Terms of Service

Last Updated: 1-Nov-2023

This Terms of Service Agreement (“Agreement”) governs your (“You”, or “Your”) use of services made available by Gamitar Inc. (“Company”, “We”, “Us”, or “Our”), websites at the URL https://www.gamitar.com/, https://evivve.com/, https://app.evivve.com/ and any other service, product, app, or website provided by the Company that explicitly specifies the applicability of Agreement (collectively, “Site”) including, but not limited, free trials, paid services, enterprise services and/or any other service made available by Company that indicate the applicability of this Agreement. Company is entering into this Agreement on behalf of itself and its Affiliates (as defined below).   Please carefully read the contents of this document before using any Company product or service(s).

By undertaking any of the following actions, You demonstrate that You have read and agree to this Agreement: (1) by signing up for a free trial, (2) by signing up for a paid service, (3) by using the website or service, or (4) by ticking a box indicating acceptance of this Agreement, or (5) by creating an account on the Site or App. You further indicate that you have read, understood, and agree to the following: (a) Privacy Policy and (b) Cookie Policy. The latest version of these documents can be accessed at:

    Privacy Policy: Link to Privacy Policy

    Cookie Policy: Link to Cookie Policy

If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority or does not agree with these terms of service, such individual must not accept this Agreement and may not use the services.

This Agreement is effective between You and Company as of the date on which You accept the Agreement.

1. DEFINITIONS

2. “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

3. “Agreement” means this Terms of Service and includes the Privacy Policy and Cookie Policy, and any other additional terms and conditions as may be agreed upon by the parties in writing prior to the provision of additional services by the Company.

4. “Confidential Information” means and includes all non-public and/or private information disclosed by the Disclosing Party to the Receiving Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes Your data. Confidential Information of Company includes non-public aspects of the software or documentation related to the Services, the Company’s technical know-how, inventions, materials, product development plans, and marketing plans. Confidential Information of each Party includes non-public aspects of business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Notwithstanding anything to the contrary above, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third Party without breach of any obligation owed to the Disclosing Party, or (iv) is independently developed without access to or use of any Confidential Information.

5. “Content” refers to content such as text, images, or other information that can be posted, uploaded, linked to or otherwise made available by You, regardless of the form of that content.

6. “Customer” means in the case of an individual accepting this Agreement on his or her behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity on behalf of which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates).

7. “Customer Data” means all electronic data or information submitted by Customer and stored by Company for Customer.

8. “Disclosing Party” means the party that discloses Confidential Information to the other Party.

9. “Force Majeure Event”  means an event or effect that cannot be reasonably anticipated or controlled, which even by the exercise of reasonable diligence cannot prevent non-performance, and in particular, performance of the Services. These occurrences and events include, but are not limited to: acts of God; acts of government; acts of war; acts of public enemies; acts of terror; strikes or other labor problems; natural disaster; floods; fires; earthquakes; epidemic; pandemic; civil unrest; riots; explosions; outages; general Internet brown-outs or black-outs or shortage of bandwidth; hardware failures; hacking, denial of service or ransomware attacks; actions of the elements; or other similar causes beyond the control of Customer or Company in the performance of this Agreement.

10. “Free Service(s)” means Services that the Company makes available to Customer at no cost, including but not limited to services provided for evaluation purposes without a fee.

11. “Learner” means any individual or entity under the authority of the Customer, utilizing our Service to engage in gamified learning experiences facilitated by the Customer. The Customer may employ our Service to provide gamified educational content, training, or interactive learning opportunities for the purpose of enhancing the skills, knowledge, or competencies of the Learner.

12. “Malicious Code” means code, files, scripts, agents, or programs intended to harm, including but not limited to, viruses, worms, time bombs, and Trojan horses. 

13. “Purchased Services” means Services that Customer or Customer’s Affiliate purchases, as distinguished from Free Services.

14. “Receiving Party” means the party that received Confidential Information from the other party.

15. “Service” means all products, services, and content (including but not limited to text, audio, video, and interactive content), that are availed by Customer or provided to Customer by Company.

16. “Site”https://www.gamitar.com/,https://evivve.com/, https://app.evivve.com/ and any other service, product, app, or website provided by the Company.

