IF YOU SUBSCRIBE TO ANY FEATURE OR FUNCTIONALITY OF THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT GAMMA’S THEN-CURRENT FEE FOR SUCH FEATURES AND FUNCTIONALITY UNLESS YOU OPT OUT OF THE AUTOMATIC RENEWAL OF SERVICE TERM / DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 9.3(b) (AUTOMATIC RENEWAL) BELOW.
SECTION 16 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND GAMMA. AMONG OTHER THINGS, SECTION 16 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 16 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 16 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 16) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 16.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE BE AWARE THAT SECTION 1.7 (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.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control to the extent of the conflict, solely with respect to such Service. These Terms and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY GAMMA IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Gamma will make a new copy of these Terms Agreement available at the Site and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site. We will also update the “Last Updated” date at the top of these Terms. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
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 this 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 this 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 Use of AI. Our Service may utilize certain publicly available artificial intelligence platforms, algorithms and models (“Third Party AI”) to generate certain responses, templates, suggestions, drafts, materials and results (collectively, “Results”) based on the queries or other inputs entered by the user (a user’s “Inputs”). You acknowledge that any Results are intended to assist users in generating initial drafts of their presentations, and are not intended as any final, definitive or comprehensive presentation of any particular topic, idea or other Input. In addition, you acknowledge that the Results are based on your Inputs, as well as Third Party AI and information, and that Gamma has no control over any such Inputs, Third Party AI or information. Accordingly, all Results are provided “as is” and with “all faults”, and Gamma makes no representations or warranties of any kind or nature with respect to any Results, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. Furthermore, Gamma will have no liability for the unavailability of any Third Party AI, or any third-party’s decision to discontinue, suspend or terminate any Third Party AI.
1.4 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.
1.5 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.
1.6 Certain Restrictions. The rights granted to you in this 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 this Agreement. Gamma, its suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of any Gamma Property terminates the licenses granted by Gamma pursuant to this Agreement.
1.7 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 this 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 this 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 this 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”). Your Content may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Gamma in its sole discretion.
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 sufficient rights to Your Content to grant the license set forth in Section 4.4 (License to 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 Third-Party Websites, Applications and Ads. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”) (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and you become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Gamma. Gamma is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Gamma provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 Sharing Your Content and Information Through Third-Party Services. Gamma may provide tools through the Services that enable you to export information, including Your Content, to Third-Party Services, including through features that allow you to link your Account with a Third-Party Account, or through our implementation of third-party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Gamma may transfer that information to the applicable Third-Party Service. Gamma is not responsible for any Third-Party Service’s use of your exported information.
9.2 Payment. You shall pay all fees or charges (“Fees”) to your Account in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. You must provide Gamma and/or our Third-Party Service Provider with accurate and up-to-date payment information, as a condition to purchasing the Service. Your agreement with your payment provider (e.g., card-issuing bank, PayPal, etc.) (each, a “Payment Provider”) governs your use of your payment method, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Gamma and/or our Third-Party Service Provider with your payment information, you agree that Gamma and/or our Third-Party Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Gamma hereunder and that no additional notice or consent is required. You shall immediately notify Gamma of any change in your payment information to maintain its completeness and accuracy. Gamma reserves the right at any time to change its prices and billing methods in its sole discretion. You will not be charged a higher Fee without notifying you of any changes to the Fees. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Gamma and/or our Third-Party Service Provider or our inability to collect payment from your Payment Provider constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Service are non-refundable.
9.3 Subscriptions. If you purchase access to certain features and functionality of the Services on a time-limited basis (a “Subscription”), the Fee for such Subscription will be billed at the start of the Subscription and at regular intervals in accordance with your elections at the time of purchase. Gamma reserves the right to change the timing of our billing. Gamma reserves the right to change the Subscription pricing at any time. If changes to the Subscription price occur, Gamma will use commercially reasonable efforts to update you. Any such changes shall be effective immediately. If you do not agree with such changes, you may cancel your Subscription as set forth in Section 9.3(b)(i) (Cancelling Subscriptions Purchased via Gamma).
(a) Service Subscription Fees. You shall be responsible for payment of the applicable Subscription fee for each Service (each, a “Service Subscription Fee”) at the time you create your Account and select your payment package (each, a “Subscription Service Commencement Date”). Gamma is not obligated to provide the Services to you until Gamma accepts your order by a confirmatory email or other appropriate means of communication.
