Terms of Service

Welcome to Gemini! Gemini (as defined below) is provided by Blue Rocket Incorporated (“Blue Rocket” or “we” or “our” or “us”). These terms of service (these “Terms of Service”) govern your (together with the organization, if any, on whose behalf you are acting, “Customer”, “you” or “your”) access to and use of the www.gogemini.com web site and its subdomains (the “Website”), downloadable applications we make available to you (collectively, the “App”), and all software and services provided by us via the Website and App (collectively, “Gemini”).

Please read these Terms of Service carefully, as they contain an Agreement to Arbitrate, which requires that you and Blue Rocket arbitrate certain claims by binding individual arbitration instead of going to court and limits class action claims, unless you opt out of the Agreement to Arbitrate as described in the arbitration section (see Section 19 “Agreement to Arbitrate”).

1. Acceptance of Terms.

PLEASE REVIEW THESE TERMS OF SERVICE BEFORE USING GEMINI, AS THEY MAY HAVE CHANGED SINCE YOUR LAST VISIT. IF YOU ARE VIEWING THIS ON YOUR MOBILE DEVICE, YOU CAN ALSO VIEW THESE TERMS OF SERVICE VIA A WEB BROWSER AT WWW.GOGEMINI.COM/TERMS. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU ARE PROHIBITED FROM USING GEMINI. BY USING GEMINI, YOU REPRESENT TO US THAT YOU ARE AT LEAST 18 YEARS OLD AND HEREBY INDICATE YOUR UNCONDITIONAL ACCEPTANCE OF THESE TERMS OF SERVICE ON BEHALF OF YOU, YOUR ORGANIZATION OR YOUR MINOR CHILD. GEMINI IS NOT INTENDED FOR USE BY ANY UNDER 13 YEARS OLD.

We reserve the right to change these Terms of Service from time to time for any reason, which shall be effected by posting of the updated Terms of Service to Gemini; provided that any such changes shall only apply to your use of Gemini after the date of such change, unless you expressly accept retroactive application of such changes, via a click-through, signed agreement or otherwise.

2. Scope of Service.

For more information about Gemini, please visit our website for an explanation of the Gemini Features and Benefits. We are constantly improving our service and Gemini may periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons. In order to use Gemini, you must have a computer with Internet access that can access our Website or a compatible mobile device enabled with our App.

When using Gemini, your telecommunications carrier’s normal rates and charges apply. We are not responsible for any charges you incur from your telecommunications carrier as a result of use of Gemini. You are responsible for ensuring that at all times while using Gemini that you are not in violation of your agreement with your telecommunications carrier.

2.1 License to Use; Privacy Policy.

The materials displayed or performed or available on or through Gemini, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through Gemini, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including our) rights.

Subject to your compliance with all the terms and conditions of these Terms of Service, we grant you a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to install and use the Content solely to use Gemini within the scope of your status as a Customer for your internal business purposes. Your license to use Content and Gemini is automatically revoked if you violate these Terms of Service. You agree that Blue Rocket Incorporated owns Gemini and you agree not to publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the services provided by Gemini. Gemini may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.

From time to time, we may upgrade Gemini. You agree that these Terms of Service will apply to all such upgrades or improvements. The foregoing license grant is not a sale of the App or the Website or a sale of a copy of the App or the Website, and we and our partners and suppliers retain all rights and interest in Gemini. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms of Service, is void. We reserve all rights not expressly granted under these Terms of Service.

2.2 Privacy Policy

Our Privacy Policy www.gogemini.com/privacy-policy (the “Privacy Policy”), describes the collection, use and disclosure of data and information by us in connection with Gemini. The Privacy Policy, as may be updated by us from time to time in accordance with its terms, is hereby incorporated into these Terms of Service, and you hereby agree to the collection, use and disclosure practices set forth therein.

2.3 Login Credentials.

In order to use some functionality of Gemini, you will be required to register by providing certain information. We may ask you to complete a registration form and create an account name by giving us a working email address that belongs to you and password (“Login Credentials”). During any such registration, you are required to give truthful contact information (such as name and email address) in accordance with these Terms of Service. You are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs on your account (including without limitation financial obligations). You agree to notify us immediately if you believe that your Login Credentials have been or may be used without your permission so that appropriate action can be taken. We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials. All information that you provide through Gemini is subject to our Privacy Policy, as may be in effect from time to time. You are responsible for keeping your registration information up to date through your account page, to the extent such feature is made available on Gemini you may also notify us at support@gogemini.com.

3. Fees.

3.1 Payment Terms

Your use of Gemini may be free or we may charge a fee for using Gemini. If you are using a free version of Gemini, we will notify you before any services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. You may have signed up with us for paid services, including through a separate order form (the “Order Form”) for our paid services offerings (the “Paid Services”). If so, you agree to pay all fees set forth in the applicable pricing documentation provided by us. Please note that any payment terms presented to you in the process of using or signing up for a paid service are deemed part of these Terms.

