gaiia

These Terms of Use are entered into in connection with the Order Form and contain the terms and conditions that govern the Services. These Terms of Use are a legally binding agreement between Gaiia and you entered into as of the date of the Order Form.

1. 1. DEFINITIONS
   
   1. 1.1."AAA” means the American Arbitration Association.
   2. 1.2.“Account” means a Gaiia account dedicated to you and your representatives for the access and the use of the Services.
   3. 1.3.“Acquisition” has the meaning set out in Section 3.1.
   4. 1.4.“Add-ons” means enhanced features or services that are purchased separately and provide extra functionality or usage rights. Add-ons can be subscription-based, pay-per-use or one-time purchase, as applicable.
   5. 1.5.“Aggregated Statistical Information” has the meaning set out in Section 7.1.
   6. 1.6.“API” means an application programming interface.
   7. 1.7.“Applicable Laws” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirements, or rule of law, including with respect to privacy and data protection.
   8. 1.8.“Confidential Information” has the meaning set out in Section 9.1.
   9. 1.9.“Content” means, without limitation, any information, code, data, functionality, website design text, software, music, audio, photographs, graphics, video, messages, tags and/or other materials provided by Gaiia to you and/or the End Customer under these Terms of Use.
   10. 1.10.“Documentation” means any manuals, instructions, or other documents or materials that Gaiia may provide or make available to you in any form or medium and which describe the functionality, components, features, or requirements of the Services.
   11. 1.11.“Disclosing Party” has the meaning set out in Section 9.1.
   12. 1.12.“End Customer” means any end customer or subscriber who purchases goods or services from you and who has access to certain functionalities or features made available through the Services (e.g., a subscriber who receives communication services from you and who is given access to a customer portal made available by Gaiia).
   13. 1.13.“Feedback” means any ideas, suggestions, documents, or proposals that you submit to Gaiia through any communication channel or otherwise through any of the Services.
   14. 1.14.“Gaiia” means 9303-4338 Québec Inc., a company incorporated under the laws of the Province of Québec, Canada.
   15. 1.15.“Gaiia Parties” means Gaiia, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, subcontractors and licensors.
   16. 1.16.“Gaiia Software” means the operations support system and business support system (OSS/BSS) for communication service providers made available to you by Gaiia, including at app.gaiia.com, as may be amended or updated from time to time.
   17. 1.17.“Improvements” means modifications, improvements, developments, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations.
   18. 1.18.“Integration Directory” means any Gaiia managed online directory where integrations that interoperate with the Services are made available.
   19. 1.19.“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and similar or equivalent rights or forms of protection in any part of the world, and any and all claims for damages by way of past, present and future infringement of any of the foregoing, with the right, but not the obligation, to sue for and collect such damages for said use or infringement of such rights.
   20. 1.20.“Legacy Business” has the meaning set out in Section 3.1.
   21. 1.21.“Order Form” means a Gaiia order form, renewal notice, purchase order, subscription form or other similar purchase document, including in electronic format, agreed by Gaiia and you from time to time and incorporated by reference into these Terms of Use, pursuant to which you subscribe to Services.
   22. 1.22.“Payment Service Provider” means an entity which provides services to facilitate transfers of funds from you and your End Customers, such as Stripe, GoCardless or such other provider as Gaiia may designate from time to time.
   23. 1.23.“Personal Data” means any Services Data containing information about an identifiable person, directly or indirectly.
   24. 1.24.“Privacy Policy” means Gaiia’s Privacy Policy located on Gaiia’s website at https://app.gaiia.com/legal/privacy-policy.
   25. 1.25.“Receiving Party” has the meaning set out in Section 9.1.
   26. 1.26.“Services” means your access to and use of the Gaiia website, the Gaiia Software and other products and services related thereto provided by Gaiia, including any related APIs, together with any Add-ons that you purchase or subscribe to. Services exclude Third-Party Services.
   27. 1.27.“Services Data” means any of your or your End Customers’ information, documents, or electronic files that are transmitted to or accessible through the Services, which may include Personal Data.
   28. 1.28.“Subscription Period” means the subscription period for the use of the Services agreed upon between Gaiia and you in an Order Form.
   29. 1.29.“Taxes” means direct or indirect local, provincial, state, federal or foreign taxes, levies, duties or similar government assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes.
   30. 1.30.“Third-Party Service” means any third-party service, connection, data, software, application, or integration that interoperates with the Services that is provided or made available by you or a third party, including those provided through the Integration Directory. Third-Party Services include embedded content where the Services may display a preview or link to the content, but does not store the content from the third-party service.
   31. 1.31.“Terms of Use” means these Gaiia Software as a Service Terms of Use that govern your access to and use of the Services and includes any applicable Order Form.
   32. 1.32.“you” or “your” means the customer identified in the Order Form.

