Gather Terms of Service
Effective October 13, 2023
This Gather Terms of Service (this “Agreement”) is a binding contract for a license to software and services between you (“Customer” or “you”) and Gather Presence, Inc. (“Gather” or “we”), a Delaware corporation with offices in San Francisco, CA. This Agreement contains, among other things, warranty disclaimers, liability limitations and use limitations. The Platform (as defined below), the website located at https://www.gather.town (the “Site”) and any ancillary services performed by Gather for Customer are collectively referred to as the “Services”.
Gather is a software as a service-based platform (the “Platform”) that enables customers to build customized Virtual Spaces (as defined in Section 2.1) and host events in those spaces or use them on a subscription basis. Gather offers the Platform with limited features for free, and we charge a fee for other uses of the Platform (the fee varies based on factors such as time and other features). We also make subscriptions of the Platform available for ongoing use.
Some ideas for Virtual Spaces include office spaces, academic conferences, holiday parties, life theaters and any event where serendipitous interactions and hallway conversations in a creative and fun environment are valued. While Gather does not offer any direct assistance in building or customizing Virtual Spaces, it does provide a list of third parties that we call “ambassadors” who might be able to help – you can find them here.
Please contact Gather at support@gather.town with any issues related to this Agreement. Please contact legal@gather.town with any legal notices related to this Agreement. By accessing or using the Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by this Agreement and to the collection and use of your information as set forth in our Privacy Policy available here and our Data Processing Agreement (“DPA”) available here, whether or not you are a registered user of our Service.
1. SERVICES, SUPPORT, AND DEFINITIONS
1.1. Important Definitions.
“Confidential Information” means any information, documents or data disclosed by either party that is marked or otherwise designated as confidential or proprietary. Confidential Information shall also include such information and data that should be reasonably known to be confidential. However, “Confidential Information” will not include any information which (i) is in the public domain through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Confidential Information includes proprietary elements of the Platform but does not include any Customer Content created in connection with a Virtual Space.
“Customer Content” includes any content and data provided by or on behalf of a Customer and any Authorized Users in relation to the access or use of the Services. Customer Content is not classified as Confidential Information as defined below.
“Equipment” means all equipment and ancillary services needed to be compatible with, connect to, access or otherwise use the Service, including, without limitation, hardware, servers, software, operating systems, networks, and other services.
1.2. Services.
1.2.1. If your organization is being set up by someone who is not formally affiliated with a business entity or other organization, Customer is the individual creating the organization. If you signed up for a subscription plan using your corporate email domain or are otherwise entering into a subscription plan on behalf of a business entity or other organization, the business entity or other organization on whose behalf you signed up is the Customer. By signing up on behalf of your business entity or other organization, you represent and warrant that you have all right, power, and authority to bind such entity or organization to this Agreement.
1.2.2. Individuals authorized by Customer to access the Services (each an “Authorized User”) may submit Customer Content or information to the Services, and you will have the sole right and responsibility for managing your use of it. Customer will be solely responsible for all of the acts and omissions of its Authorized Users in relation to the Services and this Agreement. The Services are not intended for and should not be used by anyone under the age of 18. Customer must ensure that all Authorized Users are over 18 years old.
1.2.3. Customer will inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Content. By submitting, posting, storing, or otherwise making such Customer Content available through the Services, Customer grants, and represents and warrants that it has all rights necessary to grant (including without limitation any necessary consents and authorizations from individual persons identified in the Customer Content and licenses from third-parties whose content is included in the Customer Content), to Gather a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, publish, list information regarding, translate, distribute, publicly perform, publicly display, and make derivative works of all such Customer Content, and the names, voice, and/or likeness contained in the Customer Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, solely for use in connection with our provision of the Services as described in this Agreement and our product documentation.
1.2.4. To the extent permitted under applicable law, we take no responsibility and assume no liability for any Customer Content that Customer or any Authorized User or third-party submits, posts, or otherwise makes available through the Services. As between Customer and us, Customer shall be fully responsible for the Customer Content and the consequences of submitting, posting, or otherwise making it available via the Services, and Customer acknowledges and agrees that we are acting only as a passive conduit for Customer’s and its Authorized Users’ online distribution of such Customer Content.
1.3. Customer Support.
Gather will use commercially reasonable efforts to provide support in connection with the Services during standard business hours through electronic mail, online resources, or otherwise in accordance with its standard practices (“Customer Support”). Customer Support is available Monday-Friday during standard support hours of 8:00 AM to 6:00 PM PST (Pacific Standard Time, United States). Customer Support issues may be communicated via e-mail to support@gather.town or by sending a message on Gather’s Help Page here. Gather does not typically offer Service Level Agreements (“SLAs”). Contact Customer Support for more details or requests for SLAs.