3.2 Billing

We may bill you directly or use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand. Currently, we use Stripe, Inc. as our Payment Processor. You can access Stripe’s Terms of Service at https://stripe.com/us/checkout/legal and their Privacy Policy at https://stripe.com/us/privacy.

3.3 Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO ACCOUNT SETTINGS.

3.4 Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.

3.5 Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

3.6 Auto-Renewal for Paid Services. Unless you opt out of auto-renewal, which can be done through your account settings, any Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Paid Services at any time, go to account settings. If you terminate a Paid Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SERVICE THROUGH YOUR ACCOUNT SETTINGS OR TERMINATE YOUR GEMINI ACCOUNT BEFORE THE END OF THE RECURRING TERM. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, GEMINI WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.

4. Customer Data.

In connection with your use of Gemini, you may post, upload, transmit, or otherwise provide access to certain data including, without limitation, information regarding employees, human resources, and other business, financial, technical or legal information (collectively, Customer Data).

By posting, uploading, transmitting or otherwise providing access to Customer Data, you represent and warrant that you own all right title and interest, or possesses sufficient license rights (including all relevant authorizations and consent from any individuals or employees, as applicable), in and to the Customer Data as may be necessary to authorize the use thereof under these Terms including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. You agree to bear all responsibility and liability for the accuracy, completeness, possession and use of Customer Data in connection with your use of Gemini and you agree to indemnify and hold us harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.

You hereby grant to us a royalty-free, worldwide license to display, perform, distribute, copy, store, make, modify (for technical purposes), reproduce, otherwise use such Customer Data for the purpose of providing the Gemini services. You agree that we may monitor and obtain usage data for purposes of delivering and improving Gemini (“Usage Data”) which shall be exclusively owned by us and that we may also aggregate anonymized Customer Data and Usage Data.

5. Prohibited Conduct.

As a condition of your use of Gemini, you will not use Gemini for any purpose that is unlawful or prohibited by these Terms of Service. You may not use Gemini in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of Gemini. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through Gemini. In addition, you agree not to use false or misleading information in connection with your user account or impersonate any other person living or dead, and acknowledge that we reserve the right to disable any account with a profile which we reasonably believe is false or misleading (including a profile that impersonates a third party).

In addition, you agree that you will not, and will not authorize or facilitate any attempt by another person to use Gemini to:

1. Transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by Gemini.

2. Use a name or language that we, in our sole discretion, deem offensive.

3. Post defamatory statements.

4. Post hateful or offensive Content or Content that disparages any ethnic, racial, sexual, gender, religious, or other group.

5. Post Content that depicts or advocates the use of illegal drugs.

6. Post Content that characterizes violence as acceptable, glamorous or desirable.

7. Post Content which infringes another’s copyright, trademark or trade secret.

8. Post unsolicited advertising or unlawfully promote products or services.

9. Harass, threaten, stalk or intentionally embarrass or cause distress to another person or entity.

10. Promote, solicit, or participate in any multi-level marketing or pyramid schemes.

11. Exploit children under 18 years of age.

12. Engage in disruptive activity such as sending multiple messages in an effort to monopolize the forum.

13. Invade the privacy of any person, including without limitation posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 18 years of age).

14. Solicit personal information from children under 13 years of age.

15. Encourage conduct that would constitute a criminal or civil offense.

We reserve the right to consider other conduct to be prohibited; the restrictions above are intended to be illustrative.

You agree not, and will not permit any person or entity to: (i) use, or allow the use of, Gemini for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations; (ii) act in a fraudulent, tortious, malicious, or negligent manner when using Gemini; (iii) obtain unauthorized access to any computer system through Gemini; (iv) introduce viruses, worms, Trojan horses and/or harmful code to Gemini; and (v) use any robot, spider, site search/retrieval application, or other automated device, process, or means to access, retrieve, scrape, or index any portion of Gemini or any Content.

We reserve the right, without prior notice and in its sole discretion, to decide whether your use of Gemini violates these Terms of Service for any of the above reasons or for any other reason, and if we do so, we may terminate your access to Gemini.

6. The App.

You acknowledge and agree that the availability of the App may be dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, these Terms of Service, the more restrictive or conflicting terms and conditions in these Terms of Service apply.

These Terms apply to your use of Gemini, including our iOS applications available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the App:

(a) Both you and Blue Rocket acknowledge that the Terms are concluded between you and Blue Rocket only, and not with Apple, and that Apple is not responsible for the App or the Content;

(b) The App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with Gemini for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to Gemini;

(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;

(e) In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the App;

(f) You acknowledge and agree that Blue Rocket, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App;

(g) You 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, Blue Rocket and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;

(i) Both you and Blue Rocket acknowledge and agree that, in your use of the App, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and

(j) Both you and Blue Rocket acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that 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 the third-party beneficiary hereof.

