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Terms of service
Last updated November 9, 2022


This Gather Terms of Service (the “Agreement”) is a binding contract for a
license to software and services between you (“Customer” or “you”) and Gather
Presence, Inc. (“Gather” or “we”), a Delaware corporation with offices in San
Francisco, CA. The Agreement contains, among other things, warranty disclaimers,
liability limitations and use limitations. The Platform, the website located at
https://www.gather.town/ (the “Site”) and any ancillary services performed by
Gather for Customer are collectively referred to as the “Services”.

Gather is a software as a service-based platform (the “Platform”) that enables
customers to build customized virtual spaces and host events in those spaces or
use them on a subscription basis. Gather offers the Platform with limited
features for free, and we charge a fee for other uses of the Platform (the fee
varies based on factors such as time and other features). We also make
subscriptions of the Platform available for ongoing use. Some ideas for virtual
spaces include office spaces, academic conferences, holiday parties, life
theaters and any event where serendipitous interactions and hallway
conversations in a creative and fun environment are valued. While Gather does
not offer any direct assistance in building or customizing virtual spaces, it
does provide a list of third parties that we call “ambassadors” who might be
able to help – you can find them here.
‍
Please contact Gather at legal@gather.town with any issues or notices related to
the Agreement. Gather’s privacy policy may be viewed here and its data
processing agreement (“DPA”) is accessible here. 
1. SERVICES, SUPPORT, AND DEFINITIONS
1.1 Services Subject to Customer’s compliance with the Agreement, Gather will
provide the Services for the duration of the commercial relationship (the
“Term”) between the parties. The Services include a non-exclusive license to the
Platform, fully subject to the terms of this Agreement.
‍
1.2 Customer Support Gather will use commercially reasonable efforts to provide
support in connection with the Services during standard business hours through
electronic mail, online resources, or otherwise in accordance with its standard
practices (“Customer Support”). Customer Support is available Monday-Friday
during standard support hours of 8:00 AM to 6:00 PM PST (Pacific Standard Time,
United States). Customer Support issues may be communicated via e-mail to
support@gather.town or by sending a message on Gather’s Help Page at here.
Gather does not offer Service Level Agreements (“SLAs”).
‍
1.3 Modification Of Services. Gather is continually modifying the Services to
improve them. You acknowledge that Gather may modify the Services at its sole
discretion at any time, and your only remedy for modifications that you don’t
like is to stop using the Services.
‍
1.4 Important Definitions
‍
“Customer Content” includes any content and data provided by or on behalf of a
Customer and any users to access the Services. Customer Content will not be
classified as Confidential Information as defined below.
‍
“Confidential Information” means any information or data disclosed by either
party that is marked or otherwise designated as confidential or proprietary.
 However, “Confidential Information” will not include any information which (a)
is in the public domain through no fault of receiving party; (b) was properly
known to receiving party, without restriction, prior to disclosure by the
disclosing party; (c) was properly disclosed to receiving party, without
restriction, by another person with the legal authority to do so; or (d) is
independently developed by the receiving party without use of or reference to
the disclosing party’s Confidential Information. . Confidential Information
includes the Platform but does not include any Customer Content created in
connection with a Virtual Space.
‍
“Equipment” means all equipment and ancillary services needed to be compatible
with, connect to, access or otherwise use the Service, including, without
limitation, hardware, servers, software, operating systems, networks, and other
services.

