These Terms and Conditions are a legally binding agreement between the person, company or organization that has licensed a software product from Vibrainium Learning, Inc. dba GotSoul? App. By installing and/or using any Vibrainium Learning, Inc. product or service (Application, website…) you are confirming your acceptance of these Terms and you are agreeing to become bound by the terms of this agreement. By using you represent that you are of legal age and legally able to enter into this agreement.
Got Soul? App Application use
Got Soul? iOS App is available in the Apple’s App Store (managed by iTunes) and Got Soul? Android App is available in the Google’s Play Store. Your use of the Application must comply with respective online application market’s Terms and Conditions (“Usage Rules”). The app is free to download. To subscribe and get access to some products, services, and promotions you may be charged a fee through your iTunes account or Google Play account. It is a recurring transaction, that will automatically renew unless you cancel your account at least 24 hours before the end of the current subscription month. You can manage your Apple subscription, cancel anytime, or turn off auto-renewal by accessing your iTunes account. The subscription fee for Application will be billed at the beginning of your paid subscription period and each anniversary date thereafter. No cancellation of the current subscription is allowed during active subscription period. We are not offering refunds for any in-app purchases, so please be careful when you make purchases. If you feel an in-app purchase has been made in error, please contact Apple for support. You can manage your Google Play subscription, cancel anytime, or turn off auto-renewal by accessing your Google Play account. We reserve the right to impose or amend fees for any aspect of the Application.
You may not distribute or make our products or services (application, website…) available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute, or sublicense any of our products or services (Application, website…) You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the application, website, any updates, content (videos, pictures, text) or any part thereof. Any attempt to do so is a violation of the rights of Vibrainium Learning, Inc. dba Got Soul? App. If you breach this restriction, you may be subject to prosecution and damages.
What personal information do we collect from the people that visit our blog, website or use our app?
When purchasing or registering on Got Soul? app or website, as appropriate, you may be asked to enter your name, email address or other details to help you with your experience.
For certain features in our applications, we may use face detection algorithms to detect the position of the user’s face in an image from a video/camera stream. Data, including (but not limited to) image itself and metadata such as a number of faces in the stream, provided by those algorithms are only used locally on the user-owned device/computer and are immediately discarded after the current image is processed. It is not collected by us, nor by any third-party service, we may use.
When do we collect information?
We collect information from you when you start using our app, subscribe to a newsletter, respond to a survey, fill out a form, Use Live Chat.
How do we use your information?
We may use the information we collect from you when you register to our app, make a purchase, sign up for our newsletter, respond to a survey or marketing communication, surf the website, or use certain other site features in the following ways:
• To personalize your experience and to allow us to deliver the type of content and product (or service) offerings in which you are most interested.
• To allow us to better service you in responding to your customer service requests.
• To administer a contest, promotion, survey or other site feature.
• To ask for ratings and reviews of services or products
• To follow up with them after correspondence (live chat, email or phone inquiries)
We will not sell or share personal data about children or consumers with third-party companies for marketing purposes.
How do we protect your information?
Our app and website code are scanned on a regular basis for security holes and known vulnerabilities in order to make your visit to our site or using our app as safe as possible.
We use regular Malware Scanning.
Your personal information is contained behind secured networks and is only accessible by a limited number of persons who have special access rights to such systems and are required to keep the information confidential. In addition, all sensitive/credit information you supply is encrypted via Secure Socket Layer (SSL) technology.
We implement a variety of security measures when a user enters, submits, or accesses their information to maintain the safety of your personal information.
All transactions are processed through a gateway provider and are not stored or processed on our servers.
Do we use ‘cookies’?
• Help remember, and process purchases and subscriptions.
• Compile aggregate data about our app and website audiences and interactions in order to offer better experiences and tools in the future. You can choose to have your computer warn you each time a cookie is being sent, or you can choose to turn off all cookies. You do this through your browser settings. Since
You can choose to have your computer warn you each time a cookie is being sent, or you can choose to turn off all cookies. You do this through your browser settings. Since browser is a little different, look at your browser’s Help Menu to learn the correct way to modify your cookies. If you turn cookies off, some of the features that make your experience more efficient may not function properly.
California Online Privacy Protection Act
According to CalOPPA, we agree to the following:
– Users can visit our site anonymously.
Can change your personal information:
• By emailing us
• By chatting with us or by sending us a support ticket
How does our site handle Do Not Track signals?