17. “You” or “Your” means Customer and/or Learner, as may be applicable depending upon the context in which it is used.

2. COMPANY’S RESPONSIBILITIES

   1. Provision of Purchased Services. The Company will:

      1. make the Services available to the Customer pursuant to this Agreement;

      2. use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for (i) planned or unplanned downtime, and (ii) any Force Majeure Event under the terms of this Agreement, and

      3. provide the Services in accordance with applicable laws and government regulations, and subject to use of the Services in accordance with this Agreement.

   2. Customer Data. The Company will maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Customer Data, as described in detail in Our Privacy Policy. Those safeguards include, but are not limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Company may, but has no obligation to, retain copies of Customer Data for a longer duration in accordance with the Privacy Policy. For more details on how the Company protects Customer Data, please refer to the Company’s Privacy Policy.

   3. Registration Data. Customer understands and agrees that the Company collects certain data about the Customer and Learners as described in the Privacy Policy. The Customer agrees to the collection of such data on its behalf and on behalf of its Learners. The Customer further understands and agrees that in the event that a Learner does not agree to provide such data, the Learner may not use the Services. The Company will not be liable or responsible for any failure to provide Services resulting from a Learner’s refusal to provide any data or information as described in the Privacy Policy.

   4. Company’s Personnel. The Company will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Company’s obligations under this Agreement, except as otherwise specified explicitly in this Agreement.

3. USE OF SERVICE 

   1. Usage Limits. The Company may place technical or non-technical limitations on the use of the Service(s) by Customer and Learner, including but not limited to features of the Services or as specified in the Service. Company shall not be liable for any loss or damage faced by You or any third party as a result of any technical or non-technical limitation, whether or not such limitation is explicitly mentioned above. Company may, where technically possible and feasible, offer to increase certain limits placed upon certain features and functionalities. Customer understands that Company may refuse to increase a limitation with or without for any reason at its sole discretion. Customer further understands that certain technical limitations cannot be increased as they may be beyond Company’s control or may require disproportionate effort.

   2. Marketing & Communications Consent
      By checking the given box on the Play Game form, the user consents to get communication from Gamitar Learning and Evivve and permits Gamitar Learning to take pictures/record the gameplay session and use it for learning, training, and marketing purposes. 

   3. Customer Responsibilities. You shall:

      1. be responsible and liable for Your conduct and breach of this Agreement by You, and if you are a company or any other entity You are also responsible and liable for the conduct of Your Learners and breach of this Agreement by Your Learners;

      2. be responsible for Your handling of Your data; 

      3. use commercially reasonable efforts to prevent unauthorized access to or use of Services, and promptly, but in no case later than 48 hours of gaining such knowledge, notify Company of any such unauthorized access or use;

      4. be solely responsible for ensuring that Your account is not used by or on behalf of any third-party without explicit written permission from Company;

      5. be solely responsible for compliance with any state or federal laws applicable to Customer’s use of the Service;

      6. provide true, accurate, and current information as requested by Company at any time, and promptly and regularly update Your information to maintain its accuracy and completeness, and to provide certificates. Company reserves the right to suspend or terminate Your account and refuse any and all current or future use of the Service, in whole or in part, by You for providing any information that is untrue, inaccurate, incomplete or not current;

      7. agree and acknowledge that Service(s) may contain features designed to interoperate with non-Company applications. Company cannot guarantee the continued availability of such features, and may cease providing them without notice, without assigning any reason and without entitling Customer to any refund, credit, or other compensation. We may, for example and without limitation, cease offering such a feature if the provider of a non-Company application ceases to make the non-Company application available for interoperation with the corresponding features in a manner acceptable to Company; and

      8. agree and acknowledge any use of the Services in breach of the foregoing by You that in Company’s judgment threatens the security, integrity, or availability of Company’s services, may result in Company’s immediate suspension of the Services; however, Company’s will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to any such suspension.

   4. Usage Restrictions. You shall not:

      1. share an account with any third party, share login credentials of an account with any third party, or use any third party’s account to access the Service;

      2. use a Service to store or transmit Malicious Code;

      3. interfere with or disrupt the integrity or performance of any Service or third-party data contained therein;

      4. misuse Services by interfering with their normal operation or attempting to access them using a method other than through the interfaces and instructions provided by Company;

      5. attempt to gain unauthorized access to any Service or its related systems or networks;

      6. attempt, permit, or undertake direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of Company’s intellectual property except as permitted under this Agreement;

      7. except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent; and

      8. engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. Company reserves the right to notify You of Your abusive or excessive usage to provide You with an opportunity to reduce such usage to a level acceptable to Company.

