1. Either GamePlan or you are entitled to terminate the Partnership Agreement and access to your account with fifteen (15) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (a) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, or (b) the party breaches its confidentiality obligations under this Agreement, infringes or misappropriates the terminating party’s intellectual property rights.
  2. Indemnity
    1. By GamePlan. Subject to this agreement and conditions of this Agreement: (1) GamePlan shall defend a Partner from claims by third parties alleging that the GamePlan Marketplace used in connection with such Experience infringes such third party’s U.S. copyright or trademark and (2) GamePlan shall pay damages finally awarded by a court of competent jurisdiction against such Partner for such a claim or, if GamePlan settles the claim, the settlement amounts. GamePlan’s obligations apply only to the GamePlan Marketplace itself and not to any Experiences, other GamePlan Partners or services, or other third-party content hosted on or used with the GamePlan Marketplace, and in any case GamePlan’s obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the GamePlan Marketplace. As a condition to GamePlan’s obligations, you must provide GamePlan (i) prompt written notice of the claim (and in any event notice in sufficient time for GamePlan to respond without prejudice), (ii) the exclusive right to control and direct the investigation, settlement and defense (if applicable) of the claim, and (iii) all reasonable necessary cooperation. This section sets forth GamePlan’s sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
    2. By You.You will indemnify, defend and hold GamePlan and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) arising out of any claim relating to any Content or the use of Content (including any claims made by or arising from guests), or from any breach of your representations, warranties or obligations set forth in this Agreement (individually, a “Claim,” and collectively, the “Claims“). You will not consent to the entry of a judgment or settle a Claim without GamePlan’s prior written consent, which may not be unreasonably withheld. If you do not promptly assume and conduct the defense of a Claim or take reasonable action to settle any such Claim after being provided with sufficient reasonable advance notice to evaluate the Claim, then GamePlan may take control of the defense (without limiting your indemnification obligations). Your obligations under this section are independent of your other obligations under the Agreement.
  3. Confidential Information. “Confidential Information” means information one party shares with another which the disclosing party identifies as confidential or the receiving party should reasonably understand to be confidential given the circumstances and the nature of the information. All information provided by GamePlan is GamePlan Confidential Information, provided that Company may use and disclose the information in accordance with this agreement. Confidential Information does not include information that the receiving party can demonstrate: (a) it knew without restriction before receipt from the disclosing party, (b) is publicly available through no fault of the receiving party, (c) it rightfully received from a third party without a duty of confidentiality, or (d) is independently developed without use of or reference to Confidential Information. The receiving party may use Confidential Information only to fulfill its obligations under this Agreement and must use at least reasonable care to prevent any unauthorized use or disclosure of Confidential Information. The receiving party may share Confidential Information with its employees, agents and contractors who need to know it, if they are bound to confidentiality obligations that are consistent with this Agreement. If compelled to do so by law, the receiving party may disclose Confidential Information if it provides reasonable prior notice to the disclosing party, unless a court orders that the disclosing party not be given notice.
  4. Disclaimer of Warranties.THE GAMEPLAN MARKETPLACE AND ANY GAMEPLAN MATERIALS ARE PROVIDED “AS IS” AND GAMEPLAN EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
  5. Limitations of Liability.EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 ABOVE: (A) NEITHER YOU NOR GAMEPLAN SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER YOUR OR GAMEPLAN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE GAMEPLAN MARKETPLACE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED GAMEPLAN’S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, “GAMEPLAN’S MARGIN” MEANS THE AMOUNTS RECEIVED BY GAMEPLAN FROM SALES OF YOUR EXPERIENCES, MINUS THE SALES GAMEPLAN HAS PAID YOU.
  6. Agreement Changes. This Agreement relates to the broader GamePlan Marketplace, which will change over time. GamePlan reserves the right to change this Agreement at any time in its sole discretion with the changes to become effective thirty (30) days after notice. GamePlan will give you notice of the changes by posting an updated version of this Agreement online or by emailing you at an email address you have provided. If you do not agree to any of the proposed changes, you may terminate the Agreement prior to the date on which the changes were to take effect by (i) providing written notice to GamePlan and (ii) terminating the Agreement and withdrawing all of your Experiences from the Marketplace.If you so terminate the Agreement, the proposed changes will have no effect on you. However, if you do not so terminate then your continued participation in the GamePlan Marketplace after changes to this agreement take effect will constitute your acceptance of the changes.
  7. Dispute Resolution; Arbitration.In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Philadelphia, PA. All negotiations and arbitration proceedings pursuant to this Section 15 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
  8. Governing Law; Jurisdiction.This Agreement will be governed by and construed in accordance with the applicable laws of the Commonwealth of Pennsylvania, USA, without giving effect to the principles of that Commonwealth relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 15 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Philadelphia, Pennsylvania, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Philadelphia, Pennsylvania, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, GamePlan may bring a claim for equitable relief in any court with proper jurisdiction.
  9. Injunctive Relief & Enforcement.Notwithstanding the provisions of this Section 17, nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
  10. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word “including” will be interpreted without limitation when used in this Agreement. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by GamePlan via email, or (ii) by you via email to [email protected] or to such other email or physical addresses as GamePlan may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.

Contact.

You may contact GamePlan at the following address: 30 N 41st St, Suite 570, Philadelphia, PA 19104.

Effective Date: March 28, 2018