We honor Do Not Track signals and Do Not Track, plant cookies, or use advertising when a Do Not Track (DNT) browser mechanism is in place.
COPPA (Children Online Privacy Protection Act)
When it comes to the collection of personal information from children under the age of 13 years old, the Children’s Online Privacy Protection Act (COPPA) puts parents in control. The Federal Trade Commission, United States’ consumer protection agency, enforces the COPPA Rule, which spells out what operators of websites and online services must do to protect children’s privacy and safety online.
In order to remove your child’s information please contact the following personnel:
We adhere to the following COPPA tenants:
• We will not require a child to disclose more information than is reasonably necessary to participate in an activity.
• Parents can review their child’s personal information, direct us to delete it, and refuse to allow any further collection or use of the child’s information.
• Parents can agree to the collection and use of their child’s information, but still not allow disclosure to third-parties unless that’s part of the service.
• Parents can review, delete, manage or refuse with whom their child’s information is shared through
emailing our support staff, through calling our support number, through account settings in our app or
contact us directly.
• Parents can give consent by sign a consent form and send it back to you via fax, mail, or electronic scan, use a credit card, debit card, or another online payment system that provides notification of each separate transaction to the account holder or contacting us directly.
Fair Information Practices
The Fair Information Practices Principles form the backbone of privacy law in the United States and the concepts they include have played a significant role in the development of data protection laws around the globe. Understanding the Fair Information Practice Principles and how they should be implemented is critical to comply with the various privacy laws that protect personal information.
In order to be in line with Fair Information Practices we will take the following responsive action, should a data breach occur: We will notify you via email within 14 business days
We also agree to the Individual Redress Principle which requires that individuals have the right to legally pursue enforceable rights against data collectors and processors who fail to adhere to the law. This principle requires not only that individuals have enforceable rights against data users, but also that individuals have recourse to courts or government agencies to investigate and/or prosecute non-compliance by data processors.
CAN SPAM Act
The CAN-SPAM Act is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have emails stopped from being sent to them, and spells out tough penalties for violations.
We collect your email address in order to:
• Send useful information, respond to inquiries, and/or other requests or questions
• Process orders and to send information and updates pertaining to orders.
• Send you additional information related to your product and/or service
• Market to our mailing list or continue to send emails to our clients after the original transaction has occurred.
To be in accordance with CANSPAM, we agree to the following:
• Identify the message as an advertisement in some reasonable way.
• Include the physical address of our business or site headquarters.
• Monitor third-party email marketing services for compliance, if one is used.
• Honor opt-out/unsubscribe requests quickly.
• Allow users to unsubscribe by using the link at the bottom of each email.
If at any time you would like to unsubscribe from receiving future emails, you can email us at firstname.lastname@example.org or follow the instructions at the bottom of each email. We will also promptly remove you from all correspondence.
If there are any questions regarding these legal terms, you may contact us using the information below.
Vibrainium Learning, Inc. dba Got Soul? App
9460 Amberdale Drive Suite #G-3, Chesterfield, Virginia 23236 – USA
Changes of these Terms – The Terms of this agreement are subject to change by Vibrainium Learning, Inc. on its sole discretion at any time.
This Operators Agreement (“Operators Agreement”) contains the terms under which Got Soul? App a division of Vibrainium Learning, Inc. (“Got Soul”) agrees to grant Operator access to and use of Got Soul’s online platform and services. By executing a Service Order that references this Operator Agreement,
The parties agree as follows:
1.1. “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.2. “Agreement” means this Operator Agreement together with each Platform Addendum and the Service Order.
1.3. “Chargeback” means a request to invalidate a payment that a Customer files directly with (a) his or her debit or credit card company; (b) his or her debit or credit card-issuing bank; or (c) any other entity that provides payment services.
1.4. “Confidential Information” means information in any form, whether oral or written, of a business, financial or technical nature which is disclosed by a party (“Disclosing Party”) in the course of this Agreement and which the recipient (“Receiving Party”) reasonably should know is confidential, but excluding the information listed in Section 12.2. The terms of this Agreement (including pricing) are each party’s Confidential Information.
1.5. “Customer(s)” is defined in the applicable Platform Addendum.
1.6. “Effective Date” means the date set forth in the Service Order.
1.7.“Fraudulent Charge” means a credit or debit card charge by a Customer that is determined by the card company or payment processor to be fraudulent.
