Gigs Terms of Service

Appendices

1. Background

Agreement. This Agreement (as defined below) is between the Gigs entity (“Gigs” or “Company”) and you or the organization on whose behalf you are accepting or otherwise agreeing to the terms of this Agreement (“you,” “your,” “yours,” or "Partner”), in each case as identified on the applicable Order Form. This Agreement includes (i) these Gigs Terms of Service (including all applicable exhibits (“Gigs TOS”), (ii) any linked or other documents incorporated by reference, and (iii) your applicable Order Form(s), and describe the terms and conditions for your use of the Services (collectively, the “Agreement”). This Agreement is effective as described in your first Order Form, or upon the date when you first access or use the Services (“Effective Date”).
Order Forms. Gigs and Partner may execute one or more Order Forms in relation to the Services.
Applicable Terms; Order of Precedence; Updates. Gigs reserves the right to update or modify these Gigs TOS at any time in Gigs’ sole discretion. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Any changes will become effective when posted. The current version of these Gigs TOS will always be available at https://gigs.com/legal/terms-of-service-partner. Your continued use of the Services constitutes your acceptance of the updated Gigs TOS. The updated version of these Gigs TOS supersedes all prior versions. If you do not agree to the updated version of these Gigs TOS, you must stop using the Services. Additionally, you should visit the URL noted above for the Gigs TOS frequently to see if there have been any updates.

