Please read these Terms of Service (the “Agreement”) carefully. Your use of the Service (as defined below) constitutes your consent to this Agreement.
This Agreement is between you and Gainy, Inc. (“Gainy” or “we” or “us”) concerning your use of (including any access to) the Gainy Service (together with any mobile applications (“Apps”) and websites (“Sites”) through which we make the service available, the “Service”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Gainy through the Service, or otherwise made available to you by Gainy.
This Agreement supplements the investment advisory agreement (“IAA”) you will be required to enter into in order to open an account with Gainy. The terms and conditions of the IAA will supersede this Agreement to the extent that such terms and conditions conflict with any provisions of this Agreement.
By using the Service, you affirm that you are of legal age to enter into this Agreement.
Please note that the Service is currently made available as an “alpha” or “beta” program. Without limiting any other terms or conditions of this Agreement, please note that Gainy may, without notice, establish eligibility criteria for participation in the alpha or beta program, limit or revoke any individual’s participation in the alpha or beta program, and change or modify any features or functionalities of the Service.
We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Service. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
2. Jurisdictional Issues
The Service is controlled or operated (or both) from the United States, and is not intended to subject Gainy to any non-U.S. jurisdiction or law. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose. Gainy only offers investment advisory services in the United States
3. Rules of Conduct
• Use the Service for any commercial purpose, to provide investment advice for compensation to any person, or for any purpose that is fraudulent or otherwise tortious or unlawful.
• Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Service except as expressly authorized herein, without Gainy’s express prior written consent.
• Remove any copyright, trademark or other proprietary rights notice from the Service.
• Frame or mirror any portion of the Service, or otherwise incorporate any portion of the Service into any product or service, without Gainy’s express prior written consent.
• Systematically download and store Service content.
• Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Service content, or reproduce or circumvent the navigational structure or presentation of the Service, without Gainy’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Site’s root directory, Gainy grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Gainy reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
• You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Service.
Service visitors may make available certain materials (each, a “Submission”) through or in connection with the Service, including on profile pages or on the Service’s interactive services, such as forums and messaging functionality, and including through the provision of transactions or other financial information. Gainy has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. If you choose to make any of your personally identifiable or other information publicly available through the Service, you do so at your own risk.
For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Service or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Gainy under any fiduciary or other obligation.
We may (but have no obligation to) monitor, evaluate, alter or remove Submissions before or after they appear on the Service, or analyze your access to or use of the Service. We may disclose information regarding your access to and use of the Service, and the circumstances surrounding such access and use, to anyone for any reason or purpose.
7. Your Limited Rights
Subject to your compliance with this Agreement, and solely for so long as you are permitted by Gainy to use the Site, you may view one (1) copy of any portion of the Site to which we provide you access under this Agreement, on any single device, solely for your personal, non-commercial use. The App is licensed (not sold) to end-users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Gainy to use the App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the App on a mobile device that you own or control, solely for your personal, non-commercial use. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device.
8. Third Party Materials; Links
The use of the Service is dependent upon certain third-party products and services. In addition, the Service may make available access to certain third-party products, services and offers, as well as other information, products, services and other materials made available by third parties, including Submissions, or allow for the routing or transmission of such materials, including via links. All such third-party products, services and materials are referred to as “Third Party Materials.” We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein.
9. You are responsible for your own investment decisions.
10. Limitation of Liability
To the fullest extent permitted under applicable law: (a) Gainy will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use or data, loss of other intangibles, loss of security of Submissions (including unauthorized interception by third parties of any Submissions), even if advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, Gainy will not be liable for damages of any kind resulting from your use of or inability to use the Service or from any Third Party Materials, including from any Virus that may be transmitted in connection therewith; (c) your sole and exclusive remedy for dissatisfaction with the Service or any Third Party Materials is to stop using the Service; and (d) the maximum aggregate liability of Gainy for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the total amount, if any, paid by you to Gainy solely for the right to use the Service. All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Gainy and the Affiliated Entities, and their respective successors and assigns. The foregoing limitation on liability will have no application to any claims brought under an IAA.
To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Gainy and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Service (including all Submissions); and (b) any violation or alleged violation of this Agreement by you.
This Agreement is effective until terminated. Gainy may terminate or suspend your use of the Service at any time and without prior notice, for any or no reason, including if Gainy believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Service will immediately cease, and Gainy may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials.
13. Governing Law; Arbitration
This Agreement is governed by and shall be construed in accordance with the laws of the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. You agree to the exclusive jurisdiction of the federal and state courts located in the City and County of San Francisco, California, U.S.A., and waive any jurisdictional, venue or inconvenient forum objections to such courts.
This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Gainy. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Gainy relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Gainy relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Service or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Gainy will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
15. Information or Complaints
If you have a question or complaint regarding the Service, please send an e-mail to email@example.com. You may also contact us by writing to Gainy, Inc., 1160 Battery Street East, Suite 100, San Francisco, CA 94111. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.