll Card Cardholder Agreement available at [link to https://www.ganazcard.com/eng]. For the avoidance of doubt, Employers are responsible for complying with any and all applicable employment and immigration laws with respect to their Employees, and if you are an Employer you represent and agree that you and your directors, managers, members, officers, employees, consultants, and agents will comply with all laws, regulations, and applicable Employer policies with respect to your and your Employees’ use of the Service.
Eligibility.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
Accounts and Registration.
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at support@ganaz.com.
General Payment Terms.
Use of the Service by Employers requires Employers to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law. Employees do not need to pay to use the Service, except as otherwise provided in the Ganaz Mastercard Payroll Card Cardholder Agreement available at this website: [link to https://www.ganazcard.com/eng ]
Price.
Ganaz reserves the right to determine pricing for the Service. Ganaz will make reasonable efforts to provide you with up-to-date pricing information. Ganaz may change the fees for any feature of the Service, including additional fees or charges, as set forth in any applicable Order Form. Ganaz, at its sole discretion, may make promotional offers with different features and different pricing to any of Ganaz’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
Authorization.
You authorize Ganaz to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Ganaz, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Ganaz may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
Subscription Service.
The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). Unless otherwise set forth on your Order Form, the “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Unless otherwise set forth on your Order Form, the Subscription Service will begin on the Subscription Billing Date and continue for the subscription period indicated on your Order Form (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Ganaz or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see your Order Form. Unless otherwise set forth on your Order Form, your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Ganaz or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by contacting us at support@ganaz.com. Your cancellation must be received before the renewal date in order to avoid charges for the next subscription period.
Delinquent Accounts.
Ganaz may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
LICENSES.
Limited License.
Subject to your complete and ongoing compliance with these Terms, Ganaz grants you, solely for your internal business use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on each mobile device that you own or control; and (b) access and use the Service.
License Restrictions.
Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
Feedback.
We respect and appreciate thoughts and comments from our users If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Ganaz an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
Ownership; Proprietary Rights.
The Service is owned and operated by Ganaz. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Ganaz (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Ganaz or its third-party licensors. Except as expressly authorized by Ganaz, you may not make use of the Materials. There are no implied licenses in these Terms and Ganaz reserves all rights to the Materials not granted expressly in these Terms.
Third-Party Terms
Third-Party Services and Linked Websites.
Ganaz may provide tools through the Service (such as the HR Digital Onboarding feature) that enable you to export information, including User Content (as defined in Section 8 below), to third-party services. By using one of these tools, you represent that you have all required authorizations to transfer such information and that such transfer complies with all applicable laws, and you hereby authorize Ganaz to transfer that information to the applicable third-party service. Third-party services are not under Ganaz’s control, and, to the fullest extent permitted by law, Ganaz is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Ganaz’s control, and Ganaz is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, Ganaz will have no control over the information that has been shared.
Twilio SMS Platform.
The Workforce Communication feature is powered by services provided by Twilio Inc. (“Twilio”). Your use of the Workforce Communication feature is subject to the Twilio Acceptable Use Policy available at www.twilio.com/en-us/legal/aup (“Twilio AUP”) and the Twilio Messaging Policy available at https://www.twilio.com/en-us/legal/messaging-policy (“Twilio Messaging Policy”). By agreeing to these terms and continuing to use the Workforce Communication feature, you agree to be bound by the Twilio AUP and Twilio Messaging Policy, as they may be modified by Twilio from time to time. You represent and warrant that your use of the Workforce Communication feature is and will be in compliance at all times with the Twilio AUP and Twilio Messaging Policy.
Third-Party Software.
The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
Mobile Device Usage.
Certain features of the Service may be available via a mobile device or tablet. To the extent you access the Service through a mobile device or tablet, your wireless service carrier’s standard charges, data rates and other fees may apply. Additionally, downloading, installing or using certain products or services may be prohibited by your carrier, and not all products and services may work with all carriers or devices.
User Content
User Content Generally.
Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including messages, reviews, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
Limited License Grant to Ganaz.
By Posting User Content to or via the Service, you grant Ganaz a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in each instance solely as required for us to provide the Service to you (and, if you are an Employer, to your Employees). Our use and processing of your User Content is governed by our privacy policy available at [https://www.ganaz.com/privacy-policy].
You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Ganaz disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Ganaz and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Ganaz, the Service, and these Terms;
your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Ganaz to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
User Content Disclaimer.
We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Ganaz may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you may be exposed to User Content from a variety of sources, including (if you are an Employee) your Employer, and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Ganaz with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Ganaz does not permit infringing activities on the Service.
Monitoring Content.
Ganaz does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Ganaz reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Ganaz chooses to monitor the content, then Ganaz still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below). Ganaz may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Posted such User Content to the Service or to any other users of the Service.
Communications
Text Messaging.
You agree that Ganaz and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF TEXT MESSAGES FROM A GANAZ PHONE NUMBER, YOU CAN EMAIL SUPPORT@GANAZ.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL TEXT MESSAGES FROM GANAZ, YOU CAN EMAIL SUPPORT@ganaz.com, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing texts is not a condition of any purchase on or use of the Service.
Push Notifications.
When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
Email.
We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
Prohibited Conduct.
BY USING THE SERVICE, YOU AGREE NOT TO:
use the Service for any illegal purpose or in violation of any local, state, national, or international law;
harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Ganaz;
interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
attempt to do any of the acts described in this Section 10 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 10 (Prohibited Conduct).
Modification of Terms.
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 11 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
Term, Termination, and Modification of the Service
Term.
These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 12.2 (Termination).
Termination.