2. Services

Right to Access and Use; End User Terms. Subject to the terms of this Agreement, Gigs hereby grants to the Partner a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable right to access and use the Services in the Territory during the applicable term. Any End Users are also required to accept the End User Terms prior to use, as further set forth in Section 2(f) below. Partner will cooperate with Gigs to ensure End Users’ acceptance of and use in accordance with the End User Terms. You agree that Gigs may contact End Users as reasonably necessary to notify them of any changes to the Services, including, for example, regarding updates or changes to the End User Terms.
Appointment as Gigs' Marketing Partner. Gigs is a technology platform provider of the Services, working with and through Partner to provide Connectivity Services directly to End Users. Accordingly, Partner is appointed and agrees to act as Gigs’ non-exclusive marketing partner to promote and make available (including by providing certain onboarding services to enable End Users’ use of the Connectivity Services) the Connectivity Services and User Facing Platform Services to End Users in the Territory. Partner will make the Connectivity Services and User Facing Platform Services available only subject to the terms and conditions of this Agreement and the End User Terms, and may not appoint other distributors, resellers, or agents to resell and/or sublicense access to such Services. Partner will not make, and Gigs will not be bound by, any warranty or representation with respect to the Services to End Users on behalf of Gigs, or that broaden, contradict, or otherwise conflict with any representation, warranty, or other term contained in this Agreement or in the End User Terms. Partner may not represent that it is affiliated with any Third-Party Connectivity Providers unless otherwise expressly permitted. The Parties acknowledge and agree that a breach of this Section 2 shall constitute a material breach of the Agreement.
Marketing and Promotion of the Services. Partner shall, in good faith and at its own expense (i) market, advertise, and promote the Connectivity Services and User Facing Platform Services consistent with good business practice, accepted industry standards, and applicable Law; (ii) follow the marketing guidelines provided by Gigs to Partner as may be updated from time to time at Gigs’s discretion to the extent such guidelines relate to descriptions of the Connectivity Services; and (iii) promptly notify Gigs of any complaint or adverse claim about any Services of which Partner becomes aware. For the avoidance of doubt, Partner will not represent itself as the regulated provider of Service, and shall prominently disclose to End Users that Gigs is the provider of the Connectivity Services. Gigs has the right to approve Partner’s marketing materials or practices as related to the Connectivity Services, including for example and without limitation the way in which the Services are offered and described to End Users, as well as the sales and check-out flow (whether performed digitally or in-person), and Partner shall not publish any marketing materials relating to the Connectivity Services unless such materials strictly comply with Gigs’s guidelines or Gigs has provided a written exception thereto.
Publicity. The Parties shall collaborate in good faith on any public announcements, press releases, or other statements related to this Agreement and/or the Services across various media platforms (“Public Statements”). Any Public Statements, including their content and timing, shall be subject to the prior written consent of both Parties. Neither party shall be obligated to participate in any publicity efforts without their express approval.
Restrictions. Except as otherwise expressly permitted herein, Partner shall not (and shall not attempt to): (i) sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties the benefit of the Services; (ii) "frame," "mirror,” copy, or otherwise enable third parties to use the Services (or any component thereof) as a service bureau or other outsourced service; (iii) allow access to the Services by multiple individuals impersonating a single end user; (iv) modify or use the Services in a manner that interferes with, degrades, or disrupts the integrity or performance of any Gigs' services, systems, or other offerings, including, without limitation, data transmission, storage, and backup; (v) use the Services for the purpose of developing a product or service that competes with any of Gigs' products or services; (vi) circumvent, interfere with, or disable any security features or functionality associated with the Services, including by conducting security or vulnerability tests or circumventing access restrictions; (vii) reverse engineer, decompile, or seek to access the source code of the Services; (viii) copy, modify, create derivative works of, or remove proprietary notices from the Services; (ix) use the Services to infringe, misappropriate, or violate any third party's Intellectual Property Rights; or (x) use the Services in any manner prohibited by Law, or for any purposes beyond the scope of the rights granted in this Agreement including, for the avoidance of doubt, any use that violates U.S. export control or sanctions laws and regulations.
Carrier of Record. With respect to the Connectivity Services subject to this Agreement, Gigs will serve as the Carrier of Record (“COR”), and will fulfill all regulatory and compliance obligations required by applicable Law in the Territory including, by way of example, obligations arising under telecommunications, tax, data protection, and/or consumer protection Laws to the extent applicable to the COR. As the COR, Gigs will have sole responsibility and control over the End User Terms, which Gigs may update from time-to-time in its sole discretion. Upon request by Gigs, Partner will provide good faith assistance and information as reasonably required to enable Gigs to fulfill its obligations as the COR.
Third-Party Terms. Partner acknowledges that Gigs acts as a reseller of Connectivity Services and may combine certain features or offerings to create custom Connectivity Services for Partner and End Users. Partner acknowledges and agrees that the Services may be subject to Third-Party Terms for the applicable Territory, which form an integral part of this Agreement and may be updated by Gigs or the Third-Party Connectivity Provider from time-to-time. In the event that Partner does not agree to any updates to the Third Party Terms, Partner’s sole remedy shall be Termination as set forth in Section 3. In addition, upon request, Partner will reasonably cooperate with Gigs to comply with requirements the Third-Party Connectivity Provider may have applicable to Gigs' provision of the Services hereunder, including with respect to the forecasting and provisioning of mobile telephone numbers, and use of approved Devices.
Modification of the Services; Upgrades. From time-to-time, Gigs may in its sole discretion modify or update the Services provided that such changes: (i) do not result in any material degradation of the Services as set forth in the Documentation; (ii) are required to avoid infringement of any third-party intellectual property; (iii) are required to conform with Law; or (iv) are required to comply with any Third-Party Terms. Additionally, Partner shall upgrade to the latest version of the Gigs Platform Services and any other technological integrations necessary for the proper functioning of the Services (“Upgrades”) as they are released. Gigs shall provide reasonable notice of any required Upgrades to allow for the necessary adjustments by Partner. Failure to promptly implement an Upgrade may result in diminished performance, limited functionality, or service disruptions, for which Gigs shall not be responsible.
Verification; Prohibited Customers. As part of its onboarding of each End User, Partner will use reasonable, industry-standard measures to collect and verify End User identity as part of its normal onboarding process in relation to the Services (“Verification”). At a minimum, such Verification information shall include the End User’s full name, physical address, and email address. For the avoidance of doubt, such Verification information shall be subject to Section 4(b) “Audit Rights,” below. Gigs will provide Partner with any other specific Verification requirements as needed, and the parties will cooperate to ensure compliance with applicable Law, including anti-fraud and identity verification obligations. In addition to the restrictions contained elsewhere in this Agreement, Partner shall not promote, distribute, resell, or otherwise provide access to the Services, or solicit or market any of the foregoing, to any Prohibited Customers. Gigs reserves the right to suspend or terminate any End User account for which adequate Verification has not been completed.
Platform Services; Support. Gigs will provide the Gigs Platform Services in accordance with Exhibit B, and will provide Partner with support ("Support") as set forth on Exhibit C. Except as otherwise set out in Exhibit C, Partner shall provide support to End Users for the Connectivity Services, including the validation of proper End User support requests, on behalf of, and based on policies and procedures agreed upon by, Gigs. Notwithstanding the foregoing, Partner and Gigs may agree as set forth on an Order Form that End User support (“End User Support”), will be directly provided by Gigs.
Other Products. In connection with Partner’s use of the Services hereunder, and where permitted by Gigs, Partner may choose to enable integrations and/or exchange End User data with other services, platforms, or products not provided by Gigs (“Other Products”). Partner’s use of Other Products is governed (where applicable) by Partner’s agreement with the relevant provider, not this Agreement, and in any event Gigs is not responsible for any aspect of Partner’s use of Other Products or how such providers of Other Products may use End User data.