1.4. Modification Of Services.
Gather is continually modifying the Services to improve them. You acknowledge that Gather may modify the Services at its sole discretion at any time, and your only remedy for modifications that you don’t like is to stop using the Services.
2. ACCESS TO SERVICES, CONTENT, USE AND RESTRICTIONS
2.1. Customer Access to Services.
To access the Services, you must either create an account, create a virtual space within Gather (“Virtual Space”), or enter a previously created Virtual Space. We offer some usage guidelines in our Help Center, and strongly recommend you spend some time there to maximize the quality of your Gather experience. If Customer creates a Virtual Space, Customer assumes sole responsibility to ensure that only Authorized Users will be invited to its Virtual Space and permitted to access the Services and acknowledges that Gather may refuse access to Virtual Spaces or cancel accounts in its reasonable discretion. Gather may also suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, (ii) due to unavailability of services (including network and hosting services) provided by a third-party service provider, or (iii) in the event Customer is in material breach of this Agreement, including failure to pay any amounts due to Gather.
2.2. Customer Content and Data.
2.2.1 As between the parties, Customer owns Customer Content and Customer assumes sole responsibility for all Customer’s activity in connection with the Services, such as uploading Customer Content onto the Platform. By agreeing to this Agreement, Customer agrees to provide Gather with a license to use Customer Content uploaded to the Platform only as necessary to provide the Services. Further, Customer acknowledges and agrees that we may collect data relating to Customer’s and its Authorized Users’ usage of the Services, including but not limited to how the Services are accessed and used (“Usage Data”) and collect, analyze, and use data derived from Customer Content that has been aggregated and/or anonymized such that it does not identify Customer or any identifiable individual person (“Derivative Data” and, collectively with Usage Data, “Gather Data”). All Gather Data will be owned solely and exclusively by us and, for purposes of clarity, you agree that we may use the Gather Data in perpetuity for any purpose permitted by applicable law.
2.2.2. Gather makes no representations or warranties as to the privacy of interactions in a Virtual Space or Customer Content created within or uploaded to a Virtual Space. By using the Services, you understand and acknowledge that your personal information will be collected, used and disclosed as set forth in our Privacy Policy. The privacy of a meeting depends on the conversation controls set by the Customer.
2.2.3. We care about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
2.2.4. If you would like assistance in creating a private meeting space, please contact support@gather.town. Gather processes personal data in connection with data protection laws and its DPA can be found here. You may request a countersigned version of the DPA but Gather will not negotiate its terms.
2.3. Customer Use of Services.
Customer shall use the Services in compliance with all applicable laws and regulations, including without limitation those related to data privacy, international communications, intellectual property, export and the transmission of technical or personal data, consumer and child protection, obscenity or defamation. Gather is not intended for children and you may not permit a child under the age of eighteen to access the Platform or Services.
2.4. Customer Use Restrictions.
2.4.1. Customer agrees that it shall not (and shall not knowingly permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of an unauthorized third party; (v) remove or otherwise alter any proprietary notices or labels from the Services, or any portion thereof; or (vi) use the Services to build an application, product or service that is competitive with any Gather product or service.
2.4.2. Customer agrees that it shall not (and shall not knowingly permit any third party to) take any action (including uploading, downloading, posting, submitting or otherwise distributing or facilitating distribution of any material through the Services) that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (iv) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Gather or any third party; or (v) impersonates any person or entity, including any employee or representative of Gather.
2.4.3. Customer agrees that it shall not: (i) interfere or attempt to interfere with the proper working of the Services or any activities conducted in connection with the Services; or (ii) bypass any measures Gather may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services).
2.4.4. If Customer creates a Virtual Space, Customer is responsible for ensuring that any user that interacts within that Virtual Space is fully informed about any Customer data privacy practices (not limited to obligations related to third party scripts for analytics or tracking or other tracking measures implemented by Customer). Moreover, Customer agrees that, where required by applicable privacy laws and regulations, Customer will ensure that it obtains all necessary consents, and provides all necessary notices, for the collection or processing of personal data under any applicable data privacy laws.