1. 2. ACCEPTANCE
   
   1. 2.1.Signature. Acceptance by Gaiia and you to any applicable Order Form shall be evidenced by the signature of the applicable Order Form by your and Gaiia’s duly authorized representative. Such acceptance shall create a binding agreement pursuant to which Gaiia shall provide and you shall accept the Services subject to the terms and conditions contained in the Order Form and in these Terms of Use. Neither Gaiia’s commencement of performance nor delivery of any of the Services shall be deemed or construed as acceptance of any other different terms and conditions.
   2. 2.2.Responsibility. It is your responsibility to ensure that the functions of the Services are in accordance with your needs and meet your technical, organizational, legal, privacy, and practical requirements.
   3. 2.3.Complete Agreement. In case of conflict between the terms of an Order Form and the terms of these Terms of Use, the terms of the Order Form shall prevail.

1. 3. USE OF THE SERVICES
   
   1. 3.1.Access to, and Use of, the Services. Subject to these Terms of Use, Gaiia will make available the Services to you during the applicable Subscription Period in the manner described in these Terms of Use. Extra features and functionalities may be accessible through Add-ons. Notwithstanding the foregoing, in the event (i) the Customer is acquired by, merged into, or sells substantially all of its assets to another entity, (ii) the Customer acquires or merges with another entity, or (iii) other change of control of the Customer (each, an “Acquisition”) these Terms of Use shall remain in effect with respect to the Customer’s ongoing use of the Services for End Customers under any trade name used by the Customer as of the date immediately preceding such Acquisition, including any increases in End Customers resulting from organic growth (the “Legacy Business”). However, neither the acquiring entity, the acquired entity, nor any of their respective affiliates shall expand the scope of use of the Services beyond the End Customers associated with the Legacy Business without the prior written consent of Gaiia, which may be conditioned upon the negotiation of additional terms, conditions, and compensation, including but not limited to fees, or other financial consideration.
   2. 3.2.Updates. You acknowledge and agree that technology is ever-evolving and advancing and that Gaiia retains the right to update the Services from time to time with or without notifying you. These updates may include, but are not limited to, patching, fixing bugs, releasing a new version or modifying the Services. Gaiia may, at its discretion, suspend your access or use of the Services for scheduled maintenance or to address any emergency security concerns.
   3. 3.3.Necessary Equipment and Software. You must provide all equipment, software, and hardware necessary to connect to the Services and your Account. You are solely responsible for any fees, including internet connection that you incur when accessing the Services. You are solely responsible for keeping your hardware devices secure. Gaiia will not be responsible if someone else accesses your devices and authorizes a transaction upon receipt of a valid transfer initiated using the Services.
   4. 3.4.Responsibility for Activity. You are responsible for all activities that occur during your use of the Services, and by the use of the Services by your representatives and End Customers. You agree that you shall monitor your use of the Services and you will accept full responsibility for any unauthorized use of the Services, including but not limited to, unauthorized use by minors.
   5. 3.5.Gaiia Integration Directory and Third-Party Services. Gaiia reserves the right to cease providing the Integration Directory, including features and listings, without notice if, but not limited to, a Third-Party Service is unavailable or incompatible with the Services. Third-Party Services are not warranted or supported by Gaiia. Third-Party Services and their features may be available but are not guaranteed. Accessing Third-Party Services through the Integration Directory is exclusively governed by the agreement between you and the provider of such Third-Party Services. Further, by enabling any Third-Party Service, you authorize Gaiia to transfer the Services Data to the third-party provider of the Third-Party Service in accordance with the functionality of such Third-Party Service.
   6. 3.6.Gaiia API. Gaiia may provide an API as an extension of the Services. Your API usage is governed by these Terms of Use, and we retain the right to modify or terminate your API access (or any part of it), with or without notice. The API is subject to changes, and you are responsible for ensuring compatibility with the current version.
   7. 3.7.Service Level Agreement. Gaiia will use reasonable best efforts to provide the Services in compliance with the terms of the service level agreement attached hereto as Appendix A.