3. Term; Termination

Term; Renewals. The term of this Agreement (the “Term”) will commence on the Effective Date and is described in your Order Form. The Term will continue until terminated. Any renewal Term details are as set forth on an Order Form.
Termination. Unless otherwise set forth on an Order Form, either party may terminate this Agreement upon thirty (30) days prior written notice to the other party in the event that no Order Form issued hereunder is in effect. Neither party shall have any termination right(s) other than those expressly set forth under this Agreement, an Order Form, or applicable law. Notwithstanding anything to the contrary on an Order Form, Gigs reserves the right to terminate this Agreement, including any Order Form, on thirty (30) days written notice. Where a party provides notice of termination for any reason, Gigs reserves the right from the date of such notification to stop or limit onboarding of new End Users for the Services.
Termination for Cause; Suspension. This Agreement may be immediately terminated by a party if: (i) the other party commits a material breach of its obligations hereunder that is not cured within thirty (30) days after written notice thereof from the non-breaching party, or (ii) a petition in bankruptcy or other insolvency proceeding is filed by or against the other party, or if an application is made for the appointment of a receiver for the other party of its property, or if the other party makes an assignment for the benefit of creditors, is unable to pay its debts regularly as they become due, or ceases carrying on business in the ordinary course. In addition, Gigs may suspend provision of the Services, in whole or in part, rather than terminate the Agreement, if it believes in good faith and upon reasonable proof that the Partner is violating the terms of the Agreement, or any of the Partner's End Users are violating any terms applicable to End Users.
Effect of Termination. Upon any expiration or termination of this Agreement:
1. Except as otherwise stated herein, all rights granted to Partner under this Agreement will be immediately revoked and Partner shall cease using all aspects of the Services. All Order Forms issued hereunder shall be terminated. Partner shall promptly cease to represent itself as Gigs' authorized Partner regarding the Services, and shall otherwise cease and desist from all conduct or representations that might lead a third party to believe that Partner is authorized by Gigs to promote the Services. Termination of this Agreement and any Order Forms issued hereunder will not limit either party from pursuing any other remedies available, including injunctive relief, nor will termination relieve Partner of its obligation to pay all charges for work performed prior to, and if applicable, following such termination.
2. For any active End Users (“Legacy End Users”) upon termination of the Agreement, Gigs may continue to support such Legacy end Users until the earlier of (i) the expiry of their respective End User Terms, and (ii) one (1) year. If any action on the part of Gigs is required in order to ensure that a Legacy End User terminates with the expiry of its respective End User Terms and is not prolonged or renewed, Gigs shall take such action in a timely manner.
3. At Gigs’ election and notice to Partner, and subject to 3(d)(ii) above, for a period of sixty (60) days ("Transition Period"), Partner will reasonably cooperate with Gigs to transition the billing, collections, customer support, and other End User-related tasks performed by Partner hereunder to Gigs or to a Gigs-designated third party (“Transition”). The terms of this Agreement shall continue to apply until the completion of any Transition.

