Terms of Use

Updated August 24, 2015

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS THOROUGHLY, INCLUDING THE DISPUTE RESOLUTION CLAUSE REQUIRING DISPUTES BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL AND NOT CLASS-WIDE OR CONSOLIDATED BASIS.

I. Introduction
These Terms of Use (“Terms”) constitute a binding, legal contract between you, an individual user of at least 13 years of age or a single entity (the “User”) and GameWisp, Inc., a Delaware corporation (“GameWisp”). GameWisp is the creator and proprietor of a service enabling fans to the engage with and support gaming video creators located at www.gamewisp.com, related services, software applications and networks as well as all other services provided by GameWisp which link to these Terms (the “Service”). GameWisp may also provide certain services with additional terms which may supplement these Terms. By registering for, accessing, browsing, downloading from or otherwise using the Service, the User acknowledges that he/she has read and understands these Terms and agrees to be bound by all terms and conditions contained herein. If at any time, the User does not agree to any of the terms or conditions contained in these Terms, the User should immediately cease his/her use of GameWisp.

II. Eligibility
These Terms apply to all users of the Service including those who operate Channels, deliver digital benefits and/or upload, post, link Content from YouTube, or otherwise transmit Content through the Service. The Service is not intended for individuals under the age of thirteen (13). By registering for, accessing, browsing, downloading from, or otherwise using the Service, the User represents and warrants that he/she is at least eighteen (18) years of age or has legal parental or guardian consent to use the Service. If at any time, GameWisp obtains information that a registered user is younger than thirteen (13) years of age, GameWisp will take immediate steps to suspend such user’s account and remove all personal information regarding such user. If the User is as company, organization, or other entity, the User represents and warrants that the agent of such entity who registers for, accesses, browses, downloads from, or otherwise uses the Service is authorized to agree to and bind such entity to these Terms.

III. License
Except as otherwise provided in these Terms, GameWisp grants to the User a limited, non-exclusive, revocable, royalty-free, worldwide, non-sublicensable right to access and use the Service. In the exercise of this license, the User shall not (1) sell or make any unauthorized commercial use of the Service or the Content contained therein; (2) distribute, publicly perform, or publicly display any of the Content (except for that Content posted to the Service by the User); (3) modify or otherwise make derivative use of the Service or Content (except for that Content posted to the Service by the User) or any portion thereof; (4) use any data mining, robots, or similar data gathering or extraction methods; (5) download any portion of the Service, the Content, or any information contained therein, except as expressly allowed by the Service; or (6) use the Service or the Content other than for their intended purposes. Any unauthorized use, including but not limited to the uses above, of the Service or the Content is expressly prohibited and will result in the suspension and/or termination of the license above. Such unauthorized use may also violate applicable laws, including but not limited to trademark and copyright laws. Except as expressly stated in these Terms, nothing in these Terms will be construed as conferring any license to intellectual property rights whether by estoppel, implication, or otherwise.

IV. Email
  1. Use by GameWisp. By registering for the Service, the User grants to GameWisp the revocable, worldwide, sublicensable in accordance with Subsection 2 below, right to use the User’s email address for the purposes of sending certain marketing and transactional emails to the User from time to time as determined by GameWisp. The User may unsubscribe from any marketing email at any time. Procedures for unsubscribing from such email will be provided as part of any marketing email sent to the User.
  2. Use by Channels. By subscribing to a Channel on GameWisp, The User grants to the Channel the revocable, worldwide, non-sublicensable, right to use the GameWisp system to deliver certain marketing or transactional messages (by email or otherwise) as determined by the Channel from time to time. At no time will GameWisp provide the User’s actual email address to a Channel for use in any way. Moreover, the User may unsubscribe from any Channel marketing email at any time. Procedures for unsubscribing from such email will be provided as part of any marketing email sent to the User.