1. 4. FEES, PAYMENT AND TAXES
   
   1. 4.1.Services Fees. By entering into an Order Form with Gaiia and by using the Services, you agree to pay all applicable fees set forth in an Order Form and in these Terms of Use (plus any and all applicable Taxes).
   2. 4.2.Invoicing. Invoices for the Services will be sent to you in the period indicated in the Order Form, and will be due and payable upon receipt. Unless otherwise set out in the Order Form, any payment not received by Gaiia by the thirtieth (30th) day following the due date will be considered overdue, will be subject to a late payment charge of $40, and all amounts due and unpaid will bear interest at a rate of 2% per month (24% per annum), calculated and compounded monthly, from the due date to the payment date. If payment is not received by Gaiia by the thirtieth (30th) day following the due date, Gaiia may suspend or terminate your Account, without notice, and refuse to provide you and any End Customer all or any of the Services.
   3. 4.3.Charge Basis. Unless otherwise set out in the Order Form, if fees for the Services are determined on the basis of the number of monthly End Customers you have, such fees will be determined based on the highest number of active End Customers in existence in your Account at any time during the prior month.
   4. 4.4.Automatic Payment Renewal. If you are paying by credit card or pre-authorized debit through a valid credit card or pre-authorized debit agreement acceptable to Gaiia, you hereby authorize Gaiia to charge your credit card or bank account for all fees payable on a recurring basis in accordance with the Order Form and these Terms of Use. You further authorize Gaiia to use Payment Service Providers for the sole purpose of processing payments made pursuant to these Terms of Use.
   5. 4.5.Inaccurate or Incomplete Payment. If your payment information is not accurate, current and complete, and you do not notify Gaiia promptly when such information changes, or if a chargeback is processed on your account, Gaiia may suspend or terminate your Account, without notice, and refuse to provide you and any End Customer all or any of the Services.
   6. 4.6.Taxes. Unless otherwise stated, the fees stated in these Terms of Use and in the Order Form do not include any Taxes. You are solely responsible for paying all Taxes associated with the Services. If Gaiia has a legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount will be invoiced to, and paid by you, unless you provide Gaiia with a valid tax exemption certificate authorized by the appropriate tax authority.
   7. 4.7.Billing Disputes. If you believe that we have billed you incorrectly, you must contact us no later than sixty (60) days after receipt of the invoice in which the error or problem appeared in order to receive an adjustment or credit.

1. 5. REPRESENTATIONS AND WARRANTIES
   
   1. 5.1.Your Representations. You hereby represent and warrant to Gaiia that:
      1. 5.1.1.you have the full power and all necessary rights to enter into the Order Form and these Terms of Use; and
      2. 5.1.2.you will carry out your obligations thereunder in compliance with Applicable Laws.
   2. 5.2.Gaiia’s Representations. Gaiia hereby represents and warrants that:
      1. 5.2.1.Gaiia has the full power and all necessary rights to enter into the Order Form and these Terms of Use;
      2. 5.2.2.Gaiia will carry out its obligations thereunder in compliance with Applicable Laws; and
      3. 5.2.3.in providing the Services, Gaiia will not make any unauthorized use of any Intellectual Property Rights of any third party, excluding any infringement or claim, litigation or other proceedings to the extent arising out of any or your content or Services Data or any instruction, information, designs, specifications, or other materials provided by you to Gaiia.

1. 6. OWNERSHIP
   
   1. 6.1.Intellectual Property Rights. You acknowledge and agree that Gaiia and/or its licensors own all right, title and interest, including Intellectual Property Rights in and to (i) the Services and any Improvements thereto, and (ii) anything developed or delivered by or on behalf of Gaiia under these Terms of Use, including any Improvements thereto, Content and Documentation. You acknowledge and agree that the Services, the Content and the Documentation are made available, not sold, and that except as expressly stated herein, these Terms of Use do not grant you any rights to, under, or in, any Intellectual Property Rights (whether registered or unregistered), or any other rights or licences in respect of the Services, the Content or the Documentation. All Content and Intellectual Property Rights contained therein are owned, controlled by, used, or licensed to Gaiia, and are protected by any and all Intellectual Property Rights laws. You or the End Customers shall not remove, alter or obscure any Intellectual Property Rights notices incorporated in or accompanying any Services, Content and Documentation.
   2. 6.2.Copies. Except as expressly provided in these Terms of Use, no part of Gaiia’s Services, Documentation and Content including any and all Intellectual Property Rights related thereto may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, sublicensed or otherwise exploited or used for any purpose whatsoever, without Gaiia’s express prior written permission.
   3. 6.3.Feedback. You agree that submission of any Feedback is at your own risk and that Gaiia has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Gaiia a fully paid-up, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, reformat, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, for any purpose. You agree to complete and execute any documents and perform such acts as Gaiia may deem necessary in its reasonable opinion to give full effect to the terms of this Section 6.3. You understand and agree that you, not Gaiia, are fully responsible for any Feedback and other content that you submit or contribute to, and you are fully responsible and legally liable, including to any third party, for such content and its accuracy. We are not responsible or legally liable to any third party for the content or accuracy of any Feedback or any other content submitted by you or any other user of the Services.

