End User License Agreement

PLEASE READ THIS LICENSE CAREFULLY BEFORE USING GEMBAH’S PLATFORM AND SOFTWARE (collectively, the “PLATFORM”).  BY USING THE PLATFORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE, in addition to any connected third-party platforms or interface.  IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE PLATFORM.

This END USER LICENSE AGREEMENT (the “License”) is entered into between You (whether an individual or entity, “You” or “Your”) and Gembah, Inc., a Delaware corporation (“Gembah”).  Gembah is only willing to license Your use of its Platform on the condition that You accept this License and all its terms and conditions.  By clicking “I Agree” or otherwise using the Platform, You are agreeing to be bound by the License.  All references to this License, unless otherwise specified, will include the schedules and exhibits to the License, including any amendments thereto.

1. License.  This License contains the standard terms and conditions for Gembah’s services and use of the Platform by third party service providers (“Providers”).  The services offered by or through Gembah (the “Services”) are accessible through the Platform and include access to a global marketplace for purchasing and selling goods and services within Gembah’s ecosystem. The Platform may include a variety of software applications including payments, shopping, exchange, chat, project management, analytics, and networking features. The terms of this License may be supplemented by individual packaged features, goods, or services containing additional terms and conditions applicable to specific Services (each a “Package”).
2. Term.  The term of this License commences on the date You first use the Platform (the “Effective Date”) and will continue in effect until: (i) the termination or expiration of all Services provided pursuant to this License;  (ii) Provider’s completion of its portion of the Services; or (iii) termination of Your account.
3. Packages.  You will provide Gembah with such information as is necessary to perform the Services, including the specifications of Your specific needs.  The terms of this License will be superior to, and supersede, any conflicting or inconsistent terms contained in any Package.  If You change or cancel a Package, or any portion of a Package, after the Effective Date, You shall remain obligated to and will pay Gembah for Your use up to the date the Package is changed or canceled.
4. Fees and Payment.  Gembah offers its Services as either: (i) a single use fixed fee (“Fixed”); or (ii) as a subscription with a recurring monthly fee (“Subscription”).  You will pay Gembah for the Services in the amounts agreed upon and set forth in the applicable Package or other mutually agreed pricing document.  Services will commence: (i) under the Fixed Packages coincident with Gembah’s receipt of payment in full; and (ii) under the Subscription Packages coincident with Gembah’s receipt  of the initial installment payment.  Regardless of the type of Package, Services shall cease upon any dispute by You or failure of any payment. In addition to other payment options, the Platform has been integrated with Stripe Connect © (“Stripe”), an unaffiliated third party payment processing service. By using Stripe, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF the Stripe Connect Platform Agreement (the “Connect Platform Agreement”).  IF YOU DO NOT AGREE TO THE TERMS OF THE CONNECT PLATFROM AGREEMENT, DO NOT USE STRIPE. Your use of Stripe is subject to the Connect Platform Agreement, which is incorporated herein by reference.   Gembah reserves the right to amend its pricing, scope of Services, and other polices on the Platform at any time, with or without notice.  Unless otherwise provided to the contrary in the applicable Package, Gembah has the right to change pricing for Fixed Packages and Subscription Packages at any point where there is a change in scope, timeline and/or deliverables.  Gembah’s invoices are true and correct in all material respects unless You advise Gembah in writing of disputed items within ten (10) days following Your receipt of the appliable invoice.  Gembah shall process Your payment(s) for Services through Stripe for all connected accounts or any other payment method accepted by Gembah at the time of payment. All payments made pursuant to this License shall be made without any right of setoff, withholding or counterclaim of any kind or character.
5. Compliance with Laws.  Gembah will comply with all federal, state and local laws, rules, regulations and decisions (collectively, “Laws”), including the Laws of other countries applicable to the Services.  You will comply with all Laws, including the Laws of other countries applicable to Your use of the Platform.  Gembah reserves the right to revise the terms, conditions and/or pricing under this License, any Package and/or the Services to comply with any requirement imposed by under applicable Law.