7. Messaging.

As part of using Gemini, you may receive communications through Gemini, including messages that we (or your employer) send you (for example, via calls or SMS via an automated dialing technology). BY SIGNING UP FOR GEMINI, YOU AGREE TO RECEIVE COMMUNICATIONS FROM US OR YOUR EMPLOYER, AND YOU REPRESENT AND WARRANT THAT (A) BY PROVIDING A PHONE NUMBER TO US, YOU CONSENT TO RECEIVE COMMUNICATIONS FROM US AND (B) EACH PERSON YOU REGISTER FOR GEMINI OR FOR WHOM YOU PROVIDE A PHONE NUMBER HAS CONSENTED TO RECEIVE COMMUNICATIONS FROM US. You agree to indemnify and hold us harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.

8. Dispute; Release.

We expressly disclaim any liability or claims that may arise between you and third parties (including your employees) that supply information to us or third parties to which we supply information on behalf of Customers of Gemini. You are solely responsible for your interactions with such third parties and any disputes that arise from interactions with any of the foregoing.

Because we are not responsible for the interaction between Customers and third parties, in the event that you have a dispute with one or more Customers or third parties, you hereby release us (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind, known and unknown arising out of or in any way related with such disputes.

If you are a California resident, in connection with the above release, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his settlement with the debtor.”

9. Indemnification.

By using Gemini you agree to indemnify, hold harmless and defend (at our option) us and our officers, directors, employees and agents from any claims, damages, losses, liabilities, and all costs and expenses of defense, including without limitation attorneys’ fees, resulting directly or indirectly from a claim by a third party that arises in connection with (i) your provision of any Content or Customer Data, (ii) your use of Gemini and/or (iii) any Customer or other third party’s use of any Content or Customer Data that you submit via Gemini.

10. Intellectual Property Rights.

You agree and acknowledge that the structure, organization, and code used in conjunction with Gemini are proprietary to us. You shall not, and shall not permit any person or entity to: (i) use Gemini on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of Gemini or any of the Content available through the foregoing; or (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from Gemini. You shall not sell, transfer, publish, disclose, display or otherwise make available Gemini including any modifications, enhancements, derivatives, and other software and materials provided hereunder by us or copies thereof to others in violation of these Terms of Service.

Unless otherwise noted, all Content contained on Gemini is our property and/or our affiliates or licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. Product names are trademarks or registered trademarks of their respective owners.

11. Copyright Infringement; DMCA Policy.

If you believe that any materials on Gemini infringe your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following information: (1) identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work; (2) identification of the material that you believe to be infringing and its location, including a description of the material, its location on our Website or location in our App or other pertinent information that will help us to locate the material; (3) your name, address, telephone number, and email address; (4) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; (5) a statement that the information in your claim is accurate; and (6) a statement that “under penalty of perjury,” you declare that you are the lawful copyright owner or are authorized to act on the owner’s behalf. Our agent for copyright issues relating to Gemini is: Copyright Compliance Department, 8201 164th Ave NE #200, Redmond, WA 98053 or copyright@gogemini.com. In an effort to protect the rights of copyright owners, we reserve the right to suspend your account, delete or disable content alleged to be infringing and/or terminate the account of a repeat infringer.

12. Links to Third-Party Websites.

Gemini may contain links to third-party websites. These links are provided to you as a convenience, and we are not responsible for the content of any linked third-party website. Any third-party website accessed from Gemini is independent from us, and we have no control over the content of that website. In addition, a link to any third-party website does not imply that we endorse or accept any responsibility for the content or use of such website. Use of any third-party site is subject to its terms of service and privacy policy. We request that our users exercise caution and good judgment when using third party websites.

13. Providers of Third-Party Platforms.

You hereby acknowledge and agree that all of our licensors, suppliers or other third parties: (i) are not parties to these Terms of Service; (ii) have no obligation whatsoever to furnish any maintenance or support services with respect to Gemini; (iii) are not responsible for addressing claims by you or any third party relating to Gemini, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; and (iv) have no responsibility to investigate, defend, settle or discharge any claim that Gemini or use thereof infringes any third party intellectual property rights.

14. Disclaimer.

Under no circumstances will we be liable for any loss or damage caused by failed delivery or receipt of Content, your reliance on information from Gemini, information provided by a Customer or by your use of Gemini. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through Gemini.

GEMINI AND ALL CONTENT AND OTHER INFORMATION ON OR ACCESSIBLE FROM GEMINI ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, WE DO NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE THROUGH GEMINI IS FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND TRANSMITTING CONTENT) PROVIDED BY GEMINI WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THAT GEMINI OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

WE AND OUR AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.

