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GITAR, INC.

Terms of Service

Last Updated: March 13, 2024

Welcome, and thank you for your interest in Gitar, Inc. (“Gitar,” “we,” or “us”) and our website at www.gitar.co, along with our related websites, hosted applications, and other services provided by us (collectively, the “Service). These Terms of Service are a legally binding contract between you and Gitar regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY

BY CLICKING “I ACCEPT,” ENTERING INTO AN ORDER FORM WITH GITAR THAT REFERENCES THESE TERMS (AS DEFINED BELOW) (“ORDER FORM”), OR BY OTHERWISE ACCESSING OR USING THE SERVICE, YOU (“CUSTOMER” OR “YOU”) AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR ACCESS TO OR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING GITAR’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE GITAR’S PERMISSION TO ACCESS OR USE THE SERVICE. YOUR USE OF THE SERVICE, AND GITAR’S MAKING AVAILABLE THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY GITAR AND BY YOU TO BE BOUND BY THESE TERMS. THE EFFECTIVE DATE OF THESE TERMS IS THE DATE THAT YOU ACCEPT OR AGREE TO THESE TERMS BY CLICKING “I ACCEPT,” BY ENTERING INTO AN ORDER FORM WITH GITAR, OR BY ACCESSING OR USING THE SERVICE (“EFFECTIVE DATE”). IF CUSTOMER IS AN ENTITY, ORGANIZATION, OR COMPANY, THEN: (A) THE INDIVIDUAL ACCEPTING THESE TERMS ON CUSTOMER’S BEHALF REPRESENTS AND WARRANTS THAT THEY HAVE ALL REQUISITE AUTHORITY TO BIND CUSTOMER TO THESE TERMS; (B) CUSTOMER AGREES TO BE BOUND BY THESE TERMS; AND (C) THE TERMS "CUSTOMER" AND “YOU” SHALL REFER TO SUCH COMPANY.

  1. COMPANY SERVICE OVERVIEW. At Gitar, we’re building the modern software development platform – tools that offer a magical developer experience supercharged by advanced code analysis and artificial intelligence. We enable efficient and reliable development at scale, empowering developers to do the best work of their careers.
  2. ELIGIBILITY. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
  3. GENERAL PAYMENT TERMS. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law.
    1. Price. Gitar reserves the right to determine pricing for the Service. Gitar will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. Gitar may, on a going-forward basis, change the fees for the Service (including any feature or functionality with respect thereto), including additional fees or charges, and Gitar will notify Customer of any such changes before they apply. Gitar, at its sole discretion, may make promotional offers with different features and different pricing to any of Gitar’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms. If you purchase Services pursuant to an Order Form, unless otherwise set forth in the Order Form, fees are due within fourteen (14) days of the applicable invoice date.
    2. Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Gitar or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our pricing page at gitar.co/subscription-pricing. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service 7 days before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Gitar or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by contacting customer support at support@gitar.co. YOUR CANCELLATION MUST BE RECEIVED 7 DAYS BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
    3. Delinquent Accounts. Gitar may suspend or terminate access to the Service, including fee-based positions of the Service, for any account for which any amount is due but unpaid. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by applicable law, whichever is less. In addition to the amount due for the Service, you will be charged for any documented costs or expenses incurred by Gitar to collect any fees or expenses that are not paid when due (including, without limitation, collections or reasonable attorneys’ fees). Amounts due from you may not be withheld or offset by you against amounts due to you for any reason. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then Gitar reserves the right to delete your account and any information or Customer Data (defined below) associated with your account without any liability to you.
    4. Taxes. You are responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to its payment of fees, whether domestic or foreign (“Taxes”), other than Taxes based on Gitar’s income. All fees and expenses are exclusive of Taxes.
    5. Authorization. You authorize Gitar to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Gitar, including all applicable Taxes, to the payment method specified upon purchase. If you pay any fees with a credit card, then Gitar may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
  4. TERM AND TERMINATION.
    1. Term. These Terms are effective beginning on the Effective Date, and ending when terminated as described in Section 4.2 (Termination).