4. Payment

Payment Terms. Billing and payment terms for all amounts owed in connection with the Services are as set forth on your Order Form, and may vary depending on (i) the Services provided, and (ii) Partner’s method of integration with the Services.
Audit Rights. Partner shall maintain complete and accurate records relating to the Services, including transaction, payment, and Verification records, for the duration of this Agreement and for two (2) years thereafter. Upon reasonable advance notice, Gigs (or an independent third-party auditor selected by Gigs) may audit such records during normal business hours to verify compliance with this Agreement. If an audit reveals an underpayment exceeding five percent (5%) of the total amount due, Partner shall bear the reasonable costs of the audit and promptly pay any balance due. Failure to maintain proper records or comply with audit requests may be considered a material breach of this Agreement.

5. Proprietary Rights; Data Protection

Gigs' Proprietary Rights. All rights, title and interest in and to the Services and all Intellectual Property Rights therein, and any enhancements, derivative works or improvements thereto are and shall remain exclusively with Gigs, its licensors or suppliers, and their respective successors and assigns. Except as expressly set forth herein, Partner is not granted any right, title or interest whatsoever (whether express, implied, or otherwise) in any aspect of the Services, other Confidential Information (as defined in Section 6) of Gigs, or any Intellectual Property Rights associated with any of the foregoing.
Feedback. To the extent that Partner provides any verbal or written ideas or other feedback to Gigs concerning the Services (“Feedback”), Partner hereby assigns, transfers, and conveys to Gigs, or its designee, all worldwide right, title, and interest in and to any and all Feedback, including any ideas, inventions, discoveries, original works of authorship, findings, conclusions, concepts, and improvements in such Feedback.
Use of Trademarks. Partner shall not use the name, logos, trademarks, trade names, service marks, or other proprietary rights associated with Gigs, any Services, or any other Gigs product or service without express written consent. Partner authorizes Gigs to use Partner’s name, logos and trademarks in Gigs' promotional materials, website, and for publicity purposes. Partner can revoke this limited right to use in the foregoing sentence at any time upon written notice. For the avoidance of doubt, except as otherwise authorized in writing, Partner is prohibited from using the name, logos, trademarks, trade names, service marks, or other proprietary rights associated with any Third-Party Connectivity Providers.
Company’s Use of Service Data. Partner acknowledges and agrees that Gigs may collect and use information gathered in connection with the Partner’s use of the Services (“Service Data”) to operate, improve, and support the Services, Gigs' products and services generally, and for other lawful business purposes. Gigs will not disclose Service Data externally to any third-party unless it is (a) de-identified so that it does not identify Partner or any other person, and (b) aggregated with data across other of Gigs' partners, customers, and/or end users.
Data Protection; Privacy. Any personal data (as defined under applicable data privacy laws) processed by Gigs in providing the Services pursuant to this Agreement shall be treated in accordance with (i) Gigs' privacy policy, available at https://www.gigs.com/legal/privacy-policy, and (ii) if applicable, the Data Processing Addendum (“DPA”) included as Exhibit D, the terms of which are hereby incorporated by reference. Partner will not provide or make available, or cause Gigs to provide or make available, the Services to any children who are under the age of 13. Partner will ensure that any necessary consents and authorizations under applicable laws are obtained, with respect to the collection, use, disclosure and processing of personal data pursuant to the Services, as contemplated by this Agreement and the Gigs privacy policy.

