PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY. THIS TERMS OF SERVICE, APPLIES TO (A) THE WEBSITE MADE AVAILABLE BY GUMROAD, INC. (“GUMROAD,” “WE,” OR “US”) AVAILABLE AT WWW.GUMROAD.COM (THE “WEBSITE”), (B) GUMROAD’S MOBILE APPLICATION(S) (EACH, AN “APPLICATION” AND COLLECTIVELY, WITH THE WEBSITE, THE “PLATFORM”), AND (C) THE PRODUCTS, SERVICES, FEATURES, TECHNOLOGIES, AND/OR FUNCTIONALITIES PROVIDED BY GUMROAD VIA THE PLATFORM (COLLECTIVELY, WITH THE PLATFORM, THE “SERVICES”).
BY ACCESSING OR USING OUR SERVICES IN ANY WAY, BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, MAKING INVENTORY AVAILABLE ON THE SERVICES AND/OR BROWSING THE WEBSITE OR DOWNLOADING OUR APPLICATION YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH GUMROAD, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO YOU AS AN INDIVIDUAL AND ANY LEGAL ENTITY THAT YOU HAVE NAMED AS A USER AT THE TIME OF REGISTRATION FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE YOU MAY NOT ACCESS OR USE ANY OF THE SERVICES.
THE TERMS OF SERVICE INCLUDE (1) YOUR AGREEMENT THAT GUMROAD HAS NO LIABILITY REGARDING THE SERVICES (SECTION 1.3 (GUMROAD ONLY PROVIDES A VENUE)); (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY (SECTION 17 (DISCLAIMER OF WARRANTIES)); (3) YOUR CONSENT TO RELEASE GUMROAD FROM LIABILITY (SECTION 15 (RELEASE)); AND (4) YOUR AGREEMENT TO INDEMNIFY GUMROAD FOR YOUR USE OF, OR INABILITY TO USE, THE SERVICES (SECTION 16 (INDEMNIFICATION)).
BE AWARE THAT SECTION 22 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND GUMROAD. AMONG OTHER THINGS, SECTION 22 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 22 (ARBITRATION AGREEMENT) ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 22 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
BE AWARE THAT SECTION 4.4 (GUMROAD COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
Your use of, and participation in, certain Service may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Services. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Services. The Terms of Service and any applicable Supplemental Terms are collectively referred to herein as the “Agreement.”
1. OVERVIEW OF OUR SERVICES.
1.1 Gumroad Supplier. The Gumroad Supplier service provides tools that are designed to process a third-party purchaser’s (“Buyer”) payment for certain digital products (“Digital Products”) and/or physical products (“Physical Products”, and together with Digital Products, “Products”) on a third-party seller’s (“Seller”) owned or controlled website(s) (“Seller Property” or “Seller Properties”) and facilitate the delivery of Digital Products to Buyers.
1.2 Gumroad Discover. Gumroad Discover is a sub-domain of the Platform that provides a searchable marketplace of all Products being offered for sale by sellers. The Gumroad Discover marketplace allows users that have an account with Gumroad to sell and/or buy Products that Gumroad deems eligible for sale through Gumroad Discover. To qualify for inclusion in Gumroad Discover, Products must meet product eligibility requirements, and Gumroad has the sole discretion to determine and change from time to time the product categories and products that are eligible for sale through Gumroad Discover. As a marketplace, we do not own or sell the Products listed on Gumroad Discover and Gumroad is not a party to any transaction or other interaction between users through Gumroad Discover. Accordingly, any contract for the sale of Products through Gumroad Discover is entered into directly between the Seller and the Buyer. Gumroad facilitates these transactions through hosting the Services, displaying pricing, listing Products, and processing payments as described in Section 8 (Additional Terms for Sellers). For clarity, Gumroad will have no responsibility or obligation with respect to any transactions that are not conducted through Gumroad Discover.
1.3 Gumroad Affiliate Program. A Seller may voluntarily participate in the Gumroad Affiliate Program, which allows the Seller to designate one (1) or more eligible users who is bound by the terms and conditions of the Gumroad Affiliate Program as an affiliate (each, an “Affiliate”). An Affiliate is permitted to promote the applicable Seller’s Digital Product(s) by publishing Links (as defined below) on such Affiliate’s website(s) or otherwise sharing the Links with prospective Buyers, and such Affiliate will earn financial compensation from the applicable Seller (each, a “Payout”) upon the completion of a sale of the applicable Seller’s Digital Product(s) that originated from the Links (each such sale, an "Affiliate Transaction"), subject to the terms and conditions of the Gumroad Affiliate Program. “Links” means embedded graphics, icons, text, or HTML code provided by Gumroad that contains a unique hypertext pointed to a Universal Resource Locator (URL) address to the Seller’s Digital Product(s) that allows Gumroad to identify the Affiliate as the source of an Affiliate Transaction. A "Sourced Webpage" means the Website, the Affiliate's website(s), or third-party websites on which the Links are published. For each completed Affiliate Transaction, the Affiliate will receive a fee equal to the Retail Price (defined below) of the applicable Digital Product multiplied by an affiliate percentage (the "Payout Rate") determined by the Seller for such Digital Product at the moment the Affiliate Transaction is completed (such resulting amount, the "Affiliate Fee"). By way of example, if a Digital Product is sold at a Retail Price of $10 through a Transaction and the Payout Rate is set to ten percent (10%), the Affiliate Fee would be equal to $10 multiplied by 10%, or $1.