1.8 “Merchant” means the entity identified as such in the Service Order.
1.9.“Merchant Content” means (a) each and all of the text, graphics, logos, video, audio, information, data, software, and other content and materials relating to the Merchant Services which are produced or provided by or for Merchant, and (b) any and all copyrights, trademarks and other intellectual property and proprietary rights related thereto, as now or hereafter constituted and in any form or media.
1.10. “Merchant Service(s)” is defined in the applicable Platform Addendum.
1.11.“Got Soul Content” means all information, data, products, materials, and all other content, software and services made available on or through the Got Soul? App or otherwise generally provided to Operator by GotSoul.
1.12. “Got Soul Fees” means the Commissions, Flat Fees and other amounts payable to Got Soul, as set forth in the Service Order.
1.13 “Got Soul Platform” means the Got Soul services purchased by Operator as set forth in the Service Order.
1.14. “Platform Addendum” means an addendum attached to this Agreement, which contains terms specific to a purchased Got Soul Platform offering.
1.15. “Service Order” means the Got Soul Service Order executed by Got Soul and Operator referencing this Merchant Agreement.
1.16. “Voucher” means a confirmation of purchase provided by Got Soul to a Customer after processing the Customer’s purchase.
2. THE SERVICES
2.1 Service Order, Product Schedules, Precedence. Operator orders the subscriptions to use one or more Got Soul Platform offerings pursuant to the Service Order. Each Got Soul Platform offering is also subject to the applicable Platform Addendum. If there is any conflict among any elements of this Agreement, the descending order of precedence will be (unless expressly stated otherwise for any particular terms): Service Order, Platform Addendum, Operator Agreement.
2.1 Operator Account. Operator must set up an account with Got Soul in connection with Got Soul’s use of the Got Soul Platform ("Operator Account"). Operator will designate one or more of its employees to be the point of contact with Got Soul for the management and support of the Got Soul Platform, and who will be responsible for establishing and managing Operator’s use of the Got Soul Platform, including the creation of authentication credentials to access the Got Soul Account. Operator will safeguard all Operator Account user authentication credentials in its possession or under its control and is responsible for acts and omissions of its Operator Account users relating to this Agreement as though they were Operator’s own. Operator is responsible for all activities that occur under the Operator Account and for the accuracy, quality and integrity of the Operator Content that Operator or its users input into the Got Soul Platform.
2.3 Use of the Got Soul Platform. The rights granted to Operator to use each Got Soul Platform offering are set forth in the applicable Got Soul Addendum, and are subject to any use limitations that may be set forth in the applicable Platform Addendum and the Service Order.
2.3.1. Changes to Agreement. From time to time Got Soul may change the terms of this Master Agreement or a Platform Addendum. Got Soul reserves the right to make any and all such changes. Got Soul will strive to provide advance notice of any change that materially alters the terms of this Master Agreement or a Platform Addendum.
3. SALE AND PERFORMANCE OF OPERATOR SERVICES
3.1 Seller of Record. Operator agrees that it is the sole seller of record or have legal access of all Operators Services, and that Got Soul’s activities are undertaken solely to assist Operator in facilitating the sale of such Services. Got Soul will not be a party to any agreement between Operator and the Customer and Operator is directly responsible for any and all breaches or other liabilities occurring in connection with the Operator Services.
3.2 Collection of Payment from Customers. Operator appoints Got Soul as its agent to collect credit and debit card payments on its behalf from Customers for purchases of Operator Services made through or entered into the Got Soul Platform. Got Soul will use third party payment processors for all credit and debit card transactions as determined solely by Got Soul, and this Agreement will be subject to the requirements of such processors and of applicable law.
3.3 Vouchers. Got Soul will provide each purchasing Customer with a Voucher and directions on how to use a Voucher to redeem the purchased Operator Service. Operator agrees to fully and faithfully accept and honor all Vouchers sold to Customers and to perform all Operator Services in accordance with the terms and conditions as stated in the Voucher at the time of purchase. Operator will accept Vouchers presented on mobile devices unless otherwise agreed upon in writing.