1. 7. DATA
   
   1. 7.1.Services Data. You retain all ownership and Intellectual Property Rights in and to Services Data. You hereby grant to Gaiia, a royalty-free, worldwide, non-exclusive, fully paid-up, transferable right and license to use, copy, transmit, modify, publish, export, display, create derivative works, adapt and translate the Services Data, together with the right to sublicense these rights to hosting, connectivity, and communication service providers to the extent reasonably necessary to provide and improve the Services and for the exercise and performance of Gaiia’s rights and obligations hereunder. Gaiia may collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies (including, without limitation, information concerning the Services Data and its derivative data). During and after the Subscription Period, Gaiia may use, copy, modify, adapt, translate, creative derivative works, distribute, and display such data and information, provided it is aggregated or de-identified (such data and information, “Aggregated Statistical Information”) for business purposes, including without limitation for developing, enhancing, and supporting the Services. For greater clarity, Aggregated Statistical Information will not contain any Personal Data. All rights, titles, and interests in and to such Aggregated Statistical Information, and all Intellectual Property Rights therein, belong to and are retained solely by Gaiia.
   2. 7.2.Protective Measures. Gaiia agrees not to use the Personal Data that may be included in the Services Data for any other purposes without your prior consent. Gaiia further agrees to take commercially reasonable measures to:
      1. 7.2.1.Protect the confidentiality of any Personal Data communicated to it under these Terms of Use;
      2. 7.2.2.Not keep such Personal Data following the expiration or termination of these Terms of Use, unless permitted under Applicable Laws;
      3. 7.2.3.Notify your data protection officer without delay of any of violation of the provisions of Section 7.1; and
      4. 7.2.4.During these Terms of Use, allow your data protection officer to conduct verifications at your sole costs, provided, however, that:
         1. 7.2.4.1.The sole purpose of such verification shall be to confirm Gaiia’s compliance with the provisions of Section 7.1;
         2. 7.2.4.2.Any third-party performing such verification on your behalf shall enter into a confidentiality agreement with Gaiia in a form agreed to by the parties and shall not disclose any information, except as necessary to report to the Parties; and
         3. 7.2.4.3.You shall not conduct such verification more than once a year during these Terms of Use.
   3. 7.3.Privacy Laws. You represent and warrant to Gaiia that you are now and will continue at all relevant times to be compliant with all Applicable Laws, including governing privacy and any Services Data that you may provide to Gaiia or access through the Services. You represent and warrant that you have obtained all necessary rights, permissions and consents, and have made all applicable disclosures, or otherwise have all requisite authority, in each case as required under Applicable Laws, to disclose or grant access to Gaiia, or allow Gaiia to perform its obligation and exercise its rights under these Terms of Use. You agree that Personal Data will be treated in accordance with the Privacy Policy. As may be required by Applicable Laws and in connection with these Terms of Use, you are solely responsible for disclosing to your End Customers that Gaiia may receive Personal Data from you. Additionally, where required by Applicable Laws, we may delete or disconnect an End Customer’s Personal Data from your Account, including when requested to do so by the End Customer. The parties agree to complete and execute any documents and perform such acts as may deem necessary to ensure the confidentiality of the Personal Data communicated to Gaiia hereunder, and to ensure compliance with any Applicable Laws.

1. 8. CONDUCT
   
   1. 8.1.You agree that you are solely responsible for your conduct in connection with the Services, and for all uses of the Services, the Content and the Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted or in violation of these Terms of Use. Any unauthorized use of the Services can lead to termination of these Terms of Use by Gaiia in accordance with Section 16.2. You agree that you will abide by these Terms of Use and will not (and will not attempt to) directly, indirectly, alone, or with another part:
      1. 8.1.1.copy, disassemble, reverse engineer, or decompile the Services;
      2. 8.1.2.modify, create derivative works based upon, or translate the Services;
      3. 8.1.3.license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the Services, the Content and the Documentation in any form to any other party;
      4. 8.1.4.provide false or misleading information to Gaiia;
      5. 8.1.5.use or attempt to use the account of another Gaiia client without authorization from such client;
      6. 8.1.6.pose as another person or entity;
      7. 8.1.7.use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other Gaiia clients from fully enjoying the Services, or that could damage, disable, overburden or impair the functioning of the Services in any manner;
      8. 8.1.8.bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Services;
      9. 8.1.9.attempt to circumvent any content-filtering techniques Gaiia employs;
      10. 8.1.10.use any robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by Gaiia to access the Services, interfere with or modify the rendering of Services, pages, or functionality;
      11. 8.1.11.collect or harvest data from the Services that would allow you to contact individuals, companies, or other persons or entities, or use any such data to contact such entities other than those individuals, companies, or other persons or entities for whom the contact information was entered into the Services by yourself;
      12. 8.1.12.bypass or ignore instructions that control all automated access to the Services;
      13. 8.1.13.use the Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates any Applicable Laws or these Terms of Use;
      14. 8.1.14.carry out any illegal activities in connection with or in any way related to your access to and use of the Services, including but not limited to money laundering;
      15. 8.1.15.deliberately engage in activities designed to adversely affect the performance of the Services;
      16. 8.1.16.upload, post, e-mail, transmit or otherwise make available through the Services any content that infringes any patent, trademark, trade secret, copyright, right of publicity, or other rights of any person or entity; or
      17. 8.1.17.attempt to access any account that you do not have the legal authority to access.
   2. 8.2.Without limiting the generality of the foregoing, you are responsible for all acts and omissions of End Customers, and any act or omission by an End Customer that would constitute a breach of these Terms of Use if taken by you, will be deemed a breach of these Terms of Use by you.