V. Channels
The Service enables the User to create a Channel for the purposes of offering certain monthly subscriptions to fans at an amount set by the Channel owner in exchange for certain benefits. Benefits may be in the form of digitally delivered information or digital goods, messages or distributing video content as well as accompanying thumbnail images, descriptions, links, and other data related to such video content (collectively the “Content”). By posting, uploading, linking from YouTube, or otherwise transmitting the Content through the Service, the User acknowledges and agrees that the Content will become viewable by paying subscribers and may be searchable by anyone who accesses the Service. The licenses below govern the use of such Content by GameWisp, the Service, and other GameWisp users.
  1. License to GameWisp
  2. Except as otherwise expressly agreed in writing signed by the User and an authorized representative of GameWisp, by distributing or otherwise disseminating the Content through the Service, the User hereby grants to GameWisp a worldwide, perpetual, royalty-free, transferable, and fully sublicensable right to use, host, convert for streaming, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, and otherwise exploit the Content, in any form, format, media, or media channel now known or hereafter developed or discovered, as permitted through the functionality of the Service. In addition, the User grants to GameWisp the right to use the User’s name, likeness, voice, and attributes of personality in connection with the Content if such name, likeness, voice, or attributes of personality are contained in the Content or provided to GameWisp in connection with the Content. Except as otherwise expressly agreed in writing signed by the User and an authorized representative of GameWisp, by using the Service and providing the materials below to GameWisp through the use of the Service, the User hereby grants to GameWisp a worldwide, perpetual, royalty-free, transferable, and fully sublicensable right to distribute, display, perform, and otherwise use the User’s designated brand and associated trademarks and trade dress in any form, format, media or media channel now known or hereafter developed or discovered in connection with the User’s Channel and Content. GameWisp enables the User to link the User’s YouTube account and post videos contained therein to the Service. All videos posted to the Service from the User’s linked YouTube account will be considered Content for the purposes of these Terms. By linking his/her YouTube account, the User grants GameWisp the right to access such account and such Content and to exploit such content in accordance with the license granted above. GameWisp represents and warrants that it will not intentionally delete any content or other data contained within the User’s YouTube account. GameWisp also enables the User to link the User’s Twitch account. By linking the User’s Twitch account, the User agrees that all information including trademarks and trade dress obtained through such link shall be considered Content for the purposes of these Terms and grants to GameWisp the right to access and exploit such Content in accordance with the license granted above. The User may revoke the license above as to a particular piece of Content by removing or deleting such Content from the Service.
  3. Monetization
  4. The Service enables Channels to monetize their Content through various means, including monthly subscriptions and tips. Monetization is governed by the GameWisp Terms of Sale and the GameWisp Content Creator Subscriber Program Agreement, both hereby incorporated by reference into these Terms of Use.
  5. User Content Representations and Warranties
  6. The User is solely responsible for his/her Content and the consequences of posting and/or publishing such Content to the Service. By uploading or linking such Content from YouTube, and/or by publishing it through the Service, the User represents and warrants that: (a) the User is the creator and owner of the Content or have the necessary licenses, rights, consents, and permissions to use and authorize GameWisp to use any patent, trademark, trade dress, trade secret, copyright, or other proprietary rights in and to said Content, including without limitation any musical recordings therein; (b) the Content does not and will not (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, libel, or otherwise defame any other person; (c) the Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (d) unless the User has prior written authorization, the Content does not contain any pre-release or nonpublic beta software or game content or any confidential information of GameWisp or third parties. GameWisp expressly reserves all rights and remedies against any User who breaches these representations and warranties.
  7. Risk
  8. Notwithstanding any obligation of GameWisp to protect the Content contained in these Terms, GameWisp cannot and does not guarantee that there will be no unauthorized copying or distribution of the Content. GameWisp will not be liable for any copying or usage of the Content not expressly authorized by GameWisp. The User hereby releases and forever waives any claims the User may have against GameWisp for any such unauthorized copying or usage of the Content under any theory of liability. ANY SECURITY MEASURE PROVIDED BY GAMEWISP TO PROTECT USER CONTENT IS PROVIDED “AS-IS” AND WITH ALL FAULTS. GAMEWISP MAKES NO WARRANTIES OR ASSURANCES WITH RESPECT TO SUCH SECURITY MEASURES, EXPRESS OR IMPLIED, INCLUDING THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS, OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
  9. Unauthorized Use of Channels
  10. Unless expressly permitted by GameWisp in writing, the User, the User’s partners, employees and agents may not sell, rent, lease, share, or provide access to the User’s account to any third party including without limitation charging any remuneration to any third party for access to administrative rights on the User’s account. GameWisp expressly reserves the right to exercise whatever means GameWisp deems necessary to prevent the unauthorized use of the Service, including but not limited to, technological barriers, IP mapping, and directly contacting the User’s Internet Service Provider (ISP) regarding such unauthorized use.
  11. Promotions, Sweepstakes, and Contests
  12. Channels may promote, administer, or conduct promotions or contests on, through, or utilizing the Service. However, any promotion, sweepstakes, or contest must abide by the following rules: (a) no promotion, sweepstakes, or contest may award prizes whose aggregate value exceeds five thousand dollars ($5,000); (b) such promotion, sweepstakes, or contest must be open to residents of the fifty (50) United States (including Washington D.C.); (c) all entrants to such promotion, sweepstakes, or contest must be eighteen (18) years of age or older; (d) such promotion, sweepstakes, or contest must be free to enter (though you may give a higher chance of winning to paid subscribers); (e) no promotion may require the submission of any content which is discriminatory, lewd, offensive, obscene, or sexual in nature; (f) generally, such promotion, sweepstakes, or contest should not require entrants to endorse, provide an opinion, or otherwise comment on a product in such a way that a reasonable person may believe that the endorsement, opinion, or comment is from the entrant unless you require that the entrant disclose that he/she is receiving entry in the promotion, sweepstakes, or contest in exchange for such endorsement, comment, or opinion; (g) the User may not indicate, expressly or by implication, that GameWisp is a sponsor, co-sponsor, or is any other way affiliated or connected with the promotion, sweepstakes or contest unless expressly granted permission in writing by an authorized representative of GameWisp; and (h) such promotion, sweepstakes, or contest may have Official Rules which contain all details, disclosures, and other information (including value of all prizes) required by applicable law and at all times comply with applicable law and such promotion, sweepstakes, or contest must be conducted in accordance with the Official Rules; There are a number of laws across United States jurisdictions which apply to promotions, sweepstakes, and contests. Please consult an expert with all questions and concerns regarding your promotion, sweepstakes, or contest. The User, at the User’s expense, is solely responsible for all aspects of the promotion, sweepstakes, or contest including, but not limited to, the execution, administration, and operation of the promotion, sweepstakes, or contest; drafting the Official Rules; selecting winners; obtaining and distributing all prizes; obtaining all necessary third-party permissions and approvals, including, but not limited to, filing any and all necessary registrations and bonds. GameWisp reserves the right to remove any promotion, sweepstakes, or contest from the Service at any time for any reason.