4. FEES; COLLECTION AND REMITTANCE; CHARGEBACKS; REFUNDS
4.1 Fees. Got Soul? shall be paid a commission (“Commission”) or a flat fee (“Flat Fee”) on all of the Operator Services purchased through or entered into the Got Soul Platform, as set forth in the Service Order. Got Soul will also be paid any other Got Soul Fees set forth in the Service Order. Got Soul will withhold and retain the Got Soul Fees for its own account from Customer Payments (defined below) and remit any net Operators Payment (defined below) to Operator as described below. Got Soul also reserves the right to invoice Operator for Got Soul Fees at its own discretion. Payment of each invoice is due within ten (10) days of the invoice date. Operator will reimburse any reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Got Soul to collect any amount that is not paid when due.
4.2 Collection and Remittance. Got Soul will typically fully receive payments collected by Got Soul from Customers through Stripe and American Express within four (4) business days after the purchase date. On the next payment date after receipt of payments, Got Soul will remit to Operator, the total amount of the payments collected by Got Soul from Customers for the Operator Services (“Customer Payments”) minus all Commissions, Flat Fees and other Got Soul Fees and amounts due to Got Soul, as well as all Customer refunds, Chargebacks and Fraudulent Charges. All such payments by Got Soul are collectively referred to as “Operator Payments”. Unless otherwise provided in the Platform Addendum or the Service Order, Operator Payments will be made each business day. All Operator Payments will be converted into and made in U.S. Dollars, unless otherwise agreed upon by the parties in the Service Order. Got Soul is not responsible for the collection or payment of any incidentals from Customers. Got Soul has the right to recoup any wire fees due to incorrect, incomplete bank information provided by the Operator, and may exercise the right to do so.
4.3. Taxes With respect to payments collected by Got Soul for purchases of Operator Services through the Got Soul Platform, Got Soul will collect and withhold from Customers all applicable Transaction Taxes and will remit such Transaction Taxes to Operator as part of the Operator Payments. “Transaction Taxes” means all applicable sales, use taxes, value added taxes (VAT), and other transactional taxes for purchases of Operator Services. Operator is responsible for filing all returns and remitting all taxes and other governmental charges in connection with the sale or performance of the Operator Services (including all Transaction Taxes, whether Got Soul collected the Customer payment or Operator collected the Customer payment directly) and any payments accrued or received by Operator for the Operator Services, and Operator agrees to fully indemnify, hold harmless and defend Got Soul and its Affiliates and contractors from all liabilities related to taxes and other governmental charges. Operator also agrees to fully comply with all applicable laws and to timely file and remit all taxes and other charges to the appropriate tax or other authorities. Got Soul further may be legally required to report the Operator Payments and other payments made to Operator to tax or other governmental authorities under applicable law.
4.4. Chargebacks and Fraudulent Charges.
4.4.1. Handling of Chargebacks. In the event a Customer who purchased the Operator Services initiates a Chargeback, Operator agrees that Got Soul will deduct the full amount of the Chargeback, as well as any associated fees, fines, or penalties, from Customer Payments for the next Operator Payment due to Operator. If Operator’s next Operator Payment is insufficient, Operator agrees to pay Got Soul the full Chargeback balance upon invoicing as set forth in Section 4.1. Got Soul agrees to use reasonable efforts to investigate and, if appropriate, challenge suspect Chargebacks. Operator agrees to use reasonable efforts, at Operator’s expense, to assist Got Soul, at Got Soul’s request, in the investigation of any such suspect Chargebacks.
4.4.2. Excessive Chargebacks. If Got Soul determines that Operator is incurring excessive Chargebacks, Operator may establish controls or conditions governing Operator’s account, such as: (a) establishing new processing fees, (b) delaying payouts, (c) refusing the award of Chargebacks, or (d) terminating or suspending services.
4.4.3. Fraudulent Charges. In the event of a Fraudulent Charge, Operator agrees that Got Soul will deduct the full amount of the Fraudulent Charge, as well as any associated fees, fines, or penalties, from Customer Payments for the next Operator Payment due to Operator. If Operator’s next Operator Payment is insufficient, Operator agrees to pay Got Soul the full balance upon invoicing as set forth in Section 4.1.
4.5 Refunds. In the event of a Fraudulent Charge or a payment of any refund to a Customer, (a) Got Soul will not charge or retain any applicable Commission on the applicable transaction, and (b) Got Soul will not be responsible for paying any amount to the Got Soul for such transaction, except to the extent otherwise expressly provided in a Platform Addendum.