1. 9. CONFIDENTIALITY
   
   1. 9.1.Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (the “Disclosing Party”) disclosed to the other Party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of these Terms of Use, the Services and Content available. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
   2. 9.2.Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms of Use, except with the Disclosing Party’s prior written permission.
   3. 9.3.Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
   4. 9.4.Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
   5. 9.5.Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.

1. 10. PUBLICITY
   
   1. 10.1.Gaiia will ask for your consent before using your name, logo and marks to identify you as a Gaiia customer on Gaiia’s website and in other marketing materials for advertising and publicity purposes.

1. 11. INVESTIGATIONS
   
   1. 11.1.Gaiia may, but is not obligated to, monitor or review the Services, Content and Documentation thereon at any time. Without limiting the foregoing, Gaiia shall have the right, in its sole discretion, to change, alter or remove any of your content if such content violates these Terms of Use or any Applicable Laws.

1. 12. ASSUMPTION OF RISK
   
   1. 12.1.Acceptance and Acknowledgement. You accept and acknowledge that you take full responsibility for all activities that you effect through your Account and accept all risks associated with the Services, including loss as a result of authorized and unauthorized access to your Account, to the maximum permitted by law.
   2. 12.2.Other Acceptances. To the extent permitted by Applicable Laws, and subject to Gaiia’s obligations under Applicable Laws and these Terms of Use, you accept and acknowledge that:
      1. 12.2.1.All credit card and other financial information maintained on the Services is tokenized and/or encrypted. Apart from such tokenization and/or encryption, you assume all risks arising from use of any such sensitive information with the Services, including the risks of inadvertent disclosure or unauthorized access thereto.
      2. 12.2.2.The Services rely on, and Gaiia makes no guarantee or warranties as to the functionality of or access to, any third-party service providers which you may use in connection with the Services, including those that interoperate with the Services or Payment Services Providers that assist with the performance of any transaction for you.
      3. 12.2.3.You are responsible for ensuring that all use and maintenance of Services Data on or in connection with the Services are in compliance with all Applicable Laws. You acknowledge that you are assuming all risks arising from any such use that is not compliant with any Applicable Laws.
      4. 12.2.4.You assume full responsibility for the security and maintenance of the Services Data and any other information prior to its receipt by or storage in connection with the Services. You also assume full responsibility for the security and maintenance of the Services Data and any other information downloaded in connection with the Services. You shall use your best reasonable efforts, including reasonable security measures, to ensure that no unauthorized person may gain access to the Services.
      5. 12.2.5.You are solely responsible for establishing access to the internet or other telecommunications system as may be necessary to interact with the Services. Gaiia does not represent or warrant the quality or speed of any connection to the Services. You are also solely responsible for the selection, maintenance and use of any browser or other interface that may be necessary to interact with the Services and Gaiia does not represent or warrant that the Services is compatible with any software or system other than that recommended or approved by Gaiia.
      6. 12.2.6.You may only use the Services for legitimate transactions with your End Customers. Gaiia is not responsible for the products or services you publicize or sell, or that your End Customers purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your End Customers.

1. 13. INDEMNIFICATION
   
   1. 13.1.Indemnification by You. You agree to indemnify, defend and hold the Gaiia Parties harmless from any losses, costs, liabilities and expenses (including reasonable legal fees) relating to or arising out of any third-party claim, suit, action or proceeding arising out of or resulting from your breach of any representation or warranty set forth in these Terms of Use.
   2. 13.2.Indemnification by Gaiia. Gaiia agrees to indemnify, defend and hold you harmless from any losses, costs, liabilities and expenses (including reasonable legal fees) relating to or arising out of any third-party claim, suit, action or proceeding arising out of or resulting from Gaiia’s breach of any representation or warranty set forth in these Terms of Use.
   3. 13.3.Defence. Gaiia reserves the right, at its own cost, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Gaiia in asserting any available defences. Gaiia will not enter into any settlement agreement requiring any action or admission by you without your prior written consent, which consent shall not be unreasonably withheld. You agree that the provisions in this Section will survive any termination of these Terms of Use and/or your access to the Services.