VI. Privacy and DMCA Policies
The User’s Privacy is incredibly important to GameWisp. GameWisp has provided a Privacy Policy relating to GameWisp’s collection, use, and disclosure of the User’s personal information. The terms of such Privacy Policy is expressly incorporated into these Terms by reference. GameWisp has also created a policy regarding the procedure for receipt and response to copyright infringement notices as required by the Digital Millenium Copyright Act (“DMCA Policy”). The DMCA Policy is expressly incorporated into these Terms by reference.

VII. Trademarks
GameWisp, the GameWisp logos, and any other product or service name or slogan contained within the Service are trademarks of GameWisp or our contractors or licensors and may not be copied, imitated, or used, in whole or in part, for commercial purposes without the prior written permission GameWisp or the applicable trademark holder. Any authorized use (including non-commercial uses) of these trademarks must be in accordance with guidelines that GameWisp may provide to the User from time to time. The User shall not use metatags or any other hidden text utilizing “GameWisp” or any other name, trademark, or product or service name of GameWisp without prior written permission. In addition, the look and feel of the Service, including all page headers, custom graphics, button icons and scripts, constitute the trade dress of GameWisp and may not be copied, imitated, or used, in whole or in part, for any reason without the prior written permission of GameWisp. All other trademarks, registered trademarks, product names, company name, or logos existing in or mentioned on the Service are property of their respective owners. The existence of such marks, names, or logos in the Service does not constitute or imply endorsement, sponsorship, or recommendation thereof by us or any other affiliation.

VIII. Third-Party Content
In addition to the Content, GameWisp may provide other third-party content on the Service and may provide links to Web pages and content of third parties (“Third-Party Content) as a service to those interested in this information. The User acknowledges and agrees that GameWisp does not control, endorse, or adopt any Third-Party Content, is not responsible or liable for in any manner for the Third-Party Content under any theory of liability and makes no representations or warranties of any kind regarding the Third-Party Content, including, without limitation, its accuracy or completeness. Users of Third-Party Content use such content at their own risk. All services provided by such third-party sites or web pages are governed by terms and conditions provided by the proprietor of such third-party site or web page.