6. Intellectual Property Ownership; Transfer or Resale.
   1. The Platform. You acknowledge that Gembah has expended substantial time, effort and funds to create and deliver the Platform.  All of Gembah’s intellectual property that are part of the Platform are and will continue to be Gembah’s exclusive property, under all circumstances.  Under no circumstances will You license, sublicense resell, loan, transfer, distribute, modify or otherwise exploit the Platform; or otherwise permit or allow, whether directly or indirectly, a third party to use, access or benefit from the Platform.
   2. The Services. With the exception of Providers, any inventions made by or on behalf of Gembah for You in the performance of the Services, whether or not patentable, which are invented, conceived, discovered, developed or reduced to practice, either alone or jointly with others shall be owned by You (“Inventions”) and shall be deemed “Work for Hire” under applicable US Copyright Laws and shall be Your property and released to You upon timely payment of the fees for Services incurred in generating such Inventions.  Gembah agrees to disclose to You any such Inventions and will, if You so request, assist in every proper way (at Your expense) to obtain for Your benefit patents on such Inventions; all such Inventions to be and remain the sole property of You whether or not disclosed, assigned or patented.
7. Termination.  If either party is in material breach of this License, consisting of a failure to perform or non-performance, the non-breaching party may terminate the License, as applicable, provided such breach is not cured within thirty (30) days following written notice of such breach, unless such breach consists of the failure to pay for the Services under the terms of this License, offensive conduct on the Platform, fraud or any criminal act, in which case Gembah reserves the right to terminate upon Your receipt of written notice.  Notwithstanding the foregoing, this License or any Package may be terminated by Gembah immediately upon written notice to You if, in Gembah’s reasonable opinion, any Services provided to You are being used contrary to this License or any Package.  Termination of this License or any Package will not relieve You of Your obligation to pay for any Services performed or provided by Gembah under this License or any Package.
8. Warranty and Disclaimers.  You acknowledge the Platform and Services are provided “AS IS” AND NEITHER GEMBAH NOR ANY OF ITS AFFILIATES MAKE ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR THE PARTICULAR PURPOSE OR THAT THE PLATFORM WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER THIRD PARTY RIGHTS. There is no warranty by Gembah or its affiliates or by any other party that the Platform will meet Your requirements or that the operation of the Platform will be uninterrupted or error- free. No oral or written information provided by Gembah or its representatives shall act to take precedent over this Section 8 or otherwise affect this disclaimer.
9. Limitation of Liability. EXCEPT FOR (i) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S (OR A THIRD PARTY’S) INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE SECRETS; (ii) DAMAGES FOR BODILY INJURY, DEATH, DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; (iii) WILLFUL MISCONDUCT; OR (iv) ANY OTHER LIABILITY THAT MAY NOT BE LIMITED UNDER APPLICABLE LAW (COLECTIVELY, “EXCLUDED MATTERS”), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OR DAMAGE TO DATA, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR ANY SIMILAR TYPE OF DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE LICENSE, OR THE USE OR THE INABILITY TO USE THE PLATFORM. YOU ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE PLATFORM AND OTHER SERVICES PROVIDED HEREUNDER TO ACHIEVE YOUR INTENDED RESULTS. EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER FOR ALL CLAIMS ARISING OUT OF OR AS A RESULT OF THE LICENSE EXCEED THE FEES PAID BY YOU UNDER THE APPLICABLE PACKAGE.  GEMBAH’S REPERFORMANCE OF THE SERVICES OR THE REFUND OF ANY FEES YOU HAS PAID FOR SUCH SERVICES WILL CONSTITUTE YOUR SOLE REMEDY AND GEMBAH’S MAXIMUM LIABILITY UNDER THIS LICENSE.
10. Waiver.  Either party may waive compliance by the other party with any covenants or conditions contained in this License or any Package, but only by a written instrument signed by the party waiving such compliance.  No such waiver, however, will be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.