   5. Change to the Services. Company may add, alter, or remove features from any Service, at any time at its sole discretion. Company may limit, suspend or discontinue a Service at any time in its sole discretion. Provided, however, that no such addition, alteration, removal, limitation, suspension, or discontinuation, will result in an overall decrease in the functionality available to, and used by, Customer during the then ongoing term of this Agreement. Notwithstanding anything above, Company may undertake or implement any such alteration, removal, limitation, suspension, or discontinuation, if required for compliance with an applicable law, law enforcement, court order, third-party intellectual property rights, or other legal obligation. Where possible and feasible, Company will provide a reasonable notice of not less than two weeks for any such suspension or discontinuation.

   6. New Services. Company may introduce new products and services to complement Our existing Services. If such new services are not included in Your existing Purchased Services, Company reserves the right and sole discretion to decide whether or not the new services will be made available to Customer, whether or not such new services will be made available as part of Customer’s existing Subscription, and whether or not the availability of such new services shall be subject to payment of an additional charge. Customer may, at Customer’s sole discretion, choose to provide comments or feedback to Company. Company may, but shall have no obligation to, use the comments or feedback to improve Service(s) offered by Company. 

   7. Free Services. Company may provide Free Services to Customer, including but not limited to free trials of certain Services for the purpose of evaluation, subject to the terms and conditions of this Agreement.

      1. Free Services are provided without charge up to certain limits, and usage beyond those limits will require Customer to purchase additional resources or Services. Customer acknowledges that the provision of Free Services is subject to the limits placed upon them by the Company and agrees not to attempt to circumvent any such limits. During a free trial of a Service, any data entered into the Service and any customizations made to the Service by or for Customer will be permanently lost unless Customer purchases a subscription to the same Service covered by the trial, upgrades to applicable Services, or exports such data. Customer is solely responsible for exporting Customer data from Free Services before termination of access for any reason. Customer cannot transfer data or customizations made during the free trial to a Service that would be a downgrade from that covered by the trial; therefore, if Customer purchases a Service that would be a downgrade, Customer must export Customer data before the end of the trial period or the data will be irrecoverably lost. Customer should review the applicable Service's documentation during the trial period to become familiar with the features and functions of the Service before making a purchase. Company may terminate Customer's access to Free Services or any part thereof at any time without prior notice and without liability to Customer or any third party.

      2. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, FREE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AND COMPANY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. CUSTOMER AGREES THAT COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY KIND WITH RESPECT TO THE FREE SERVICES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. WITHOUT LIMITING THE FOREGOING, COMPANY AND ITS AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (a) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (b) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, OR (c) DATA OR INFORMATION PROVIDED BY THE COMPANY WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, THE CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF THE CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

      3. You acknowledge and agree that any termination of access to the Free Services may result in the loss of features or capacity of the Free Services. Company may modify or discontinue the provision of Free Services (or any part thereof) at any time without notice, and that Company shall not be liable to You or any third party for such modification or discontinuation. Company may, in its sole discretion, elect to provide You with an opportunity to retrieve data from the Free Services following any termination of the Free Services.

   8. Notice for this Section. For the purpose of this section, notices may be shown in the user interface of the Site, or sent to the contact information provided by You.

4. PAYMENT TERMS

   1. Fee. Except for the Free Services, Customer will pay all fees as specified by the Company on its Site. Except as otherwise agreed by and between parties, (i) fees are based on Services availed, and (ii) payment obligations are non-cancelable and fees are non-refundable.

   2. Change in Fee. Company may change the fees charged for the Services at any time, the change will become effective only at the end of the then-current billing cycle of Your Purchased Services. Company will provide You with reasonable prior written notice of any change in fees to give You an opportunity to cancel Your purchased Services before the price change becomes effective.