IX. User Generated Content
In addition to Channels, GameWisp may provide other areas or services in which the User or other users may create, post or store content, messages, materials, data, information, text, music, sound, photos, video, graphics, applications, code, or other items or materials on the Service (collectively “User-Generated Content”). The User is solely responsible for his/her use of such areas and services at the User’s own risk. By posting any additional User-Generated Content, including but not limited to, comments, forum posts, or profile information, the User grants to GameWisp a worldwide, perpetual, nonexclusive, royalty-free, transferable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works of, distribute, perform, and display such User-Generated Content in any form, format, media, or media channel now known or hereafter developed or discovered as well as the right to use your provided name in connection with such User-Generated Content. The User represents and warrants that the User owns or controls all rights in the User-Generated Content, that all User-Generated Content is accurate, not misleading or harmful, non-confidential, and does not violate these Terms or any applicable law, statute, or regulation.

X. Limitation of Liability for Content
GameWisp is not responsible and assumes no liability for any Content or User-Generated Content posted, stored, uploaded, distributed, or linked from YouTube and/or Twitch to the Service. GameWisp is not liable for any mistakes, libel, slander, other defamation, omissions, falsehoods, obscenity, pornography, or profanity the User may encounter on the Service. Enforcement of the rules contained within Section XI is solely at the discretion of GameWisp, and failure to enforce a violation of such rules does not constitute a waiver of GameWisp’s right to enforce that rule in other instances. As a provider of interactive services, GameWisp is not liable for any statements, representations, or Content provided by users of the Services in any public forum, personal website, or on the Service. GameWisp does not endorse any opinion, recommendation, or advice provided by its users and GameWisp expressly disclaims any and all liability for such opinion, recommendation, or advice. GameWisp may, in its sole discretion, screen, edit, or remove any Content, comment, or other information posted by a user at any time and for any reason without notice. The User is responsible for creating backup copies of any content posted or stored in the Service at the User’s sole expense.

XI. Prohibited Uses of the Service
By using the Service, the User agrees to abide by all laws, contract rights, intellectual property or other third party rights and shall not engage in any tortious or otherwise illegal conduct. Without limiting the broad application of the foregoing sentence, the User shall not:
  1. use the Service for any purpose other than the distribution, dissemination, discovery, or receipt of original or appropriately licensed content and/or to access such other products or services as are offered by GameWisp;
  2. rent, lease, loan, sell, resell, sublicense, distribute, or otherwise transfer the licenses granted herein;
  3. post, upload, link from YouTube or Twitch, and/or distribute any defamatory, libelous, or inaccurate Content;
  4. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Service accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Service, or perform any other similar fraudulent activity;
  5. delete the copyright or other proprietary rights notices on the Service or the Content;
  6. send unsolicited offers, advertisements, proposals, junk mail or spam to other users of the Service, including, but not limited to, promotional materials or other solicitation materials, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, petitions for signatures, or any of the foregoing related to promotional giveaways (such as raffles and contests), and other similar activities;
  7. harvest or collect the email addresses or other personal information including contact information of other users from the Service without the consent of such users;
  8. defame, harass, abuse, threaten, or defraud other users;
  9. remove, circumvent, disable, damage, or otherwise interfere with any security-related feature, feature that restricts use or copying of any content, or other feature that enforces limitations on the use of the Content contained within the the Service or Content;
  10. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
  11. modify, adapt, translate or create derivative works based upon the Service or any part thereof, except to the extent that such activity is expressly required by applicable law;
  12. intentionally interfere with or damage operation of the Service or any user’s enjoyment of such Service, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
  13. use any robot, spider, scraper, crawler, or other automated means to access the Service or the Content for any purpose or bypass any measures GameWisp may use to prevent or restrict the Service;
  14. manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
  15. interfere with or disrupt the Service or networks connected to the Service, or use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable overburden or impair the functioning of the Service in any manner;
  16. use another user’s account without authorization;
  17. attempt to access any service or area of the Service that the User is not authorized to access;
  18. attempt to indicate in any manner that the User has a relationship with GameWisp, speaks on behalf of GameWisp, or that GameWisp has endorsed the User or any product or service absent express written authorization by GameWisp;
  19. intentionally or knowingly use the Service to violate any law, statute, or regulation of any jurisdiction in which GameWisp is available.
Further, the User shall not post, upload, transmit, distribute, store, create, or otherwise publish through the Service:
  1. any content that would constitute, encourage, promote, or otherwise endorse any criminal offense or that would otherwise create civil or criminal liability under the laws of any local, state, national, or international law, statute, or regulation;
  2. any content that would infringe any patent, copyright, trademark, trade dress, trade secret, or other intellectual or proprietary right or that would invade any right of privacy or publicity of any third party;
  3. any content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, abusive, inflammatory, fraudulent, or otherwise objectionable;
  4. any content that misrepresents that the User is or is affiliated with another person or entity;
  5. any content containing private, personal information regarding any third party, including, but not limited to, address, telephone number, email address, Social Security numbers, credit card numbers, or other financial information; or
  6. any viruses, corrupted data, or other harmful, destructive, malicious, or disruptive files or code.
GameWisp also reserves the right to remove any content that, in the sole discretion of GameWisp, is objectionable or restricts any other user from using and/or enjoying the Service or may expose GameWisp, the Service, or any other user to potential liability. Any violation of the rules contained in this Section XI is a violation of these Terms and may result in the termination or suspension of the User’s account or other rights to use the Service without prejudice to any other right or remedy available to GameWisp for the User’s breach of these Terms.