2. GUMROAD ONLY PROVIDES A VENUE. While we may, in our discretion, help facilitate the resolution of disputes, Gumroad has no control over and does not guarantee the existence, quality, timing, condition, safety or legality of Products offered through the Platform; the truth or accuracy of listings, posts or any other content or information provided by any Seller or other user through the Platform; any aspect whatsoever of any ratings provided by users; the integrity, responsibility or any action of any Seller or Buyer; the ability of Sellers to sell Products; the ability of Buyers to pay for Products; that a Buyer and Seller will actually complete a transaction or return a Product; or that a Buyer will return a Product if a return has been authorized through Gumroad Discover or a Seller Property. We do not take part in the interaction between Buyers and Sellers.
3. INTERACTIONS WITH OTHER USERS. When interacting with other users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. You are solely responsible for your interactions with other users (including Buyers and/or Sellers) and any other parties with whom you interact; provided, however, that Gumroad reserves the right, but has no obligation, to provide support in the event of disputes between users. YOU AGREE THAT NEITHER GUMROAD NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES, AND THAT GUMROAD MAKES NO REPRESENTATION WITH RESPECT TO INTERACTIONS BETWEEN USERS. GUMROAD AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.
4. USE OF THE SERVICES. The Services, and the information and content available on the Services are protected by copyright and other intellectual property rights laws throughout the world. Unless otherwise specified by Gumroad in a separate license, your right to use any and all of the Services is subject to the Agreement.
4.1 Website License. Subject to your compliance with the Agreement, Gumroad grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the features and functionality of the Platform available through the Website for your own personal or lawful business purposes.
4.2 Application License. Subject to your compliance with the Agreement, Gumroad grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or lawful business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs on iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple Media Services Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
4.3 Updates. You understand that the Services are evolving. As a result, Gumroad may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that Gumroad may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
4.4 Gumroad Communications. By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail, text message, calls, and/or push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account (as defined below) or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Gumroad and industry developments.
5.1 Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User and specifically open a Buyer or Seller account. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Services (“Account”), has a valid account on the social networking service (“SNS”) through which the user has connected to the Services (each such account, a “Third-Party Account”), or has an account with the provider of the Application for the user’s mobile device.
5.2 Access Through a SNS. If you access the Services through a SNS as part of the functionality of the Services, you may link your Account with Third-Party Accounts, by allowing Gumroad to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Gumroad and/or grant Gumroad access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Gumroad to pay any fees or making Gumroad subject to any usage limitations imposed by such third-party service providers. By granting Gumroad access to any Third-Party Accounts, you understand that Gumroad may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Services via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (as defined in Section 9.1 (Types of Content)) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. Please note that if a Third-Party Account or associated service becomes unavailable, or Gumroad’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND GUMROAD DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Gumroad makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Gumroad is not responsible for any SNS Content.
5.3 Registration Data. In registering an account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to (y) notify Gumroad immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Gumroad has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Gumroad has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Gumroad reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Gumroad, or if you have been previously banned from any of the Services.
5.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
6. LISTING AND PURCHASING PRODUCTS.
6.1 Risks; No Warranty. You assume certain risks in using a marketplace service such as Gumroad Discover. Buyers contract directly with Sellers for the purchase of Products through Gumroad Discover and Gumroad Supplier. Gumroad does not make any representations or warranties regarding Products offered or sold through Gumroad Discover or any Seller Property. Gumroad is not an auctioneer, a Seller, or a carrier. You as a Buyer and/or Seller acknowledge and agree that you bear all of the risks in selling or buying Products through Gumroad Discover.
6.2 Listing and Delivery of Digital Products. With respect to a Digital Product, Seller may upload a digital file in a format approved by Gumroad (including, but not limited to, .mp3, .pdf, .png, .jpeg files) to Gumroad Discover and sell the Digital Product at a retail price determined by Seller in its sole and absolute discretion (the “Retail Price”). Upon a Buyer’s purchase of a Digital Product on Gumroad Discover, as described in Section 6.4 (Purchasing Products), or through a Seller Property which leverages the Gumroad Supplier services, Gumroad will promptly facilitate the payment from Buyer to Seller and facilitate the delivery of the Digital Product to Buyer.
6.3 Listing and Delivery of Physical Products. With respect to Physical Products, Seller may upload a listing of a Physical Product to Gumroad Discover and sell the Physical Product at a Retail Price determined by Seller in its sole and absolute discretion. Upon a Buyer’s purchase of a Physical Product as described in Section 6.4 (Purchasing Products), Gumroad will promptly facilitate the payment from Buyer to Seller and collect the applicable Gumroad Fee (as defined below). Seller is solely responsible for the fulfillment and delivery of Physical Products to the Buyer in a timely manner. Gumroad does not ship, handle or take custody of Physical Products at any point.