15. Limitation of Liability.

15.1 Disclaimer. IN NO EVENT SHALL WE BE LIABLE TO YOU, ANY OTHER CUSTOMER OF GEMINI, THIRD PARTY PROVIDERS OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF THE USE, INABILITY TO USE, UNAUTHORIZED ACCESS TO OR USE OR MISUSE OF GEMINI, YOUR CONTACT INFORMATION, CONTENT OR ANY INFORMATION CONTAINED THEREON, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

15.2 Limitation. OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM THESE TERMS OF SERVICE, SHALL NOT EXCEED THE GREATER OF (I) $100.00 OR (II) THE AGGREGATE AMOUNT YOU HAVE PAID TO US FOR GEMINI, IF ANY, IN THE THEN-PRIOR TWELVE (12) MONTH PERIOD.

15.3 Exclusions. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

16. Unsolicited Ideas and Feedback.

While we welcome your feedback, ideas, and suggestions (collectively, “unsolicited ideas”), it is important to be aware of the following restrictions with regards to unsolicited ideas you provide to us. If you send or provide unsolicited ideas to us, you agree that: (1) your unsolicited ideas become our property and you are not owed any compensation in exchange; (2) none of the unsolicited ideas contain confidential or proprietary information of any third party; (3) we may use or redistribute unsolicited ideas for any purpose and in any way; (4) there is no obligation for us to review your unsolicited ideas; and (5) we have no obligation to keep any unsolicited ideas confidential.

17. Governing Law; Dispute Resolution.

These Terms of Service, and any dispute between you and us, shall be governed by the laws of the State of Delaware without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that Section 19 is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Arbitration Procedures (as defined below) or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of Washington, except that you or we are permitted (1) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure; (2) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (3) to seek enforcement of a judgment in any court having jurisdiction over the parties. Except for the foregoing exceptions, you and we agree to submit to the personal jurisdiction of the courts located within the State of Washington for the purpose of litigating all such claims or disputes. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.

18. Agreement to Arbitrate; Waiver of Class Action.

Except if you opt-out or for disputes relating to your or our intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents), you agree that all disputes between you and us (whether or not such dispute involves a third party) arising out of or relating to these Terms of Service, Gemini, and/or Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language in Seattle, Washington, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (AAA) and you and we hereby expressly waive trial by jury. You and we shall appoint as sole arbitrator a person mutually agreed by you and us or, if you and we cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, we shall be entitled to seek injunctive relief, security or other equitable remedies from the United States District Court for a district in the State of Washington or any other court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms of Service.

Any claims brought by you or us must be brought in that parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither you nor Blue Rocket will participate in a class action or class-wide arbitration for any claims covered by these Terms of Service. You hereby waive any and all rights to bring any claims related to these Terms of Service and Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on your own behalf.

You may opt out of this Agreement To Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt-out notice must state that you do not agree to the Agreement To Arbitrate and must include your name, address, phone number, your Gemini account to which the opt-out applies and a clear statement that you want to opt out of this Agreement To Arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way you can opt out of the Agreement To Arbitrate. You must use this address to opt out:

Blue Rocket Incorporated. ATTN: Arbitration Opt-out, [8201 164th Ave NE #200, Redmond, WA 98053]

Notwithstanding any provision in these Terms of Service to the contrary, you and we agree that if we make any change to the Arbitration Procedures (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms of Service, such termination shall not be effective until thirty (30) days after the version of these Terms of Service not containing the Arbitration Procedures is posted to Gemini, and shall not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal.

This Arbitration section will survive the termination of your relationship with us.

19. Miscellaneous.

You may not assign or transfer your rights or obligations under these Terms of Service in whole or in part to any third party without our consent. These Terms of Service shall bind and inure to the benefit of the parties to these Terms of Service and their respective successors, permitted transferees, and permitted assigns. We and you are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party. These Terms of Service contain the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersedes all previous communications, understandings and agreements (whether oral or written) other than any click-through or end user license agreement provided by us, and cannot be amended except by a writing signed by both parties or by our posting of an amended version of these Terms of Service on Gemini. The headings and captions used in these Terms of Service are used for convenience only and are not to be considered in construing or interpreting these Terms of Service. If any part of these Terms of Service is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.

19.1 Minors.

Gemini is available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. Individuals under the age of 18 can use Gemini only as authorized by and under the supervision of a parent. In this case, the parent is responsible for any and all activities of such minor. If you are a parent or guardian and you discover that your child has created an unauthorized account on Gemini, please contact us at support@gogemini.com and we will remove the account.

19.2 For Additional Information.

If you have any questions about these Terms of Service, please contact us at: 8201 164th Ave NE #200, Redmond, WA 98053 or via www.gogemini.com.

Updated: March 25, 2021