6. Confidentiality

Meaning of Confidential Information. Each party will have access to Confidential Information (as defined below) of the other party in the course of its performance under this Agreement. The parties desire to protect the Confidential Information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) or its (and its Affiliates’) directors, officers, employees, agents, advisors (including financial advisors and legal counsel) and or partners and the directors, officers, partners and employees of any such agents, advisors or partners (collectively, “Representatives”). For purposes of this Agreement, “Confidential Information” means information disclosed, exchanged, or made available by or on behalf of the Disclosing Party to the Receiving Party under this Agreement, in any form, which (a) the Disclosing Party identifies to Receiving Party as “confidential” or “proprietary,” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. As used in this Agreement “Confidential Information” does not include information that the Receiving Party can document: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was rightfully known or possessed by the Receiving Party prior to receipt from the Disclosing Party; (iii) is rightfully received from a third-party without confidentiality restrictions; or (iv) was independently developed by the Receiving Party without use of or reference to any Confidential Information.
Standard of Care. The Confidential Information shall be kept confidential by the Receiving Party and its Representatives and neither the Receiving Party nor any of its Representatives shall use any Confidential Information for any purpose except as reasonably necessary to exercise their respective rights and perform their respective obligations under this Agreement. For the avoidance of doubt, a breach of this Agreement by a Representative of the Receiving Party shall be deemed a breach of this Agreement by the Receiving Party.
Compelled Disclosure; Equitable Relief. Notwithstanding anything to the contrary herein, a Receiving Party shall not be deemed to have violated this Agreement if it discloses Confidential Information in response to a bona fide subpoena, judicial order, or other lawful process issued by a court or governmental agency of competent jurisdiction. Before doing so, to the extent lawful and commercially practicable, the Receiving Party will provide reasonable written notice to the Disclosing Party before any such disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy to prevent or limit such disclosure. In any event, the Receiving Party will furnish only that portion of the Confidential Information that it is legally required to furnish. The parties agree that the unauthorized disclosure or use of the other party’s Confidential Information would cause irreparable injury to the other party. Accordingly, a party will be entitled to seek injunctive and other equitable relief in the event of such disclosure or use, in addition to whatever other remedies it may have at law.
Disposition of Confidential Information. Upon termination of the Agreement, each party will return or destroy all Confidential Information of the other party, and will upon request provide a certificate certifying compliance with this provision. Any personal data, including End User personal data, will be treated in accordance with Section 5 of this Agreement.

7. Warranties; Disclaimers

Mutual Representations & Warranties. Each party and each signatory represents that the signatory hereto has the authority to bind such entity to these terms and conditions. Each party further represents and warrants: (i) that it is duly authorized and has legal capacity and all necessary rights to enter into this Agreement; (ii) that the execution and delivery of the Agreement and the performance of its obligations hereunder has been duly authorized, and will not conflict with any other obligations it may have; and (iii) that it will comply with all Laws applicable to its performance under this Agreement.
DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS SECTION 7, GIGS PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND GIGS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
DISCLAIMER OF CONNECTIVITY SERVICES. PARTNER ACKNOWLEDGES AND AGREES THAT SERVICES PROVIDED UNDER THIS AGREEMENT MAY CONTAIN, BE CONTAINED IN, INCORPORATED INTO, ATTACHED TO OR PACKAGED TOGETHER WITH PRODUCTS AND PROVISION OF SERVICES PROVIDED BY THIRD-PARTIES, INCLUDING THIRD-PARTY CONNECTIVITY PROVIDERS. ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS-IS” OR “AS AVAILABLE” BASIS. FOR THE AVOIDANCE OF DOUBT, NEITHER GIGS NOR ANY OF ITS SUPPLIERS OR THIRD-PARTY CONNECTIVITY PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING ANY PRODUCTS OR THE PROVISION OF SERVICES PROVIDED BY ANY THIRD-PARTY, AND PARTNER ACKNOWLEDGES AND AGREES THAT NO THIRD-PARTY CONNECTIVITY PROVIDER SHALL HAVE ANY LIABILITY TO PARTNER FOR ANY REASON IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER.