    2. Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Gitar may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. For the avoidance of doubt Gitar may terminate this Agreement, immediately upon notice to you, in the event that any of Gitar’s service providers implements any change or modification to either (i) the technology provided or made available by such service provider that is used in connection with the Service, or (ii) the service provider’s terms and conditions of provision of the services to Gitar which, in each case, prevents, modifies, limits, or otherwise alters Gitar’s ability to perform its obligations under these Terms. You may terminate your account and these Terms at any time by contacting customer service at support@gitar.co.
    3. Effect of Termination. Upon the expiration or termination of these Terms: (a) your license rights will terminate and you will (1) immediately discontinue all use of the Service, (2) promptly return or destroy (at Gitar’s option) all non-public information, content, information, or data disclosed or otherwise made available by Gitar to you, or otherwise learned or received by you, under these Terms or through the Service, and (3) promptly pay to Gitar any fees or other amounts that accrued prior to the effective date of termination (if any); and (b) Sections 4.3 (Effect of Termination), 5.3 (Feedback), 6 (Intellectual Property), 11 (Warranty Disclaimer), 13 (Limitation of Liability), 14 (Indemnification), and 19 (Miscellaneous) will survive. If your access to the Service has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
    4. Modification of the Service. Gitar reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discounting certain features of the Service), temporarily or permanently, without notice to you. Gitar will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service.
  5. LICENSES; RESTRICTIONS; USAGE.
    1. Limited License. Subject to your complete and ongoing compliance with these Terms, Gitar grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
    2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you will not: (a) modify, disassemble, create derivative works of, translate, decompile, reverse engineer, rent, lease, loan, transfer, reproduce, distribute, publicly display, publicly perform, or copy any portion of the Service; (b) input, upload, transmit, or otherwise provide to or through the Service any information or materials (including Customer Data) that are unlawful or injurious, or contain, transmit, or activate any virus, worm, Trojan horse, malware, or other malicious computer code; (c) circumvent, disable, or otherwise interfere with the Service’s operation, security, or other technical features or measures of the Service; (d) use the Service to develop a similar or competing product or service; (e) perform or conduct any benchmarking or similar activities (including publishing benchmarks or performance information about the Service); or (f) permit any third party to do any of the foregoing.
    3. Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Gitar an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service an create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
  6. INTELLECTUAL PROPERTY.
    1. Ownership of Software and Background IP. As between the parties, Customer owns all right, title, and interest in and to the Suggestions (as defined below). Gitar hereby assigns to Customer all of Gitar’s right, title, and interest (if any) in and to the Suggestions (excluding Gitar Background IP). Customer hereby acknowledges and agrees that it is solely responsible and liable for the accuracy, appropriateness, quality, and adequacy of the Suggestions and for the adoption, integration, implementation, or placing into effect of Suggestions. For purposes of this Agreement, “Suggestions” means any suggestion, change, or recommendation provided by or through the Service with respect to Customer’s software or other Customer Data. As between the parties, Gitar owns and retains all right, title, and interest, including all related intellectual property and proprietary rights, in and to the Service (including any improvements, modifications, and enhancements thereto) (collectively, “Gitar Background IP”). Except for those rights expressly granted in this Agreement with respect to the Service, no other rights or licenses to Gitar Background IP (including any implied licenses) are granted by Gitar to Customer hereunder.
    2. Customer Data. Customer hereby acknowledges and agrees that it is solely responsible and liable for the permissions and restrictions selected, chosen, adopted, implemented, or otherwise placed into effect by Customer with respect to the Service’s access to or use of Customer Data (as defined below) (“Access Rights”). Customer hereby grants to Gitar, during the Term, a royalty-free, fully paid up, non-exclusive, and worldwide license (with the right to sublicense through multiple tiers), to use, copy, store, transmit, modify, create derivative works of, and otherwise process Customer Data to: (a) provide, maintain, improve, and enhance the Service; (b) develop, create, generate, or derive Suggestions and Analytics (as defined below); (c) as permitted by the Access Rights; or (d) as otherwise required by law. As between Customer and Gitar, Customer owns and retains all right, title, and interest, including all related intellectual property and proprietary rights, in and to Customer Data. Gitar will use commercially reasonable efforts to implement reasonable information security measures designed to protect Customer Data from unauthorized access, use, or disclosure. Customer is solely responsible for its Customer Data (including its content and accuracy, and for backing up Customer Data). For purposes of these Terms, “Customer Data” means any software, data, content, source code, or other information that is uploaded, transmitted, submitted, provided, or made available by Customer to Gitar in connection with Customer’s access or use of the Service which is processed by Gitar to provide the Service.