5. PROPRIETARY RIGHTS
5.1 Got Soul Property and Rights. Operator acknowledges and agrees that Got Soul and its successors and assignees are and will remain the exclusive owners in all jurisdictions of the Got Soul Platform and Got Soul Content, including all patents, copyrights, trademarks, trade secrets, moral rights and other intellectual property rights and proprietary rights related thereto, excluding only the Operator Content (together, “Got Soul Property and Rights”). All rights not expressly granted to Operator under this Agreement are hereby reserved by Got Soul, and no license or other rights are being granted by Got Soul by implication, estoppel or otherwise.
5.2 Operator Content. Got Soul acknowledges and agrees that, as between Got Soul and Operator, Operator is and will remain the exclusive owner in all jurisdictions of the Operator Content, including all patents, copyrights, trademarks, trade secrets, moral rights and other intellectual property rights and proprietary rights related thereto. Operator hereby grants to Got Soul a worldwide, nonexclusive, fully-paid up, royalty-free, transferable right and license (with right to sublicense through multiple tiers) during the Term to copy, reproduce, distribute, disclose, publish, broadcast, communicate, display and/or perform (whether publicly or otherwise), host, store, prepare derivative works from, translate, modify or combine with other data or information or content, and/or otherwise use any and all of the Operator Content and to have others exercise such rights and license on behalf of Got Soul in connection with the Operator Services.
5.3. Operator Input. Got Soul welcomes any feedback or other input that Operator may provide Got Soul concerning improvements to the Got Soul Platform (“Input”). Input excludes Operator’s Confidential Information. By providing Input to Got Soul, Operator agrees that all Input becomes Got Soul’s exclusive property, and Operator hereby assigns to Got Soul all its rights to Input, including all intellectual property rights in Input. Unless other-wised agreed in writing mutually by both parties.
6. RESTRICTED ACTIVITIES. Operator agrees that it will not directly or indirectly:
(a) infringe upon or misappropriate any Got Soul Property and Rights, or remove or alter any proprietary notices or labels;
(b) take any act which undermines the integrity or functionality of or interferes with, or transmits or uploads any content or code which contains a virus, Trojan horse, worm or other harmful component, or circumvents or disables any security or data protection measures for any part of the Got Soul Platform;
(c) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Got Soul Property and Rights;
(d) circumvent or disable any technological or security features or measures in the Got Soul Platform;
(e) rent, lease, or sublicense the Got Soul Platform or otherwise provide unauthorized access thereto;
(f) reproduce, distribute, transmit, publish, display, perform, disclose, prepare derivative works from, translate, modify or combine or use any of the Got Soul Property and Rights, excepting only uses expressly permitted by this Agreement;
(g) upload or submit or transmit any Operator Content or other material which (i) infringes upon or misappropriates the intellectual property rights or other legal rights of any third party, (ii) constitutes unlawful, obscene, harassing or offensive content or activity or (iii) breaches or violates any privacy or confidentiality or other legal obligations; or
(h) frame, mirror or link to any of the Got Soul Platform without the express written consent of Got Soul in its sole discretion.
7.1.1. Indemnification by Got Soul.
7.1.1. Indemnification. Got Soul agrees to fully indemnify, defend and hold harmless Operator and its officers, directors, employees, representatives and agents (collectively, “Operator Indemnified Parties”) from and against any and all liabilities, losses, judgments, damages or expenses, including but not limited to reasonable attorney’s fees and expenses (collectively, “Losses”), incurred by any Operator Indemnified Party arising out of any third party claim, proceeding or suit (each, “Claim”) that alleges that the use of the Got Soul Platform by the Operator Indemnified Parties infringes or misappropriates any United States, patent, copyright, trademark or other proprietary rights of such third party, if (a) the applicable Operator Indemnified Party gives Got Soul prompt written notice of the Claim; (b) Got Soul has full and complete control over the defense and settlement of the Claim; (c) the applicable Operator Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Got Soul may reasonably request; and (d) the applicable Operator Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
7.1.2. Mitigation. If Operator’s or their respective agents’ use of the Got Soul Platform is, or in Got Soul’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a Claim under Section 7.1, then Got Soul may either: (a) procure the continuing right of Operator to use the Got Soul Platform; (b) replace or modify the Got Soul Platform in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Got Soul is unable to do either (a) or (b), Got Soul may (c) terminate Operator’s rights to the Got Soul Platform under this Agreement and provide Operator with a prorated refund of prepaid fees, if applicable, covering the remainder of the term of this Agreement.