1. 14. DISCLAIMER OF WARRANTIES AND CONDITIONS
   
   1. 14.1.AS IS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, YOU AGREE AND UNDERSTAND THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. GAIIA EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARISING FROM THE USE OF THE SERVICES. GAIIA MAKES NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS, AND OTHER DISRUPTIONS. GAIIA MAKES NO WARRANTY, REPRESENTATION, OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM GAIIA OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
   2. 14.2.NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT GAIIA IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD GAIIA LIABLE, FOR THE CONDUCT OF THIRD PARTIES THAT YOU MAY USE IN CONNECTION WITH THE SERVICES, INCLUDING OPERATORS OF EXTERNAL SITES AND PAYMENT SERVICE PROVIDERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. GAIIA MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. GAIIA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OR ANY CONNECTED CONTENT OBTAINED THROUGH THE SERVICES.

1. 15. LIMITATION OF LIABILITY
   
   1. 15.1.DISCLAIMERS. GAIIA SHALL HAVE NO LIABILITY FOR ANY FAILURE TO SATISFY ITS REPRESENTATIONS, WARRANTIES OR OBLIGATIONS HEREUNDER IF SUCH FAILURE IS ATTRIBUTABLE, IN WHOLE OR IN PART, TO: (i) YOUR FAILURE TO USE ANY BUG FIXES, CORRECTIONS, PATCHES, UPDATES, UPGRADES OR NEW OR CORRECTED VERSIONS OF THE SERVICES OR DOCUMENTATION MADE AVAILABLE BY GAIIA, (ii) YOUR USE OF THE SERVICES FOR ANY PURPOSE OTHER THAN THAT AUTHORIZED IN THESE TERMS OF USE, (iii) YOUR USE OF THE SERVICES IN COMBINATION WITH OTHER SOFTWARE, DATA OR PRODUCTS THAT ARE DEFECTIVE, INCOMPATIBLE WITH, OR NOT AUTHORIZED IN WRITING BY GAIIA FOR USE WITH THE SERVICES, (iv) YOUR MISUSE OF THE SERVICES, (v) ANY MALFUNCTION OF YOUR OWN SOFTWARE, HARDWARE, COMPUTER, COMPUTER-RELATED EQUIPMENT OR NETWORK CONNECTION, OR (vi) A FORCE MAJEURE EVENT.
   2. 15.2.NO LIABILITY FOR AVAILABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL GAIIA BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE, DATA, OR PROFITS, AS WELL AS PROPERTY DAMAGE OR OTHER INTANGIBLE OR ECONOMIC LOSS, ARISING OUT OF OR RELATED TO YOU OR YOUR INABILITY TO USE THE SERVICES, ESPECIALLY DUE TO REDUCTION OF AVAILABILITY, CANCELLATION OR MODIFICATION, HACKING ATTACKS, FAILURE, MALFUNCTION OR OCCURRENCE OF OTHER ERRORS IN THE OPERATION OF THE SERVICES OR INTEGRATED THIRD-PARTY SERVICES, EVEN IF GAIIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH END CUSTOMERS, ON ANY THEORY OF LIABILITY, INCLUDING AS A RESULT OF THE FOLLOWING REASONS :  
      1. 15.2.1.the Services do not function in some web browsers;
      2. 15.2.2.disputes have arisen between you and/or End Customers;
      3. 15.2.3.questionable validity, performance, legality or any other matters concerning the transaction made with a Payment Service Provider by you via the Services;
      4. 15.2.4.content has been added to the Services by you, which is not in compliance with or not used in compliance with these Terms of Use, good practice or Applicable Laws;
      5. 15.2.5.the management of the Accounts by you, including violations of Applicable Laws or breaches of the performed through the Accounts, regardless of whether or not the person is authorized to use the Account;
      6. 15.2.6.changes that have taken place in Applicable Laws and their interpretation, their impacts on your business activity, and reflection of the respective changes in the Services, unless it is obligatory for Gaiia under the law applicable to these Terms of Use or a court decision made regarding Gaiia;
      7. 15.2.7.force majeure and other faults and disturbances that Gaiia cannot directly affect, which prevent you from using any of the Services (including interruptions in the internet connection, issues concerning the hosting sub-processor of the Platform, interruptions concerning utilities etc.);
      8. 15.2.8.errors, damages or settings in your devices that are inappropriate for the use of the Services;
      9. 15.2.9.delays, interruptions, or failures in the use of the Services due to planned maintenance and/or development works;
      10. 15.2.10.processing of data by third parties to whom Gaiia submitted the Content with your knowledge, except for sub-processors processing the personal data in connection with the Services;
      11. 15.2.11.loss of an Account password or such Account falling into the possession of third parties, or its use by third parties;
      12. 15.2.12.processing and disclosing of content on the order of a governmental or regulatory authority or a court or other authority of competent jurisdiction;
      13. 15.2.13.vulnerabilities created by you and/or End Customers and any circumstances arising from worms, trojan horses, viruses, malware and other similar things, that have been uploaded to Gaiia’s systems by or due to events related to you.
   3. 15.3.CAP ON LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY CAUSE WHATSOEVER IN CONNECTION WITH THESE TERMS OF USE, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO GAIIA FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING SUCH CLAIM. FOR GREATER CLARITY, THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT INCREASE THIS AMOUNT.
   4. 15.4.BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GAIIA AND YOU.