2. CUSTOMER ACCESS TO SERVICES, CONTENT, USE AND RESTRICTIONS
2.1 Customer Access to Services To access the Services, you must either create
an account, create a virtual space within Gather (“Virtual Space”), or enter a
previously created Virtual Space. The quality of your user experience in a
Virtual Space may depend heavily upon your compliance with usage guidelines
provided by Gather (for example, here). If Customer creates a Virtual Space,
Customer assumes sole responsibility to ensure that only authorized users will
be invited to its Virtual Space and permitted to access the Services, and
acknowledges that Gather may refuse access to Virtual Spaces or cancel accounts
in its reasonable discretion. Gather may also suspend Customer’s access to the
Services: (i) for scheduled or emergency maintenance, (ii) due to unavailability
of services (including network and hosting services) provided by a third party
service provider, or (iii) in the event Customer is in material breach of this
Agreement, including failure to pay any amounts due to Gather.
‍
2.2 Customer Content and Data As between the parties, Customer owns Customer
Content and Customer assumes sole responsibility for all Customer’s activity in
connection with the Services, such as uploading Customer Content onto the
Platform. You provide us with a license to use Customer Content uploaded to the
Platform only as necessary to provide the Services. Gather makes no
representations or warranties as to the privacy of interactions in a Virtual
Space or Customer Content created within or uploaded to a Virtual Space. The
privacy of a meeting depends on the conversation controls set by the Customer.
If you would like assistance in creating a private meeting space, please contact
support@gather.town.  Gather processes personal data in connection with data
protection laws and its DPA can be found here. You may request a countersigned
version of the DPA but Gather will not negotiate its terms. 
‍
2.3 Customer Use of Services Customer shall use the Services in compliance with
all applicable laws and regulations, including without limitation those related
to data privacy, international communications, export and the transmission of
technical or personal data, consumer and child protection, obscenity or
defamation. Gather is not intended for children and you may not permit a child
under the age of eighteen to access the Platform or Services.

2.4 Customer Use Restrictions Customer agrees that it shall not (and shall not
knowingly permit any third party to), directly or indirectly: (i) reverse
engineer, decompile, disassemble, or otherwise attempt to discover the source
code, object code, or underlying structure, ideas, or algorithms of the Services
(except to the extent applicable laws specifically prohibit such restriction);
(ii) modify, translate, or create derivative works based on the Services; (iii)
copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber
rights to the Services; (iv) use the Services for the benefit of an unauthorized
third party; (v) remove or otherwise alter any proprietary notices or labels
from the Services, or any portion thereof; or (vi) use the Services to build an
application, product or service that is competitive with any Gather product or
service.
‍
Customer agrees that it shall not (and shall not knowingly permit any third
party to) take any action (including uploading, downloading, posting, submitting
or otherwise distributing or facilitating distribution of any material through
the Services) that: (i) infringes any patent, trademark, trade secret,
copyright, right of publicity or other right of any other person or entity; (ii)
is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive,
fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or
profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk
e-mail (iv) contains software viruses or any other computer codes, files, or
programs that are designed or intended to disrupt, damage, limit or interfere
with the proper function of any software, hardware, or telecommunications
equipment or to damage or obtain unauthorized access to any system, data,
password or other information of Gather or any third party; or (v) impersonates
any person or entity, including any employee or representative of Gather.
‍
Customer agrees that it shall not: (i) interfere or attempt to interfere with
the proper working of the Services or any activities conducted in connection
with the Services; or (ii) bypass any measures Gather may use to prevent or
restrict access to the Services (or other accounts, computer systems or networks
connected to the Services).
‍
If Customer creates a Virtual Space, Customer is responsible for ensuring that
any user that interacts within that Virtual Space is fully informed about any
Customer data privacy practices (not limited to obligations related to third
party scripts for analytics or tracking or other tracking measures implemented
by Customer). Moreover, Customer agrees that, where required by applicable
privacy laws and regulations, Customer will ensure that it obtains all necessary
consents, and provides all necessary notices, for the collection or processing
of personal data under any applicable data privacy laws.

3. SECURITY AND CONFIDENTIALITY
3.1 Security Practices Throughout the term of the Agreement and at all times
while Customer Confidential Information is in the possession or under the
control of Gather, Gather shall establish and maintain commercially reasonable
administrative, technical and physical policies, procedures and safeguards for
the protection of Customer Confidential Information.  Gather’s data security
program shall be designed specifically to (1) ensure the security, integrity,
availability and confidentiality of Customers Confidential Information, (2)
protect against any anticipated threats or hazards to the security or integrity
of Customer’s Confidential Information, and (3) protect against the destruction,
loss, unauthorized access to or alteration of Customer’s Confidential
Information.
‍
3.2 Customer Security Responsibilities Customer is responsible for (i) obtaining
and maintaining any Equipment, (ii) maintaining the confidentiality and security
of their Equipment, account information and credentials (“Security
Credentials”), and (iii) all activities that occur using their Security
Credentials unless due to the negligence or willful misconduct of Gather or its
personnel. Customer may not disclose its Security Credentials to any third party
except as expressly authorized in writing by Gather. Customer agrees to promptly
notify Gather of any unauthorized use of its Security Credentials, account or
any other breach of security. Gather reserves the right to access a Customer
account in order to respond to requests for technical support. Gather shall
comply with the security obligations of Section 3.1 while performing technical
support obligations.