XII. Account
In order to access certain services and areas of the Service, including but not limited to, uploading and/or distributing Content, linking YouTube Content, commenting, viewing early access or exclusive Content, and/or posting to Channel forums, the User must create an account. In order to create an account, the User will be asked to provide a username and password. The User is solely responsible for all activities that occur under your account and/or password. The User represents and warrants that all information given to GameWisp in creating an account is true, accurate, correct, and complete. The User shall keep all such information updated and correct at all times. In the event that the User becomes aware that his/her account is no longer secure (by virtue of a loss, theft, or unauthorized disclosure of the User’s account information, including username and password), the User will promptly notify GameWisp. The User may be liable to GameWisp or other users for any unauthorized use of the User’s account. GameWisp may also permit you to register and log into the Service via third party social networks including but not limited to Facebook, Twitter, Twitch and/or Google+. If the User registers and logs in via one of these networks, GameWisp may use the profile information connected to the account used to register and/or log in to provide support to the User’s account and may publish information regarding the User’s use of the social network used to register and/or log in.

XIII. Subscription
The Service allows the User to subscribe to certain Channels on a monthly basis in exchange for certain incentives. In order to subscribe to a Channel, a User must have registered for an account. The User’s responsibility to maintain the security of the User’s account information is detailed in Section XII. GameWisp only allows subscriptions by those persons who can legally make purchases with a credit card or through an authorized service such as PayPal. If the User is under 18, the User may only subscribe to a Channel with the involvement of a parent or guardian. All purchases, including subscriptions, are governed by the GameWisp Terms of Sale, which are hereby incorporated by reference into these Terms of Use.

XIV. Term and Termination
These Terms govern the User’s use of the Service and will continue until such use is terminated either by GameWisp or the User. GameWisp reserves the right to terminate the User’s license to use the Service and to block any access to the Service by the User at GameWisp’s sole discretion at any time and for any purpose without notice. The User may terminate his/her use at any time by terminating the User’s account and discontinuing use of any and all parts of the Service.

XV. Indemnification
The User agrees to indemnify, defend, and hold harmless GameWisp, its affiliates, contractors, directors, officers, employees, and agents from any claims, losses, damages, obligations, costs, debt and/or liabilities (including legal fees and expenses) arising out of the User’s misuse of the Service, the Content posted, stored, linked from YouTube, or otherwise transmitted through the Service, the User’s violation of the rights of any third-party, arising out of any promotion, sweepstakes or contest run by the User, any violation of these Terms of Use and any additional terms accompanying GameWisp products or services, or any breach by the User of the covenants, representations, and warranties contained herein. GameWisp may at the User’s expense defend any matter for which it is entitled to indemnification by the User under these Terms. GameWisp will use reasonable efforts to notify the User regarding any such claim, action, or proceeding.

XVI. Disclaimer
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICE AND THE CONTENT CONTAINED THEREIN ARE PROVIDED AS-IS AND WITH ALL FAULTS. GAMEWISP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT WITH RESPECT TO THE Service AND ALL CONTENT CONTAINED THEREIN. GAMEWISP DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ANY CONTENT CONTAINED THEREIN ARE CURRENT, ACCURATE, COMPLETE, RELIABLE, OR ERROR-FREE. DESPITE GAMEWISP’S COMMITMENT TO THE SAFETY OF THE USE OF THE SERVICE, GAMEWISP DOES NOT WARRANT THAT THE SERVICE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR OTHER INFORMATION, WRITTEN OR ORAL, GIVEN BY ANY GAMEWISP EMPLOYEE OR AGENT REGARDING THE SERVICE OR THE CONTENT WILL CONSTITUTE A REPRESENTATION OR WARRANTY.