8. Indemnification; Limitation Of Liability; Insurance

Partner Indemnification. Partner shall defend, indemnify, and hold harmless Gigs, its Affiliates, and each of their officers, directors, employees, agents, contractors, suppliers, and licensors (“Gigs Indemnified Parties”) from and against all costs, expenses, losses, and damages (including reasonable attorneys’ fees) incurred or awarded as a result of or in connection with third-party claims against Gigs based on or arising out of (i) Partner’s breach of any terms of this Agreement or violation of any applicable Law in connection with its performance under the Agreement, or (ii) Partner’s conduct as a marketing, billing, collections, and/or customer-support agent for Gigs, including any representation it makes to End Users that are inconsistent with the terms of this Agreement.
Gigs Indemnification. Gigs will defend, indemnify, and hold harmless Partner, its Affiliates, and each of their officers, directors, employees, agents, contractors, suppliers, and licensors (“Partner Indemnified Parties”) from and against all costs, expenses, losses, and damages (including reasonable attorneys’ fees) incurred or awarded as a result of or in connection with third-party claims against Partner (i) asserting that the Gigs Platform Services, when used by Partner as authorized in this Agreement, infringe on or misappropriate a third party’s Intellectual Property Rights; or (ii) arising out of Gig’s failure to comply with its obligations as the COR. Gigs will indemnify Partner Indemnified Parties from all amounts finally awarded against a Partner Indemnified Party or for settlement amounts approved by Gigs. Gigs' obligations in this Section 8(b) do not apply to claims resulting from (i) modification or unauthorized use of the Gigs Platform Services, (ii) use of the Gigs Platform Services in combinations not provided by Gigs, including third-party services, platforms, or products, or (iii) failure to implement, maintain, and use the Gigs Platform Service pursuant to its most currently released version or in accordance with the Documentation. If the Gig’s Platform Services become, or in Gigs' opinion are likely to become, the subject of any indemnifiable claim for third-party intellectual property rights infringement or misappropriation, Gigs may at its sole option and expense: (i) procure for the Partner Indemnified Party the right to continue using the Gigs Platform Services; (ii) modify the Gig’s Platform Service to make it non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate these Terms and the applicable Order Form. Gigs will have no indemnification obligation under this provision that arises under Partner’s breach of this Agreement. THE REMEDIES PRESENTED IN THIS SECTION 8(B) SHALL BE PARTNER’S SOLE REMEDY FOR ANY INTELLECTUAL PROPERTY RELATED CLAIMS MADE AGAINST THE GIGS PLATFORM SERVICES, OR COMPONENTS OF THE GIGS PLATFORM SERVICES.
Indemnification Procedure. As a condition of the foregoing indemnification obligations: (a) indemnified party (“Indemnified Party”) will promptly notify indemnifying party (“Indemnifying Party”) of any claim (individually or collectively referred to herein as a “Claim”) as soon as practicable in writing; (b) Indemnifying Party will have the sole authority to defend or settle a Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities hereunder, at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, Indemnifying Party will not settle any Claim for which it has an obligation to indemnify under this Section 8 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
Limitation on Liability. GIGS’S AGGREGATE LIABILITY TO THE PARTNER FOR DAMAGES, IF ANY, FOR ALL CLAIMS OR LOSSES OF ANY KIND ARISING TO THE PARTNER IN CONNECTION WITH COMPLAINTS OF PERFORMANCE OR BREACH OF THIS AGREEMENT OR AN ORDER FORM HERETO IS LIMITED TO THE TOTAL AMOUNTS COLLECTED OR RECEIVED BY GIGS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS BEFORE THE FIRST EVENT GIVING RISE TO LIABILITY AROSE, LESS ANY AMOUNTS PAID OR PAYABLE BY GIGS TO PARTNER DURING SUCH PERIOD. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND EXCLUDING ANY LIABILITY WHICH MAY NOT BE EXCLUDED UNDER APPLICABLE LAW, IN NO EVENT SHALL GIGS OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER IN TORT, CONTRACT, OR OTHERWISE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL REMAIN FULLY EFFECTIVE EVEN IF THE REMEDIES AVAILABLE TO A PARTY FAIL OF THEIR ESSENTIAL PURPOSE OR ARE OTHERWISE HELD TO BE UNENFORCEABLE. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
ANY PERFORMANCE OBLIGATION OF GIGS IS, IF APPLICABLE, SUBJECT TO CORRECT AND TIMELY DELIVERY OF PRODUCTS AND PROVISION OF CONNECTIVITY SERVICES BY THIRD-PARTY CONNECTIVITY PROVIDERS PROVIDED THAT THE INCORRECT OR UNTIMELY DELIVERY OR PERFORMANCE IS NOT DUE TO A FAULT OF GIGS. FOR THE AVOIDANCE OF DOUBT, PERFORMANCE OBLIGATIONS OF GIGS VIS-À-VIS THE END USER SHALL BE GOVERNED BY AND SUBJECT TO THE TERMS OF THE RESPECTIVE END USER TERMS.
IN CASE OF A DEFAULT BY ANY THIRD-PARTY CONNECTIVITY PROVIDER, PARTNER'S SOLE REMEDY SHALL BE FOR GIGS TO:
1. INFORM THE PARTNER OF ANY MATERIAL DOWNTIMES WITHOUT UNDUE DELAY; AND
2. USE BEST EFFORTS (WITHOUT BEING OBLIGED TO ENTER INTO PAYMENT OBLIGATIONS) TO CAUSE THIRD-PARTY CONNECTIVITY PROVIDERS TO RECTIFY SUCH DEFAULT IN TIMELY MANNER.
Each party shall maintain at its sole cost and expense, insurance with the following minimum coverage types and amounts:
1. Commercial General Liability Policy, including, but not limited to, contractual liability, bodily injury, death and/or property damage $1M per occurrence; $2M aggregate;
2. Errors & Omissions Policy $2M aggregate;
3. Cyber Insurance Policy $5M aggregate; and
4. Umbrella Liability with limits of $6M per occurrence; $6M aggregate
Upon a party’s written request, the other party shall send a copy of its certificate of insurance and applicable endorsements consistent with the requirements set out above.