6.4 Purchasing Products. Buyers contract directly with Sellers for the purchase of Products through the Platform. A Buyer may purchase Products through the Platform with or without an Account. Having an Account allows a Buyer to access the Buyer’s purchase history and the purchased Digital Products through the Buyer’s Gumroad Library anytime. To purchase a Product, a Buyer must complete the checkout process and provide an authorized payment method. Except as set forth below, all purchases through the Platform are final. All payments by Buyers for purchases through the Platform must be made through the Platform using a payment method that Gumroad in its sole discretion makes available through the Platform as further described in Section 8.3 (Third-Party Service Provider).
6.5 Currency Conversion. If the Seller lists the Retail Price of a Product in a currency other than United States Dollars (USD), Gumroad will calculate a USD price based upon an exchange rate determined by Gumroad. Gumroad uses exchange rates obtained from http://openexchangerates.org/api. Gumroad cannot and does not guarantee that the exchange rate displayed reflects the most up to date rate due to the fluctuating nature of exchange rates. Accordingly, Gumroad recommends that you confirm current rates before engaging in any transactions on the Platform. Regardless of listed currency, all transactions, including for Digital Product, Physical Product, Seller Property, or Gumroad Discover will settle in USD.
6.6 Refund Policy.
(a) Gumroad has no obligation to provide refunds or credits, but may grant them in circumstances where the Seller has committed fraud, or to correct any errors made by Gumroad or a Seller, or where the Product violates this Terms of Service, in each case in Gumroad’s sole discretion, or at the direction of a Seller in accordance with Seller’s refund policy published through the Platform.
(b) It is the Buyer’s sole responsibility to appropriately handle, remove or destroy any Digital Product or Physical Product that may cause Buyer to: (i) incur additional liability, including, but not limited to, criminal and/or civil liability; or (ii) experience additional adverse effects, including, but not limited to, potential privacy, security, or technical vulnerabilities.
(c) Upon the approval of a refund pursuant to Section 6.6(a) or 6.6(a), the full amount of the authorized refund will be offset against funds pending settlement to Seller, including in connection with future sale proceeds. To the extent applicable, Gumroad will process the refund payment to Buyer on Seller’s behalf.
(d) Please note that if you as a Buyer request a refund and also pursue a dispute resolution process for the same transaction with your payment method provider for the applicable purchase, we will decline your refund request. This will not affect the dispute resolution process with your payment method provider. You agree not to submit a refund request for any Product if you have already chosen to pursue a dispute resolution process with your payment method provider.
7.1 Important Tax Considerations. This Section 7.1 highlights some of the more important taxation issues that you will need to consider in relation to the Platform and the Services, and, in particular, provides an outline of certain aspects of their intended Indirect Tax treatment. The articles currently accessible at https://help.gumroad.com/article/121-sales-tax-on-gumroad, which Gumroad may update or amend from time to time (together, the “Articles”), provide further information about how Gumroad generally handles (and, where appropriate, the settings that Sellers can control) the administration and collection of Indirect Tax (as defined below) in respect of sales of Products in certain countries and states.
This Section 7.1 and the information provided in the Articles is intended as a general guide, is not exhaustive and does not constitute, and should not be relied upon as, legal or tax advice. Some aspects of the tax treatment of the Platform and the Services are not straightforward, and may vary between jurisdictions, and applicable tax rules, and the interpretation and application of these rules, may be subject to uncertainty and/or change. Except to the extent specifically agreed by Gumroad, you are solely responsible for the proper administration, collection and reporting and remittance to the appropriate authority of all applicable taxes. If you are unsure as to your tax responsibilities then we strongly urge you to consult your own tax advisers.
(a) Meaning of Indirect Tax. “Indirect Tax” includes any sales, use, value added or goods and services tax, any similar tax on sales, turnover or consumption, and any import, customs and similar taxes, duties and tariffs, together, in each case in any jurisdiction and together with any related penalties and interest.
(b) Indirect Tax on Gumroad Supplier – General Position. Except in situations covered in Section 7.1(c) below (Indirect Tax on Gumroad Supplier – Tax Facilitated Sales), it is intended that the Seller (and not Gumroad) should generally be treated as the supplier, for relevant Indirect Tax purposes, of Products sold using the Gumroad Supplier service, and that the Seller shall be solely responsible for the administration, collection, reporting and remittance of any relevant Indirect Tax (except in limited circumstances where the Buyer may be responsible, for example as outlined in Section 7.1(g) below).
(c) Indirect Tax on Gumroad Supplier – Tax Facilitated Sales. In certain situations, Gumroad may choose to provide facilitated tax collection, reporting and remittance services on behalf of Sellers. In such situations, subject to the detailed terms on which such services are provided, and depending on the jurisdictions involved, Gumroad may be treated as the supplier, for relevant Indirect Tax purposes, and, if so, should generally be responsible for the collection, reporting and remittance of any relevant Indirect Tax (except in limited circumstances where the Buyer may be responsible, for example as outlined in Section 7.1(g) below).