7.1. 3Indemnification by Operator. Operator agrees to fully indemnify, defend and hold harmless Got Soul and its officers, directors, employees, representatives, agents, distribution partners and their respective successors and assigns (collectively, “Got Soul Indemnified Parties”), from and against any and all Losses incurred by any Got Soul Indemnified Party arising out of any Claim relating to or arising out of (a) any of the Operator Services; (b) Operator’s breach of any provision, warranty or representation in this Agreement; (c) Operator’s intentional acts or omissions or any form of negligence or other similar wrongdoing; (d) any infringement or misappropriation of intellectual property or other rights by any Operator Content; or (e) Operator’s failure to comply with any applicable laws, if (i) the applicable Got Soul Indemnified Party gives Operator prompt written notice of the Claim; (ii) Operator has full and complete control over the defense and settlement of the Claim; provided, however, that Operator shall not settle any Claim that admits liability or places any obligation on a Got Soul Indemnified Party; (iii) the applicable Got Soul Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Operator may reasonably request; and (iv) the applicable Got Soul Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
7.3. Disclaimer. Neither Got Soul nor Operator will be liable for any form of equitable or implied indemnification to the other with respect to this Agreement, the subject matter of this Agreement or otherwise.
8. WARRANTIES AND DISCLAIMERS
8.1. Mutual Warranties. Each party represents and warrants that it has power and authority to enter this Agreement, the person or entity executing this Agreement has the power and authority to bind the party to this Agreement, and its entry into and performance of this Agreement will not breach any contractual obligations with third parties.
8.2. Disclaimer.NOTWITHSTANDING ANY CONTRARY PROVISION, AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW:
8.2.1.THE GOT SOUL PLATFORM AND ALL COMPONENTS THEREOF, AND ALL ADVICE, INFORMATION AND MATERIALS, ARE BEING PROVIDED TO OPERATOR AND ANY RELATED PERSON OR ENTITY “AS IS” AND WITH ALL FAULTS. ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED OR STATUTORY) OF GOT SOUL OR ANY AFFILIATE ARE HEREBY EXCLUDED AND DISCLAIMED, INCLUDING BUT NOT LIMITED TO (a) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF TITLE OR NON-INFRINGEMENT, (b) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, USEFULNESS OR SUITABILITY, AND (c) ANY REPRESENTATION OR WARRANTY THAT THE GOT SOUL PLATFORM OR ANY PART THEREOF WILL BE SECURE, RELIABLE, TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE; OR THE RESULTS THAT MAY BE OBTAINED FROM ANY OF THE FOREGOING.
8.2.2.ANY ACCESS TO OR USE OF THE GOT SOUL PLATFORM SHALL BE AT OPERATOR’S SOLE RISK AND OPERATOR IS RESPONSIBLE FOR EVALUATING AND BEARING ALL RISKS ASSOCIATED WITH SUCH ACCESS AND USE.
9. LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANY CONTRARY PROVISION OR ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY OF ANY KIND, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, GOT SOUL WILL NOT BE LIABLE TO OPERATOR OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT. IN NO EVENT WILL GOT SOUL’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY RELATED CLAIMS, ACTIONS OR CAUSES OF ACTION AND ANY CLAIMS FOR INDEMNIFICATION, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT OF GOT SOUL FEES PAID TO GOT SOUL FOR THE OPERATOR SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT FIRST GIVING RISE TO THE RELEVANT CLAIM, ACTION OR CAUSE OF ACTION. MERCHANT UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND ARE REASONABLE AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE FOREGOING LIMITATIONS SHALL NOT BE INCREASED BY MULTIPLE CLAIMS, ACTIONS OR CAUSES OF ACTION WHETHER SIMILAR OR NOT.
10. INSURANCE. Operator agrees to maintain in full force and effect adequate liability insurance coverage in connection with the Operator Services at all times during the Term and for a period of two (2) years following the end of the Term. Operator agrees at the request of Got Soul to name Got Soul and its Affiliates as additional insureds on such insurance policies. This can generally be done easily and without additional cost by contacting the insurance broker or insurance company. Operator’s compliance with this Section 10 does not limit its indemnification or other obligations under this Agreement.
