PLEASE BE AWARE THAT SECTION 15 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (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 (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.
PLEASE BE AWARE THAT SECTION 1.6 (GAMMA COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
1. USE OF THE SERVICES AND SERVICES. The Platform, the Site, the Services, and the information and content made available on the Site and through the Services (as these terms are defined herein) are the sole property of Gamma and its licensors.
1.1 License to the Services. Subject to your ongoing compliance with the Agreement, Gamma grants you a limited, non-exclusive, non-sublicensable and nontransferable license to access and use the Services in accordance with their designed functionality for your personal or internal business purposes. The Services consist of Gamma’s proprietary long-form visual documentation platform (the “Platform”) and certain tools and services associated therewith. In accordance with the functionality of the Services, you may be able to share certain Content (as defined below) with other Registered Users and use the Services to develop, modify, and improve such Content jointly (“Collaborate”).
1.2 Beta Products. Subject to your ongoing compliance with the terms of the Agreement, Gamma may permit you to sign up for a list of individuals (“Waitlist”) from which Gamma may select individuals to test certain trial or beta products or features, including the Beta version of the Platform (collectively, “Beta Products”) as such Beta Products may be offered by Gamma from time to time. In order to sign up for a Waitlist, you must connect a Third-Party Account (as defined below) and provide Gamma with (a) the e-mail address associated with such Third-Party Account and (b) certain information related to your use of the Beta Products. The decision to permit any user to test Beta Products is made in Gamma’s sole discretion, and signing up for a Waitlist does not guarantee that you will be permitted to test or otherwise given access to any Beta Products. You acknowledge that any Beta Products to which you are given access are in a beta stage of development, and you use any Beta Products at your own risk. If you are given access to Beta Products, you agree to provide Feedback (as defined below) to Gamma concerning the functionality and performance of the Beta Products from time to time as reasonably requested by Gamma, including, without limitation, identifying potential errors and improvements.
1.3 Updates. You understand that the Services are evolving. You acknowledge and agree that Gamma may update the Services, including Beta Products, with or without notice to you. You may need to update third-party software from time to time in order to use the Services.
1.4 Linking and Framing. Subject to your ongoing compliance with the terms of this Agreement, Gamma grants you a limited nonexclusive, nontransferable right to use framing technology or a text hyperlink on a third-party site to link to or otherwise connect the Platform for noncommercial purposes, provided that such link does not portray Gamma or our affiliates or any of our Services, Content, products or services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable in Gamma’s sole discretion. The limited rights granted in this section may be revoked at any time. You may not use a logo or other proprietary graphic of Gamma to link to the Platform or Content without our express written permission.
1.5 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion thereof, including the Site; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Gamma except as expressly permitted herein; (c) you shall not use any metatags or other “hidden text” using Gamma’s name or trademarks; (d) you shall not 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) you shall not 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 Site (except that we grant the operators of public search engines revocable 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 the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services. Any future release, update or other addition to Services shall be subject to the Agreement. Gamma, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Gamma Property terminates the licenses granted by Gamma pursuant to the Agreement.
1.6 Gamma 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 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 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 Gamma and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
2.1 Registering Your Account. In order to access certain features of the Services you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Site (“Account”).
2.2 Access Through a Third-Party Service. You may sign into or otherwise link your Account with an valid account that you hold through a compatible third-party service (“Third-Party Account”) by allowing Gamma to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of such Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Gamma and/or grant Gamma 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 Gamma to pay any fees or making Gamma subject to any usage limitations imposed by such third-party service providers. By granting Gamma access to any Third-Party Accounts, you understand that Gamma 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 Services (collectively, “Content”) that you have provided to and stored in your Third-Party Account so that it is available on and through Services via your Account, solely as permitted by the functionality of the Services and your permission settings in such Third-Party Account. Unless otherwise specified in the Agreement, all Content made available from or through your Third-Party Account shall be considered to be Your Content (as defined in Section 3.1 (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 Gamma’s access to such Third-Party Account is terminated by the third-party service provider, then any Content made available from or through such Third-Party Account may no longer be available on and through Services. You may have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing your settings within such Third-Party Account. 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 GAMMA 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. Gamma makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Gamma is not responsible for any SNS Content.
2.3 Registration Data. In registering an account on the Site, 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 sixteen (16) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using 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 may not share your Account or password with anyone, and you agree to notify Gamma immediately of any unauthorized use of your password or any other actual or suspected breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Gamma has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Gamma 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 or use Services if your Account has been previously removed by Gamma, or if you have been previously banned from any of the Services.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Gamma.
2.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Services, including but not limited to, a mobile device that is suitable to connect with and use 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 Services.
3.1 Types of Content. You acknowledge that all Content, including Services, is the sole responsibility of the party from whom such Content originated. This means that you, and not Gamma, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Services (“Your Content”), and that you and other Registered Users of the Services, and not Gamma, are similarly responsible for all Content that you and they Make Available through Services (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Gamma has no obligation to pre-screen Content (including, but not limited to, User Content), although Gamma reserves the right in its sole discretion to pre-screen, refuse or remove any Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content on or through the Services.