9. Governing Law; Jurisdiction

This Agreement shall be governed and interpreted in accordance with the laws the State of California, U.S.A., without regard to its conflict of law principles. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as set forth under Section 10(b) below, any suit, action, or proceeding arising out of or relating to this Agreement will be instituted in the state and federal courts of San Francisco, California, and the parties hereby consent to personal jurisdiction and venue in these courts.

10. General

Notices. For any notices provided under this Agreement, all notices to Gigs shall be sent via email to legal@gigs.com with copy sent via overnight courier to the mailing address set forth on the most current Order Form. Gigs may provide notice to Partner by email or via overnight courier using the information provided by Partner on the most current Order Form, or otherwise by notifying Partner through the Gigs platform. Notices shall be deemed effective (a) the following business day (when sent by email or overnight courier), or (b) the date when published (when posted to the Gigs platform).
Force Majeure. No failure, delay, or default in performance of any obligation of a party, including without limitation failure to meet any service level objective or agreement for availability or otherwise, will constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.
Amendments; Assignments. Except as otherwise provided in this Agreement, any change or modification to this Agreement must be in writing and signed by authorized representatives of the parties to be binding. This Agreement shall be binding upon and for the benefit of the undersigned parties, and their respective permitted successors and assigns. Partner may not assign, transfer, or novate this Agreement by operation of law or otherwise, without the prior written consent of Gigs and any attempted assignment, transfer, or novation in violation of the foregoing shall be null and void, but Gigs may assign this Agreement without restriction.
Relationship. Each party is an independent contractor in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities, damages, or debts of any type whatsoever that may arise on account of its activities, or those of its employees and agents, in the performance of this Agreement. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so. This Agreement does not confer any benefits on any third party (including End Users or any of your Affiliates) unless expressly agreed.
Survival. Sections 3-6 and Sections 8-12, and any other portions of this Agreement which by their nature should survive, shall survive termination of this Agreement.
Waiver; Construction. No failure or delay by either party in exercising any right or enforcing any provision under this Agreement will constitute a waiver of that right or provision, or any other provision. Titles and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement. Except as otherwise explicitly specified to the contrary, the word “including” will be construed as “including without limitation.”
Entire Agreement; Severability. This Agreement sets forth the entire agreement between the parties pertaining to this subject matter and supersedes all prior negotiations, understandings and agreements between the parties whether written or oral concerning this subject matter. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect. This Agreement may be executed in any number of counterparts (including by facsimile or other electronic transmission), and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute a single agreement.