   3. Taxes. Company’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, goods and service, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Customer is responsible for paying all Taxes associated with its purchases hereunder.  If the Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless, prior to completing the purchase such as by making payment or clicking a button to finalize the order (for example, a button titled “Place Order” or “Make Payment”), Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, Company is solely responsible for taxes assessable against it based on its income, property, and employees.

5. PROPRIETARY RIGHTS AND LICENSES

   1. License by Company to Customer. Subject to Customer’s compliance with the terms and conditions of this Agreement, the Company hereby grants to Customer for the Term of this Agreement, a worldwide, non-exclusive, royalty-paid, non-transferable, and non-sublicensable, license to store, use, display, transmit, and perform the “Evivve” name and logo for the limited purpose of being shown on materials or services created using the Services or derived from the Services. Collectively, such materials or services created using the Services or derived from the Services are referred to in this clause as “Derivative Works”. All such Derivative Works must display the “Evivve” logo, must not remove any logo or mark provided by the Company or the Service, must display the words “Created using Evivve by Gamitar”, and must comply with the Company’s intellectual property guidelines (if any) as updated by the Company from time to time.

   2. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company, its Affiliates, its licensors and content providers reserve all of their rights, titles, and interests in and to the Services, logos, software, and other materials created by them, including all of their related intellectual property rights. Company owns all rights, titles, and interests in and to Company’s registered and unregistered, domestic and foreign trademarks, service marks, trademark applications, service mark applications, trade names, patents, patent applications, copyrights, copyright applications, discoveries, know-how and trade secrets of and relating to the Services. You agree not to remove and to always include any and all copyright and intellectual property notices attached to intellectual property owned by or otherwise licensed to You by Company, its Affiliates, its licensors and/or its content providers, including but not limited to all templates and learning materials. Except as otherwise provided explicitly in this Agreement, no one may copy, reproduce, transmit, post, distribute or create, derivative works from the Services without express, prior written authorization from Company. No rights are granted to You hereunder other than as expressly set forth herein.

   3. License by Customer to Company. Customer grants Company, and its Affiliates a worldwide, royalty-free, non-exclusive, limited license to host, copy, use, transmit, display and distribute any intellectual property as necessary to perform the obligations under this Agreement. Further, Customer grants Company a non-exclusive, worldwide, irrevocable, royalty-free right to use Customer’s name, logo, mark and/or testimonials in marketing materials, including but not limited to the Site.

   4. License by Customer and Learner to Use Feedback. Company may occasionally request feedback from You regarding Your use of the Service. You grant to Company, its Affiliates, assignees, subsidiaries, and successors a worldwide, perpetual, irrevocable, and royalty-free license to use and incorporate into its products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the operation of Company’s or its Affiliates’ services without any obligations to You, including but not limited to acknowledgement, limitation, or notice of any kind.

   5. Survival of Proprietary Rights and Licenses. Notwithstanding anything to the contrary in this Agreement, this Section 5 (“Proprietary Rights and Licenses”) shall survive any termination or expiry of this Agreement for the longest period permitted under applicable law.

6. CONFIDENTIALITY AND NON-DISCLOSURE

   1. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.  The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than a reasonable degree of care to: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have confidentiality obligations not materially less protective of the Confidential Information than those herein. Notwithstanding anything to the contrary above, Company may disclose: (a) the terms of this Agreement to a subcontractor or independent third-party service provider(s) to perform Company’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein; and/or (b) as required or permitted by Section 5.3 (“License by Customer to Company”), and/or Section 5.5 (“License by Customer to Use Feedback”).

   2. Compelled Disclosure.  Customer may disclose Confidential Information of the Company to the extent compelled by law, law enforcement, or a court order, to do so, provided that the Receiving Party gives: (a) prior notice of the compelled disclosure to the Disclosing Party (to the extent legally permitted); and (b) reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Company may disclose Confidential Information of the Customer to the extent compelled by law, law enforcement, or a court order, to do so. If the Receiving Party is compelled by law or a legal proceeding to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. 

7. REPRESENTATIONS AND WARRANTY DISCLAIMERS

   1. Representations. Each party represents that it has (i) no legal or contractual obligations that prevent it from entering into this Agreement; and (ii) the legal power to do so. Each individual executing this Agreement on behalf of a party hereby represents and warrants that it is authorized to do so on behalf of such party.