XVII. Limitation of Liability
EXCEPT AS PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL GAMEWISP, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR INDEPENDENT CONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION ARISING IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR CONNECTED WITH THE USER’S USE OF THE SERVICE AND THE CONTENT CONTAINED THEREIN, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY THE USER ON ANY INFORMATION OBTAINED FROM GAMEWISP, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO GAMEWISP’S RECORD, PROGRAMS, OR SERVICES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF GAMEWISP FOR ANY CAUSE OF ACTION ARISING UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE USER’S USE OF THE SERVICE OR THE CONTENT CONTAINED THEREIN EXCEED THE AGGREGATE AMOUNT PAID BY THE USER IN THE PREVIOUS TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER. THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY CONTAINED WITHIN THIS AGREEMENT REPRESENT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE USER AND GAMEWISP AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE USER AND GAMEWISP.

XVIII. Dispute Resolution
In the event of a dispute between the User and GameWisp, the parties agree to negotiate in good faith to resolve such dispute amicably. In the event that such negotiations are incapable of resolving such dispute, the parties agree that the dispute shall be submitted to binding arbitration before one (1) mutually agreed upon arbitrator in accordance with the arbitration rules promulgated by the American Arbitration Association (AAA). If the parties are unable to agree on an arbitrator, such arbitrator shall be appointed in accordance with the procedures provided by the AAA. Such arbitration shall be conducted confidentially in Davidson County, Tennessee and will be governed by these Terms, the laws of the State of Tennessee, and any applicable law of the United States without giving effect to any choice of law rules. The arbitrator shall have authority to grant any remedy that would available in a court of law. The parties agree to notify each other of a dispute within thirty (30) days of discovering the existence of such dispute. The arbitral award may be enforced by any court of competent jurisdiction.

XIX Miscellaneous
  1. Amendments. GameWisp reserves the right, at its sole discretion, to change, modify, or remove portions of these Terms at any time by posting such changes online. It is the responsibility of the User to refer to and comply with the updated terms and conditions upon accessing the Service. The User’s continued use of the Service will be considered acceptance of the modified Terms. Any material change to this Agreement will be effective thirty (30) days after the change is initially posted to the GameWisp System.
  2. Assignment. The User may not assign any right or delegate any duty under these Terms without the express, written permission of GameWisp. GameWisp may assign or sublicense any right and may delegate any duty under these Terms at its sole discretion to any third party without notice to the User.
  3. Entire Agreement. These Terms together with all additional terms associated with specific GameWisp products and services, and any other incorporated documents hereto constitute the entire agreement of the parties with respect to the subject matter of these Terms and supersede all previous agreements, understandings, negotiations, discussions, or similar communications with respect to the subject matter of these Terms.
  4. Governing Law. This Agreement shall be governed in all respects by the laws of the State of Tennessee without giving regard to its conflicts of law principles.
  5. Headings. The headings in these Terms exist for organizational purposes only and will not be considered as binding with respect to the subject matter of any given provision of these Terms.
  6. Notice. Traditional Means. All notices required under this Agreement may be given by hand delivery, mail, courier, facsimile, or electronic mail. If notice is given by mail, the party giving notice must send such notice either certified or registered mail return receipt requested. Such mailed notice will be deemed to be given and accepted upon dispatch unless it fails to arrive within two (2) weeks if domestic or three (3) weeks if sent overseas. In the case that a mailed notice arrives after the two (2) or three (3) week interval, such notice will be deemed given and accepted upon the signature of the recipient for the notice. Except as provided in Paragraph ii, the notifying party shall bear all costs of giving notice. Electronic Mail. All notices under this Agreement may be given by electronic mail. Notices given by electronic mail shall be deemed given and accepted as of the date and time that such electronic mail is received in the notified party’s inbox.
  7. Severability. In the event that any provision or term of these Terms is found to be illegal, unenforceable, or void by any Court for any reason, such illegal, unenforceable, or void provision or term will be severed from these Terms and the remainder of these Terms shall continue in full force and effect to the fullest extent permitted by law.
  8. Survival. Upon the termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
  9. Waiver. Either party may waive any provision of these Terms at their discretion. However, the waiver of one provision does not constitute a waiver of all of these Terms or any other provision of these Terms. Further, one waiver of a provision of these Terms does not constitute a subsequent waiver of the same provision in the same or similar circumstances unless the waiver is in writing and signed by the party waiving the provision and expresses an intention to waive the provision in subsequent circumstances.