(d) Indirect Tax on Gumroad Discover. It is intended that Gumroad should generally be treated as the supplier, for relevant Indirect Tax purposes, in respect of Products sold through Gumroad Discover, and, subject to as provided pursuant to these Terms of Service, should generally be responsible for the administration, collection, reporting and remittance of any relevant Indirect Tax (except in limited circumstances where the Buyer may be responsible, for example as outlined in Section 7.1(g) below). When the treatment of Gumroad as a supplier is not a relevant consideration for Indirect Tax purposes, if Gumroad determines it is responsible for the administration, collection, reporting and remittance of Indirect Tax in connection with Products sold through Gumroad Discover, Gumroad will collect and remit the Indirect Tax in addition to the amounts otherwise required under these Terms of Service.
(e) Indirect Tax on Gumroad Fees. In some circumstances, Gumroad Fees may be subject to Indirect Tax. Where appropriate, Gumroad will be responsible for the administration, collection, reporting and remittance of such Indirect Tax, although in some circumstances the Buyer may be responsible (for example if a Buyer is required to account for value added tax or goods and services tax outside the United States under a “reverse charge” mechanism).
(f) Indirect Tax on Affiliate Fees. In some circumstances, Affiliate Fees may be subject to Indirect Tax. Affiliates will be responsible for the administration, collection, reporting and remittance of any such Indirect Tax.
(g) Indirect Tax for Buyers. Buyers may in some circumstances be responsible for Indirect Taxes. For example, in the case of cross-border purchases of Physical Products, the Buyer may be responsible for Indirect Taxes on the import of the Physical Products. Buyers outside the United States may also, in some circumstances, be required to account for value added tax or goods and services tax under a “reverse charge” mechanism.
(h) Direct Tax. It is your personal responsibility to disclose your earnings to your relevant tax authority and you must ensure that you are paying the correct amount of tax. This is particularly relevant if you are operating as a business. Please be aware that Gumroad may in some circumstances be required to disclose information about you to tax authorities.
7.2 Certain Terms Relating to Tax.
(a) Amounts Generally Exclusive of Indirect Tax. Except where expressly stated otherwise, all prices on Gumroad Discover, and all amounts payable to Gumroad pursuant to this Agreement (or which reduce amounts payable by Gumroad), including Gumroad Fees, are exclusive of any applicable Indirect Tax, and additional payment shall be made to cover such Indirect Tax, at the same time as the payment to which such Indirect Tax relates. However, Affiliate Fees and any amounts payable by Gumroad pursuant to this Agreement are inclusive of any applicable Indirect Tax, and no additional amounts shall be payable by Gumroad in respect of such Indirect Tax.
(b) Payment of Tax by Gumroad. If Gumroad considers that it is liable (including jointly liable) for any Indirect Tax in connection with the sale of a Product (or any other supply) by a Seller, Gumroad shall be entitled to deduct an amount equal to such Indirect Tax from any amounts otherwise payable to such Seller and account for such Indirect Tax to the appropriate tax authority and/or to apply such withheld amount in satisfaction of Gumroad’s liability in respect of such Indirect Tax. If Gumroad considers that any withholding or deduction on account of tax is required by applicable law to be made from any payment pursuant to this Agreement, it shall be entitled to make such withholding or deduction (and, for the avoidance doubt, shall not be required to increase or gross-up any payment on account of such withholding or deduction).
(c) Compliance with Tax Law. When you use the Services (including Gumroad Supplier and Gumroad Discover) you agree that you will comply with all relevant tax laws and regulations. In particular, and without limitation, you agree that you will comply with all laws relating to the administration, collection, reporting and remittance of tax, and will ensure that applicable amounts of Indirect Tax are correctly displayed on any Seller Property which you operate. If you and we are jointly liable for any tax, you agree such tax will be payable by you.
(d) Reimbursement and Indemnification. To the extent that Gumroad is liable in respect of any Indirect Tax in connection with the sale of a Product (or any other supply) by a Seller, or any other tax properly attributable to a Seller or a Buyer, and an amount equal to such Indirect Tax or other tax has not been deducted from amounts payable to a Seller pursuant to Section 7.2(b), the relevant Seller shall reimburse and indemnify Gumroad in respect of such Indirect Tax or other tax.
(e) Tax Information. You agree to provide to us, on request, any information and evidence (including official receipts) which Gumroad may reasonably request to demonstrate that you have complied with Section 7.2(c), and to allow Gumroad to comply with its obligations, including in connection with any request for information which Gumroad may receive from any tax authority.
8. ADDITIONAL PAYMENT TERMS.
8.1 Seller’s Payment of Gumroad Fees. Gumroad does not assess or collect “listing” or “insertion” fees, but will charge and collect from Seller a Platform fee and/or a per transaction fee (“Gumroad Fee(s)”) for each sale made through Gumroad Discover or a Seller Property that uses Gumroad Supplier Services. The current Gumroad Fees can be viewed in the help article “Gumroad’s fees”. We may change the Gumroad Fees from time to time by posting the changes on the Website. Any new Gumroad Fee(s) will apply to transactions only after the changes are posted to the Website. The Gumroad Fee(s) owed for each sale through Gumroad Discover or a Seller Property is automatically deducted from the purchase price paid by the Buyer, with the remainder (less any amounts in respect of taxes) settled to Seller.
