Terms of Service and Privacy Policy

Appendices

1. Background

a. Terms of Service. This Agreement includes (i) these Gigs Terms of Service (including all applicable exhibits and incorporated documents) (“Gigs TOS”), and (ii) your applicable Order Form(s) (collectively, the “Agreement”), and describe the terms and conditions for your use of the Services. 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”). This Agreement 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.

b. Order Forms. Gigs and Partner may execute one or more Order Forms in relation to the Services.

c. Applicable Terms; Order of Precedence; Updates. In the event of any conflict or inconsistencies between the terms of any Order Form issued hereunder and the Gigs TOS, the terms of the Order Form shall control as necessary to resolve such conflict unless expressly stated otherwise. Gigs reserves the right to update or modify these Gigs TOS (including any of the Exhibits hereto or terms linked or referenced herein) at any time in Gigs’s 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. Your continued use of the Services after changes are posted constitutes your acceptance of the new Gigs TOS. You should visit this page before using the Services each time to see if there have been any changes to these Terms of Services.

2. Services

a. Right to Access and Use; End User Terms. Subject to the terms of this Agreement and the applicable Order Form, 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. Additional terms and conditions governing Partner’s use of the Services are set forth on Exhibit A. Any End Users are also required to accept terms and conditions applicable to the Services (“End User Terms”) prior to use, as further set forth in Section 2(f) below. Partner will at all times cooperate with Gigs to ensure End Users’ acceptance of End User Terms.

b. Appointment as Gigs’s Partner. As applicable and subject to terms and conditions of this Agreement, you are appointed and agree to act as Gigs’s non-exclusive partner to promote and make available 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 any warranty or representation to End Users on behalf of Gigs, or in relation to the Services which broadens, contradicts, or otherwise conflicts with any representation, warranty, or other term contained in the End User Terms. Gigs will not be bound by any term, condition or other provision which is different from or in addition to the provisions of this Agreement or the TOS and which is submitted by Partner in any order, receipt, acceptance, confirmation, correspondence or otherwise, unless Gigs specifically agrees to such provision in writing. Partner may not represent that it is affiliated with any Third-Party Connectivity Providers in any manner. Except as otherwise expressly permitted in writing by Gigs, Partner shall have no right to resell or sublicense access to the Services not specifically defined in any Exhibits hereto. The appointment in this Section 2(b) is limited to Partner only and may not be assigned or transferred by Partner or otherwise extended to any other party except as set for in Section 11 (General) of this Agreement or as otherwise agreed in writing. The Parties acknowledge and agree that a breach of this Section 2 shall constitute a material breach of the Agreement.

c. Marketing and Promotion of the Services. Partner shall, in good faith and at its own expense (i) use best efforts to market, advertise, and promote the Connectivity Services and User Facing Platform Services consistent with good business practice; (ii) observe all reasonable directions and instructions given to it by Gigs in relation to the marketing, advertisement, and promotion of the Connectivity Services and User Facing Platform Services; (iii) at all times not take any actions or conduct business in a manner that reflects unfavorably on the Connectivity Services and User Facing Platform Services or the name, goodwill, and reputation of Gigs; and (iv) promptly notify Gigs of any complaint or adverse claim about any Services or its use of which Partner becomes aware. For the avoidance of doubt, under no circumstances shall Partner represent itself as the FCC-authorized provider of Service. Upon request, Gigs may approve Partner’s marketing materials or practices as related to the 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). Where requested, Partner will respond within ten (10) days of a request submission from Gigs.

d. 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.

e. Restrictions. Except as otherwise expressly permitted herein, Partner shall not (and shall not allow any third-party to): (i) attempt to 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’s 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’s 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; or (ix) use the Services in any manner prohibited by applicable law or treaties, or for any purposes beyond the scope of the rights granted in this Agreement.