If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Ganaz may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. If you are an Employer, Ganaz may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, with 15 days’ notice for any reason or no reason (or as otherwise set forth on your Order Form). If you are an Employer, Ganaz may also terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, immediately upon written notice if you are in material breach of these Terms and such breach remains uncured for a period of 30 days after notice of such breach. If you are an Employer, you may terminate your account and these Terms at any time by contacting customer service at support@ganaz.com, subject to any applicable fees as set forth on your Order Form. If you are an Employee, you may terminate your account and these Terms at any time by contacting customer service at support@ganaz.com. If you are an Employee, your use of the Service may be suspended or terminated at your Employer’s discretion or subject to your Employer’s use of the Service. If you are an Employee, you acknowledge that you will be responsible for notifying your Employer of any termination of your access to the Service for any reason.
Effect of Termination.
Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Ganaz any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3 (Feedback), 6 (Ownership; Proprietary Rights), 8 (User Content), 12.3 (Effect of Termination), 13 (Indemnity), 14 (Disclaimers; No Warranties by Ganaz), 15 (Limitation of Liability), 16 (Dispute Resolution and Arbitration), and 17 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
Modification of the Service.
Ganaz reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Ganaz will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Ganaz, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Ganaz Entities”) from and against every claim brought by a third party (including your Employees, if you are an Employer), and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; 2) the termination of your, your Employer’s (if you are an Employee), and/or your Employees’ (if you are an Employer) access to the Service in accordance with Section 12 above; (3) your violation or alleged violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation, including employment and wage and hour laws; (4) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (5) any dispute or issue between you and any third party (including your Employees, if you are an Employer). We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties by Ganaz
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. GANAZ DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. GANAZ DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND GANAZ DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR GANAZ ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE GANAZ ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
GANAZ IS NOT RESPONSIBLE FOR, AND DISCLAIMS ALL LIABILITY WITH REGARD TO, THE MANNER IN WHICH YOU USE THE SERVICES. IN ADDITION TO THE ABOVE, GANAZ IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY WITH REGARD TO ANY DAMAGE OR PURPORTED DAMAGE (WHETHER DIRECT OR INDIRECT) THAT MAY RESULT FROM THE SERVICES, INCLUDING, BUT NOT LIMITED TO, YOUR OR YOUR EMPLOYEES’ USE OF THE SERVICES. GANAZ URGES YOU TO BE AWARE OF, AND CONFER WITH YOUR OWN COUNSEL REGARDING, THE POTENTIAL LEGAL COMPLIANCE IMPLICATIONS, INCLUDING WITHOUT LIMITATION ANY IMMIGRATION, EMPLOYMENT AND/OR WAGE AND HOUR LAW COMPLIANCE IMPLICATIONS, ASSOCIATED WITH THE USE OF ANY SERVICES BY YOU OR YOUR EMPLOYEES. GANAZ IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY WITH REGARD TO YOUR COMPLIANCE WITH APPLICABLE LAWS (INCLUDING, BUT NOT LIMITED TO, LAWS GOVERNING HOURS OF WORK, OVERTIME, AND MINIMUM WAGE).
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 14 (Disclaimers; No Warranties by Ganaz) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Ganaz does not disclaim any warranty or other right that Ganaz is prohibited from disclaiming under applicable law.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE GANAZ ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY GANAZ ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTIONS 16.5 (Commencing Arbitration) AND 16.7 (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE GANAZ ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO GANAZ FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration
Generally.
Except as described in Section 16.2 (Exceptions) and 16.3 (Opt-Out), you and Ganaz agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GANAZ ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions.
Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Opt-Out.
If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Ganaz, Inc., Attention: Legal Department – Arbitration Opt-Out, 113 Cherry St., PMB 63600, Seattle, Washington 98104 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Ganaz receives your Opt-Out Notice, this Section 16 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
Arbitrator.
This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Ganaz.
Commencing Arbitration.
Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Ganaz’s address for Notice is: 113 Cherry St., PMB 63600, Seattle, Washington 98104. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Ganaz may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Ganaz will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Ganaz has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
Arbitration Proceedings.
Any arbitration hearing will take place in the county and state of your residence or billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence or billing address. During the arbitration, the amount of any settlement offer made by you or Ganaz must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
Arbitration Relief.
Except as provided in Section 16.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Ganaz before an arbitrator was selected, Ganaz will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
No Class Actions.
YOU AND GANAZ 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 Ganaz 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.
Modifications to this Arbitration Provision.
If Ganaz makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Ganaz’s address for Notice of Arbitration, in which case your account with Ganaz will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability.
If Section 16.8 (No Class Actions) or the entirety of this Section 16 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Ganaz receives an Opt-Out Notice from you, then the entirety of this Section 16 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.2 (Governing Law) will govern any action arising out of or related to these Terms.
Miscellaneous
General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Ganaz regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
Governing Law.
These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. You and Ganaz submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Washington, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
Privacy Policy.
Please read the Ganaz Privacy Policy [https://www.ganaz.com/privacy-policy] (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Ganaz Privacy Policy is incorporated by this reference into, and made a part of, these Terms. If you are an Employee, you consent to Ganaz’s disclosure to your Employer of any and all details regarding your use and termination of the Service, consistent with the Privacy Policy.
Additional Terms.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Consent to Electronic Communications.
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
Contact Information. The Service is offered by Ganaz, Inc., located at 113 Cherry St., PMB 63600, Seattle, Washington 98104. You may contact us by sending correspondence to that address or by emailing us at support@ganaz.com.
Notice to California Residents.
If you are a California resident, then under California Civil Code Section 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 +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
No Support.
We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
International Use.
The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
Notice Regarding Apple.
This Section 18 (Notice Regarding Apple) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Ganaz only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby 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.