   2. Company Warranties. Company warrants that during an applicable subscription term (a) this Agreement will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s data, (b) Company will not materially decrease the overall security of the Services, (c) the Services will be provided in a workmanlike manner that conforms to the relevant, prevailing industry standard, and (d) Company will not decrease the overall functionality of the Services. For any breach of the warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund upon Termination” sections below.

   3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FREE SERVICES ARE PROVIDED “AS IS”, AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERROR-FREE, ACCURATE, OR RELIABLE.

8. INDEMNIFICATION

   1. Indemnity by Customer.  Customer will defend,  indemnify, and hold Company and its officers, directors, employees, consultants, sub-contractors and/or agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer’s: (i) breach of any of its obligations set forth in this Agreement; (ii) actual or alleged use of the Services in violation of this Agreement or applicable law by Customer or any Learner; or (iii) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data provided to Company by the Customer or otherwise added into the Service by the Customer or Learner. 

   2. Indemnification Procedures. Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim. Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.

9. LIMITATION OF LIABILITY

   1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, OR $125, WHICHEVER IS LOWER. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. GAMITAR’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT IS LIMITED TO DIRECT MONETARY DAMAGES. IN NO EVENT WILL GAMITAR BE LIABLE FOR PROVIDING SUBSTITUTE SERVICES.

   2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL GAMITAR, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS, OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICES (OR ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES): (1) FOR ANY LOST PROFITS, REVENUES, DATA, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, (2) FOR AN INABILITY TO USE THE SERVICE, OR (3) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), EVEN IF GAMITAR OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF THE ABOVE OR IF GAMITAR'S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS IN ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

   3. Essential Basis. CUSTOMER ACKNOWLEDGES THAT GAMITAR HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY AND THE SAME FORM AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THE PARTIES.

10. DISPUTE RESOLUTION

    1. Good Faith Consultation. The parties agree that they will attempt to resolve through good faith consultation, any dispute, claim, or controversy arising out of or in connection with this Agreement, the interpretation of this Agreement, the performance of obligations under this Agreement, the breach, termination, enforcement, or validity of this Agreement. The parties agree that such good faith consultation will begin promptly after either party has delivered a written request for such consultation to the other party. The parties shall engage in such consultation for a period of sixty (60) days from the date of the written request before proceeding to arbitration.

    2. Arbitration Agreement. In the event that any dispute, claim, or controversy arising out of or in connection with this Agreement, the interpretation of this Agreement, the performance of obligations under this Agreement, or the breach, termination, enforcement, or validity thereof is not resolved through good faith consultation, the Parties hereto agree to resolve such dispute exclusively through binding arbitration, rather than in court.

    3. Arbitration Procedure. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place, venue and seat of arbitration shall be Delaware, in United States of America. The proceedings shall be conducted in English. The arbitration shall be governed by the laws of the State of Delaware. The award shall be made within 12 months of the filing of the notice of intention to arbitrate (demand), and the arbitrator(s) shall agree to comply with this schedule before accepting appointment. However, this time limit may be extended by the arbitrator for good cause shown, or by mutual agreement of the parties.

    4. Class Action Waiver. The parties agree that the arbitration shall be conducted on an individual basis and not in a class, consolidated, or representative capacity. No arbitration shall be joined with any other arbitration, and the parties expressly waive their right to participate in a class action lawsuit or class-wide arbitration.

    5. Allocation of Costs and Fees. The parties shall bear their own costs and expenses related to the arbitration, including attorney's fees, and shall equally share the fees and expenses of the arbitrator and the venue, unless the arbitrator determines that it is appropriate to require one party to pay a greater portion or all of the fees and expenses.

    6. Time Limitation. Any claim or dispute subject to arbitration under this section must be filed within one (1) year after the claim or dispute arises, or it shall be forever barred, notwithstanding any statute of limitations or other law to the contrary. If any provision of this arbitration section is found to be unenforceable, the unenforceable provision shall be severed, and the remaining arbitration provisions shall be enforced in accordance with their terms.

    7. Exceptions to Arbitration. Nothing in this section shall prevent a party from seeking injunctive or other equitable relief from the courts as necessary to: (i) recover fees due under this Agreement; or (ii) protect the party’s confidential information, intellectual property rights, or any other proprietary rights. For clarification, this section does not preclude the Company from pursuing legal action against You in a court of competent jurisdiction for the recovery of any unpaid dues or outstanding amounts owed to the Company under the terms of this Agreement without pursuing arbitration.