3.3 Confidentiality Each party (a “Receiving Party”) may receive Confidential
Information from the other party (a “Disclosing Party”) in connection with this
Agreement. Neither party will disclose Confidential Information to any third
party, other than to its employees or contractors with a need to know such
information for a party to fulfill its obligations under this Agreement, without
the express written consent of the other party, nor will a party make use of any
Confidential Information other than in the performance of rights or obligations
under this Agreement. Each party will use at least the same degree of care to
avoid disclosure of Confidential Information as it uses with respect to its own
Confidential Information.

4. INTELLECTUAL PROPERTY RIGHTS
As between the parties, Gather retains all intellectual property rights relating
to the Services and the Platform and any suggestions, enhancement requests,
feedback, recommendations or other information provided by Customer or any third
party relating to the Services or the Platform.

5. FEES AND TERMINATION
5.1 Fees If Customer purchases any premium features, Customer will pay any
applicable fees set forth on Gather’s pricing page, including any sales or value
added taxes, if applicable. If Customer pays any fees through a third-party
payment processor, it also agrees to any terms set forth by that payment
processor. Undisputed unpaid invoices are subject to a finance charge of 1% per
month on any outstanding balance.
‍
5.2 Termination Gather may terminate or suspend Customer’s access to Services if
any invoice is not paid within 30 days. Customer may terminate this Agreement by
canceling the Services in writing to support@gather.town and such termination
will take effect at the end of the then-current billing cycle. Either party may
terminate this Agreement upon fifteen (15) day notice if the other party
materially breaches any warranties under this Agreement. Regardless of how the
Agreement is terminated, Customer agrees to pay any outstanding balances that
are due and payable (including any minimum commitments established by a Gather
Order Form) and under no circumstances will Gather issue a refund for prepaid
Services. In any case, all sections of this Services Agreement which by their
nature should survive termination will survive termination.
‍
5.3 Return of Customer Content Upon termination, Gather reserves the right (but
incurs no obligation) to delete any Customer Content contained with a Virtual
Space, or any Virtual Space itself.

6. WARRANTY AND DISCLAIMER
6.1 Each party represents and warrants to the other that: (a) it has full power
and authority to grant rights or undertake obligations related to this
Agreement, (b) it has no outstanding obligations that conflict with this
Agreement, and (c) this Agreement, when signed by its duly authorized
representative, constitutes a valid and legally binding obligation on that party
that is enforceable in accordance with the terms of this Agreement.
‍
6.2 Gather represents and warrants to Customer that the Services do not infringe
or misappropriate any U.S. patents, copyrights, trade secrets or any other
proprietary right of any third party.
‍
6.3 Gather represents and warrants that it will not knowingly include, in any
Gather Platform released to the public and provided to Customer hereunder, any
computer code or other computer instructions, devices or techniques, including
without limitation those known as disabling devices, trojans, or time bombs,
that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise
impede in any manner, the operation of a network, computer program or computer
system or any component thereof, including its security or user data. If Gather
fails to materially comply with the warranty in this Section 6.3, Customer may
promptly notify Gather in writing of any such noncompliance and Gather will,
within thirty (30) days of receipt of such written notification, either correct
the noncompliance or provide Customer with a plan for correcting noncompliance.
If the noncompliance is not corrected or if a reasonably acceptable plan for
correcting them is not established during such period, Customer’s sole and
exclusive remedy for such noncompliance is termination of this Agreement or
discontinuing use of the Services.

6.4 Customer represents and warrants that it will not violate any third party
data privacy rights in a Virtual Space.

6.5 EXCEPT FOR ANY WARRANTIES EXPLICITLY GRANTED IN THIS SECTION 6, GATHER
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES
INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GATHER DOES NOT WARRANT THAT THE
SERVICES WILL BE PROVIDED UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S
REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE
OBTAINED FROM USE OF THE SERVICES.  GATHER PROVIDES THE SERVICES “AS IS” AND ON
AN “AS AVAILABLE” BASIS.