    3. Analytics. Gitar may collect, generate, and derive Analytics for Gitar’s lawful business purposes, which may include: (a) monitoring, operating, improving, enhancing, and supporting the Service; (b) creating analytics, benchmarking, and performance data and reports; (c) tracking usage for billing purposes; and (d) developing new products and services. As between the parties, Gitar owns and retains all right, title, and interest, including all related intellectual property and proprietary rights, in and to the Analytics (including any improvements, modifications, and enhancements thereto), the know-how and analytical results generated in the processing and use of Analytics, and any and all new products, services, and developments, modifications, customizations, or improvements to the Service made based on the Analytics. You will not interfere with the collection of Analytics. Gitar will not disclose Analytics to any third party, unless such Analytics have been (a) de-identified so that they do not identify Customer or its users, or (b) aggregated with data from other Gitar customers. For purposes of these Terms, “Analytics” means data and information derived, generated, or collected by the features and functionalities of the Service which are designed to generate statistics, to improve the Service (including the content made available on or through the Service), and to collect and analyze other information and data based on Customer’s use of the Service.
  7. CONFIDENTIALITY; DATA. Customer will maintain the confidentiality of and will not disclose to any third party any: (a) non-public information, content, information, or data disclosed or otherwise made available by Gitar to Customer, or otherwise learned or received by Customer, under these Terms or through the Service; (b) any Feedback; or (c) any performance data, or other information obtained through Customer’s access to or use of the Service. Customer acknowledges and agrees that a breach of this Section may result in irreparable harm to Gitar for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Gitar shall be entitled to seek equitable relief, including an injunction, from any court of competent jurisdiction in the event of any breach or threatened breach of this Section in order to enforce its rights hereunder without the necessity of proving actual damages or posting any bond.
  8. THIRD PARTY TERMS.
    1. Third-Party Accounts. To access most features of the Service, you must connect to the Service through a third-party account (e.g., GitHub) (each, a “Third-Party Account”). When you connect a Third-Party Account to the Service, you are submitting to Gitar your login credentials for such Third-Party Account (“Third-Party Account Credentials”). By providing Gitar with your Third-Party Account Credentials, you are authorizing Gitar to act on your behalf to retrieve information (including Customer Data) from the applicable Third-Party Account for purposes of providing the Service under these Terms. You are responsible for ensuring that your Third-Party Account Credentials have been shared in accordance with the terms of your agreement with the applicable Third-Party Account provider. Third-Party Accounts are not under Gitar’s control and Gitar is not responsible for any actions taken by third parties in connection with your sharing of Third-Party Account Credentials.
    2. Third-Party Services and Linked Websites. Gitar may provide tools through the Service that enable you to export information, including Customer Data, to third-party services (“Third-Party Services”). If you elect to enable, access, or use of any Third-Party Services, your access and use of such Third-Party Services is governed solely by the terms and conditions and privacy policies of the provider of such Third-Party Services, and Gitar does not endorse, is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third-Party Services, including, without limitation, their content, the manner in which they handle your data (including Customer Data), or any interaction between you and the provider of such Third-Party Services. Gitar is not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access, or use of any such Third-Party Service, or your reliance on the privacy practices, data security processes, or other policies relating to or used in connection with the Third-Party Services. The Service may also contain links to third-party websites (“Linked Websites”). Linked Websites are not under Gitar’s control, and Gitar is not responsible for their content. Please be sure to review the terms of use and privacy policy of any Third-Party Services before you share any information with such Third-Party Services. Once sharing occurs, Gitar will have no control over the information that has been shared.