11. TERM AND TERMINATION

    1. Term of the Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated by either party under the terms of this Agreement.

    2. Termination by the Company. Company may terminate this Agreement and/or Service(s) purchased under this Agreement for cause (a) upon 30 days written notice to Customer of a breach of this Agreement by Customer if such breach remains uncured at the expiration of such period, or (b) immediately upon sending a written notice if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors, or (c) upon 30 days written notice to Customer without assigning any reason.

    3. Termination by Customer. Customer may terminate this Agreement for cause (a) upon 30 days’ written notice to Company of a material breach of this Agreement by Company if such breach remains uncured at the expiration of such period, or (b) immediately upon sending a written notice if Company becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. 

    4. Refund Upon Termination. If this Agreement is terminated by Customer or Company in accordance with “Termination by Customer” or “Termination by Company” above, then Company shall refund to Customer any prepaid fees covering the remainder of the term after the effective date of termination on a pro-rated basis. Company shall have the right to deduct applicable taxes, payment processing fees and charges, and any other costs incurred by the Company from the refund provided to the Customer. In no circumstance shall Company be liable to refund any amount to Customer for termination of this Agreement or any Service by Customer except if such termination has been done by Customer or Company in accordance with “Termination by Customer” or “Termination by Company” above.

    5. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality and Non-Disclosure,” “Representations and Warranty Disclaimers,” “Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Dispute Resolution,” “Surviving Provisions,” “General Provisions,” and any other provisions of this Agreement that by their nature are intended to survive termination or expiration, will survive any termination or expiration of this Agreement for a period of three (3) years, except as otherwise provided in this Agreement or required by applicable law.

12. GENERAL PROVISIONS

    1. Modifications

       1. Modification of this Agreement. We reserve all rights to modify the Agreement at Our sole discretion from time to time. You shall be responsible for reviewing this Agreement from time to time for modifications. The last date of modification of this Agreement will be displayed on this page. We may, for Our convenience only and without waiving Your obligation to periodically review the Agreement, attempt to notify You of significant modifications to this Agreement through the Site, in an email notification, or through reasonable means. The modification will be in effect after the completion of fourteen (14) days from the date when the notification was posted or sent, except that the following categories of modification may be made effective immediately: (a) modifications required to provide new features without negatively affecting Your rights under this Agreement, (b) modifications made to correct typographical errors; and/or (c) modifications made to comply with legal obligations, including but not limited to Our or Your obligations under the Applicable Law. You understand and agree that Your registration on, or continued access or use of, the Site beyond the effective date of such modifications shall be deemed to be Your acceptance of all modifications. 

       2. Modification of Site. We may, from time to time, at Our sole discretion and without any notification, add new features, remove or stop offering old features, or modify existing features of the Site. 

    2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.  In the event of such termination, Company will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

    3. Force Majeure. Upon the occurrence of a Force Majeure Event, the parties agree to excuse performance under this Agreement and not hold the other liable for the delay in or failure of performance under this Agreement. Any such delay in or failure of performance shall not constitute a default or give rise to any liability for damages.

    4. Entire Agreement. This Agreement is the entire agreement between Company and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.  

    5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right unless otherwise agreed between the parties in writing

    6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

    7. Relationship of Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. 

    8. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law. The parties agree that: (i) any legal action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be brought exclusively in the state or federal courts located in, and each party hereby irrevocably consents to the jurisdiction and venue of any such court in any such action or proceeding; (ii) the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement; (iii) any legal action brought against the Customer for the recovery of any unpaid dues or outstanding amounts owed to the Company under the terms of this Agreement may be brought in a court of competent jurisdiction, notwithstanding any provision of this Agreement to the contrary; and (iv) any dispute, claim, or controversy arising out of or in connection with this Agreement, the interpretation of this Agreement, the performance of obligations under this Agreement, the breach, termination, enforcement, or validity of this Agreement, shall be subject to the dispute resolution procedures set forth in this Agreement.

    9. Contact Details. For any query or information in relation to the Agreement of Services, please contact us at legal@gamitar.com.