8.2 Buyer’s Payment for Products. Buyer is obligated to make payment upon purchase of a Product by providing an eligible payment method at checkout. Buyer is responsible for all approved charges. Gumroad does not assess any fees of Buyers. Upon final purchase, Gumroad, through its third-party service providers, will charge the payment method specified by Buyer at checkout. All purchases made by Buyer are processed by Gumroad and its third-party services providers on behalf of Seller to facilitate the settlement of proceeds to Seller (less applicable fees and taxes).
8.4 Additional Identity Verification. Gumroad reserves the right, but has no obligation, to request additional information from Buyers or Sellers to verify identity in order to safeguard the integrity of the Platform and reduce the risk of fraud, money laundering, terrorist financing, and the violation of trade sanctions. Information that Gumroad may request, or seek to confirm, may include full legal name, mailing address, phone number, date of birth, taxpayer identification number (e.g. Social Security Number), bank account information, and a form of government-issued identification.
8.5 Seller’s Appointment of Gumroad as Limited Payments Agent. By accessing the Platform and Services, each Seller hereby appoints Gumroad as its limited payments agent for the limited purpose of receiving, holding and facilitating settlement of payments to Seller for sales of Products through Gumroad Discover or a Seller Property, to the extent applicable. Gumroad, through its Third-Party Service Provider(s), will settle payments that are actually or constructively received by Gumroad to Seller, less any amounts owed to Gumroad, including the Gumroad Fees, other fees and obligations and amounts in respect of taxes, as set forth in these Terms of Service. Seller agrees that a payment actually or constructively received by Gumroad on behalf of Seller satisfies Buyer’s obligation to make payment to Seller, regardless of whether Gumroad or its Third-Party Service Provider actually settles such payment to Seller. If Gumroad does not settle any such payments as described in this Section 8 (Additional Payment Terms) or otherwise in these Terms of Service, Seller will have recourse against only Gumroad (or its Third-Party Service Provider, as applicable) and not Buyer. In accepting this appointment as Seller’s limited payments agent, Gumroad assumes no liability for any acts or omission by Seller, and Seller understands that the obligation of Gumroad and its Third-Party Service Provider(s) to settle funds to Seller is subject to and conditioned upon the Buyer’s actual payment and these Terms of Service.
8.6 Seller’s Funds Pending Settlement. For convenience, Sellers are able to obtain information regarding the proceeds of sales pending settlement through the dashboard made available in Seller’s Account. This information merely reflects the sales proceeds processed on Seller’s behalf and does not constitute a deposit or other obligation of Gumroad or its Third-Party Service Providers to Seller. Funds pending settlement to Seller will be held in an account with Gumroad’s Third-Party Service Provider(s) pending disbursement to Seller. Disbursement of funds to Seller may be delayed as described in Section 8.8 below. Seller agrees that it (i) is not entitled to any interest or other compensation associated with any funds pending settlement to Seller, (ii) has no right to direct any account holding such funds, and (iii) may not assign any interest in the account(s) held with or through Gumroad or its Third-Party Service Providers. Gumroad, through its Third-Party Service Provider(s), facilitates disbursement of funds to Seller to the account associated with the payout information designated by the Seller. If payment is made to Seller in error, or if Seller receives funds that Seller is not otherwise entitled to receive at the time of disbursement, Gumroad has the right to recoup such amounts from the Seller, including without limitation by initiating a debit or charge to any account provided by Seller in connection with the Services. Gumroad may also offset against funds pending settlement to Seller any sums due, or reasonably likely to become due, to Gumroad pursuant to these Terms of Service.
8.7 Seller’s Obligations and Restrictions on Seller’s Activities through the Services. In addition to other terms applicable to Sellers in this Agreement, when you as a Seller use the Services (including Gumroad Discover, or Gumroad Supplier), you acknowledge and agree that:
(a) You will not, or attempt to, promote, distribute or deliver Products through the Services in any manner that: (i) violates, or may violate, the rules or policies of Card Networks or our Third-Party Service Providers; (ii) is listed as Prohibited Products and Activities on the Website; (iii) constitutes illegal activity or is illegal; (iv) promotes or encourages discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; (v) targets, or intends to distribute to, children under the age of thirteen (13) years old; (vi) or is abusive towards other people.
(b) You will use best efforts to ensure that all communications, representations and warranties you make in connection with your Products will: (i) be accurate and contain all disclosures and disclaimers necessary to prevent such communications and/or representations from being false, deceptive, or misleading; and (ii) otherwise comply with all applicable laws, regulations, advisories, and policies related to consumer protection.
(c) You agree to provide public-facing contact information, refund policy, and order fulfillment timelines for all Products. You will use best efforts to ship a Physical Product sold to a Buyer no later than seven (7) calendar days from the date of the Buyer’s purchase as described in Section 6.4 (Purchasing Products).
(d) You will not require or suggest that a Buyer agree to any terms that reduce or limit Section 6.6 (Refund Policy) or otherwise impinge or interfere with Gumroad’s rights under these Terms of Service or any other agreement.