1. 16. TERM AND TERMINATION
   
   1. 16.1.Term. These Terms of Use commence on the date indicated in the Order Form and remain in full force and effect until the expiry of the Subscription Period, unless terminated earlier in accordance with these Terms of Use. At the expiry of the Subscription Period, the Subscription Period will automatically renew for successive additional terms of one (1) month each, unless terminated earlier in accordance with these Terms of Use, or upon sixty (60) days’ prior written notice from one Party to the other.
   2. 16.2.Termination for Cause. Without limiting any other provision of these Terms of Use, each Party reserves the right to terminate these Terms of Use if the other Party is in breach of these Terms of Use and fails to remedy such breach within thirty (30) days after receiving written notice thereof. In the case of unremedied breach by you, in addition to the foregoing, Gaiia reserves the right to deny access to and use of the Services, including but not limited to suspending or deleting applicable Accounts or blocking certain IP addresses.
   3. 16.3.No Termination Without Cause. If a minimum term for the Subscription Period is stated in the Order Form, you may not terminate these Terms of Use unilaterally.
   4. 16.4.Automatic Termination. These Terms of Use and any right granted to you hereunder shall automatically terminate and all rights shall return to Gaiia (a) upon the expiry of the Subscription Period or any renewal thereof in accordance with these Terms of Use, (b) if you have a trustee, receiver or similar party appointed for your property, become insolvent, acknowledge your insolvency in any manner, make an assignment for the benefit of your creditors, or (c) file a petition of bankruptcy or if you initiate any legal actions against the Gaiia Parties other than through the dispute resolution process set out hereunder.
   5. 16.5.No Subsequent Use. If your ability to access the Services is suspended or discontinued by Gaiia, then you agree that you will not attempt to access the Services through use of a different Account or otherwise. In the event that you violate the immediately preceding sentence, Gaiia reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
   6. 16.6.Effects of Expiration or Termination. Upon expiration or earlier termination of these Terms of Use, you shall immediately discontinue use of the Services, the Content and the Documentation as well as any other Intellectual Property Rights of Gaiia, and, without limiting your obligations under Sections 7 and 9, you shall delete, destroy, or return all copies of Gaiia’s Confidential Information. No expiration or termination will affect your obligation to pay all fees that may have become due before such expiration or termination, or entitle you to any refund.

1. 17. DISPUTE RESOLUTION
   
   1. 17.1.PLEASE READ THESE ARBITRATION TERMS OF USE CAREFULLY. IT REQUIRES YOU TO ARBITRATE A DISPUTE WITH GAIIA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM GAIIA. THIS SECTION 17 IS REFERENCED HERETO AS AN “ARBITRATION AGREEMENT”.
   2. 17.2.Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to the Services or to any aspect of your relationship with Gaiia will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Gaiia may seek equitable relief in court for infringement or other misuses of Intellectual Property Rights, for any breach of any confidentiality and privacy obligations hereunder. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of these Terms of Use or any prior version of these Terms of Use.
   3. 17.3.Arbitration Rules and Seat of Arbitration. You agree that the arbitration will be held remotely and will be governed by the rules of the AAA then in effect. The arbitration tribunal will be composed of one (1) arbitrator chosen by mutual agreement of the parties from a list of arbitrators provided by the AAA. If the parties cannot reach an agreement on an arbitrator within fifteen (15) days of receipt of the list provided by the AAA, then on the fifteenth (15th) day, the parties Representative will convene a conference with the AAA case administrator (or such other AAA staff member as the AAA will make available). The claimant and the respondent will alternate striking one arbitrator from the list until one arbitrator is left, which such arbitrator will be appointed. If such arbitrator is unable or unwilling to serve, then the next to last candidate will be chosen. Either Party may commence a binding arbitration in accordance with the AAA, or another forum mutually agreed upon by the parties. As promptly as practicable after the arbitrator is selected (and, in any event, within fifteen (15) days after the arbitrator’s engagement), each Party and its professional advisors will prepare and submit a written presentation to the arbitrator, which may include, in addition to the arguments and position statements of each Party, exhibits and testimony in the form of affidavits. As soon as practicable thereafter (and, in any event, no later than thirty (30) days after submission), the arbitrator will choose either Party’s position based solely upon such written presentations. Each of the parties will be responsible for its own costs and fees incurred in connection with such dispute. The parties will share equally the fees and expenses of the arbitrator. It is the desire and intent of the parties that such arbitration be held without any discovery, deposition or motion practice, and that the arbitrator receive evidence solely through the written submissions and not hold an evidentiary hearing.
   4. 17.4.Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement to be void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Gaiia. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator cannot act as an amicable composer and will have to decide the dispute according to the rules of law. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under the Applicable Laws, the arbitral forum’s rules, and these Terms of Use (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Gaiia.
   5. 17.5.Waiver of Jury Trial. YOU AND GAIIA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Gaiia are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.2 (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
   6. 17.6.Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. If a decision is issued stating that an Applicable Law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the courts located in New Castle County, Delaware. All other disputes, claims, or requests for relief shall be arbitrated.
   7. 17.7.Severability. Except as provided in Section 17.6 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
   8. 17.8.Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Gaiia.

