1. Contractual Relationship
1.2 Acceptance of Terms. By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Gehring Group may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
1.3 IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH GEHRING GROUP ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
1.4 Amendment of Terms. Gehring Group may amend the Terms from time to time. Amendments will be effective upon the posting of such updated Terms (“Effective Date”) at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If Gehring Group changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Gehring Group written notice of such rejection within 30 days of the date such change became effective, as indicated in the Effective Date above. This written notice must be provided either (a) by mail or hand delivery to The Gehring Group, Inc. Attn: Privacy Officer, 4200 Northcorp Parkway, Suite 185, Palm Beach Gardens, Florida 33410 or (b) by email from the email address associated with your Account to: email@example.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you shall discontinue your use of the Service(s).
2. Arbitration Agreement
2.1 Notice of Arbitration Provision. By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Gehring Group on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Gehring Group, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Gehring Group by someone else.
2.2 Agreement to Binding Arbitration Between You and Gehring Group. In the event of any dispute, claim, question, or disagreement arising from or relating to this agreement or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.
Any dispute or claim arising from or relating in any way to these Terms, and your use of the Services, will be resolved by binding arbitration, rather than in court, except that either party may assert claims in small claims court if the claims qualify. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award, on an individual basis, the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must interpret and apply the terms of these Terms just as a court would. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that You or we may bring suit in court to seek injunctive relief for infringement or other threatened or actual violation of intellectual property rights.
2.3 Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/Rules or by calling the AAA at 1-800-778-7879. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. These Terms shall be governed by, performed within, and interpreted in accordance with the laws of the State of Florida, excluding its choice of law provisions.
2.4 Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the State of Florida and will be selected by the parties from the AAA’s roster of commercial dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
5 Location and Procedure. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in West Palm Beach, Florida, or at another mutually agreed location. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
2.6 Arbitrator’s Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The prevailing party in arbitration may be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
2.7 Changes. Notwithstanding the provisions in Sections 1.4 above, regarding consent to be bound by amendments to these Terms, if Gehring Group changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change to this Arbitration Agreement by providing Gehring Group written notice of such rejection within 30 days of the date such change became effective, as indicated in the Effective Date above. This written notice must be provided either (a) by mail or hand delivery to, The Gehring Group, Inc., Attn: Privacy Officer, 4200 Northcorp Parkway, Suite 185, Palm Beach Gardens, Florida 33410, or (b) by email from the email address associated with your Account to: firstname.lastname@example.org. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Gehring Group in accordance with the provisions of this Arbitration Agreement as of the later of either (i) the date you first agreed to the Terms (or to any subsequent changes to the Terms) or (ii) the date you agreed to any amendment to the Arbitration Agreement. Your failure to provide such effective notice of rejection within the 30-day period shall be deemed to be an acceptance by you of the change to the Arbitration Agreement.
2.8 Severability and Survival. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from these Terms; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. This provision shall survive the expiration or termination of these Terms.
3. The Services
3.1 Description. The Services access and use of information on our website concerning our provision of products and services related to employee group benefits and risk management. Our web site includes a link to ThinkHR, a third party service provider (“Service Provider”) whose information and services you may access through such link (“Service Provider Services”). Unless otherwise agreed by Gehring Group in a separate written agreement with you, you acknowledge and agree that as between you and Gehring Group, use of the Service Provider Services provided by the Service Provider are used by you at your sole risk and liability. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN SERVICE PROVIDER SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH GEHRING GROUP AS A PROVIDER OF SERVICE PROVIDER SERVICES. YOU AGREE TO LOOK SOLELY TO THE SERVICE PROVIDER OF SUCH SERVICES FOR ANY RELIEF AND DAMAGES FROM YOUR USE OR INABILITY TO USE THE SERVICES PROVIDED BY SERVICE PROVIDERS.
3.2 License. Subject to your compliance with these Terms, Gehring Group grants you a limited, personal, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Services on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services. Any rights not expressly granted herein are reserved by Gehring Group and Gehring Group’s licensors.
3.3 Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Gehring Group; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
3.4 Provision of the Services. You acknowledge that portions of the Services may be made available under Gehring Group’s various brands or affiliates. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of Gehring Group’s subsidiaries and affiliates; or (ii) independent Service Providers, including ThinkHR. You acknowledge and agree that Gehring Group makes no representation or warranty with respect to the Service Providers and that it is your responsibility to verify their qualifications, certifications, and other requirements which may be necessary or desirable.