3.3 Storage. Unless expressly agreed to by Gamma in writing elsewhere, Gamma has no obligation to store any of Your Content that you Make Available on Services. Gamma has no responsibility or liability for the deletion 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 Gamma retains the right to create reasonable limits on Gamma’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 Site and as otherwise determined by Gamma in its sole discretion.
4.1 Services. Except with respect to Your Content and User Content, you agree that Gamma and its suppliers own all rights, title and interest in Services (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, audiovisual effects, methods of operation, moral rights, documentation, and Gamma software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
4.2 Trademarks. Gamma and all related graphics, logos, service marks and trade names used on or in connection with any Services or in connection with the Services are the trademarks of Gamma 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 Services are the property of their respective owners.
4.3 Your Content. Gamma does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in 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.
4.4 License to Your Content. Subject to any applicable account settings that you select, you grant Gamma a fully paid, royalty-free, perpetual, irrevocable, worldwide, 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 Services to you and to our other Registered Users. You further grant any Registered User with whom you choose to Collaborate a fully paid, royalty-free, revocable, worldwide, non-exclusive right and license to use, modify, adapt, publicly perform, and publicly display Your Content in accordance with your Account settings and the functionality of the Services. Please remember that any of Your Content that you submit to any “public” area of the Services may be visible to other Registered Users or other visitors to the Site. 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 Gamma, are responsible for all of Your Content that you Make Available on or in Services. Any Content posted by you may not contain content that violates Gamma’s Acceptable Use Policy, as determined by Gamma in its sole discretion.
4.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Gamma, whether through the Site or any other (“Feedback”) is at your own risk and that Gamma 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 Gamma 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 Gamma’s business.
5. USER CONDUCT. As a condition of use, you agree not to use 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) either (a) take any action or (b) Make Available any Content on or through 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, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane, each as determined in Gamma’s sole discretion; (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 Gamma’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Gamma; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses Services in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against 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 Services, introducing viruses, worms, or similar harmful code into 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” Services. You agree to comply with Gamma’s Acceptable Use Policy, as incorporated herein by reference and as may be updated from time to time.
6. MONITORING AND ENFORCEMENT. Gamma may, but is not obligated to, monitor or review Services and Content at any time. Although Gamma does not generally monitor user activity occurring in connection with Services or Content, Gamma 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 Gamma; (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 law enforcement, for any illegal or unauthorized use of the Services; 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.
7.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact on or through the Services; provided, however, that Gamma reserves the right, but has no obligation, to intercede in such disputes. You agree that Gamma will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users. Services may contain User Content provided by other Registered Users. Gamma is not responsible for and does not control User Content. Gamma has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
8.1 Fees. Certain products or services offered on or through the Services may be provided for a fee or other charge, including services or features for which access and use is purchased on a time limited basis (each a “Subscription” and the fee for such Subscription, the “Service Subscription Fee”). You agree to pay all fees or charges to your Account, including Subscription Service Fees, in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Gamma may add new products and services for additional fees and charges, or amend fees and charges for existing products and services, at any time in its sole discretion.
8.2 Free Trials and Other Promotions. Certain Subscription offerings may be available on a free trial basis (a “Free Trial”), the period of which will be communicated to you via the Services. Unless otherwise expressly set forth, your use of any such Subscription offerings will expire at the end of the Free Trial, and any further use of such offerings is prohibited unless you purchase a Subscription to such offerings. To the extent expressly indicated at the time of signing up for a Free Trial, your Free Trial will automatically convert to a paid Subscription and your Payment Provider will be charged for the applicable Subscription at the end of your Free Trial unless you cancel the Subscription in accordance with Section 8.1 before the Free Trial ends. If you fail to cancel the Subscription before the Free Trial ends, you will be responsible for payment for the full term of the Subscription period. Unless otherwise expressly stated, any free trial or other promotion that provides a registered user level access to the Services must be used within the specified time of the trial.
8.3 No Refunds. THERE ARE NO REFUNDS FOR ANY PRODUCTS OR SERVICES PURCHASED ON OR THROUGH THE SERVICES AND WE ARE NOT OBLIGATED TO PROVIDE ANY CREDITS FOR PARTIALLY USED SUBSCRIPTIONS.
8.4 Taxes. If at any point in the future, Gamma begins to charge a fee for any of its Services (“Fee(s)”) and Gamma determines it has an obligation to collect Sales Tax from you in connection with this Agreement, Gamma shall collect such Sales Tax in addition to the Fee(s). If any Services, or payments for any Services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Gamma, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant authority, and you will indemnify Gamma for any liability or expense Gamma may incur in connection with such Sales Taxes. Upon Gamma’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8.5 Withholding Taxes. You agree to make all payments of fees to Gamma free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Gamma will be your sole responsibility, and you will provide Gamma with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
8.6 Advertising Revenue. Gamma reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Gamma has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Gamma as a result of such advertising).
9. INDEMNIFICATION. You agree to indemnify and hold Gamma, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Gamma Party” and collectively, the “Gamma 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 use of, or inability to use, the Services, whether in whole or in part; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Gamma 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 Gamma in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Services.