(b) Automatic Renewal. If you purchase a Subscription, your Subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial Subscription period, and again after any subsequent Subscription period, your Subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Gamma’s then-current price for such Subscription. You agree that your Subscription is subject to this automatic renewal feature unless you cancel your Subscription as set forth below in subsection 9.3(b)(i) (Cancelling Subscriptions Purchased via Gamma). If you elect to purchase a Subscription from Gamma, then by subscribing, you authorize Gamma to charge your Payment Provider now, and again at the beginning of any subsequent Subscription period. Upon renewal of your Subscription, if Gamma does not receive payment from your Payment Provider, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that Gamma may either terminate or suspend your Subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).
(i) Cancelling Subscriptions Purchased via Gamma. If you purchased your Subscription directly from Gamma, you may cancel your Subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Gamma that your Subscription will be automatically renewed, you will have thirty (30) days from the date of Gamma’s notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your Subscription, you must contact Gamma at [email protected], or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page.
(ii) Effect of Cancellation. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the Service Subscription Fee paid for the then-current Subscription period.
9.4 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 9.3 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.
9.5 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.
9.6 Taxes. The Fees do not include any Sales Tax (defined below) that may be due in connection with the Services provided under this Agreement. If Gamma determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Gamma shall collect such Sales Tax in addition to the Fees. If any Services, or payments for any Services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Gamma, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall 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.
9.7 Withholding Taxes. You shall 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 shall be your sole responsibility, and you shall 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.
9.8 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).
10. 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.
11.1 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) ANY ADVICE OR INFORMATION PROVIDED THROUGH THE SERVICES IS NOT INTENDED TO CONSTITUTE LEGAL ADVICE, ACCOUNTING ADVICE OR ANY OTHER ADVICE OF A PROFESSIONAL NATURE. ANY INFORMATION PROVIDED THROUGH THE SERVICES SHOULD NOT BE USED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE. YOU SHOULD ALWAYS CONSULT YOUR OWN ATTORNEY, ACCOUNTANT OR OTHER APPLICABLE PROFESSIONAL FOR ADVICE BEFORE MAKING IMPORTANT PERSONAL OR PROFESSIONAL DECISIONS. YOUR RELIANCE ON THE ADVICE OR INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK.
(f) 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.
11.2 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.
11.3 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.
11.4 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Gamma to monitor such materials and that you access these materials at your own risk.
12.1 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 THIS 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.
12.2 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.
12.4 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.
12.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GAMMA AND YOU.
13. 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.
14.1 Term. This 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 this Agreement.
14.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that this Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted this Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with this Agreement.
14.3 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.
14.4 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.
14.5 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.
14.6 No Subsequent Registration. If this Agreement is terminated for cause by Gamma or if your Account or ability to access the Services, is discontinued by Gamma due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, 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.
15. 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.
16. ARBITRATION AGREEMENT. Please read this section (the “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.
16.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Gamma agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Gamma may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Gamma may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
16.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Gamma. If that occurs, Gamma is committed to working with you to reach a reasonable resolution. You and Gamma agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Gamma therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Gamma that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email address] or regular mail to our offices located at [Gamma Tech, Inc., 2261 Market Street #4544, San Francisco, CA 94114]. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
16.3 Waiver of Jury Trial. YOU AND GAMMA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Gamma are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.4 Waiver of Class and Other Non-Individualized Relief. YOU AND GAMMA AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 16.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 16.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Gamma agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Gamma from participating in a class-wide settlement of claims.
16.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Gamma agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Gamma otherwise agree, or the Batch Arbitration process discussed in Section 16.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Gamma agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
16.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 16.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
16.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 16.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 16.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 16.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 16.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 16.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
16.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Gamma need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
16.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Gamma agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Gamma by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Gamma.
You and Gamma agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
16.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [email protected], within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of 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.
16.11 Invalidity, Expiration. Except as provided in Section 16.4 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Gamma as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
16.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Gamma makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Gamma at [email protected], your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Gamma will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
17.1 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”).
17.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Gamma’s prior written consent. Gamma may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3 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 this Agreement: (a) Gamma will contact you as soon as reasonably possible to notify you; and (b) Gamma’s obligations under this 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.
17.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at the address provided in Section 17.8 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.
17.5 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 this Agreement will be litigated exclusively in the state or federal courts located in San Francisco County, California.
17.6 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 THIS AGREEMENT.
17.7 Choice of Language. It is the express wish of the parties that this 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.
17.8 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 this 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.
17.9 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.10 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.
17.11 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.
17.12 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.
17.13 Entire Agreement. This 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.
18. INTERNATIONAL PROVISIONS. The following provisions shall apply only if you are located in the countries listed below.
18.1 United Kingdom. A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
18.2 Germany. Notwithstanding anything to the contrary in Section 12 (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).