11. Definitions

Capitalized terms not otherwise defined herein shall have the meanings set forth below. Definitions may apply to one or more exhibits even where a defined term is not used within these Gigs TOS:

“Affiliate” means any entity controlled, directly or indirectly, by, under common control with, or controlling a party, and specifically includes subsidiaries, partnerships, joint ventures, and other entities or operations for which the party has operational or management control. For the purposes of this definition, control means the power to direct, or cause the direction of, the management and policies of such entity whether by contract, law, or ownership of the majority of the voting shares or assets of another entity.
“Connectivity Services” means telecommunication services provided by Gigs to End Users through Third-Party Connectivity Providers, as specified in an Order form and as more fully described on Exhibit A.
“Device” means any equipment for use with the Service as may be further detailed in your Service Plan, including, for example, a mobile phone, device, or handset; smartwatch or “smart” device; SIM; eSIM; or other accessory.
“Documentation” means Gigs' standard usage documentation and specifications applicable to the Services.
“End User” means any person or entity who is a subscriber of, and authorized to use, the Connectivity Services by having accepted the End User Terms, as managed by Gigs through provision of the Services under this Agreement.
“End User Terms” means Gigs' terms and conditions applicable to the End User’s use of the Services, which shall be substantially in the form set forth at https://gigs.com/legal/end-user-service-agreement, or such other URL as Gigs may provide.
“eSIM” means an embedded, digital version of a SIM that is built into a Device.
“FCC” means the Federal Communications Commission.
“Governmental Authority” means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of the government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of this organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction.
“Gigs Platform Services” means the Gigs proprietary interfaces, APIs, Dashboards, Checkouts, payment & tax solutions, User Facing Platform Services, or comparable products, including all Documentation related thereto, for managing and administrating telecommunications subscriptions, as indicated on Partner’s Order Form.
“Intellectual Property Rights” means all intellectual property and other similar proprietary rights, in any jurisdiction whether registered or unregistered, including rights in and to (a) trade secrets, know-how and other confidential or non-public business information; (b) original works of authorship, copyrights, and any moral rights relating thereto; (c) trademarks, trade names, service marks, trade dress, logos, other indications of origin, and any goodwill therein; (d) patents, patent applications, and any and all divisions, continuations, continuations-in-part and extensions thereof, invention disclosures, inventions, discoveries and improvements; (e) Internet domain names; (f) social media accounts; and (h) claims, causes of action, defenses and the right to sue and collect damages relating to the enforcement of the foregoing; in each case of (a) – (e), including any registrations of applications to register and renewals and extensions of, any of the foregoing with or by any governmental entity in any jurisdiction.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, executive order, or other requirement or rule of law of any Governmental Authority applicable to provision of the Services hereunder.
“Order Form” means an order form covering Partner’s access to the Services, Professional Services, and/or related services, and that becomes an integral part of the Agreement upon execution by the parties.
“Professional Services” has the meaning set forth on the applicable Order Form.
“Prohibited Customer” means any country, individual, or entity prohibited by U.S. Laws, including but not limited to, U.S. Export Laws.
“Physical SIM” means a physical chip version of a SIM that is inserted into a Device.
“Service Plan” means the details of the End User subscription or access to the Connectivity Service including, for example, allotments for minutes, messages, or data, coverage, roaming, pricing, and any other terms.
“Services” means Gigs' global connectivity enablement platform used for providing, managing, and administering End User telecommunications subscriptions, including (i) the Gigs Platform Services, and (ii) the Connectivity Services, as specified on an Order Form and as more fully described in Exhibit A. For the avoidance of doubt, the Services do not include Other Products.
“SIM” means a Subscriber Identity Module card, which contains a unique identification number and is required in your Device for End User authentication and in order to use the Services. SIM can refer to both Physical SIMs or eSIMs.
“Territory” means the geographic regions where the Services are to be performed and/or used, as may be further set forth in the applicable Order Form.
“Third-Party Connectivity Provider” means the mobile network operators and technology partners providing Connectivity Services.
“Third-Party Terms” means the terms of any third-party that apply to this Agreement, and are incorporated by reference herein. Third-Party Terms are posted at http://gigs.com/legal/third-party-terms.
“User Facing Platform Services” means, as applicable, a subset of the Gigs Platform Services that are made available for access by End Users.