f. Carrier of Record. Where applicable, the Carrier of Record (“COR”) of the Connectivity Services as to the End User shall fulfill all applicable legal, regulatory, administrative, and/or other compliance requirements including, by way of example and without limitation, obligations arising under consumer protection laws, telecommunications laws, tax law, data protection laws, carrier and industry guidelines, and similar frameworks. Without limitation to Section 7, the COR will comply with all Laws applicable to such party’s performance under this Agreement. The COR will be responsible for (i) providing End User Terms, and (ii) for ensuring End Users’ acceptance of and compliance with such End User Terms. Where Gigs is the COR, the End User Terms shall be in the form set forth at https://gigs.com/legal/end-user-service-agreement, as may be updated by Gigs from time-to-time. Where the Partner is the COR, Partner expressly agrees to include in the End User Terms the Third-Party Terms (as defined below) applicable to the specific Services. Unless otherwise stated on the applicable Order Form, Gigs shall be deemed the COR by default.

g. 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 as set forth on Exhibit B, as may be updated by Gigs from time to time or as may be required by Third-Party Connectivity Providers. Partner agrees to and shall be bound by and, where applicable, ensure its End Users agree to and be bound by, any such Third-Party Terms (which may be updated 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. The Third-Party Terms applicable to the Services depend on the Territory set forth on your Order Form. For example, if your Order Form states that the Territory is the United States, the “US Version” of the Third-Party Terms applies. If your Order Form states that the Territory is the United Kingdom, the “UK Version” of the Third-Party Terms applies.

h. Modification of the Services; Upgrades. Gigs may at any time alter the design of the Services provided that the alteration: (i) does not result in any material degradation of the Services as set forth in the Documentation; (ii) is required to avoid infringement of any third-party intellectual property; (iii) is required to conform with Law; or (iv) is required to comply with any Third-Party Terms. Additionally, as available, 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. Partner acknowledges that maintaining compatibility with the most current versions of the Services through Upgrades is essential for optimal performance.

i. Prohibited Customers. 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.

j. Support. Partner is solely responsible for providing technical support to End Users for the Connectivity Services. Gigs will provide to Partner Technical Support (Second-Level), to the extent necessary to assist Partner to resolve End User support requests regarding the Third-Party Connectivity Services that Partner cannot resolve after performing its first-level technical support obligations. As used herein, “Technical Support (Second-Level)” means advanced troubleshooting using diagnostic tools, advanced configuration analysis, root cause identification, bug resolution, workarounds or minor enhancements, and updates, in each case solely with respect to the Connectivity Services. Notwithstanding the foregoing, upon Partner’s reasonable request, Gigs may directly respond to support requests from End Users and directly provide End Users with support services. Partner may also purchase additional premium End User support (“End User Support”) as a Professional Service, as set forth on an Order Form. Gigs’s obligations with respect to Technical Support (Second-Level) and End User Support are described on Exhibit C.

k. Beta Offerings. From time to time, Gigs may make available Beta Offerings, whether on a private invitation-only basis or more generally available. Gigs may discontinue a Beta Offering at any time, or decide not to make a Beta Offering generally available. Unless otherwise agreed in writing, any Beta Offerings made available to Partner are (i) strictly for testing and experimentation purposes only, and are provided on an “as-is” basis without warranties of any kind; (ii) may not meet performance expectations, have gaps in functionality, and/or contain bugs; and (iii) support, whether Technical Support (Second-Level) or End User Support, does not apply to Beta Offerings. Beta Offerings, and any information related to thereto, including their existence, are considered Gigs’s Confidential Information. Gigs may require acceptance of additional terms and conditions in writing (e.g., a beta license agreement) before allowing Partner’s access to or use of any Beta Offerings. Gigs will have no liability arising out of or in connection with Partner’s use of such Beta Offerings.

l. 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

a. 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.

b. 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.

c. 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 or any of its End Users are violating the terms of the Agreement.

d. Effect of Termination. Upon any expiration or termination of this Agreement:

(i) 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’s 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.

(ii) For any valid End Users at the point of time that termination becomes effective (“Legacy End Users”), 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.