7. INDEMNIFICATION
7.1 Gather agrees, at its own expense, to indemnify, defend and hold Customer
harmless against any suit, claim, or proceeding brought against Customer
alleging that the use of Services in accordance with this Agreement infringes
any third party intellectual property right set forth in Section 6.2, provided
that Customer (i) promptly notifies Gather in writing of any such suit, claim or
proceeding, (ii) allows Gather, at Gather’s own expense, to direct the defense
of such suit, claim or proceeding, (iii) gives Gather all information and
assistance necessary to defend such suit, claim or proceeding, and (iv) does not
enter into any settlement of any such suit, claim or proceeding without Gather’s
written consent. The foregoing obligations do not apply with respect to the
Services or components thereof (i) not supplied by Gather, (ii) made in whole or
in part in accordance to Customer specifications, (iii) combined with other
products, processes or materials where the alleged infringement would not have
occurred without such combination. This section states Gather’s entire liability
and Customer’s exclusive remedy for infringement or misappropriation of
intellectual property of a third party.
‍
7.2 Customer agrees, at its own expense, to indemnify, defend and hold Gather
harmless against any suit, claim or proceeding brought against Gather in
connection with any third-party demand, claim, action, suit or proceeding that
arises from an alleged violation of Customer obligations in Section 2.4 or any
warranty in Section 6.4.

7.3 Each party's indemnification obligations are conditioned upon the
indemnified party: (i) promptly notifying the indemnifying party of any claim in
writing; and (ii) cooperating with the indemnifying party in the defense of any
claim.  The indemnified party shall have the right to participate in the defense
of any third-party claim with counsel selected by it subject to the indemnifying
party's right to control the defense thereof. The fees and disbursements of such
counsel shall be at the expense of the indemnified party.  Notwithstanding any
other provision of this Agreement, the indemnifying party shall not enter into
settlement of any third-party claim without the prior written consent of the
indemnified party, which shall not be unreasonably withheld.

8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE RESPONSIBLE OR
LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND
CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR
LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE
GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY
INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE
OTHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) FOR ANY
MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) EXCEPT FOR SECTIONS 2.4 AND
BREACH OF WARRANTIES IN SECTION 6, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS
ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO
GATHER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY
SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE
RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN
INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF
GATHER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT
CONTROLLED BY GATHER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE
DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT. THIS
LIMITATION OF LIABILITY DOES NOT APPLY IN CASE OF GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OR IN CASE OF INFRINGEMENT OF THIRD PARTIES’ RIGHTS AND THE
INDEMNIFICATION FORESEEN IN ARTICLE 7.1.

9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that
provision will be limited or eliminated to the minimum extent necessary so that
this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by either party
except with the other’s prior written consent, except that either party may
transfer and assign any of its rights under this Agreement without consent in
connection with a reorganization, merger, consolidation, acquisition, or other
restructuring involving all or substantially all of its voting securities or
assets  Both parties agree that this Agreement is the complete and exclusive
statement of the mutual understanding of the parties and supersedes and cancels
all previous written and oral agreements, communications and other
understandings relating to the subject matter of this Agreement, and that all
waivers and modifications must be in a writing signed by both parties, except as
otherwise provided herein. No agency, partnership, joint venture, or employment
is created as a result of this Agreement and Customer does not have any
authority of any kind to bind Gather in any respect whatsoever. In any action or
proceeding to enforce rights under this Agreement, the substantially prevailing
party will be entitled to recover costs and attorneys’ fees. All notices under
this Agreement will be in writing and will be deemed to have been duly given
when received, if personally delivered; when receipt is electronically
confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if
sent for next day delivery by recognized overnight delivery service; and upon
receipt, if sent by certified or registered mail, return receipt requested. The
parties agree that any material breach of Section 2 or 3 may cause irreparable
injury and that injunctive relief in a court of competent jurisdiction will be
appropriate to prevent an initial or continuing breach of Section 2 or 3 in
addition to any other relief to which the owner of such Confidential Information
may be entitled. This Agreement shall be governed by the laws of the State of
Delaware without regard to its conflict of law provisions. The federal and state
courts sitting in San Francisco, California, U.S.A. will have proper and
exclusive jurisdiction and venue with respect to any disputes arising from or
related to the subject matter of this Agreement.

©2022 Gather Presence, Inc.
Terms of Service
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