    3. Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
  9. COMMUNICATIONS. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
  10. PROHIBITED CONDUCT. BY USING THE SERVICE, YOU AGREE NOT TO:
    1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
    2. harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
    3. violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
    4. access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Gitar;
    5. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
    6. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
    7. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
    8. sell or otherwise transfer the access granted under these Terms or any Gitar Background IP (as defined in Section 6.1 (Ownership of Software and Background IP)) or any right or ability to view, access, or use any Gitar Background IP; or
    9. attempt to do any of the acts described in this Section 10 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 10 (Prohibited Conduct).
  11. WARRANTY DISCLAIMER. THE SERVICE AND THE CONTENT, MATERIALS, AND INFORMATION MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICE ARE, IN EACH CASE, PROVIDED “AS IS” “WITH ALL FAULTS”. GITAR DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT ERROR OR INTERRUPTION OR THAT ANY CONTENT, MATERIALS, OR INFORMATION MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICE WILL BE ACCURATE OR COMPLETE. GITAR SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICE OR FROM GITAR OR ANY CONTENT, MATERIALS, OR INFORMATION MADE AVAILABLE BY OR THROUGH THEM WILL CREATE ANY WARRANTY REGARDING GITAR OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. GITAR IS NOT RESPONSIBLE FOR ANY DAMAGE RESULTING FROM ACCESS TO OR USE OF THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT USE OF ANY PORTION OF THE SERVICE IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT GITAR IS NOT RESPONSIBLE FOR ANY DAMAGE TO PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CUSTOMER DATA. GITAR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE AVAILABLE FOR ACCESS OR USE BY CUSTOMER AT ANY GIVEN TIME, AND CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT GITAR IS UNDER NO OBLIGATION TO SUPPORT OR MAINTAIN THE SERVICE OR TO PROVIDE ANY UPDATES, UPGRADES, OR OTHER TECHNICAL SUPPORT TO CUSTOMER WITH RESPECT TO THE SERVICE OR CUSTOMER DATA. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 11 (WARRANTY DISCLAIMER) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. GITAR DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT GITAR IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
  12. REPRESENTATIONS AND WARRANTIES. Customer represents and warrants to Gitar that: (a) if Customer is a company, Customer is a corporation, limited liability company, or other business entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, organization, or formation, and duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (b) these Terms have been duly executed and constitute a valid and binding agreement enforceable against Customer in accordance with its terms; (c) Customer has provided all notices to and obtained all necessary and sufficient rights, permissions, capacity, consents, and authority, in order to fully comply with its obligations under, and to grant the rights and licenses set forth in, these Terms without infringing, misappropriating, or otherwise diluting any intellectual property or proprietary third-party rights (including with respect to Customer Data and API keys provided by Customer to Gitar), and that the use of Customer Data by Gitar as provided herein will not infringe, misappropriate, dilute, or otherwise violate any third party’s intellectual property or proprietary rights; (d) Customer will at all times comply with all applicable laws; (e) Customer does not compete (indirectly or directly) with Gitar; and (f) the execution, delivery and performance of these Terms by Customer will not violate, conflict with, or cause a default under any agreement, instrument, or other contract to which Customer is a party or by which it is bound.
  13. LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN SECTIONS [X] (COMMENCING ARBITRATION) AND [X] (ARBITRATION RELIEF), TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF THE GITAR ENTITIES FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (A) THE FEES PAID TO GITAR FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM; OR (B) $100. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE GITAR ENTITIES HAVE ANY LIABILITY TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, OR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES (IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES). EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
  14. INDEMNIFICATION. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will indemnify, defend and hold harmless Gitar, its affiliates and their respective directors, officers, employers, agents, successors and assigns (collectively, the “Gitar Entities”) from and against any and all claims, demands, or actions made by a third party (“Claims”), and all resulting liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) incurred or suffered by the Gitar Entities from Claims arising from or in connection with: (a) Customer Data; (b) your violation of these Terms or any applicable law or regulation; (c) your gross negligence or willful misconduct or of any third party acting on your behalf; (d) any breach or non-fulfillment of any representation, warranty, or obligation by you under these Terms; (e) violation of any third-party right, including any intellectual property right or publicity, confidentiality, or other property or pivacy right; (f) any dispute between you and any third party; or (g) your unauthorized use of, or misuse of, the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