(e) You will promptly: (i) respond to inquiries from Gumroad; (ii) notify Gumroad of any regulatory or legal complaints, or threats of such complaints, that you receive in connection with or in relation to a Product; and (iii) assist Gumroad, at your sole cost and expense, in taking any appropriate or necessary actions reasonably requested by Gumroad to respond to such inquiries and resolve such complaints.
(f) You will comply with all applicable laws, regulations, court orders, third party rights, applicable industry requirements (including, but not limited to, any and all applicable provisions of the Visa International Operating Regulations, MasterCard Merchant Rules, and PCI compliance standards), and any Gumroad policy or standard that may be issued from time to time.
(g) In the event you promote or deliver any Products that contain personal information of any other individual, you must have provided any such notice to data subjects that may be required under applicable law and, to the extent required under applicable law, established a legal basis for your use of such personal data.
(h) If you send emails, directly or indirectly, in connection with any Product, then you agree, acknowledge, represent and warrant that all such emails, and procurement of email addresses thereto, shall be in compliance with all applicable federal, state, and international laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act and the Children's Online Privacy Protection Act.
(i) If you send, initiate or procure a “call” (as that term is defined by the Telephone Consumer Protection Act), directly or indirectly, in connection with any Product, you agree, acknowledge, represent and warrant that you have obtained all necessary consents and authorizations under, and will be in full compliance with, applicable laws and regulations, including without limitation regulations issued by the Federal Trade Commission, Federal Communications Commission, and state laws related to anti-spam, text messages and Do-Not-Call Registries.
8.8 Suspension of Seller’s Account.
(a) Gumroad, in its sole discretion, may suspend or terminate Seller’s Account(s), or retain any or all funds pending settlement to Seller, if Gumroad suspects or has reason to believe and/or if a person otherwise claims that Seller has violated the law or breached any term of this Agreement. In addition to the foregoing, and all other rights and remedies available to Gumroad at law or in equity and notwithstanding anything in the Agreement to the contrary, in the event Seller breaches any term of this Agreement, or Seller’s Account becomes dormant and/or has a negative balance, Gumroad will have the right to immediately suspend or terminate Seller’s Account and Seller’s rights to access, use and/or otherwise participate in the Platform. Upon such termination, Seller agrees to immediately cease all use of the Services. Without limiting the foregoing, Gumroad shall have the right to immediately terminate Seller’s access and use of the Platform, or any portion thereof, in the event of any conduct that Gumroad, in its sole discretion, considers unacceptable. Following suspension or termination of Seller’s Account or retaining of funds pursuant to this Section, Gumroad will review Seller’s Account in a manner determined by Gumroad in its sole discretion. Seller agrees to cooperate with this review if asked. If the review concludes that there is a reasonable basis to believe misconduct has occurred, Seller agrees that Gumroad may retain funds in Seller’s Account as liquidated damages and/or for the benefit of Gumroad or third parties affected by the misconduct. Seller acknowledges and agrees that such liquidated damages: (i) are not a penalty, and (ii) are reasonable and not disproportionate to such presumed damages to Gumroad.
(b) Gumroad may temporarily withhold any portion of funds pending settlement to Seller (as reflected in the Seller’s Account) if Gumroad, in its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness Seller may have incurred with Gumroad or any Buyer. If Seller experiences a refund rate in excess of 15%, Seller hereby authorizes us to hold in reserve an amount equal to 25% of Seller’s funds pending settlement for 90 days on a rolling basis to offset the potential cost of future refunds. If Seller experiences a refund rate in excess of 25%, Seller’s Account may be suspended, terminated, or otherwise subject to additional conditions or fees.
9. RESPONSIBILITY FOR CONTENT.
9.1 Types of Content. You acknowledge that all Content, including the Services, is the sole responsibility of the party from whom such Content originated. This means that you, and not Gumroad, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and that you and other users of the Services, and not Gumroad, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”).
9.2 Storage. Unless expressly agreed to by Gumroad in writing elsewhere, Gumroad has no obligation to store any of Your Content that you Make Available on the Services. Gumroad has no responsibility or liability for the timeliness, deletion, mis-delivery or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Gumroad retains the right to create reasonable limits on Gumroad’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Services and as otherwise determined by Gumroad in its sole discretion.
10.1 Ownership of the Services. Except with respect to Your Content and User Content, you agree that Gumroad and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Gumroad software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Services.
, and all related graphics, logos, service marks and trade names used on or in connection with the Services or in connection with the Services are the trademarks of Gumroad and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
10.3 Your Content. Gumroad does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
10.4 License to Your Content. Subject to any applicable account settings that you select, you grant Gumroad a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Gumroad, are responsible for all of Your Content that you Make Available on or in the Services. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Gumroad in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
10.5 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any comments, or any other area on the Services, you hereby expressly permit Gumroad to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
10.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Gumroad (“Feedback”) is at your own risk and that Gumroad has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Gumroad a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Gumroad’s business.