3. SECURITY AND CONFIDENTIALITY
3.1. Security Practices.
Throughout the term of this Agreement and at all times while Customer Confidential Information is in the possession or under the control of Gather, Gather shall establish and maintain commercially reasonable administrative, technical and physical policies, procedures and safeguards that are designed for the protection of Customer Confidential Information. Gather’s data security program is designed specifically to (i) ensure the security, integrity, availability and confidentiality of Customer’s Confidential Information, (ii) protect against any anticipated threats or hazards to the security or integrity of Customer’s Confidential Information, and (iii) protect against the destruction, loss, unauthorized access to or alteration of Customer’s Confidential Information.
3.2. Customer Security Responsibilities.
Customer is responsible for (i) obtaining and maintaining any Equipment, (ii) maintaining the confidentiality and security of their Equipment, account information and credentials (“Security Credentials”), and (iii) all activities that occur using their Security Credentials unless due to the negligence or willful misconduct of Gather or its personnel. Customer may not disclose its Security Credentials to any third party except as expressly authorized in writing by Gather. Customer agrees to promptly notify Gather of any unauthorized use of its Security Credentials, account or any other breach of security. Gather reserves the right to access a Customer account in order to respond to requests for technical support. Gather shall comply with the security obligations of Section 3.1 while performing technical support obligations.
3.3. Customer Content and the Services.
You understand that certain portions of the Services, including but not limited to the Virtual Spaces, may allow users to view, edit, share, and/or otherwise interact with your Customer Content. By providing or sharing Customer Content through the Services, you agree to allow others to view, edit, share, and/or interact with Customer Content in accordance with this Agreement. Gather has the right (but not the obligation) in its sole discretion to remove any Customer Content that is shared via the Services. YOU AGREE THAT YOU WILL NOT SHARE OR MAKE PUBLIC ANY CUSTOMER CONTENT YOU WISH TO KEEP CONFIDENTIAL AND PROPRIETARY. GATHER TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY CUSTOMER CONTENT THAT YOU OR ANY OTHER USER OR THIRD PARTY POSTS, SENDS, OR OTHERWISE MAKES AVAILABLE OVER THE SERVICES. YOU SHALL BE SOLELY RESPONSIBLE FOR THE CUSTOMER CONTENT AND THE CONSEQUENCES OF POSTING, PUBLISHING IT, SHARING IT, OR OTHERWISE MAKING IT AVAILABLE ON THE SERVICES, AND YOU AGREE THAT GATHER IS ONLY ACTING AS A PASSIVE CONDUIT FOR YOUR ONLINE DISTRIBUTION AND PUBLICATION OF THE CUSTOMER CONTENT.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. As between the parties, Gather retains all right, title, and interest in and to the Services and the Platform, and any intellectual property rights thereto. As between the parties, Customer retains all right, title, and interest in and to the Customer Content and any intellectual property rights thereto.
4.2. Customer and its Authorized Users may choose to, or we may invite them to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation, whether to Customer, the Authorized User, or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of the submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than Customer or its Authorized Users.
4.3. Customer grants Gather the right to use Customer’s name and logo on Gather’s website, earnings releases, or marketing or promotional materials, identifying Customer as a user of the Services, subject to any standard usage guidelines Customer’s marketing team expressly provides to Gather.
5. FEES; TERM; TERMINATION
5.1. Fees
If Customer purchases any premium features, Customer will pay any applicable fees set forth on Gather’s pricing page, including any sales or value added taxes, if applicable. If Customer pays any fees through a third-party payment processor, it also agrees to any terms set forth by that payment processor. Undisputed unpaid invoices are subject to a finance charge of the lesser of 1.5% per month or the maximum interest rate allowable by applicable law on any outstanding balance.
5.2. Term.
A subscription allows Customer and its Authorized Users to access the Services. A subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each an “Order Form”). Subscriptions commence when we make them available to Customer and continue for the term specified in the Services or in the Order Form, as applicable (the “Term”). If Customer has a subscription for the Services, said subscription shall auto-renew immediately upon the end date of the Term. For purposes of example only, if a Customer has an annual subscription, the subscription shall auto-renew for the same term length on the anniversary of the Term. If a Customer has a multi-month subscription term, then the subscription shall auto-renew for the same term length at the end of the Term. If Customer notifies Gather in writing of its request to cancel the renewal subscription prior to its auto-renewal date, then Customer subscription shall not be auto-renewed.
5.3. Termination.
Gather may terminate or suspend Customer’s access to Services if any invoice is not paid within thirty (30) days. Customer may terminate this Agreement by canceling the Services in writing to support@gather.town and such termination will take effect at the end of the then-current billing cycle. Either party may terminate this Agreement upon fifteen (15) day notice if the other party materially breaches any warranties under this Agreement. Regardless of how this Agreement is terminated, Customer agrees to pay any outstanding balances that are due and payable (including any minimum commitments established by a Gather Order Form) and under no circumstances will Gather issue a refund for prepaid Services. In any case, all sections of this Services Agreement which by their nature should survive termination will survive termination.