(iii) As necessary and at Partner's request, and subject to 3(d)(ii) above, for a period of sixty (60) days ("Transition Period"), Gigs will reasonably cooperate should Partner desire to transition the services provided hereunder to another provider (“Transition”), including by assisting with migration of End Users. At the end of the Transition Period, if Partner has not completed the Transition, Gigs will continue to support Legacy End Users pursuant to the duration set forth in Section 3(d)(ii) above or until Partner completes its Transition, whichever occurs first. The terms of this Agreement shall continue to apply during any Transition.

(iii) 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.

(iv) 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.

(v) 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.

4. Payment

a. 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 purchased, and (ii) Partner’s method of integration with the Services.

b. Audit Rights. Partner agrees to maintain complete and accurate records of all transactions, invoices, payments, financial statements, and other relevant documents related to the Services provided under this Agreement. Gigs shall have the right from time-to-time, upon providing reasonable advance notice, to audit and examine such records to ensure compliance with the payment terms or any other provisions of this Agreement. Audits may be conducted by Gigs or an independent third-party auditor, and shall take place during normal business hours at Partner’s premises or any other location where such records are stored. If any audit reveals an overcharge or undercharge, appropriate adjustments shall be made. In the event of an underpayment, Partner shall promptly pay the balance due, and if the discrepancy exceeds five (5)% of the total amount due, the Partner shall bear the reasonable costs of the audit. Failure to maintain proper records or comply with audit requests may be considered a material breach of this Agreement.

5. Proprietary Rights; Data Protection

a. Gigs’s Proprietary Rights. All right, 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.

b. 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.

c. 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’s 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, Partner is prohibited from using the name, logos, trademarks, trade names, service marks, or other proprietary rights associated with any Third-Party Connectivity Providers.

d. Company’s Use of Service Data. Partner acknowledges and agrees that Gigs may collect and use information gathered in connection with the Partner’s or its End Users’ use of the Services (“Service Data”) to operate, improve, and support the Services, Gigs’s 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, End Users, or any other person, and (b) aggregated with data across other of Gigs’s partners, customers, and/or end users.

e. 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’s 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.

6. Confidentiality

a. 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.

b. 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.

c. 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.

7. Warranties; Disclaimers

a. 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.

b. 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.

c. DISCLAIMER OF CONNECTIVITY SERVICES. PARTNER ACKNOWLEDGES AND AGREES THAT SERVICES PURCHASED BY PARTNER 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 MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING ANY PRODUCTS OR THE PROVISION OF SERVICES PROVIDED BY ANY THIRD-PARTY.

8. Indemnification; Limitation of Liability

a. Partner Indemnification. Partner shall defend, indemnify, and hold harmless Gigs, and its officers, directors, employees, agents, contractors, suppliers, and licensors (“Gigs Indemnified Parties”) against all costs, expenses, losses, and damages (including reasonable attorneys’ fees and costs) incurred or awarded as a result of or in connection with claims of third parties against Gigs based on or arising directly or indirectly out of (i) Partner’s violation of any terms of this Agreement, (ii) Partner’s violation of any applicable Laws; and (iii) any claims against Gigs by End Users where Partner serves as the COR.

b. Gigs Indemnification. Gigs will defend Partner, its Affiliates, and each of their directors, officers, and employees (“Partner Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a Partner by a third party arising out of claims asserting that the Gigs Platform Services infringe on or misappropriate a third party’s Intellectual Property Rights. Gigs will indemnify Partner Indemnified Parties from all amounts finally awarded against a Partner Indemnified Party or for settlement amounts approved by Gigs. Gigs’s 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’s 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.

c. 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.

d. Limitation on Liability. GIGS’S CUMULATIVE LIABILITY FOR DAMAGES, IF ANY, FOR ALL CLAIMS OF ANY KIND ARISING IN CONNECTION WITH COMPLAINTS OF PERFORMANCE OR BREACH OF THIS AGREEMENT OR AN ORDER FORM HERETO IS LIMITED TO THE CUMULATIVE AMOUNTS CHARGEABLE TO END USERS IN CONNECTION WITH THE SERVICES PURSUANT TO THE APPLICABLE ORDER FORM FOR THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 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.