10.1 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 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. GAMMA 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 SITE AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION BETA PRODUCTS.
(a) GAMMA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
(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. GAMMA MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
(d) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. GAMMA MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
(e) FROM TIME TO TIME, GAMMA MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT, INCLUDING BETA PRODUCTS. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT GAMMA’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
10.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT GAMMA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD GAMMA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT GAMMA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. GAMMA MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. GAMMA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICES.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL GAMMA 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 GAMMA 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 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 SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SERVICES; OR (e) ANY OTHER MATTER RELATED TO SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A GAMMA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A GAMMA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A GAMMA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, GAMMA PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO GAMMA BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A GAMMA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A GAMMA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A GAMMA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.4 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.
11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GAMMA AND YOU.
12. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Gamma’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Gamma 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 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 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 Gamma’s Copyright Agent for notice of claims of copyright infringement is as follows: Copyright Agent, Gamma Tech, Inc., 2261 Market Street #4544, San Francisco, CA 94114.
13.1 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 Services, unless terminated earlier in accordance with the Agreement.
13.2 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 will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
13.3 Termination of Services by Gamma. Gamma has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations shall be made in Gamma’s sole discretion and that Gamma shall not be liable to you or any third party for any termination of your Account.
13.4 Termination of Services by You. If you want to terminate the Services provided by Gamma, you may do so by closing your Account for all of the Services that you use.
13.5 Effect of Termination. Termination of any Service may include removal of access to such Service and barring of further use of the Service. Termination of all Services also may include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of the Services may involve deletion of Your Content associated therewith from our live databases. Gamma will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13.6 No Subsequent Registration. If your registration(s) with, or ability to access, Services or any other Gamma community, is discontinued by Gamma due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the Services as determined in Gamma’s sole discretion, then you agree that you shall not attempt to re-register with or access any of the Services through use of a different email account or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Gamma 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.
14. INTERNATIONAL USERS. 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 Gamma intends to announce such Services or Content in your country. Services are controlled and offered by Gamma from its facilities in the United States of America. Gamma makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.
15. DISPUTE RESOLUTION. Please read this Arbitration Agreement carefully. It is part of your contract with Gamma and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
15.1 Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the Services that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Gamma, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement.
15.2 Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Gamma should be sent to the contact information provided in Section 16.9 (Notice). After the Notice is received, you and Gamma may attempt to resolve the claim or dispute informally. If you and Gamma do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
15.3 Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Gamma made to you prior to the initiation of arbitration, Gamma will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
15.4 Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
15.5 Time Limits. If you or Gamma pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
15.6 Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Gamma, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and this Agreement. 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Gamma.
15.7 Waiver of Jury Trial.THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Gamma in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND GAMMA WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
15.8 Waiver of Class or Consolidated Actions.ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
15.9 Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
15.10 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
15.11 Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
15.12 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Gamma.
15.13 Small Claims Court. Notwithstanding the foregoing, either you or Gamma may bring an individual action in small claims court.
15.14 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
15.15 Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
15.16 Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the State and Federal courts located within San Francisco County, California, for such purpose.
15.17 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 the contact information provided in Section 16.9 (Notice) within 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 Gamma 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 this 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.
16.1 Electronic Communications. The communications between you and Gamma may take place via electronic means, whether you visit Services or send Gamma e-mails, or whether Gamma posts notices on Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Gamma in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Gamma 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”).
16.2 Release. You hereby release Gamma Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Users or third-party sites of any kind arising in connection with or as a result of the Agreement or your use of the Services. 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 Gamma Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Site or any Services provided hereunder.
16.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Gamma’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Gamma may freely assign this Agreement and its rights and obligations hereunder without notice to you.
16.4 Force Majeure. Gamma 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. If a force majeure event occurs that affects Gamma’s performance of its obligations under the Agreement: (a) Gamma will contact you as soon as reasonably possible to notify you; and (b) Gamma’s obligations under the Agreement will be suspended and the time for Gamma’s performance of its obligations will be extended for the duration of the force majeure event. You may cancel any Services materially impacted by a force majeure event which has continued for more than 30 days. To cancel please contact Gamma.
16.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at the address provided in Section 16.9 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.
16.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Gamma 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, California.
16.7 Governing Law and Jurisdiction. 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.
16.8 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
16.9 Notice. Where Gamma requires that you provide an e-mail address, you are responsible for providing Gamma with your most current e-mail address. In the event that the last e-mail address you provided to Gamma is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Gamma’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Gamma at the following address: Gamma Tech, Inc., 2261 Market Street #4544, San Francisco, CA 94114. Such notice shall be deemed given when received by Gamma by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.10 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.
16.11 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.
16.12 Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, 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 Services, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use 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 Gamma 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 Gamma products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.13 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.
16.14 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.
17. INTERNATIONAL PROVISIONS. The following provisions shall apply only if you are located in the countries listed below.
17.1 United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
17.2 Germany. Notwithstanding anything to the contrary in Section 11 (Limitation of Liability), Gamma is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).