1. 18. MISCELLANEOUS
   
   1. 18.1.Assignment. These Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Gaiia’s prior consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Gaiia may assign these Terms of Use and its rights and obligations hereunder in connection with a corporate reorganization or a sale of all or substantially all of Gaiia’s assets.
   2. 18.2.Electronic Signatures. Facsimile signatures or any other form of electronic signatures or indications of electronic acceptance are binding and fully enforceable to the same extent as written signatures. You understand and acknowledge that the act of accessing or using the Services constitutes your electronic signature and consent to these Terms of Use.
   3. 18.3.Export Control. You may not use, export, import, or transfer the Services except as authorized under the Applicable Laws.
   4. 18.4.Force Majeure. Gaiia shall not be liable or deemed in breach of these Terms of Use if Gaiia has any delay or failure to perform the Services or any portion of thereof from causes beyond Gaiia’s control, including, but not limited to, acts of God or public enemy, fires, earthquakes, pandemics, labor disputes, wars, terrorism, riots, embargos, acts of civil or military authorities, floods, accidents, strikes, shortages of either transportation facilities, fuel, energy, labor or materials, or any local, provincial, federal or international law, governmental order or regulation or any other event.
   5. 18.5.GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS OR THE CONFLICT OF LAW PROVISIONS OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS OF USE.
   6. 18.6.Language. You agree that all communications and notices made or given pursuant to these Terms of Use and the Privacy Policy must be in the English language. If Gaiia provides a translation of the English language version of these Terms of Use, the English language version of these Terms of Use will prevail if there is any conflict. Vous acceptez que toutes les communications ou notifications effectuées ou envoyées en vertu de ces conditions d’utilisation et de la politique de vie privée soient faites en langue anglaise. Si Gaiia fournit une traduction de la version anglaise des présentes conditions d’utilisation, la version anglaise des présentes conditions d’utilisation prévaudra en cas de conflit.
   7. 18.7.Notice. You may give notice to Gaiia under these Terms of Use by email to legal@gaiia.com. Gaiia may give notice to you by email to the address set out in the Order Form.
   8. 18.8.Severability. Whenever possible and subject to Section 17, each provision of these Terms of Use shall be interpreted in such manner as to be effective and valid under the Applicable Laws, but if any provision of these Terms of Use is held invalid or unenforceable, the remainder of these Terms of Use shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision and shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties.
   9. 18.9.Survival. Any sections of these Terms of Use which expressly survive termination or expiration of these Terms of Use, or which, by their nature, should reasonably survive termination or expiration of these Terms of Use, shall survive termination or expiration. Without limiting the generality of the foregoing, the terms contained in Sections 4, 5, 7 , 9, 13, 14, 15, 17 and 18 shall survive termination or expiration of these Terms of Use.
   10. 18.10.No Waiver. A delay or failure by either Party to exercise any right or partial right shall not be deemed to constitute a waiver of any such right or any other rights hereunder. A consent or waiver by either Party to a failure of any express or implied term of these Terms of Use on one occasion will not be deemed a waiver of any other provision or such provision to any subsequent failure.
   11. 18.11.Entire Agreement. These Terms of Use, together with any webpages, documents or policies incorporated into these Terms of Use by reference, including the Privacy Policy, constitute the entire agreement and understanding between you and Gaiia relating to the matters contemplated by these Terms of Use and supersede any and all prior or contemporaneous written and oral agreements, negotiations, representations, commitments, writing, communications and other understandings (if any) relating to the subject matter of the terms. For greater certainty, any terms or conditions proposed by Gaiia or contained on a website, product or service brochure, other ordering or licensing documents or in any “shrink-wrap” or “click wrap” agreement are void and of no effect unless agreed to in writing by you and Gaiia.
   12. 18.12.Independent Counsel. The parties hereto represent and agree that prior to executing these Terms of Use, each has had the opportunity to review these Terms of Use to consider its terms and consult with independent counsel, and that the terms and conditions of these Terms of Use are the result of arm’s length and good faith negotiations between the parties.