5.4. Return of Customer Content.
Upon termination, Gather reserves the right (but incurs no obligation) to delete any Customer Content contained with a Virtual Space, or any Virtual Space itself. Customer may delete Customer Content itself at any time.
5.4. Survival.
Any section of this Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive.
6. DMCA.
6.1. Since we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
6.2. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
6.2.1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
6.2.2. Identification of the copyrighted work that you claim has been infringed;
6.2.3. Identification of the material that is claimed to be infringing and where it is located on the Services;
6.2.4. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
6.2.5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6.2.6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
6.3. The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Gather Presence, Inc.
2261 Market Street, #4095
San Francisco, CA 94114
Tel.: (408) 475-6390
Email: legal@gather.town
6.4. UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
6.5. Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
6.6. In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, Customers and Authorized Users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Services and/or terminate subscriptions of any Customer or Authorized User who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
7. WARRANTY AND DISCLAIMER
7.1. Each party represents and warrants to the other that: (i) it has full power and authority to grant rights or undertake obligations related to this Agreement, (ii) it has no outstanding obligations that conflict with this Agreement, and (iii) this Agreement, when signed by its duly authorized representative, constitutes a valid and legally binding obligation on that party that is enforceable in accordance with the terms of this Agreement.
7.2. Customer represents and warrants that (i) it will not violate any third-party data privacy rights in a Virtual Space; (ii) it will comply with all laws and regulations in the use of the Services; and (iii) it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Agreement.
7.3. EXCEPT FOR ANY WARRANTIES EXPLICITLY GRANTED IN THIS SECTION 7, GATHER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GATHER DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED UNINTERRUPTED OR ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. GATHER PROVIDES THE SERVICES “AS IS” AND ON AN “AS AVAILABLE” BASIS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THIS AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8. INDEMNIFICATION
8.1. Gather agrees, at its own expense, to indemnify, defend and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any third party intellectual property right, provided that Customer (i) promptly notifies Gather in writing of any such suit, claim or proceeding, (ii) allows Gather, at Gather’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Gather all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Gather’s written consent. The foregoing obligations do not apply with respect to the Services or components thereof (a) not supplied by Gather, (b) made in whole or in part in accordance to Customer specifications, (c) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Gather’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
8.2. Customer agrees, at its own expense, to indemnify, defend and hold Gather harmless against any suit, claim or proceeding brought against Gather in connection with any third-party demand, claim, action, suit or proceeding that arises from an alleged violation of Customer obligations and use restrictions in Section 2.4 or any warranty in Section 7.2 or any violations of applicable law.
8.3. Each party’s indemnification obligations are conditioned upon the indemnified party: (i) promptly notifying the indemnifying party of any claim in writing; and (ii) cooperating with the indemnifying party in the defense of any claim. The indemnified party shall have the right to participate in the defense of any third-party claim with counsel selected by it subject to the indemnifying party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the indemnified party. Notwithstanding any other provision of this Agreement, the indemnifying party shall not enter into settlement of any third-party claim without the prior written consent of the indemnified party, which shall not be unreasonably withheld.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
9.2. IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3. The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement and the pricing for the Services.
9.4. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. MISCELLANEOUS
10.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2. This Agreement is not assignable, transferable or sublicensable by either party except with the other’s prior written consent, except that either party may transfer and assign any of its rights under this Agreement without consent in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of its voting securities or assets.
10.3. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
10.4. Gather may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change this Agreement in a material manner, we will update the ‘last modified’ date at the top of this page. Your continued use of the Services after any such change constitutes your acceptance of the new Agreement. If you do not agree to any of these terms or any future Agreement, do not use or access (or continue to access) the Services.
10.5. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Gather in any respect whatsoever.
10.6. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.7. The parties agree that any material breach of Section 2 or 3 may cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in addition to any other relief to which the owner of such Confidential Information may be entitled.
10.8. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions or the United Nations Convention on the International Sale of Goods. The federal and state courts sitting in San Francisco, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Notwithstanding the preceding sentences with respect to the substantive law of this Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
10.9. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. EACH PARTY ALSO HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THE AGREEMENT.
10.10. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM US. For any dispute with us, you agree to first contact us at legal@gather.town and attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to the Agreement, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in San Francisco County, California, unless we agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
10.11. If you are a California resident, in accordance with Cal. Civ. 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 or (916) 445-1254.