11. USER CONDUCT AND CERTAIN RESTRICTIONS. As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Gumroad; (c) use any metatags or other “hidden text” using Gumroad’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Further, you shall not (and shall not permit any third party) to either (a) take any action or (b) Make Available any Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Gumroad’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Gumroad; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; (vii) manipulates the price of any listed Product interferes with a user profile or Seller listings; (viii) transfers your account and username to another party without our consent; (ix) bypasses our robot exclusion hardware, interferes with the working of the Platform, or imposes an unreasonable or disproportionately large load on our infrastructure; (x) uses the Platform to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; (xi) takes any action that may undermine our feedback or ratings systems; (xii) breaches or circumvents any laws, third party rights or our systems, policies, or determinations of your account status; or (xiii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
12. NO SOLICITATION. The Platform may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form users for employment, contracting, or any other purpose not related to the Services facilitated through the Services. You may not use the Platform to collect usernames and/or email addresses of users by electronic or other means without the express prior written consent of Gumroad.
13. INVESTIGATIONS, MONITORING, & NO OBLIGATION TO PRE-SCREEN CONTENT.
13.1 Monitoring; Content. Gumroad may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or Content, including Your Content and User Content, at any time. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Gumroad pre-screens, refuses or removes any Content, you acknowledge that Gumroad will do so for Gumroad’s benefit, not yours. Without limiting the foregoing, Gumroad reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Gumroad; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Services or if Gumroad otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of the Agreement, Gumroad, may, at its sole discretion immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
13.2 Criminal Activity. If Gumroad believes that criminal activity has occurred, Gumroad reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Services, including Your Content, in Gumroad’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Gumroad, its Registered Users or the public, and all enforcement or other government officials, as Gumroad in its sole discretion believes to be necessary or appropriate.
14. INTERACTIONS WITH OTHER USERS.
14.1 User Responsibility. You are solely responsible for your interactions with other users and any other parties with whom you interact; provided, however, that Gumroad reserves the right, but has no obligation, to intercede in such disputes. You agree that Gumroad will not be responsible for any liability incurred as the result of such interactions.
14.2 Content Provided by Other Users. The Services may contain User Content provided by other users. Gumroad is not responsible for and does not control User Content. Gumroad does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other users at your own risk.
14.3 Subverting the Platform. It is a material breach of this Agreement to arrange for the sale of listed Products from, or the payment of fees to, Sellers outside the context of the Platform for the purposes of circumventing the obligation to pay the Gumroad fee for Products purchased through the Platform.
15. RELEASE. Gumroad expressly disclaims any liability that may arise between users of its Platform. The Platform is only a venue for connecting Buyers with Sellers. Because Gumroad is not a party to the actual contracts between Buyers and Sellers, in the event that you have a dispute with one or more users, you release Gumroad, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors, but excluding any users (each a “Gumroad Party” and collectively, the “Gumroad Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” THE FOREGOING RELEASE DOES NOT APPLY TO ANY CLAIMS, DEMANDS, OR ANY LOSSES, DAMAGES, RIGHTS AND ACTIONS OF ANY KIND, INCLUDING PERSONAL INJURIES, DEATH OR PROPERTY DAMAGE FOR ANY UNCONSCIONABLE COMMERCIAL PRACTICE BY A GUMROAD PARTY OR FOR SUCH PARTY’S FRAUD, DECEPTION, FALSE, PROMISE, MISREPRESENTATION OR CONCEALMENT, SUPPRESSION OR OMISSION OF ANY MATERIAL FACT IN CONNECTION WITH THE PLATFORM PROVIDED HEREUNDER.
16. INDEMNIFICATION. You agree to indemnify and hold the Gumroad Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your inability to use any Service; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any users; (e) disputes with other users of the Services; or (f) your violation of any applicable laws, rules or regulations. Further, each Seller agrees to indemnify and hold the Gumroad Parties harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of related to Seller’s Products and Seller Properties. Gumroad reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Gumroad in asserting any available defenses. This provision does not require you to indemnify any of the Gumroad Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
17. DISCLAIMER OF WARRANTIES AND CONDITIONS.
17.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. GUMROAD PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICE. This Section 17 (Disclaimer of Warranties and Conditions) does not affect in any way our return policy or limited warranty for goods purchased on the Service.
(a) GUMROAD PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE PLATFORM, AND OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. GUMROAD MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM GUMROAD OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) [FROM TIME TO TIME, GUMROAD MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT GUMROAD’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.]
17.2 No Liability for Conduct of Other Users or Third Parties. YOU ACKNOWLEDGE AND AGREE THAT GUMROAD PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD GUMROAD PARTIES LIABLE, FOR THE CONDUCT OF OTHER USERS INCLUDING THIRD PARTIES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
(a) Gumroad makes no warranty that the goods provided by third parties or other users will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Gumroad makes no warranty regarding the quality of any such goods, or the accuracy, timeliness, truthfulness, completeness or reliability of any User content obtained through the Services.
(b) We are not involved in the actual transaction between Buyers and Sellers. While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety or legality of Products advertised, the truth or accuracy of users’ content or listings, the ability of Sellers to sell items, the ability of Buyers to pay for Products, or that Buyer or Seller will actually complete a transaction or return all Products.