11. TERM AND TERMINATION
11.1. Term. The term of this Agreement commences on the Effective Date and ends on the date specified in the Service Order (“Initial Term”). Upon expiration of the Initial Term the parties may renew this Agreement for successive renewal periods (each, a “Renewal Term”) at such rates as may be mutually agreed upon in writing between them. Got Soul will provide Operator with notice of its proposed Got Soul Fees for the next Renewal Term at least thirty (30) days prior to the expiration of the then-current term. The Initial Term and each Renewal Term are referred to in this Agreement as the “ Term”.
11.2. Termination. Either party can terminate this Agreement for cause (including any material breach of this Agreement by the other party) by immediate written notice to the other party.
11.3. Effects of Termination. Upon termination of this Agreement for any reason: (a) each license to a Got Soul Platform offering granted by Got Soul to Operator will immediately terminate; (b) Operator will purge all copies of all Got Soul Content from any computer, server or other hardware and each party will return the other party’s Confidential Information; (c) each party’s respective rights and obligations under Sections 3, 4, 5, 7, 8, 9, 10, 11.3, 12 and 13 of this Operator Agreement and relevant portions of each Platform Addendum, including the payment to Got Soul of all compensation obligations incurred prior to the effective date of termination, each shall survive and remain in full force and effect; (d) Operator shall continue to fulfill all unused Vouchers, and all terms of this Agreement with respect to the fulfillment of unused Vouchers (except all licenses granted by Got Soul) shall survive termination until their applicable expiration; and (e) all claims or causes of action in existence as of the date of termination shall survive.
12.1. Non-disclosure. The Receiving Party will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or use of the Disclosing Party’s Confidential Information and the disclosure of the Disclosing Party’s Confidential Information to third parties without the Disclosing Party’s prior written consent. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Affiliates, consultants, contractors, representatives and agents (including financial advisors, accountants and attorneys) (collectively, “Representatives”) who are acting on behalf of the Receiving Party and are bound by, or are otherwise protected by legal privilege or confidentiality and non-disclosure commitments on terms no less protective of the Confidential Information than the terms of this Agreement. If a Receiving Party is legally compelled to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall (a) provide prompt written notice (if legally permissible) to the Disclosing Party so that the Disclosing Party can seek a protective order or other appropriate remedy, and (b) limit any such disclosure to the extent of the legal requirement, and the disclosed information will remain Confidential Information despite such disclosure.
12.2. Exceptions.Confidential Information excludes information which: (a) is or becomes (through no act or omission of the Receiving Party in breach of this Agreement), generally available to the public; (b) becomes known to the Receiving Party or any of its Affiliates on a non-confidential basis through a third party who is not subject to an obligation of confidentiality with respect to that information; (c) was lawfully in the possession of the Receiving Party or any of its Affiliates prior to such disclosure; (d) is independently developed by the Receiving Party or any of its Affiliates; or (e) the Disclosing Party agrees is not confidential or may be disclosed, to the extent of that consent.
13.1. Merchant Warranty. Without limiting Merchant’s other obligations, Merchant represents and warrants that (a) it will provide the Merchant Services in a professional and safe manner at all times; (b) it will not infringe upon or misappropriate the intellectual property or other rights of any other person or entity with respect to the subject matter of this Agreement; (c) Merchant has all necessary rights to grant the licenses granted by it to Peek, including the right to use the name, likeness, and identifying information of any identifiable person in the Merchant Content; and (d) Merchant possesses all licenses and registrations necessary to conduct its business and to provide all Merchant Services to be offered herein.
13.2. Governing Law. This Agreement and all matters relating to or in connection with this Agreement shall be governed by the laws of the State of Virginia, United States of America, without regard to any conflict of laws principles that require the application of the laws of a different jurisdiction.
13.3. Arbitration.Notwithstanding any contrary provision hereof, all disputes, claims, controversies and matters relating to or in connection with this Agreement (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in Richmond, Virginia, USA before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
13.4. Venue. Subject to Section 13.3, any other actions (if any) arising out of or related to this Agreement must be brought exclusively in the federal or state courts located in the Richmond, Virginia USA, and each of the parties agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Peek also may seek injunctive or other equitable relief for breach of this Agreement in any court of competent jurisdiction wherever located. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable attorney’s fees and costs from the other party.
13.5. Assignment. Operator may not assign, transfer, delegate or sublicense this Agreement or any rights or obligations hereunder, either voluntarily or by operation of law or means of a merger, consolidation or sale of stock or other ownership interest or other change of control or ownership, and any such purported act shall be null and void. Subject to the foregoing restrictions this Agreement shall benefit and be binding upon each of the parties and their respective successors and permitted assignees. Other than in the case of indemnified parties, there shall be no third party beneficiaries of this Agreement.