3.6 Ownership. The Services and all rights therein are and shall remain Gehring Group’s property or the property of Gehring Group’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Gehring Group’s company names, logos, product and service names, trademarks or services marks or those of Gehring Group’s licensors.
4. Access and Use of the Services
4.1 User Accounts. In order to access the MyPortal through the link on our website, you must register for and maintain an active personal user account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to Gehring Group certain personal information, such as your name, email address, company affiliation and age. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, may result in your inability to access or use the MyPortal link. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Gehring Group in writing, you may only possess one Account.
4.2 User Requirements and Conduct.
4.2.1 Age Requirements. The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to access and use the Services. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes. You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Service Provider, or any other party. In certain instances, you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
4.5 User Provided Content. Gehring Group may, in Gehring Group’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Gehring Group through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Gehring Group, you grant Gehring Group a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Gehring Group’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Gehring Group the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Gehring Group’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Gehring Group in its sole discretion, whether or not such material may be protected by law. Gehring may, but shall not be obligated to, review, monitor, or remove User Content, at Gehring Group’s sole discretion and at any time and for any reason, without notice to you.
4.6 Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Gehring Group does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
5. Disclaimers; Limitation of Liability; Indemnity.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” GEHRING GROUP DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, GEHRING GROUP MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. GEHRING GROUP DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD-PARTY PROVIDERS. FURTHER, GEHRING GROUP MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING PAYMENT FOR ANY SERVICES OR GOODS REQUESTED THROUGH USE OF THE SERVICES. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
5.2 LIMITATION OF LIABILITY.
GEHRING GROUP SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF GEHRING GROUP, EVEN IF GEHRING GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
GEHRING GROUP SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD-PARTY PROVIDER, INCLUDING BUT NOT LIMITED TO SERVICE PROVIDERS, EVEN IF GEHRING GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GEHRING GROUP SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND GEHRING GROUP’S REASONABLE CONTROL. THE SERVICES MAY BE USED BY YOU TO ACCESS SERVICES OFFERED BY SERVICE PROVIDERS, BUT YOU AGREE THAT GEHRING GROUP HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY OF THE FOREGOING SERVICES PROVIDED TO YOU BY SERVICE PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, GEHRING GROUP’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON GEHRING GROUP’S CHOICE OF LAW PROVISION SET FORTH BELOW.
5.3 Indemnity. You agree to indemnify and hold Gehring Group and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of, attempt to use, or inability to use the Services, Service Provider Services, or other services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Gehring Group’s use of your User Content; (iv) your violation of the rights of any third party, including Third Party Providers; and (v) your use of, attempt to use, or inability to use the services of, and arising from your relationship with, the Service Providers.
5.4 Basis of the Bargain; Failure of Essential Purpose. You and Gehring Group acknowledge that Gehring Group has set its prices and entered into this Agreement in reliance upon the limitations of liability, the disclaimers of warranties and damages provisions set forth herein, and that the same form an essential basis of the bargain between You and Gehring Group. You and Gehring Group agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if any limited remedy is found to have failed of its essential purpose.
6. Other Provisions
6.1 Choice of Law. These Terms are governed by, performed within, and construed in accordance with the laws of the State of Florida, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above.
6.2 Claims of Copyright Infringement. Claims of copyright infringement should be sent to Gehring Group’s designated agent. Please visit Gehring Group’s web page at www.gehringgroup.com for the designated address and additional information.
6.3 Notice. Gehring Group may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Gehring Group, with such notice deemed given when received by Gehring Group, at any time by email to email@example.com or first class mail or pre-paid post to The Gehring Group, Inc., Attn: Privacy Officer, 4200 Northcorp Parkway, Suite 185, Palm Beach Gardens, Florida 33410
6.4 Entire Agreement. These Terms, inclusive of any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, covenants, arrangements and discussions with respect thereto.
6.5 Severability. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from these Terms, and all other provisions of these Terms shall remain in full force and effect.
6.6 General. You may not assign these Terms without Gehring Group’s prior written approval. Gehring Group may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Gehring Group’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Gehring Group or any Services Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Gehring Group’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Gehring Group in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.