(c) We do not transfer legal ownership of Products from the Seller to the Buyer. [California Commercial Code § 2401(2)] and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise. Further, we cannot guarantee continuous or secure access to the Services and operation of the Services may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions.
(d) As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Gumroad to monitor such materials and that you access these materials at your own risk.
18. LIMITATION OF LIABILITY.
18.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL GUMROAD PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT GUMROAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A GUMROAD PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A GUMROAD PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A GUMROAD PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
18.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, GUMROAD PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO GUMROAD BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (b) $100. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A GUMROAD PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A GUMROAD PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A GUMROAD PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
18.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
18.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GUMROAD AND YOU.
19. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Gumroad’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Gumroad by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Gumroad’s Copyright Agent for notice of claims of copyright infringement is as follows: [Include name or title, and physical address of Copyright Agent].
20. TERM AND TERMINATION.
20.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
20.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and that the Agreement will remain in full force and effect while you use any the Services, unless earlier terminated in accordance with the Agreement.
20.3 No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Gumroad community, is discontinued by Gumroad due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Gumroad community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those the Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Gumroad reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
20.4 Suspension of Services. Gumroad may decline, remove or halt sales of any Product, suspend or terminate an Account, and/or suspend or terminate the Services at any time, in its sole discretion, without cause or notice to you or any penalty or liability for doing so.
21. TERRITORIAL RESTRICTIONS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Gumroad intends to announce such Services or Content in your country. The Services are controlled and offered by Gumroad from its facilities in the United States of America. Gumroad makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
22. ARBITRATION AGREEMENT. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires Registered to arbitrate disputes with Gumroad and limits the manner in which you can seek relief from us. For the avoidance of doubt, this Arbitration Agreement does not govern disputes between you and another user.
22.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Gumroad agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed by other users through the Services, or this Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Gumroad may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Gumroad may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement. This Arbitration Agreement does not apply to disputes between you and third parties.
22.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Gumroad. If that occurs, Gumroad is committed to working with you to reach a reasonable resolution. You and Gumroad agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Gumroad therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Gumroad that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org or regular mail to our offices located at 548 Market St, PMB 41309, San Francisco, California 94104-5401 US. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
22.3 Waiver of Jury Trial. YOU AND GUMROAD HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Gumroad are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
22.4 Waiver of Class or Other Non-Individualized Relief. YOU AND GUMROAD AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 22.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Section 22.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Gumroad agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Gumroad from participating in a class-wide settlement of claims.
22.5 Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Gumroad agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Gumroad otherwise agree, or the Batch Arbitration process discussed in subsection 22.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Gumroad agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
22.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 22.9 is triggered, the AAA will appoint the arbitrator for each batch.
22.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
22.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Gumroad need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
22.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Gumroad agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Gumroad by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Gumroad.
You and Gumroad agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
22.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [insert address], within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of the Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
22.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Gumroad as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
22.12 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Gumroad makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Gumroad at [insert address], your continued use of the Services, including the acceptance of products and services offered through the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Gumroad will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
23. THIRD-PARTY SERVICES.
23.1 Third-Party Websites, Applications and Ads. the Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Gumroad. Gumroad is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Gumroad provides these Third-Party Websites, Third-Party Applications or Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications or Third-Party Ads at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
23.2 Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Gumroad only, and not Apple, and (ii) Gumroad, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the Apple Media Services Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Gumroad and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Gumroad.
(d) You and Gumroad acknowledge that, as between Gumroad and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Gumroad acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Gumroad and Apple, Gumroad, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Gumroad acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
24. GENERAL PROVISIONS.
24.1 Electronic Communications. The communications between you and Gumroad may take place via electronic means, whether you visit the Services or send Gumroad e-mails, or whether Gumroad posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Gumroad in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Gumroad provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
24.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Gumroad’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
24.3 Force Majeure. Gumroad shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
24.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us by mail at 548 Market St., San Francisco, CA 94104-5401 or email at email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
24.5 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
24.6 Agreement Updates. THIS AGREEMENT IS SUBJECT TO CHANGE BY GUMROAD IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Gumroad will make a new copy of the Terms of Service available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the top of the Terms of Service. If we make any material changes, and you have registered with us to create an Account (as defined in Section 5.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Service and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (as defined in Section 5.1 (Registering Your Account) below). Gumroad may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Service. Otherwise, your continued use of the Service constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SERVICE TO VIEW THE THEN-CURRENT TERMS.
24.7 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Gumroad agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco County of California.
24.8 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
24.9 Choice of Language. The parties confirm that it is their express wish that this Agreement, and all documents and notices related hereto, be in English. Les parties confirment leur volonté expresse à ce que la présente convention, ainsi que tout document ou avis s'y rapportant, soit en anglais.
24.10 Notice. Where Gumroad requires that you provide an e-mail address, you are responsible for providing Gumroad with your most current e-mail address. In the event that the last e-mail address you provided to Gumroad is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Gumroad’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Gumroad at the following address 548 Market Street, San Francisco, CA 94104-5401 or via email at firstname.lastname@example.org. Such notice shall be deemed given when received by Gumroad by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
24.11 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
24.12 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
24.13 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Gumroad are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Gumroad products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
24.14 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.