13.6 Notices. All notices and other communications (collectively “Notices”) required to be given or delivered to a party shall be in writing and addressed to the party at its principal corporate offices or as otherwise designated by notice hereunder. All Notices shall be deemed to have been given or delivered upon: (a) personal delivery; (b) three (3) days after deposit in the United States mail by certified or registered mail (return receipt requested); (c) two (2) business days after deposit with an internationally recognized overnight courier; or (d) one (1) business day after transmission by electronic mail. All Notices and other communications required or permitted under this Agreement shall be made in the English language.
13.7. Miscellaneous. This Agreement (including all Product Schedules and the Service Order) constitutes the entire understanding and agreement with respect to its subject matter and supersedes all prior and other current agreements and discussions between the parties, provided that any confidential or proprietary information disclosed previously to Operator shall be part of the Got Soul’s Confidential Information. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. In the event that any of the provisions of this Agreement shall be held to be invalid or unenforceable by a competent court or arbitrator, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include any other gender. No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. Notwithstanding any contrary provision of this Agreement, whenever the words “include,” “includes” or “including” or any other variation are used in this Agreement, such words shall be deemed, unless the context otherwise requires, to be followed by the words “without limitation.” Section headings are only for convenience and are not part of this Agreement.
13.8. Counterparts. The Service Order may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. The Service Order may also be executed and delivered by electronic mail and such execution and delivery will have the same force and effect of an original document with original signatures.
SALE AND PERFORMANCE OF OPERATOR SERVICES
1.1. Sale and Vouchers. Got Soul will sell the Operator Service on Operator’s behalf to the Customer through the Got Soul? App, provide each purchasing Customer with a Voucher as described in the Operator Agreement and inform Operator in a timely manner that a Operator Service has been purchased. The retail price of each Voucher will be the "all inclusive" and total charge made to the Customer for the Operator Service, unless otherwise expressly noted in the Got Soul? App Marketplace listing.
1.2. Honoring Vouchers. Operator will use its best efforts to accommodate Customers arriving after the cut-off time for any Merchant Service. If the Merchant Service is not available when the Customer seeks to redeem the Voucher, then subject to applicable law, (a) Operator agrees to offer the Customer a similar service of equal or greater value, and (b) if the Customer refuses the alternative offer, then Got Soul reserves the right to issue a full refund to the Customer and deduct the same from any current or future payments due to Operator.
1.3. Legal Compliance. Operator agrees to comply with all applicable laws with respect to the Operator Services and the other subject matter of these Terms. Operator’s obligations under these Terms shall include compliance with laws prohibiting the provision of alcohol or tobacco or other restricted products to minors. If Operator refuses to accept a Voucher because Operator believes it is unlawful to do so, Operator will notify Got Soul immediately in writing and Got Soul shall be relieved of any obligation to pay Operator for the Operator Services represented by the Voucher.
7. FEEDBACK AND REVIEWS. Operator(a) agrees that the Got Soul? App Marketplace may implement mechanisms that rate, and allow Customers to rate, and provide photos, videos, reviews and commentary regarding Operator and the Operator Services (together "Feedback"); (b) consents to Feedback being made publicly available and distributed; (c) agrees that all Feedback is (as between the parties) owned by Got Soul or the relevant third party provider, except for any Operator Content included therein; (d) agrees that neither Got Soul nor any third party provider shall have any responsibility or liability to Operator or an Affiliate in the case of negative or disputed Feedback, and all such responsibility or liabilities are hereby disclaimed; and (e) agrees that Got Soul or the third party provider may limit Operator’s activities on the Got Soul? App Marketplace based upon Feedback. Operator also agrees to not upload any feedback from any other third party websites to the Got Soul? App Marketplace without the prior written consent of Got Soul (which may be withheld in its sole discretion), and to not self-generate positive Feedback regarding the Operator Services or upload any negative Feedback for other merchants on the Got Soul? App Marketplace, either directly or by persons under Operator’s direction.
8. DATA. Got Soul owns all individual Customer and sales information collected by Got Soul in connection with the Operator Services sold through the Got Soul? App Marketplace. Any such information about a Customer provided by Got Soul to Operator shall be used by Operator solely to honor the Customer’s Voucher and provide the Operator Service to the Customer.
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