  15. DISPUTE RESOLUTION AND ARBITRATION.
    1. Generally. Except as described in Section 15.2 (Exceptions) and 15.3 (Opt-Out), you and Gitar agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. These Terms to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
      2. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GITAR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
    2. Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
    3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to Gitar, Inc., Attention: Legal Department – Arbitration Opt-Out, 1825 South Grant St., Suite 200, San Mateo, CA 94402 that specifies: your full legal name, the email address associated with your use of the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Gitar receives your Opt-Out Notice, this Section 15 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 19 (Miscellaneous). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
    4. Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.com, by calling the JAMS at +1-800-352-5267 or by contacting Gitar.
    5. Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Gitar’s address for Notice is: Gitar, Inc., 1825 South Grant St., Suite 200, San Mateo, CA 94402. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Gitar may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Gitar will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if Gitar has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
    6. Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or Gitar must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
    7. Arbitration Relief. Except as provided in Section 15.8 (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Gitar before an arbitrator was selected, Gitar will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
    8. No Class Actions. YOU AND GITAR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Gitar agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    9. Modifications to this Arbitration Provision. If Gitar makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Gitar’s address for Notice of Arbitration, in which case your account with Gitar will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
    10. Enforceability. If Section 15.8 (No Class Actions) or the entirety of this Section 15 (Dispute Resolution and Arbitration) is found to be unenforceable, or if Gitar receives an Opt-Out Notice from you, then the entirety of this Section 15 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19 (Governing Law) will govern any action arising out of or related to these Terms.
  16. MODIFICATIONS. Gitar reserves the right to update, change or otherwise modify these Terms on a going-forward basis at any time and in its sole discretion. Updates to these Terms will be effective immediately, except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the updates unless otherwise stated. Gitar may also, in its sole discretion, require that you accept any updated Terms in order to continue to access or use the Service. By continuing to access or use the Service after Gitar’s posting or notice of updated Terms, you agree to accept and be bound by the updated Terms, including all of the terms incorporated therein by reference. To the extent you do not agree to any updated Terms, then you must discontinue your use of the Service. Except as expressly permitted in this Section 16 (Modifications), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
  17. CONSENT TO ELECTRONIC COMMUNICATIONS. By using the Service, you consent to receiving certain electronic communications from Gitar as further described in the Privacy Policy (available at gitar.co/privacy-policy). Please read the Privacy Policy to learn more about Gitar’s electronic communications practices. Customer hereby agrees that any notices, agreements, disclosures, or other communications that Gitar send to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
  18. PUBLICITY. Neither party will make any public announcement relating to these Terms except with the other party’s prior written consent or as required by applicable laws. Gitar may reference Customer’s name and include Customer’s trademarks, logos, and other branding elements (“Marketing Materials”) in Gitar’s customer lists, promotional materials, and in connection with its marketing, advertising, promotional, or sales practices or activities; provided that Customer may require that Gitar cease further use of Marketing Materials upon written notice to Gitar (except that Gitar will not be obligated to cease its use of any tangible materials containing, embodying, or including Marketing Materials that are in existence at the time of Gitar’s receipt of such notice from Customer).
  19. MISCELLANEOUS.
    1. General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Gitar regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
    2. Governing Law. These Terms will be governed by the laws of the State of California without reference to conflict of law principles. All disputes arising out of or related to these Terms will be subject to the exclusive jurisdiction of the state and federal courts located in San Mateo County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. We operate the Service from our offices in California, and we make no representation that Gitar Background IP included in the Service are appropriate or available for use in other locations.
    3. Privacy Policy. Please read the Gitar Privacy Policy (available at gitar.co/privacy-policy) (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Gitar Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
    4. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
    5. Contact Information. The Service is offered by Gitar, Inc. located at 1825 South Grant St., Suite 200, San Mateo, CA 94402. You may contact us by sending correspondence to that address or by emailing us at support@gitar.co.
    6. Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
    7. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
    8. International Use. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited. Customer acknowledges that the Service may contain features subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for its compliance with United States and local country laws and regulations and shall not export, use or transmit the Service (a) in violation of any export control laws of the United States or any other country, or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.