11. Subscription Specific Provisions.  The following provisions shall only apply to the extent that the Services have, at Your written election (the “Subscription Election”), converted to a Subscription.  After Gembah’s receipt of the Subscription Election, to the extent of a conflict with the other provisions in this License, this Section 11 shall control.
    1. Subscription Services.  Gembah shall make the Subscription Services available to You, pursuant to this License, solely for Your internal business purposes. Provided that Gembah does not materially degrade the underlying functionality of the Subscription Services, it may, from time-to-time, modify its system to accommodate changes in technology, industry practices, and system use (“Modifications”).  Such Modifications shall be made available to You at no additional charge.  Notwithstanding the foregoing, Your use of any new Subscription Services may require the payment of additional fees.  Gembah will notify You in writing whether such new Services will be part of Your current fee structure or in addition to such fee structure before You are charged for such use.
    2. Your Responsibilities and Restrictions. You shall only access the Subscription Services subject to and in accordance with all applicable laws and the terms and conditions of this License.  Any other use of the Services is expressly prohibited, including, without limitation: (i) licensing, sublicensing, selling or any other exploitation of the Subscription Service; (ii) permitting or allowing, whether directly or indirectly, any third party to use, access or benefit from the Subscription Services; and (iii) any circumvention of Gembah.
    3. Payment of Fees.  The Subscription Services will be billed in advance at the beginning of each month and overages and expenses will be calculated on a monthly basis and invoiced in arrears.  The Subscription Services can only be cancelled as provided for in this License or Your Package, all payments are nonrefundable, and the Subscription Services cannot be decreased during the term of your Package.  You further agree to reimburse Gembah for all out-of-pocket costs and expenses actually incurred by Gembah on Your behalf while providing the Services.  All payments made pursuant to this License shall be made without any right of setoff, withholding or counterclaim of any kind or character.  Failure to timely pay any amount properly invoiced shall result in the termination of Your Subscription Services.
    4. Termination.  This Subscription License may be terminated as provided in Section 7. or by either Party for cause upon thirty (30) days written notice to the other Party of a material breach that remains uncured at the expiration of such thirty (30) day period; or automatically if a Party becomes subject to a petition for bankruptcy or other insolvency related proceeding.  In no event shall termination by You relieve You of the obligation to pay Gembah for any and all fees and expenses that accrued prior to the effective date of termination.
12. Audit.  Gembah will have the right to audit Your and any of its agent’s use of the Services to assure compliance with the terms of this License.  You will be responsible for assuring full cooperation with Gembah in connection with such audits and will provide Gembah or obtain for Gembah access to such records and personnel as Gembah may reasonably require for such purpose.
13. Limited Use of Your Name.  You hereby grant Gembah, on a nonexclusive, irrevocable and royalty free right to use Your name, logo and trademark, without further notice to You, solely to identify You as a user of the Platform and Services.
14. Successors and Assigns.  This License will be binding upon and will inure to the benefit of the parties to this License and their respective heirs, representatives, successors and permitted assignees.  This License may not be assigned, transferred, shared or divided in whole or in part by You without Gembah’s prior written consent.
15. Choice of Law.  This License is governed by and construed in accordance with the internal substantive laws of the State of Texas.  Any dispute under this License will be brought in the federal or state courts in Travis County, Texas.
16. Complete License.  This License, as supplemented by any Packages, sets forth the entire understanding of You and Gembah with respect to the subject matter of this License and supersedes all prior letters of intent, Licenses, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer employee, or representative of either party relating thereto.
17. Amendments.  Except as explicitly provided for in this License, this License may only be amended in writing signed by authorized representatives of both parties.
18. Authority to Sign.  Each party represents that (i) the person authorizing this License, or any Package has all right, power and authority to authorize this License or any Package on behalf of such party; and (ii) such party has full power and authority and all necessary authorizations to comply with the terms of this License and to perform such party’s obligations under this License.