e. 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.

f. IN CASE OF A DEFAULT BY ANY THIRD-PARTY CONNECTIVITY PROVIDER GIGS SHALL:

(i) INFORM THE PARTNER OF ANY MATERIAL DOWNTIMES WITHOUT UNDUE DELAY; AND

(ii) USE BEST EFFORTS (WITHOUT BEING OBLIGED TO ENTER INTO PAYMENT OBLIGATIONS) TO CAUSE THIRD-PARTY CONNECTIVITY PROVIDERS TO RECTIFY SUCH DEFAULT IN TIMELY MANNER.

10. Dispute Resolution

a. Governing Law; Jurisdiction. This Agreement shall be governed and interpreted in accordance with the laws of jurisdiction set forth below for the applicable Gigs Entity, 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 applicable courts identified below and the parties hereby consent to personal jurisdiction and venue in these courts.

Gigs Wireless LCC
Applicable law: California, USA
Venue: Federal and state courts in San Francisco, California

Gigs UK Ltd. Gigs GmbH
Applicable law: England and Wales
Venue: Courts of London, England, U.K.

b. Arbitration. In the event of any dispute, claim, or controversy in connection with this Agreement (collectively, “Disputes”), and other than for Disputes related to the intellectual property of a party or for injunctive or equitable relief, each party’s senior representatives will, in good faith, attempt to resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in the English language in (a) San Francisco, California, if the applicable Gigs Entity is Gigs Wireless, LLC; or (b) London, England, if the applicable Gigs Entity is Gigs UK Ltd. or Gigs GmbH.

c. Class Action Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial, or other purposes, all Disputes must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless Gigs agrees otherwise, the arbitrator may not consolidate more than one person’s Disputes. Partner and Gigs agree that the arbitrator may award relief only to an individual claimant and only to the extent necessary to provide relief on your individual claim(s). Any relief awarded may not affect other Gigs Partners or End Users, or any other customers or users of Gigs’s Services.

11. General

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. 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. The parties are independent contractors and nothing herein shall create a partnership or joint venture. Except as otherwise explicitly specified to the contrary, the word “including” will be construed as “including without limitation”. 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. 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 this Agreement by operation of law or otherwise, without the prior written consent of Gigs and any attempted assignment in violation of the foregoing shall be null and void, but Gigs may assign this Agreement without restriction.

12. 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:

a. “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.

b. “Beta Offerings” means Services that are identified as “beta,” “early access,” “evaluation,” “not generally available,” “limited release,” “developer preview,” “test,” “pre-release” or any similar Services offered by Gigs.

c. “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.

d. “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.

e. “Documentation” means Gigs’s standard usage documentation and specifications applicable to the Services.

f. “End User” means any person or entity who is a subscriber of, and authorized to use, the Services by having accepted the End User Terms, as managed by Gigs through provision of the Services under this Agreement.

g. “eSIM” means an embedded, digital version of a SIM that is built into a Device.

h. “FCC” means the Federal Communications Commission.

i. “Gigs Entity” means the applicable Gigs corporate entity identified on an Order Form.

j. “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.

k. “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.

l. “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.

m. “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.

n. “Order Form” means an order for Partner’s purchase of access to the Services, Professional Services, and/or related services that is executed by the parties and references the Agreement.

o. “Professional Services” has the meaning set forth on the applicable Order Form.

p. “Prohibited Customer” means any country, individual, or entity prohibited by U.S. Laws, including but not limited to, U.S. Export Laws.

q. “Physical SIM” means a physical chip version of a SIM that is inserted into a Device.

r. “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.

s. “Services” means Gigs’s 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.

t. “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.

u. “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.

v. “Third-Party Connectivity Provider” means the mobile network operators and technology partners providing Connectivity Services.

w. “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 identified in Exhibit B.

x. “User Facing Platform Services” means a subset of the Gigs Platform Services that are made available for access by End Users.

Terms of Service